KAN SINGH, J. - (1.) THIS is a plaintiff's second appeal directed against the appellate decree of the learned Additional District Judge No. 1, Jodhpur, and arises out of a suit for ejectment.
(2.) THE subject matter of the suit is a shop forming part of a building situated outside Jalori Gate, Jodhpur known as Ramnath Chand Mehta Bhawan. It comprises a residential bungalow and two wings in which there are 10 shops abutting the road. THE property was owned by Shri Thanchand Mehta, Advocate. Shri Than Chand Mehta had introduced the defendant-respondent as a tenant on the suit shop on 1-4-56 on a monthly rent of Rs. 32/ -. THE defendant was running an Optician's shop there. Subsequently on 22-9-56, Shri Thanchand Mehta made a gift of the shops including the suit shop in Ramnath Chand Mehta Bhawan to his son Shri Narain Chand Mehta, the plaintiff. THEreafter the defendant started paying rent to Shri Narain Chand. Narainchand passed his L. L. B. Examination in 1965 and was enrolled as an Advocate of the Rajasthan High Court in January, 1966. Shree Narain Chand Mehta then gave a notice to the defendant determining his tenancy saying that he needed the suit shop for purposes of establishing his office as an Advocate as he had no accommodation for the same in the residential portion of the building. He averred that there were three rooms in the house where visitors came, one was the drawing cum-dining room, another was an office room of Shri Than Chand Mehta and the third one was a guest room. THE plaintiff went on to say that he was having certain cases exclusively for himself and was facing difficulty in talking with his clients and he had to utilise the verandah of the residential portion for having meetings with his clients, which was inconvenient. THErefore, he sought to make out a case of his bona fide personal necessity for the suit premises. The defendant contested the suit. He denied that the plaintiff had any bona fide personal necessity for the suit shop. He pleaded that the suit was filed with an oblique motive of enhancing the rent. The defendant went on to state that prior to the present suit the plaintiff had filed a suit for eviction against the defendant on the ground that the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the "act", did not apply to the suit premises at the time as the building was constructed within 7 years of the filing of the suit. When the plain-tiff was not successful in that even upto the High Court, he had filed the present suit. The main issue that went on to trial before the learned Munsif, before whom the suit was filed, was whether the plaintiff required the shop in dispute for his profession as an Advocate, reasonably and bona fide. In support of his case the plaintiff examined himself and in rebuttal the defendant examined himself as D. W. 1 and produced two witnesses D. W. 2, S. P. Pawa, and D. W. 3 H. C. Mehta. The learned Munsif held that though the need of the plaintiff for the suit shop was reasonable, it was not bona fide. Consequently he dismissed the suit. Aggrieved by the decision of the learned Munsif the plaintiff went up in appeal to the court of the District Judge No. 1, Jodhpur. The learned Additional District Judge postulated that "the best judge of his requirement is the landlord unless from the circumstances of a particular case it can be shown that the desire of the plaintiff is out of some oblique motive, such as, increase in rent etc. " The learned Additional District Judge an considering the evidence, came to the conclusion that the evidence of the defendant that the plaintiff wanted to increase the rent could not be relied on. In this regard he adversely commented on the observations made by the learned Munsif and remarked that it appeared that the learned Munsif did not go through the statements of the witnesses (defendant's witnesses ). Then the learned Additional District Judge closely scrutinised the statements of the defendant's witnesses and discarded them. I may read the relevant portion of the judgment : "the learned Munsif has relied on the statement of DW 2 Pava and DW 3 Shri R. C. Mehta on the ground that they are the persons who are friendly to Shri Thanchand Mehta. But it appears that the learned Munsif did not go through the statements of these witnesses. Shri Pava had admitted that the defendant is the sonin-law of his sister. Shri RC Mehta has stated in his statement that he had lived in the house of Hansraj with his family without payment of rent for a considerable time. Hansraiji is the fatherin-law of Krishnakumar the defendant. Therefore, both these witnesses are interested in the defendants and it cannot be said that they are friendly to Shri Thanchand Mehta. A scrutiny of the statement of Shri Narainchand Mehta PW 1, will show that he was not cross examined on the point that either Pava or Shri Mehta DW 2 or DW 3 had talked to his father Shri Thanchand Mehta about the increase of the rent. Therefore, in the absence of any question to the plaintiff in this connection, and looking to the fact that both these witnesses are interested witnesses it becomes highly doubtful if any talks for the increase of rent in between Shri Thanchand Mehta and these witnesses had taken place. Even in the written statement this fact was not disclosed otherwise the plaintiff might have examined his father Shri Thanchand Mehta as a witness to disprove these allegations. Even the defendant in his statement has admitted that the plaintiff never talked to him about increasing the rent. " Inspite of his having reached this conclusion the learned Additional District Judge addressed himself to a number of other circumstances saying that inspite of the lack of evidence on behalf of the defendant with regard to the motive of the plaintiff to increase the rent the plaintiff had yet to make out a case of his reasonable and bona fide necessity. The first circumstance adverted to by him was that the plaintiff had filed a suit against the defendant earlier in 1961-62 on the ground that the building was a newly constructed one and, therefore, the provisions of the Act did not applv, to it. That suit was dismissed by the first Court and the decision was upheld in appeal. The plaintiff then approached the High Court in second appeal, but was not successful. The second circumstance pointed out by the learned Additional District Judge was that the plaintiff had given one more notice to the defendant for ejectment sometime in the year 1964 on the ground that he required the shop to run business. Having referred to these circumstances the learned Additional District Judge concluded that "it appears that since 1961 on one pretext or the other attempts have been made by the plainttiff-land lord to eject the defendant from the suit shop. " The learned Additional District Judge added that it was not understandable why the plaintiff did not give a notice in July, 1966 when he thought of starting a separate office and had waited till the decision of the appeal by the High Court. The learned Judge then proceeded to consider the suitability of the shop as an Office for an Advocate. He noticed that the shop was abutting a busy road which was quite noisy. The plaintiff was not working completely independently of his father. Further there were no Advocates' offices near the suit shop. Having said so the learned Additional District Judge concluded" that the shop in a commercial place where there are other shops to my mind cannot be considered to be an appropriate place for an Advocate to run his office. " I In repelling the contention that the plaintiff had no genuine necessity as he did not occupy another shop which had fallen vacant in the meantime, the learned District Judge observed that this was not relevant as it was the choice of the landlord to occupy the portion that he thought would be convenient to him. Lastly, the learned Additional District Judge emphasised that it was the plaintiff who had to establish by cogent and convincing evidence that the shop in dispute is reasonably and bona fide required by him for his own Advocate's Office. For that he considered the statement of the plaintiff and observed "plaintiff Narainchand Mehta in his statement had admitted that he had served notices of ejectment on all the tenants residing in the other shops in the southern wing as he then thought of living separately because of quarrel between his wife and his mother. But his father interven-ned and did not like it and so he dropped the idea This shows that Shri Thanchand Mehta, the father has too much affection for his only son and this appears to be natural. Shri Thanchand Mehta has not appeared in the witness box to say that there is no accommodation with him in his office which can be shared by his son. An eminent Advocate like Mr. Mehta will always need the assistance of a junior and more so of his own son and the services of his son for the father are very important. Moreso, when according to the statement of Shri Narainchand the sense of hearing of Mr. Thanchand has been affected to certain extent. No doubt Shri Thanchand Mehta is using an instrument. I am not convinced by the statement of Shri Narainchand that he requires the shop to start his separate office as an Advocate. Not a single litigant has been produced to show that the plaintiff was sitting in the verandah and when the litigants visit the plaintiff, there is no room for consultation. Shri Narainchand has not given a straightforward statement in as much as at many places he did not give clear answers and stated that he did not remember whether the other shops in the building had fallen vacant after his enrollment as an Advocate or prior to his enrollment. " In the result, the learned Judge held that the plaintiff had failed to satisfy the court by cogent evidence that he needed the shop in dispute bona fide and reasonably and accordingly he dismissed the appeal. It is in these circumstances that the plaintiff has come in further appeal to this Court. Learned counsel for the appellant contends that though the principles governing such cases have been correctly brought out by the learned Additional District Judge, he has not applied them correctly to the facts and circumstances of the case. Learned counsel emphasises that according to the finding of the learned Additional District Judge himself the alleged oblique motive on the part of the plaintiff to enhance the rent was absent and there was no gainsaying the fact that the plaintiff had a practice of his own as an Advocate and needed accommodation for his office and further the residential portion of the building did not provide any accommodation for the plaintiff's office. Learned counsel here submitted that the residential portion of the building was the self acquired property of the plaintiff's father and, therefore, if the plaintiff wanted to establish his office on his own property, his demand for the same could not be characterised as an unreasonable one. Then learned counsel submitted that in arriving at the conclusion to which he did the learned Additional District Judge has been influenced by some extraneous considerations like the one that the plaintiff's father is hard of hearing and needs a hearing aid and that he will always need the assistance of a junior; moreso of his own son. Learned counsel also pointed out that the learned Additional District Judge was in error in observing that any litigant should have been produced by the plaintiff for showing that he used to sit in the verandah when the litigants would be visiting him. Learned counsel maintains that the question whether the premises were needed by the plaintiff bona fide and reasonably was a mixed one, of law and fact and therefore, he could question the correctness of the findings of the learned Additional District Judge in this second appeal.
(3.) LEARNED counsel for the defendant-respondent has tried to counter the several arguments raised by learned counsel for the appellant and has supported the conclusions of the learned Additional District Judge. The learned counsel also raised a two-fold contention : (1) that no second appeal was maintainable in the present case according to the provisions of sec. 22 of the Act inasmuch as the decree or order passed by the lower court was one under the Act; (2) in the second place he argued that the case did not give rise to any question of law so as to justify the court's interference in the second appeal. He pointed out that the learned Additional District Judge has disbelieved the plaintiff's statement in clear terms as would be evident from the passage quoted by me above and, therefore, this was nothing but a finding of fact that the plaintiff had not been able to establish bona fide and reasonable necessity of the suit premises. LEARNED counsel also emphasised that the conclusion of the learned Additional District Judge and the assessment of the plaintiff's statement has not been challenged in the memo of appeal. Both the learned counsel reinforced their submissions by a number of cases, the more important of which I will be referring in the course of the discussion that follows. To start with I may deal with the contention founded on sec. 22 of the Act. I may read the section : S. 22 Appeal and revision - (I) From every decree or order passed by a Court under this Act, and appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former Court. (2) No second appeal shall lie from any such decree or order ; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision. (3) Any person aggrieved by an order of the Magistrate may, within fifteen days from the date of such order, appeal there from to the District Magistrate or such authority as the State Government may from time to time appoint. " The argument of the learned counsel for the respondent is that since in seeking the eviction of a tenant from the premises let out to him a plaintiff has necessarily to bring his case within the provisions of sec. 13 of the Act, the decree, that is, the outcome of the suit would be one under this Act with the result that though there could be an appeal from the original decree, the appeal shall not lie from any such decree or order (vide sub-sec. (2) of sec. 22 ). The essence of the matter is whether the decree in the present case was "passed by a court under this Act". According to the plain meaning of these words, a decree, can be said to have been passed under this Act when any section of this Act makes provision for the passing of a decree. Perusal of sec. 6 of the Act, for example, shows that in cases of fixation of standard rent the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction and the court shall, after holding such summary inquiry as it may consider just and necessary, determine the standard rent for the premises in question and shall be guided by certain principles laid down in the section. Then it is laid down that in every case in which the court determines the standard rent of any permises it shall appoint a date from which the standard rent shall be deemed to have effect. Therefore, for the fixation of rent a suit is filed in accordance with the provisions of this Act and it results in the determination of rent which has the force of a decree. Then there is sec. 11 of the Act which makes provision for increase of rent. After performing certain formalities the landlord d is entitled to bring a suit for increase in the rent in the lowest court of competent jurisdiction. The court makes such summary inquiry as it may think necessary and make orders according to law and a decree shall follow. This section clearly provides for the passing of a decree. ;