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2007 DIGILAW 316 (PAT)

Vinay Kumar Gupta & Anr. v. Ajay Kumar

2007-02-09

S.N.HUSSAIN

body2007
Judgment 1. This second Appeal filed by the defendant-appellants against the judgment of affirmance arises out of an eviction suit filed by the plaintiff-respondent. 2. Title Suit No. 8 of 2002 was filed by the plaintiff-respondent for eviction of the defendant-appellants on the ground of default in payment of rent by the defendants as well as personal necessity of the plaintiff. The suit was decreed by the trial court on 21.11.2005 against which Title Appeal No. 2 of 2006 was filed by the defendant-appellants, which was dismissed by the lower appellate court by the judgment and decree dated 16.6.2006, which is under challenge in the instant second appeal. 3. Learned counsel for the appellants raises three points for consideration as substantial questions of law. His first contention is that with respect to the question of default, both the courts below have ignored the advance payment made by the defendants to the plaintiff. He submits that although according to the defendants case advance of Rs. 25,000.00 was paid to the plaintiff but according to the admission of the plaintiff in his deposition as P.W.4 an amount of Rs. 20,000.00 was received as advance. He also avers that the plaintiffs case is also with respect to default from January, 2002 to August, 2002, namely, for eight months at the rate of Rs. 300/-per month, hence the said advance would more than cover the defaulted amount and, therefore, the same should have been adjusted towards the alleged defaulted amount and there would have been no question of any default in view of specific decision of the Hon ble Apex Court in the case of Md. Salimuddin V/s. Misri Lai, reported in AIR 1986 SC 1019 and also in the case of M/s Sarwan Kumar Onkar Nath V/s. Subhas Kumar Agarwalla, reported in 1987 P.L.J.R. (SC ) 84. 4. Salimuddin V/s. Misri Lai, reported in AIR 1986 SC 1019 and also in the case of M/s Sarwan Kumar Onkar Nath V/s. Subhas Kumar Agarwalla, reported in 1987 P.L.J.R. (SC ) 84. 4. The second point raised by the appellants with respect to the question of personal necessity is that the court of appeal below has not given finding on all the issues nor has it assigned reasons therefore although it had been specifically held by the Hon ble Apex Court in the case of Workmen V/s. Industry Colliery of Bharat Coking Coal Ltd., reported in 2001 (4) SC C. 56 and also in the case of H.K.N. Swami V/s. Irshad Basith, reported in 2005 (X) SC C. 243 that the findings on all the issues with reasons should be given. In that regard, he also submits that the trial court has casually discussed the question of partial eviction, but the lower appellate court did not at all consider the same. 5. The third point raised by learned counsel for the appellants is that the subsequent development has to be considered by the court below and there was ample material to show that several shops owned by the plaintiff were vacated during the pendency of the suit and even today a bigger shop other than the suit shop is available for the plaintiff, who, if he wants, can start his business of restaurant therein. Hence, he submits that on that score also the judgments and decrees of the courts below are fit to be set aside. 6. So far as the first question with regard to loan/advance of rent is concerned, it is quite apparent from the writ-tea statement itself that the amount taken by the plaintiff from the defendants was not as loan or advance against the rent, rather paragraph 10 of the written statement specifically shows that the defendants themselves claimed that it was merely security money, which was to be returned to the defendants at the time of their vacating the suit premises. In the said circumstances, the amount taken not be ing loan or advance of rent, it cannot legally be adjusted towards rent. In the said circumstances, the amount taken not be ing loan or advance of rent, it cannot legally be adjusted towards rent. The decisions of the Hon ble Apex Court are also with respect to loan and advance taken by the plaintiff from the tenant out of rent, which was to be paid by the tenant, in the said circumstances, the said point does not find favour of this Court. 7. So far the question of personal necessity is concerned, from the judgment of the trial court, it is quite apparent that it has given findings on all the issues after considering the materials and giving reasons. It also appears from paragraph no.7 of the judgment of the lower appellate court that during the course of hearing of this appeal learned counsel for the defendant-appellants himself restricted his argument only to two issues of personal necessity and default. From the perusal of the judgment of the lower appellate court, it appears that it has considered the said two points at length and has also evaluated the evidence and has finally come to the conclusion that the judgment and degree of the trial court were legal, proper and justified. The said finding being finding of fact cannot be interfered in this second appeal, specially when no illegally could be pointed out in them. 8. So far the issue of partial eviction is concerned, the trial court has considered and discussed the same in paragraph 11 as part of issue no. (iv), whereas, in the last paragraph of its judgment, the lower appellate court has affirmed the aforesaid issue no. (iv) along with issue no. (iii). In the said circumstances, it cannot be said that either of the two courts below has not considered the question of partial eviction. " 9. So, far as third question of subsequent development is concerned, it is apparent from the records that no such fact of subsequent development was brought on record of the defendants by way of amendment ;of the pleadings and hence without such amendment of the pleadings being brought, there was no occasion for the trial court to consider the same or to pass any order thereupon. The submission raised by learned counsel for the appellants that a bigger shop is available and necessity of the plaintiff-respondent can be satisfied by the said vacant shop can also not be allowed as it is for the land-lord plaintiff to choose as to which shop belonging to him was more suitable for him for starting his business. 10. In the aforesaid facts and circumstances, I do not find any substantial question of law in the instant second appeal nor do I find that any illegality in the impugned judgments and decree of the courts below. Accordingly, this Second Appeal is dismissed. 11. At this stage, learned counsel for the appellants submits that since they are running their Kirana business in the suit-shop, they may be given six months time to vacate the same so that they may shift their business to some other place from the said suit shop. Learned counsel for the respondent agrees to this submission. Hence, time till 9th of August, 2007, is given to the appellants on the undertaking given on their behalf by their learned counsel that they will vacate the suit shop within that period. Till then, no coercive action shall be taken against the appellants in Execution Case No. 2 of 2006 pending before the Munsif-ll, Rohtas at Sasaram. It may be noted that if the appellants do not vacate the said premises by the 9th of August, 2007, not only execution case should be resumed for eviction of the appellants, but the plaintiff-respondent will be at liberty to move this Court for taking action against the appellants for violating their own undertaking given before this Court.