1 SBCSA No. 181/03 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T S.B. Civil Second Appeal No. 181/03 LRs. of Khayali Ram Vs. Mahaveer Prasad Date of Judgment : 15/10/2009 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. R.K.Singhal for the appellants. Mr. R.K.Thanvi for the respondent. BY THE COURT Reportable This civil second appeal under Section 100 CPC is directed against the judgment and decree dated 20.5.2003 passed by Additional District Judge No.1, Sriganganagar (for short 'the first appellate court' hereinafter) in Civil Appeal No. 36/2000 whereby the judgment and decree dated 10.5.1999 passed by Civil Judge (Junior Division), Sriganganagar (for short 'the trial court' hereinafter) in Civil Original Suit No. 103/94 was set aside and the appeal was allowed in favour of respondent Mahaveer Prasad. Briefly stated the facts to the extent they are relevant and necessary for the decision of this appeal are that respondent Mahaveer Prasad filed a suit for eviction and permanent injunction before the trial court seeking decree of 2 SBCSA No. 181/03 eviction of Shop No. 103, Jawahar Market, Sriganganagar and restraining the original tenant Khayali Ram from causing any damage to tenanted shop on the ground that the respondent landlord needs the rented shop for his reasonable and personal bonafide necessity in order to run Provision Shop (Pansari Shop). The original tenant filed written statement to the suit. The trial court framed as many as six issues. The parties led evidence and by judgment and decree dated 10.5.1999, the suit filed by the respondent plaintiff came to be dismissed, against which the respondent filed a regular first appeal before the first appellate court. The first appellate court reversed the finding of trial court by the judgment and decree impugned dated 20.5.2003. Hence this second appeal. This appeal came to be admitted on the following substantial questions of law :- (i)Whether the first appellate court misread the FIR No.85/94 and wrongly reached to the conclusion that the plaintiff and plaintiff's son had no good relations and, therefore, the plaintiff could not have been expected to produce account books of the Shop No.55 and the plaintiff was not in position to examine his own son in support of his case ? (ii) Whether the first appellate court committed illegality in holding that the appellant's plea, that they were working with the deceased tenant in the shop in dispute, cannot be accepted? 3 SBCSA No. 181/03 I have heard learned counsel for the parties. It is contended by learned counsel for the appellants that FIR No.85/94 came to be lodged by the respondent landlord against original tenant Khayali Ram and other persons namely Kashiram Santlal, Devilal etc. with police station Kotwali, Sriganganagar on 27.2.1994 for the offences under Sections 447, 427 and 341 IPC alleging therein that there were two shops, one of which is rented to tenant Khayali Ram, however, the roof of the said shop is not a part of tenement nor the staircase adjacent to other shop. It was alleged that on 27.2.1994 at about 9.00 A.M. when respondent landlord went to his shop, he noticed that at the staircase leading to roof of Shop No.103 a lock was put there and the door was closed. When he reached on the roof of the shop, he found the accused persons named in the FIR namely Khayali Ram and three others with one Mason and two labourers and they were removing the bricks from the roof and caused damage to the roof of the shop etc. According to learned counsel for the appellants, on the date of lodging of the report, respondent landlord was running business in the shop adjacent to the disputed shop and therefore, the respondent landlord had no personal necessity of the shop much less reasonable and bonafide. It is further contended that while dismissing the suit, the trial court has considered the said FIR Ex.A-2 but the first appellate court misread the said FIR while reversing the finding of the trial court. Counsel for the 4 SBCSA No. 181/03 appellants further contended that the first appellate court fell in error in not accepting the plea of the appellants tenants who are legal representatives of the original tenant that they were working with the deceased original tenant on the disputed shop during the life time of the original tenant. Learned counsel for the appellants further submits that the respondent landlord filed the suit for ulterior motive as during subsistence of the tenancy, the respondent landlord had made efforts to harass the original tenant. Learned counsel for the appellants has relied on decisions of Hon'ble Supreme Court in Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada, AIR 2003 SC, 2713, in Ishwar Dass Jain (dead) through LRs., Vs. Sohan Lal (dead) by L.Rs., AIR 2000 SC, 426 and two decisions of this Court in Bhagirath Vs. Ram Prasad and Another 1987 (2) WLN, 626 and in Uda Ram Vs. Pyare Lal, 2003 (1) Western Law Cases (Raj.), 687. Learned counsel appearing for the respondent landlord supported the judgment and decree impugned of the first appellate court and contended that right from filing of the suit, respondent plaintiff landlord specifically came with a case by pleading in the plaint that earlier he was sitting at the shop of his son supporting his business of trading in cement but for last two months there has been some dispute between him and his son and they are not having good relation and the relation between the son and father has become strained and therefore, 5 SBCSA No. 181/03 his son now does not allow the respondent to sit on the shop and share the business and he is sitting idle and as such needs rented disputed shop No. 103, Jawahar Market, Sriganganagar measuring 7x10 fts. for his personal reasonable and bonafide necessity in order to run Grocery shop. This fact has been specifically pleaded and proved by evidence by plaintiff respondent PW-1 and the statement of PW-1 plaintiff respondent fully finds support from the statement of PW-2 Ashok Kumar. According to learned counsel for the respondent landlord, the trial court fell in error in drawing adverse inference against the plaintiff respondent for not producing the accounts books of the shop run by his son as also not producing the plaintiff respondent's son as a witness. According to learned counsel for the respondent when there had been a strained relations between the plaintiff respondent's son and the plaintiff and they were not on good terms resulting in respondent sitting idle without any job or business and in that situation, it was not expected from the plaintiff respondent to produce a person in evidence viz. his son with whom he had very bitter relations so also producing the accounts books of his son who even at the request of the respondent landlord would not have produced such books of accounts when they are not in good relation. So far as the contention raised by learned counsel for the appellants with regard to not accepting the plea of legal representatives of the deceased original tenant that they were working with original 6 SBCSA No. 181/03 tenant during his life time, is concerned, learned counsel for the respondent landlord submits that there was neither any pleading to that effect nor the issue between the parties before the trial court and it was for the first time before the first appellate court that the legal representatives of the original tenant raised the contention that they were working with the original tenant during his life time and that has been rightly answered by the first appellate court that there is no evidence in support thereof. Even according to the learned counsel for the respondent landlord, the appellant tenant or his legal representatives failed to produce any evidence either before the trial court or before the first appellate court that legal representatives of the original tenant have been working with the original tenant during his life time. Neither oral nor documentary evidence have been produced in support thereof. Therefore, the first appellate court was justified in rejecting the contention raised by legal representatives of the original tenant before the first appellate court. Even otherwise, according to learned counsel for the respondent landlord, the suit is based on the ground of reasonable and bonafide personal necessity of the landlord and therefore, as to whether the legal representatives of original tenant had been working with the original tenant during his life time in the disputed shop would not materially alter the position. Learned counsel for the respondent further submits that the landlord is best judge to decide his personal requirement of the shop and it cannot be left open to 7 SBCSA No. 181/03 the tenant to question the same. Learned counsel for the respondent has relied on decisions of Hon'ble Supreme Court in R.C.Tamrakar and Another Vs. Nidi Lekha (2001) 8 SCC 431, in Siddalingamma and Another Vs. Mamtha Shenoy (2001) 8 SCC, 561, in Mohinder Prasad Jain Vs. Manohar Lal Jain 2006 (2) Civil Court Cases, 1 (SC) and two decisions of Punjab and Haryana High Court and Karnataka High Court in Mohinder Kumar Vs. Mohini Devi and another 2009 (1) RLR 103 (P&H) and in Subhash Jadhav and another Vs. Ravishankar Rasalkar, 2008 (1) Rent Law Reporter,332. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. In Badrinarayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada (supra), Hon'ble Supreme Court while considering the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, S. 13 (1) (g), (2) held that a mere wish or desire of the landlord to acquire possession over the tenancy premises cannot be said to be a bona fide and reasonable requirement. Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. For the purpose of comparative hardship under S. 13 (2) the degree of urgency or the intensity of felt need assumes significance. It is a judicious process of finding out, as far as practicable, and then making a comparative measure of the two degrees, which is involved in arriving at a finding on comparative 8 SBCSA No. 181/03 hardship. In Ishwar Dass Jain (dead) through LRs., Vs. Sohan Lal (dead) by L.Rs. (supra), the Hon'ble Apex Court held that the Court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider the important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. It was further held that where the findings by the Court of facts is vitiated by non- consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. In Bhagirath Vs. Ram Prasad and Another (supra), this Court held that mere desire of the landlord is not sufficient to prove his bonafide need. In that case, the plaintiff has not produced any evidence in support of his assertion nor has produced any certificate nor the person who had purchased the property has been examined. There was no evidence that the plaintiff has got sufficient funds for making additions and alterations or that any capital for starting the new business of cloth and running a restaurant. The plaintiff therein has already been carrying on his business of transportation in addition to money lending and cultivation of land, whereas the tenant has got no other alternative accommodation available to him where 9 SBCSA No. 181/03 he could shift his business. Merely because the defendant has not been able to prove by evidence that the plaintiff had filed the suit for oblique motive like increase in rent, the case of the plaintiff cannot be held to be proved for his bonafide need. In Uda Ram Vs. Pyare Lal (supra), this Court held that a decision of Court must, in law, be based on the evidence, oral and documentary, legally adduced in the case. The Court will, therefore, be committing an error of law (1) if it bases its decision on no evidence at all, or by wrongly discarding evidence and on mere surmises and conjectures; (2) if it bases its decision on irrelevant and inadmissible evidence as such evidence is no legal evidence; (3) if it misreads the evidence, i.e. assumes certain evidence to exist where there is none or vice versa; (4) if it disregards or fails to consider material evidence in arriving at the conclusion. The expression “reasonable” came to be considered by Hon'ble Supreme Court in Raghunath G. Panhale (dead) by LRs. Vs. M/s. Chaganlal Sundarji and Co., AIR 1999 SC 3864 wherein Hon'ble Supreme Court held that the word 'reasonable', connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word 'requirement' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. In R.C.Tamrakar and Another Vs. Nidi Lekha (supra), 10 SBCSA No. 181/03 while considering the expression 'bonafide requirement of landlord' the Hon'ble Supreme Court held that law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bona fide requirement, it is unnecessary to make an endeavour as to how else the landlord could have adjust himself. In Siddalingamma and another Vs. Mamtha Shenoy (supra) while considering the expression 'bonafide requirement of landlord' the Apex Court held that Rent control legislation generally leans in favour of the tenant; it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of the landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. It was further held that the question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the 11 SBCSA No. 181/03 tenant's continued occupation in tenancy premises. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222, the Hon'ble Supreme Court held that a bona fide requirement must be an outcome of a sincere, honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive the need is bona fide. In Deena Nath Vs. Pooran Lal (2001) 5 SCC, 705, the Hon'ble Supreme Court held that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. In Mohinder Prasad Jain Vs. Manohar Lal Jain (supra), the Hon'ble Supreme Court held that experience in the business is not a pre-condition under any statute. Even no experience therefor may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, the Court may not, unless an appropriate 12 SBCSA No. 181/03 case is made out, disturb the finding of fact arrived at by the appellate authority. In Mohinder Kumar Vs. Mohini Devi (supra), Punjab and Haryana High Court held that it is settled principle of law that the need of the landlord has to be judged from his view point and not from the view point of the tenant and tenant cannot dictate to the landlord as to which premises are to be utilised and in what manner. In Subhash Jadhav and another Vs. Ravishankar Rasalkar (supra), Karnataka High Court held that it is well- settled law that the landlord is the best judge of his requirement for residential or non-residential premises, which is in occupation of a tenant. He has a complete freedom on the premises to evict a tenant. In the instant case, the respondent plaintiff specifically pleaded and proved by evidence that he owns Shop No.55 and 103 situated at Jawahar Market, Sriganganagar. In the Shop No.55, the business of trading in Cement namely Brand Chetak and Manglam Cement is being run by his son Laxmi Narayan, however, he has also been sitting with his son on the said shop. Before filing of the suit there had been some differences between him and his son Laxmi Narayan resultantly his son did not allow the respondent landlord to sit on the said shop of trading in cement run by his son and therefore, he has been sitting idle and in order to run his own business sought 13 SBCSA No. 181/03 decree of eviction against the original tenant Khayali Ram. The original tenant defendant came with a plea that the respondent landlord's son is running a business of commission agent in Banks and Post Offices, however, nothing in support thereof has been produced by the defendant. On the contrary, the evidence available on record clearly goes to show that the respondent landlord's son Laxmi Narayan is trading in cement in the shop No.55. The trial court disbelieved the case of the respondent landlord solely on the ground that the respondent landlord failed to produce any documentary evidence to the effect that the business of trading in cement is run by his son Laxmi Narayan. In order to prove an issue it is not necessary that the documentary evidence is must, on the contrary, issue of fact not based on any document can be proved by oral evidence. In the instant case, on close scrutiny of the statement of PW-1 Mahaveer Prasad and PW-2 Ashok Kumar a neighbour of the shop in dispute, in my view, the landlord has proved that in the shop No.55 business of trading in cement is run by his son Laxmi Narayan as also proved that earlier he used to sit with his son but subsequently there had been some disputes between them and relations between them became strained resulting thereby his son declined to allow his father respondent landlord to sit in the shop in which his son runs business of trading in cement. The trial court drawn certain adverse inferences with regard to non-production of documentary evidence of his son running 14 SBCSA No. 181/03 business in trading of cement in Shop No.55 but simultaneously ignored that the defendant tenant failed to produce any evidence worth reliable to prove that the respondent landlord's son is running business of commission agent of Bank and post offices. On close scrutiny of the record, no such documentary evidence has been placed on record by the defendant. The trial court ought to have applied same standard while considering the said plea of the defendant and first appellate court in my view, rightly reversed the finding of the trial court based on such assumptions and adverse inferences drawn by it, relying on direct ocular evidence produced by the respondent landlord. While considering the case of strained relation between the respondent landlord and his son, much emphasis has been placed by the trial court on the FIR lodged by the respondent against the original tenant Khayali Ram and three others as noticed above in which respondent landlord stated that he was sitting on the shop No.55. Even otherwise, the said FIR has hardly any relevancy to decide the issue between the parties for the reason that the landlord respondent himself came with a case that earlier he used to sit on the shop of his son in which his son running business of trading in cement and therefore, even on the date of lodging of FIR, if the respondent landlord was sitting on the said shop, it does not alter any position of the case set up by him. The trial court has also declined the decree of eviction on the ground that the respondent landlord does not possess the 15 SBCSA No. 181/03 requisite experience for running a grocery shop and also on the ground that the size of the shop is 7x10 fts. and for running grocery shop a very big shop is needed and the shop in dispute is small shop i.e. measuring 7x10 fts. In my view, the finding of the trial court in this regard is totally absurd. On the contrary, the first appellate court has rightly concluded that to run a grocery shop, a very big shop is not required and a shop measuring 7x10 fts. can reasonably accommodate certain articles which are necessary to run grocery shop. Even otherwise, Hon'ble the Supreme Court, in Mohinder Prasad Jain Vs. Manohar Lal Jain (supra) held that experience in the business is not a pre-condition under any statute. Even no experience therefor may be necessary. What the Court is required to consider is that the landlord has proved his bonafide requirement to evict the tenant for his own purpose. The Court may not unless an appropriate case is made out, disturb the finding of fact arrived at by the appellate authority. While adjudging the reasonable and bonafide requirement of the landlord, it is true that the need of the landlord to occupy the rented premises has to be natural, real and sincere as against mere desire of the landlord. Considering the case in hand on the material on record, it cannot be said that the respondent landlord seeks a decree of eviction only for a mere desire when from the pleading and evidence produced by the landlord and witnesses produced by him have established that the respondent landlord is sitting 16 SBCSA No. 181/03 idle may be earlier he used to sit on the shop of his son and do some work there but at any rate when the respondent landlord specifically came with a case that there had been strained relations between him and his son and his son does not allow him to sit on the shop, obviously, without sitting on the shop he would not be in a position to share any benefit out of the business of trading in cement run by his son and therefore, has thought fit to get the disputed rented premises evicted in order to run his own business of grocery and for running the business of grocery as to whether any experience is needed or not is not material even if the witness says that he did not earlier run the business of grocery would not preclude him from running business of grocery at subsequent stage and therefore, in my view, there is nothing on record to show that the first appellate court misread the FIR lodged by the