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2007 DIGILAW 284 (JK)

Chanan Lal v. Romesh Kumar Gandotra

2007-12-26

MANSOOR AHMAD MIR

body2007
1. Chanan Lal-Plaintiff-Appellant has invoked the jurisdiction of this Court in terms of the mandate of Section 100 of the Code of Civil Procedure by the medium of the Second appeal in hand. 2. It is necessary to notice brief facts of the case, the womb has been given birth to the instant appeal. 3. The plaintiff-appellant rented out a shop, description of which is given in the plaint, to the defendant-respondent on rent basis, sought eviction in terms of the mandate of Jammu and Kashmir Houses and Shops Rent Control Act, 1966, on the ground that his son namely Deepak Gupta was un-employed and was dependent on him and required the said shop for adjusting his son, enabling him-son to earn livelihood thereby sought eviction on the ground of personal necessity. 4. Suit was contested by the respondent on various grounds sought relief of ejectment/eviction on the ground that defendant-respondent has committed three consecutive defaults in making payment of rent within eighteen months. 5. During the pendency of the suit, respondent-defendant sought permission to amend his written statement in order to plead that the son of the plaintiff Sh. Deepak Gupta was not unemployed but was gainfully employed in different business, income tax payer, had also made investments in the business under the name and style Novelty Store and he had gifted Rs. 50,000/- to his father-plaintiff. He had also pleaded that the personal necessity projected by the plaintiff-appellant had come to an end and in fact, no necessity existed in order to seek ejectment. 6. Following issues came to be framed: - i. Whether plaintiff reasonable requires the suit shop for his own and occupation as he wants to settle his son Deepak Gupta who is unemployed? O.P.P ii On proof of issue No. 1 what are the comparative advantages and disadvantages of the parties in case of ejectment? O. P. Parties iii Whether partial ejectment will suffice the need of the plaintiff? O. P. Parties iv Whether defendant has committed three defaults of two months each within a period of 18 months in payment of rent as such is liable to ejectment? O.P.P v Relief to which plaintiff is entitled to? O. P. P" Parties led evidence in support of their respective cases. 7. The trial court after hearing the parties and scanning the evidence, dismissed the suit of the plaintiff. O.P.P v Relief to which plaintiff is entitled to? O. P. P" Parties led evidence in support of their respective cases. 7. The trial court after hearing the parties and scanning the evidence, dismissed the suit of the plaintiff. It is profitable to reproduce relevant para of the judgment here in: - "38. In the instant case, it is not the case of the plaintiff that he requires the suit shop for augmenting or supplementing the income of his son. In fact the case projected throughout is that he requires the suit shop for settling his son namely Deepak Kumar. There is nothing on record to show that he needs the suit shop for augmenting the income of his son. It has neither been pleaded nor evidence to that effect has been lead by the plaintiff. In so far as the requirement of the plaintiff in respect of the suit shop is concerned, taking into consideration that the son of the plaintiff namely Deepak Kumar has independent income from number of sources and even he has made a gift of Rs.50,000/- to his father i.e. the plaintiff shows that son of the plaintiff infact is in a position to support the father then the plaintiff requiring the premises for him and is not having sufficient income. Necessary element of "must have" in the requirement in the facts and circumstances does not appear in the requirement projected out by the plaintiff in the evidence in the court. Plaintiff in these circumstances has failed to prove that he requires the suit shop for his son. Issue No. 1 is as such decided in favour of the defendant and against the plaintiff." 8. Accordingly, the trial court decided Issue No. 1 in favour of the defendant and against the plaintiff. Issue Nos. 2 & 3 were dependent on issued No. 1. Issue No. 1 came to be decided against the plaintiff, so there was no need and occasion to return findings on issue Nos. 2 & 3. The Trial court has also rightly returned finding on issue No. 4 in favour of defendant and against plaintiff for a simple reason that the plaintiff has failed to lead any evidence in order to prove that the defendant had committed three consecutive defaults. 9. 2 & 3. The Trial court has also rightly returned finding on issue No. 4 in favour of defendant and against plaintiff for a simple reason that the plaintiff has failed to lead any evidence in order to prove that the defendant had committed three consecutive defaults. 9. Feeling aggrieved, the plaintiff has filed Civil 1st Appeal against the judgment and decree dated 6th of December, 2003 passed by Sub Judge (Chief Judicial Magistrate), Jammu and Appellate Court upheld and confirmed the findings returned by the trial court. 10. In the given circumstances, concurrent finding of fact came to be recorded by the trial court as well as by the Appellate Court to the extent that the son of the plaintiff was not unemployed but was and is earning hand and has different sources of income. Not only, it is proved and confirmed that he has independent source of income but he has also made a gift of Rs.50, 000/- in favour of his father-plaintiff. 11. The core question is whether any substantial question of law is involved in this memo of appeal. The appellant has, formulated substantial questions of law at page 16 of the memo of appeal. Questions (a) to (e) are questions of fact and cannot be termed as substantial questions of law. Both the courts below have come to the conclusion and held that Sh. Deepak Kumar son of plaintiff was and is having income from different sources and the personal necessity projected did not exist at all and the plaintiff has failed to prove the personal necessity. 12. The Apex Court in a case titled as Parsini (dead) through LRS v. Atma Ram and others reported as AIR 1996 SC 1558, held that the finding of fact by the Trial Court and Appellate Court cannot be interfered and reversed while passing judgment in second appeal. 13. Apex Court in a case titled Ms. Labanya Neogi (through L.R.S) v. W. B. Engineering Co. reported as AIR 1999 SC 3331, also held that findings recorded after considering the entire evidence on record are the questions of fact, cannot be interfered by the medium of second appeal. It is profitable to reproduce para 8 of this judgment herein: - "8. Labanya Neogi (through L.R.S) v. W. B. Engineering Co. reported as AIR 1999 SC 3331, also held that findings recorded after considering the entire evidence on record are the questions of fact, cannot be interfered by the medium of second appeal. It is profitable to reproduce para 8 of this judgment herein: - "8. The Lower Appellate Court has extensively discussed the evidence on record and has come to the finding that the property in question is not required for the use and occupation of the landlady inasmuch as she has got sufficient accommodation. We hold that the High Court rightly refused to interfere with the findings on this point of the Lower Appellate Court. We may state here that learned counsel for the appellant has drawn our attention to the judgment of the High Court wherein it has been recorded that nine rooms were in occupation of the landlady which was not a fact and therefore, High Court has misdirected itself. This contention has no force as High Court dismissed the appeal on the ground that there was no substantial question of law involved." 14. Honble Supreme Court in a recent judgment in a case titled as Gurdev Kaur & Ors v. Kaki & Ors reported as 2006 AIR SCW 2404, held that finding of facts, however, wrong or grossly inexcusable are not liable to be interfered with in second appeal. 15. The Apex Court in judgments in cases State of Kerla and another v. Mohd Kunhi (Dead) by LRs, and Others reported as (2005) 10 SCC 139, Saraswati Devi Gupta v. Har Narain Johari and others reported as (2006) 1 SCC 729, H. P. Pyarejan v. Dasappa (dead) by LRs and others reported as (2006) 2 SCC 496, Harvinder Singh and others v. Pritam Kaur and others reported as (2005) 11 SCC 428, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and other reported as AIR 1999 SC 2213, Navaneethammal v. Arjuna Chetty reported as (1996)6 SCC 166, Sheel chand v. Parkash Cand reported as AIR 1998 SC 3063 and Taherakhatoon (D) by LRs v. Salambin Mohammad reported as (1999) 2 SCC 635, laid down the law that concurrent finding regarding question of fact cannot be interfered in second appeal and second appeal is not maintainable. 16. 16. Applying the ratio laid down by the Apex Court to the instant case and keeping in view the facts of the case, questions (a) to (e) framed in the memo of appeal (supra) are revolving round the finding(s) of fact(s). Thus these questions cannot be termed as substantial questions of law. 17. The questions (f) & (g) are virtually issues 2 and 3 framed by the trial Court. These questions are not required to be gone through for the reason that the plaintiff has failed to prove Issue No. 1 (supra). Had issue No. 1 gone in favour of the plaintiff, then Issues Nos. 2 & 3 were to be decided. 18. Learned counsel for the appellant argued that the substantial question of law is whether the subsequent development(s) could be taken into consideration. This argument is also devoid of force for the following reasons. 19. The defendant/respondent has sought permission for amendment and accordingly, he was permitted to amend his written statement and has taken a plea of fact that the son of the plaintiff was not unemployed but was and is having source of income from other sources. 20. Keeping in view the aim and objects of Sections 11 & 12 of Houses, Shops and Rent Control Act, the subsequent developments are to be taken into consideration even at the appellate stage. Apex Court, in a case titled Gulabbai v. Nalin Narsi Vohra and others reported as AIR 1991 SC 1760, held that subsequent developments can be considered by the Court. It is profitable to reproduce para 25 of the judgment herein: "On a conspectus of all these decisions rendered by this Court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bona fide requirement. Therefore, the High court was right in duly considering the new facts and circumstances that have been brought to the notice of the Court by the application for additional evidence filed under O. 41, R.27 of the Code of Civil Procedure and in coming to a firm finding that the plaintiff-appellant constructed a spacious bungalow where she with the members of her family had been residing, there is no reasonable and bona fide requirement for the plaintiff to get a decree of ejectment of the defendants from the suit premises inasmuch as the first floor of the suit premises as well as the second floor could be conveniently used for opening the office of Tax consultancy of plaintiffs husband who previously worked with one Mr. Gandhi in a partnership firm which partnership had been dissolved after Mr. Gandhis son came to practice with his father." 21. Apex Court, in a case entitled Ramesh Kumar v. Kesho Ram reported as AIR 1992 SC 700, laid down the same law. It is profitable to reproduce para 4 of the judgment herein. "The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding If the relief occur, the court is not precluded from taking a `cautious cognizance of the subsequent changes of fact and law to mould the relief...." 22. Keeping in view the law laid down by the Apex Court, subsequent events came to be considered by the subordinate Courts rightly. 23. Having glance of the above discussion, I am of the considered view that no substantial question of law is involved in this appeal. Accordingly, this appeal is dismissed.