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Om Prakash & Others v/s Kalyan Prasad & Others

    Civil Second Appeal Nos. 329 of 1995, 69 of 1996

    Decided On, 05 August 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MOHAMMAD RAFIQ

    For the Appellants: J.P. Goyal, Sr. Advocate with Manisha Surana, P.S. Shukla, Advocate. For the Respondents: M.M. Ranjan, Sr. Advocate with Paranjeet Sharma, Advocate.



Judgment Text

Mohammad Rafiq, J.

1. These two civil second appeals have been filed by the defendants/their legal representatives under Section 100 of the Code of Civil Procedure against the judgement and decree dated 27.7.1995 passed by Additional District Judge, Bharatpur who thereby confirmed the judgement and decree dated 16.3.1981 passed by Munsif Magistrate, Bharatpur. Since they arise out of the same suit and seek to challenge the same judgement, therefore, were clubbed together, heard together and are being decided together by this judgement.

2. In order to appreciate the controversy, facts of the case need be noticed in brief. Plaintiff-respondents Kalyan Prashad and Mahesh Chand filed a suit for eviction of defendant-appellants from the tenanted premises on the ground of bona fide reasonable necessity and for recovery of the arrears of rent of three months. The shop in question was let out to the defendant-tenants on monthly rent of र45/- by predecessor-in-title of the plaintiffs-respondents viz its original landlord/owner Shri Poonam Chand. Plaintiff-respondents purchased the shop vide sale deed dated 27.12.1968 from him. Plaintiff-respondents asserted that greater hardship would be caused to them in case their plea was not upheld. Defendants contested the suit and denied that the suit premises was required for bona fide reasonable personal necessity of the plaintiffs. Defendants raised an additional objection in the written statement that though the plaintiffs may have purchased the shop but there was one 'bukhari' which opens in this shop, but its main body is outside the boundary of the shop, which having not been purchased by the plaintiff still continues in the ownership of the previous owner/landlord. Both shop and 'bukhari' were let out to the defendants at the time of commencement of tenancy, whereas the plaintiffs have merely purchased the shop vide registered sale deed dated 27.12.1968. They are therefore not entitled to maintain the suit for eviction of the defendants from the composite property belonging to two different owners.

3. It may be pertinent to notice that prior to filing of the suit for eviction and arrears of rent, defendants themselves filed a suit for fixation of the standard rent under Section 6 of the Rajasthan Premises (Control for Eviction) Act, 1950 on 11.2.1969. During pendency of the said suit, plaintiffs filed another suit for eviction on the ground of default in payment of rent determined under Section 7(1) of the Act of 1950. It was asserted therein that defendants have not de

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posited provisional rent for the month of May, 1969 by 15.6.1990 and in the same manner, provisional rent of next month was not deposited by 15th July. There was thus a default in payment of the rent. This suit was also contested by the defendants, who in their written statement denied having committed any default in making payment of provisional rent. The suit no.253/71 was consolidated with suit no.45/69 by order of the Court dated 2.3.79 and were tried together with a common suit.

4. During pendency of the aforesaid two suits, which were consolidated, one Kedar Nath, who too had purchased the shop adjoining the tenanted shop let out in the present case, from one Champa Lal, filed a suit against Kalyan Prashad and Mahesh Chand, the plaintiffs herein and Bihari Lal and Om Prakash, for possession of the 'bukhari' referred to supra. In that suit, Kedar Nath contended that 'bukhari' was his property, but the learned trial court dismissed the suit. Kalyan Prasad and Mahesh Chand who are plaintiffs in this case pleaded therein that the 'bukhari' belonged to them as it was appurtenant to their shop. However, their plea was dismissed by the trial court vide order dated 15.4.1980. An application was moved by the defendant herein under Order 13 Rule 2 CPC for production of the certified copy of the said judgement on the record of this case. That application was rejected by the learned trial court. The trial court in the present case decreed the suit in favour of plaintiffs and against defendants on issue no.1, which was framed with regard to 'bukhari'. The trial court held that 'bukhari' was by implication part of the demised premises. Issue no.2 regarding reasonable bona fide necessity was also decided in favour of plaintiffs. Issue no.3 pertaining to default was also decided in favour of plaintiff. Thus, the suit of plaintiffs was decreed vide judgement dated 16.3.1981. Two separate appeals were filed against this judgement under Section 96 of the CPC; one by the present appellants and another by Bihari Lal. Those appeals were ultimately dismissed. Aggrieved thereby, both of them have filed the present two appeals. These two appeals were admitted for hearing on 16.12.2005 on the following substantial questions of law:

Appeal No.329/1996:

(1) Whether in a case where allegations are that the defendants have committed defaults in the payment of provisional rent and the defendants contend that they have deposited the arrears and are depositing the provisional rent regularly and punctually upon whom the burden of proof would lie? Whether on account of non-production of challans by the defendants an inference may be drawn against non deposit of the rent when the defendants have in fact filed the challan along with an application and the plaintiffs have opposed their production, and the fact of deposit under section 7 read with section 19A was within the knowledge of the plaintiff?

(2) Whether the requirement of the suit premises as alleged was a mere desire as having already a shop in his possession for which there was presently no threat of eviction and acquiring shops for business, the need cannot be considered bona fide and the learned lower courts have failed to apply objective test?

Appeal No.69/1996:

(1) Whether the disputed shop was required by the plaintiff as mere desire and not as an necessity. In absence of proof that the disputed shop is needed or required bonafidely by the plaintiff, no decree for eviction can be passed on the ground of mere desire of the disputed premises by the landlord and there is a difference between the mere desire and the need for requirement of the premises?

(2) Whether the provisions of Section 13(1)(a) is to be read with Section 7(4) would conclude that for passing decree on the ground of default, the tenant must have committed default continuously for more than six months?

5. I have heard Shri J.P. Goyal, learned Senior Counsel for the appellant in appeal no.69/96 and Shri P.S. Shukla, learned counsel for the appellant in appeal no.329/95 and Shri M.M. Ranjan, learned Senior Counsel for the plaintiff-respondents.

6. Shri P.S. Shukla, learned counsel for the appellant in appeal no.329/95 has argued that the impugned judgement suffers from error apparent on the face of record inasmuch as there are contradictory findings of the same Court on analogous issues. In the suit filed by Kedar Nath, the same Court vide its judgement dated 15.4.1980 has held that plaintiff-respondents herein had not purchased the 'bukhari' from Poonam Chand. While deciding issue no.1 in the present case, however the same Court has held that 'bukhari' is part of the premises let out to the defendant-appellants. This finding is contrary to the admission made by the plaintiff Mahesh Chand and also contrary to the Map, Ex.A1 and sale deed Ex.1. There was no mention of 'bukhari' in the map. Evidence clearly shows that 'bukhari' is property of Poonam Chand and therefore defendants must be held to be tenants of Poonam Chand in that 'bukhari' and not of plaintiff-respondents herein. Learned trial court committed a serious error of law in not allowing the certified copy of the aforesaid judgement dated 15.4.1980 passed in the civil suit filed by Kedar Nath to be taken on record, which was very much relevant for deciding the present controversy and the application of the plaintiff under Order 41 Rule 27 CPC was illegally rejected by the appellate court. It was argued that the findings recorded by the learned courts below suffer from perversity and non-application of mind for the reasons that though there is no mention of 'bukhari' in the sale deed Ex.1 and the map annexed therewith Ex.A1 yet eviction of the defendants has been ordered. There is admission of Mahesh Chand, PW-1 in his statement that a sale was executed of the shop description of which has been mentioned in the map, Ex.A-1. Kalyan Prashad and Mahesh Chand have both in their statements before the Court deposed that 'bukhari' was not purchased by them. It was argued that objection was raised by the defendants that Poonam Chand and Champa Lal were necessary party to the present suit, which was rejected. They approached this Court by filing revision petition no.465/72, the same was dismissed vide judgement dated 5.1.1973 holding that issue has already been framed on the point as to whether plaintiffs are the owners of the whole shop let out to Bihari Lal and Om Prakash by Poonam Chand and if the plaintiffs failed to prove this, then their suit would fail. Since, plaintiff-respondents herein could not prove that they are owners of both shop and the 'bukhari', and, in fact, there is an admission by them to the contrary, the suit filed by the plaintiff-respondents was liable to be dismissed. Both the courts below have travelled beyond the case set up by the plaintiffs in the pleadings. It is argued that while the bona fide necessity is pleaded, but reasonableness is not pleaded and therefore statement of PW-1 Mahesh Chand about reasonableness cannot be read in evidence. There was enormity of variance between their pleadings and the evidence produced by them. It is trite law that no amount of evidence can be read in support of a fact which is not pleaded.

7. Shri P.S. Shukla, learned counsel for appellant argued that question of bona fide personal necessity pleaded with regard to Kalyan Prashad was that he needed the suit premises for doing the business of silver jewellery and another plaintiff Mahesh Chand described his necessity by stating that though he is doing the business of commission agent (Adat), but it is not suitable to him because of allergy, therefore, he needed the shop for business of sale of silver. But in statement before the Court, he has stated that he is doing the business of 'Saraffa Adat', thus the statement was contrary to the pleadings. It was argued that defendants are running their shops and doing the business of 'Saraffa' from the demised premises for last several years. In adjoining shops plaintiffs are doing the business of 'Sarrafa'. And in yet another shop at New Grain Mandi, they are doing the business of 'adat'. A suit for eviction was filed by owner of the shop in which plaintiffs were the tenants but that suit was dismissed. Plaintiffs have purchased two shops in the name of Subhash Chand S/o Kishan Prasad and Sumitra Devi, wife of one of the plaintiff i.e. Mahesh Chand, which could satisfy their requirement. Necessity given in the plaint in the present case is not bona fide. It cannot also be considered reasonable. Reference was made to the sale deed Annexure-A-9 and A-10 to substantiate this fact. An application was filed in appeal no.329/95 under Order 41 Rule 27 to place yet another sale deed showing purchase of a shop by plaintiff. This shop has been purchased by sale deed dated 30.3.2001 in the joint name of Anita Devi, wife of Anil Kumar who is son of the plaintiff-respondent Kalyan Prashad and Vinod Kumar S/o Kailash Chand, who is first cousin of plaintiff-respondent Mahesh Chand and in whose name shop was purchased by sale deed Annexure-A9 dated 29.9.1976. It was argued that finding recorded by the learned trial court on issue no.2 and 7A is wholly perverse. Plaintiffs are running their business from rented shop for which there was no constraint of vacation. The learned courts below erred in law in holding that defendants are owners of the shop at Mathura gate and a Nohra. But this shop and Nohra are situated in different areas and not in Saraffa Bazar.

8. On the question of default, it was argued by Shri P.S. Shukla, learned counsel for the appellant that there was no evidence to prove that defendants committed default in terms of Section 13(1)(a) of the Act after passing of the order of fixation of standard rent u/s.6. It was argued that defendants are regularly depositing the provisional rent. In the plaint, the allegations were that there was default in payment of provisional rent inasmuch as tenants have not paid provisional rent for the month of May, 1969 by 15th of the next month and similarly for the next month, provisional rent has not been deposited by 15th of the next month. But there is no allegation that any default was committed in making payment continuously for the period of six months. It is argued that in order to constitute a default making the tenant liable for ejectment, it must be proved that there is default in making payment of rent for six months continuously. In support of this argument, learned counsel relied on the judgement of this Court in Pan Mal v. Gyanchand, RLW 1980 page 4.

9. Learned counsel argued that defendants in this case erroneously made application u/s. 13(1)(a) whereas the fact was that the rents for all the months were regularly deposited in the Court itself u/s.19(a). In fact, the appellants had deposited the entire rent from May, 1969 onwards in the Court, which fact was very much there in the original record. The defendants filed counterfoil of such deposit with their application under Order 13 Rule 2 of CPC, which was illegally disallowed by the trial court. The learned first appellate court also committed illegality in rejecting the application filed by the defendants under Order 41 Rule 27 of CPC. In the circumstances, both the courts below erred in law in drawing adverse inference against the defendants for non-production of counter foils, whereas they in fact sought to be produced.

10. It was argued that there was no determination of rent as per Section 13(3) of the Rent Control Act and in the absence thereof, sub-section (4) of section 13 is not attracted and therefore no decree can be passed under sub-section (6). It was argued that after determination of provisional rent and deposit of total amount of rent due to landlord on that basis, the proceedings of suit no.45/69 which was essentially valid for eviction of the shop and recovery of arrears, should have been stayed in view of the provisions contained in Section 7(3) of the Act. The learned trial court however committed an illegality in not staying the proceedings, therefore, the proceedings of suit no.45/69 and 253/71 and subsequent deposit of arrears of rent are without jurisdiction.

11. It is argued that plaintiffs were already running their business in another shop with their father Roshal Lal. The apprehension expressed by them that the said shop would be got vacated because the landlord of that shop filed suit for eviction, has nothing to do with this shop because that decree has been passed against Roshan Lal and not against the plaintiff-respondents. The tenancy in that shop also does not affect the plaintiff Mahesh Chand because he stated in his statement that he is residing separate from his family since 1964. It is argued that plaintiffs themselves are not clear whether 'bukhari' was purchased by them. In this connection, Shri P.S. Shukla, learned counsel referred to the statement of PW-1 Mahesh Chand who in examination-in-chief stated that there was no 'bukhari' in the shop and that only shop was purchased and not the 'bukhari'.

12. Shri P.S. Shukla, learned counsel for appellants has therefore prayed that the appeals be allowed and the judgment and decree passed by the learned courts below be set aside and the suit filed by the plaintiff-respondents be dismissed.

13. Shri J.P. Goyal, learned Senior Counsel for the appellant in appeal no.69/06 while adopting the arguments of Shri P.S. Shukla added that plaintiffs cannot seek eviction of the appellants only because they have purchased the shop. The law is settled that if someone purchased the shop with a sitting tenant, rather than purchasing a vacant shop, he cannot seek eviction of such tenant on the ground of bona fide personal necessity. Even otherwise, there are in this case no proper pleadings about bona fide reasonable necessity and finding of the bona fide reasonable necessity recorded by the trial court is wholly perverse and erroneous. The learned first appellate court has also erred in law in upholding this finding. Learned counsel argued that it has been stated that 'bukhari' has not been purchased by the plaintiff-respondents and the owner of the 'bukhari' is Kedar Nath who purchased the same through Champa Lal, therefore, eviction of the shop on the composite property which consists of both shop and the 'bukhari' could not be maintained only by the plaintiff-respondents because this makes the composite shop property of two owners rather than one and one of them was not impleaded as party to the suit. He therefore prayed that the appeal be allowed.

14. Per contra, Shri M.M. Ranjan, learned Senior Counsel for the plaintiff-respondents supported the judgement of trial court and argued that status of defendant-appellants in the demised shop is that of tenant and it is their admitted case that they came to occupy possession of 'bukhari' only on account of the fact that they had taken the shop on rent from plaintiff/landlord. It is therefore essentially a dispute between tenant and landlord. It is not open to tenant to question the right of landlord to claim possession of property in let out premises by filing eviction suit on account of bona fide reasonable necessity and default etc. Learned counsel relied on the judgement of Supreme Court in E. Parashuraman (Dead) by L.Rs. v. V. Doraiswamy (Dead) by L.Rs., (2006) 1 SCC 658 and argued that Supreme Court in that case held that question as to whether landlord, who let out the premises to tenant, was absolute owner of the premises is not relevant in considering question whether their existed jural relationship of landlord and tenant between the parties. The fact of induction by landlord and payment of rent to him by tenant-appellants lead to inescapable conclusion that relationship of landlord and tenant existed. Once having admitted that they were inducted as tenants by said landlord, appellants could not take advantage of dispute as to title of such landlord over suit premises. A landlord under Rent Act in question need not be owner of the premises.

15. Shri M.M. Ranjan, learned Senior Counsel for the respondent denied that PW-1 Mahesh Chand in his statement has stated that there was no 'bukhari'. In fact, this was clarified by him in very next statement that part of the shop which is appurtenant thereto is called 'bukhari' which the plaintiffs have purchased with the shop. He also argued that plaintiff-respondent Mahesh Chand did not do any business of his own. He was merely a sleeping partner in the shop run by his brother at New Mandi to the extent of 15% with other partners. Learned Senior Counsel referred to statement of Kalyan Prashad that shop in dispute was purchased by them for their personal necessity to run the business of silver jewellery as they did not have any other shop. Both the plaintiffs wanted to run the shop in partnership.

16. Shri M.M. Ranjan, learned Senior Counsel for respondents argued that in the scope of second appeal u/s. 100 of CPC, this Court cannot interfere with the findings of fact even if grave in nature. In support of this argument, learned counsel relied on the judgement of Supreme Court in Pakeerappa Rai v. Seethamma Hengsu and Ors., (2001) 9 SCC 521 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., AIR 1999 SCC 2213.

17. I have given my anxious consideration to the rival submissions and perused the material on record.

18. On examination of pleadings in the plaint vis-a-vis evidence of the plaintiffs, I am not persuaded to uphold that the argument of bona fide personal reasonable necessity was not pleaded therein. In para 5 of the plaint, it has been stated that plaintiffs needed the shop for their personal bona fide necessity for their business. Plaintiffs would start the business of silver from the shop. Plaintiff Mahesh Chand, PW-1 in his statement categorically stated that they needed the shop for their personal bona fide necessity because they want to do the business of silver jewellery and both of them have the experience of such business. They can make silver jewellery and also calculate its value and that they have sufficient funds also to invest in this business.

19. This Court in Sohan Lal and Ors. v. Khetu Lal and Ors., RLR 1995 (1) 207 held that even though question of bona fide personal requirement may be a mixed question of law and fact, but not substantial question of law. Therefore, even if courts below had committed error in appreciating evidence regarding said question, that fact by itself would not be entertained in the second appeal. The second appeal was thus dismissed. Similar view was expressed by this Court in Ram Chand and Ors. v. Naurat Mal and Ors., 1999 (3) WLC (Raj.) 249, in which case too there was concurrent finding of fact with regard to bona fide personal necessity of plaintiff. Interference by way of second appeal in the scope of Section 100 of CPC was therefore declined.

20. On careful examination of the findings recorded by the trial court on the question of personal bona fide necessity, it is evident that both the courts have found it proved that the shop in question was purchased by the plaintiff-respondents for starting the business of silver jewellery. The shop was needed by them for their bona fide necessity which was reasonable, given the fact that plaintiff-respondents were not having any other shop in their own name. Plaintiffs have asserted this fact in their statement before the Court and this does not mis-match with their pleading taken by them in para 4 of the plaint.

21. Assertion of defendants that one shop was purchased by Vinod Kumar by sale deed Ex.A9 on 29.9.1976 and another by Anita Devi wife of one of the plaintiffs, does not dilute the bona fide necessity of the plaintiff, who jointly purchased the shop in question for running the business of silver jewellery. According to them, it is that place which is most suitable for this kind of business. Nohra and another godown which were suggested to be alternative accommodation available with plaintiffs were rightly held to be not suitable for this kind of business. If that be the criteria, the evidence also suggests that the defendant also got one shop vacated by Babu Lal, which is larger in size than the shop in question. The defendant also got a godown vacated from one Hari S/o Shippo. It cannot therefore be said that defendants had no alternative accommodation. In the facts and circumstances of the case, it cannot be said that greater hardship would be caused to the defendants by requiring them to vacate the shop in question as compared to the hardship caused to the plaintiff if their suit is dismissed.

22. On the question of 'bukhari' being not owned by the plaintiffs and not purchased by them from Panna Lal, suffice it to say that this plea is not available to the plaintiff because he came in possession of the shop in question only when if shop was let out to him by the predecessor-in-title of the plaintiff respondent i.e. Panna Lal. 'Bukhari' also came to their possession along with shop. Even if there is any dispute about the 'bukhari' inter se between Panna Lal or his legal representatives and Kedar Nath, who purchased adjoining shop from Champa Lal, the defendant-appellants have got nothing to do with that dispute.

23. The Supreme Court in E.Parshuraman v. Doraiswamy, (2006) 1 SCC 658 held that in an eviction proceeding under Karnataka Rent Control Act, 1961, at the instance of landlord against tenant, a landlord need not be the owner of the premises, therefore, the question whether or not the landlord had failed to inherit absolute title of the suit premises, was irrelevant.

24. The Supreme Court in Dr. Ranbir Singh v. Asharfi Lal, (1995) 6 SCC 580 held that in eviction suit, what is necessary to be seen is the relationship of landlord and tenant and the question of title of property is not germane to dispute and it may be examined incidentally and cannot be decided finally in the eviction suit. In this very case, Supreme Court has held the question of comparative hardship having been held in favour of plaintiff by the trial court as also first appellate court is not open to interference in second appeal u/s.100 of CPC by the High Court.

25. Since the suit for eviction filed by the plaintiff-respondents against the defendant-appellants has succeeded on account of bona fide personal necessity, these appeals deserves to be dismissed and suit is liable to be decreed on that one ground alone without discussing in detail the question of default, except that default is also, a question of fact and both the courts have concurrently rendered findings even on this issue against the appellants, which are essentially findings of fact, not open to inference in view of the settled proposition of law stated above.

In view of above discussion, I do not find any merit in both the appeals, which are accordingly dismissed with no order as to costs.

Appeal dismissed.
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