KOTHARI, J. - (1.) BY concurrent judgments the two courts below have decreed the suit for eviction of the shop in question situated at Chopasani Road, Jodhpur in favour of plaintiff-respondents and the defendanttenant has filed the present second appeal being aggrieved of the said judgments and decrees.
(2.) THE first appellate court dismissed the defendant's appeal by impugned judgment dated 17/1/2008 affirming the judgment and decree of learned trial court in suit no. 35/2000 which was rendered on 29/4/2004. THE original suit was filed in the year 1988 and was registered as suit no. 359/88. THE decree has been given by both the courts below on the ground of personal bonafide necessity of the plaintiff-landlord. The defendant-appellant before this Court in the present second appeal has assailed these judgments mainly on the ground that relationship of plaintiff as landlord and defendant as tenant was not established by the plaintiff as the shop in question was given on rent by one M/s Laxmi Timber Mart and not by present plaintiff Madhusudan and Smt. Meena Devi. Secondly, it is urged that there was no personal necessity of the plaintiffs, who according to defendant were the industrialists manufacturing furniture and handicrafts in an industry setup at Basni Industrial Area, Jodhpur and, therefore, the courts below have erred in decreeing the suit of eviction. Learned counsel for the defendant-appellant Mr. R. R. Nagori also vehemently urged that the first appellate court did not pass the judgment while rejecting the appeal of defendant in terms of Order 41 Rule 31 CPC as the issues raised before the appellate court were not formulated as points for determination and no reasons for decision thereon have been assigned by the learned appellate court and, therefore, not only the judgment under appeal deserves to be set aside by the finding of personal bonafide necessity of the plaintiffs as well as relationship of the parties as landlord and tenant have been arrived at without evidence on record or evidence beyond the pleadings of the parties and, therefore, judgment under appeal deserves to be set aside. Mr. Nagori, relied upon several decisions of this Court as well as Hon'ble Supreme Court which will be shortly referred to hereinafter. Mr. Nagori also urged that he had filed written arguments before the first appellate court which the first appellate court has failed to consider and appreciate in the correct perspective and he has also filed written arguments before this Court besides making lengthy oral arguments. On the side opposite, Mr. R. K. Thanvi appearing for the plaintiff-respondents has submitted that as a matter of fact no substantial questions of law arise in the present second appeal under Section 100 CPC and the appeal is absolutely merit less and deserves to be dismissed. He has urged that shop in question was owned by the plaintiffs and the rent was being realised by one Shanti Lal Vyas, a close relative of plaintiffs being nephew, who was partner of the firm M/s Laxmi Timber Mart and plaintiffs had duly authorised the said person to collect the rent from the tenant in respect of suit shop. He also submitted that defendant himself at one point of time sent a cheque for the rent in favour of plaintiff No. 1-Madhusudan, therefore, relationship of landlord and tenant had been admitted by the defendant himself and moreover the fact of said firm M/s Laxmi Timber Mart collecting rent on behalf of plaintiffs was duly proved by Shanti Lal Vyas before the trial court and, therefore, the courts below cannot be said to have committed any error in holding that relationship of landlord and tenant was established between the parties. He further submitted that the findings relating to personal bonafide necessity of the landlord are findings of facts and the same cannot be said to be perverse in any manner in the present case so as to give rise to any substantial question of law. He submitted that the defendant had himself admitted that plaintiffs were having a factory of manufacturing furniture and handicrafts and though the learned counsel for the appellant defendant tried to draw distinction between furniture and handicrafts, which was of little significance, yet the fact that for selling the products manufactured in such factory, the plaintiffs were required to establish a showroom at the same place where the suit shop is located namely Chopasani Road, Jodhpur, which is a busy business place and has a ready market for sale of furniture and handicrafts and, therefore, the courts below cannot be said to have arrived at any finding of fact after an objective satisfaction, wrongly that the plaintiffs required the suit shop for personal bonafide necessity. He further submitted relying upon various case laws that it was not for the tenant to suggest and compel the landlord to satisfy his personal bonafide need for the shop in question with any other shop even though constructed by the plaintiffs and, therefore, the comparative hardship was also established before the courts below in favour of the plaintiffs and the same gave rise to no substantial question of law in the present case. I have heard learned counsels at length and perused the record of the case including the written arguments and judgments cited at the bar.
(3.) THE brief resume of case law cited at the bar may be made here. Learned counsel for the appellant-defendant Mr. R. R. Nagori relied upon the decision of Hon'ble Supreme Court in case of Santosh Hazari vs. Purushottam Tiwari (2001 AIR SCW 723) with regard to valuable right of the parties in first appeal. The Hon'ble Supreme Court in the said judgment in para no. 15 held as under:-      " First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on question of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind, and record findings supported by reason, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. " This was a case dealing with the case of reversal of findings of the trial court by the first appellate court and in that context the Hon'ble Supreme Court emphasized the need for the first appellate court to formulate the points for determination and give its reasoning while reversing the findings of first appellate court. In para 15, the Hon'ble Supreme Court further observed as under:-      " While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, moreso when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. " ;