Mahendra Kumar vs Gheesu Lal

Dr. Vineet Kothari, J.—The appellant/defendant/tenant, Mahendra Kumar, adopted son of late Sh. Ramchandra (original tenant) having lost the legal battle before the two courts below in the eviction suit has preferred the present second appeal under Section 100 of Code of Civil Procedure, 1908, assailing the impugned judgment and decree dated 12.12.2011 passed by learned Additional District Judge, Sujangarh (Churu) in First Appeal No. 18/07 (5/91) (32/94)-Ramchandra S/o. Birdichand (D) through LR Mahendra Kumar v. LR''s of Gheesulal, whereby the first appeal filed by the appellant/defendant was dismissed while affirming the judgment and decree dated 13.11.1990 passed by learned Munsif Magistrate and Civil Judge First Grade, Sujangarh, District: Churu, in Civil Original Suit No. 15/1985-Gheesulal S/o. Asulal V. Ramchandra S/o. Birdichand, filed by the plaintiff/landlord seeking eviction of tenant from the suit premises (two rooms in the form of "Malia") situated at Sujangarh, District Churu, was decreed.

The plaintiff/landlord, Gheesu Lal, sought eviction of the suit premises which was let out to the original tenant, Ramchandra at a monthly rent of Rs. 42/-, on the ground of reasonable and bonafide necessity for expansion of business of grocery and starting business for his sons. The plaintiff served a notice on the defendant, however, instead of vacating the suit premises, the defendant sent him a cheque of Rs. 1470/- towards part payment of rent, which was returned. The plaintiff thus prayed for granting of eviction decree and arrears of rent as well.

The defendant/tenant filed his written statement while denying the factum of default in payment of rent and even the bonafide need of the suit premises. The defendant also averred that the sons of the plaintiff are working outside, therefore, the plaintiff has no bonafide need of the suit premises. As far as default of payment, the defendant/tenant in his written statements submitted that although rent was tendered by him, however, the same was refused to be accepted by the advocate of the plaintiff. The defendant/tenant further averred that the tenant is running a small shop measuring 6'' x 7'' of Fancy ("Manihari"), therefore, the suit premises is being used by him as godown and, if the eviction decree is granted, hardship will be caused to him only in comparison to the plaintiff/landlord.

The learned trial court after evaluating the entire evidence led by the parties vide the judgment and decree dated 13.11.1990 decreed the eviction suit filed by the plaintiff/landlord. The relevant findings of the learned trial court are quoted herein below:--

The first appeal filed by the appellant/defendant assailing the judgment and decree of the learned trial court was dismissed by the learned appellate court of Additional District Judge, Sujangarh (Churu) vide judgment and decree dated 12.12.2011 while concurring with the findings of the learned trial court. The relevant findings of the learned lower appellate court reads as under:--

Mr. Mahesh Joshi, learned counsel for the appellant/defendant submitted that the findings of both the courts below are not sustainable as the courts below have considered irrelevant evidence and ignoring the relevant evidence of the appellant/defendant and while giving undue weightage to the evidence of the plaintiff. He further submitted that the respondent/plaintiff filed an application under Order 6 Rule 5 CPC in which he deliberately not disclosed as to whether he is having four sons or six sons and has not disclosed as to for whose business need the suit shop is required. According to learned counsel for the appellant/defendant, the trial court erred in partly allowing the said application directing the plaintiff to show the name of two sons, for whose bonafide and reasonable necessity, the eviction was sought. He further submitted that sons of the plaintiff were working at some other place and so also the plaintiff himself was having alternative shop measuring 40'' x 20'' in which he can conveniently establish business for his sons and for himself as well. So far as the issue of comparative hardship is concerned, the learned counsel for the appellant submitted that since the defendant/tenant is running a small shop measuring 6'' x 7'' of fancy ("Manihari"), therefore, the suit premises is being used by him as godown and, if the eviction decree is granted, hardship will be caused to him only in comparison to the plaintiff/landlord. He, therefore, submitted that substantial question of law arises in the present second appeal and the eviction decree, concurrently granted by the courts below, deserves to be reversed.

On the other hand, Mr. Rajesh Joshi, learned counsel for the plaintiff/respondents submitted that the eviction decree concurrently granted by the courts below being findings of facts are binding on this Court and no substantial question of law arises for consideration in the present second appeal and the second appeal deserves dismissal. He further submitted that the both the courts below have granted the eviction decree on the ground of bonafide necessity, default in payment of rent and considering the issue with respect to comparative hardship.

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 in the present second appeal under Section 100 of CPC. 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 sons, whether such business should be started at "X" or at "Y" place, also lies with the landlord to decide, and it not for the tenant to dictate in this regard that an alternative accommodation was available to the landlord, which was more suitable for such need.

This Court in the case of Denzil Nagrath v. LRs. of Balwant Singh reported in 2011(3) DNJ (Raj.) 1217 has been 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 bonafide 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 bonafide 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." 10. 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 bonafide 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 bonafide 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 appellants/defendants/tenants 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. 1,000/- 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 appellants/defendants/tenants 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 appellants/defendants/tenants 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.