Firm Murlidhar Chandra Kishor vs Sunder Lal

Dr. Vineet Kothari, J.—The instant second appeal has been filed by the appellant/defendant/tenant, Firm Murlidhar Chandra Kishor through its partner Harish Kumar S/o. Sh. Murlidhar, aggrieved by the concurrent decree of eviction in favour of respondent/plaintiff in respect to suit shop situated at K.E.M. Road, Bikaner, a prominent road of Bikaner City, which was initially let out to the defendant/tenant for a rent of Rs. 200/-.

The suit was filed in 1982 by the plaintiff- Sunderlal, being Civil Original Suit No. 469/2001 (473/1982)- Sunder Lal v. Firm Murlidhar Chandra Kishore, has been decreed by the learned trial court vide judgment and decree dated 05.05.2007, after 25 years of trial inter-alia on the ground of personal and bona fide necessity of the landlord and his family members. The relevant findings on the said Issue No. 2 in this regard of the learned trial court are quoted herein below for ready reference:--

The first appeal filed by the defendant/tenant also came to be dismissed by the learned appellate court of Additional District Judge No. 1, Bikaner, in Appeal No. 52/2007, on 24.11.2014, affirming the findings of the bona fide need of the landlord on the ground of personal bona fide necessity in the following manner:--

The appellant/defendant/tenant being aggrieved by the concurrent judgment and eviction decree of the two courts below has filed the present second appeal in this Court on 21.01.2015, which has come up for admission today. On Caveat, Ms. Varsha Bissa has appeared on behalf of plaintiff/respondent/landlord.

Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Sunil Beniwal, learned counsel for the appellant/defendant submitted that the learned trial court had abruptly closed the defendant''s evidence on 17.10.2003 and upon a challenge laid to such closure of evidence, this Court while deciding the writ petition being SBCWP No. 4270/2005- M/s. Murlidhar Chandra Kishore v. Additional Civil Judge (Jr. Division) and Judicial Magistrate No. 2 Bikaner and Anr., had directed the defendant to raise these points before the first appellate court. The order passed by a coordinate bench of this Court in the aforesaid writ petition on 20.07.2005 is quoted herein below for ready reference:--

"S.B. Civil Writ Petition No. 4270/2005 M/s. Murlidhar Chandra Kishore Vs. Addl. District Judge No. 2, Bikaner and Ors. Date of Order:- 20.7.2005

Hon''ble Mr. Prakash Tatia, J.

Mr. DD Chitlangi, for the petitioner.

...

Heard learned counsel for the petitioner.

The petitioner is aggrieved against the order dated 14.7.2005 by which the trial court rejected the petitioner''s application.

Looking the facts of the case that petitioner''s advocate himself closed the evidence of the petitioner and, thereafter, an application has been filed by another advocate with the averment that the advocate closed the evidence of the petitioner on influenced of the defendants advocate.

I do not find that such type of allegations can be inquired into by this Court while exercising jurisdiction under Article 227 of the Constitution of India, which are supervisory jurisdiction of this Court.

In view of the above, the writ petition of the petition is dismissed. However, petitioner will be free to raise his all objections in appeal in case any occasion arises for the petitioner for doing so."

They have, however, submitted that the appellate court failed to decide the said issue when the defendant/appellant asked for an opportunity to lead evidence before the learned appellate court and even an application was filed by the defendant/appellant under Order 41 Rule 27 CPC which was rejected by the learned appellate court; and therefore, the eviction decree deserves to be reversed and it gives rise to a substantial question of law as to whether the appellate court was justified not remanding the case back to the learned trial court for allowing the defendant to lead evidence before it. They relied upon the decision of this Court in the case of Nimb Singh Vs. Dashrath--> . On merits, they urged that the landlord, Sunder Lal, for whose need the eviction was sought, was continuing to carry on the business as a partner with his brothers in the firm known as M/s. Manmal Bhanwarlal, in a shop situated just opposite the suit shop and, therefore, there was no real bona fide need of the landlord. The learned counsel for the appellant, therefore, pressed for admission of the present second appeal.

On the other hand, Ms. Varsha Bissa, learned counsel for the respondent/plaintiff/landlord submitted that the findings of bona fide need of the landlord are pure findings of facts as held by this Court in the catena of judgments and no substantial question of law is arising in the present second appeal. Refuting the claim of trial court closing the evidence of the defendant/tenant abruptly, she produced the certified copies of the order-sheets of the learned trial court and urged that on 3-4 occasions, i.e. 30.05.2003, 25.07.2003, 05.09.2003 and 17.10.2003 despite opportunities specifically given for leading the evidence, the defendant/tenant failed to adduce evidence and producing any witnesses before the learned trial court with the sole object of only delaying the trial, which was already highly belated since 1982. The relevant order sheets dated 30.05.2003, 25.07.2003, 05.09.2003 and 17.10.2003 of the learned trial court are also quoted herein below for ready reference:--

She thus submitted that it cannot be said that the defendant was deprived of the opportunity to lead evidence before the learned trial court. She also read before the Court the relevant extract of the appellate court judgment rejecting the application under Order 41 Rule 27 CPC filed by the defendant, and submitted that even though the said application was rejected by the learned first appellate court, even though only after considering the documents sought to be produced along with application under O. 41 R. 27 CPC, and thus on merits of the such later evidence also, the courts below have found that there was no adequate defence to refuse the eviction on the ground of personal and bona fide necessity of the landlord. The relevant portion of the appellate court order rejecting application under Order 41 Rule 27 CPC is also quoted herein below for ready reference:--

Ms. Varsha Bissa, learned counsel for the respondent/plaintiff also urged that the contention of the learned counsel for the appellant, Mr. R.K. Thanvi, Sr. Advocate, that the landlord, Sunderlal, continued to do business as a partner in the firm M/s. Manmal Bhanwarlal, is untenable because the partnership was dissolved and the partnership of Sunderlal was removed way back in the year 2007 itself and since in the partition between the brothers the suit shop only had come in the share of the landlord, Sunderlal, which partition took placed way back in the year 1972 i.e. on 20.10.1972. Therefore, the personal and bona fide necessity of the landlord was well established and the eviction decree has rightly been given by both the courts below and no substantial question of law arises in the present 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 no substantial question of law arises in the present second appeal filed by the appellant/defendant/tenant under Section 100 of CPC. The defendant was given sufficient opportunities to lead evidence but failed to do so. To make up the said lacunae, he even tried his recourse to O. 41 R.27 CPC but that also failed, as the appellate court did not find the additional evidence relevant at all to be taken on record and the said application was also rejected and rightly so. The trial was already much delayed and repeated efforts of tenant to file writ petitions under Article 227 of the Constitution of India which too were rejected, only shows that his efforts were only to somehow delay the trial. It is well settled that the landlord is the best judge indicating his needs and for showing such bona fide and reasonable necessity, he has 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 his own business, and the discretion also lies with the landlord to decide which shop will be more suitable to him, and it is not for the tenant or even the court to dictate terms in this regard that an alternative accommodation could be available to the landlord, which was more suitable for such need or that he was already working as a partner with his brother, which in fact stood dissolved and thus there was no need for himself to start his own business.

This Court in the case of Denzil Nagrath v. LRs. of Balwant Singh reported in 2011(3) DNJ (Raj.) 1217 has held as under:--

"Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bona fide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff''s family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross-examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bona fide need of the landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit." 12. This Court in the case of LR''s of Prakash v. Poornima (SBCSA No. 132/2009, decided on 11.05.2011), in which this Court while emphasizing that landlord is the best judge of his needs, held as under:--

"5. Learned counsel for the respondent-plaintiffs, Mr. S.N. Pungalia strongly opposed these submissions and urged that no substantial question of law arises in the present second appeal and the finding of facts returned by the courts below are based on cogent and relevant evidence and the second appeal deserves to be dismissed as the bona fide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon''ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bona fide need for his business place and from the facts found by the courts below it was clear that the very source of livelihood of plaintiffs was the STD PCO Booth, which is presently run under the staircase and they need bigger premises for carrying out this business.

Having heard the learned counsels and upon perusal of the impugned orders passed by learned courts below, this Court is of the opinion that no substantial question of law arises for determination by this Court and the present second appeal is liable to be dismissed and same is accordingly dismissed."

Accordingly, the present second appeal of the appellants/defendants/tenant, is liable to be dismissed and the same is hereby dismissed. No order as to costs.

The appellant/defendant/tenant shall hand over the peaceful and vacant possession of the suit premises to the plaintiff/appellant on or before 30.09.2015 and shall pay mesne profit @ Rs. 2,000/- per month commencing from April, 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 plaintiffs/respondents, also and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiffs/respondents, within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/defendant/tenant shall also not sub-let, assign or part with the possession of the suit shop or house 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 if it is so done, the same would be treated as void and such third parties will also be bound by this decree. The appellants/defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months from today, and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the plaintiffs/respondents on or before 30.09.2015 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the plaintiffs or the owner of the suit property 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 the parties concerned forthwith.