- (1.) THE appellant-plaintiff-landlord, Permanand S/o Puroshottam Dass Bhatia has filed the present second appeal against the respondent-defendant-tenant, Girdhari Lal S/o Danmal Daiya under Section 100 of Code of Civil Procedure, 1908, being aggrieved by the judgment and decree of the learned first appellate court of District Judge, Jaisalmer allowing defendant-tenant's appeal No.1/95- Girdhari Lal Vs. Permanand vide its judgment and decree dated 01.06.1998 reversing the judgment and eviction decree of learned trial court dated 04.02.1995 of Civil Judge (Sr. Division) & Chief Judicial Magistrate, Jaisalmer decreeing the eviction suit No.2/87- Permanand Vs. Girdhari Lal.
(2.) THE appellant-plaintiff, Permanand filed suit on 23.12.1986 seeking ejectment of the defendant-tenant, Girdhari Lal from the suit shop in question, situated at Jaisalmer, which was initially let out to the defendant-tenant at a monthly rent of Rs.150/-, which rent was later on increased to Rs.250/- from 01.04.1983. The suit was filed, inter-alia, on the ground of default in payment of rent and bonafide need of the suit shop for the son of the plaintiff, namely, Manmohan, who was physically disabled, and on the ground of material alteration in the suit shop without there being consent of the plaintiff-landlord. After taking the evidence on record and framing various issues, the learned trial court decreed the said eviction suit vide the judgment and decree dated 04.02.1995, inter-alia, on the ground of bonafide necessity of the plaintiff-landlord. The first appeal filed by the respondent-defendant- tenant, however, came to be allowed by the learned lower appellate court below of District Judge, Jaisalmer vide its judgment and decree dated 01.06.1998 and while deciding the issue relating to bonafide necessity, the learned lower appellate court below found in paras 11 to 13 (page 6 to 9 of the impugned judgment) that need of the landlord appeared to him to be not bonafide because his son, namely, Manmohan, (physically handicapped) was already doing business in the name and style of M/s Shiv Plastic in a small space under the staircase in the residential house, owned by the plaintiff- landlord, whereas the suit shop, measuring 8' x 10' was the next shop in his house and the plaintiff claimed that his son, being physically handicapped, can better do his stationary business in the suit shop, which is bigger than the shop/small space situated under the staircase. However, the learned lower appellate court below came to the conclusion that since the said son, for whose need the eviction was sought, was already doing some business in the name and style of M/s Shiv Plastic, and the defendant-tenant had also been carrying on business in the suit shop for quite long period, therefore, on the issue of bonafide necessity and comparative hardship, the eviction decree could not be given to the plaintiff- landlord. Being aggrieved by the said appellate court's decision, the appellant-plaintiff has approached this Court by way of present second appeal, which was filed on 10.08.1998. While admitting the present second appeal, a coordinate bench of this Court framed the following substantial questions of law for consideration on 09.04.1999: 1. Whether the photograph (Ex.A/2) which is not proved by examining the photographer with the aid of its negative is not admissible in evidence? 2. Whether if a finding of fact is recorded on admissible and inadmissible evidence both then it is not possible for the second appellate court to ascertain how much the mind of the first appellate court was influenced with inadmissible evidence and in such a case the finding of fact recorded by the first appellate court deserves to be set aside? 3. Whether as the finding of fact recorded by the first appellate court is binding in second appeal, therefore, whenever and wherever the first appellate court is reversing a finding of fact recorded by the learned trial court, it must appear from perusal of the judgment of the first appellate court that it has applied its mind to the entire evidence adduced by both the parties and such finding of fact must inspire the confidence of the second appellate court that the finding of the learned trial court has been reversed by the first appellate court after grasping the law and facts? 4. Whether non mentioning the name of the witnesses adduced by the plaintiff and defendant on the point of reasonable and bonafide necessity of the landlord by the first appellate court is a sufficient proof of the fact that the learned first appellate court has set aside the finding of learned trial court without applying its mind to the entire facts and circumstances of the case? 5. Whether non formulation of point for determination in the present case by the learned first appellate court has resulted into miscarriage of justice?
(3.) MR . M.L. Chhangani, learned counsel for the appellant- plaintiff-landlord submitted that the learned first appellate court below has grossly erred in reversing the well-reasoned and cogent findings of the learned trial court below and on erroneous assumptions that the disabled son of the plaintiff, Manmohan was already doing some business in the name and style of M/s Shiv Plastic in a small shop, situated under the staircase of the residential house and, therefore, the need for him for the suit shop, which was bigger, was not required bonafidely. He submitted that the bonafide need of the suit shop was duly established before the learned trial court in the statement of PW.1- Permanand (landlord) himself as well as statements of PW.6, Manmohan, the son, and other witnesses also appeared on behalf of plaintiff, narrating the family circumstances and need for settling the said son Manmohan in their respective statements. Mr . Chhangani, also submitted that law is now settled in this regard that the tenant cannot dictate terms to the landlord as to how he should adjust his business and personal needs for himself or for his family members and it is not Court's opinion in this regard, which can prevail and the learned lower appellate court below has grossly erred in reversing the finding of learned trial court in this regard that the physically handicapped son of the plaintiff needed the bigger shop for doing stationary business and being adjacent to the staircase itself, the relatives and other family members could help such physically handicapped son, if he had the next shop available to him, which is the suit shop for satisfying his business needs instead of two other shops, which were in possession of other tenants in the said building. He, therefore, submitted that the present second appeal of the landlord, deserves to be allowed and the eviction decree of the learned trial court deserves to be restored. On the other hand, Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel for the respondent-defendant-tenant urged that need of the landlord has to be bonafide and reasonable one and the findings of fact arrived at by the learned first lower appellate court below in this regard are based on cogent evidence that said son of the landlord, was already gainfully employed by doing his business in the name and style of M/s Shiv Plastic in the small portion under the staircase in the same house itself. He submitted that the learned lower appellate court below was perfectly justified in reversing the findings of learned trial court and the PW.6- Manmohan himself has admitted in his cross- examination that he was doing business in the name and style of M/s Shiv Plastic. He also drew the attention of the Court towards photograph Ex.A/2, produced in this regard. ;