- (1.) THIS civil second appeal under Section 100 of the Code of Civil Procedure is preferred by the appellant- tenant against the judgment and decree dated 17/7/2001 whereby learned Additional District Judge No. 1, Ajmer affirmed the judgment and decree of eviction passed on 16/8/1994 by learned Civil Judge (Junior Division), Ajmer City (North), Ajmer.
(2.) THE relevant facts in brief are that the plaintiff/landlord/respondent (hereinafter to be referred as plaintiff) filed a civil suit for arrears of rent and eviction on 21/5/1987 with the averments that the defendant-tenant-appellant (hereinafter to be referred as defendant) is the tenant in the suit premises; house No. B1 at Ajmer on monthly rent of Rs. 400/- . THE tenancy was oral. THE suit for eviction was based on various grounds including the default in payment of rent for a period of more than six months and reasonable and bonafide requirement of the plaintiff giving details of the said grounds in the plaint. The defendant in his written statement, submitted on 1/6/1988, while admitting himself to be tenant since 1982 denied all the grounds of eviction with a further plea that the plaintiff intends to sell the suit premises and thus his requirement is neither reasonable nor bonafide. Ssues were framed on 4/4/1989. Evidence of the parties was recorded and the learned trial Judge vide judgment dated 16/8/1994 decided iSsues No. 1, 3 to 5 & 8 relating to suit premises on tenancy, reasonable and bonafide requirement, comparative hardship, partial eviction and requirement for further construction in favour of the plaintiff while remaining iSsues No. 2, 6, 7, 9 & 10 relating to default in payment of rent, change in use of suit premises, subletting and material alterations diminishing the value of the suit premises were decided in favour of the defendant. In the result on the basis of the decisions of iSsues No. 3 to 5 decree of eviction was passed in favour of the plaintiff. Civil Regular First Appeal No. 162/1994 filed by the defendant was dismissed vide impugned judgment dated 17/7/2001. I have heard learned counsel for the parties. Following questions of law were framed on 14/3/2002. 1. Whether where a Tenant has filed an affidavit of his witness with reference to the orders of the Hon'ble High Court after making an oral application to grant time to file the same and where the learned First Appellate Court has not only granted his oral application, after registering it as the new order, but after that the tenant has filed the affidavit and the landlord has also been asked to file his counter affidavit on the next date, which he did not, whether under these circumstances, the learned First Appellate Court can refuse to consider this affidavit on the ground that the tenant has filed only the affidavit, but not alongwith a written application under Order 41 Rule 27 CPC? If not, what will be its effect ? 2. Whether where there have been non consideration of the relevant evidence, the finding would be vitiated ? 3. Whether where the findings of the Courts below are perverse, unreasonable and are factually based on no evidence, these are to be set aside ? 4. Whether where there have been gross misappreciation of evidence, which goes to the root of the matter, the concurrent findings of fact should be interfered ? 5. Whether mere desire to liver independently in a different city away from his sons and his family does constitute a bonafide need/requirement, specially when the case of the Landlord has been that he desires to live in the disputed house with his family and in his family there are his 2 sons, his wife and he himself only ? 6. Whether bonafide need must be judged on an objective view point and not by mere assertion or denial, i.e. on subjective view point; and where the objectivity is lost, it will amount a mistake of law in reaching a just conclusion and will require interference ? 7. Whether where the conclusion is such that any reasonable person would not reach, then also it amounts to a mistake of law and requires interference by the Hon'ble High Court ? 8. Whether when according to suit filed by the Landlord the cause of action has arisen only because of non payment of rent by tenant and not because of bonafide need/ requirement of him, then according to law no decree of eviction on the grounds of bonafide need/requirement of landlord can be passed against the tenant ? 9. Whether a party who has to prove his case has to lead "the best evidence" which can be available and in case it is not so done, without any just cause, the adverse inference is to be taken against him ? 10. Whether when a document is not referred by a party in his on oath statement and is not proved according to law, then by mere marking of that document as exhibit on the date of the judgment, in the absence of another party, even after the conclusion of the final arguments, can be used against that another party to decide something against him ? 11. Whether when the landlord has not come with clean hands and has unsuccessfully taken almost all the unternable pleas without any just cause to evict the tenant e.g. the pleas of default in payment, sub letting, change of use, and unauthorised construction, diminishing the value of property etc. and when all these plea of the landlord are found not proved, then whether such type of Landlord can be believed in the eye of law regarding his personal bonafide and reasonable requirement and that too without any corroborative evidence ? 12. Whether where the past conduct of the landlord has been apparently unreasonable, he can be believed by the Courts regarding his bonafide and reasonable requirements, without corroborative evidence ? closing the evidence of appellant on the ground of non payment of cost ? 13. Whether a Landlord, who wants to live after his retirement with his family, consisting of his wife and 2 sons, who is living with them comfortably in another far away city, even without payment of any extra rent by him, the factor of balance of greater hardship can be legally decided in his favour vis-a-vis the tenant who has no house of property of his own in the city where the dispute property is situated and whether in case he is compelled to vacate the house, he will be unable to pay the exorbitant rent, as prevalent now a days and in that case the education of his children will be most adversely effected ?
(3.) WITH regard to first question of law, the defendant during pendency of the first appeal filed an application under Order 6 Rule 17 C.P.C. with the averments that the plaintiff wants to sell the suit property and a number of persons visited the suit property along with property dealers in February, 1997, hence the defendant may be allowed to amend his written statement. This application was opposed by the plaintiff. Learned Additional District Judge No. 1, Ajmer dismissed this application being vague vide order dated 28/1/1998. S.B. Civil Revision Petition No. 283/1998 against this order filed by the defendant was dismissed by this Court vide order dated 9/7/1998 with a direction that the defendant shall be at liberty to move the learned lower appellate court under Order 41 Rule 27 C.P.C. to bring subsequent events on the record. The order-sheets recorded by the First Appellate Court on 14/7/1999, 25/8/1999 and 13/10/1999 go to show that the defendant sought time to file an affidavit in accordance with the order of the High Court dated 9/7/1998. The affidavit of one Shambhu Singh was submitted on 25/8/1999 and time was granted to the plaintiff to file its counter but the plaintiff on 13/10/1999 declined to submit any counter affidavit. The learned First Appellate Court declined to consider this affidavit on the grounds that this affidavit is not a piece of evidence under Section 3 of the Indian Evidence Act, 1872, that no order was passed by the court under Order 19 Rule 1 C.P.C. to take this affidavit as evidence and no application under Order 41 Rule 27 C.P.C. was submitted by the defendant with reference to the order of the High Court dated 9/7/1998. ;