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2003 DIGILAW 215 (MP)

GIRDHARILAL KESHARWANI v. NARESH GOLCHHA

2003-01-31

K.K.LAHOTI

body2003
JUDGMENT K.K. Lahoti, J. Defendant has filed present appeal. This appeal was admitted on 8-10-1999 on following substantial question of law: Whether the trial Court and the first Appellate Court have recorded a perverse finding that the ground for eviction u/s 12(1)(f) of the M.P. Accommodation Control Act, 1961 is established? Counsel appearing for respondents raised a preliminary objection that no substantial question of law arises nor the appellant can be permitted to rediscuss the entire evidence, which has been considered by both the Courts below and finding of facts has been recorded in favour of respondents. The learned counsel for respondents places his reliance on two judgments of the Apex Court in Ram Prasad Rajak Vs. Nand Kumar and BOrs. and Another, and Veerayee Ammal Vs. Seeni Ammal, , and submits that this Court cannot assume jurisdiction to interfere in second appeal just because another view is possible on reappreciation of the entire evidence and it is beyond the scope of section 100 of CPC to reappreciate the evidence in the garb of alleged perversity of finding. On the contrary, the learned counsel appearing for appellant submits that aforesaid substantial question of law arises in the case. The Court below has not properly considered the evidence and the findings recorded by the Courts below are perverse. They have not properly considered the pleadings and the evidence in the case and the findings are apparently perverse which need interference from this Court. To support his contention, the learned counsel for appellant has read over most of the evidence in the case, particularly statements of PW1 Sandeep Golchha and DW1 Girdhari Lal and submits that from the perusal of the aforesaid evidence, the plaintiffs have failed to establish their bona fide necessity and suit deserves to be dismissed. To appreciate the rival contentions of the parties, it is necessary to go through the case of the parties. 4A. Plaintiffs filed a suit for ejectment on 16-3-1993, on the ground that the plaintiffs are landlords of a building known as 'Golchha Complex', Sadar Bazar, Jabalpur and the suit shop is No. 3 which is a part of said Golchha Complex and is shown in the map annexed to the plaint. Defendant is a tenant of the said shop at the rate of Rs. 600/- per month. Defendant is a tenant of the said shop at the rate of Rs. 600/- per month. The tenancy commences on the first day of every calender month and expires on the expiry of the calender month. Rent is payable on 10th of succeeding month. The suit accommodation is bona-fidely required for starting business and the plaintiffs do not have any other reasonably suitable accommodation in their occupation at Jabalpur. Plaintiff requested the defendant to vacate the suit shop and handover the possession, but the defendant has failed to do so. The defendant has occupied the platform which was left for the use of customers who enter into the market. The defendant is keeping his goods on this passage and has obstructed in free passage to the customers. It has caused substantial loss to the plaintiffs. The notice was served on the defendant but he failed to vacate the shop. Consequently, the aforesaid suit was filed for ejectment and costs. The respondent contested the suit inter alia, in para 1 of the written statement, it is stated that the plaintiffs are landlords of the shop. The plaintiffs have not pleaded in the plaint when the defendant was inducted as tenant and the date of commencement of the tenancy. The tenant has paid entire rent. The defendant has not encroached over the passage in front of the shop. Plaintiffs are not in need of the shop. They never asked the defendant to vacate the shop. In para 6-A it is pleaded that the plaintiffs are having their own non-residential accommodation which are shops nos. 4 and 5 on the main road of the Cantt. Jabalpur and are just adjacent to the suit accommodation. It is known as Moti Building at Sadar Main Road, Jabalpur and the shop No. 7 in the Golchha Complex is also in possession of the plaintiffs, which has fallen vacant during the pendency of the suit and is lying locked. The plaintiffs want to enhance the rent and they have demanded Rs. 1500/- per month as rent from the defendant. The plaintiffs have not filed any suit against six other co-tenants who are running their shops in the said complex. The suit has been filed with ulterior motive. The plaintiffs want to enhance the rent and they have demanded Rs. 1500/- per month as rent from the defendant. The plaintiffs have not filed any suit against six other co-tenants who are running their shops in the said complex. The suit has been filed with ulterior motive. The plaintiffs are in occupation of another shop known as "ROAM N PICK' in Golchha Complex, which is apparent from the information sent by the plaintiffs to the Shop and Establishment Department. The father of plaintiffs has admitted this fact in other suit. The plaintiffs have suppressed this fact from the Court. Plaintiffs are the owners and landlords of the suit accommodation but in the Canara Bank, Jabalpur, in Account No. 793, the name of proprietor of the Golchha Complex is recorded only in the name of Sandeep Golchha, plaintiff No. 4. That another big shop is lying vacant and is in possession since last about 4-5 years to the father of the plaintiffs in which he has started a shop known as 'weekender' Show Room Cantt. Jabalpur w.e.f. 26-3-1995. The plaintiffs have let out one shop on 15-7-1995 to the proprietor of 'Crazy Kids Collection Shop' in the Golchha complex. Another shop has been let out to Soni Shivalal on 30-10-1991 in which he has opened the shop in the name and style of 'Roop Singer Jewellers'. That three more shops are lying vacant since April 95 in the Golchha Complex. One big shop in Moti Building situated on main road of Sadar Bazar Cantt. Jabalpur is lying vacant which belongs to the plaintiffs. The shop No. 7 of the Golchha complex vacated by Harish Chand has been let out to Sadhu Ram on 3-3-1996 on enhanced rent. On the aforesaid grounds the suit was contested. The trial Court after framing issues recorded the evidence. By the judgment and decree dated 17-4-1997, the trial Court decreed the suit of the plaintiffs. Against this, appellant preferred First Appeal No. 57A/97. This appeal was decided on 12th March 1998. In that appeal, an application for amendment was filed that during the pendency of the appeal, plaintiffs have let out one shop to Photo Studio. The appellate Court remanded the case to record the evidence by the trial Court and to decide the case afresh. This appeal was decided on 12th March 1998. In that appeal, an application for amendment was filed that during the pendency of the appeal, plaintiffs have let out one shop to Photo Studio. The appellate Court remanded the case to record the evidence by the trial Court and to decide the case afresh. After the remand, the trial Court recorded the evidence and by the judgment and decree dated 5-8-1998 decreed the suit on following findings. 1. That the defendant is a tenant of plaintiffs. The suit shop is bona fidely needed for the necessity of plaintiff Sandeep Golchha. The alternative accommodations as stated by the defendant were considered in para 12 of the judgment and the trial Court recorded findings that no such alternative accommodation came into the possession of the plaintiffs. Aggrieved by the judgment and decree dated 5-8-1998 of the trial Court, appellant preferred an appeal which has been decided by the impugned judgment and decreed. The lower appellate Court in the impugned judgment has considered the entire evidence and recorded following findings: (A) That the suit accommodation is bonafidely needed by plaintiff Sandeep Golchha for his business. (B) He is unemployed. (C) In Jabalpur town, he is not having any alternative accommodation to start his business. (D) The lower appellate Court has considered all the alternative accommodations as stated by the defendant, in paras 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the judgment and after appreciating the entire evidence, the appellate Court recorded finding that no alternative accommodation has come into the possession of plaintiffs nor plaintiffs have let out any shop during the pendency of the suit. (E) The Court also considered the fact that the suit shop is situated on the main road which is more suitable to the plaintiffs' need. Confirming the aforesaid findings, the appellate Court dismissed the appeal. (E) The Court also considered the fact that the suit shop is situated on the main road which is more suitable to the plaintiffs' need. Confirming the aforesaid findings, the appellate Court dismissed the appeal. The learned counsel appearing for the appellant contended that: (1) the plaintiff Sandeep Golchha failed to prove that he is owner of the shop; (2) bona fide necessity is not proved on the ground that the plaintiffs in the plaint have not pleaded the need of Sandeep Golchha, but for the first time in the evidence this fact was disclosed, (3) the business was also not disclosed in the plaint and the plaintiff Sandeep Golchha is not sure about his business; (4) other accommodations are in possession of the plaintiff which he has failed to explain; (5) the plaintiffs have acquired some more accommodations during the pendency of this appeal and in this regard, appellant has filed an application on 23-4-2002 showing the acquisition of other accommodations. (6) The appellant has also filed an application under Order 6, Rule 17, CPC on 24-9-2002 by which it is proposed to bring to the notice of the Court that plaintiff Sandeep Golchha along with one Ashim Bordia has purchased the property known as Punjab House Building situated at Kingsway Main Road, Jabalpur and the building was occupied by two tenants. One portion was occupied by Indian Coffee House and another by Smt. Devika Modi and Lili Paul Singh. After the purchase of the property, the portion which was occupied by Indian Coffee House has been sold by plaintiff No. 4 to one Atul Madan and the portion which was occupied by Smt. Devika Modi and Lili Paul Singh has got vacated. Sandeep Golchha has got the accommodation for his alleged bona fide need. Contending the aforesaid, the learned counsel for appellant submits that this appeal deserves to be allowed and the suit of the plaintiffs may be dismissed. The learned counsel appearing for respondents supported the judgment and decree of the Courts below and contended that the ownership of the plaintiffs was never disputed by the appellant rather it was an admitted fact that the suit house belongs to the ownership of plaintiffs. Both the Courts below after appreciating the entire evidence recorded finding of fact that the plaintiff Sandeep Golchha is having no other alternative accommodation. Both the Courts below after appreciating the entire evidence recorded finding of fact that the plaintiff Sandeep Golchha is having no other alternative accommodation. So far as the application filed by the appellant is concerned, no such accommodation has come into the possession of the plaintiffs. The property purchased by the plaintiffs as Punjab House is in occupation and is not vacant. Tenant No. 2 has not vacated it. In the circumstances, both the aforesaid applications deserve to be dismissed by this Court. In the present case, the substantial question of law which has been framed by this Court has to be seen in the light of judgment of the Apex Court in Ram Prasad Rajak's (supra). The Apex Court while considering the scope of section 100 of CPC held: 8. That apart, on merits, the only other question relates to the bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence. On a perusal of the judgment of the High Court, it is evident that it had interfered with a finding of fact arrived at by the Second Additional District Judge, Giridih in the first appeal on an appreciation of the evidence. The High Court made an attempt to reappreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement. In fact, after a scanty discussion of the evidence, the High Court observed, "in this view of the matter I find and hold that the plaintiff miserably failed on factual aspect also to prove his bona fide necessity". The High Court has acted beyond its jurisdiction in appreciating the evidence on record. In Veerayee Ammal's case (supra), the Apex Court considered the scope of section 100 of CPC and held (paras 7, 8 & 9): 7. Section 100 of the CPC (hereinafter referred to as "the Code") was amended by amending Act 104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it was satisfied that the case involved a substantial question of law. Such question of law has to be precisely stated in the memorandum of appeal and formulated by the High Court on its judgment, for decision. Such question of law has to be precisely stated in the memorandum of appeal and formulated by the High Court on its judgment, for decision. The appeal can be heard only on the question, so formulated, giving liberty to the respondent to argue that the case before the High Court did not involve any such question. The amending Act was introduced on the basis of various Law Commission reports recommending making of appropriate provisions in the CPC which were intended to minimize the litigation, to give the litigant a fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the Courts to be substantial question of law. We have noticed with distress that despite amendment, the provisions of section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of section 100 appears to have been frustrated. Even before the amendment of section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur vs. Mohani Dasi held (AIR 1959 SC 1205, para 3) It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact. To the same effect are the judgments reported in Sinha Ramanuja Jeer vs. Ranga Ramanuja Jeer; V. Ramachnadra Ayyar vs. Ramalingam Chettiar and Madaamanchi Ramappa vs. Muthaluru Bojjappa. After its amendment, this Court in various judgments held that the existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal. After its amendment, this Court in various judgments held that the existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal. The conditions specified in section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds. As to what is the substantial question of law, this Court in Sir Chunilal V. Mehta & Sons Ltd. vs. Century Spg. & Mfg. Co. Ltd. held that: (AIR 1962 SC 1318, para 6). The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar this Court again considered this aspect of the matter and held: 1999(3) (SCC) 725-26, para 6. 6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contends of the document cannot be held to be raising a substantial question of law. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contends of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India vs. Ramkrishna Govind Morey held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference. Considering the aforesaid settled position of law by the Apex Court, in the present case, the question of law, which has been formulated as substantial question of law will require reappreciation of entire evidence. Both the Courts below have concurrently recorded finding of fact in the case. Until and unless some perversity or infirmity is pointed out, the aforesaid finding of fact recorded by the Courts below cannot be interfered with, merely because on appreciation of evidence, another view is possible. It would not be a ground to reappreciate the entire evidence and to reverse the finding of fact recorded by the Courts below. In the present case, both the Courts below have recorded finding that the plaintiffs have proved bona fide necessity. Plaintiff Sandeep Golchha has no other alternative accommodation in his possession and the alternative accommodations suggested by the defendant have not come into the possession of plaintiff Sandeep Golchha, and are not suitable to him. In view of the aforesaid, I do not find any justified ground to disturb the finding of fact recorded by the Courts below even after considering the contentions raised by the learned counsel for appellant. So far as the contention of the appellant that the plaintiff has failed to prove his ownership is concerned, in the present case, the plaintiff Sandeep Golchha has proved his ownership by filing sale deed of the suit house which is Ex.P/4 in the case. From the perusal of the sale deed (Ex.P/4), it is apparent that the plaintiffs have purchased the suit accommodation. From the perusal of the sale deed (Ex.P/4), it is apparent that the plaintiffs have purchased the suit accommodation. The defendant in para 1 of the written statement has admitted that the plaintiffs are the landlord of Shop No. 3 of Golchha Complex but subsequently denied ownership. But in view of the fact that the plaintiffs have proved ownership by filing the sale deed before the Court below, the aforesaid contention cannot be accepted. So far as the contention of appellant that the plaintiffs have not pleaded and proved the bona fide necessity of Sandeep Golchha is concerned, the plaintiffs in the plaint have pleaded the bona fide necessity of plaintiff. The plaintiff Sandeep Golchha appeared in the witness box and has stated that the suit shop is bona fidely needed for his business and he wants to start his business in the said shop. In view of the aforesaid, the plaintiff has specifically stated that the suit shop is bona fidely needed by him, in which he will start his business. At the time of evidence, he brought original sale-deed before the Court. The appellant has cross-examined him at length. The appellate Court has also considered that the lengthy cross-examination continued for a period over 15 months and each and every question was put to the plaintiff, but there is no infirmity in the statement of PW1 Sandeep Golchha. The Court has also recorded finding that the statement of Sandeep Golchha is reliable. He has proved his bona fide necessity in his statement. The learned counsel for appellant has tried to assail the finding of the Court below on the ground that the alternative accommodation as disclosed by the defendant has not been properly explained by plaintiff, but both the Courts below have considered each and every alternative accommodation in the judgment and after considering the entire evidence have recorded finding that no such alternative accommodation is available to plaintiff. In absence of any infirmity, the aforesaid finding cannot be interfered with. The appellant has given much emphasis on the statement of DW1 Dr. N. Shankaran (on commission) and contends that though the doctor is a tenant of the shop but he has let out the said shop to his nephew and after his vacation, he let it out to Ramesh, who is running a photo studio in the name of N. Photo Studio. N. Shankaran (on commission) and contends that though the doctor is a tenant of the shop but he has let out the said shop to his nephew and after his vacation, he let it out to Ramesh, who is running a photo studio in the name of N. Photo Studio. But the plaintiffs have not initiated any action against Dr. N. Shankaran, the tenant, for eviction. Though the argument is attractive but has no force. It is not the case of the defendant that the shop occupied by Dr. N. Shankaran came into the possession of the plaintiffs, but the case is that the shop let out to Dr. Shankaran got vacated by his sub-tenant and came in possession of tenant and again he let out. The plaintiffs though having the knowledge of the aforesaid fact, but have not taken any action against Dr. Shankaran. Though the plaintiffs are entitled to initiate action against Dr. Shankaran for his eviction u/s 12(1)(b) of the M.P. Accommodation Control Act, 1961, but by itself will not be a sufficient ground to deny plaintiff Sandeep Golchha, decree for eviction for his bona fide necessity in this case. Merely plaintiff has not taken any action against Dr. Shankaran will not be sufficient ground to dismiss the present suit until and unless appellant successfully proves that the aforesaid shop is vacant and is available to plaintiff. Suit of plaintiffs cannot be dismissed merely plaintiffs have not filed any suit against Dr. Shankaran. In the aforesaid circumstances, this argument has no force. So far as filing of two applications by the appellant is concerned in which appellant has stated that the plaintiff Sandeep Golchha got other alternative accommodation, he has purchased one Punjab House and in the said Punjab House one tenant has vacated the accommodation. This fact has been denied by the plaintiffs/respondents and from the perusal of the documents filed along with the reply, it appears that tenant Smt. Devika Modi and Lili Paul Singh have not vacated the accommodation. On the contrary, they are in possession of the shop as tenant. Attornment letter was sent to them and also a notice through the Advocate for attornment. There is exchange of notices between plaintiffs and the aforesaid tenant. In the circumstances, the contention of the appellant cannot be accepted that the aforesaid shop has come in vacant possession of the plaintiffs. Attornment letter was sent to them and also a notice through the Advocate for attornment. There is exchange of notices between plaintiffs and the aforesaid tenant. In the circumstances, the contention of the appellant cannot be accepted that the aforesaid shop has come in vacant possession of the plaintiffs. Another contention of the appellant is that during the pendency of the suit, one shop occupied by Ashish Kapoor has come into the possession of the plaintiffs on the basis of compromise decree dated 28-8-2001 is concerned, from the perusal of the aforesaid proceedings against Ashish Kapoor, there is no finding of the Court that the aforesaid shop was required for Sandeep Golchha for his necessity. The suit was filed and was decreed by two Courts and lastly in the High Court a compromise arrived between the parties and the aforesaid shop has been got vacated by Plaintiff Sanjay Golchha for his necessity. It cannot be said that the vacation of the aforesaid shop will satisfy the need of Sandeep Golchha. In the aforesaid circumstances, I do not find any merit in the contention raised by the learned counsel for appellant. In view of the aforesaid discussions, the appeal filed by the appellant has no merit. As the appellant is in occupation of the shop and is running his business in it, in the circumstances, in the interest of justice sometime is allowed to the appellant to vacate the shop on following conditions: 1. The appellant is permitted to occupy the shop upto 31st May, 2003 provided appellant files an undertaking before the trial Court within a period of one month from today that the appellant will vacate the suit accommodation on or before 31st May, 2003 peacefully without creating any hindrance or third party interest. The appellant will deposit entire arrears of rent and costs incurred in the Court below within a period of one month from today and will continue to deposit the rent as required u/s 13 of the Act till vacation of the suit accommodation. In case of any breach of the conditions mentioned above, the respondents will be entitled to execute the decree forthwith. With the aforesaid directions, this appeal is dismissed with costs.