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2009 DIGILAW 141 (RAJ)

Abdul Salam v. Arvind Kumar Deenbandhu Gaggad

2009-01-17

VINEET KOTHARI

body2009
JUDGMENT 1. - This second appeal of the defendant-tenant is directed against the concurrent judgments of two Courts below giving eviction decree in favour of the plaintiff-respondent on the ground of personal bona fide necessity of the plaintiff-respondent in respect of the suit shop situated at Bhopalganj, Bhilwara. 2. The plaintiff filed a suit on the ground that he retired from the Government services on 31.3.1993 and thereafter to set up his own business of general store, he required the suit shop for his personal bona fide need and therefore, sought eviction of the suit shop from the defendant. 3. After examining the evidence produced by both the parties, the learned trial Court decreed the suit for eviction which was upheld by the learned first appellate Court. Being aggrieved by these two judgments, the defendant has approached this Court by way of present second appeal. 4. Mr. Suresh Shrimali, the learned counsel for the appellant-defendant urged that during the course of first appeal, alternative shop became available to the plaintiff-respondent for the purpose of his business which was vacated by Mr. Ram Ratan Mehra and for which he filed an application under Order 41 Rule 27 C.P.C. before the first appellate Court on 4.10.2004 which was rejected by the learned first appellate Court. The appellant Court in para 9 of the judgment held that the shop vacated by said Ram Ratan Mehra was not suitable for carrying on business of general store by the plaintiff-respondent as it was situated close to transformer set up by the RSEB and also a sewarage nala was passing near that shop. The learned first appellate Court held that the plaintiff-respondent- landlord cannot be compelled to carry on his business in such unsuitable shop. The learned counsel for the appellant producing certain photographs of the site in question alongwith fresh application under Order 41 Rule 27 C.P.C. before this Court and also an application under Order 26 Rule 9 C.P.C. for appointment of the Commissioner has prayed that the said alternative shop was suitable for the purpose of plaintiff-respondent and therefore, the said applications should be allowed and the decree of eviction should be set aside. The learned counsel for the appellant relied upon the following judgments in support of his submissions: (i) 1992 AIR SC 700 - Ramesh Kumar v. Kesho Ram. (ii) 2006(3) WLC (Rajasthan) 264 - Murlidhar v. Nandkishore and Ors. The learned counsel for the appellant relied upon the following judgments in support of his submissions: (i) 1992 AIR SC 700 - Ramesh Kumar v. Kesho Ram. (ii) 2006(3) WLC (Rajasthan) 264 - Murlidhar v. Nandkishore and Ors. (iii) 2002(1) WLC (SC) Civil 557 - Deena Nath v. Pooran Lal . (iv) 2005(1) WLCX (SC) Civil 443 - A.J. Frenchman (D) by LRs. v. Sardar Dastur School Trust and Ors. (v) 1963 AIR SC 1165 - Banarasi Das v. Kanshi Ram. (vi) 1991 AIR SC 1760 - Gulab Bai v. Nalin Narsi Vohra and Ors. (vii) (1999) 7 SCC 275 - T. Sivasubramanian & Ors. v. Kasinath Pujari & Ors. 5. On the other hand, Mr. Vinay Jain, the learned counsel appearing for the plaintiff-respondent urged that the appellant-defendant himself has got alternative shop available to him in which he was running his business by getting a municipal land allotted in his favour on which he raised construction of the said shop in just nearby area, but still was opposing the eviction decree before this Court though no substantial question of law arises against the findings of fact based on relevant evidence concurrently by both the Courts below. He urged that the landlord is the best Judge to adjust his need and he cannot be compelled at the dictates of tenant to carry on his business in the alternative accommodation which became available to the plaintiff-respondent which was in fact a part of residential premises of the plaintiff-respondent. The suit shop being situated in the main market of Bhilwara was most appropriate shop for the plaintiff-respondent to carry on his business of general store and therefore, the said findings of facts do not deserve to be interfered with in the second appeal as no substantial question of law arises. He further submitted that the first appellate Court was justified in rejecting the application under Order 41 Rule 27 C.P.C. of the defendant-appellant and so also the similar application filed before this Court and also the application filed under Order 26 Rule 9 C.P.C. for appointment of Commissioner deserves to be rejected by this Court. The learned counsel for the respondent relied upon the following judgments : (i) (2002) 2 SCC 604 - Gaya Prasad v. Pradeep Srivastava (ii) (2003) 2 SCC 462 - Akhileshwar Kumar and Ors. v. Mustaqim and Ors. The learned counsel for the respondent relied upon the following judgments : (i) (2002) 2 SCC 604 - Gaya Prasad v. Pradeep Srivastava (ii) (2003) 2 SCC 462 - Akhileshwar Kumar and Ors. v. Mustaqim and Ors. (iii) (2000) 1 SCC 679 - Ragavendra Kumar v. Firm Prem Machinery and Co. 6. I have heard the learned counsels at length and perused the record of the case including the judgments of both the Courts below. 7. In the case of Ragavendra Kumar v. Firm Prem Machinery and Co. (supra), the Hon'ble Apex Court held that it is settled position of law that the landlord is the best Judge of his own requirement for residential or business purposes and has complete freedom in the matter and therefore, the appellant landlord stating in evidence that he owned several other shops and houses, but they were not vacant and also that the suit premises were suitable for the proposed business, the Hon'ble Apex Court granted eviction decree and dismissed the tenant's appeal. 8. Similarly in the case of Akhileshwar Kumar v. Mustaqim and Ors. (supra), the Hon'ble Apex Court held that once landlord proves his bona fides to the objective satisfaction of the Court of facts, the choice of accommodation which would satisfy his requirement should be left to landlord's subjective choice and the Court cannot impose its own choice. 9. In the case of Gaya Prasad v. Pradeep Srivastava (supra), the Hon'ble Apex Court held that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bona fides of the requirement of landlord is the date of his application for eviction. Subsequent developments during the pendency of eviction petition cannot be made the basis for denying the landlord relief when the litigation at last reaches the final stage, though subsequent events may in some cases be considered to have overshadowed the genuineness of landlord's need, but only if they are of such nature and dimension as to completely eclipse such need and make it lose significance altogether, the eviction decree cannot be upset. 10. As against aforesaid, the judgments relied upon by the learned counsel for the appellant-defendant-tenant throw light as to which circumstances can be taken into consideration and bona fide need of the landlord can be said to have been satisfied and could be satisfied. 10. As against aforesaid, the judgments relied upon by the learned counsel for the appellant-defendant-tenant throw light as to which circumstances can be taken into consideration and bona fide need of the landlord can be said to have been satisfied and could be satisfied. In the case of Ramesh Kumar v. Kesho Ram (supra) dealing with the scope of Order 41 Rule 23 C.P.C. and Order 6 Rule 2 C.P.C., the Hon'ble Apex Court held that when subsequent events are pleaded in the course of appeal or proceedings of revision, the Court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in Rule 1ORDER19 C.P.C. This was a case where the trial Court had negatived the bona fide claim of the landlord for possession and grievance of the appellant-tenant before the Apex Court was that the High Court in a proceeding of revision while granting leave to the respondent-landlord to plead certain subsequent events had accepted the pleadings as proof of these allegations which according to the respondent entitled him to possession. In these circumstances, the Hon'ble Apex Court allowed the appeal and set aside the decision of the High Court. The facts of this case are entirely distinguishable from the facts of the case in hands. 11. Similarly, in the case of Deena Nath v. Pooran Lal (supra), the Hon'ble Apex Court upholding the dismissal of eviction suit by the High Court held that where one vacant shop was available to the landlord at the time of filing of the suit and another shop coming in the occupation of the landlord during pendency of the suit, the fact of availability of reasonable accommodation in occupation of the landlord was not considered nor any steps were taken by the landlord to offer alternate shop to the tenant, therefore, the Court held that bona fide requirement was not proved. This is not the case here. Here, both the Courts below as a matter of fact have found that the suit shop in question was bona fide required for the business purposes of the plaintiff-respondent. This is not the case here. Here, both the Courts below as a matter of fact have found that the suit shop in question was bona fide required for the business purposes of the plaintiff-respondent. The said findings of facts based on relevant evidence and material, in the opinion of this Court, are findings of facts which cannot be interfered with under Section 100 C.P.C. as no substantial question of law can be said to arise out of such findings of facts. 12. Similarly, in the case of Adil Jamshed Frenchman (D) by LRs. v. Sardar Dastur School Trust and Ors. (supra), the Hon'ble Apex Court held that two documents coming into existence after decree of trial Court and same having material effect on the case should be allowed to be taken as additional evidence in the form of such documents and the first appellate Court was justified in allowing the same and contrary interference by the High Court was not justified. This case law is also of no avail to the appellant-defendant as this Court is satisfied that the first appellate Court was justified in rejecting the application under Order 41 Rule 27 C.P.C. finding that the alternative accommodation becoming available to the plaintiff-respondent during the pendency of the first appeal was not suitable for carrying on his business and the same is a finding of fact. 13. Thus, on totality of facts and law as stated above, this Court is satisfied that no substantial question of law arises in the present second appeal and the same being devoid of merit is liable to be dismissed. The same is accordingly dismissed with costs throughout. 14. The appellant-defendant shall handover vacant and peaceful possession of the shop in question to the plaintiff-respondent within a period of two months from today. The mesne profit of Rs. 120/- per month fixed by the learned trial Court is enhanced to Rs. 1,000/- per month with effect from January, 2009 payable every month before 15th of succeeding month till the date of actual handing over of the vacant and peaceful possession. The decree be made accordingly. The mesne profit of Rs. 120/- per month fixed by the learned trial Court is enhanced to Rs. 1,000/- per month with effect from January, 2009 payable every month before 15th of succeeding month till the date of actual handing over of the vacant and peaceful possession. The decree be made accordingly. If the appellant-defendant fails to handover vacant and peaceful possession of the suit shop in question to the plaintiff-respondent within a period of two months from today as aforesaid or fails to pay mesne profit as directed above, the plaintiff-respondent shall not only be entitled to seek execution of the decree in normal course, but the appellant-defendant may also render himself liable for action under the contempt law.Appeal dismissed. *******