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2012 DIGILAW 136 (RAJ)

Moti Bai v. Chaitanya Giri

2012-01-11

KAILASH CHANDRA JOSHI

body2012
JUDGMENT 1. - This civil second appeal has been filed by appellant-defendant Smt. Moti Bai being aggrieved by the judgment and decree dated 14.09.2011 passed by learned Additional District Judge No.1, Udaipur in Civil Appeal No.06/2003, by which the learned first appellate court has dismissed the appeal filed by appellant-defendant and affirmed the judgment and decree dated 14.02.2003 passed by learned Civil Judge (Junior Division), Udaipur in Civil Original Suit No.224/2002, whereby the learned trial court has decreed the suit filed by respondent-plaintiffs. 2. The brief facts of the case are that the respondent-plaintiffs filed a suit for eviction against the appellant- defendant in respect to the suit property inter alia stating that the appellant-defendant is tenant in the disputed premises and the rent is fixed at the rate of Rs. 800/- per month. It is further averred that the plaintiffs are father and son respectively and in pursuance to an oral partition, the disputed premises has come into the share of plaintiff No.2 and the said premises is required by the plaintiff No.2 for the residence of his family. It is further averred that the appellant-defendant has established flour mill in the said premises and hence creating nuisance. With these averments, a decree of eviction was sought on the ground of bonafide necessity and nuisance. 3. The appellant-defendant filed written statement denying the partition between the plaintiffs and also the bonafide necessity of the plaintiff No.2. It is stated that the business run by the appellant-defendant in the aforesaid premises is the only source of livelihood of her family and in case of eviction, the appellant-defendant would suffer great hardship and thus, denied both the grounds of eviction. 4. The respondent-plaintiffs filed rejoinder to the written statement denying the averments made therein. 5. On the basis of the pleadings of the parties, the learned trial court framed as many as 9 issues and after recording the evidence of both the parties, vide the impugned judgment and decree dated 14.02.2003 decreed the suit of the respondent-plaintiffs. Being aggrieved by the said judgment and decree, the appellant-defendant filed an appeal before the lower appellate court, which was dismissed vide the impugned judgment and decree dated 14.09.2011. 6. Hence, being aggrieved by the impugned judgments and decrees passed by the courts below, the appellant-defendant has preferred this civil second appeal. 7. Being aggrieved by the said judgment and decree, the appellant-defendant filed an appeal before the lower appellate court, which was dismissed vide the impugned judgment and decree dated 14.09.2011. 6. Hence, being aggrieved by the impugned judgments and decrees passed by the courts below, the appellant-defendant has preferred this civil second appeal. 7. The learned counsel for the appellant-defendant contended that the whole approach of the learned courts below was perverse and the judgment and decree passed by them are without consideration of the facts and law applicable to the case and perverse to the material available on record. 8. It is further contended that the learned courts below have committed grave error in deciding the issue No.7 and further committed error in deciding this issue in conjunction with the issue No.1. It is contended that the plaintiffs failed to prove the factums of partition among them and hence the due burden of proof was not discharged by the plaintiffs in respect to the issue No.7. There is no material available on record in support of the contentions raised by the plaintiffs in respect to the alleged partition and the learned trial court in a very ambiguous manner observed that the appellant is not within her rights to raise the objection about the partition. Further the statement of P.W.1 Govind Giri was not consistent with the averments in respect to the property acquired by him subsequent to the partition. In the cross-examination, this witness has admitted the acquisition of additional properties, i.e. more than pleaded in the plaint after the alleged partition. Under these circumstances, it cannot be said that the partition has happened between the plaintiffs as alleged. Thus, the case of the plaintiffs falls flat on this very basis that in case the partition is not proved, there cannot be any bonafide necessity for the disputed premises for the plaintiff No.2. 9. The learned counsel for the appellant-defendant further contended that it is an admitted fact that plaintiff Govind Giri has constructed a room in the year 1995 and he has additional 5 rooms on the ground floor and the newly constructed room was rented out for computer business, thus, it cannot be said that the plaintiff has any bonafide necessity of additional premises for his family. It is contended that the learned courts below has committed error in not considering the contentions of the appellant-defendant in respect to the newly constructed room in the year 1995 for the reason that the same was not pleaded by the defendant. The learned counsel contended that it is settled position of law that even during the pendency of suit, if the landlord acquires or construct other property, his bonafide necessity has to be viewed considering the fact of availability of additional premises. 10. It is further contended that the disputed premises is a commercial premises and the same has been rented out to the appellant-defendant for commercial use, but the plaintiffs have come out with the case of bonafide necessity of residential premises, therefore, the decree of eviction could not be passed on the ground of requirement of residential premises. 11. It is further contended that both the courts below have committed error while deciding the issue with regard to comparative hardship because the defendant is an aging lady who is using the premises for the purpose of earning her livelihood. 12. The learned counsel for the appellant-defendant further contended that both the courts below have committed grave mistake in deciding the issue No.3, which is in respect to the partial eviction in favour of the plaintiff. It is contended that it was for the courts below to decide this issue on the basis of the facts and circumstances of the case and material available on record even if the appellant-defendant did not come with such case. 13. The learned counsel for the appellant-defendant further contended that while deciding the issue No.5, the learned trial court has clearly observed that it is not disputed by the plaintiffs that the disputed premises had been rented out to the defendant initially for the purpose of running flour mill and since then the said flour mill has been run in the said premises and with this observation, the learned trial court decided the issue No.5 in favour of the defendant. The defendant also filed an application under Order 14 Rule 5 CPC with respect to maintainability of the suit for want of 6 months' advance notice. The defendant also filed an application under Order 14 Rule 5 CPC with respect to maintainability of the suit for want of 6 months' advance notice. The said application was wrongly rejected by the learned court below on the ground that the defendant failed to prove that the said premises was rented out for the purpose of industrial use, while believing on the statements of plaintiffs' witnesses that the shop was initially rented out for the purpose of grocery business. It is contended that the learned lower appellate court has committed perversity in observing contrary to finding of the learned trial court without there being any challenge to such finding. Thus, when it was an admitted position before the courts below that the disputed shop was rented out for industrial purpose, the suit itself is not maintainable for want of statutory notice for a period of six months and under these circumstances, the application under Order 14 Rule 5 CPC deserves to be allowed and the suit is liable to be dismissed as not maintainable. 14. The learned counsel for the appellant-defendant further contended that the learned trial court has erred in rejecting the application under Order 41 Rule 27 filed by the defendant when it is an admitted position that the plaintiffs after construction of new room had rented out the same for computer business. Under these circumstances, when the plaintiffs have rented out the part of the residential premises available with them for commercial use, then it cannot be said that they have bonafide necessity for the disputed premises, thus, the application under Order 41 Rule 27 CPC should not have been dismissed. 15. It is further contended that during the pendency of the suit, one of the plaintiffs died and with the death of one plaintiff, the bonafide necessity of the said plaintiff came to an end, but the learned courts below have failed to consider this aspect and committed material irregularity in passing the decree of eviction. 16. Per contra, the learned counsel for the respondent-plaintiff, who has pur appearance through caveat, vehemently opposed the contentions raised by the learned counsel for the appellant-defendant and submitted that the impugned judgments and decrees passed by the learned courts below are based on proper appreciation of the evidence available on record and the learned courts below have discussed each and every evidence in their judgments. Further they have given detailed findings on each issue and same do not suffer from any illegality, infirmity and perversity and deserve to be affirmed. 17. I have considered the rival contentions raise by the learned counsel for the parties and perused the impugned judgments passed by the courts below. 18. The learned counsel for the appellant-defendant has proposed the following substantial questions of law in the memo of appeal:- [a] Whether the suit filed by the plaintiffs can be maintained without statutory notice of six months and when it is an admitted position that the disputed premises has been rented out for industrial use? [b] Whether the learned lower appellate court has committed a grave mistake of law in disturbing and reversing the order of the learned trial court, without there being any challenge to such findings by the plaintiffs? [c] Whether the application under Order 14 Rule 5 CPC filed by the defendant was wrongly dismissed by the learned lower appellate court against settled principle of law that facts admitted are need not to be proved? [d] Whether the application under Order 41 Rule 27 CPC filed by the defendant was wrongly dismissed when it is an admitted position that the plaintiffs, after construction of a new room, rented it out to one other tenant? [e] Whether both the learned courts below were wrong in deciding issue of comparative hardships against the defendant when it is clearly on record that the business of the defendant in the disputed premises is the only source of her livelihood and on the contrary the plaintiffs have vast premises to live in? [f] Whether the decree of eviction in respect to a commercial premises can be passed on the basis of alleged need of residential premises? [g] Whether it is not incumbent upon the learned courts below to decide the issue of partial eviction on basis of facts and circumstances, and material available on record? [h] Whether the suit was wrongly decreed, despite non-subsistence of alleged bonafide need for the plaintiffs as one of the plaintiffs dies during pendency of litigation? 19. [g] Whether it is not incumbent upon the learned courts below to decide the issue of partial eviction on basis of facts and circumstances, and material available on record? [h] Whether the suit was wrongly decreed, despite non-subsistence of alleged bonafide need for the plaintiffs as one of the plaintiffs dies during pendency of litigation? 19. It is an admitted fact that the suit was filed by the respondent-plaintiffs for eviction of the suit premises on the basis of bonafide and reasonable necessity and the learned trial court as well as the learned first appellate court recorded their findings on this issue in favour of the respondent- plaintiffs. The learned counsel for the appellant-defendant drew my attention towards the application filed under Order 14 Rule 5 and Order 41 Rule 27 CPC and tried to convince me on the point that a substantial question of law is involved that whether the learned first appellate court erred in dismissing the application under Order 41 Rule 27 and further whether the application under Order 14 Rule 5 has been rightly dismissed. There was no pleading in the written statement regarding the fact that the suit property is being used for industrial purpose, therefore, 6 months' notice was necessary. This question has been raised for the first time in the second appeal. I think no such question can be raised at the second appellate stage. The second contention is regarding the objection that the learned trial court as well as the learned first appellate court ought to have taken notice of the subsequent events at the time of deciding the real controversy in issue. I have perused the impugned judgments and the statements of the witnesses placed before me for perusal. There is no evidence on record that the respondent-plaintiff is having more than 2 rooms with him for residential purpose and furthermore, the number of rooms available with the the respondent-plaintiff and further requirement of premises are purely questions of fact. The learned trial court has discussed the evidence of each and every witness in detail and the real controversy involved in the suit and the appeal is regarding the questions of fact. The learned trial court has discussed the evidence of each and every witness in detail and the real controversy involved in the suit and the appeal is regarding the questions of fact. I think no illegality, irregularity or perversity has been committed by the learned trial court or the learned first appellate court so as to interfere in the findings on any issue including the issue of bonafide and reasonable necessity of the respondent-plaintiff. Further no substantial question of law is involved in this appeal and the appeal lacks merit. 20. So far as the contention raised by the learned counsel for the appellant-defendant that during the pendency of the suit, one room was rented out by the respondent-plaintiff for computer business is concerned, this contention is against the facts available on record on the ground that in the cross-examination P.W.1 Govind Puri categorically deposed that the room was rented even before filing of the suit and there is no rebuttal of this evidence. 21. Consequently, this appeal is dismissed at the admission stage being devoid of merit and the impugned judgments and decrees passed by the courts below are affirmed. No order as to costs. 22. The learned counsel for the appellant-defendant prayed that reasonable time may be granted to vacate the suit premises as the appellant is running flour mill in the suit premises.Although the learned counsel for the respondent-plaintiff opposed this argument, but looking to the fact that the suit property is being used for commercial purpose, I deem it fit to grant one and half years' time to the appellant-defendant to evict the suit premises. The period of one and half years shall be counted from the date of this judgment.Appeal Dismissed. *******