CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil Second Appeal No.160/1989 Ganesh Ram through Lrs Vs. Sanwarmal Date Of Judgment :: 28.8.09 Hon'ble Mr. Justice Jitendra Ray Goyal Mr. B.L. Mandhana, for appellants. Mr. R.P. Singh, for respondent. .......... By the Court :- A decree for eviction, upholding availability of grounds of sub-letting and reasonable and bonafide necessity under section 13(1)(e) & (h) of the Rajasthan Premises (Control of Rent & Eviction), Act,1950 (in short the Act) was passed in favour of the appellant-plaintiff- landlord (hereinafter shall be referred as plaintiff) and against respondent-tenant (hereinafter shall be referred as defendant) by learned Munsif, Shrimadhopur. First appeal preferred by the defendant has been allowed by the Additional District Judge, Neem Ka Thana and decree of the trial court was set aside. CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (2) Aggrieved from the judgment and decree of the First Appellate Court this appeal has been preferred by the plaintiff under section 100 of the Code of Civil Procedure (in short CPC). 2. Brief facts of the case are that plaintiff filed a suit for rent and eviction of the suit shop with the averments that suit shop was on rent with the defendant since 20/5/1969 at the rate of Rs.25/- per month but defendant did not increase the rent in accordance to the terms of the agreement and despite of several notices, did not vacate the suit shop. That the disputed shop has been damaged and furthermore defendant entrusted the suit shop to some another person. 3. The defendant in his written statement denied the case of the plaintiff and stated that plaintiff time to time served upon him the notices with the intention to increase the rent and he, as per the wishes of the plaintiff, increased the rent. That no rent is due upon him. He also denied about the allegation of sub-letting and having caused any damage to the suit shop. CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (3) 4. Initially the Act was not applicable in Shrimadhopur which was extended and made applicable on 5/7/1977. Thereafter plaintiff got the plaint amended and the ground of personal and bonafide need for his son and for himself has been incorporated. 5. The defendant filed the written statement to the amended plaint and averred that plaintiff has no necessity for the suit shop, his one son Sita Ram is a teacher and another son is doing the shop of Halwai and the plaintiff is also doing business having another shop. It has also been pleaded that with a view to create pressure to increase the rent this suit has been filed by the plaintiff. 6. The trial court framed the following issues :- 1. आया वादȣ दकान मुतदाǒवया के Ǒकराये के ु 20-5-69 से 20-10- 72 तक के 25/- ǽपये माहवारȣ के Ǒहसाब से तथा उसके बाद 20- 7-73 तक 40/- ǽपये माहवार के Ǒहसाब से उसके बाद 125/- ǽपये माहवार के Ǒहसाब से पाने का मुँतǑहक है और इस Ǒहसाब से दावा दायरȣ ूितवादȣ के ǔजàमे के 2722 ǽपये Ǒकराया दकान मुतदाǒवया के ु वाǔजब बाकȧ है | ----------- व ǔजàमे वादȣ ् CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (4) 2. आया ूितवादȣ ने ǔखलाफ वजȸशरायत Ǒकरायानामा करते हऐ दकान ु ु मुतदाǒवया मɅ टट फूट वाÈये कȧ ǽपये ू 200/- ǽपये हरजे के वादȣ ूितवादȣ से ूाƯ करने का हक़दार है | ---- ब ǔजàमे वादȣ 3. आया दौराने दावा व आयÛदा वादȣ ूितवादȣ से दकान Ǒकराया के ् ु 125/- ǽपये माहवार पाने का हक़दार है | ----- ब ǔजàमे वादȣ 4.आया ूितवादȣ दकान मुतदाǒवया से काǒबल बेदखली ु है| ------- ब ǔजàमे वादȣ 5. आया वादȣ ने ूितवादȣ को 17-5-75 को एक नोǑटस Ǒदया जो उसे 24-5-75 को ूाƯ हआ तथा उसकȧ वैधता व असर ु ् | 6. आया ूितवादȣ ने वादȣ को मुताǒबक िशÔयूल के जवाब दावा और उसके बाद व मुǔजब मद नàबर ् 4 दावा Ǒकराया दकान मुतदाǒवया मɅ ु अदायगी कȧ | 7. आया Ǒकराया नामा रǔजःटड[ न होने से उस आधार पर दावा नहȣं चल सकता | 8. दाया दावा मयाद बाहर है | -------- ूितवादȣ 9. आया वादȣ को दकान कȧ åयǒƠगत आवँयकता है ु | 10. आया ूितवादȣ ने दकान मɅ दसरɉ को बैठा रखा है ु ू | 11. आया दकान कȧ वादȣ को ःवयं के िलए व अपने लड़के के िलए ु ् आवँयकता है | वह åयǒƠगत व सदभावी आवँयकता के आधार पर ् दकान खाली करवाने का अिधकारȣ है ु | CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (5) 12. आया दकान खाली न होने कȧ सूरत मɅ वादȣ को Ïयादा असुǒवधा ु होगी | या दकान खाली होने कȧ सूरत मɅ ूितवादȣ को Ïयादा असुǒवधा ु होगी | 13.दादारसी Èया होगी | 7. After recording the evidence and hearing the parties trial court decreed plaintiff's suit on the ground of sub-letting as well as reasonable and bonafide necessity. 8. In appeal the First Appellate Court reversed the findings on both the counts i.e. subletting and reasonable and bonafide necessity and dismissed plaintiff's suit. Hence, this second appeal has been preferred by the plaintiff. 9. This Court on 18/12/1989 admitted the appeal for hearing and framed following substantial questions of law for consideration:- (i) Whether the findings on the issues 9-10-11-12 are also erroneous in law as being perverse and arbitrary and contrary to the material on record? CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (6) (ii) Whether the findings of the learned lower appellate court on the question of reasonable and bonafide necessity as well as comparative hardship are based on erroneous approach and consideration of irrelevant circumstances and erroneous inferences. As such, the same are liable to be set aside ? 10. During the pendency of this appeal, the sole plaintiff Ganesh Ram died, hence the present appellants were taken on record at his place. 11. I have heard the learned counsel for the parties and perused the judgments of both the courts below as also the material on the record. 12. Learned counsel for the appellants contended that trial court after detailed examination of the evidence rightly decided the issue of reasonable and bonafide necessity as well as comparative hardship in favour of the plaintiff but the First Appellate Court on the whimsical grounds which are not sustainable in CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (7) law reversed the findings of the trial court. According to him, plaintiff has specifically pleaded in his plaint that suit shop is required for his son and this fact has been proved in the evidence that his son Ramdas was unemployed at the time of filing of the suit and his other two sons Sita Ram and Omprakash were in service, therefore non-mentioning of the name of his son in the plaint for whom the suit shop was required does not adversely affect his case. In support of the contentions, reliance has been placed upon the judgment in Bachhaj Nahar Vs. Nilima Mandal & Ors., reported in AIR 2009 Supreme Court 1103, wherein it was held that object and purpose of pleadings and issues is to ensure that litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. It was further held that a case not specifically pleaded can be considered by the Court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (8) the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. Learned counsel for the appellants while relying upon the judgments in Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkune and another, reported in AIR 1999 Supreme Court 2226, and Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, reported in AIR 1995 Supreme Court 576, contended that there should be reasonable and bonafide need of the plaintiff and he alone is to decide which shop or premises would be suitable for his need whereas in the case on hand the plaintiff successfully proved that suit shop is required for his son Ramdas to start the business at his home town Shrimadhopur. 13. It was next submitted that subsequent event brought by the defendant by way of application under Order 41 Rule 27 of CPC, that one shop fell vacant on account of the decree of the court dated 20/2/1992 does not help to the defendant because that shop got vacated for the personal need of Chandra Shekhar son of CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (9) Sita Ram through decree of the court and the same is in possession of Chandra Shekhar who is running his provisional store therein, therefore that shop does not fulfill the need of Ramdas which still subsists. It was also argued that new plea raised by the defendant that plaintiff has rented out one shop adjacent to the suit shop in 1981 has no substance, otherwise also defendant has no right to raise such plea first time at this stage. Learned counsel for the appellants further submitted that evidence of father (plaintiff) was sufficient to prove reasonable and bonafide need of his son. In support of this contention, reliance was placed upon the judgment in Gulraj Singh Grewal Vs. Dr. Harbans Singh and another, reported in AIR 1993 Supreme Court 1574. 14. Learned counsel appearing for the defendant while supporting the judgment of the First Appellate Court contended that First Appellate Court has considered all the aspects of the matter and rightly arrived at the conclusion that suit shop is not required for his personal CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (10) use. It was then submitted that adjacent shop which was also required by the original plaintiff Ganesh Ram for his son Ramdas and grandson, got vacated in execution of the judgment and decree of the Additional District Judge, Neem Ka Thana dated 20/2/1992 in suit no.30/1989, therefore, the need of Ramdas, if any, had eclipsed. It was then submitted that it has been admitted by the plaintiff in the plaint (suit no.30/1989) that adjacent shop was let out by him to one Mahaveer on 6/12/1981 which is evident from the judgment dated 20/2/1992 and by this admitted fact it is clear that adjacent shop was available to the plaintiff before 6/12/1981 but the said shop was not used for the need of Ramdas which further goes to show that there was no bonafide need for Ramdas and the suit had been filed only to get the suit shop vacated on the whimsical grounds. 15. I have considered the rival submissions in the light of the rulings cited above and the material available on the record. 16. Section 13 (1) (h) of the Act provides as under :- CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (11) Section-13- Eviction of tenants-(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied - (h) that the premises are required reasonably and bonafide by the landlord- (i) for the use or occupation of himself or his family, or ......... 17. This provision provides that the landlord has to prove his requirement to be reasonable as well as bonafide. 18. In Raj Kumar Khaitan's case (supra), it has been held that the landlord need not indicate the precise nature of the business to be carried out in the suit shop. 19. In Dattatraya Laxman Kamble's case (supra), it has been held that ground of reasonable and bonafide requirement means genuine requirement and not dire need. 20. In the case of Akhileshwar Kumar and others Vs. Mustaqim and others, reported in AIR CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (12) 2003 Supreme Court 532, it has been held that relief of eviction cannot be denied merely because another shop was available to the landlord. 21. These facts are not in dispute that the instant suit for eviction was initially filed in the year 1975; that the suit shop is situated in Shrimadhopur; that the Act of 1950 was not in force at that time in Shrimadhopur and the said Act was made applicable in Shrimadhopur in the year 1977 and thereafter the landlord filed amended plaint adding the ground of reasonable and bonafide requirement. In para 7 of the amended plaint, it is pleaded that suit shop is required for plaintiff's son and it is further pleaded that plaintiff himself could join his son's business as pleaded. After prolonged trial the then Munsif, Shrimadhopur vide judgment dated 17/12/1986 having considered the material and evidence of the parties came to this conclusion that the plaintiff has proved his requirement to be reasonable as well as bonafide. In first appeal decided on 27/7/1989 the Additional CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (13) District Judge, Neem Ka Thana set aside the findings of the trial court on this issue holding that it appears to be a case of mere wish of the landlord and not of reasonable requirement; that the suit shop is not suitable for the purpose it is required by the landlord and further the plaintiff has not produced his son as witness for whom the eviction was sought. 22. In the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by Lrs., reported in (2001) 3 Supreme Court Cases 179, it has been held that where the trial court has decided the issue on the basis of credibility of witnesses, the first appellate court ought not to interfere with the finding of the trial court on a question of fact unless the latter has overlooked some peculiar feature connected with evidence of a witness or such evidence on balance is sufficiently improbable so as to invite displacement by appellate court. In view of the above law laid down by Hon'ble the Supreme Court, it is clear that first appellate court should not have interfered with the findings of the trial CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (14) court which were based upon appreciation of evidence of both the parties. The appellate court has nowhere observed that the trial Judge has overlooked some material evidence or the conclusion of the trial court was improbable in any manner. 23. So far non-examination of plaintiff's son Ramdas is concerned, it was immaterial since according to the plaint the suit shop was required for Ramdas and his father Ganesh Ram and the plaintiff Ganesh Ram examined himself to prove his case of reasonable and bonafide requirement of the suit shop. 24. The First Appellate Court also held that the suit shop is not suitable for the nature of the business as pleaded by the plaintiff but it is significant to observe here that no such objection was raised by the defendant even in his written statement and thus the First Appellate Court has set aside the decision of the trial court on the ground neither pleaded nor proved by the defendant. Further, there was no material to arrive at this conclusion by the First Appellate CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (15) Court that it is mere wish of the landlord. Thus, in view of the entire discussion made here- in-above, the decision of the trial court has wrongly been set aside by the First Appellate Court. 25. Now the application filed by the defendant under Order 41 Rule 27 of CPC is taken up. 26. Order 41 Rule 27 of CPC provides for permission to the Court to produce additional evidence on the grounds mentioned. 27. Vide this application, it is averred that the plaintiff has got decree of eviction of the adjacent shop in February, 1992 and the plaintiff has got the possession of the said shop and now the need for the disputed shop does not survive. 28. While replying this application, this fact has not been disputed that the plaintiff has got possession of the adjacent shop on the basis of eviction decree passed by the First Appellate Court on 20/2/1992 but it has been pleaded that in the said shop Chandra CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (16) Shekhar, grandson of the plaintiff, is carrying on his proprietary business; that two brothers Sitaram and Om Prakash, both sons of deceased plaintiff, were in service and that Sitaram has retired in 2000. 29. It was vehemently contended by the learned counsel for the defendant that these subsequent developments should be taken into consideration and a perusal of the judgment dated 20/2/1992 passed by the First Appellate Court makes it clear that adjacent shop was let-out by the plaintiff to one Mahaveer on 6/12/1981 and thus his need for the suit shop was extinguished on or before 6/12/1981. 30. In the case of Gaya Prasad Vs. Pradeep Shrivastava, reported in AIR 2001 Supreme Court 803, it has been held that the crucial date for deciding the bonafide need of the landlord is the date of application but subsequent development during pendency can be taken into account only when need of landlord is completely eclipsed by such subsequent events. 31. Per contra, learned counsel for the CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (17) plaintiff has opposed the said submissions. 32. Having considered the rival submissions, I am of the considered view that the subsequent event as contended on behalf of the defendant took place in the year 1981 and thereafter on 3/12/1990 when the judgment of eviction of the adjacent shop was passed by Civil Judge, Neem Ka Thana and thereafter on 20/2/1992 when the said judgment was affirmed by Additional District Judge, Neem Ka Thana while deciding the first appeal of tenant Shri Mahaveer. A perusal of the judgment dated 20/2/1992 makes out that deceased plaintiff had filed a civil suit on 17/9/1985 against his tenant Shri Mahaveer for eviction of the adjacent shop on the ground of need for his son Ramdas and grandson Chandra Shekhar. This adjacent shop was let-out to Shri Mahaveer on 6/12/1981. The decree of eviction against Mahveer was passed by the trial court on 3/12/1990 and it was affirmed in first appeal vide judgment dated 20/2/1992 and thereafter the plaintiff got the possession of the adjacent shop. In view of these facts, this contention CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (18) cannot be accepted that why the deceased plaintiff let-out the shop in the year 1981 when the suit for eviction of the suit shop was pending, because eviction suit was instituted in the year 1985 but these facts were not brought on record either before the trial court or before the First Appellate Court. Thus, the plaintiff had no occasion to explain the facts and circumstances of letting out the adjacent shop. 33. As far as the possession of adjacent shop taken by the plaintiff after 20/2/1992 is concerned, the plaintiff has explained in reply of the application of the defendant that Chandra Shekhar, grandson of deceased plaintiff, was doing business as proprietor and thus the requirement of plaintiff's son Ramdas cannot be taken to be completely eclipsed in the year 2002 or thereafter. 34. Therefore, the decision of the First Appellate Court setting aside the findings of the trial court on the issue of reasonable and bonafide requirement deserves to be set aside. 35. NO other point was argued before me CSA 160/89 Ganesh Ram through LRs Vs. Sanwarmal (19) in this second appeal. 36. On the basis of the discussion made here-in-above, this appeal deserves to be allowed. 37. Consequently, this appeal is allowed and the judgment and decree dated 27/7/1989 passed by Additional District Judge, Neem Ka Thana in Civil Appeal No.1/1987 is set aside and the judgment and decree dated 17/12/1986 passed by Munsif, Shrimadhopur in Civil Suit No.283/1975 (309/1977) is restored. Cost is made easy. (J.R. Goyal),J. V.S. Shekhawat/- Jr. P.A.