Smt. Kanta Rani vs Som Nath

M.L. Koul, J.—This civil second appeal owes is origin to Civil Suit No. 36 of 1973 on the file of learned Sub-Registrar, Jammu, who on the

trial of the suit filed by the appellant Smt. Kanta Rani ""here-in-after referred to as the plaintiff against the respondent Som Nath"" here-in-after

referred to as the defendant"" in a suit for ejectment had held that there was no reasonable requirement proved by the plaintiff to occupy the suit

shop, on the basis of personal necessity, and the defendant would have been placed in a dis-advantageous position in case a decree for ejectment

was passed in favour of the plaintiff.

In this regard, first appeal was preferred by the plaintiff in the Court of learned Sub-Judge (C.J.M.) Jammu, who concurrently upheld the finding

of the trial Court that the plaintiff had failed to prove her personal necessity, and, therefore, the appeal was dismissed.

Aggrieved of the said judgment and decree of the learned Sub-Judge (C.J.M.) Jammu, dated 5-3-1981, this appeal has been filed on the

ground that the Courts below have committed an error in deciding that there was no reasonable necessity proved by the plaintiff to occupy the suit

shop, and the finding of the trial Court, and the first appellate Court was perverse, for they have mis-read and mis-appreciated the evidence

produced by the parties. Even on the grounds of plaintiffs requirement of the shop on the basis of her husband's inability to provide income for the

family, the courts below have failed to apply a reasonable test for determining as to whether the plaintiffs need for the shop was bona fide or not?

In this regard, much emphasis has been laid by the plaintiff on Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, .

The suit property is a shop situated at Jain Bazar, Jammu, which originally belonged to one Lala Amar Nath, who happens to be the father-in-

law of the plaintiff. This shop was transferred in the name of the plaintiff by virtue of a transfer deed (Tameliqnama) by the said Lala Amar Nath on

27-8-1972, and executed by the said Lala Amar Nath on 27-8-1972, and the same lay within the possession of the defendant as a tenant, and the

ownership of the plaintiff was accepted by the defendant, who paid rent of the plaintiff regularly as its owner. The plaintiff after becoming its owner,

filed a suit for ejectment of the defendant from the suit shop on the ground that she wanted the suit shop for starting her own business of hosiery

and plastic manufacturing. She needed at least two shops for this purpose, and the one she required for the said purpose, was the suit shop in

question, and the other shop which was under the tenancy of one M/s. Tilak Chand and Ravi Kumar was also sought to be acquired by her by

having filed a suit for ejectment against them as well.

Heard M/s. T.S. Thakur and J. P. Singh for the parties; also bestowed my thoughtful consideration over the record on the file.

On the trial of the case with regard to the personal necessity of the plaintiff/landlord, it was correctly found both by the trial Court and the

appellate Court on the evidence led by the parties that the plaintiff had no genuine requirement of the demised shop to start her own business. The

learned trial Court and the first appellate Court have given various reasons for such a finding to have been recorded by them, and such a finding of

the learned courts below cannot be, in any manner, assailed on any of the hypothesis to have been pleaded by the learned counsel for the plaintiff.

Mr. Thakur representing the plaintiff has argued at length regarding the reasonable requirement of the plaintiff and, in this regard, has laid great

emphasis on the ruling of the Hon'ble Supreme Court as reported in Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and

Others, . According to him, the connotation of the term need/requirement should not be artificially existent, nor its language was unduly stretched or

strained, so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a Court should defeat the very

purpose of the Act, which affords the facility of eviction of the tenant by the landlord on certain specified grounds.

I had the advantage to go through the said ruling of the Supreme Court and their Lordships Hon'ble Mr. Justice S.M.F. Ali and Hon'ble Mr.

Justice P. N. Shingal have authoritatively held:

Normally the Supreme Court does not interfere with concurrent findings of facts but as the High Court as also the trial Court have made a legally

wrong approach to the instant case and have committed a substantial and patent error of law in interpreting the scope and ambit of the words

reasonable requirement"" and 'own possession' appearing in Section 11(1)(h) of the J. & K. Houses and Shops Rent Control Act and have thus

misapplied the law and overlooked some of the essential features of eviction the Supreme Court had to enter into the merits of the case in order to

prevent grave and substantial injustice being done to the appellants.

On the perusal of the above finding of the Hon'ble Supreme Court, it transpires that their Lordships have authoritatively taken the above

mentioned view in Bega Begum's case on the ground that the courts below in that case had committed a substantial and patent error of law in

recording the scope and ambit of the words reasonable requirement and possession appearing in Section 11(1)(h)of the J. & K. Houses and

Shops Rent Control Act. In that case, the main controversy arisen between the parties, was that the plaintiff wanted to acquire the house for

running hotel, and the defendant had controverted it to say that she could not prove her reasonable necessity of the house required by her for

running a hot, for her occupation. It was in this regard of the facts of the case, that in Hon'ble Supreme Court had interpreted that the personal

necessity also included running of a business in the premises, which was required by the plaintiff for her personal purposes.

In the case on hand, the learned trial Court and the first appellate Court have found that there was no sufficient material available before the

trial Court to shop that the plaintiff actually needed the shop for her personal need and her requirement was genuinely reasonable in view of the fact

that her husband was a partner in the wholesale cloth business, which he was running in the heart Raghunath Bazar, Jammu. It won't be out of

place to mention here that holding of a wholesale business in cloth in Raghunath Bazar, Jammu, assume the same importance as the wholesale

business of a cloth merchant attain in Chandi Chowk, Delhi. There should have been positive evidence on behalf of the plaintiff to show that the

income which accrued to the husband of the plaintiff from the said business was so meagre that he was not able to maintain himself and his family

property. No doubt, it has come in evidence of the plaintiff that her husband is short of sight, but I agree with the observation of the first appellate

Court that it is the husband of the plaintiff who follows this case in every Court, and he, appeared in this Court as well, whenever the case was

fixed for a hearing before this bench. I found that it was the husband of the appellant/plaintiff who directed the conduction of prosecution of the

case on behalf of his wife. Had the plaintiff husband turned bankrupt, she could have led positive evidence or proof in that regard to establish that

her husband was a bankrupt, and she required the suit shop reasonably for running a business, in order to augment their income. In Bega Begum's

case, the plaintiff had produced sufficient material before the trial Court to show that her income did not exceed more than Rs. 8,000/9,000 per

year and the yearly income tax paid by them was Rs. 70/80 only. There was no other means for them to augment their income except to get their

own house vacated by the defendant, so as to run the hotel business.

In the case on hand, no material has been placed before the trial Court to show as to what was the yearly income of the plaintiffs husband, and

whether there were no sufficient means for the plaintiffs husband to support his family, and the same forced the plaintiff to get the shop vacated by

the defendant enabling her to run her business, and augment their income.

The plaintiff cannot plead one thing and proved another thing. In the plaint, she has claimed that, at least she required two shops for running the

business, which she intends to run in the form of hoisery and elastic goods manufacturing: With regard to one of the shop, which she required for

the said purpose, a suit was filed by her against her tenants M/s. Tila Chand and Ravi Kumar, and the suit finally culminated in its dismissal by the

Hon'ble Supreme Court vide its decision dated 23-4-1990. A copy of the judgment is enclosed with the file arid it says that ""we do not find any

merit in the special leave petition. The prayer for eviction of the respondents from the premises in question is, therefore, rejected.

That suit also on the identical facts of the case, was shelved by the trial Court, first appellate Court, the High Court and ultimately, by the

Hon'ble Supreme Court. I fail to understand, as to why the Bega Begum's case was not put into motion by the plaintiff before the Hon'ble Supreme

Court and rightly so because the facts and the circumstances of that case were different than those involved in Bega Begum's case. The said

Supreme Court ruling has no application on the merits of the present case, for no legality or interpretation of any provision of J. & K. House and

Shops -Rent Control Act, was in question rather the whole case is dependant on the factual position of the case.

It is a beaten point of law that the finding on the personal requirement of a plaintiff are purely based on the findings of fact, and no challenge

can be made to such a finding by way of second appeal, even if the finding of fact is seriously erroneous but the High Court is bound by such a

finding, and cannot disturb it in second appeal. The argument of the learned counsel for the plaintiff that no positive proof has been led by the

defendant to show that he was unable to get a shop on rent in the area where the suit shop is situate and, according to him, the defendant could

easily get some shop on rent in the Jammu city, is assailed on the ground that defendant's witnesses have fully established that the defendant could

not get a shop on rent in the Jammu city, except on a ""Pagree"" to be paid by him.

Besides, as already observed above, I cannot go against the finding of both the Courts below, who have observed that the defendant was not

able to get any alternative accommodation any where in the city, and for such accommodation, ""Pagree"" was being demanded. There is a

satisfactory evidence to prove that even in other business localities, there was no possibility for the defendants getting a shop on rent. The

defendant was not insisting on getting an alternate accommodation of similar nature in the same locality, but was trying to get accommodation in any

part of the city, and, therefore, the argument of the learned counsel for the plaintiff that he was asking for an impossibility to get accommodation in

the same locality, does not hold good, rather his argument fail on its own weight.

The plaintiff has changed her stance from the pleading, in which she has stated that she wanted to start her own business and in her evidence

has stated that as her husband is an infirm person, therefore, she wanted to augment his income, for he had turned bankrupt and was unable to

look after the business instead of intending to start a new business, for which she has no funds to invest, it was better for her to augment the income

of the family by attending the business of her husband, which was in disarray, as stated by her.

The other argument advanced by the learned counsel for the plaintiff was that an application under Order 41, Rule 27 read with Section 151 of

the CPC was moved by him before this Court for allowing the plaintiff to lead additional evidence in the case, and it was ordered by this Court

vide order dated 27-3-1990 that the application shall be considered at the time of hearing of the appeal. I have gone through the application to

have been moved by the learned counsel for the appellant. It is contended therein that this application has been moved on the basis of subsequent

event which has taken place after the institution of the suit, for the plaintiffs sons have now become major and they have no potential income to

support themselves, when one of her son is a married person. Once, during the pendency of the suit, a subsequent event has taken place,

therefore, it is very much material that the plaintiff is allowed to lead evidence in the case, and the matter is discussed afresh.

In this regard, the arguments of the learned counsel for the parties have been heard and, I feel, that such an application does not call for any

consideration of this Court. It appears, that the plaintiff wants to present a fresh case of ejectment by leading evidence in the case, which, under

law, cannot be taken in the pending list. For that, the proper Court is that a fresh suit is filed for seeking remedy, before a competent Court of law.

At this stage, I have been told, that a fresh suit in this regard has been instituted by the plaintiff's son, therefore, the prayer of the plaintiff for leading

fresh evidence is rejected, considering the same being without any substance, for no fresh evidence can be led in the pending list on the fresh

circumstances of the case.

I am fully satisfied that on the basis of the appreciation of evidence, the finding of the trial Court cannot be looked into, for the same is not, in

any manner, perverse, and even if, it would have been perverse, this Court could not look into it, in the second appeal. Also, no question of law,

much less, substantial question of law, is involved in this appeal, which requires any consideration by this Court under the provisions of J. & K.

House & Shop Rent Control Act. Therefore this civil second appeal fails and is dismissed, the files be returned to the courts below, for consigning

the same to record. The appeal file be consigned to records.