Chiranjilal vs Purshottam

Vineet Kothari, J.—Though the original plaintiff, Chiranjilal Shrimali S/o. Sh. Jainarayan (who is now represented through his legal heirs) lost before the two courts below in the present suit for eviction, the present second appeal is being filed by the plaintiffs/appellants under Section 100 of CPC, 1908, aggrieved by the judgment and decree dated 04.04.2013 passed by learned Additional District Judge, Barmer, in Civil Appeal No. 6/2007-LR''s of Chiranjilal Shrimali Vs. Purshottam Khatri, whereby the first appeal filed by the appellants/plaintiffs/landlord was dismissed while upholding the judgment and decree dated 23.02.2007 passed by learned Additional Civil Judge (Sr. Division), Barmer, in Civil Original Suit No. 3/2002-Chiranjilal Vs. Purshottam Khatri, whereby the suit filed by the appellants/plaintiffs seeking eviction of the suit shop on the ground of personal and bonafide need, was dismissed.

The plaintiff, Chiranjilal, filed suit for eviction with respect to suit shop situated at Station Road, Barmer, which was let out to the defendant/tenant, Purshottam at a monthly rent of Rs. 365/- per month. The plaintiff/landlord sought eviction on the ground of personal and bonafide need of the suit shop for starting business of stationery for his eldest son, namely, Manish. A notice dated 28.02.2000 was also served on the respondent/defendant handing over the peaceful and vacant possession of the suit shop, however, the defendant when did not vacate the suit suit, the suit for eviction was filed by the appellant/plaintiff on 01.06.2000.

The suit was contested by the defendant/tenant, Purshottam Khatri, by filing his written statement while denying the bonafide necessity of landlord. The defendant/tenant further stated that there are no educational institutions in the nearby area for starting the business of stationery in the suit shop by the son of the plaintiff, namely, Manish. The plaintiff has other alternative shop, which is just half kilometer away from the disputed shop, which shop however was let out by them to one M/s. Suhag Jewellers in the year 1996 i.e. 4 years prior to filing the said suit and if at all there was any need of the suit shop, the same could be satisfied by that shop which was let out to M/s. Suhag Jewellers. The defendant/tenant also averred that the son of the plaintiff, for whose business need the suit shop was sought to be vacated, is minor and he has no experience for doing such business. The defendant/tenant thus prayed for dismissal of the suit.

Both the parties led their respective evidence oral as well as documentary to prove their cases.

The learned trial court of Addl. Civil Judge (Sr. Division), Barmer, after hearing the parties proceeded to dismiss the suit filed by the appellant/plaintiff vide judgment and decree dated 23.02.2007 in the following manner:-

The first appeal filed by the appellants/plaintiff also came to be dismissed by the learned lower appellate court of Additional District Judge, Barmer, vide judgment and decree dated 04.04.2013 in the following manner:-

After hearing the learned counsel for the parties, the following substantial question of law was framed on 20.01.2015 for consideration by this Court:-

"Whether the learned Courts below were justified in dismissing the suit for eviction of the plaintiff-appellant which was claimed on the basis of bona fide necessity of the landlord and his family members? 8. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel for the appellants/plaintiff/landlord argued that both the courts below have grossly erred in holding that in view of alternative accommodation (shop) available to the appellant/plaintiff, which was let out in the year 1996 to one M/s. Suhag Jewellers, and one shop was lying vacant on account of death of tenant, namely, Mishrimal, the bona fide need claimed by the plaintiff for starting business of stationery for his son, namely, Manish, was not just and reasonable in the opinion of the Court which the learned courts below have substituted its own opinion for the landlord, which is contrary to the settled legal position in view of catena of judgments of this Court and the Hon''ble Apex Court. He further submitted that neither the defendant/tenant can dictate the terms to the landlord about the adjustment of his requirements of the business, nor the court can substitute its own opinion while giving such findings. He, therefore, prayed for reversal of these findings, which are perverse and grant of decree of eviction.

On the other hand, Mr. Shreyansh Mardiya, learned counsel for defendant/tenant vehemently opposed these submissions and argued that the findings of facts arrived at by both the courts below are binding on this Court and the same cannot be said to be perverse in any manner and the present second appeal deserves to be dismissed. He further submitted that two shops were not only available for satisfying the business needs of the stationery shop for his son Manish (P.W. 1), who was weak in studies and passed only 10th standard was doing the computer course and graduation later on and the shop in question which was given to other tenant, viz. M/s. Suhag Jewellers in the year 1996; and at that time the original plaintiff (late Sh. Chiranjilal) had already retired and, therefore, both of them could very well start their business in the said shop, which was let out to said Suhag Jewellers, which was only half kilometer away from the suit shop and in that area, there various educational institutions were also available, where the business of stationery could be established. He further argued that a room constructed on the first floor ("Malia") was also let out to one Sh. Kanhaiyalal, Advocate, which room could be used by the plaintiffs as godown for the stationery business, as such, but there was no bona fide necessity of the suit shop, and if really there was such necessity, the room constructed on the first floor could not be let-out to Advocate Sh. Kanhaiyalal, which could be used as godown or storing of keeping various items, which they could very well keep in the first floor room available to them. The said room was let out to the Sh. Kanhaiyalal just 3-4 month prior to filing of the present suit in the year 2000 and, therefore, the findings arrived at by the courts below are just and proper and same do not require any interference by this Court in the present second appeal.

Having heard the learned counsel for the parties and upon perusal of judgments and decree of the courts below, this Court is of the considered opinion that while weighing the evidence produced before the trial court and re-appreciated by the first appellate court, the courts are not permitted to substitute their own opinion about the requirements and its satisfaction of the landlord/plaintiff. It is well settled that the landlord is the best judge for the same and for showing such bona fide and reasonable necessity, he as to only establish that there is a need of the suit shop either for himself or for his family members, who may need the suit shop for setting up of business for his son, whether such business should be started at "X" or at "Y" place, also lies with the landlord to decide, and it not for the court to suggest that such business could have been started else where or that an alternative accommodation was available to the landlord, which was more suitable for such need.

Both the courts below have been suggesting such alternative accommodation to the landlord, through erroneously and by substituting their own opinion as to how such stationery business of the landlord and his son, Manish, could have been started in the alternative accommodation, which was let out to Suhag Jewellers about four years (in the year 1996) prior to filing of the suit in the year 2000 and which was half kilometer away from the suit shop in question, where the plaintiff wanted to start the business with his son Manish. There was no dispute of the fact that Manish had not been able to make good grade in 10th standard and, therefore, the possibility of further higher or professional education was not there for him and even though he might be doing some computer course, it could be to make a person more suitable for starting the stationery business in the suit shop ad-measuring 7'' x 10'' of size, in which the defendant/tenant is carrying on the business of repairing of watches. Admittedly, in the area in question where the suit shop is situated, there were various shops of stationery items and various educational institutions were also there in the nearby vicinity and an employed young son was to be settled by the landlord. Asking the plaintiff/landlord not to let out the shop to Suhag Jewellers in the year 1996, where he could have started his business of stationery, that too after four years of the shop was already let out to said tenant, is nothing but directing the landlord to adjust his business needs as per convenience of the tenant and the courts cannot substitute their own wisdom or opinion, which is not permitted in law.

Another point where the courts below have erred is presuming that the room constructed on the first floor, which was let out to Sh. Kanhaiyalal, Advocate, could also be used for stationery business godown along with suit shop in question. The courts below are not supposed to become either landlord or tenant themselves and then, weight the pros and cons so minutely of the family requirements of the landlord/plaintiff. Since the factors available for seeking eviction were duly established by the landlord for business needs of his son, namely, Manish, availability of the shop in question, where stationery market existed in the same area. It did not lie any further with the courts below to make any suggestions to the landlord or substituting their own opinion about the bona fide needs real and reasonable cause for seeking the eviction. This is the perversity in the findings of the courts below and even though it might be concurrent findings of the courts below it gives rise substantial question of law as framed by this Court, as above.

From the material available on record, this Court is satisfied that the courts below have erred in substituting their own opinion about the reasonable and bona fide requirement of the plaintiff/landlord for setting up business of stationery for his son and refusing eviction decree on such assumed availability of alternative accommodation for the landlord and his son. The findings of facts being perverse, therefore, deserves to be reversed and the present second appeal filed by the appellants/plaintiffs deserves to be allowed while answering the substantial question of law framed above in favour of landlord.

Accordingly, the present second appeal of the appellant/plaintiff/landlord is accordingly allowed, while answering the aforesaid question of law framed above in favour of appellant/plaintiff. No order as to costs.

The respondent/defendant (tenant) shall hand over the peaceful and vacant possession of the suit property viz. shop in question to the appellants/plaintiffs/landlord on or before 29.02.2016 and shall pay mesne profit @ Rs. 1,000/- per month commencing from March, 2015 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 for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent/defendant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiffs/landlord within three months from today, otherwise the same will bear interest @ 9% per annum. The defendants/tenants 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 respondent/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 appellants/plaintiffs/landlord on or before 29.02.2016 from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellants/plaintiffs 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.