Babulal and Another vs Prem Prakash

Alok Sharma, J.—This second appeal u/s 100 CPC has been filed against the judgment and decree dated 27.11.2012, passed by the learned Additional District & Sessions Judge No. 2, Alwar in civil regular first appeal No. 69/2011 upholding the judgment and decree dated 17.06.2011, passed by the learned Additional Civil Judge (Junior Division) No. 1, Alwar in civil suit No. 34/300/1995, whereby the suit filed by the plaintiff-respondent (hereinafter ''the plaintiff) for eviction of the defendant-appellant (hereinafter ''the defendant'') was decreed. The facts of the case are that the plaintiff filed a suit for due rent and eviction against the defendant on 22.07.1995 in the court of learned Civil Judge (Jr. Div.) No. 1, Alwar seeking eviction of the defendant as tenant in a shop owned by the plaintiff on the ground of bona fide need of his son Bihari Lal as also on the ground of default in payment of rent and sub-letting and parting with possession. The plaintiff stated that the rent current at the time of filing of the suit was Rs. 150 p.m. and had not been paid since 01.07.1993. The defendant had handed over exclusive possession of the tenanted shop to his son and ceased doing business on his part therefrom. It was stated that plaintiff owned seven shops including the tenanted shop in issue, but five shops had been let out and were in the occupation and possession of other tenants. The plaintiff stated that he had four sons and following one shop earlier in the tenancy of Gopal Dhobi having came to be vacated on a compromise/consent decree, the said shop was being utilized by one of his other son Subhash for doing business in the sale and purchase of books. It was submitted that another son of the plaintiff, Bihari Lal was unemployed and the plaintiff required the tenanted shop in issue for Bihari Lal''s need to set up shop also for the sale and purchase of books and stationery. It was further stated that the defendant had this own shop at Kati Ghati, Alwar and had started business therein relating to repair/sale of cycles.

On service of notice, a written statement of denial was filed by the defendant. It was stated that the payment of rent had been made upto July, 1995 and that the plaintiff had eight (not seven) shops, out of which five shops were on rent, two were with the plaintiff''s sons including Bihari Lal whose putative need was at the foundation of the suit for eviction. It was submitted that Bihari Lal was already in business from another shop carved out of the gallery of the plaintiff''s residential house. Bihari Lal was stated also to be engaged in the business of publication of newspaper/magazines in various capacity including that of editor and therefore could not claim to be unemployed to warrant the bona fide and personal necessity for the tenanted shop in issue for his need. It was stated that in the event the suit for eviction were to be decreed and the defendant evicted, it would cause great hardship to the defendant vis a vis the plaintiff and on this ground also the suit for eviction was deserving of dismissal. It was finally stated that in fact Bihari Lal was not even a joint family member of the plaintiff, was leaving separately and his need if at all made out could not said to be bona fide and reasonable necessity of the landlord under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter ''the Act of 1950'').

On the pleadings of the parties, the trial court framed six issues which are as under:

(i) whether the defendant was in default in payment of rent?

(ii) whether the plaintiff bonafidely required the suit shop for his son Bihari Lal for his proposed business of sale of books and of stationery?

(iii) whether in case the eviction decree were not to be granted, the plaintiff would suffer comparative hardships as against the defendant?

(iv) whether on the grant of partial eviction decree the plaintiff''s need would be satisfied?

(v) whether the rent of the suit shop is Rs. 150/- p.m.

(vi) relief.

The plaintiff in support of his case produced six witness as PW-1 to PW-6 including himself (PW-1) and Bihari Lal (PW-2) for whom the bona fide and reasonable necessity was pleaded in respect of the tenanted shop in issue. In defence, seven witnesses were produced before the trial court. The plaintiff produced 9 Exhibits from Ex-1 to Ex-9 as the defendant produced 30 exhibits from Ex-A/1 to Ex-A/30.

On consideration of the matter and the evidence laid before it, no case of subletting by the defendant-tenant was found but the suit for eviction was decreed by the trial court under its judgment and decree dated 17.06.2011 on the ground of bona fide necessity inasmuch as even though the trial court also found default attributable to the defendant, he was given the benefit of first default under the extant provisions of the Act of 1950. Aggrieved of the judgment and decree dated 17.06.2011, the defendant filed a civil regular first appeal before the District Judge, Alwar. The matter was transferred to the court of the Additional District and Sessions Judge No. 2 for adjudication. Vide the impugned judgment and decree dated 27.11.2012, the appeal was dismissed and the judgment and decree dated 17.06.2011, passed by the trial court upheld. Hence this second appeal.

Ms. Anita Aggarwal, appearing for the defendant, submits that the judgments and decree of the courts below are liable to be quashed and set aside on the ground of their being vitiated by the evidence of the defendant and of the plaintiff not being properly construed and instead misread. It was submitted that the conclusions of the courts below with regard to the plaintiff''s bona fide and reasonable necessity of the tenanted shop in issue for setting up business for his son Bihari Lal were based on surmises and conjectures and cannot be sustained in law. It was then submitted that the impugned judgments and decree dated 17.06.2011 and 27.11.2012, passed by the trial court and the first appellate court were also liable to be quashed and set aside on misreading of documents more particularly Ex-9 wherefrom the courts below have wrongly held that the defendant was in occupation and use of a shop acquired by him in Kati Ghati, Alwar. Further, it was submitted that the learned trial court as also the appellate court had failed to address the effect of the factum of the decree in an earlier suit laid by the plaintiff against another of his erstwhile tenant one Gopal Dhobi in one of the shops owned by him whereunder in terms of a compromise decree dated 30.11.1993 passed by the trial court that shop came into possession of the plaintiff. It has been submitted that in the said suit, the plaintiff''s case was that he himself along with his sons Murari Lal and Bihari Lal required the shop in issue for their bona fide and reasonable necessity. Thereafter, in spite of the shop coming into possession of the plaintiff under the compromise decree in 1993, yet the said shop was not utilized by Bihari Lal or other plaintiffs therein but instead allowed to be exclusively used by another of the plaintiff''s son - one Subhash. It was submitted that this fact was material for the trial court to conclude that the need of Bihari Lal was not bona fide and reasonable, but merely concocted to deny the defendant the benefit of protection of the Act of 1950 on a got up ground. Counsel has also submitted that the learned trial court as also the appellate court have also failed to take into consideration the fact that from the evidence on record, it was established that Bihari Lal was running a photo-stat copying business out of a shop in the gallery leading to the plaintiff''s residential quarters, which shop was sufficient for the business purportedly sought to be carried out from the tenanted shop by Bihari Lal after its vacation. It was also submitted that the "gallery/shop from where Bihari Lal was doing photo-stat copying business opened on to the main road and ought to have been found sufficient for Bihari Lal''s need as agitated by the plaintiff." It has been further submitted that the learned trial court as also the appellate court ought to have concluded on a holistic reading of the evidence that the case set up on the ground of bona fide and reasonable necessity was merely a ruse to have the defendant evicted from the tenanted shop in issue inasmuch as in the course of his examination before the trial court, the plaintiff had aside of claiming the need of the tenanted shop in issue for his son Bihari Lal also, stated that he himself required the shop. It has been submitted that in this view of the matter, the courts below have came to a perverse finding that the tenanted shop in issue was required reasonably and bona fide by the plaintiff for setting up his son Bihari Lal''s business in stationery items/sale and purchase of books. It was submitted that contradictions and inconsistencies in the evidence of the plaintiff with regard to the bona fide and reasonable requirement of the tenanted shop ought to have entailed a finding that the need set up in the suit for the tenanted shop in issue was not bona fide, but mala fide. Counsel for the defendant further argued that even on the ground of default, the trial court as also the appellate court have came to a perverse conclusion with regard to the agreed rent for the tenanted shop @ Rs. 150/- p.m. It has been submitted that Ramesh Chand Gupta (DW-5) had stated before the trial court that the rental of the property in question was Rs. 50/- p.m. and the plaintiff in his reply to an application under Order 11 Rule 12 CPC had stated that the shop was first let out for Rs. 75/- p.m. without anything more, yet the trial court has concluded that the consistent evidence before it was that the rental was Rs. 150/- p.m. This, counsel submits, tantamounts to perversity owing to the overlooking of the evidence and the finding on the issue of rate of rent is also liable to be set aside by this Court in this second appeal.

Per contra, Mr. S.L. Sharma, appearing for the plaintiff, has submitted that the findings of the trial court are based on a holistic and proper appreciation of the evidence before it and have rightly been upheld by the appellate court. It has been submitted that as far as the suit against Gopal Dhobi was concerned, the said suit was disposed of on a compromise and thus it was not for the defendant to validly argue that the said suit was decreed for the bona fide and reasonable necessity inter alia of Murari Lal along with two others. No copy of the judgment/order disposing of the suit on the compromise has been filed. It was submitted that consequently non-utilization of the said shop by Bihari Lal who was only a co-plaintiff with his father (the owner) and his brother is no consequence. Further the said shop was being run by another son of the plaintiff, one Subhash. It was submitted that effectively the earlier suit in issue against Gopal Dhobi was for the bona fide necessity of the plaintiff and his family members. In these circumstances, the mere giving away of the shop to another son of the plaintiff and the brother of the Bihari Lal - one Subhash to set up business therein could not entail a situation where the plaintiff could be denuded of his right to seek eviction in accordance with law of the other shop tenanted with the defendant for the bona fide and reasonable necessity of his other son - Bihari Lal. Counsel has submitted that from the evidence on record including the evidence of the defence witnesses, it was established that the gallery from where Bihari Lal was conducting his photo-stat copying business was only about 2.5'' x 3'' wide. It was also come on record, counsel submits, that the said gallery was not in the main market consequent to which the business was meager. Counsel has further submitted that there was no evidence laid by the defendant before the trial court with regard to the regular employment of Bihari Lal with the newspaper or in editing a magazine. It was also submitted that the plaintiff is the best judge of the premises required for his or his family''s bona fide and reasonable necessity and it was not for the defendant and even for this Court to determine as to which of the premises owned by the plaintiff would be best suited for his familial business need. Counsel submits that aside of the above, Ex-9 - a letter of the Punjab National Bank, Branch Umrain, Alwar to the trial court - clearly indicated that the defendant had obtained a loan for his business in cycles for his shop at Kati Ghati, Alwar. Counsel has further submitted that Ex-P/4 (photo graphs) before the trial court duly proved also established the factum of the business of sale of cycles and their repair from the shop at Kati Ghati, Alwar. It has been submitted that in these circumstances, neither the trial court, nor the appellate court had committed any perversity in arriving at a finding for the plaintiff with regard to the bona fide and reasonable necessity for the tenanted shop in issue for his son Bihari Lal.

Heard the counsel for the defendant and the plaintiff. Also considered the judgment of the Hon''ble Supreme Court in the case of Deena Nath Vs. Pooran Lal, and Kashmir Singh Vs. Harnam Singh and Another, relied upon by the counsel for the defendant.

It is well settled that the finding of bonafide and reasonable necessity is a finding of fact and cannot be interfered with by this court in the exercise of its jurisdiction u/s 100 of the CPC unless such finding is perverse. "Perversity" as a legal concept has been universally understood as a finding/order made in conscious disregard of pleadings and evidence or findings not only unsupported by any evidence but also inconsistent therewith D. Macropollo and Co. (Private) Ltd. Vs. D. Macropollo and Co. (Private) Ltd. Employees'' Union and Others, A patent error in the findings of fact is required to be established before the finding can be impugned as perverse. Mere drawing adverse inferences or conclusions from the evidence on record against one of the party to the case by a court of fact cannot partake the character of perversity. A perverse finding has been held by the Hon''ble Supreme Court as one which is not only against the weight of evidence but altogether there-against. Contrarily, when reasons, even if not perfectly logical or cogent, are given for a conclusion on a point of fact by the final court of fact, no perversity can be found Parry''s (Calcutta) Employee''s Union Vs. Parry and Co. Ltd. and Others,

The facts on record indicate that the finding arrived at by the trial court as upheld by the appellate court cannot even remotely be stated to be perverse. In holding that the plaintiff required to tenanted shop bona fide, the courts below cannot remotely be stated to have acted on no evidence. Weightage given to a parties evidence by court of fact can never be construed as a question of law. In my considered opinion, not only the plaintiff had been able to prove to the requisite level of preponderance of probability that the tenanted shop was required by the plaintiff for the reasonable necessity of his son Bihari Lal for setting up his business inter alia of dealing in sale and purchase of the books/stationery but also established that the defendant had acquired an alternative shop for his business at Kati Ghati, Alwar. It was also established that Bihari Lal, the plaintiffs son, was unemployed and ran subsistence level business of photocopying from a small space about 2.5'' x 3'' wide off the main market and needed to do business of sale and purchase of books/stationery from the tenanted shop located in the main market predominantly for the business contemplated.

In Deena Nath''s case (Supra), the Hon''ble Supreme Court held that in recording a finding on the question of the bona fide requirement of the land, the court of fact has to bear in mind the governing statutory provision and where the finding of fact with regard to bona fide requirement was arrived at without reference to the mandate of the statutory provision in issue, such finding could be impugned in a Section 100 CPC appeal as one de hors the mandate of law and thus of an issue partaking the character of a substantial question of law. In the said case before the Hon''ble Supreme Court, the court of fact had overlooked the requirement of Section 12(1)(f) of M.P. Accommodation Control Act, 1961 and not considered question of the bona fide requirement of the landlord with reference to his possession of two vacant rooms. It is obvious that Deena Nath''s case (supra) turned on its own facts. In the present case, the courts below have found that the 2.5'' x 3'' wide gallery/shop in the residential quarter of the plaintiff was wholly inadequate to be used as a regular shop for business of the sale of books/stationery. There was no vacant shop with the landlord-plaintiff to provide his son Bihari Lal an adequate shop to do the business contemplated. The reference to Deena Nath''s case (supra) is thus inapposite to the present case.

The case of Kashmir Singh (Supra) relied upon by the counsel for the defendant mere details as to what the phrases "substantial question of law" in Section 100 CPC connotes. The principles enunciated are well taken. In fact based thereon the appeal deserves dismissal at the admission stage as no question of law what of substantial question of law is at all made out in this appeal.

The courts below have come to a concurrent finding of fact on the plaintiff-landlord''s bona fide and reasonable necessity. The Hon''ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, has held that the concurrent findings of facts cannot be disturbed by the High Court in the exercise of the powers u/s 100 CPC.

Submissions of the counsel for the appellant-defendant on the courts below holding that the contracted monthly rate of rent for the tenanted shop was Rs. 150/-.

Counsel for the defendant-appellant has vehemently submitted that the courts below have come to an absolutely perverse finding in holding that the agreed rent between the plaintiff and the defendant in respect of the tenanted premises was Rs. 150/- per month. It has been submitted that even while the plaintiff in the suit for eviction set up a case that the rent for the tenanted premises was Rs. 150/- per month from the very inception and did indeed subsequently support that case in evidence before the trial court, yet in the reply to an application moved by the defendant under Order 11 Rule 12 CPC R/w Section 151 CPC during the pendency of the suit, seeking the discovery of the rent note in respect of the tenanted premises before the determination of rent by the trial court, the plaintiff vide his reply thereto filed on 19.3.1996 had stated that only an oral agreement was at the foundation of the tenancy and that the rent was Rs. 75/- p.m. It has been submitted that the case of the plaintiff with regard to the rate of monthly rent was thus on the face of it, wholly inconsistent and this aspect of the matter has been completely overlooked by the courts below. Counsel has further submitted that the defendant in his written statement and through his witnesses'' evidence had stated that the rent for the tenanted premises was Rs. 50/- p.m. It was submitted that in this state of facts more particularly the contradictions in the case set up by the plaintiff, the courts below have committed perversity in coming to the finding of rent of tenanted premises being Rs. 150/- p.m. as the admission of the plaintiff of the rent being Rs. 75/- p.m. has not been taken into reckoning. This, counsel for the defendant submits, constitutes a question of law for the consideration of this court in the second appeal.

Counsel for the plaintiff-respondent Mr. S.L. Sharma in the facts of the case and the state of evidence before the courts below on the question of rate of monthly rent for the tenancy in issue has stated that in the circumstances obtaining he would not seek to support the findings of the courts below that the rate of monthly rent on the tenanted premises was Rs. 150/- p.m. He submits that the plaintiff would have no objection in the event the rate of monthly rent were to be held at Rs. 75/- as stated by the plaintiff in his reply to the application under Order 11 Rule 12 CPC R/w Section 151 CPC filed by him on 19.3.1996.

Consequent to the facts detailed hereinabove on the question of rate of monthly rent in respect of the tenancy in issue, more particularly the concession of the counsel for the plaintiff, in my considered view a substantial question of law as to whether the findings of the courts below of the monthly rent of the tenanted premises being Rs. 150/- is perverse - is indeed made out. This question however need not detain this court in view of the concession of the counsel appearing for the respondent-plaintiff. The findings of the courts below on the question of rate of monthly rent being Rs. 150/- is set aside and it is held that the rate of monthly rent for the tenanted premises was Rs. 75/-. The rights of the parties on the question of payment/refund would be determined with reference thereto. Consequently, this second appeal u/s 100 CPC is partly allowed and disposed of as under:

that the respondent-plaintiff as the landlord would be entitled to a judgment and decree of eviction against the appellant-defendant (tenant) in respect of the tenanted premises on the ground of bonafide and reasonable necessity. Possession of the tenanted premises be handed over by the defendant-tenant to the plaintiff-landlord forthwith;

However, the judgments and decrees of the courts below on the issue of rate of monthly rent would stand set aside and it is held that the rate of monthly rent for the tenanted shop in issue would be Rs. 75/- p.m. and not Rs. 150/- p.m. The rights of the parties in this regard would be determined on this finding/direction by this Court. Decree be prepared accordingly.