Ashok Kumar Sahu vs Ramesh Kumar Sahu

Sanjay Yadav, J.—Heard on admission.

Aggrieved of the judgment and decree dated 9.7.2014 passed in Civil Appeal No. 13-A/2014 by Additional District Judge, Bina District Sagar, affirming the judgment and dated 18.2.2013 passed by Civil Judge Class I Bina in Civil Suit No. 387-A/1991, defendant has filed this appeal.

This is second round of litigation pertaining to eviction from shop situated at Station Road Bina let out to the defendant.

Suit for eviction was brought by father and son viz. Ramlal and Dinesh Kumar on 17.6.1991 contending that the suit shop is bona fide required for Ramlal, Mamta, an unmarried handicapped daughter and other family members to start their own business. That, during pendency of civil suit, Mamta was married to Premnarayan with a condition that son-in-law would be given one shop to carry out business. And, on vacating of shop by one Radheyshyam, the same was given to Mamta''s husband i.e. Premnarayan. The suit was decreed on 7.9.1999. In Appeal, however, the decree was reversed by judgment and decree dated 13.3.2000. Second Appeal (S.A. No. 544/2000) preferred thereagainst on the following substantial question of law viz.-

(i) Whether the finding arrived at by the learned first appellate Court that the suit premises is not required bona fide by the plaintiffs/appellants for continuing their business, is perverse as it is based on misinterpretation of evidence on record ?

(ii) Whether Premnarayan the son-in-law of the plaintiff/appellant No. 1 is dependent on the plaintiffs/appellants and, therefore, the learned First Appellate Court erred in law in reversing the decree for eviction passed by the learned trial Court ?

These substantial question of law were answered in favour of the plaintiff in the following terms and the matter was remitted to trial Court for retrial-

After having heard learned counsel for the parties and on perusal of the record, it is settled position of law that the landlord cannot be dictated by tenant or by Court that which premises is suitable for starting his business. It is the choice of the landlord where he wants to run his business. In this context, the argument so advanced by Shri Vivek Rusia, learned counsel for the respondent, that plaintiff No. 1 who was doing business of grain merchant on Footpath and the shop is required bona fide to shift his business is not of much importance because he has died. Thus, the finding with respect to the need of plaintiff/appellant No. 1 set forth in the pleadings and evidence, looses its importance for deciding substantial question of Law No. 1 framed by this Court. Now it is to be examined that as per the pleadings of the case whether the need of plaintiff No. 2 is continuing to run his own business in the light of the judgment of Apex Court in the case of Kamleshwar Prasad (supra) and Shankuntala Bai and others (supra). Looking to the pleadings of the plaint, it is apparent that the suit was filed for starting the business of plaintiff No. 1 and other family members. At the time of filing of suit plaintiff No. 2 was minor and now he is become major. During pendency of the appeal plaintiff /appellant No. 1 has died, however, need to other family member would include the need of plaintiff/appellant No. 2, and his need shall not be extinguished and it can be examined as per the pleadings and evidence so brought on record. During pendency of this appeal, application (I.A. No. 11217/2006) under Order 6 Rule 17, CPC has been filed which is pending for consideration and as per the orders of this Court, it is required to be decided at the time of final hearing. However, looking to the proposed amendment it reveals that suit shop No. 2 is required bona fide to run the business of both the plaintiffs. Thus, considering the aforesaid subsequent event, by allowing the application for amendment, the evidence on the said pleading may be examined. The evidence of Ramlal (PW-3) in para-15 is not positive on the bona fide need of plaintiff/appellant No. 2. In his statement it is stated that it is not decided that which business plaintiff No. 2 will do in future. It is stated that they are thoughtful to open store in the suit shop. However, on the basis of desire so projected and looking to the subsequent event i.e. death of plaintiff/ appellant No. 1, and also due to allowing the application for amendment in plaint, at this stage, the decree for eviction cannot be directed. Thus, looking to the facts and circumstances, plaintiff No. 1 has died and cogent evidence for genuine need as per proposed amendment may be brought on record. Thus, it would be desirable that by allowing the application for amendment and after permitting the consequential amendment in written statement and to bring evidence by both the parties, the matter deserves to be remanded back, affording opportunity to both the parties.

In the facts and circumstances of the case, it is required to be observed that if the appellants want to set forth cogent pleadings in view of forgoing, however, they are further at liberty to move appropriate application for amendment before the trial Court and the same shall be considered by the trial Court in view of the fact that the amendment so made before this Court has been allowed and after allowing the said amendment, consequential amendment in the pleading may be permitted, by defendant, and after taking evidence on the point of genuine need of plaintiff No. 2, the suit be decided within a period of six months from the date of appearance of the parties. The parties present today are directed to appear before the trial Court on 27th August, 2012.

In view of forgoing, the impugned judgment and decree passed by the lower appellate Court as well as by the trial Court are hereby set aside. The matter is remanded back in view of forgoing observations and the plaintiff No. 2 is at liberty to make specific pleadings with respect to his own need and to lead evidence in this regard. Defendant is at liberty to have consequential amendment and to adduce evidence in rebuttal and the trial Court is directed to decide the suit within the time so specified from the date of appearance of the parties i.e. 27th August, 2012.

Armed with the leave granted, plaintiff no. 2 amended the plaint by incorporating pleadings pertaining to his bona fide requirement and there is no suitable alternative accommodation available.

Defendant denied the plaint allegation contending inter alia that the sister, Mamta, was not dependant and that with her marriage, the bona fide requirement has extinguished. It was contended that even plaintiff no. 2 has a suitable alternative accommodation available.

Trial Court on the basis of material evidence on record returned the finding in favour of the plaintiff no. 2 that the suit shop is bona fide required and that no alternative suitable accommodation was available. The trial Court also found that with the settlement of Premnarayan in the shop vacated by Radheyshyam, the bona fide need of plaintiff no. 2 had not ceased. On further evaluation of the evidence, the trial Court found that plaintiff no. 2 did not have any suitable accommodation to carry out business. Consequently, trial Court decreed the suit. Trial Court found plaintiff''s need for shop bona fide and that he had not suitable alternative accommodation to establish the business.

As to bona fide requirement, trial Court found that the existing shop in the joint name of plaintiff no. 2 and his brother was being controlled by the brother. As to suitability of accommodation, trial Court found-

In Appeal, finding as to bona fide requirement and non- availability of suitable alternative accommodation has been affirmed. The finding being based on meticulous analysis of material evidence on record does not call for taking a different view. The appellate Court even discarded the plea for non- maintainability of suit at the instance of Ramlal on the ground that the suit property having been purchased in the name of plaintiff no. 2, plaintiff no. 1 Ramlal is debarred under Section 4 of the Benami Transaction (Prohibition) Act, 1988 holding that there is no pleading to that effect in the written statement as would give the defendant right to raise the issue for the first time at appellate stage. Though it is contended by learned counsel for the appellant that the plea being a question of law ought to have been entertained by the First Appellate Court.

The contention deserves to be rejected outright for the reason that to bring an issue within the ambit of statutory provisions barring a remedy, necessary it is to plea and prove the facts. In the case at hand, the facts as benami transaction are neither pleaded nor proved. Even otherwise, plaintiff no. 2 having been given the liberty in Second Appeal : S.A. No. 544/2000, to plead for his bona fide need, the objection qua benami transaction evaporates in the air.

Thus considered, no substantial question of law arises for consideration.

Consequently, appeal fails and is dismissed. No costs.