Jashwant Raj vs Bata India Limited - 1997 Supreme(Raj) 52

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Raj) 52

Rajasthan High Court
Honble R.R. YADAV, J.
Jashwant Raj and Others - Appellant
Versus
Bata India Limited - Respondents
S.B. Civil Second Appeal No. 115 of 1993
Decided On : January 14, 1997

Advocates Appeared:
K.C. Samdariya, for Appellants M.L. Chhangani, for Respondent

Headnote:(a) Rajasthan Premises (Control of Rent & Eviction) Act, 1950, Sec. 13(1) (h) and Sec. 15 – Eviction suit on the ground of reasonable and bonafide necessity – Commercial premises – If the land-lord was admittedly occupying a shop on rent for his business then the requirement of the landlord for his own shop can be said to be reasonable and bonafide – There is check u/s. 15 of the Act which provides that if the land lord fails to utilise the premises to the use or purpose for which such eviction has been passed within two months of obtaining possession or lets the whole or any part to any other person, the court which passed the decree may place the tenant in possession of the premises. (Para 15)(b) Rajasthan Premises (Control of Rent and Eviction) Act, Sec. 13(1) (h) and 14(2) – Financial position of both the parties at the time of determining comparative hardship be considered? – Held – For passing a decree under Sec. 13(1) (h) on the ground of reasonable and bonafide necessity the financial position of land lord and the tenant be considered for determination of the question of comparative hardship. (Para 19)(c) C.P.C., Sec. 100 and 101 – Second appeal – Finding of facts – The second Appeal can not be entertained question of facts unless in process of arriving at a finding of fact the lower appellate court has committed substantial error of law or substantial error of procedure.
If a land lord is doing business in a rented shop on higher rent then his desire to start business in his own shop cannot be said to be inspired by sishonest motive but on the contrary it is most natural human desire to start business in his own shop therefore in natural circumstances the court must proceed on the presumption that such desire is an honest and bona fide desire.Further there is check on such desire of land lord under section 15 of Act No. 17 of 1950 which clearly provides that if a land lord obtains a decree for eviction of any premises against a tenant on any of the grounds of his reasonable and bonafide necessity as specified in clause(h) of sub-sec. (1) of Section 13 of the said Act and he fails to utilise the premises to the use or purpose for which such eviction has been passed within two months of obtaining possession thereof or lets the whole or any part thereof to any person other than the evicted tenant, the court which passed the decree may, on the application of the evicted tenant, place him in possession of the premises. (Para 15)
It is true that concurrent findings of fact are binding in Second Appeal. It is further true that findings of fact recorded by learned lower appellate courts are also binding in Second Appeal with a rider that in a case of concurrent findings of fact the aforesaid principle applies with greater force whereas in case of finding of reversal recorded by learned lower appellate court it is not binding with the same force. (Para 24)

Honble YADAV, J. – The instant Second Appeal was argued at length by the learned counsel for the parties on 14.01.97 and after conclusion of their arguments the judgment and decree passed by learned lower appellate court dated 17.8.92 was set aside and the judgment and decree passed by learned trial court was restored with an observation that reasons will follow later on. In pursuance of the

aforesaid pronouncement of judgment on 14.01.97 reasons are being given today hereinbelow :–

(2) The present Second Appeal was filed by the plaintiff-land lord-appellants against the judgment and decree dated 17.8.92 passed by learned Additional District Judge No. 2, Jodhpur in Civil Appeal No. 15/89 by means of which he has

set aside the judgment and decree dated 19.5.89 passed by learned trial court decreeing the suit of the plaintiff-land lord-appellants on the ground of their reasonable and bonafide necessity after comparing the comparative hardships of land lord and tenant.

(3) The brief facts necessary for adjudication of the instant Second Appeal are as under.

(4) The plaintiff-land lord-appellants filed a suit for ejectment against the defendant-tenant-respondents, Bata India Limited on the ground of reasonable and bona fide necessity of the suit shop for business of clothes by plaintiff-appellant No. 1. It is stated that disputed shop along with its upper storey was purchased on 1.9.77

from Pravag Raj for which the defendant-tenant-respondent has information. It is alleged in the plaint by the plaintiff that the shop in question was purchased for doing clothes business by plaintiff-appellant No. 1 but in order to avoid long-drawn litigation he who was earlier doing clothes business with his father, opened a clothes shop in the upper-storey of the disputed shop.Since the opening of the up-

per storey clothes shop was in a lane and there was only one and a half feet upstairs leading to the upper-storey clothes shop, therefore, customers were not coming to his shop and he suffered a loss and closed his clothes business. Thereafter, he took a shop on rent initially at the rent of Rs. 323.50 per month in ``Dabgaron ki Gali which was later on enhanced to Rs. 375/- per month where he was forced to start

business of Betel nuts(supari), as it was not a proper place for starting clothes business.

(5) The defendant- respondent filed a detail written statement, denying the averments made in the plaint and stated that the plaintiff-appellants have no reasonable and bonafide requirement of the shop in question but the suit has been filed for eviction with an oblique motive to enhance the rent from Rs. 150/- to Rs. 1,000/- per month.

(6) On the pleadings of the parties, learned trial court framed necessary issues and allowed the parties to adduce evidence in support of their respective claims. The plaintiff-appellants examined Jashwant Raj as PW 1,Mohan Raj as PW 2 and Suraj Mal as PW 3 whereas the defendant- respondent examined Shri K.L.Bhatia as DW 1,Shri Ramanand as DW 2 and Pukhraj as DW 3 in support of their respective claims.

(7) After giving cogent and convincing reasons the learned trial court believed the statements of PW 1, PW 2 and PW 3 and disbelieved the statements of DW 1,DW 2 and DW 3.

(8) This Second Appeal was posted for admission on 9.12.1996 before Honble Mr. B.R. Arora,J. and His Lordship with the consent of the learned counsel for the parties directed the office for listing the case for final hearing at admission stage on 14.01. 97 without framing substantial question of Law. This is how the Second Appeal is listed before me today.

(9) The law now be taken to be well-settled that no Second Appeal is maintainble unless substantial question of law is involved. Therefore at the first out set I think it proper to formulate the following substantial question of law involved in the present Second Appeal :–

(1) Whether the need of the plaintiff-land lord appellants in the present case can be safely said to be reasonable and boanfide, who purchas

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1997 Supreme(Raj) 52

Rajasthan High CourtHonble R.R. YADAV, J.Jashwant Raj and Others - AppellantVersusBata India Limited - RespondentsS.B. Civil Second Appeal No. 115 of 1993Decided On : January 14, 1997

Cases Referred (4)

Rajasthan High Court
Honble R.R. YADAV, J.
Jashwant Raj and Others - Appellant
Versus
Bata India Limited - Respondents
S.B. Civil Second Appeal No. 115 of 1993
Decided On : January 14, 1997