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2012 DIGILAW 1717 (RAJ)

Paras Ram v. Jaswant Singh

2012-08-07

VINEET KOTHARI

body2012
JUDGMENT 1. - Heard learned counsels for the parties. 2. The defendant-tenant-appellant has preferred the present second appeal under Section 100 of Civil Procedure Code aggrieved by the judgment and decree of the eviction granted by the learned appellate court below of learned District Judge, Bhilwara in Appeal No.14/2000-Jaswant Singh v. Parasmal , reversing the decree of learned trial court dated 30.11.1999 dismissing the eviction suit No.113/1995-Jaswant Singh v. Parasmal. 3. The eviction was sought on the ground of bonafide need of son of plaintiff-Jaswant Singh namely Arvind Kumar, who was about 24 years of age at the time of the filing of the suit in the year 1995. 4. The learned trial court decided the issue of bonafide need against the plaintiff-landlord, inter alia, on the ground that the said son Arvind Kumar was found to be sitting at the business place/shop of one Shobha Lal, who was said to be related to the father-plaintiff Jaswant Singh and the said suit shop was mortgaged by one Shri Jathelia in favour of Shobha Lal. Father Jaswant Singh-the plaintiff was said to be suffering from epilepsy for last 20 years and was, therefore, not in a position to carry on his own business independently. The learned trial court also found that that the defendant-tenant had originally five shops in tenancy from the same landlord, out of which possession of four shops was given to the landlord, which were let out to different persons prior to filing of the suit. The present suit shop is measuring 12 x 25 ft., which is in the possession of the defendant-tenant since 1975. 5. The learned trial court dismissed the said suit, however, the learned first appellate court reversing the said judgment and decree, found that PW-1 Arvind Kumar son of plaintiff-Jaswant Singh, for whose need the eviction was sought, had appeared before the court and stating the illness of his father Jaswant Singh, affirmed the need of eviction in view of his intended business of electric shop in the said suit shop. 6. While admitting the present second appeal, a coordinate Bench of this Court framed the following substantial question of law for consideration on 10.03.2003: "Out of five shops originally in possession of the tenant, four were already vacated and given possession to the landlord. The landlord himself is incapacitated due to physical ailment. 6. While admitting the present second appeal, a coordinate Bench of this Court framed the following substantial question of law for consideration on 10.03.2003: "Out of five shops originally in possession of the tenant, four were already vacated and given possession to the landlord. The landlord himself is incapacitated due to physical ailment. Can it be said in these circumstances that he bonafidely requires the only shop in possession of the tenant ? The reading of evidence appears to be perverse. That being the position, can a judgment of reversal be maintained ?" 7. Learned counsel for the appellant-defendant, Mr. Sajjan Singh urged that need of the plaintiff was not established as the plaintiff-Jaswant Singh himself failed to appear in the witness box though despite his illness in the form of epilepsy, he could come to the court and his son has admitted this fact and in the absence of his presence before the trial court, the bonafide need of the plaintiff-respondent could not be established by PW-1 Arvind Kumar, the son for whose need, eviction was sought. 8. Opposing the application filed under Order 41 Rule 27 CPC by the plaintiff-respondent namely IA No.1285/2012, learned counsel for the appellant-defendant, Mr. Sajjan Singh submitted that the facts alleged subsequent developments are of the year 2005 and the present application has been filed in the year 2012, therefore, being belated application, the same deserves to be rejected. He submitted that the learned trial court was justified in rejecting the suit for eviction and the learned appellate court has erred in reversing the decree. The bonafide need of the son Arvind Kumar could be satisfied upon alternative accommodation in the form of four shops becoming available to the plaintiff, just prior to the filing of the present suit in the year 1995 and, therefore, merely on the whims or desires of the plaintiff, the eviction cannot be sought. 9. Per contra, learned counsel for theplaintiff-respondent-landlord, Mr. 9. Per contra, learned counsel for theplaintiff-respondent-landlord, Mr. Arun Bhansali urged that the ground on which the learned trial court dismissed the suit was that the mortgaged shop in question, which was mortgaged one by Shri Jethelia to Shobha Lal-elder brother of plaintiff-Jaswant Singh itself has since been handed over back to the mortgagor vide decree of the court in Civil Original Suit No.09/2004 on 29.07.2005 and pursuant to such redemption of mortgage, the possession of said suit shop has been handed over back to the mortgagor Mr. Jethalia. Be that as it may, he submitted that these subsequent developments are merely to show that even the sitting of the plaintiff's son Arvind Kumar on that shop, is an event which has now ended. Irrespective of that, he urged that the said son Arvind Kumar could not be expected to remain unemployed during the period of this litigation pending since 1995 and, therefore, nothing turned upon such evidence before the trial court on the basis of which the learned trial court perversely found that the need of the plaintiff-landlord was not justified and bonafide. He submitted that PW-1 Arvind Kumar, in his statement recorded on 06.12.1996, has clearly stated before the learned trial court that his father-the plaintiff Jaswant Singh was suffering from a kind of disease epilepsy, which rendered him incapacitated to come to the trial Court and give the statements properly. Since the bonafidee need was sought for the son Mr. Arvind Kumar himself only, he has appeared before the learned trial court and has affirmed his bonafide need and has withstood with his stand even in his cross-examination. The mere availability of the four shops, out of five shops originally in possession of the defendant-tenant, prior to the filing of the suit, cannot be said to have satisfied the bonafide need of the plaintiff-landlord and it is the need at the time of the filing of the suit which is important and admittedly since one of the shops was in the possession of the appellant-defendant, was only the available shop at the time of filing of the suit, for which need was established by PW-1 Arvind Kumar, learned appellate court below was perfectly justified, based on a proper and correct appreciation of the said evidence to direct eviction of the suit shop. 10. 10. He also drew the attention of the Court that the mesne profit fixed by the court below was Rs. 101/- only. This Court vide order dated 18.08.2008 on plaintiff's application had increased the said mesne profit to Rs. 3,000/- per month payable from September, 2008, against which the defendant-tenant approached the Hon'ble Supreme Court by way of SLP No.27096 of 2008, which was summarily dismissed by Hon'ble the Supreme Court on 05.12.2008. Learned counsel Mr. Bhansali, justified the eviction decree passed by the first appellate court and submitted that in fact no substantial question of law arises in the matter, since the findings of the first appellate court about the bonafide and reasonable need of the landlord are findings of fact based on cogent and relevant evidence and which cannot be termed as perverse. He also submitted that the plaintiff-landlord is the best judge of his needs and the tenant cannot dictate terms in this regard as to how the plaintiff-landlord should adjust his business and personal needs. 11. Having heard learned counsels and upon perusal of the orders of the courts below and the statements of plaintiff's son Arvind Kumar, this Court is satisfied that the present second appeal of the defendant-tenant has no force and the substantial question of law framed above deserves to be answered against the defendant-appellant and in favour of the respondent-landlord. Mere nonappearance of the plaintiff-Jaswant Singh-the father himself in view of his peculiar kind of disease epilepsy for last 20 years cannot result in any adverse inference being drawn in the matter against the landlord. The son-Arvind Kumar for whose needs, the eviction was sought, himself was of 24 years of age and was matured enough to give his statement before the Court establishing his need for the suit shop. His statement including his cross-examination has not resulted in anything in favour of the defendant-tenant. Whatever inference by his sitting at the shop of Shobha Lal, which was a mortgaged shop was the last thread which has been snapped in the year 2005, where upon redemption of the mortgage decree, the possession of that shop has been returned back to the mortgagor. Whatever inference by his sitting at the shop of Shobha Lal, which was a mortgaged shop was the last thread which has been snapped in the year 2005, where upon redemption of the mortgage decree, the possession of that shop has been returned back to the mortgagor. Even otherwise, this Court consistently relying upon various judgments of Hon'ble Supreme Court has held time and again that the bonafide need at the time of filing of the suit has to be established and the subsequent developments in the form of the person, for whose need the eviction is sought found to be working elsewhere, does not wipe out the need for eviction of tenant. The landlord or the family member for whose need the suit premises is sought to be evicted, is neither expected to sit idle or unemployed nor expected to starve in the waiting period of litigation. 12. This Court is fully satisfied that in these circumstances, the learned first appellate court was perfectly justified in decreeing the eviction suit in favour of the plaintiff-respondent and the learned trial court had obviously erred in taking a too narrow view while rejecting the suit for eviction. 13. The present second appeal of defendant-tenant is, therefore, found to be devoid of any merit and deserves to be dismissed and is accordingly dismissed. No costs. 14. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit property viz. shop situated at Bazar No.2, Bhopalganj, Bhilwara in question to the respondent-plaintiff within a period of six months from today i.e. on or before 31st January, 2013 and shall pay mesne profit Rs. 3,000/- per month, as already fixed by this Court on 18.08.2008, commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent also and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The defendant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents. plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.Appeal Dismissed. *******