GOYAL, J. - (1.) THIS civil second appeal under Section 100 C. P. C. filed by the plaintiff-appellant is preferred against the judgment and decree dated 9/1/1991 whereby the learned Additional District Judge No. 1, Bharatpur allowing two regular first appeals No. 3/1989 and 4/1989 set aside the judgment and decree dated 29/9/1984 by which learned Munsif, Bayana decreed the suit of eviction filed by the plaintiff and further determined standard rent of the suit shop Rs. 150 per month in the civil suit filed by the respondents.
(2.) FACTS in brief are that the plaintiff Babu Lal filed civil suit No. 49/1982 in the court of learned Munsif, Bayana on 26/5/1982 on the grounds of default in payment of rent, reasonable and bonafide necessity and to carry out repair work in the shop with the averments that the shop in question situated any Bayana was let out to the defendants Lilli Ram and Shripat Lal (father and son) on monthly rent of Rs. 150/- with effect from 1/7/1978. The defendants did not make any payment of the rent from 1/8/1980 and further the plaintiff requires this shop reasonably and bona fide for his own use and for his son Vishnu Kumar and further this shop is in a very bad condition, hence it is also required for repair and reconstruction. Joint written statements on behalf of the defendants was filed on 14/7/1982 admitting the tenancy but denying all the grounds of eviction. According to the defendants, this shop was taken on rent initially in 1970 on monthly rent of Rs. 45/- and the rent was enhanced to Rs. 90 per month with effect from 1/1/1975 and thereafter,the rent was not enhanced as pleaded in the plaint. The defendants also filed a civil suit No. 43/1982 on 17/5/1982 with a prayer to determine standard rent Rs. 45/- per month. Plaintiff Babu Lal filed written statement. Thereafter, learned Munsif consolidated both the suits. 13 issues were framed and after recording evidence of the parties and having heard learned counsel, the learned Munsif vide judgment dated 29/9/1984 came to this conclusion that vide Ex. 15 dated 1/7/1978, monthly rent was enhanced to Rs. 150/-; that the defendants committed default in payment of rent from 1/8/1980; that the plaintiff requires the suit shop reasonably and bona fide; that comparative hardship would be caused to the plaintiff; that partial eviction would not serve any purpose and thus the suit of eviction and arrears of rent was decreed. However, issue No. 4 with regard t repair of the shop was decided against the plaintiff. Further the standard rent was fixed Rs. 150/- per month from 1/7/1978. Both the appeals filed by only Shripat Lal were allowed vide common judgment dated 9/1/1991 fixing the standard rent Rs. 70 per month with effect from 1/11/1984. It was also held that excess rent paid would be adjusted. Further decree of eviction was set aside. Hence the present second appeal by the plaintiff.
(3.) ON 14/8/1991 following questions of law were framed : (i) Whether the finding regarding reasonable and bona fide necessity is perverse and against the law and the first appellate court has erred in not following the decision of this Hon'ble Court ? (ii) Whether the First Appellate Court has erred in fixing the standard rent of the suit premises and the findings are against law ? Vide order dated 4/8/2003 learned counsel for the appellant did not press the prayer for relief with regard to standard rent determined in first appeal. Thus, the second point framed by this Court now does not require any decision on merits. Only question remains for consideration is as to whether the finding of the first Appellate Court with regard to reasonable and bona fide necessity is perverse and against the law ? I have heard learned counsel for the parties. Learned counsel for the plaintiff-appellant contended that there was no ground to interfere with the finding arrived at by learned Munsif on this point. According to learned counsel, the first Appellate Court has wrongly read the evidence as it was proved by oral evidence as well as Ex. 18 that the plaintiff was suffering from cataract and thus he was physically unfit to continue the job of Munshi of an advocate. It was argued that on the one hand, the learned first Appellate Court held that execution of Ex. 15 is not proved and on the other hand placing reliance upon Ex. 15 came to this conclusion that this indicated that the plaintiff wanted to enhance the rent and the reasons given by the learned first Appellate Court are not sound at all to interfere with the finding of the trial court on this issue. It was also submitted that the learned first Appellate Court has reversed the finding of the trial court on this issue mainly in view of the subsequent events as stated in application filed under 41 C. P. C. on behalf of the defendants and even the subsequent events were not sufficient at all to reverse the finding of the trial court. He placed reliance upon following judgments :- (i) Gaya Prasad vs. Pradeep Shrivastava (1), where in it was held that bona fide need of landlord should be considered on the date of making the application and the subsequent developments can be taken into account only when need of landlord is completely eclipsed. (ii) G. C. Kapoor vs. Nand Kumar Bhasin and others (2), wherein it was held that prayer of eviction cannot be rejected on the ground that the landlord did not have capacity to generate a fund of Rs. 10 lacs for running the proposed centre and did not start business between 1992 and 1997 by taking another property on rent. (iii) Padam Chand vs. Smt. Narbada Bai (3), wherein it was held that it cannot be said that plaintiff has given up idea of doing his own business in suit premises on the ground that he has joined service during pendency of the suit which was filed before 15 years. (iv) Sukh Lal vs. Legal Representatives of Narayan Das and another (4), wherein it was held that in case the landlord start business during suit in rented shop, requirement does not cease. (v) Dhannalal vs. Kalawatibai and others (5), wherein it was held that plea of availability of alternative accommodation to the landlord so as to defeat his requirement, must be one owned by the landlord and not tenanted premises. (vi) Raj Kumar Khaitan and others vs. Bibi Zubaida Khatun and another (6), wherein it was held that landlord is not required to indicate the precise nature of the business which they intended to start in the premises. (vii) Smt. Ramkubai since deceased by L. Rs and others vs. Hajarimal Dhokalchand Chandak and others (7), wherein it was held that son of the landlady was unemployed at the time of filling the suit, subsequently he started work of construction contractor, he cannot be expected to remain unemployed till suit is finally decided and his taking up contractor's business in- mean while does not militate against his intention to start family business. (viii) Dattatraya Laxman Kamble vs. Abdul Rasul Moulali Kotkune and another (8), wherein it was held that genuine requirement does not mean dire need of the landlord and similar view was taken in (ix) Raghunath G. Panhale (dead) by LRs. vs. M/s Chaganlal Sundarji and Co. (x) Neelkantan and others vs. Mallika Begum (10), wherein it was held that it is well settled that the High Courts while considering the matter in exercise of its jurisdiction in Second Appeal or civil Revision would not reverse the finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view. (xi ). Similar view was taken in Bondar Singh & Ors. vs. Nihal Singh & Ors. Per Contra learned counsel for the defendants supported the findings of the first Appellate Court on the grounds that in case the plaintiff required the suit shop in the year 1976 as stated in Ex. 15, then why he did not take any step for eviction till filling the present suit in the year 1982 and this very fact goes to show that he did not require this shop at all and further it shows the malafide intention of the plaintiff. It was also submitted that it is the specific case of the plaintiff that he requires this shop to start oil mill, but in view of the size of the present shop it is not suitable for such a business and further plaintiff's son has already started business of a different nature and thus the requirement does not exist any more. It was also submitted that the present suit by the plaintiff was filed only after when the defendants filed a suit for fixation of standard rent and it shows that the plaintiff's aim was to enhance the rent and thus there is no ground to interfere with the finding arrived at by the first Appellate Court after appreciation of the evidence and the Court can take into consideration the subsequent events also. He placed reliance upon following judgments : (i) Vishwasrao Dadasaheb vs. Shankarrao D. Kalyankar, (12), (ii) Gurdev Singh vs. Surjit Kumar Alias Jit and another (13), (iii) Om Prakash Gupta vs. Ranbir B. In all these three judgments the Hon'ble Supreme Court held that in matters of eviction, the the Court held that in matters of eviction, the Court may take into consideration events occurring after the filling of eviction suit. (iv) S. J. Ebenezer vs. Velayudhan and others (15), it was held by the Hon'ble Supreme Court that bona fide requirement of the landlord should be objectively tested and cannot be based on mere desire of landlord. Similar view was taken in following three judgments :- (v) Bhagirath vs. Ram Prasad and Anr. (16), (vi) Porwal and Sons vs. Amanulla Khan Mohamad Khan (17), (vii) Parasram and others vs. Damadilal and others (viii) Hamida And Others vs. Md. Khalil (19), where in it was held that where the first Appellate Court has reached findings of fact based on evidence on record, the High Court in second appeal would not be justified in taking a different view merely on the basis of re-appreciation of such evidence without framing a substantial question of law. (ix) Similar view was taken in Dr. Ranbir Singh vs. Asharfilal ;