Vineet Kothari, J. - (1.) HEARD the learned Counsel at length.
(2.) THIS second appeal filed by the appellant -tenant is against the concurrent findings of two Courts below ordering partial eviction of the one out of the two shops situated at 6th "A" Road, Sardapura, Jodhpur on the ground of bonafide necessity of the mother of the landlord. Roshan Baheti, a minor at the time of filing of suit in the year 2003. The suit was filed by the plaintiff Roshan Baheti S/o Ramchandra Baheti inter alia on the ground that one of the shops was required for carrying on the business of tractor parts owned by the mother of the plaintiff -landlord Roshan Baheti. The Courts below found that mother of the plaintiff Smt. Saroj w/o Sh. Ramchandra Baheti had started business in the name of M/s Bhawani Sales for dealing in tractor parts and since the suit premises were situated at the place where auto parts market was readily available, therefore, there was a bonafide necessity for the landlord and accordingly, the said partial eviction was ordered.
(3.) MR . Bhoot, the learned Counsel appearing for the appellant -tenant has urged that the Courts below have wrongly held that there was bonafide necessity of the landlord as neither the landlord Roshan Baheti who was minor at the time of filing of the suit, not his mother Smt. Saroj for whose alleged bonafide necessity, eviction was sought, had appeared before the trial Court and therefore, no bonafide necessity was proved before the trial Court. He further urged that the Courts below had proceeded on the basis of assumption of bonafide necessity and in absence of evidence of such business being carried on by the mother of the plaintiff -Smt. Saroj, the Courts below could not have ordered eviction partially. 5. Mr. Bhoot relied upon various judgments in support of his submission. They are discussed in brief below. 6. Mr. Bhoot relied firstly on the judgment of Hon'ble Apex Court in the case of Hero Vinoth (Minor) v. : AIR2006SC2234 in which lucidly expositing the legal position about the "substantial question of law" and the principles relating to Section 100 C.P.C. Hon'ble Justice Pasayat speaking for the Court in paras 23 and 24 of the judgment laid down as under: 23. To be "substantial" a question of law must be debatable, not previusly settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of fact and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 24. The principles relating to Section 100 C.P.C. relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well -recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly caste the burden or proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 7. Then Mr. Bhoot referred to an old judgment of Hon'ble Supreme Court in the case of M. M. Quasim v. : [1981]3SCR367 in which three Judges Bench of Hon'ble Supreme Court referring to para 18 of the said judgment held as under: 18. Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place. The learned Judge of the first appellate Court while upholding the claim of personal requirement of respondent 1 has observed as under: It is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do. The defendant has led evidence to show that the plaintiffs have got some more houses at Giridih... The defendant appellant has also filed certified copy of judgment of one suit No. 47/73 which is Ext. D only to show that the plaintiffs have got a decree for eviction with respect to the other house at Giridih. I have already pointed out earlier that it is for the plaintiffs to decide which of the houses is suitable for them. It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs." This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the country. The time honoured notion that the right of re -entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right or re -entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can reenter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison dcetre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation, the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact the he has come vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of the necessities of life -shelter - and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe. 8. Trying to distinguish the judgment of Supreme Court in the case of R.C. Tamrakar and Anr. v. : AIR2001SC3806 , which has been relied upon in the impugned judgment of first appellate Court, Mr. Bhoot submitted that in the said case, the landlord had herself appeared before the Court to prove her bonafide requirement of the suit premises. It would be appropriate to reproduce paras 10 and 11 of the said judgment. 10. Law is well settled that it if for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of bonafide requirement, it is unnecessary to make an endeovour as to how else the landlord could have adjusted himself. 11. Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that the landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the findings of the first appellate Court holding that the landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suits her. 9. He also referred to the judgment of Hon'ble Supreme Court in the case in Sri Balaji Krirshna Hardware Stores v. : AIR1998SC994 for pressing his submission that since alternative accommodation was available for business of the mother, the eviction in question could not be granted in favour of the plaintiff. 10. I have heard the learned Counsel for the appellant at length and perused the impugned judgments of both the Courts below and grounds of appeal and alleged substantial questions of law framed in the memo of appeal. 11. This Court is of the considered opinion that the findings of two Courts below that there was bonafide necessity for business of mother of the plaintiff landlord who was minor at the time of filing of the suit are purely findings of fact and no question of law much less substantial question of law arises so as to require any interference under Section 100 C.P.C in second appeal. 12. As a matter of fact, recently, the Hon'ble Supreme Court very strongly deprecated the interference in Section 100 C.P.C. and categorically laid down that such second appeal was never intended to be a third trial on facts and therefore, question of appreciation of evidence cannot be gone into by entertaining such second appeals. The Hon'ble Supreme Court in the said judgment in the case of Gurdev Kaur and Ors. v. Kaki and Ors. reported in, RLW(2007) (1) 636 in paras 70 to 82 held as under: (70) Now, after the 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 CPC only in a case where substantial question 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 decided those questions of law. The language used in the amended section specifically incorporates the words as substantial question of law 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 "third trial on facts" or "one more dice in the gamble." The effect of 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) Another part of the section is that the appeal shall be heard only on that question. (71) The fact that in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of Judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate Court or by both the Courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross mis -appreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We whould like to reiterate that the justice has to be administered in accordance with law. (72) When Section 100 CPC is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial question of law. (73) The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be, and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100. (74) The High Court seriously erred in interfering with the finding of facts arrived at by the trial Court and affirmed by the first appellate Court. (75) to (80).... (81) Despite repeated declarations by law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case, the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. (82) In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the Courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs. 13. This Court is satisfied that the Courts below have properly appreciated the evidence which came before them and have held that partial eviction of one of the two shops on the ground of personal bonafide necessity of the mother of the plaintiff was proper. 14. The contention of the learned Counsel that non -appearance of the mother and the plaintiff -landlord in the witness box is fatal to the case of the landlord, does not impress this Court. P.W.1 Ram Chandra, husband of Smt. Saroj and father of the plaintiff Roshan Baheti clearly stated in his examination before the Court, which statement Mr. Bhoot read in extenso before this Court, that his wife had started separate business in the name of M/s Bhawani Sales and she needed the premises in question in the area where auto parts market was available. The employee of the husband as well as the wife, P.W.3 Radhe Shyam had also deposed before the Court below that he was looking after the purchases, sales and accounts of the proprietorship concern M/s Bhawani Sales of Smt. Saroj. 15. As already noted above, in various judgments of the Hon'ble Apex Court, it has been held that it is not for the tenant to suggest to the landlord as to how he should adjust his business requirement. Therefore, the Courts below being satisfied that the business need of the mother of the plaintiff Smt. Saroj, found that one shop was required for said business of Smt. Saroj. The tenant could not take any valid exception to the same. Proving of such bonafide necessity by the husband and the employee was enough and the non -appearance in the witness box of the mother as well as minor landlord could not be said to be fatal in any manner to the case of the landlord. 16. This Court therefore, finds that no substantial question of law arises in the present case. The second appeal is devoid of any merit. The same is accordingly dismissed.;