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2004 DIGILAW 882 (RAJ)

Hira Lal Pukhraj v. Prem Kishan

2004-06-02

A.C.GOYAL

body2004
Honble GOYAL, J.–This is the second appeal by the tenants against the concurrent judgment and decree of eviction. The parties in this appeal would be referred as arrayed in the plaint. (2). The relevant facts in brief are that the plaintiff- respondent filed a civil suit for eviction in February, 1977 with the averments that the suit premises situated in the market of Beawar is on rent with the defendant No. 1-firm having the defendants No. 2 to 4 as its partners. Eviction was sought on the grounds of default in payment of rent, reasonable and bonafide requirement of the plaintiff and his family, substantial damage to the premises and nuisance giving the details of each ground of eviction. (3). Vide written statement having admitted the tenancy, all the grounds of eviction were denied. During the pendency of the suit, the defendant No. 2 Pukhraj expired, hence his legal representatives were brought on record. (4). On the basis of the pleadings, issues were framed. Evidence of both the parties was recorded. Having heard learned counsel for the parties, Civil Judge (Senior Division), Beawar vide judgment dated 27.1.1990 giving the benefit of first default decreed the suit for eviction on the ground of reasonable and bonafide requirement of the plaintiff. (5). First appeal filed by the defendants-tenants was dismissed by learned Additional District Judge, Beawar vide impugned judgment dated 2.7.1998 affirming the findings of the Trial Court on the issues of requirement, hardship and partial eviction. It is made clear that the Trial Court vide judgment dated 27.1.1990 did not decide the issue of partial eviction. In appeal the Trial Court was directed to frame the relevant issue and decide the same after recording the evidence. The Trial Court accordingly decided this issue in favour of the plaintiff vide order dated 2.6.1995. (6). Section 100 CPC deals with second appeals. It provides that where the High Court is satisfied that a substantial question of law is involved, it shall formulate that question and second appeal shall be heard on the questions so formulated. (7). The first submission made by learned counsel for the defendants-appellants is that the First Appellate Court failed to consider the evidence of the parties as provided under Order 41 Rule 31 CPC, hence the impugned judgment dated 2.9.1998 is liable to be set set aside and the first appeal may be sent back for afresh decision. (7). The first submission made by learned counsel for the defendants-appellants is that the First Appellate Court failed to consider the evidence of the parties as provided under Order 41 Rule 31 CPC, hence the impugned judgment dated 2.9.1998 is liable to be set set aside and the first appeal may be sent back for afresh decision. Reliance is placed upon State of Rajasthan vs. Harphool Singh (dead) through his LRs. (1), Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Others (2), Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs., (3), Rattan Dev vs. Pasam Devi (4), Smt. Patu & Ors. vs. L.Rs. of Dau Lal (5), Kerala Transport Company vs. Shahmanilal Mulchand and Others (6), and Dhurandhar Prasad Singh vs. Jai Prakash University and Others (7). (8). On the other hand, it was contended on behalf of the plaintiff-respondent that the First Appellate Court has given the findings on all the points raised on behalf of the defendants and secondly the First Appellate Court has affirmed the findings of the Trial Court, hence, it was unnecessary to repeat and reiterate the evidence or the reasons given by the Trial Court. He placed reliance upon Girijanandini Devi and Others vs. Bijendra Narain Choudhary (8), and Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs., (supra). (9). I have considered the said submissions in the light of the judgment relied upon. In State of Rajasthans case (supra), the Honble Supreme Court held that in first appeal it is the duty of Court to make a critical analysis of the matter before it. While taking similar view in Shiv Shakti Coop. Housing Societys case (supra), it was held that first appeal is in continuation of proceedings and right of appeal carries with it a right of rehearing on law and fact including the power to review the evidence, subject to any statutory limitations. The Honble Supreme Court took the same view in remaining judgments cited hereinabove. (10). It is significant to say here that in cases of State of Rajasthan, Santosh Hazari and Rattan Devs case (all supra), the First Appellate Court reversed the findings of the Trial Court without making any appreciation of evidence. The Honble Supreme Court took the same view in remaining judgments cited hereinabove. (10). It is significant to say here that in cases of State of Rajasthan, Santosh Hazari and Rattan Devs case (all supra), the First Appellate Court reversed the findings of the Trial Court without making any appreciation of evidence. While in the instant case the First Appellate Court has concurred with the findings of the facts of the Trial Court and as held by the Honble Apex Court in Girijanandini Devi & Otherss case (supra) when appellate court agrees with view of Trial Court on evidence it need not restate effect of evidence or reiterate reasons given by the Trial Court. Expression of general agreement with reasons given by Court decision of which is under appeal would ordinarily suffice. Similar view was taken by the Honble Supreme Court in Santosh Hazaris case (supra) which has been relied upon on behalf of defendants also. Therefore it was not necessary for the First Appellate Court to refer and discuss the evidence in detail or to reiterate the reasons given by the Trial Court. Otherwise also, a perusal of the judgment of the First Appellate Court reveals that all the objections regarding reasonable and bonafide requirement, comparative hardship and partial eviction have been dealt with in the first appeal. Therefore, the first submission seems to be devoid of merit. (11). The second submission is that the findings of the courts below on the issues of requirement and comparative hardship are perverse as it is evident from the evidence of the plaintiff himself that he is resident of Bhilwara, is carrying on business at Bhilwara and he has no intention to carry on any business in Beawar and it is a case of mere desire of the plaintiff to get the suit premises vacated. It was also contended that the defendants are carrying on their business in Beawar at a large scale, the suit premises is being used as a godown since the commencement of the tenancy and in case they are evicted, their business would be ruined and thus greater hardship would be caused to them. Reliance is placed upon Boorgu Jagadeshwaraiah & Sons vs. Pushpa Trading Co. (9), M.S. Zahed vs. K. Raghavan (10), Deena Nath vs. Pooran Lal (11). Reliance is placed upon Boorgu Jagadeshwaraiah & Sons vs. Pushpa Trading Co. (9), M.S. Zahed vs. K. Raghavan (10), Deena Nath vs. Pooran Lal (11). He also referred the application filed in this regard under Order 41 Rule 27 CPC and contended that in view of the subsequent events contained in this application the requirement of the plaintiff, if any, no more exists and the subsequent events should be taken into consideration. Reliance is placed upon Gurdev Singh vs. Surjit Kumar Alias Jit and Another (12), Maqboolunnisa vs. Mohd. Saleha Quaraishi (13), Wadi vs. Amilal & Ors. (14), Babu Lal vs. Shripat Lal & Anr. (15), Vallampati Kalavathi vs. Haji Ismail (16), Hasmat Rai and Another vs. Raghunath Prasad (17), Gaya Prasad vs. Pradeep Srivastava (18), and Municipal Board, Kishangarh vs. M/s. Chand Mal & Co. (19). (12). Per contra it was submitted on behalf of the plaintiff that the Trial Court considered the entire evidence in detail and the findings of the Trial Court have been affirmed in the first appeal and there is no perversity in the concurrent findings and the plaintiff-landlord has proved the requirement to be genuine and not a dire need. Reliance is placed upon Hiralal Moolchand Doshi vs. Barot Raman Lal Ranchhoddas (dead) by L.Rs. (20), Raghunath G. Panhale (dead) by LRs. vs. Chaganlal Sundarji and Co. (21), Dhannalal vs. Kalawatibai and Others (22), M.L. Prabhakar vs. Rajiv Singhal (23), Akhileshwar Kumar and Others vs. Mustaqim and Others (24), and Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (25). (13). On application under Order 41 Rule 27 CPC, it was submitted that this application has been filed only with an intent to drag this litigation and facts contained in this application are not the subsequent events. Reliance is placed upon Gaya Prasad vs. Pradeep Srivastava (26). (14). I have considered the above submissions carefully. Firstly the application under Order 41 Rule 27 CPC is taken up. Reliance is placed upon Gaya Prasad vs. Pradeep Srivastava (26). (14). I have considered the above submissions carefully. Firstly the application under Order 41 Rule 27 CPC is taken up. Order 41 Rule 27 CPC provides that the Court may allow additional evidence in appeal if the Trial Court refused to admit evidence which was admissible, or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him in the Trial Court or the appellate court requires any additional evidence to enable it to pronounce judgment or for any other substantial cause. According to this application the defendant Shri Janwari Lal recently happened to go to Bhilwara and came to know about the facts contained in this application that the plaintiff, his wife and their two sons are carrying on their business in textiles, STD/ISD PCO, and have installed fax and photo-stat machines and they are carrying on their business in the name of various agencies as mentioned in this application. The first document is the list of registered members of Bhilwara Textile Agents Association for the year 1990 wherein the plaintiff has been shown as Secretary of this Association. Some photographs of sign boards of the firms of the plaintiff, one news-paper cutting of the year 1999, one photo copy of invitation card of the marriage of the daughter of the plaintiff dated 10.3.1996 have also been placed on record. According to the reply of the plaintiff, it was stated that the plaintiff has converted Varandah of his house in two shops-one shop of size of 7ft. x 16ft. with three shutters and other shop of the size of about 9ft. x 15ft. with two shutters. One son Praveen Garg is doing the business in the Agroha Electronics and the plaintiffs other son Pankaj is still unemployed. It was also stated that the plaintiff was doing textile business and agency of STD-PCO is in the name of Smt. Premlata-wife of the plaintiff and since she is not able to attend the concerned departments the plaintiff was selected as the President of the STD/PCO association and the alleged invitation letter was not got printed by the plaintiff. It was also stated that the plaintiff was doing textile business and agency of STD-PCO is in the name of Smt. Premlata-wife of the plaintiff and since she is not able to attend the concerned departments the plaintiff was selected as the President of the STD/PCO association and the alleged invitation letter was not got printed by the plaintiff. It was also stated that one of the appellants No. 2/5 Smt. Lad Kanwar is the real sister of the appellant Shri Janwarilal and other appellants and she is residing at Bhilwara since last many years and thus the appellant Janwarilal and others have been frequently visiting Smt. Lad Kanwar at Bhilwara. Rejoinder to this reply was also submitted. According to the statement of the plaintiff PW1 Shri Prem Kishan the suit property was given on rent to the defendants in the year 1963. The suit for eviction was filed in February, 1977 and the Trial Court decreed the suit on 27.1.1990 i.e. after about a period of 13 years and the first appeal was decided in September, 1998 and the said application under Order 41 Rule 27 CPC was filed in this Court in September, 2001. Thus, all the contents of the application and the documents filed with this application do not come within the purview of the subsequent events. Further no case has been made out on behalf of defendants that they could not produce these documents/evidence in the Trial Court or at the most before the First Appellate Court having exercised due diligence. Further a perusal of these contents of the application and the documents goes to show that this additional evidence is not required by this Court to pronounce judgment. It appears that this application has been filed only to drag this litigation. In Gaya Prasads case (supra), the Honble Supreme Court held that subsequent events should not be used to penalise the landlord where litigation drags on for no fault of his. It was also held that subsequent events relied on by the appellant-tenant were too insufficient to overshadow the bonefide need concurrently found by the two courts of fact. Therefore, the application under Order 41 Rule 27 CPC is rejected. (15). Now coming to merits on the points of reasonable and bonafide requirement and the comparative hardship, I have gone through the judgments of the courts below and the rulings relied upon. Therefore, the application under Order 41 Rule 27 CPC is rejected. (15). Now coming to merits on the points of reasonable and bonafide requirement and the comparative hardship, I have gone through the judgments of the courts below and the rulings relied upon. In Boorgu Jagadeshwaraiah & Sonss case (supra), it was held that the aspects of quality, size and suitability of the building for the business should be taken into consideration. In M.S. Zaheds case (supra), it was held that the requirement should be both bonafide and reasonable. In Deena Naths case (supra), it was held that there must be an actual pressing need, not a mere whim or fanciful desire of the landlord and the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. The legal propositions laid down in the judgments relied upon by Mr. Agarwal is that the landlord is not required to plead his comparative hardship in the plaint itself, the bonafide requirement does not mean dire or compelling necessity and joblessness is not a condition precedent for seeking eviction of the premises and the suitability of the accommodation has to be seen from the convenience of the landlord and his family members and on the basis of the totality of the circumstances including profession, vocation, style of living, habits and background. (16). In view of the above judgments both the courts below having taken into consideration the material evidence available on the record arrived at concurrent findings of the facts regarding the requirement of the plaintiff to be both bonafide and reasonable and comparative hardship. I find no perversity in the concurrent findings on these two points. (17). It was next submitted on behalf of the defendants that the point of partial eviction was not considered in a proper way. Admittedly the measurements of the suit property are 26ft. x 166ft. consisting of 9 rooms, two undergrounds rooms etc. having gates in east and west. It is the case of the plaintiff that he wants to carry on semi-wholesale business of Kirana at Beawar and thus he requires the entire premises. Admittedly the measurements of the suit property are 26ft. x 166ft. consisting of 9 rooms, two undergrounds rooms etc. having gates in east and west. It is the case of the plaintiff that he wants to carry on semi-wholesale business of Kirana at Beawar and thus he requires the entire premises. According to learned counsel for the defendants, eastern portion as suggested by the tenants before the Trial Court may be given to the plaintiff- landlord while remaining portion in western side may be retained by the tenants and thus partial eviction is possible. In State of Punjab vs. Gurnam Singh (27), it was held that in determining the question of partial eviction what has to be considered is the requirement of the landlord and whether it would be substantially satisfied by eviction the tenant from a part only of the premises. Similar view was taken in Rahman Jeo Wangnoo vs. Ram Chand and Others (28), and Krishna Murari Prasad vs. Mitar Singh (29). (18). Per contra, it was submitted that the defendants have got a number of other shops with go-downs in Beawar which are shops No. 52, 53, 56 and 57. It was also submitted that eastern portion of the premises when offered to the defendants they denied being unsuitable and since this portion is not suitable for the tenants for the go-downs, how it can be suitable for the plaintiff- landlord to carry on his semi-wholesale business of Kirana. (19). I have considered the rival submissions. According to sub- section 2 of Section 14 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 no decree for eviction on the ground of reasonable and bonafide requirement shall be passed if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation available to the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it. It further provides that where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass decree in respect of such part only. It further provides that where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass decree in respect of such part only. Both the courts below have arrived at concurrent findings of the facts that the plaintiff has no other accommodation available in Beawar while the defendants have a number of shops and go-downs in Beawar. It was also found proved that whenever a necessity arises, the defendants get go-downs on rent and when the necessity ceases, they vacate the same. It has also been recorded by the Trial Court in its order dated 2.6.1995 that when portion of the suit property in the eastern side was offered to the defendants they denied that the said portion is not suitable for them. Thus, the observations of the Trial Court that when the eastern portion is not suitable for the tenants only used for the purpose of go-downs, how the same can be suitable for the plaintiff-landlord to carry on his semi-wholesale business of Kirana and thus the concurrent findings of both the courts on the issue of partial eviction also does not call for any interference. (20). In view of the entire discussion made hereinabove, this second appeal alongwith stay application is hereby dismissed at the admission stage.