- (1.) THE present second appeal has been filed by the appellant-defendant-tenant aggrieved by the judgment and decree of the first appellate court of Additional District & Sessions Judge, Deedwana, District: Nagaur dated 06.07.2011 in Civil Appeal No.12/2007-Mula Ram Vs. Smt. Mohini Devi, whereby the learned lower appellate court dismissed the appeal filed by the appellant-defendant and upheld the judgment and eviction decree dated 07.09.2007 passed by the learned trial court of Civil Judge (Jr. Division), Deedwana, District Nagaur in Civil Original Suit No.65/1997- Mohini Devi Vs. Mula Ram. whereby the eviction decree was passed against the appellant-defendant on the ground of personal and bonafide need of the landlady-plaintiff for her son, namely, Ramavatar.
(2.) BRIEFLY stated, the facts of the case are that the respondent-plaintiff, Smt. Chousar Bai, filed eviction suit on 10.09.1997 seeking eviction of the appellant-defendant, Mula Ram from the suit shop situated at "Jyotishyon-ka-Mahalla, Deedwana, which was given on monthly rent of Rs.200/- to the defendant-tenant, Mula Ram by the father-in-law of the plaintiff- landlady, Mr. Pannalal, under a written rent-note on 01.06.1985. The rent was thereafter increased at Rs.220/- per month. The suit shop in question came in the share of the plaintiff in partition of the suit property after the death of her father-in-law. The respondent-defendant-tenant thereafter started paying rent to the plaintiff, Smt. Mohini Devi. The defendant-tenant paid rent up to November,1991, however, thereafter failed to make payment of rent despite several demands made by the plaintiff. The plaintiff-appellant therefore, sought eviction of the defendant-tenant from the suit suit, inter- alia, on the ground of default in making payment of monthly rent and bonafide need of the landlady, Smt. Mohini Devi for starting business by her son, Ramavatar. The said suit came to be decreed by the learned trial court of Civil Judge (Jr. Division), Deedwana vide judgment and decree dated 07.09.2007. The appellants-defendants being aggrieved by the judgment and decree dated 07.09.2007 preferred first appeal before the learned lower appellate court, which appeal came to be dismissed vide the judgment and decree dated 06.07.2011, against which the present second appeal has been filed by the appellants-defendants-tenants on 01.10.2011. Mr. Prabhat Ojha, learned counsel appearing on behalf of appellant-defendant-tenant urged that both the courts below have erred while decreeing the plaintiff's suit for eviction as both the courts below have not properly considered the evidence led by the appellant-defendant in right and perspective manner, which has resulted into decreeing the suit against the appellant-defendant. He further submitted that one more vacant shop is available with the plaintiff-appellant, which is situated near the disputed shop. The said fact was submitted in written statement but no rejoinder was filed by the plaintiff denying the said fact. The appellant's son, namely, Ramavatar, for whose need, the eviction of the suit shop has been claimed, he went to abroad for earning his livelihood. He, therefore, submitted that though there was no necessity of the suit premises, the appellant wanted to evict the defendant-tenant from the suit shop. On the other hand, Mr. Sunil Mehta and Mr. Jagat Tatiya, learned counsel for the respondent-plaintiff-landlady vehemently argued that since the defendant-tenant failed to pay the monthly rent and thereby committed default in payment of rent. So far as bonafide need of the plaintiffs is concerned, they submitted that landlord/landlady is the best judge of his/her personal and business needs and it is not for the tenant to dictate the terms in this regard. They submitted that Ramavatar had returned back from foreign country and is even now unemployed waiting for the eviction of the suit shop so that he may start his business in that suit shop. He also submitted that essentially, the findings of bonafide need and default in making of monthly rent arrived by the both the courts below are the findings of facts and did not require any interference by this Court in Section 100 of Code of Civil Procedure, 1908. Sunil Mehta, learned counsel for the Mr. respondent-plaintiff relied on the following case-laws in support of his contentions: 1. Denzil Najrath Vs. LR's of Balwant Singh and Ors. reported in 2011 (3) DNJ (Raj.) 1217 2. LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011) 3. G.C. Kapoor Vs. Nand Kumar Bhasin reported in (2002) WLC SC 91. Having heard learned counsel for the parties and upon careful perusal of the reasons given in the impugned judgments and decrees of both the courts below, this Court finds no force in the present second appeal filed by the appellant-defendant-tenant. This Court in the case of LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011) also emphasized that landlord was the best judge of his needs in the following terms: - "5. Learned counsel for the respondent-plaintiffs, Mr. S.N. Pungalia strongly opposed these submissions and urged that no substantial question of law arises in the present second appeal and the finding of facts returned by the courts below are based on cogent and relevant evidence and the second appeal deserves to be dismissed as the bonafide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon'ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bonafide need for his business place and from the facts found by the courts below it was clear that the very source of livelihood of plaintiffs was the STD PCO Booth, which is presently run under the staircase and they need bigger premises for carrying out this business. 6. Having heard the learned counsels and upon perusal of the impugned orders passed by learned courts below, this Court is of the opinion that no substantial question of law arises for determination by this Court and the present second appeal is liable to be dismissed and same is accordingly dismissed." In the case of Denzil Najrath (supra) this Court has Held under: - "Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bonafide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff's family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross-examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bonafide need of the landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit."
(3.) IN the case of G.C. Kapoor Vs. Nand Kumar Bhasin (supra), it has been held by the Hon'ble Supreme Court as under: - "9. It is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. IN Datatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Another [1999 (4) SCC 1], this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to be prove it but there is no warrant for presuming that his need is not bonafide. It was also held that while deciding this question, court would look into the broad aspects and if the court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt. 10. IN Raghunath G. Panhale (D) by Lrs. v. Chaganlal Sundarji and Co. [1999 (8) SCC 1] this Court inter alia held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated nor that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for non-residential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood. 11. Regarding financial capacity of the appellant, the courts below have held that appellant did not have financial capacity. From records, we find that the appellant had produced revenue records to show his ownership over agricultural land in additional to the suit premises and made a categorical statement that he would be able to raise fund from financial institutions. Both the courts below with mathematical precision considered this aspect while coming to the fact that he does not have financial capacity. We are of the view that these are irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by this Court in the above decision namely Dattatraya Laxman Kamble (supra). That apart, as the appellant has got immovable property, it would not be difficult for him to raise necessary fund and therefore we hold that the finding on this point of the courts below is not sustainable." The Hon'ble Supreme Court in the recent decision in the case of Narayanan Rajendran & anr. Vs. Lekshmy Sarojini & Ors. reported in 2009(2) WLC 51 has held that the findings of fact even if grossly erroneous are not upon to interference under Section 100 CPC. It would be relevant to quote para 64 of the said judgment hereunder:- "64. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "su stantial question of law" b which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "thir trial on facts"or "onemore dice in the d gamble" The effect of the amendment mainly, according . to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question." Thus, on an overall appreciation of facts and circumstances and case laws cited at the bar, this Court is of the considered opinion that no substantial question of law arises in the present second appeal filed by the appellant- defendant-tenant and eviction decree passed by the courts below on personal bonafide need of the landlord deserves to be upheld. The present second appeal of the appellant- defendant-tenant is accordingly dismissed with no order as to costs. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit shop to the respondent- plaintiff (landlady) within a period of six months from today and shall pay mesne profit @ Rs.500/- per month commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff till the vacant possession is handed over to the plaintiff-respondent and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-tenant shall also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% and executing Court may quantify such amount and recover the same as a money decree. The defendant-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the respondent-plaintiff/landlady within a period of six months from today, besides expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith. ;