1 '\ • "'T cr IN THE HIGH COURT OF JUDICATURE AT BILASPUR SECOND APPEAL N0. ^Q /2010 Sa»»a, 'l^tf ?^ APPEi^LANTS 1 st ^Appellants in / appeal/Defendants) ^y^^' ^c^-y ^- y ^* A--" ...-•^^ <»^'A^ ;.^w ./llA!£)M- 1. Narayan Prasad, son of Late Babulal Soni, aged 68 years. 2< Vijay Kumar, son of Narayan Soni, aged 32 years. S. Durga Prasad, son of Narayan Prasad Soni,aged 30 years. All residents of Behind Ajit Hotel, NearMedical Complex, Telipara, Bilaspur, Tehsil & District Bilaspur (CG) 'Chandra Bhusan, son of Late Baliram Gupta, aged 38 years, 6,o^KhT^i E1o^ s+^^ moL'i^ P.oo.A ^u-y^ £,ilc]Sp^(C-] Civil suit valued at Rs.13,800 J. and court fee affixed Rs.1,480/, s^c*'^> as in the courts below. The appeal is within limitation. APPEAL UNDER SECTION30^1 QF THE CODE OF CIVIL PROCEDUR^, 1908 Vs RESPQNDENT respondent in 1s appeal/Plaintiff) ^ ;s 11 !!t • 8 HIGH COURT OF CHHATriSGARHATBtLASPUR Stncste Bench: Hon'bt®Shrl Justice Prashant Kuiroir Msshra Versus ORDER PostforK-04-^510. Sd/- Prashant Kumar Mishra Judge isiasa.a-%, ^•gss^ % ^SP^Ia 3 ^/ 'iSBSS-1-' HIGH COURT OF CHHATTISGARH AT BILASPUR Sinate Bench: Hon'bte Shri Justiee Prashant Kumar Mishra Seconci Aopeal No.4012010 Narayan Prasad and others. RESPONDENT Shri Rajeev Shrivastava, counsel for the appeUants. Shri Upendra Bharat, counsei for the SEGOND APPEAL UNDER SEGTION 100 QF THE CQDE^QF CtVlL ( Ifc --.04.2010) (R this appeal under Sectt<wi 1(X) of C.P.C. the appeilants .' defendants have called sn question the judgment and decree dated 02-01-2010 passed by the firet appellate Court affirming ths judgment and decree of eviction passed by the trial Court on 31-08-2007. (2) The plaintiff preferrsd the instant suit for eviction on 27-07-2001 inter alia pleading that the plaintiff fe the owner and landtord of the tenanted shop whteh has teen tet out to the defendant for caiTying on the business of gold and silver, the monthly rsnt of whfch is Rs.1150/- per month. The su'rt shop Is tocated at Jyna Bilaspur main road. The p'aiRtiff te canying on his own business of STD, PCO, Fax and Photcxsopier from the other part of the property and intends to carry on fte ctoth business frorR the premlses in hss possesston together with the tenanted shop and for this purpose he bona frie needs the su'st premises and that he has no ler reasonably suitabte attemative accpmmodation for the said // IBi '^. '"r"' A -^'/' '^^.s^''y %-• (3) !t was ateo pieaded that the defendant has carried out material atteration and damage to the shop causing substantial dainage to the plaintiffs residentia! part situated behiswi the suit shop. The defendant has constructed a partition wa!l in the suit shop and has constnicted ons room and bath room in the back portion for ^•vh'sch he is aiso liab!e tc be evicted under Sectmn 12{1)(c) of the Chhattisgarh AccommodattoR Contro! Act, 1^1 (herelnafter referred to the Act 1961') accorcting to the piaintiff the ciefendant has failed to vacate the premises even after receipt of the legal notice dated 23-02-2(X)1 and instead he has tet out the suit shop and has parted with possesston in favour of his sons Vijay Kumar Soni and Durga Prasad Soni and for this reason he is liable to be evicted from the suit shop. (4) Tlro defendant, m his written statement, denied the plaint allegatioRS and statect that the bona fide nead by the ptaintiff is irtificia! and no such need exists In favour of the piaintiff and thst he has not caused any material atteration causing substential damage to the suit shop not he has sublet or parted wsth possesston of the suit shop in favsur of his sons. It was stated In the vnitten statemsnt that the area iy in possesston of She plaintiff is sufficient to carry on cloth business and that he has an addltional area in the first floor also whrch would satisfy his need of opensng of a ctoth shop. (5) tn course of trial the plaintiff examined himself as PW-1, Pradsep Kumar Gupta as PW-2 and Rajeev Kumar Tiwari as R^V-3 on the otherhand the defendant No.1 examined himself as DW-1. :WEisess:_s -..A_. (6) The trial Court by fts judgment aral decree dated 31-08-2(M37 decreed the suit after holding that the plaintiffs tona fKle need of the suft premises Tor starting his own business is proved and that for the said purpose he has no other rsasonabty suitab'e accommodation m ths towi of Bilaspur. PlaintiTfs plea regardir^ material atteration and substantia! damage caused to the tenanted shop by the tenant was nsgatived by the trial Court. Similariy piaintiff's plea regarding sub-tenancy and parting (7) The judgment and decrse passed by the tria! Court has been affirmed by the first appeliate Court. V) Counset for the appellant has argued that the finding regardinc bona fide need is per/erse and that the to'wer appellate Court had committed an error of law by rejecting the appeliants' appifcation under Order 6 Rute 17 of C.P.C. for amendtng the v/ritten statemen* which based upon subsequent devetopments. (9) 11 has been settled by the Hon'Me Supreine Court in Vs. Radhe Lal, AIR 1974 SC 1598 arri in Govind Vs. Dr. Jeetsingh AIR f888 SC 365 that findings rsgardsng bona fide arrived at concurrently by the two Courts tetow is pure finding of tact and the said findiRg cannot be unsett'ed by re-appreciating the svidence in sxerdse of 1(X)ofC.P.C. (10) This Court has examined the record just to appreciate the argyment of tsarned counsel for the appellant as to whether ths fsraiings _-j regarding boha fide need is in -any manner perverse, howsver after ^^^^.]^:-^^^^r'^^^ -K-.^--^ff ^- J\. examining the pteading and the evidence laid by the plaintiffis this Court is satisfied that the plaintiff hiireelf as v/eil as Ns wttn Tiwari as ststed that the pteintiff is in nsed of premises. Gupta as PW-2 anct R W-3 have categorically There is nothing in the cross examination of the piaintiff to demonstrate that the need projected by him is artificial or that the need is onty his desire and ndt a genuine bona fide need. The said finding is thus nrt psn'erse and therefore thls Court in exercise of power urrier S«;tion1TO of C.P.C. is not entitled to re-appreciate the evkience and record a different fiEiding. by teamed counse! tor the appellant that his Rute 17 of C.P.C. for aneRdiRg the written (11) The argument application under Order ikt hsve baen statament being based on allov/ed by the first appeilate Court and that by not deciding the said appitoation even though arguments were heard by the first appeliate Court OR the said application, the leamed first appeilate Court has comm'itted an error of taw and thus substantial question of law jn this appeal. (12) I have perused the appfcation filsd by the appellant under Order 6 Rule .17 of C.P.C. before the first appellate Court, In the said applscation the appeliant wanted to raise a plea that since the plaintiff has stosed hls STD, PCO and ctoth business fFsm the area in hte possession and has openeti a general goods anti gift item shops, ft shoukt be sonciudscS that the ptaintiff does not need the premises for openir^ a ctoth and his need has been satisfied. The Hon'bte Supreme Court in AtR 199S SC 5- <s anoffier has held that a piainttff / tandlord is not ofcrfged to state the exact nature of business whfch he intends to carry. Even othenvise the landlord is best judge of hss need and sf once his need has been found to be bona fide, mereiy because there is some change in the business that the plaintiff is pressntty catrying on, it cannot be said that the need has come to an end. Though the first appellate Court ought to have passed an order on the appellant's appiteatioR under Order 6 Rute 17 of C.P.C., however the sakJ irregularity comiRitted by the frst appellate Court Sias no substantia! effeet on the judgmert and decree delivered by the first appellate Court in view of iaw ^ttled by the Hon'bie Supreme Court with regard to the bona fides of the plaintiffs r^ed vjs-d-vis nature of etc, therefore in view of the tew laid dcwn by the Hon'bte Sypreme CouFt in State Bank of tndia and others Vs. SMGoyal, $2008) 8 SCC 82 as te what is a substantia! guestton of law this Court finds that the said irreguiarity committed by the 1 appellafe Court wouid not a substantiat questton of iaw for adjudication. (13) Ths instant appeai under Seetion 100 of C.P.'C. thus faite and is hereby dismissed at the admisston stage. Sd/- Prashant Kumar Judge