Mahendra Singh vs Motilal and Others

Dr. Vineet Kothari, J.—The appellant/plaintiff/landlord, Mahendra Singh S/o. late Sh. Major Raghunath Singh Chawda, (legal representation of original plaintiff/landlady Smt. Rampyari) has preferred this second appeal assailing the impugned judgment and decree dated 30.05.2012 passed by learned Additional District Judge No. 1, Udaipur, in Civil Appeal No. 44/1999 - Motilal Vs. LR''s Smt. Ram Kumari (Sic! Rampyari), whereby the appeal filed by the defendant/tenant was allowed, reversing the judgment and eviction decree dated 26.02.1998 passed by learned Civil Judge (Jr. Division), City (South), Udaipur, in Civil Original Suit No. 405/93. Smt. Ram Pyari Vs. Motilal, whereby the suit filed by the appellant/plaintiff for eviction was decreed on the ground of reasonable and bona fide necessity of the landlady.

The original plaintiff/landlady, Smt. Ram Pyari, filed a suit for eviction against the original defendant/tenant, Motilal, to whom the suit shop situated in Ganesh Ghati, Udaipur, was let out on 01.06.1973 under oral tenancy at a monthly rent of Rs. 275/-. The suit shop was being used by the defendant/tenant as a godown. According to the plaintiff/landlady, the defendant/tenant made material alternations in the suit property without prior permission of her. The plaintiff/lady further averred in the plaint that the suit shop is required for starting the business for his son, namely, Mahendra Singh, (appellant herein) of painting and handicrafts as the locality where the suit shop is situated is a place where tourists used to visit. The defendant/tenant is also having an alternative shop near clock tower. Thus, the plaintiff/landlady filed the suit for seeking eviction on the ground of bona fide necessity for his son.

The defendant/tenant contested the suit by filing a written statement, in which, the defendant asserted that defendant/tenant admitted the tenancy, however, denied other averments as averred in the plaint with regard to material alternations in the suit shop and bona fide need of the suit shop for starting business by her son. It was further averred by the defendant/tenant that one shop which was let out to one Akbar Ali, was got vacated and in the said vacant shop the son of the plaintiff could start his business, however, the said suit was again let out to one K.K. Jewellers. The defendant/tenant, therefore, prayed for dismissal of the suit.

The learned trial court as per pleadings of the parties framed eight issues. In order to prove the case, the plaintiff examined four witnesses and in documentary evidence got exhibited 11 documents. From the side of the defendant/tenant, the defendant examined five witnesses also also exhibited certain documents.

The learned trial court after hearing the parties, decreed the suit filed by the plaintiff/landlady vide judgment and decree dated 26.02.1998, Smt. Ram Pyari, in the following manner:-

The first appeal filed by the appellant/defendant/tenant assailing the judgment and eviction decree of the trial court, came to be allowed on 30.05.2012 while reversing the decree of eviction in the following manner:-

Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel appearing on behalf of appellant/plaintiff (landlord) submits that the learned lower appellate court below has seriously erred in allowing defendant/tenant''s appeal and refusing to grant decree of eviction. He submitted that the landlord is the best judge of his needs and the learned lower appellate court has erred in giving the finding that the plaintiff/landlord could have used another shop, the vacant possession of such shop was received by the landlord from one Akbar Ali. He further submitted that it is for the landlord to decide as to which shop is appropriate for his business needs and the tenant cannot dictate terms in this regard. In support of his contentions, learned counsel for the appellant/plaintiff relied upon the judgment of this Court in the case of Denzil Nagrath V/s LRs. of Balwant Singh reported in 2011 (3) DNJ (Raj.) 1217 in which it 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 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." 8. Learned counsel for the appellant also relied upon a judgment of this Court in the case of LR''s of Prakash Vs. 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."

After hearing the learned counsel for the parties, the following substantial question of law is framed:

"Whether the lower appellate court was justified in allowing defendant/tenant''s appeal and reversing the decree of trial court granting eviction decree on the ground of reasonable and bona fide necessity?" 10. By the consent of both the learned counsel for the parties, the present appeal was heard at this stage.

Having heard the learned counsel for the parties and upon perusal of the judgments and decree of both the courts below, this Court is of the opinion that the learned first appellate court has erred in reversing the finding of learned trial court on the ground that one smaller shop which was got vacated from Akbar Ali, was mortgaged in favour of other person, and therefore, need of present plaintiff of the shop in question for opening the shop for her son, Mahendra Singh, for the purpose of painting and handicraft business, was not just and reasonable. It is well settled law and as has been held in catena of judgments by this Court and Hon''ble the Apex Court that the tenant cannot dictate the terms in this regard as to how and in what manner the plaintiff/landlord should satisfy his/her business needs for his business place. Therefore, the reasons given by the learned lower appellate court cannot be sustained and same deserves to be reversed and the judgment and decree of the trial court granting eviction decree deserves to be upheld.

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

The respondents/defendants (tenant) shall hand over the peaceful and vacant possession of the suit property viz. shop in question to the appellant/plaintiff on or before 30.06.2016 and shall pay mesne profit @ Rs. 2,000/- 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 respondents/defendants shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff/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 respondents/defendants 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 respondent-landlord on or before 30.06.2016 from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant/plaintiff 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.