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2009 DIGILAW 142 (RAJ)

LRs. of Bilam Kanwar v. Pushpchand

2009-01-17

VINEET KOTHARI

body2009
JUDGMENT 1. - This second appeal has been filed by the plaintiff- landlord being aggrieved by the judgment of the first appellate Court dated 2.2.2005 whereby reversing the decree of eviction granted by the learned trial Court on 27.3.2002 on the ground of personal bona fide necessity in favour of the plaintiff landlord, the first appellate Court dismissed the suit for eviction of the plaintiff landlord and hence aggrieved by the judgment of the first appellate Court dated 2.2.2005, the plaintiff has approached this Court by way of present second appeal. 2. The following substantial question of law arises for consideration by this Court : "Whether the first appellate Court could reverse the findings of facts recorded by the learned trial Court on issue Nos. 1(a) and 1(b) simply because the learned first appellate Court did not agree with the findings recorded by the learned trial Court and no error much less any jurisdictional error has been committed by the learned trial Court." 3. The plaintiff Smt. Bilam Kanwar, 82 years of age when she filed the present second appeal in this Court in the year 2005, since expired and therefore, allowing the application under Order 22 Rule 3 C.P.C., her legal representatives were taken on record, filed eviction suit seeking eviction of the defendant from the suit shop situated at Mirchi Bazar, corner of Sunaron Ki Ghati, Jodhpur inter alia on the ground of personal bona fide necessity for business of her grand-son Gautam. The grounds of bona fide necessity were allowed to be added by way of amendment in the plaint and issue No. 1(a) was framed by the learned trial Court. The learned trial Court held that the suit shop was required for bona fide need of the grandson of the plaintiff as her son Prakash Mal, father of grand son Gautam had predeceased her and therefore, the responsibility of the family fell on the grand-son Gautam who was only 10th class pass and in order to settle him in his business, the suit shop was required. The learned trial Court also rejected the contention of the defendant that the plaintiff was in possession of another shop situated at Ada Bazar, Jodhpur and since said grand-son Gautam was carrying on business in a rented shop of Eft x 6ft size, and he could not carry on his business therefore, therefore, the present suit shop which was approximately 15 x 10 ft. in size would be appropriate and thus, the plaintiff respondent had bona fide need of the suit shop. 4. The said findings were reversed by the first appellate Court in the appeal filed by the defendant-tenant without any fresh evidence taken by the first appellate Court mainly on the ground that PW-2 Gautam, Grand-son in his statement could not disclose details of other properties of her grand-mother Bilam Kanwar - plaintiff and also could not give details of first and second floor premises over the suit shop being let out to some other persons and therefore, his statements were unreliable. The first appellate Court also held that the alternative shop situated at Ada Bazar was belonging to the plaintiff-respondent and was closed for last 10 years and she was engaged in the business of money lending and had interest income and since said grand-son Gautam was carrying on his business in the shop of Bhagat Singh Surana, therefore, there was no bona fide need of the landlord to seek eviction of the suit shop and said need made out by the landlord was artificial and make believe. Thus, the learned appellate Court reversed the findings of the learned trial Court and dismissed the suit for eviction and being aggrieved by the judgment of the first appellant, the plaintiff- landlord has approached this Court by way of present second appeal. 5. Having heard the learned counsels at length and upon perusal of the judgments of Courts below, this Court is at loss to understand the approach of the first appellate Court and is convinced that taking into account the irrelevant considerations and ignoring the evidence on record, the learned first appellate Court reversed the findings of the learned trial Court which was based on cogent evidence and material on record. It was not in dispute before the learned trial Court that after death of her son plaintiff Bilam Kanwar sought to add grounds for eviction of personal bona fide necessity for the business of her grand-son Gautam, who was 10th class pass. There was no evidence on record to show that the plaintiff-respondent had any alternative shop or was in possession of so called shop situated at Ada Bazar, Jodhpur. The fact that the said grand-son Gautam was carrying on the business in a shop owned by one Bhagat Singh Surana in a small shop of 6ft x 6ft was proved and could not be controverted before the learned trial Court. What relevance the learned first appellate Court found in the statement of PW-2 Gautam that he could not disclose the particulars of tenancy of first and second floor of the premises over the suit shop, is not understood. If the landlord comes with a case that the suit shop is most suitable shop for carrying on business for himself/herself or his or her family members, then existence of such bona fide need has to be normally accepted if proved by evidence. The plaintiff had led ample evidence before the learned trial Court to establish the said need for her grand-son Gautam in the present case. 6. In the case of Ragavendra Kumar v. Firm Prem Machinery and Co. reported in (2000) 1 SCC 679 , 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. 7. Similarly in the case of Akhileshwar Kumar v. Mustaqim and Ors. reported in (2003) 1 SCC 462 , 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 accommodations which would satisfy his requirement should be left to landlord's subjective choice and the Court cannot impose its own choice. 8. reported in (2003) 1 SCC 462 , 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 accommodations which would satisfy his requirement should be left to landlord's subjective choice and the Court cannot impose its own choice. 8. In the case of Gaya Prasad v. Pradeep Srivastava reported in (2001) 2 SCC 604 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 relied 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. 9. Consequently this Court is of the opinion that the approach of the first appellate Court in the present case in reversing the findings on issue No. 1(a) about the personal bona fide necessity of the plaintiff-respondent was perverse and wrong. Having gone through the record of the case, relevant statements and judgment of the learned trial Court, this Court is satisfied that the learned trial Court had arrived at objective satisfaction about the bona fide need of the plaintiff-appellant for the suit shop and the first appellate Court had wholly erred in reversing those findings without any valid reasons. 10. Consequently, this appeal of the plaintiff is allowed and the impugned judgment of the first appellate Court dated 2.2.2005 is set aside and the decree of eviction passed by the learned trial Court on 27.3.2002 is restored with costs throughout. 11. The respondent-defendant shall handover vacant and peaceful possession of the shop in question to the plaintiff-appellant within a period of two months from today. The mesne profit of Rs. 175/- per month fixed by the learned trial Court is enhanced to Rs. 500/- per month with effect from January, 2009 payable every month before 15th of succeeding month till the actual handing over of the vacant and peaceful possession of the suit shop to the plaintiff. The mesne profit of Rs. 175/- per month fixed by the learned trial Court is enhanced to Rs. 500/- per month with effect from January, 2009 payable every month before 15th of succeeding month till the actual handing over of the vacant and peaceful possession of the suit shop to the plaintiff. The decree be made accordingly. If the respondent defendant fails to handover vacant and peaceful possession of the suit shop in question to the plaintiff-appellant within a period of two months from today as aforesaid or fails to pay mesne profit as directed above, the plaintiff-appellant shall not only be entitled to seek execution of the decree in normal course, but the respondent- defendant may also render himself liable for action under the contempt law.Appeal allowed. *******