Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 792 (RAJ)

Mahendra Dutt Dwivedi v. Shri Ramesh Chand

2004-05-14

A.C.GOYAL

body2004
Honble GOYAL, J.–This second appeal has been preferred by the defendant-tenant against the judgment and decree passed by learned Additional District Judge No. 5, Jaipur City, Jaipur on 10.12.1998 whereby the judgment and decree of eviction dated 6.12.1996 passed by Additional Civil Judge (Senior Division) No. 2, Jaipur City, Jaipur was affirmed. (2). The relevant facts in brief are that the plaintiff- respondent filed a suit for eviction with the averments that suit shop at Jaipur was let-out to the defendant on 1.6.1973 at monthly rent of Rs. 200/-. He sought eviction on the grounds of default in payment of rent, reasonable and bonafide requirement of the plaintiff and sub-letting/parting with possession of the suit shop. (3). The defendant in written statement while admitting the tenancy denied all the grounds of eviction. It was also pleaded that the plaintiff is in government service and during the pendency of the suit the plaintiffs son Moti Lal has also got government service. The business in the suit shop is being carried out by the defendant, his brother Rajendra and their father in the name of M/s Rajlaxmi Cloth Store. (4). As many as six issues were framed. Evidence was recorded. (5). Vide judgment dated 6.12.1996 learned Additional Civil Judge came to this conclusion that the defendant committed default in payment of rent but being the first default decree of eviction could not be passed on this ground. Issues No. 2, 3 & 6 were also decided in plaintiffs favour although it was found that since the plaintiffs son Moti Lal has joined government service so Moti Lals requirement is not found proved. Issue No. 4 was decided in the manner that though sub-letting has not been proved but parting with possession of the shop has been proved. In view of the decision on issue No. 4, issue No. 5 was found to be unnecessary. In the result, decree of eviction was passed. (6). First appeal preferred by the tenant was dismissed vide impugned judgment dated 10.12.1998 by affirming the finding of the Trial Court. (7). I have heard learned counsel for the parties. In view of the decision on issue No. 4, issue No. 5 was found to be unnecessary. In the result, decree of eviction was passed. (6). First appeal preferred by the tenant was dismissed vide impugned judgment dated 10.12.1998 by affirming the finding of the Trial Court. (7). I have heard learned counsel for the parties. The first submission made by learned counsel for the appellant is that the plaintiff first came with the case that the suit shop is required for him as he wants to carry on cloth business but at that time he was in service and thus no cause of action arose on the day the suit was filed. This submission is devoid of merit, firstly because it was the case of the plaintiff that he is going to retire and it was not disputed now that the plaintiff stands retired. The Honble Supreme Court in Raghunath G. Panhale vs. M/s. Chaganlal Sundarji and Co. (1), held that the requirement may not be in praesenti or within reasonable proximity in the future. The word bonafide means that need must be honest and should not be tainted with any oblique motive and the Court should not proceed on assumption that the requirement of the landlord was not bonafide. Secondly, the suit was based not only on the ground of the requirement of the plaintiff but also on other grounds which were also found proved by the courts below. As far as the requirement of the plaintiffs son is concerned both the courts below have arrived at this conclusion that since during the pendency of the proceedings the plaintiffs son has got government service, his requirement no more exists. (8). It was next submitted that the findings of the courts below with regard to reasonable and bonafide requirement of the plaintiff are perverse and the High Court can interfere in second appeal. This legal proposition finds support from the judgment delivered in Deena Nath vs. Pooran Mal (2), that the High Court can interfere in second appeal in the facts and circumstances of a particular case. (9). Now the question is as to whether the findings of the courts below on this point are perverse ? (10). As stated hereinabove, it is not in dispute that the plaintiff-landlord has already retired. (9). Now the question is as to whether the findings of the courts below on this point are perverse ? (10). As stated hereinabove, it is not in dispute that the plaintiff-landlord has already retired. Both the courts below having considered the entire evidence available on the record came to this concurrent finding that the plaintiff requires the shop to carry on cloth business and I find no perversity in the same. On the same reasonings the concurrent findings of the courts below on the questions of comparative hardship and partial eviction do not call for any interference by this Court in second appeal. (11). Next ground for eviction was sub-letting/parting with possession of the shop. Section 13 (1) (e) of the Rajasthan Premises (Control & Rent & Eviction) Act, 1950 (in short the Act) provides that in case the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord, a decree of eviction shall be passed. According to learned counsel for the appellant, though both the courts below held that sub-letting has not been found proved, the findings with regard to parting with possession of the suit shop are unjustified, as Sh. Rajendra Dutt is brother of the defendant-appellant and the business in the name of M/s. Rajlaxmi Cloth Store was being carried out from the beginning by the defendant, his brother Rajendra and their father and thus question of handing over exclusive possession to Rajendra Dutt does not arise in this case. He has placed reliance upon M/s. Delhi Stationers and Printers vs. Rajendra Kumar (3), wherein the Honble Supreme Court held that mere occupation by alleged sub-tenant is not sufficient to infer either sub-tenancy or parting with the possession of rented premises by the tenant without the permission of the landlord. He also placed reliance upon Ram Babu vs. Manmohan Swaroop (4), Vinodilal vs. Upbhokta Sahkari Bhandar Ltd. (5), and Swaroop Narain Srivastava vs. The IVth Addl. District Judge (6). (12). But these judgments are not relevant on the point of parting with possession of the rented premises. Rather both the judgments of M.P. High Court are on the point of requirement of the landlord and it was held that the landlord can file the suit in respect of his requirement which is to arise in near future. (12). But these judgments are not relevant on the point of parting with possession of the rented premises. Rather both the judgments of M.P. High Court are on the point of requirement of the landlord and it was held that the landlord can file the suit in respect of his requirement which is to arise in near future. The judgment of the Honble Supreme Court in Swaroop Narain Srivastavas case (supra), is also not applicable on the points involved in the instant case. Learned counsel for the plaintiff- respondent contended that the fact of parting with possession of the shop has been found proved on the basis of the admissions of the defendant himself in his statement and parting with the possession to the family members amounts to parting with legal possession. Reliance is placed upon Mohammedkasam Haji Gulambhai vs. Bakerali Fatehali (Dead) by Lrs. (7), wherein the Honble Supreme Court held that in case the tenant gives the control of shop to his sons who are running the business and the tenant has no physical control or constructive possession, it amounts to sub-letting. In the instant case, both the courts below have arrived at concurrent finding that this shop was let-out to the defendant to carry out his own business in the year 1973; that the defendant himself admitted in his statement that he is in service at Ahmedabad since 1981; that he carried out business in the suit shop from 1973 to 1979 and thereafter his brother Rajendra Dutt is carrying on business in the suit shop and there is no evidence on the part of the defendant to show that Rajendra Dutt is carrying on business in the shop with the permission of the landlord. Thus, in view of the above evidence of the defendant himself the findings of the courts below that the defendant-tenant has parted with the possession of the shop and it is in exclusive possession of Sh. Rajendra Dutt are based on material evidence. No such case has been made out that it is a case of misreading, non-reading or wrong-reading of evidence of the parties by the courts below. (13). In view of the discussion made hereinabove, no substantial question of law arises in this second appeal. (14). Consequently, this second appeal is hereby dismissed at the admission stage along with stay application.