Rajmal vs Jamna Lal

Dr. Vineet Kothari, J.

This second appeal filed by the defendants is arising out of the judgment and eviction decree dated 27.01.2014 passed by the learned Additional District Judge No. 1, Udaipur in Civil First Appeal No. 36/2004 "LRs of Rajmal S/o Heera Lal Jain Vs. Jamna Lal S/o Manohar Lal Aggarwal" who dismissed the appeal by the appellants-defendants and affirmed the judgment and eviction decree dated 05.05.2000 passed by the learned Civil Judge (Junior Division), City South, Udaipur in Civil Original Suit No. 119/1997 "Jamna Lal Vs. Rajmal" by which, the learned Civil Judge (Junior Division) had decreed the eviction suit filed by the plaintiff-Jamna Lal seeking eviction of the defendant-Rajmal and for recovery of due rent in respect of the suit property, which is a house/godowns situated at Surajpole, Udaipur on the ground of default in payment of rent and bona fide need of suit premises for the landlord and his family.

The present second appeal has been filed by the appellants, who are the legal representatives of the original defendant-tenant-Rajmal before the learned Trial Court, against the concurrent findings recorded against the defendants by the learned two Courts below.

The learned Trial Court, after framing of the relevant issues arising out of the plaint and written statement of the parties and leading of relevant evidence, while dealing with the issues Nos. 2, 3 and 6 relating to bona fide need of the plaintiff, comparative hardship and entitlement of the plaintiff for costs and interest, in its order dated 05.05.2000 observed as under:-

Being aggrieved by the judgment and decree dated 05.05.2000 passed by the learned Trial Court, the legal representatives of the original defendant-Rajmal filed the first appeal before the learned First Appellate Court of Additional District Judge No. 1, Udaipur namely, Civil First Appeal No. 36/2004 which was also dismissed on 27.01.2014, while affirming the judgment and decree dated 05.05.2000 of the learned Trial Court. The relevant portion of the discussion made by the First Appellate Court is reproduced herein below for ready reference:-

Being aggrieved by the judgments and decrees dated 05.05.2000 of the learned Trial Court and dated 27.01.2014 of the learned First Appellate Court, the appellants-defendants have preferred the present second appeal before this Court on 10.03.2014 which was admitted for consideration by the co-ordinate bench of this Court on 20.03.2014, while formulating substantial question of law. The order dated 20.03.2014 reads as under:-

"Heard learned counsel for the appellant.

Admit. The appeal is admitted on the following substantial question of law:-

"Whether the first appellate court fell in error in ignoring the fact that the plaintiff had admitted the allegations made in application filed by the appellant under Order VI, Rule 18 CPC/para 7-A of the written statement and Order XLI, Rule 27 CPC, wherein a specific averment was made that the need of the landlord had come to an end?"

Issue notice.

During pendency of the appeal, the execution of the decree passed by the courts below shall remain stayed."

After having heard the learned counsels for the parties and upon perusal of the impugned judgments and decrees of the both Courts below, this Court is of the opinion that the substantial question of law framed by this Court in the present case and quoted herein above deserves to be answered against the appellants-defendants and in favour of the respondent-plaintiff-landlord. The finding of the learned Courts that the landlord is the best judge of his need is the settled legal position of law and, therefore, this Court is of the opinion these findings are the findings of facts and binding upon this Court and no substantial question of law can be said to be arising for consideration by this Court in the present second appeal filed by the appellants-defendants. The finding of the learned First Appellate Court that the suggestion of the defendants that plaintiff had an alternative premises, which is a residential house, available for use of godown and the son of the plaintiff could very well shift his godown there, who is presently running his business by taking two godowns on rent at other place cannot be sustained, as it is settled legal position that the landlord is best Judge to adjudge his needs and requirement for the purposes of his business and, therefore, availability of alternative residential accommodation did not obviously affect the business need of the plaintiff. These findings appear to be reasonable and need no interference. The finding that it cannot be said that the need of the son of the plaintiff was satisfied with that residential house of the plaintiff, appears to be reasonable. The present second appeal filed by the defendants has no force and the same is liable to be dismissed being devoid of any merit.

In support of his contentions that the landlord is the best judge of his business needs, learned counsel for the appellants/plaintiffs 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 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."

The learned counsel for the plaintiff/landlord 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 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 and in view of the discussion foregoing, the present second appeal filed by the appellants-defendants-LRs of Rajmal is dismissed. No costs. A copy of this order be sent to the both Courts below and the parties concerned forthwith.

The appellants-defendants-tenants shall hand over the peaceful and vacant possession of the suit premises to the respondent-plaintiff-landlord within a period of nine months from today i.e. on or before 31.12.2015 and shall pay mesne profit @ Rs. 1,500/- per month (Rupees One Thousand Five Hundred only) 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 respondent/plaintiff/landlord also and in case there is any default in payment of mesne profit, the period of nine months 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 respondent/plaintiff/landlord 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 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 party would also be bound by this decree. The appellants-defendants-tenants shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within three months 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 respondent-plaintiff within a period of nine months i.e. upto 31.12.2015 from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff-landlord shall also be entitled to invoke the contempt jurisdiction of this Court.