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2004 DIGILAW 839 (RAJ)

Abdul Rehman v. Kailash Chand

2004-05-25

A.C.GOYAL

body2004
JUDGMENT 1. - This is second appeal by the defendant-tenant against the judgment and decree dated 23.3.1999 whereby the Additional Distt. Judge No. 7, Jaipur City. Jaipur while setting aside the judgment and decree dated 20.7.1981 passed by the Additional Civil Judge (Small Cause), Jaipur City, s decreed the suit for eviction. 2. The relevant facts in brief are that the original landlord Deepchand filed a suit for eviction in November, 1973 with the averments that the defendant is tenant in the suit shop since 4.2.1968. Initially the monthly rent was Rs. 40/- and now it is Rs. 48/-. Eviction was sought on the grounds of 10 material alteration; reasonable and bonafide requirement for Smt. Snehlata daughter-in-law of the plaintiff-landlord. 3. Vide written statement, while admitting the tenancy, grounds of eviction were denied. On the basis of the pleadings of the parties. issues were framed. Evidence of both the parties was recorded. Vide judgment dated 20.7.1981 suit for eviction was dismissed holding that both the grounds of eviction have not been proved. 4. Plaintiff preferred first appeal During pendency of Me first appeal, the plaintiff died, hence, his legal representatives were brought on record. 5. Learned Additional Oise. Judge No. 7, Jaipur City, Jaipur vide impugned judgment dated 20.3.99 while upholding the findings of the trial court on the issue of material alteration, reversed the findings on the points of reasonable and bonafide requirement: comparative hardship and partial eviction, and thus, decreed the suit for eviction. 6. I have heard learned counsel for the parties on the appeal and the application filed by the appellant under Order 41 Rule 27 CPC. 7. It was submitted on behalf of the appellant that the findings of the first appellate court being contrary to the oral testimony of the plaintiff himself are perverse and that there were no grounds to interfere with the findings of tee trial court in first appeal, hence, this Court may take a different view in second appeal. Reliance is placed upon Khet Singh v. Had Singh, reported in 1987 RLW 584 and Surain Singh v. Mehenga, reported in (1996) 2 SCC 624 wherein, this Court as well as the Apex Court held that when there are two findings of fact, one of trial court and the other reversed by the first appellate court, second appellate court has to interfere and decide the findings of fact. 8. 8. Learned counsel for the appellant also referred to the evidence and the subsequent events as contained in the application under Order 41 Rule 27 CPC and submitted that no reasonable and bonafide requirement of the suit shop exists 9. On the other hand. it was submitted on behalf of the respondents that the first appellate court has recorded the findings having considered the entire material evidence on record and there is no perversity in the findings of the first appellate court and mere different view in second appeal would be no ground to reverse the said findings. It was also contended that subsequent events have no bearing on the conclusions recorded by the first appellate court. He placed reliance on Ragavendra Kumar v. Firm Prem Machinery and Co., reported in AIR 2000 SC 534 wherein it has been held that the landlord is the best judge with regard to suitability of the premises for his requirement. In Raghunath G. Panhale v. M/s. Chaganlal Sundarji & Co., reported in AIR 1999 SC 3864 it was held that the word 'reasonable' connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire and it must be something more than a desire but need riot certainly be a compelling or absolute or dire necessity. In Arumugham and others v. Sundarambal and another, reported in AIR 1999 SC 2216 it was held that the judgment of the first appellate court cannot be reversed in second appeal merely on the ground that the first appellate court had not come to grips with reasoning's of the trial court. 10. I have considered the rival submissions and the judgments of the courts below. The trial court on the basis of the evidence of the plaintiff on the point of income, came to the conclusion that the monthly income. of the plaintiff and other members of the family is approximately Rs. 1,000/- and expenses are about Rs. 300/- per month and thus, the requirement of the suit shop was held not reasonable and bonafide, and on the same reasoning, issue of comparative hardship was also decided against the plaintiff. These findings were reversed by the first appellate court and rightly so. 1,000/- and expenses are about Rs. 300/- per month and thus, the requirement of the suit shop was held not reasonable and bonafide, and on the same reasoning, issue of comparative hardship was also decided against the plaintiff. These findings were reversed by the first appellate court and rightly so. The first appellate court has considered the entire material evidence available on the record and had come to the conclusion that the statement of the plaintiff Deepchand on the point of monthly income and expenditure is somewhat self contradictory but keeping in view the entire evidence available on the record, it was held that the requirement of the plaintiff of the suit shop to carry on business by his daughter in law Smt. Snehlata for earning additional income is both reasonable and bonafide and it is not a case of mere desire s and there is no evidence to show that the suit for eviction was filed with some ulterior motive i.e. for higher rent or for any other purpose. It was also held that the suit shop is on rent since 1968 and the plaintiff has got no other shop, therefore, comparative hardship would be caused to the plaintiff. On the point of partial eviction, it was held by both the courts that the size of the so shop is about 10" X 7.6 and partial eviction would not serve purpose of the either party. The first appellate court has taken into consideration the entire evidence and thus, the findings of the first appellate court are in no way perverse and no substantial question of law arises in this second appeal. 11. Having gone through the contents of the application under Order 41 Rule 27 CPC even the contents if taken to be the subsequent events, in no way adversely affect the requirement of the plaintiff landlord. 12. Consequently, this second appeal along with stay petition is hereby dismissed at the admission stage. The record of the courts below be sent back without delay.Second Appeal Dismissed. *******