Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 1124 (RAJ)

Subhas Chandra v. Murari Lal

2011-05-25

NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. Learned counsel for the respondent has moved an application to decide the appeal in view of the fact that possession of adjacent shop has been taken by the landlord-respondent from tenant on 25.01.2011 and possession of disputed shop had already been taken by the landlord-respondent on 07.11.2008 in pursuance of execution of decree passed in his favour by the courts below. 3. It is further submitted that although substantial questions of law were formulated in the present appeal, but none of them can be said to be substantial question of law in the facts and circumstances of the present case, therefore, in view of subsequent developments taken in the matter, the application may be allowed and the appeal filed by the appellant may be dismissed. 4. No reply to the application has been filed by the appellant.During the course of arguments, learned counsel for the appellant fairly admitted that possession of rented premise, which is subject matter of this appeal has already been taken by the plaintiff-respondent way back on 07.11.2008 in pursuance of execution of decree passed in favour of the respondent.He also admits that connected S.B. Civil Second Appeal No. 124/1995, which was tagged with this appeal, has been disposed off today in his presence on the basis of compromise arrived at between the parties and according to term of compromise, possession of rented premise, which was subject matter of Second Appeal No. 124/1995, has been handed over to landlord Murali Lal. 5. After considering submissions of parties, the application filed by the respondent is allowed to the extent that the case may be heard finally. 6. At the request of learned counsel for the parties, arguments were heard and the appeal is being disposed off finally. 7. This Court, while admitting this second appeal way back on 26.11.1990, formulated following substantial questions of law: "1.Whether Commercial premises can be got vacated by the landlord from the tenant on his alleged reasonable and bonafide need for the residential purposes? 2. Whether under Section 13(1) (h) the landlord is entitled to seek eviction on the ground of reasonable and bonafide necessity for the purpose other than which the premises were let out? 3. Whether requirement of the Commercial and business shop measuring 7' x 13' can be held to be reasonable requirement for the residential purpose? 4. 2. Whether under Section 13(1) (h) the landlord is entitled to seek eviction on the ground of reasonable and bonafide necessity for the purpose other than which the premises were let out? 3. Whether requirement of the Commercial and business shop measuring 7' x 13' can be held to be reasonable requirement for the residential purpose? 4. Whether in the facts and circumstances of the present case when the plaintiff has come out with the case that he would use the disputed shop alongwith other two shops for his residential purpose after demolishing and remodelling the whole premise and whether the other two shops are in occupation of other tenants and not available with the plaintiff, can the present need be held reasonable and bonafide? 5. Whether in the facts and circumstances of the present case, the present need of the plaintiff can at all be said to be reasonable and bonafide? 6. Whether finding of the courts below on issue No. 1 is perverse? 7. Whether the courts below have seriously erred in granting a decree for eviction when his case in the facts and circumstances of the present case does not fall under Section 13(1)(h) or on any other ground? 8. Whether the Courts below have considered the question of greater hardship by taking all the relevant facts and circumstances into consideration including comparative financial position and defendant's goodwill in the disputed premises? 9. Whether in the facts and circumstances of the present case when the commercial and business shop is sought to be vacated for residential purposes, can it be said that greater hardship would be caused to the plaintiff? 10. Whether the judgment and decree of the courts below is liable to set aside for non-consideration of mandatory provision relating to partial eviction? 11. Whether the courts below were bound to examine the question of partial eviction irrespective of whether the same has been raised by the parties or not? 12. Whether the findings on issue No. 4 and 5 is perverse and against the material on record?" 8. Learned counsel for the respondent submitted that he has a right under Sub-section 5 of Section 100 C.P.C. to argue and satisfy this Court on the point that no substantial question of law formulated while admitting the appeal is involved in this second appeal. 9. Learned counsel for the respondent submitted that he has a right under Sub-section 5 of Section 100 C.P.C. to argue and satisfy this Court on the point that no substantial question of law formulated while admitting the appeal is involved in this second appeal. 9. Learned counsel for the appellant submitted that only substantial question of law involved in the present second appeal is "Whether when second suit of the plaintiff-respondent for eviction has been dismissed, then findings of the courts below about personal bonafide necessity of plaintiff of the rented premise in the present case can be said to be valid or not?"So far as other substantial questions of law formulated in the case are concerned, he has not pressed or argued the same. 10. Since the other substantial questions of law have not been pressed or argued by learned counsel for appellant and after examining the judgments passed by both the courts below and after considering the submissions of learned counsel for the respondent, I am also satisfied that none of the substantial questions of law, formulated by this Court way back on 26.11.1990, as reproduced above, do arise in the present case, therefore, only substantial question of law, which is required to be answered in the present case, is, "Whether findings of both the courts below about personal bonafide necessity of the plaintiff of rented premise are valid or not, particularly, when plaintiff's second suit for eviction has already been dismissed?" 11. Undisputed facts of the case are that plaintiff-respondent filed two separate suits for eviction in the trial court against two different tenants in respect of two separate but adjacent shops wherein it was pleaded that since the plaintiff wants to reside on ground floor, therefore, he requires both the shops for his residence, therefore, decree of eviction in both the suits may be passed, so that the plaintiff may get both the shops converted into residential house for his personal bonafide necessity.The present case was totally dependent on result of another suit.Learned counsel for the appellant rightly argued that necessity, as pleaded in the suit, was that the plaintiff wanted to convert both the shops into residence and when another suit has been dismissed, then findings of trial court as well as appellate court in respect of personal bonafide necessity cannot be said to be legal or valid.However, during pendency of the appeal, a subsequent development has taken place in the matter and connected S.B. Civil Second Appeal No. 124/1995, arising out of another suit filed by the plaintiff-respondent, has been disposed off in terms of compromise arrived at between the parties and possession of rented premise in that suit has already been handed over to the plaintiff-respondent.Plaintiff-respondent has mentioned in his application that after having obtained possession of both the shops, he has started to convert said premise for the purpose of his residence and even he has started living at the ground floor.Since possession of another shop has already been handed over by the tenant to the plaintiff-respondent, therefore, submission of learned counsel for the appellant in the present appeal, that since another suit of the plaintiff-respondent has been dismissed, therefore, finding of both the courts below in respect of personal bonafide necessity cannot be said to be legal and valid, is no more exist or tenable or available to him, as landlord has already got possession of another shop.Possession of rented premise of this appeal has also been handed over to the plaintiff-landlord in execution proceedings, therefore, the plaintiff has already got possession of both the shops and he has started living there. 12. 12. In these circumstances, I am of the view that findings recorded by both the courts below in favour of plaintiff/landlord about personal bonafide necessity of the plaintiff is perfect and justified and no interference in the same is called for by this Court.The question formulated above is answered accordingly. 13. In view of above discussions, I do not find any merit in this second appeal and the same is, accordingly, dismissed with no order as to costs.Appeal Dismissed. *******