Surendra Kumar Agarwal vs Sant Ram and Others

Dr. Vineet Kothari, J.—These first appeals and second appeals filed by the appellant/plaintiff/landlord are being disposed of by this common judgment.

The appellant/plaintiff has filed two second appeals being CSA No. 343/2004-Surendra Kumar Agarwal v. Sant Ram and CSA No. 177/206-Surendra Kumar v. Ram Chandra and Ors. assailing the concurrent judgments and refusal of eviction decree by the learned Addl. District Judge No. 2, Sri Ganganagar dated 06.04.2004 and 19.05.2004 respectively, by which the appeals filed by the appellant/plaintiff against the judgment and decree dated 06.05.2002 and 09.07.2002 passed by learned Addl. Civil Judge (Sr. Division), Sri Ganganagar and Civil Judge (Sr. Division), Sri Ganganagar in Civil Original Suit Nos. 62/94-Surendra Kumar Agarwal v. Sant Ram and 63/94 (57/1994)-Surendra Kumar Agarwal v. LR''s of Balchand (Ramchandra and Ors.) dismissing the eviction suits filed by the plaintiff/appellant on the same grounds, were dismissed.

As far as second appeal filed by the appellant/plaintiff being SBCSA No. 343/2004-Surendra Kumar Agarwal v. Sant Ram, is concerned, a coordinate bench of this Court while admitting the said appeal framed following substantial questions of law on 04.11.2014, which reads as infra:--

"(1) Whether the finding of the trial court recorded on the issue of personal bonafide necessity of the suit premises for establishing hotel by the sons of the plaintiff is based on only assumption, conjecture and surmises and the finding is perverse?

(2) Whether the both the courts below failed to appreciate the effect of the proposition that the landlord is best judge to decide the suitability of accommodation for his need?

(3) Whether the landlord can be asked to construct a hotel on an agricultural land despite the fact that he possesses commercial property in the market and near the railway station?"

The connected CSA No. 177/2006-Surendra Kumar Agarwal v. Ram Chandra and Ors., was admitted by another coordinate bench of this Court vide order dated 06.12.2006 on the same substantial questions of law as framed in SBCSA No. 343/2004.

As far as Second Appeal No. 343/2004-Surendra Kumar Agarwal v. Sant Ram is concerned, the learned trial court dismissed the Suit No. 62/1994 while disbelieving/discarding the bonafide need of the appellant/landlord vide judgment and decree dated 06.05.2002 in the following manner:--

The first appeal filed by the appellant/plaintiff against the judgment of the learned trial court dated 06.05.2002 also came to be dismissed by the learned lower appellate court vide its judgment and decree dated 06.04.2004 in the following manner:--

As far as the CSA No. 177/2006-Surendra Kumar Agarwal v. Ram Chandra and Ors. is concerned, the learned trial court has dismissed the plaintiff''s Suit No. 63/94 (57/1994)-Surendra Kumar Agarwal v. LR''s of Balchand (Ram Chandra and Ors.) vide judgment and decree 09.07.2002 while disbelieving the bonafide need of the plaintiff/appellant and the first appeal preferred against the said judgment was also dismissed by the learned lower appellate court vide judgment and decree dated 19.05.2004 while upholding the judgment and decree of the learned trial court on similar reasons as given above.

The appellant/plaintiff, Surendra Kumar Agarwal, has preferred two first appeals being CFA No. 395/2004-Surendra Kumar Agarwal v. Naresh Kumar Sidana and CFA No. 451/2004-Surendra Kumar Agarwal v. Dev Karan and Anr. being aggrieved by the judgment and decree dated 27.09.2003 and 06.04.2004 of learned Addl. District Judge No. 2, Sri Ganganagar, whereby the eviction suits filed by the appellant/plaintiff, being Civil Suit No. 23/1994 and Civil Suit No. 24/1994 filed by the appellant/plaintiff seeking eviction of the defendants/tenants, viz. Naresh Kumar Sidana, and Dev Karan and another on the ground of bonafide necessity of the landlord, were dismissed.

So far as the first appeal filed by the appellant/plaintiff viz. CFA No. 395/2004-Surendra Kumar Agarwal v. Naresh Kumar Sidana, assailing the impugned judgment and decree dated 27.09.2003 of the trial court of Addl. District Judge No. 2, Sri Ganganagar, is concerned, the learned trial court has dismissed the plaintiff''s Suit No. 23/1994-Surendra Kumar Agarwal v. Naresh Kumar Sidana while deciding the issues No. 4 and 6 with regard to bonafide necessity of the landlord and partial eviction against the plaintiff/appellant and giving extending the benefit of first default in payment of rent, in the following manner:--

So far as the first appeal filed by the appellant/plaintiff viz. CFA No. 451/2004-Surendra Kumar Agarwal v. Devkaran and Anr., assailing the impugned judgment and decree dated 06.04.2004 of the trial court of Addl. District Judge No. 2, Sri Ganganagar, is concerned, the learned trial court has dismissed the plaintiff''s Suit No. 24/1994-Surendra Kumar Agarwal v. Devkaran and Anr. while deciding the issue No. 4 with regard to bonafide necessity of the landlord against the plaintiff/appellant on similar reasons and extending the benefit of first default in payment of rent.

Mr. G.R. Goyal, learned counsel appearing on behalf of appellant/plaintiff submits that the legal position with regard to bona fide and reasonable need of the land is no more res-integra and the landlord is the best judge of his/her business needs and neither the defendant/tenant can dictate terms in this regard and nor the court can substitute its own opinion of the landlord. There is no contrary evidence or material available on record. The plaintiff/landlord has established the business need of his sons, namely, Suraj Prakash and Gaurav, for constructing hotel on the suit premises as the suit premises is situated near the railway station and the agricultural land situated far away from this commercial area is not suitable for setting up the hotel there.

12 On the other hand, Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi and Mr. Vikas Balia, learned counsel appearing on behalf of respondents/defendants/tenants submitted that since there was already an agricultural land available with the landlord on which they could have constructed the hotel, therefore, the so-called bonafide need of the landlord for his family members could be satisfied for construction of hotel leaving aside the suit shops for these tenants.

In support of his contentions that the landlord is the best judge of his business needs, learned counsel for the appellant/plaintiff relied upon the judgment of this Court in the case of Denzil Nagrath v. 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." 14. Learned counsel for the plaintiff/landlord also relied upon a judgment of 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."

Having heard the learned counsel for the parties and upon perusal of the judgments and refusal of eviction decrees of the learned courts below, this Court is of the opinion that the courts below have grossly erred in refusing to grant the eviction decree. The landlord is the best judge of his/her business needs and neither the defendant/tenant can dictate terms in this regard and nor the court can substitute its own opinion of the landlord, which is the case in hand, in which the courts below have substituted their own opinion that the plaintiff could have satisfied his or his family members'' business need by constructing a hotel on his agricultural land, which was 2 or 2.5 kilometers away from the suit premises. There is considerable force in the contentions of learned counsel for the appellant/plaintiff, Mr. G.R. Goyal that it was not at all open to the courts below to substitute their own opinion or wisdom in this regard. The findings are, therefore, perverse and not sustainable at all and they deserve to be set aside.

Consequently, the all present first and second appeals of the appellant/plaintiff are required to be allowed and the same are accordingly allowed. The questions of law framed above are thus answered in favour of appellant/plaintiff.

All the respondents/defendants (tenants) shall hand over the peaceful and vacant possession of the suit property shops in question as stated in the suits to the appellant/plaintiff on or before 29.02.2016 and shall pay mesne profit @ Rs. 2000/- 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 appellant/plaintiff 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 respondents/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 and such third parties will be equally bound by this decree. The respondents/defendants 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 shop is not handed over to the respondent-landlord on or before 29.02.2016 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 all the parties forthwith.