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2014 DIGILAW 563 (RAJ)

Prabhu Lal v. Purshotam Lal

2014-02-25

ARUN BHANSALI

body2014
JUDGMENT 1. This appeal is directed against appellate judgment and decree dated 08.11.2012 passed by Additional District Judge No.2, Udaipur, whereby, the judgment and decree dated 16.03.2000 passed by Civil Judge (Junior Division), City, South, Udaipur has been affirmed, whereby, the trial court had directed eviction of the appellant from the suit shop. 2. The facts in brief may be noticed thus : the plaintiff Purshotam Lal filed a suit on 05.01.1993 for eviction of the defendant Prabhu Lal from the suit shop with the averments that he was landlord of the suit shop; the shop was in tenancy of the defendant with rent @ Rs.181/- per month, wherein, the defendant under the firm name Srinath Watch Service was engaged in business of watch repairing; the tenant has committed default in payment of rent by not paying the rent for more than six months; his elder son Subhash Chandra is disabled (deaf and dumb), who has learnt tailoring work and having worked for ten years, he has gained experience; as plaintiff has no vacant shop, his son started working in a godown on the ground floor, which is used for his business of Ghee and Oil; he has helpers also, however, as the shop is not in the market, the customers are not aware of the shop and, therefore, he is not getting sufficient tailoring work; besides the above, as the godown is being used for tailoring work, the space for godown has been reduced and plaintiff's business of Ghee and Oil has been affected, as the godown is required for Ghee and Oil business; based on the above averments, it was stated that the shop was required by the plaintiff for reasonable and bona fide requirement of his son's tailoring business; further averments were made regarding comparative hardship and partial eviction. 3. 3. A written statement was filed by the appellant-defendant; it was claimed that shop was let out at a monthly rent of Rs.126/- and, on account of threat of eviction, the same was enhanced to Rs.181/-; the averments relating to default in payment of rent were denied; it was claimed that plaintiff's son Subhash Chandra was doing tailoring business at the existing place without any hindrance and is having two servants and from the said business he has constructed a big bungalow in Sector-5; it was claimed that another shop was let out after filing of the suit; the shop of Subhash Chandra is visible from the road; another two storeyed house was situated near Agarwal Dharamshala, wherein also, two shops have been let out; another shops were situated near Ghantaghar on the main road; the plaintiff is undertaking business of suitcase etc. on the main road alongwith his family; the premises sought to be got vacated was quite small from the existing occupied premises of his son, which cannot be used for the purpose, the eviction was being sought; the reasonable and bona fide requirement was denied and it was claimed that appellant would suffer comparatively more hardship than the plaintiff if the suit shop was got vacated. Ultimately, it was prayed that the suit be dismissed. 4. The trial court framed five issues. On behalf of the plaintiff - four witnesses including plaintiff Purshotam Lal and his son Subhash Chandra (though deaf and dumb, with the aid of sign language expert) were examined. On behalf of defendant - six witnesses were examined. 5. After hearing the parties, the trial court by its judgment and decree dated 16.03.2000 came to the conclusion that the suit shop was required by the plaintiff for the tailoring business of his son Subhash Chandra, which requirement was reasonable and bona fide as the suit shop was on the main road his (Subhas Chandra's) business would increase; issues relating to comparative hardship and partial eviction were also decided in favour of the plaintiff; issue of default was decided against the plaintiff and the issue relating to determination of standard rent was also decided against the defendant. 6. Feeling aggrieved, the appellant filed appeal before the District Judge, Udaipur, which was transferred to the Court of Additional District Judge No.2, Udaipur. 7. 6. Feeling aggrieved, the appellant filed appeal before the District Judge, Udaipur, which was transferred to the Court of Additional District Judge No.2, Udaipur. 7. During the period of 12 years, the first appeal remained pending before the first appellate court, the appellant filed applications under Order XLI, Rule 27 CPC on 13.11.2000, Order VI, Rule 17 CPC seeking amendment in the written statement on13.11.2000, application under Order XLI, Rule 27 CPC on 21.09.2012 and one application under Order XLI, Rule 27 CPC was filed by the respondent-plaintiff on 29.04.2009. 8. The application under Order VI, Rule 17 CPC was rejected by the first appellate court on 13.08.2004 observing that the amendment cannot be considered necessary or appropriate for deciding the controversy in the suit. 9. By the impugned appellate judgment dated 08.11.2012 the first appellate court dismissed the applications filed by the appellant under Order XLI, Rule 27 CPC, accepted the application filed by the plaintiff under Order XLI, Rule 27 CPC and after hearing the parties came to the following conclusion on the issue relating to reasonable and bona fide requirement:- 10. The findings on issue relating to comparative hardship and partial eviction recorded by the trial court were also upheld. The Court also rejected the cross-objection filed by the plaintiff on the issue of default and upheld the finding recorded by the trial court. In conclusion, the appeal filed by the appellant-defendant was rejected by the first appellate court. 11. It was submitted by learned counsel for the appellant that both the courts below have committed grave error of law in coming to the conclusion that the suit premises was required bona fide by the landlord and, therefore, the judgments impugned deserve to be quashed and set aside. 12. It was submitted that the applications filed by the appellant under Order XLI, Rule 27 CPC were wrongly rejected by the first appellate court. The basis given was dismissal of the application under Order VI, Rule 17 CPC filed during the course of appeal, without understanding the different scope of both the provisions i.e. Order VI, Rule 17 CPC and Order XLI, Rule 27 CPC, the first application was rejected and the second application was rejected for absolutely wrong reasons. The basis given was dismissal of the application under Order VI, Rule 17 CPC filed during the course of appeal, without understanding the different scope of both the provisions i.e. Order VI, Rule 17 CPC and Order XLI, Rule 27 CPC, the first application was rejected and the second application was rejected for absolutely wrong reasons. It was also contended that the application filed by the plaintiff under Order XLI, Rule 27 CPC was wrongly allowed and, therefore, the same has resulted in grave prejudice to the appellant. Reliance was placed on the judgment of Hon'ble Supreme Court in Union of India v. Ibrahim Uddin & Anr. : (2012) 8 SCC 148 . 13. It was submitted that the suit was filed essentially claiming that the shop was required for the tailoring business of the plaintiff's son and another plea was raised that as his son was presently undertaking business in the godown, plaintiff?s business of Ghee and Oil was getting affected for lack of space, however, the fact that the plaintiff's business of Ghee and Oil had come to an end and, therefore, the requirement for godown by the plaintiff had come to an end; enough space was available for the plaintiff's son to continue with his business and, therefore, the finding recorded by the courts below stands vitiated. It was further submitted that the location of the present shop whereof appellant's son was undertaking business and that of the suit shop are not different and, therefore, the entire plea raised in the plaint regarding the location affecting the business of the plaintiff's son is absolutely baseless. The Courts below have failed to take into consideration that the appellant had various other premises available with him, however, without utilizing the said available premises, the suit shop was sought to be got vacated from the appellant and the said aspect about availability of reasonable/suitable alternative accommodation with the plaintiff has not at all been taken into consideration. It was further contended that during pendency of the suit, an application under Order XIII, Rule 2 CPC was filed, which was rejected by the trial court, the said issue was raised in the appeal, however, the same has not been considered by the first appellate court and that rejection of another application under Order XI, Rule 14 CPC was also questioned, which has also not been considered. 14. 14. Per contra, learned counsel for the respondent submitted that both the courts below have concurrently found that the suit shop was reasonably and bona fidely required by the appellant for the business of his son Subhash Chandra and appellant has failed to point out any perversity in the said finding. The entire plea raised is that the plaintiff landlord should adjust in order to maintain the possession of the tenant. It was submitted that the dismissal of applications under Order XLI, Rule 17 CPC was justified, both on their own merit and in view of the fact that application under Order VI, Rule 17 CPC had been rejected. Ultimately, it was prayed that the appellant having enjoyed the suit premises for over 21 years, now on account of pendency of the suit/appeal, the plaintiff and his son have already suffered a lot and the appeal has no substance should be dismissed with heavy costs. 15. I have considered the rival submissions. 16. The application under Order XLI, Rule 27 CPC and Order VI, Rule 17 CPC before the first appellate court were filed simultaneously on the same day i.e. 13.11.2000; both the applications contained similar grounds regarding the facts about the Ghee and Oil Business of plaintiff having been closed; the godown being used by plaintiff's son having been altered and claiming the same to be subsequent events. Once the application under Order VI, Rule 17 CPC was rejected by the first appellate court on 13.08.2004 on coming to the conclusion that the alleged subsequent events, which existed even when the trial was going on, are essentially matters relating to evidence and that the proposed amendment could not be considered necessary or appropriate for deciding the controversy in the suit, apparently, provisions of Order XLI, Rule 27(l)(a) or (aa) CPC had no role to play and so far as provisions of Order XLI, Rule 27 (l)(b) CPC, which deal with the requirement of the appellate court for pronouncing judgment or for any other substantial cause is concerned, the first appellate court having come to the conclusion on lack of its requirement for pronouncing judgment, there is apparently no reason to come to a different conclusion. The aspects sought to be raised had already been on the record, as the applications itself indicated as such, therefore, the rejection of application under Order XLI, Rule 27 CPC filed by the appellant cannot be said to be incorrect. The principles laid down by Hon'ble Supreme Court in the case of Union of India v. Ibrahim Uddin (supra) in fact goes against the appellant. 17. So far as grant of application filed by the plaintiff-respondent is concerned, besides the fact that the same being in consonance with the law laid down by Hon'ble Supreme Court in the judgment cited by the learned counsel for the appellant in the case of Union of India v. Ibrahim Uddin (supra), even in the absence of the document, which was taken on record, the same cannot said to be materially affecting the finding recorded by the first appellate court and, therefore, the challenge made by the appellant to the acceptance of the application filed by the plaintiff also has no substance. 18. So far as rejection of applications under Order XIII, Rule 2 and Order XI, Rule 14 CPC filed by the defendant before the trial court and the same having been questioned in the first appeal is concerned, the challenge in this regard was incorporated in the application dated 13.11.2000 filed under Order XLI, Rule 27 CPC and the first appellate court having thoroughly discussed the implication of the documents, no exception can be taken and it cannot be said that the first appellate court did not advert to the documents, which were sought to be produced by way of applications under Order XIII, Rule 2 and Order XI, Rule 14 CPC and, therefore, the challenge, in this regard, being wholly baseless, deserves to be rejected. 19. So far as findings recorded by the courts below on reasonable and bona fide requirement of the plaintiff-respondent is concerned, both have concurrently found that the suit premises were required for the plaintiff's son Subhash Chandra business. From the evidence on record, it was amply proved that while the suit shop was situated on the main road, the plaintiff's godown, wherein, his son Subhash Chandra was undertaking his tailoring business, was 25 ft. away from the road and was situated after crossing a gallery type path way from the road. From the evidence on record, it was amply proved that while the suit shop was situated on the main road, the plaintiff's godown, wherein, his son Subhash Chandra was undertaking his tailoring business, was 25 ft. away from the road and was situated after crossing a gallery type path way from the road. The plaintiff had come out with the specific requirement that the suit premises was required as his son was not getting sufficient business on account of the shop being situated not on the main road. No exception can be taken to the requirement projected by the landlord as admittedly his son was undertaking the tailoring business in the godown and over a period of time has been making efforts to expand and/or develop the same within the constrains on account of location of the godown i.e. away from the main road. The requirement of bringing the tailoring shop to the main road, even if the same is a established shop, cannot be questioned as oblique on part of the landlord, rather it is most reasonable on part of a landlord to get the premises vacated for setting up business of his son on the main road, specially when the business is that of a tailor. 20. So far as the entire emphasis and/or arguments raised regarding availability of alternative suitable accommodation with the plaintiff is concerned, during course of cross-examination, when the defendant-appellant was confronted with the proposal as to whether he (defendant) was prepared to shift to any of such alleged alternative premises, the appellant had point blank refused for the same claiming the said locations to be not suitable. If the alleged locations were not suitable for appellant, who was doing the business of watch repairing, the same cannot in any circumstance, be said to be suitable for a tailoring business. 21. Interestingly, the appellant-plaintiff also during course of his cross-examination made a statement that he wanted to undertake business in the suit shop for whole of his life. Such an attitude speaks volumes about the purport and intention of the defendant in some how not vacating the suit shop irrespective of the requirement of the landlord. 21. Interestingly, the appellant-plaintiff also during course of his cross-examination made a statement that he wanted to undertake business in the suit shop for whole of his life. Such an attitude speaks volumes about the purport and intention of the defendant in some how not vacating the suit shop irrespective of the requirement of the landlord. The reasonable requirement of the landlord can also be noticed in view of the fact that admittedly the tailoring business of plaintiff's son was started in the godown in the year 1987 and after the same was established to a reasonable level, the suit was filed for eviction in the year 1993 and the claim of the defendant that the landlord should search for another suitable accommodation and adjust so as to maintain the possession of the tenant on the suit shop cannot be appreciated as the landlord's son having established his business over a period of time at the location owned by his father is reasonably expected to stay at the same venue of business with a better location i.e. on the main road and not otherwise. 22. In view of the above, there is no substance in any of the submissions made by learned counsel for the appellant. 23. In G.C. Kapoor vs. Nand Kumar Bhasin & Ors. : 2002 WLC (SC) 91, the Hon'ble Supreme Court held as under: "9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Datatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Another : 1999 (4) SCC 1 , this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to be prove it but there is no warrant for presuming that his need is not bonafide. It was also held that while deciding this question, court would look into the broad aspects and if the court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt. 10. In Raghunath G. Panhale (D) by Lrs. v. Chaganlal Sundarji and Co. It was also held that while deciding this question, court would look into the broad aspects and if the court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt. 10. In Raghunath G. Panhale (D) by Lrs. v. Chaganlal Sundarji and Co. : 1999 (8) SCC 1 this Court inter alia held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated nor that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for non-residential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood. 11. Regarding financial capacity of the appellant, the courts below have held that appellant did not have financial capacity. From records, we find that the appellant had produced revenue records to show his ownership over agricultural land in additional to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the courts below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by this Court in the above decision namely Dattatraya Laxman Kamble (supra). That apart, as the appellant has got immovable property, it would not be difficult for him to raise necessary fund and therefore we hold that the finding on this point of the courts below is not sustainable." 24. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta : (1999) 6 SCC 222 , the Hon'ble Apex Court in para 13 held as under:- "The term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the Rent Control Legislation. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord." 25. In view of what has been discussed hereinbefore, besides the fact that the finding of reasonable and bona fide requirement recorded by both the courts below are concurrent findings of fact, even on examination of submissions made by learned counsel for the appellant, no substantial question of law arises in the present appeal so as to require interference in the judgment impugned. Consequently, there is no substance in the appeal and the same is, therefore, dismissed.