GUPTA, J. - (1.) THIS second appeal is directed against the judgment and decree dated 2. 6. 97 passed by the Addl. Sessions Judge No. 8, Jaipur City, whereby he accepted the defendant's appeal and dismissed the plaintiff's suit which had been decreed by the Addl. Civil Judge No. 1, Jaipur vide judgment and decree dt. 24. 8. 96.
(2.) VIDE order dt. 22. 4. 98 the following substantial question of law was framed by this Court:- ``whether the appellant is entitled for restoration of the premises on the ground of his bonafide necessity particularly when the trial court had decreed the suit while the first Appellate Court had reversed its finding. '' The short facts of the case are that the plaintiff-appellant filed a suit for eviction of a shop, situate in Chokri Ramdhanderji, on the ground of personal bonafide necessity. It was alleged that the plaintiff needed the shop for the business of electrical goods as he had a licence of fittings. It was further alleged that Achal Singh nephew of the plaintiff lived with him as his family member and he (Achal Singh) was not satisfied with his service and, therefore, wanted to do business with the plaintiff on the suit shop. As regards the comparative hardship, it was alleged that the defendant was having other shops to run his business. In the written statement, it was denied that the need of the plaintiff was bonafide. It was also de- nied that the the defendant was having other accommodation to run his business. It was averred that the intention of the plaintiff in filing the suit is to increase the rent of the shop. The defendant also pleaded that standard rent of the shop be fixed. On the pleadings of the parties, eight issues were framed by the trial Court. A free translation of the issues no. 2 & 3, necessary for the disposal of this appeal, is al follows:- Issue No. 2. Whether the plaintiff required the premises for personal, proper and bonafide necessity ? Issue No. 3. Whether there will be greater hardship to the plaintiff in comparison to the defendant if decree of eviction was not given ? Plaintiff Dan Singh entered into the witness box as PW1 and examined P. W. 2 Khan Chand, P. W. 3 Kanwar Singh, P. W. 4 Achal Singh and P. W. 5 Gurucharan Singh. In rebuttal, Bhag Singh entered into the witness box as DW 1 and examined D. W. 2 Dashrath Singh, D. W. 3 Laxman Dass, D. W. 4 Mukesh, D. W. 5 Tolaram, D. W. 6 Ghanshyamdass, and D. W. 7 Kartar Singh. After hearing the counsel for the parties, the trial Court found both the issues in favour of the plaintiff and eventually decreed the suit. The first Appellate Court overturned the findings on these issues and dismissed the plaintiff's suit. Mr. Agarwal, learned counsel for the appellant, vehemently contended that the Appellate Court has not considered the reasonings recorded by the trial Court and has come to erroneous conclusion that the plaintiff's need is not bonafide. He canvassed that the Appellate Court could interfere in the judgment of the trial Court only when the findings arrived at by the trial court were not based on evidence or thus was misreading of evidence. Commenting on the judgment under appeal, Mr. Agarwal pointed out that the Appellate Court has not at all consi- dered the question of bonafide necessity of the nephew of the plaintiff. His submission was that the need of the nephew is the need of the plaintiff as nephew is the family member of the plaintiff. He urged that there are no inconsistencies in the statement of the plaintiff, if it is read keeping in mind that the plaintiff is an old man and it is possible that he did not understand the question. On the legal position, that in second appeal there should not be interference in the finding of the first Appellate Court even if the finding of fact is erroneous, his contention was that in a case where there are no concurrent findings of the courts on the facts, and it is found that the Appellate Court failed to consider the evidence on which the trial court relied on, it is the duty of this Court to reappreciate the evidence. He placed reliance on the cases of; Dilbagrai Punjabi vs. Sharad Chandra (1), Banarsi Dass vs. Brig. Maharaja Sukhjit Singh & Anr. (2), Shri Bhagwan Sharma vs. Smt. Bani Ghosh (3), Sundra Naicha Vadiyar vs. Ramaswami Ayyar (4), Panjak Bhargava & Anr. vs. Mohinder Nath & Anr. (5), Jagdish Singh vs. Nathu Singh (6), Abdul Hafiz Khan vs. Jethu Ram (7), T. Sunil Kumar vs. M/s. S. G. Edulgri & Sons (8), Mohd. Yunus vs. Gurubux Singh (9), Umain Mal vs. Rama Kishan (10), Vijay Kumar vs. Distt. Judge (11), Madhukar vs. Ramesh (12), Harvilas vs. Jahoor Khan (13) and O. P. Soni vs. Om Kumar (14)
(3.) ON the other hand, Mr. Mehta, Sr. Advocate contended that the finding of fact recorded by the first Appellate Court cannot be interfered with in second appeal even if this Court comes to the conclusion that the finding is erroneous. His further submission was that the need of the nephew cannot be said to be the need of the plaintiff, more so when Achal Singh, is in Government service and has got separate house and separate ration card. He placed reliance on the cases of Mattu- lal vs. Radheylal (15), Rajendra Kumar vs. Jamna Das Kotewala (16), Ranbir Singh vs. Ashrafi Lal (17), Navneethammal vs. Arjuna Chetty (18), Smt. Satva Gupta @ Madhu Gupta vs. Brijesh Kumar (19), Ramvallabh vs. Damodardas (20) and Girish Narain Tewari vs. State of U. P. 21 I have considered the above arguments. The ratio of the cases of Ranbir Singh vs. Asharafi Lal (supra), Rajendra Kumar (supra) relied upon by the learned counsel for the respondent is that the High Court has no jurisdiction to entertain second appeal on the ground of erroneous finding of fact which was based upon appreciation of relevant evidence as that cannot introduce a substantial error in the procedure and the High Court cannot interfere with the conclusions recorded by the lower Appellate Court. However the Apex Court in the case of Dilbagrai (supra) has observed that where the lower courts recorded finding without considering all evidence interference under Section 100 C. P. C. by the High Court is permissible. So also the ratio of the case of Banarsi Dass (supra) is that if the findings of the lower Court are not based on evidence, the High Court is well within its powers to interfere in the finding. In the case of Shri Bhagwan (supra) also it has been held by a three Judge Bench of the Apex Court that the High Court was entitled to go into the question as to whether the findings of fact recorded by the first Appellate Court, which was final court of fact, were vitiated on account of non consideration of admissible evidence of vital nature. So also in the case of Sundra Naicka Vadiyar (supra), the Apex Court held that where ignoring certain vital documents the first two courts recorded concurrent finding on the question of fact merely on the basis of oral evidence High Court was justified in interfering with such finding. In the case of Mohd. Yunus (supra) it was held that if there was gross misappreciation of evidence by the lower court, the High Court is justified in interfering with in appeal under Section 100 C. P. C. To the same effect are the observations in the case of Jagdish (supra ). The legal position that emerges from the various cases cited at the bar is that normally, this Court in second appeal, is not entitled to interfere in the finding of the facts recorded by the first Appellate Court, but the position will be different if the first Appellate Court reversed the findings of the trial Court without considering the evidence and recording reasons. In the case of SVR Mudaliyar vs. Raja Babu (22), the Apex Court has observed that before reversing a finding of fact the Appellate Court must consider the reasons given by the trial Court. In the case of Dollar Co. vs. Collector (23), it was observed as follows:- ``a court of appeal interferes not when the judgment under attack is not right but only when it is shown to be wrong. '' The ratio of these two cases is that it is necessary for the Appellate Court while reversing the finding of the trial Court to keep in mind the reasons ascribed by the trial Court. ;