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2012 DIGILAW 1061 (PAT)

Sumitra Devi @ Suminta Devi v. Syed Zayauddin Ashraf @ Sayad

2012-08-01

MUNGESHWAR SAHOO

body2012
Mungeshwar Sahoo, J.:–This second appeal has been filed by the defendants-respondents-appellants against the Judgment and Decree dated 25th February, 2010 passed by Sri M.M. Choudhary, the learned Addl. District Judge, Xth Patna in Eviction Appeal No.113 of 2008 allowing the appeal and reversing the Judgment and Decree dated 30.08.2008 passed by Sri Surendra Prasad Singh, the learned Munsif IInd Patna in eviction suit No.9 of 2007 dismissing the plaintiff-respondent’s suit for eviction on the ground of personal necessity only. 2. The short fact for the purpose of this second appeal is that the plaintiff-respondent filed the aforesaid eviction suit No.9 of 2007 alleging that suit shop is in dilapidated condition as is very old one. The plaintiff wants to reconstruct and renovate it for the purpose of starting a clinic for his son who needs to do medical practice in the suit premises. His son is a doctor and practicing at England but on the ground of the recent policy of the Govt. of U.K., the plaintiff’s son needs the suit premises for his personal necessity and wants to start his own clinic in the shop in question, therefore, the plaintiff had personal necessity for the suit shop as he wants to construct the clinic at the earliest for his son. The plaintiff urgently requires bonafidely and in good faith the shop in occupation of the defendant. 3. The defendants-appellants filed contesting written statement alleging that the plaintiff had other well built buildings for his son and if so needed can very well start his clinic but the fact is that his son does not require space in the suit premises for medical practice or his clinic because he has settled with his family in England and has also got permanent citizenship there. The ground taken by the plaintiff of shifting his son from England is very funny. There is no any decision of the U.K. Govt. banning practice of Indian doctors. The ground of personal necessity is nothing but a device to get the defendants evicted from the suit premises for material again and for salami and higher rent. 4. The ground taken by the plaintiff of shifting his son from England is very funny. There is no any decision of the U.K. Govt. banning practice of Indian doctors. The ground of personal necessity is nothing but a device to get the defendants evicted from the suit premises for material again and for salami and higher rent. 4. After trial, the learned trial Court recorded the finding that the son of the plaintiff is not in India rather he is residing in U.K. England with family members and the plaintiff has filed this suit for the purpose of evicting the defendants only on the ground of renovation, therefore, there is no question of personal necessity and the trial Court dismissed the plaintiff’s suit. The plaintiff filed appeal before the lower appellate Court. The lower appellate Court allowed the appeal. 5. This second appeal was admitted on 22.11.2011 and the following two substantial question of law were framed :– (i) Whether after reversing the finding of the trial Court, the appellate Court was still not required to record a finding of bona fide and reasonable personal necessity of the plaintiff on consideration of evidence on record? (ii) Whether the impugned Judgment of the appellate Court below decreeing the suit for eviction can be sustained in absence of categorical and specific finding on the issue of personal necessity as required by Section 11 of B.B.C Act? 6. The learned senior counsel, Mr. Sukumar Sinha appearing on behalf of the appellant submitted that there is no documentary evidence produced by the parties on the question of personal necessity. On the basis of oral evidence, the trial Court recorded the finding that the plaintiffs personal necessity is not bonafide and in good faith. However, the appellate court without considering the evidence only noted the arguments of the counsel and reversed the finding. The appellate Court did not give its own finding as to whether the plaintiffs require the suit premises reasonably and in good faith. While reversing the finding, the lower appellate court did not also meet the reasonings of the trial Court. However, the appellate court without considering the evidence only noted the arguments of the counsel and reversed the finding. The appellate Court did not give its own finding as to whether the plaintiffs require the suit premises reasonably and in good faith. While reversing the finding, the lower appellate court did not also meet the reasonings of the trial Court. According to the learned counsel, the appellate court also did not consider the fact that the finding recorded by the trial Court is only on the basis of oral evidence, therefore, the appellant court could not have interfered with the finding of fact in a routine manner without considering the fact as to whether the trial Court has escaped considering any vital portion any evidence or admission or statement of any witness. According to the learned counsel, the plaintiff’s requirement is not for himself but for opening a clinic for his doctor’s son. The suit has been filed in the year 2007 but still today after about more than 5 years, his son has not returned from England. On the date of passing the Judgment and Decree of the trial Court also, the plaintiff’s son had not returned from England. In such circumstances, it cannot be believed that the plaintiff’s requirement is in good faith. The learned counsel further submitted that mere desire is different than the requirement. The word “requirement” obviously imparts something more than mere desire but here the plaintiff’s necessity appears to be mere desire and it is not his requirement. The learned counsel further submitted that no doubt in the case where the first appellate Court agree with the finding of the trial Court, it need not go into detail but the Judgment of the appellate Court must reflect its conscious application of mind and recording of findings supported by reasons on the issue along with the contentions put forth and while writing a Judgment of reversal, the appellate Court must remain conscious that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses then unless there is some special feature about the evidence on a particular witnesses which has escaped the trial Judge’s notice, the appellate Court should not interfere with the finding of trial Judge. The learned counsel further submitted that the appellate Court has not at all meet the reasonings of the trial Court. On these submissions, the learned counsel submitted that the appeal be allowed and the plaintiff’s suit be dismissed. 7. On the other hand, the learned counsel for the plaintiff-respondent submitted that the appellate Court has considered the evidence and then disagreed with the trial Court so reversed the finding of the trial Court. In such circumstances, in second appellate jurisdiction, the finding of fact cannot be interfered with. Moreover, the son of the plaintiff will return to India as soon as the suit premises is vacated. The learned counsel further submitted that last year also, the son had come but because the suit premises is not vacant, so he returned to England. The appellate Court Judgments is legal and valid as such is not liable to be interfered with in second appellate jurisdiction. None of the substantial question of law formulated arises for consideration in this second appeal. As such the second appeal be dismissed. 8. From perusal of the lower appellate Court Judgment, it appears that there is no finding of the lower appellate Court as to whether the plaintiff’s requires the suit premises reasonably and in good faith. Admittedly, there is no documentary evidences on this point on personal necessity. From perusal of paragraph 22 of the lower appellate Court Judgment, it appears that the lower appellate Court recorded the fact that his son is employed in U.K. and has taken permanent citizenship and resides in U.K. with his family and their son and their sons are studying there is not denied by the plaintiff in his evidence. The son of the plaintiff has not been examined. There is no document to show that he has left U.K. because of policy of the Govt. of U.K. and he wants to shift in India or that he is unemployed in U.K., therefore, he wants to return in India. But at paragraph 27 recorded that the Court below did not appreciate oral and documentary evidences adduced on behalf of the plaintiff-appellant and the reason assigned are not legal and convincing. It may be mentioned here that which documentary evidence or which oral evidences has not been considered by the trial Court or which reason assigned by the trial Court is not convincing and why has not been recorded. It may be mentioned here that which documentary evidence or which oral evidences has not been considered by the trial Court or which reason assigned by the trial Court is not convincing and why has not been recorded. The well settled principles of law is that the plaintiff is not only require to prove necessity but must also prove the necessity to be reasonable and in good faith. Mere desire is not sufficient. The appellate Court has not considered the case in this light, viz.-a-viz. the provision of Section 11 (1) (c) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. There is no finding recorded by the appellate Court as to whether in the facts and circumstances of the case and the evidences available on record, the requirement of landlord is mere desire or in fact it is reasonably need which is bonafide. The appellate Court has merely reversed the finding of the trial Court without meeting the reasonings of the trial Court and also without recording independent finding. 9. In the case of Santosh Hazari Vs. Purushottam Tiway 2001 (3) S.C.C. 179 , the Apex Court has held at paragraph 15 that the appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, moreso when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one. 10. In my opinion, the decision of the Apex Court referred to above fully covers the present case and the substantial question of law formulated. Therefore, both the substantial question of law formulated are answered in favor of the appellant and against the respondent. In such circumstances, the impugned Judgment and Decree of the lower appellate Court are set aside and the matter is remanded back to the lower appellate Court for a fresh decision according to law. Since the suit is on the ground of personal necessity, the lower appellate Court shall try to dispose of the appeal as early as possible on the basis of materials available on record. Both the parties are present before this Court, therefore, no further notice be issued to the parties. Both the parties shall appear before the lower appellate Court on 3rd September, 2012 when the lower appellate Court shall fix the date of hearing of the appeal according to the convenience of the parties and the Court.