Hon''ble Kothari, J.@mdashThe Respondent (Plaintiff) filed a suit against the Appellant (Defendant) on the ground that he is a tenant in a shop situated on the ground floor of his property having Nos. 4/509 (old) and 1/45 (new) situated in Pali Bazar, Beawar known as Dream Land since 01.01.1966. A rent deed was executed between the father of the Plaintiff and the Defendant on 30.12.1965 which was registered on 09.03.1968. Upon the death of his father on 04.12.1976, by virtue of a Will dated 16.09.1974, he became the owner of the property. The Defendant was duly informed about it and he paid rent to the Plaintiff thereafter. The Defendant paid rent upto September, 1982 vide receipt dated 05.10.1982 and thereafter the rent has neither been tendered nor given. The Defendant has sub-let and parted with possession of the shop to Heman Das. The shop is a bonafide and reasonable need of the Plaintiff who is doing business in a shop in the village, Ateetmund. The Plaintiff has four sons. His second son is employed in Dubai and he also wants to settle in Beawar to do business in cloth. The third son of the Plaintiff has left studying and is unemployed. He also intends to start a cloth business in the shop. The Plaintiff, along with his two sons, who are members of the Joint Hindu Family, will start a cloth business in the shop and if the shop is not vacated, greater hardship will be caused to them. The Plaintiff is of an advanced age and he does not keep good health. The business in the village has gone down considerably due to famine. Hence, the Plaintiff also wants to shift to Beawar to do cloth business in the shop along with his two sons. The Defendant is not sitting in the shop as he has another shop in front of Khetawat Building in the same market and is running his cloth business in it. He will not face any hardship if he is made to vacate the shop. He can also get another shop anywhere easily. The Plaintiff prayed that decree for ejectment and Rs. 2880/- as arrears of rent may be passed against the Defendant. The Defendant admitted the tenancy and submitted that the shop was given on monthly rent of Rs. 55/- per month on 01.01.1966 which was increased to Rs. 65/-, 70/- and 80/- per month respectively. When the Plaintiff did not accept the rent, it was sent by Money Order but the same was also refused. Hence, he had to deposit the rent in the Court. Rent upto March, 1989 has been deposited in the Court and he has not committed default. He has not sub-let or parted with possession of the shop to Heman Das who is his younger brother. The Plaintiff and his family do not need the shop as the Plaintiff has a food business in the village. One of his sons is an Advocate and the other son has a business in Dubai. The third son of the Plaintiff is also doing business independently. The sons of the Plaintiff are not dependent on him. The Defendant is doing his business in the shop for the past 25 years. He, along with his younger brother and father, are partners and conduct the business in both the shops, i.e., suit shop and the; other shop. They will not be able to manage their business only in the other shop. The Defendant is not in a position to purchase a shop. He will face great hardship if he is made to vacate the shop. He has no other accommodation for doing business while the Plaintiff has other shops also. The Plaintiff wanted to increase the rent upto Rs. 300/- and on refusal has filed the suit malafidely. The standard rent of the shop cannot be more than Rs. 55/- per month and the suit is liable to be dismissed. The Plaintiff submitted a rejoinder denying that the Defendant, his younger brother, Heman Das, and his father, Hasomal, are partners and doing business in the shop. The shop is a bonafide and reasonable necessity of the Plaintiff and his family. He and his sons will do business in the suit shop. He has experience of the business and money for investing in it. His son often comes to Beawar from Dubai as his family is living with the Plaintiff. The Plaintiff has a Joint Hindu Family and the standard rent of the shop should be increased to Rs. 150/-.
2. On the pleadings of the parties, the Trial Court framed six issues. Mohan Lal PW-1, Natthu Mal PW-2, Manohar Lal PW-3, Uttam Chand PW-4 and Shanker Das PW-5 were examined on behalf of the Plaintiff, while Thakur Das DW-1 and Ram Chandra DW-2 were examined on behalf of the Defendant. After hearing the parties, the Trial Court decided issue Nos. 1, 3, 4 and 5 regarding default, arrears of rent, standard rent and Plaintiff''s desire of increasing rent which were decided in favour of the Plaintiff. Issue No. 2 regarding reasonable and bonafide need was decided against the Plaintiff and the suit of the Plaintiff was dismissed regarding ejectment by giving benefit of first default to the Defendant on 17.05.1999. The Plaintiff preferred an appeal against the aforesaid judgment and decree. After hearing the parties, the Appellate Court decided issue No. 2 in favour of the Plaintiff and allowed the appeal by setting aside the finding of the Trial Court on issue No. 2 and suit for eviction was decreed on 02.03.2009. The Defendant has preferred this second appeal against the said judgment and decree u/s 100 Code of Civil Procedure.
3. I have heard the Learned Counsel for the parties at length and carefully gone through the record of both the courts below.
4. The Learned Counsel for the Appellant has contended that as no issues about partial eviction and comparative hardship were framed by the learned Trial Court and that no findings have been given on the aforesaid questions, substantial questions of law are involved in this appeal requiring adjudication by this Hon''ble Court. He has further contended that from the evidence on record, it is not proved that the suit shop is a bonafide and reasonable requirement of the Plaintiff for his own use and that of his sons, Mohan and Manohar Lal, and, in the circumstance, the judgment and decree of the Appellate Court cannot be sustained.
5. On the other hand, Learned Counsel for the Respondent has submitted that the suit shop was given on rent on 01.01.1966 and is a bonafide and reasonable requirement of the Plaintiff and his sons. There is nothing on record to show that the suit was filed with ulterior motive and the learned Appellate Court has properly discussed the entire evidence and correctly decided issue No. 2 in favour of the Respondent. He has also submitted that the questions of comparative hardship and partial ejectment have also been considered by he learned Courts below even when it was not raised in the pleadings by the Appellant and no issues were framed on those points. Lastly, he has submitted that no substantial question of law is involved in this appeal and it may be dismissed at the admission stage.
6. I have given my thoughtful consideration to the above submissions.
7. The Hon''ble Apex Court in
A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ''substantial'', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.
8. The grounds mentioned in Section 13(1)(h) of Rajasthan Premises (Control of Rent and Eviction), Act, 1950 (hereinafter called "the Act") is couched in a language to provide emphasis to the genuineness of the requirement of the landlord by using the words "reasonably and bona fide required by the landlord". In fact both terms (reasonably and bona fide) are complimentary to each other in the context, for any unreasonable requirement is not bona fide. Vice-versa can also be spelt that if the requirement has to be bona fide it must necessarily be reasonable also. But when the legislature employed the two terms together the message to be gathered is that the requirement must be really genuine from any reasonable standard. All the same, genuineness of the requirement is not to be tested on a par with dire need of landlord because the latter is a much greater need.
9. Keeping the aforesaid legal position in mind, I proceed to consider the contentions of the parties. At the outset, it may be stated that the appeal has not been admitted and substantial questions of law are yet to be framed. It also deserves to be mentioned that the Appellate Court has discussed factual and legal position in respect of issue No. 2 framed in the suit, as all other issues were decided in favour of the Respondent by the Trial Court. After elaborate discussion and analysis of the oral evidence produced by the parties as well as the authorities relied upon by them, the Appellate Court has decided issue No. 2 in favour of the Respondent and decreed the suit. I have carefully gone through the findings of both the courts below on issue No. 2. The Trial Court decided issue No. 2 against the Respondent on the grounds that the account books of the business being carried out by the Plaintiff in his village Ateetmund have not been produced to prove that his business there has been reduced and he wants to shift to Beawar. The Trial Court has also held that no evidence has been produced to show that Mohan, the son of the Plaintiff, was employed in Dubai with T. Chothram and Company. It has also observed that no evidence has been produced to show that the Plaintiff has sufficient capital for starting a cloth business. The Appellate Court has considered the bonafide and reasonable need of the Plaintiff and his sons for the suit shop with meticulous care and attention. It has discussed the statements given by the witnesses of the parties in respect of the need of the Plaintiff, his sons, Mohan and Manohar, separately. It deserves to be mentioned that the Plaintiff examined himself and produced both the aforesaid sons to prove their need. A careful reading of Paras 15 to 29 of the judgment of the Appellate Court clearly shows that the entire oral evidence of the parties has been critically examined and a conclusion ha; been drawn that the evidence proves that the need is bonafide and reasonable. The Appellate Court has also discussed the observations of the Trial Court which led it to decide issue No. 2 against the Plaintiff.
10. Even though no specific issues were framed by the Trial Court on the questions of comparative hardship and partial eviction as per mandate of Section 14 of the Act, both the Courts have considered these questions in their judgment. The Trial Court has observed in Para 20 of its judgment that if the shop is got vacated, it will cause greater hardship to the Defendant as bonafide and reasonable need of the Plaintiff has not been proved. So far as partial eviction is concerned, it has observed that though both the parties have not produced any evidence on the point, the Plaintiff has not stated that his purpose will be served by partial eviction. The Appellate Court was conscious that in view of a reversal of finding on issue No. 2, it was imperative for it to consider the questions of comparative hardship and partial eviction. A careful reading of Paras 30 to 35 shows that after elaborate consideration of the available evidence of the parties on record, the Appellate Court came to the conclusion that the Plaintiff will face greater hardship, if suit shop is not vacated. A careful reading of Paras 36 to 38 of the judgment of the Appellate Court shows that the question of partial eviction was considered and it was felt that as the size of the shop is 22 x 13 ft. and need of the Plaintiff and his two sons has teen held to be proved, the same cannot be satisfied by partial eviction. The Appellate Court has also discussed the legal position on the above two questions.
11. The Hon''ble Apex Court has held in the case of Dnyanoba Bhaurao Shemade (supra) that whether a finding of fact reached by Court below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less, any substantial question of law, which can enable the High Court in second appeal to upset such a finding of fact.
12. The Learned Counsel for the Appellant has not made out a case that the First Appellate Court has misread the evidence and reached incorrect conclusion.
13. In view of the above discussion, it has to be considered whether any substantial question of law is involved in this appeal or not. It is not every question of law that could be permitted to be raised in the second appeal. Under the proviso to Section 100 (5) CPC the Court should be ''satisfied'' that the case involves a substantial question of law and not a mere question of law. A careful perusal of the material on record reveals that the entire shop is a reasonable and bonafide need of the Plaintiff. It is a well settled law that the landlord is the best judge of his requirement and if a landlord desires to beneficially enjoy his own property, his requirement cannot be termed as unreasonable.
14. Having considered the facts of this case, I am satisfied that no substantial question of law arises in this appeal. Hence, the appeal fails and is, accordingly, dismissed. Costs easy.
15. However, to save the Defendant from the peril of sudden ejectment, he has to be granted a breathing space. It is directed that the decree for ejectment shall not be available for execution until July 31, 2011 subject to the Defendant filing an undertaking within a week on affidavit before the Deputy Registrar (Judicial) of this Court to the effect that on or before July 31, 2011 he shall hand over peaceful vacant possession to the Plaintiff and in between shall not induct anyone else in the premises nor part with it. and he will be obliged to pay to the landlord the amount of use and occupation charges, if any, upto the date when rent falls due month by month by the 15th day of that month. Failing the filing of the undertaking or in the event of breach of any of the conditions aforesaid, the decree of ejectment shall be available for execution forthwith.
