SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 1/17 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T M/s Laxmi Hardware Store V/S. Shri Madhusudan & Others. S.B.CIVIL SECOND APPEAL NO.94/2008 DATE OF JUDGMENT : 26th August, 2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.R.R.Nagori, for the appellant. Mr.R.K.Thanvi, for the respondents. REPORTEABLE BY THE COURT: 1. By concurrent judgments the two courts below have decreed the suit for eviction of the shop in question situated at Chopasani Road, Jodhpur in favour of plaintiff-respondents and the defendant- tenant has filed the present second appeal being aggrieved of the said judgments and decrees. 2. The first appellate court dismissed the defendant's appeal by impugned judgment dated 17/1/2008 affirming the judgment and decree of learned trial court in suit no.35/2000 which was rendered on 29/4/2004. The original suit was filed in the year 1988 and was registered as suit no.359/88. The decree has been given by both the courts below on the ground of personal bonafide necessity of the SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 2/17 plaintiff-landlord. 3. The defendant-appellant before this Court in the present second appeal has assailed these judgments mainly on the ground that relationship of plaintiff as landlord and defendant as tenant was not established by the plaintiff as the shop in question was given on rent by one M/s Laxmi Timber Mart and not by present plaintiff Madhusudan and Smt. Meena Devi. Secondly, it is urged that there was no personal necessity of the plaintiffs, who according to defendant were the industrialists manufacturing furniture and handicrafts in an industry setup at Basni Industrial Area, Jodhpur and, therefore, the courts below have erred in decreeing the suit of eviction. 4. Learned counsel for the defendant-appellant Mr.R.R.Nagori also vehemently urged that the first appellate court did not pass the judgment while rejecting the appeal of defendant in terms of Order 41 Rule 31 CPC as the issues raised before the appellate court were not formulated as points for determination and no reasons for decision thereon have been assigned by the learned appellate court and, therefore, not only the judgment under appeal deserves to be set aside bu the finding of personal bonafide necessity of the plaintiffs as well as relationship of the parties as landlord and tenant have been arrived at without evidence on record or evidence beyond the pleadings of the SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 3/17 parties and, therefore, judgment under appeal deserves to be set aside. Mr.Nagori, relied upon several decisions of this Court as well as Hon'ble Supreme Court which will be shortly referred to hereinafter. Mr.Nagori also urged that he had filed written arguments before the first appellate court which the first appellate court has failed to consider and appreciate in the correct perspective and he has also filed written arguments before this Court besides making lengthy oral arguments. 5. On the side opposite, Mr.R.K.Thanvi appearing for the plaintiff-respondents has submitted that as a matter of fact no substantial questions of law arise in the present second appeal under Section 100 CPC and the appeal is absolutely merit less and deserves to be dismissed. He has urged that shop in question was owned by the plaintiffs and the rent was being realised by one Shanti Lal Vyas, a close relative of plaintiffs being nephew, who was partner of the firm M/s Laxmi Timber Mart and plaintiffs had duly authorised the said person to collect the rent from the tenant in respect of suit shop. He also submitted that defendant himself at one point of time sent a cheque for the rent in favour of plaintiff No.1-Madhusudan, therefore, relationship of landlord and tenant had been admitted by the defendant himself and moreover the fact of said firm M/s Laxmi Timber Mart collecting rent on behalf of plaintiffs was duly proved by Shanti Lal Vyas before the trial court and, therefore, the courts SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 4/17 below cannot be said to have committed any error in holding that relationship of landlord and tenant was established between the parties. He further submitted that the findings relating to personal bonafide necessity of the landlord are findings of facts and the same cannot be said to be perverse in any manner in the present case so as to give rise to any substantial question of law. He submitted that the defendant had himself admitted that plaintiffs were having a factory of manufacturing furniture and handicrafts and though the learned counsel for the appellant defendant tried to draw distinction between furniture and handicrafts, which was of little significance, yet the fact that for selling the products manufactured in such factory, the plaintiffs were required to establish a showroom at the same place where the suit shop is located namely Chopasani Road, Jodhpur, which is a busy business place and has a ready market for sale of furniture and handicrafts and, therefore, the courts below cannot be said to have arrived at any finding of fact after an objective satisfaction, wrongly that the plaintiffs required the suit shop for personal bonafide necessity. He further submitted relying upon various case laws that it was not for the tenant to suggest and compel the landlord to satisfy his personal bonafide need for the shop in question with any other shop even though constructed by the plaintiffs and, therefore, the comparative hardship was also established before the courts below in favour of the plaintiffs and the same gave rise to no substantial question of law in the present case. SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 5/17 6. I have heard learned counsels at length and perused the record of the case including the written arguments and judgments cited at the bar. 7. The brief resume of case law cited at the bar may be made here. 8. Learned counsel for the appellant-defendant Mr.R.R.Nagori relied upon the decision of Hon'ble Supreme Court in case of Santosh Hazari v. Purushottam Tiwari (2001 AIR SCW 723) with regard to valuable right of the parties in first appeal. The Hon'ble Supreme Court in the said judgment in para no. 15 held as under:- “First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on question of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind, and record findings supported by reason, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court.” 9. This was a case dealing with the case of reversal of findings of the trial court by the first appellate court and in that context the Hon'ble Supreme Court emphasized the need for the first appellate court to formulate the points for determination and give its reasoning SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 6/17 while reversing the findings of first appellate court. In para 15, the Hon'ble Supreme Court further observed as under:- “While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, moreso when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact.” 10. This case is of little help to the counsel for the defendant appellant as this Court finds no such infirmity in the judgment of the first appellate court, nor it is a case of reversal of findings by the first appellate court. The judgment of first appellate court runs into 29 pages affirming the decision of trial court which also runs into 17 pages. The first appellate court while affirming the findings of trial court has given reasons and findings considering entire evidence once again and such findings have been given issue wise in the impugned judgment. SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 7/17 11. On the issue of relationship of plaintiff and tenant as landlord and tenant, learned counsel Mr. Nagori relied upon the decision of this Court in case of Stephen D'Silva vs. M/s Jaipur Chalchitra Pvt. Ltd. ( 1992 (2) RLW 651) , wherein, dealing with the definition of landlord, a Single Judge of this Court held in para 9 that any person, who for the time being is receiving rent of any premises, whether on his own account or as guardian/trustee/agent will come within the definition of landlord. 12. In Nagendra vs. Jahoor Khan & Anr. ( 1995 (2) RLW 331 ) another learned Single Judge of this Court held that question of title or ownership cannot be decided in ejectment suit, only rights and liabilities of landlord and tenant are to be decided and the landlord, as per definition given in Section 3 of the Act of 1950, is a person who has given the premises on rent and to whom the rent is payable. 13. In Omprakash vs. Gajanand and others ( 2000 (2) RLW 1219), learned Single Judge at Jaipur Bench of this Court held that the definition of landlord under Section 3 (iii) of the Act of 1950 does not include the owner within its ambit, as ownership to the premises cannot be subject matter of tenancy. 14. For the plaintiff to succeed on the strength of his own case and SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 8/17 not by the weakness in the case of defendant, learned counsel for the appellant-defendant relied upon the decision in the case of Smt.Lalita James and others vs. Ajit Kumar and others (AIR 1991 MP 15 ) and Moran Mar Basselios Catholicos vs. Thukalan Paulo Avira and others ( AIR 1959 SC 31 ) . 15. For subsequent development taking place during the pendency of the suit and documents with regard thereto taken on record, learned counsel relied upon Adil Jamshed Frenchman (D) by Lrs. vs. Sardar Dastur School Trust and ors. ( JT 2005 (2) SC 332) and about the bonafide need required to be continuing till the final decree or an order of eviction, learned counsel referred to Hemant Rai and anr. vs. Raghunath Prasad ( AIR 1981 SC 1711 ) . To the same effect he referred to the decision of this Court in case of Rakesh Gupta vs. Ahmed Farooq ( 1992 (2) RLW 398 ). 16. For such subsequent events affecting personal bonafide necessity, emphasizing the power and duty of the Court to consider changed circumstances, learned counsel referred to Kedar Nath Agrawal & anr. vs. Dhanraji Devi ( (2004) 8 SCC 76 ) and to the same effect he referred to decision of Hon'ble Supreme Court in case of Prabha Arora & anr. vs. Brij Mohini Anand & ors. ( AIR 2008 SC 643 ). SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 9/17 17. Learned counsel for the appellant-defendant relying upon Hafazat Hussain vs. Abdul Majeed & Ors. ( (2001) 7 SCC 189) submitted that rule of non-interference in concurrent findings of lower courts is not an absolute rule of universal application and such interference can be made if the courts below have (i) ignored evidence on record; (ii) misdirected themselves in the matter of legal principles; and (iii) wrongly cast burden on plaintiff-respondents as to proof. 18. Denying that there was any admission on the part of respondents of the relationship of landlord and tenant in the present case, learned counsel for the appellant-defendant relied upon the decision of Hon'ble Supreme Court in case of Nagubai Ammal and others vs. B.Shama Rao and others. ( AIR 1956 SC 593 ) to support his submission that such admissions have to be clear and unambiguous as per Section 21 of the Evidenct Act, 1872. 19. Advancing his arguments on the personal bonafide necessity of the plaintiffs-landlord, Mr.Nagori relying on the decision of Hon'ble Supreme Court in case of Precision Steel & Engineering Works and another vs. Prem Deva Niranjan Deva Tayal ( (1982) 3 SCC 270 ) urged that the object and purpose of rent control statutes of putting a fetter on the unrestricted right of reentry enjoyed by the landlords with a view to protecting the tenants are not to be so construed or SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 10/17 interpreted as would make the protection of tenant illusory by a liberal approach to the desire of the landlord to evict a tenant under the camouflage of personal requirement. There should be an element of need as opposed to a mere desire or wish. 20. Momentarily drawing back into the history of case laws, learned counsel for the appellant-defendant referred to Neta Ram and others vs. Jiwan Lal and another ( AIR 1963 SC 499 ) in which the Hon'ble Supreme Court held that : “Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about genuineness of his claim and this can only be established by looking at all the surrounding circumstances.” Such a bonafide requirement should be satisfied objectively as against the mere whim or desire of the landlord. This was so said by the Hon'ble Supreme Court in T.Sivasubramaniam and others vs. Kasinath Pujari and others ( (1999) 7 SCC 275 ). 21. Summarizing his arguments on the basis of aforesaid case laws, learned counsel for the appellant-defendant submitted that the courts below have erred in granting decree of eviction against the appellant- SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 11/17 defendant and, therefore, the impugned judgments deserves to be set aside. 22. Countering the submissions made by learned counsel for the appellant-defendant, learned counsel Mr. R.K.Thanvi for the plaintiffs-respondents vehemently submitted that the present second appeal is absolutely merit less. Relying on the decision of this Court in case of Shree Ram vs. Radhaballabh & Anr. ( 2006 (3) DNJ (Raj.) 1204 ) learned counsel urged that it is not for the tenant to suggest as to how the landlord should satisfy his bonafide need of the suit premises. In that case the landlord needed the suit ship for his brother who had gone to Delhi and was working as driver there and after the death of father, the elder brother, who held himself responsible for upbringing his younger brother wanted the suit shop to commence his business but in the absence of same he had to go Delhi and work as driver. In these facts the Court held that the landlord needed the suit shop for his bonafide necessity and such necessity on the date of filing of the suit cannot be said to have vanished even though the younger brother of plaintiff had to go away to Delhi and work as a driver to earn his livelihood. The court expressed in para 9 that, “the painfully long period of litigation taken in these type of matters and the change of circumstances in between cannot avail or enure to the benefit of the defendant and it is not for the tenant to suggest that if the brother of the landlord had gone to SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 12/17 Delhi and was working as driver there, the bonafide necessity of the suit premises for the landlord was over.” 23. To the same effect, learned counsel referred to a decision of Himachal Pradesh High Court in case of Amar Singh vs. Chander Kala ( 1992 (2) AIRCJ 311 ) in which the Court held that landlord cannot be forced to make alternative provisions for tenant and once the landlord satisfies the Court about his bonafide requirement, the court cannot go into other circumstances non-suiting the landlord in eviction matters. The Hon'ble Supreme Court in Sarla Ahuja vs. United India Insurance Company Ltd. ( 1998 (2) RCR 533) held in para 14 of the judgment that once the landlord establishes a prima facie case for bonafide requirement, the Rent Controller could proceed with the presumption that requirement is bonafide and it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. Reiterating these principles in Ragavendra Kumar vs. Prem Machinery and Co. ( AIR 2000 SC 534), the Apex Court held that landlord stating in evidence that he owns many shops and houses but none was vacant and suit premises was most suitable for his business, against the concurrent findings recorded by the courts below that the requirement of landlord was bonafide, the Hon'ble Supreme Court held that interference in such findings on the ground that burden to prove that landlord had many shops in city was wrongly placed on SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 13/17 tenant. For suitability of premises to the landlord's requirement, the Hon'ble Supreme Court held in para 10 that landlord is best judge and has complete freedom in the matter. 24. In Gaya Prasad vs. Pradeep Srivastava ( (2001) 2 SCC 604 ) the Hon'ble Supreme Court held that subsequent development during pendency of eviction petition occurring because of slowness of process of litigation itself and made use of by sitting tenants cannot be made basis for denying the landlord relief when the litigation at last reaches the final stage. 25. In Kirorilal vs. Smt. Kishori Devi and others ( 2004 (4) WLC 464) a learned Single Judge of this Court held that on account of death of plaintiff during pendency of first appeal and plaintiff's son now sitting in rented shop, it cannot be said that personal need to carry on business had gone away and the personal need to carry on business in one's own shop could be held to be continued and dismissal of suit by first appellate court on supposed ground of subsequent even was not held to be justified. 26. The Bombay High Court in Benba Sahadu Modak vs. Suryakant Vitthal Modal & Ors. ( AIR 2006 (Bombay) 62) held that if the contents of judgment by appellate court shows that the Court after applying its mind to the facts and legal aspect involved in the SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 14/17 case showed material compliance of Order 41 Rule 3 CPC and no prejudice can be said to have been caused to other side on account of failure to formulate detailed points for determination by the appellate court which at best would amount to mere irregularity. 27. Relying on the decision in case of Madhavan Nair vs. Bhaskar Pillai ( (2005) 10 SCC 553) learned counsel submitted that where the first appellate court has neither ignored any material evidence having bearing on the decision of the case nor considered any evidence which was otherwise not admissible, the High Court was not justified in interfering with the concurrent findings of facts and it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. 28. To the same effect, is the decision of this Court in case of Kesu Ram vs. Mangi Lal and others [ 2006 (1) Civil Times 93 (Raj.)] . 29. Having considered the rival submissions and appreciating the legal position as cited above, this Court is of the opinion that no substantial question of law arises in the present case for determination. The Courts below have clearly found that the relationship of landlord and tenant was established between the parties and the collection of rent by Shanti Lal Vyas, partner of M/s SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 15/17 Laxmi Timber Mart was on behalf of plaintiffs, the owners of the shop in question. Since there was no specific denial of title on the part of appellant-tenant, nor the issue of title can be decided in eviction matters, therefore, proof of this fact by P.W.4-Shanti Lal Vyas that he was collecting rent on behalf of plaintiffs was enough to hold that there was a relationship of landlord and tenant between the parties. 30. The contention of learned counsel for the appellant-tenant that the books of accounts of M/s Laxmi Timber Mart were not produced before the court is of little significance because these books of accounts cannot, obviously, be in the possession of and control of the plaintiffs. The partner of the said firm M/s Laxmi Timber Mart had appeared in the witness box but the defendant appellant could not elicit anything in the cross examination from him which would demolish his statement that he was collecting rent on behalf of plaintiffs. 31. As far as findings relating to bonafide personal necessity are concerned, this Court is of the opinion that these are findings of facts which do not give rise to any substantial question of law requiring determination under Section 100 CPC. The fact that the plaintiffs have a factory for manufacturing furniture and handicrafts in Basni Industrial Area, Jodhpur and requiring suit shop for opening their showroom of furniture and handicrafts, a fact which was duly proved, SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 16/17 is enough to establish the personal bonafide necessity of the landlord. The suggestion of the appellant-defendant that no books of accounts were produced before the learned trial court to show as to what was the loss caused on account of non-setting up such showroom at Chopasani Road, which is about 7 to 8 kms. away from Basni Industrial Area, is of no avail to the appellant-defendant. The sufferance of actual loss of non-setting up of showroom of furniture and handicrafts was not necessary as such loss could not be measured in terms of money nor it was recorded in books of accounts. The contention of learned counsel for the appellant-defendant that no income tax return, books of accounts etc. were produced before the courts below as evidence in this regard does not impress this Court at all. The difference sought to be made between furniture and handicrafts by the learned counsel is also of little assistance in the matter as it is not the case of deciding such dispute in the realm of Excise Law or Sales Tax litigation. Making furnitures like handicrafts giving them antique look is a booming business not only in the city of Jodhpur but is a worldwide phenomenon and, therefore, the difference between the two even assuming one for argument sake, is of no avail to upset the decree of eviction passed against the appellant-defendant. 32. This Court is also satisfied that the appellate court has passed detailed and well reasoned judgment and has given its findings issue SB.SECOND APPEAL NO.94/08 (M/s.Laxmi Hardware Store vs.Madhusudan & others) Judgment dt.26/8/2008 17/17 wise as framed by the learned trial court which can be taken as points for determination framed by the appellate court and a reading of the judgment of first appellate court shows proper application of mind on the part of learned first appellate court on all the issues and points raised by the appellant-defendant. There is