1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: JUDGMENT :: Dhan Raj Vs. LRs of Nemichand S.B.CIVIL SECOND APPEAL NO.208/1999 Date of Judgment :::: 30th September 2010 PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Ashwini Babel for Mr.Pradeep Shah for the appellant Mr.Vinit Sanadhya for the respondent BY THE COURT: Civil suit for recovery of arrears of rent and for eviction as filed by the plaintiff-appellant against the defendant- respondent (since deceased and represented by his legal representatives) was decreed by the learned Additional Civil Judge (Junior Division), Barmer by the judgment and decree dated 30.11.1998, inter alia, with the findings on reasonable and bona fide requirement and comparative hardship in favour of the plaintiff-appellant. The decree so passed by the Trial Court was, however, reversed by the Additional District Judge, Barmer while allowing the appeal preferred by the defendant- tenant on 30.04.1999 and while reversing the findings on the relevant issues. This second appeal preferred by the plaintiff-appellant against the judgment and decree so passed by the Appellate Court came to be admitted by this Court on 22.07.1999 while formulating the following substantial question of law:- 2 “Whether the learned first appellate court set aside the finding on the question of reasonable and bona fide necessity of the landlord plaintiff-appellant without meeting with the cogent and convincing reasons given by the learned trial court ? In view of the only question formulated for consideration, a brief reference to the facts relevant therefor would suffice. In the suit filed on 03.01.1990, the plaintiff-appellant alleged that his father let out the suit shop to the defendant on Fagun Sudi 1, Svt.2039 on a monthly rent of Rs.75/-; that there had been a dispute in the family of the plaintiff whereupon he filed a suit for partition bearing No.12/1989 wherein a compromise decree was passed on 16.11.1989 and whereby the suit shop came in his share. The plaintiff alleged that the defendant had been habitual defaulter in payment of rent and about 35 months' rent was due on the date of filing of the suit. The plaintiff further alleged that the suit shop was required by him reasonably and bona fide for the purpose of establishing his business. The plaintiff submitted that he was an educated unemployed person; that he had taken up the business of goldsmith with his father and brother for having not been able to secure any employment but now, he wanted to establish his own independent business and the suit shop was the only place available of his ownership to do so. The plaintiff also suggested another ground of eviction by amending the plaint with the allegation that the defendant had not used the suit premises continuously for six months for the purpose for which it was let out. The defendant, while denying the plaint averments, submitted that the shop was taken initially on a rent of Rs.50/- 3 per month but then, the rent was forcibly enhanced to Rs.75/- per month. The defendant also submitted that the said suit No.12/1989 was filed by the plaintiff in collusion with his father wherein a collusive decree was obtained on the first date of hearing. The defendant denied the allegations of his default and of the plaintiff's requirement. The defendant also denied the allegation of non-user of the premises. The learned Trial Court after taking evidence and hearing the parties proceeded to decide the issue regarding default in the manner that the defendant had been first defaulter in payment of rent and decree for eviction on that count could not be passed. On the core question of reasonable and bona fide requirement, the learned Trial Court examined the statements made by the respective witnesses and held that the disputed shop was located in the market area; that the landlord was the sole arbiter of his need and the tenant could not dictate upon the landlord so as to select any particular premises. On the suggestion that there existed accommodation available in the plaintiff's brother Kishan Lal's house, the learned Trial Court held that the plaintiff could not be forced to carry on business thereat nor any oblique motive could be imputed on the plaintiff in suggesting the requirement for establishing his business in the suit shop. The learned Trial Court also referred to the fact that the defendant was carrying on another business of fair price shop at village Fagalia. With these considerations, the learned Trial Court decided the issue of reasonable and bona fide requirement in favour of the plaintiff. The learned Trial Court also decided the 4 issue of comparative hardship in favour of the plaintiff after finding that the defendant was carrying on business in the fair price shop also; and that there were available other premises in the vicinity, which the defendant never bothered to take. Looking to the dimensions of the suit shop and the evidence of the parties, the learned Trial Court also found partial eviction not feasible. An issue was also framed on the question if the decree obtained in the partition suit was a collusive one and the said issue was also decided against the defendant. The learned Trial Court, of course, decided the issue regarding non-user of the premises against the plaintiff. As a result of the findings, particularly those relating to the ground of reasonable and bona fide requirement, the learned Trial Court decreed the suit for eviction. In its impugned judgment dated 30.04.1999, the learned Appellate Court affirmed the finding of the learned Trial Court on issue No.1 relating to default and held that the defendant was entitled to the benefit of first default. On issue No.5 (C) relating to the question of partition in the family of the plaintiff, the learned Appellate Court found no reason to interfere with the finding of the Trial Court; and did not consider the said partition decree to be collusive one. The learned first Appellate Court though observed that the partition was an internal matter of the family and any outsider was not entitled to question as to why the partition was taken up but observed further that other question about such being paper proceedings, intended only to carve out a ground of requirement, was entirely different. However, on the question 5 of bona fide requirement, the learned Appellate Court took note of the fact that the said partition suit was filed on 22.09.1989 and without any service of summons, brother and father of the present plaintiff appeared in the Court on 16.11.1989 and a decree for partition was passed by way of settlement. The learned Appellate Court observed that even when the decree could not be said to be collusive as such and the possibility of existence of a dispute and its settlement on the first date of hearing could not be ruled out but then, referred to the significant facts that on one hand, the plaintiff alleged the relationship in the family being strained and on the other hand, he was allegedly residing and carrying on business in a room given in the share of his brother Kishan Lal. The learned Appellate Court also referred to the fact that even after partition, the plaintiff, his brother and father continued to reside together and then observed that if there was a necessity in the plaintiff at the time of partition, the plaintiff could have been allotted such shop that was vacant and was available for use. The learned Appellate Court referred to the significant fact that one shop that was occupied by another tenant Rajendra remained vacant from about 15.05.1989 to 15.09.1990 and in the meantime, there had been the said partition suit and the compromise decree. The said shop, the learned Appellate Court pointed out, was conveniently available to be allotted to the plaintiff for the purpose of business but the same was allegedly retained by his father Mana Ram and then was let out to another tenant at the rate of Rs.300/- per month. These facts and factors, 6 according to the learned Appellate Court, contradicted and run counter to the allegations of reasonable and bona fide requirement. So far the fair price shop at Fagalia was concerned, the Appellate Court pointed out that the plaintiff's own witnesses alleged that the defendant was sitting there for 15 days and then, the evidence available on record also made out that such licence had already been cancelled and the defendant was not carrying on with the said shop. On these considerations, the learned Appellate Court found the case of reasonable and bona fide requirement and comparative hardship not made out in favour of the plaintiff and reversed the findings on the relevant issues. The learned Appellate Court, of course, confirmed the finding on the issue regarding non-user in favour of the defendant tenant but the same, as noticed, is not relevant in the present appeal. The only question formulated for consideration in this case is as to whether the Appellate Court has failed to meet with the reasonings of the Trial Court while reversing the finding on the question of reasonable and bona fide requirement. In a comprehension of the judgments delivered by the subordinate Courts though it appears at the first look that the Appellate Court has not dealt with each and every reasoning of the learned Trial Court but then, it is noticed that the essential considerations on which the learned Trial Court proceeded were that the suit shop was located in the market area and that the defendant could not dictate terms on the 7 plaintiff as to where he should carry on his business. The learned Trial Court also considered the fact that the plaintiff had been carrying on business for the last 24 years and he required the disputed shop for his business of goldsmith at approachable market place. While these considerations may not by themselves be said to be unjustified but then, in an overall comprehension of the material on record, the manner of filing of the suit for partition and getting a compromise decree on the first date without service of summons could not have been lost sight of. The plaintiff's allegations of requirement and seeking the decree for eviction have their roots in his assertion of having been allotted the suit shop in partition; and else, the suit shop was let out only by the father of the plaintiff. The considerations that weighed with the Appellate Court have been that there was available another shop in the family and if at all the plaintiff was in need of the premises for business, there was no reason that such shop was not allotted to him or that he did not ask for the same. This Court is clearly of opinion that the Appellate Court has rightly taken into comprehension all the facts and surrounding circumstances of the case before finding the elements of reasonableness and bona fide lacking in the requirement as suggested on behalf of the plaintiff-appellant. The discussion of the learned Trial Court though had been elaborate on the question of requirement as suggested by the plaintiff but definitely fell short of consideration of such essential elements of reasonableness and bona fide. The learned Appellate Court has rightly addressed itself to such 8 core and essential elements and found them wanting for the facts available on record; and has rightly considered the surrounding circumstances wherefrom a logical and legal inference was available to be drawn against the plaintiff. When the learned Trial Court overlooked such material and relevant aspects, the Appellate Court cannot be faulted in considering the same and recording the findings against the plaintiff. In an overall view of the matter, the findings of fact as recorded by the learned first Appellate Court cannot be said to be suffering from any perversity or illegality. In this view of the matter, substantial question of law as formulated can only be decided against the plaintiff-appellant. However, before parting, it appears appropriate to observe that the civil suit, filed way back on 03.01.1990, shall stand dismissed with dismissal of this second appeal but then, this dismissal by itself would not otherwise be considered prejudicial to the other rights and recourse to appropriate remedies by either of the parties for any subsequent fact or event. Accordingly, this appeal fails and is, therefore, dismissed with the observations foregoing. In the circumstances, the parties are left to bear their own costs of this appeal. (DINESH MAHESHWARI), J. MK 9