1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. Dr. Surya Kumar vs. Mohd. Rafiq & ors. S.B. Civil Second Appeal No. 223/97 against the judgment and decree dated 1.10.1997 passed by the learned Addl. District Judge No.2,Bhilwara in Civil Appeal No. 128/96(37/93) Date of Judgment: May 04, 2007. PRESENT HON'BLE MR. PRAKASH TATIA,J. Mr. Manish Shishodia for the appellant. Mr. Ravi Bhansali for the respondents. BY THE COURT: The appellant has preferred this appeal against the judgment and decree passed by the first appellate court dated 1.10.1997. The trial court decreed the suit of the plaintiffs on the ground of personal bona fide necessity of the plaintiffs and granted decree for eviction of the appellant-tenant from the part of the premises as according to the trial court, the need of the plaintiffs can be satisfied by the part of the premises. The plaintiffs and defendant being aggrieved against the judgment and decree of the trial court dated 12.8.1993 preferred 2 two separate appeals which are Civil First Appeal No.128/96 (37/93) by the plaintiffs and the Civil First Appeal No.134/96 (47/93) by the tenant. The first appellate court allowed the appeal of the plaintiffs and granted decree for eviction of the tenant- appellant from whole of the suit premises on the ground of personal bona fide necessity of the plaintiff as well as on the ground of non-user of the suit premises by the tenant-appellant. Hence this second appeal. Following substantial questions of law were framed by this Court while admitting the appeal on 2.12.97:- “(i) Whether the learned first appellate court has committed substantial error of law and procedure in reversing the findings of the learned trial court on issues no.4 and 5(b), if so its effect? (ii) Whether the learned first appellate court has committed jurisdictional error in rejecting the application for amendment of written statement ? The learned counsel for the appellant vehemently submitted that the trial court committed serious error of law in decreeing the suit of the plaintiffs on the ground of personal bona fide necessity, as the plaintiffs already had several shops with him and the plaintiffs failed to prove the need of the suit premises for his son. 3 The first appellate court committed error of law by upholding the finding of the trial court on the question of personal bona fide necessity of the plaintiffs and further committed error of law by reversing the finding of the trial court on the question of non-user of the suit shop by the appellant-tenant. It is submitted by the learned counsel for the appellant that the first appellate court did not consider the reasons given by the trial court on the basis of which the trial court rejected the plaintiffs' case that the suit premises has not been used by the defendant-tenant for more than six months. The learned counsel for the appellant also submitted that the plaintiff himself admitted in his statement before the trial court that the defendant used to open the shop, however, the plaintiff stated that the shop was opened by the defendant-tenant only once in two or three months. The learned counsel for the appellant submitted that as per sub-section 13(1)(j), the landlord is required to prove that the suit premises has not been used without reasonable cause for continuous six months immediately proceeding the date of filing of the suit. In view of the above, the statement of the plaintiff himself, the suit of the plaintiffs, seeking eviction on the ground of non-user of the suit premises by the defendant-tenant-appellant should have been dismissed by the 4 first appellate court and the trial court rightly dismissed the suit of the plaintiffs for eviction of the tenant on this ground. The learned counsel for the appellant also submitted that the plaintiff was doing business of his printing press in the suit shop for which the electric connection was there. The courts below failed to read the evidence of the defendant where the defendant stated that he is also doing the job work in the suit shop. The defendant only sold two of the machines which he was using for his printing press business and from the evidence, it is proved that from other machines, the defendant was doing the business of the printing press in the suit premises. The defendant also produced the witnesses which have been wrongly discarded by the first appellate court. Substantially the contention of the learned counsel for the appellant is that the first appellate court's finding on issue of non-user of the suit premises is because of the non- consideration of the material evidence and ignoring the statement of the plaintiff. It appears that during the pendency of the first appeal, an application was submitted by the defendant-tenant-appellant under Order 6 Rule 17,C.P.C. By this application, the defendant- tenant sought amendment in the written statement to incorporate 5 the subsequent events. According to the appellant-tenant, by that time, the plaintiff has started business of shoes by putting a tin- shed near a road by removing his cabin and submitted that in the back side of that shop of defendant, the plaintiff's son Mohd. Jakir started his business and, therefore, the need of the plaintiff's son is also come to an end. The plaintiff denied that fact and stated that the business of selling of shoes is going on as it was going on road without there being any cabin or the shop. He also submitted that any commissioner may be appointed to inspect the site. The plaintiff also denied that his son started business behind the shop of the defendant. He also submitted affidavit in support of his contention. The first appellate court, while dismissing the appeal, considered this application of the defendant-tenant filed under Order 6 Rule 17,C.P.C. and while dismissing the application, held that even if the contention of the defendant is accepted then also by this event, the need of the plaintiff or his son has not come to an end because of the reason that plaintiff's son even started the business by putting a tin-shed near a road, then that is a fact irrelevant. The first appellate court held that the said event cannot be alternate to the need of the plaintiff for the suit premises. The appellant has also challenged the order of rejection 6 of the trial court of the application filed under Order 6 Rule 17,C.P.C. It is also submitted by the learned counsel for the appellant that the first appellate court as well as the trial court both committed error of law in deciding issue no.5(b) against the appellant-tenant. According to the learned counsel for the appellant, even if there was any need of the plaintiff then that can be satisfied by the part of the suit premises, however, that is subject to his right to challenge the finding of the courts below on issue of personal bona fide necessity. The learned counsel for the plaintiff-respondents vehemently submitted that they are very poor persons and are doing their small trade on road and they sought eviction of the tenant-appellant on the ground of personal bona fide necessity as well as on the ground of material alteration and because of the fact that the suit premises is not being used by the defendant- tenant for any purpose. The learned counsel for the respondents submitted that the defendant-tenant-appellant himself admitted that he sold the machinery of the printing press and also admitted that the power connection has already been disconnected. It is also submitted that even till now, the suit premises is totally closed 7 and is not in use. The learned counsel for the respondents vehemently submitted that in fact the finding of fact has been recorded by the first appellate court after appreciation of evidence and the contention of the appellant that the court below did not consider the statement of the plaintiff wherein the plaintiff admitted that the defendant used to open the shop, is absolutely irrelevant and out of context because of the reason that the landlord is entitled to decree for eviction on the ground of non-user of the suit premises and opening the shop once only in 2-3 months, does not mean to use the shop for the purpose for which it was taken on rent. So far as personal bona fide necessity is concerned, as stated above, the contention of the learned counsel for the respondents-landlords is that it is a hard case and case of even dire need of the plaintiffs for the suit shop. According to the learned counsel for the plaintiffs, the question of partial eviction of the suit premises does not survive when the suit has been decreed on the ground of non-user. However, when the suit is decreed for part of the premises, then also according to the learned counsel for the respondents, the decree granted by the trial court was absolutely illegal as the trial court failed to appreciate the actual position of the shop apart from the fact that 8 in fact the suit property could not have been divided into two which could have satisfied the need of any of the parties. I considered the submissions of the learned counsel for the parties and perused the record also. So far as the finding on issue no.5(b) recorded by the first appellate court is concerned, for that the defendant himself in his statement before the trial court, very clearly admitted that defendant's shop's power connected was disconnected. Therefore, the defendant's bare statement that he still continuing with the business of printing press, could not have been believed. But the trial court, ignoring this material piece of evidence merely on the basis of the statement of the plaintiff held that the defendant used to open the shop once only in two or three months amounts to his using the shop for the purpose for which it was taken on rent. The approach of the trial court on the face of it was absolutely contrary to law. The defendant cannot say that he since opens the shop, therefore, this may be treated to be his using the shop. As per clause (j) of sub-section(1) of Section 13 of the Act of 1950, it is clear that the defendant is required to use the shop for the purpose for which it was taken on rent and cannot avoid the decree for eviction by saying that he is opening the shop. 9 Otherwise also, even if the admission of the plaintiff is to be seen then that admission is only that in 2-3 months, the defendant used to open the shop. That admission does not mean admission of defendant's business in the suit shop. The finding of the first appellate court is based on evidence as well as on the basis of the statement of the defendant himself. The first appellate court rightly held that there are contradictions in the statements of the witnesses and the statements are contrary to the evidence of the defendant himself. Therefore, those evidence were rightly discarded. In fact this is not a case of misreading of evidence of any party by the first appellate court nor it is a case where the first appellate court has ignored any material piece of evidence. In fact the first appellate court corrected the mistake committed by the trial court, on question of non-suer of the suit shop by the tenant. Though no substantial question of law has been framed by this Court while admitting the appeal on the challenge to the finding of the two courts below on the ground of personal bona fide necessity but the learned counsel for the appellant tried to submit that the plaintiff's need come to an end when the plaintiff's son obtained the accommodation for running his business. For that 10 purpose, according to the learned counsel for the appellant, an application was submitted before the first appellate court for amendment of the written statement. That was dismissed by the first appellate court illegally. It is submitted that the event took place after the decision of the trial court and that was a subsequent event and, therefore, without giving opportunity to the defendant to prove the fact, the first appellate court should not have rejected the contention of the defendant-appellant-tenant. I considered this aspect of the matter also. In fact the contention of the defendant-tenant is that since the plaintiff's son has started business during the pendency of the suit and for that purpose, he in place of doing the business on road without roof, now has a tin-shed. Assuming for the sake of argument that the plaintiff's son has started business and for that purpose he might have been permitted to put any tin-shed by any government authorities, but that does not mean that that situation can disentitle the plaintiff from seeking decree for eviction of the tenant. Not only this but doing of the business during the pendency of the suit at different place is a fact which only shows that there is need of the petitioner for accommodation. The tenant cannot avoid decree for his eviction unless it is proved that the 11 accommodation is of the plaintiff and is sufficient and reasonable accommodation for doing the business. That basic fact is missing in the application of the defendant-tenant for amendment of the written statement. Therefore, the first appellate court rightly dismissed the defendant's application for amendment of the written statement at appellate stage. In view of the above reasons, the substantial questions of law are decided against the defendants. I do not find any merit in the appeal. The learned counsel for the appellant, at this juncture submits that the appellant may be granted 2-1/2 years' time to vacate the suit premises, which is being opposed by the learned counsel for the respondents-landlords on the ground that the suit was decreed by the court below on the ground of non-user of the suit premises, the suit premises is totally locked and is not in use in any manner, therefore, there is no reason for granting any time to the appellant-tenant. Since according to the learned counsel for the appellant, the appellant-tenant is of the age of 71 years and his son is studying, therefore, he may be granted time. Though it is case of need of the plaintiffs as well as the premises are held to be not used by the defendant,therefore, in place of ordering vacating the suit 12 premises within two months, the decree of eviction shall not be executed till 31.12.2007. Therefore, it is ordered that in case, the appellant furnishes a written undertaking before the trial court within a period of two months from today that he shall hand over the vacant possession to the landlord by or before 31.12.2007 and shall not part with the possession or sublet the suit premises during this period and shall pay all the arrears of rent and decretal amount, if due, and shall also pay the rent up to 31.12.2007(in advance) within a period of two months from today before the trial court or directly to the landlords-respondents, the decree under challenge shall not be executed till 1.1.2008. In case of non-compliance of the order or default in payment of amount mentioned above, the decree shall become executable forthwith. With the aforesaid concession, this appeal is dismissed. ( PRAKASH TATIA ),J. mlt.