Dwarka Das and Others vs Chuni Lal and Another

D.C. Dalela, J.—The plaintiff-respondents preferred a suit for eviction, against the defendant-appellants on the ground of default in the payment of rent, subletting, and personal and bona fide necessity of the suit premises for his own and his son. The learned trial Court as well as the learned first appellate Court decided the issues regarding the default and subletting in favour of the defendant-appellants. The issue regarding personal and bona fide necessity has been decided in favour of the plaintiff-respondents. Considering the question of comparative hardship, the learned trial Court ordered only partial eviction from the suit premises by directing to divide it into two parts and to give one part to the plaintiffs. On appeal by both the sides, the learned first appellate Court upheld the personal and bona fide necessity of the suit premises in favour of the plaintiffs and after considering the comparative hardship, reversed the order of partial eviction and directed the eviction from the entire suit premises. Feeling aggrieved thereby the defendant-appellants have preferred this second appeal.

I have heard the arguments of both the sides.

There is concurrent finding that there is personal and bona fide requirement of the suit premises by the landlord-plaintiff-respondents. Both the Courts below, after appreciating the evidence, have decided the issue No. 5 relating to the bona fide and personal necessity, in favour of the plaintiffs. The question relating to the personal and bona fide requirement of the plaintiffs does not give rise to any substantial question of law. In thee case of Ram Prasad Rajak Vs. Nand Kumar and BOrs. and Another, Hon''ble the Supreme Court has held as under:--

"..... the only other question relates to the bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence..... The High Court made an attempt to reappreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement..... The High Court has acted beyond its jurisdiction in appreciating the evidence on record."

In the case of Sheel Chand Vs. Prakash Chand, , the question formulated as to whether the finding, relating to bona fide requirement of the landlord, of the Courts below is vitiated due to irrelevant consideration and not under law, has been held by Hon''ble the Supreme Court, to be

"not even a question of law, let alone a substantial question of law".

In the case of Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar, Hon''ble the Supreme Court has held:--

"The High Court, it is well-settled, while exercising jurisdiction u/s 100, CPC cannot reverse the findings of lower appellate Court, on facts, merely on the ground that on facts found by the lower appellate Court another view was possible."

Again, in the case of Dr. Ranbir Singh Vs. Asharfi Lal, Hon''ble the Supreme Court has held that interference with the findings of fact, on grounds of erroneous appreciation of evidence by the Courts below, is not sustainable u/s 100, CPC.

As held in the case of Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, , the landlord need not indicate the precise nature of business, which he intended to start in the premises.

As held in the case of Madhukar v. Ramesh (1996) 2 RCR 96, by a Division Bench of Madhya Pradesh High Court, it is not necessary that the need to start business should exist on the date of the suit. Landlord can file a suit in respect of his requirement, which was to arise in near future. Knowing that between the institution of suit and orders of the Apex Court years pass, it would be as good as repealing the provisions of eviction on the ground of bona fide need, if Courts insist on landlord proving the present need as against the prospective but certain need.

In my opinion, the concurrent finding of both the Courts below, regarding the bona fide requirement of the suit-premises by the plaintiff-respondents, does not call for any interference, because, the findings of the facts, recorded by the two Courts below, are based on the appreciation of evidence and there is no perversity or illegality therein.

The learned first appellate Court being the final Court of facts, has, after due consideration of evidence and material on record, come to the conclusion on facts that there would be greater hardship of the plaintiff-respondents, in comparison to the defendant-appellants, if the eviction is not ordered and that partial eviction would put the plaintiff-respondents, to extreme difficulty and hardship, and as such, partial eviction is neither proper, nor warranted. Accordingly, it directed for the eviction from the entire suit-premises. The findings, reached by the learned first appellate Court in this behalf, are based on proper appreciation of evidence and material on record. It has not ignored the weight of preponderating circumstances and evidence. Us decision in this regard, does not seem to be influenced by irrelevant matters. There does not seem to be any perversity or illegality in these findings. No interference is called for in this second appeal u/s 100, CPC. The learned first appellate Court has set aside the finding of the learned trial Court, on Issue No. 2 and has held that the defendant-firm, M/s. Jamnalal-Amritlal & Co., took the premises on rent. It is true that in the first appeal, the Issue No. 2 was not challenged, and yet, the learned first appellate Court reversed the finding of the learned, trial Court on Issue No. 2. Order 41,Rule 33, CPC provides that the appellate Court shall have power to pass any decree and make any such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although, such respondents or parties may not have filed any appeal or objections.

In the case of K. Muthuswami Gounder Vs. N. Palaniappa Gounder, Hon''ble the Supreme Court has held that Order 41, Rule 33, enables the appellate Court, to pass any decree or order, which ought to have been made and to make further such order or decree as the case may be, in favour of all or any of the parties, even though, the appeal is as to part only of the decree, and such party or parties may not have filed an appeal. The rule enables the appellate Court, to pass any order/decree, which ought to have been passed. The power, though discretionary, should not be declined to be exercised, merely on the ground that the party has not filed any appeals. The finding of the learned first appellate Court on Issue No. 2, therefore, cannot be said to be illegal or without jurisdiction.

Upon consideration of the submissions, made by both the sides at Bar, I find that no substantial question of law emerges in this second appeal, and it is, therefore, dismissed.

The learned counsel for the defendant-appellants, has, in the end, sought reasonable time to vacate the suit-premises. I think that the ends of justice would be met in the case, if six months'' time is given to the defendant-appellants, to vacate the suit-premises. Accordingly, it is directed that the defendant-appellants shall vacate the suit-premises and hand its vacant possession over to the plaintiff-respondents, within six months from today, subject to furnishing of the usual undertaking by the appellant, before the trial Court within two weeks.