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2009 DIGILAW 210 (RAJ)

Raj Kumar v. Shevi Bai

2009-01-22

VINEET KOTHARI

body2009
Judgment Hon'ble Dr. KOTHARI, J.—This second appeal is directed against the concurrent judgments of two Courts below giving eviction decree in favour of the plaintiff – respondent in respect of the suit shop which was let out by the plaintiff – respondent to the defendant – appellant. The suit was filed by the plaintiff inter alia on the ground of default in payment of rent for the period from December, 1989 to August, 1991 and also on the ground of personal bonafide necessity for the plaintiff who was 60 years of age when the suit was filed in the yaer 1991, now she is 80 years of age. The plaintiff claimed that she is residing at first floor of the house and looking to her old age, she has to come down 15 to 20 ft. for stair case for using the latrine situated at the ground floor and therefore, she needs the shop in question for making her residence at the ground floor itself. Both the Courts below have found it to be a bonafide need of the plaintiff and decreed the suit for eviction. The plaintiff also stated in the suit that she has only a daughter Asha Devi who was at that time in service as a teacher and was looking after her as she was a widow. 2. In the present second appeal, by an application under Order 41 Rule 27 C.P.C., the plaintiff – respondent has further stated that now in her advance age of 78 years, she has suffered a fracture of femur bone on 16.2.2006 and therefore, since she cannot go up on the stair case, she has to take another residential house for herself at a monthly rent of Rs.1200/- per month and thus by this application, the plaintiff – respondent again pressed for dismissal of this second appeal as she needs the said suit premises urgently. For the reasons given in the application, the said application under Order 41 Rule 27 C.P.C. deserves to be allowed and is accordingly allowed and the documents placed with the said application are taken into consideration. 3. For the reasons given in the application, the said application under Order 41 Rule 27 C.P.C. deserves to be allowed and is accordingly allowed and the documents placed with the said application are taken into consideration. 3. The only substantial question of law framed by this Court when this appeal was admitted on 12.5.2005 was following : “Whether the findings of the learned courts below on the question of reasonable and bonafide necessity of the plaintiff is perverse on the face of the statement of the plaintiff Shevi Bai and her daughter P.W.2 Asha Devi as a reading of the statements of the two witnesses together shows that according to P.W.1, even on today (date of recording the statement) only dispute is regarding the rent as there is price inflation while according to P.W.2 the only source of livelihood of the plaintiff is the rental income? 4. The learned counsel for the appellant – defendant Mr. Manish Shishodia argued that that in view of the statement of P.W.1 Smt. Shevi Bai and her daughter Smt. Asha Devi herself that the plaintiff wanted the increase of rent and that was mere ground for insistence for getting the suit shop vacated in which the defendant was carrying on his business of general merchant and therefore, the Courts below have erred in decreeing the suit and the present second appeal deserves to be allowed. 5. On the other hand, Mr. O.P. Mehta, learned counsel for the plaintiff – respondent submitted that the findings of two Courts below about the bonafide need are findings of facts which cannot be said to be perverse in any manner and as a matter of fact no substantial question of law arises. However, on the question of law as framed by this Court, he submits that the statement of P.W.1 and P.W.2 have to be read in entire context wherein these witnesses have reiterated the bonafide need of the plaintiff and have also proved the same by the fact that the plaintiff landlady has to come up and down every day so many times for using latrine, which is constructed only on the ground floor whereas she was living at the first floor. 6. 6. The learned counsel for the respondent – plaintiff also brought to the attention of the Court that the defendant has already taken another shop in the nearby area and is running his business under the name and style of Maa Hinglaj Collection. of similar merchandize and therefore, he does not need the shop in question and the respondent plaintiff needs the said premises badly and urgently in view of her advance age. He further submits that property has also got damaged and has developed cracks at several places and the same urgently need repairs also. 7. Having heard the learned counsels at length, this Court is of the opinion that there is no force in the appeal filed by the defendant and the findings of fact arrived at by the Courts below about the personal bonafide need of the plaintiff – respondent cannot be said to be perverse in any manner. The statement of witnesses P.W.1 and 2 have to be read in the entire context of the plaint. Mere averment in the cross-examination that there was some dispute for increase of rent with the defendat does not upset in any manner the bonafide need of the plaintiff for the suit premises which in the opinion of this Court was well proved in those very statements. The said bonafide need of the plaintiff has not been shown in any manner to have vanished by the defendant. It is well settled that the landlord is the best judge of his need and how to adjust his/her need and it is not for the tenant to dictate the terms in this regard. 8. In the case of Ragavendra Kumar V/s 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. 9. Similarly in the case of Akhileshwar Kumar V/s Mustaqim and ors. 9. Similarly in the case of Akhileshwar Kumar V/s Mustaqim and ors. reported in (2003) 1 SCC 462 , the Hon'ble Apex Court held that once landlord proves his bonafides 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. 10. In the case of Gaya Prasad V/s 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. 11. Consequently, this appeal of the defendant is dismissed with no costs. 12. 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 appellant - defendant shall also pay mesne profit of Rs.1000/- per month with effect from February, 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 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.