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2001 Supreme(Raj) 1319
Rajasthan High Court, Jaipur Bench
Honble ARUN MADAN, J.
Shakuntala Devi - Appellant
Versus
Leeladhar Agrawal - Respondents
S.B. Civil Second Appeal No. 283 of 2001
Decided On : December 18, 2001
Nazimuddin Siddique, for Defendant Appellant R.P. Garg & S.C. Mittal, for Respondents
Headnote:Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Sec. 13 – Second Appeal – Suit for eviction – Decreed on the ground of bonafide need, comparative hardship, partial eviction and nuisance – Held – In second appeal relief cannot be granted merely on the equitable grounds and concurrent findings of fact of both the courts below, however erroneous cannot be interfered with – Involve no substantial questions of law with a view to invoke jurisdiction u/Sec. 100 CPC – Suffers from serious infirmity – The substitution of conclusions by reappreciation of evidence is patently erroneous in law and cannot be sustained. (Paras 28, 29)
The question of bonafide personal necessity is essentially a question of fact on which both the two courts below have concurrently held against the appellant. Weighing the present use of the suit premises by the tenant and the need for its use by the landlord, the trial Court held that the balance for weighing the comparative hardship titled in favour of the landlord. Such a finding has been accepted by the appellate Court. The finding in my view, being based on admissible evidence and not erroneous and not contrary to the mandatory provision of law applicable or settled by the Apex Court, does not suffer from any serious infirmity muchless any illegality. There are no convincing assertions on behalf of the tenant against the concurrent findings, which in my considered view, do not at all warrant any interference by invoking jurisdiction of this Court u/Sec. 100 CPC, because no substantial question of law arises for consideration requiring admission to hearing and since I am satisfied that the case does not involve any substantial question of law, worth admitting this second appeal to hearing, there is no requirement to formulate question before deciding the same. (Para 28)
(2). The facts, shorn in details are that Leeladhar Agrawal Advocate (respondent No.1) (plaintiff) instituted a suit for eviction of shop situated at Main Road Kota Junction on the grounds of (a) bonafide need, (b) sub tenancy and (c) public nuisance. The suit shop was admittedly rented out at Rs. 500/- per month to the tenant appellant (Shakuntala Devi). Except the tenancy and monthly rent, all plaint averments as to the aforesaid trioka grounds of eviction were denied by the tenant in her written statement. Nine issues were framed on the basis of the pleadings by the trial Court. To prove his case, plaintiff examined himself beside other witnesses namely; Mohanlal (PW2), Dalip Sharma (PW3), Om Singh (PW 4) and Pyara Singh (PW 5) and got seven documents exhibited including Rent Note, family settlement, IT return, notice, postal receipt, A.D. receipt, (Ex.1A to Ex. 7), whereas defendant (tenant) examined herself so also Ramkumar (DW2), Jagdish Prasad (DW 3) and Devdutt (PW 4) and got only two documents (invitation card & photo) exhibited. The trial Court decided issue No. 4 as to the sub tenancy against the landlord (plaintiff). Issue Nos. 5,6, & 8 - burden of proof of which was on the defendant-were decided against the tenant as she failed to prove the same. Thus, on the basis of findings arrived at on the Issue Nos. 1,2,3,8 & 9 in favour of the plaintiff, the trial Court decreed the suit for eviction of the defendant tenant only on the grounds of bonafide need, comparative hardship, partial eviction and nuisance. Against which, the tenant preferred an appeal before the first appellate Court but the first appeal was also dismissed affirming the decree of eviction by the impugned judgment. Hence, this second appeal against the concurrent findings.
(3). Though the learned counsel for the appellant proposed in memo of second appeal as many as 14 questions describing them as substantial one being involved but on the other hand, learned counsel for the respondent vociferously contended that the questions proposed by the appellant in his appeal are neither involved nor they are substantial in the light of the provisions of Sec. 100 CPC inasmuch as in view of the concurrent findings of fact of both the Courts below, this appeal deserves to be dismissed having involved no substantial question of law muchless any question of law with a view to invoke jurisdiction u/Sec. 100 CPC.
(4). At the threshold, I may point out that the memo of second appeal suffer from a serious infirmity. The substantial questions of law proposed in the memo of second appeal are not properly formulated and they are, as if, grounds, urged or incorporated.
(5). Having heard the learned counsel for the parties and considered their rival contentions and further carefully analysed the concurrent findings of facts arrived at by two courts below, though I reframe following questions for consideration while hearing this second appeal but at this juncture, I restrain from saying as to whether these questions of law are substantial, or are involved for admitting this second appeal within the purview of Sec. 100 CPC.
(1) Whether the suit shop is an HUF property and the plaintiff being coparcener could institute suit for eviction on the ground of personal bonafide need of himself or whether in that suit, personal need of other coparcener as to the suit shop could be considered or not?
(2) Whether the plaintiff is not an owner of the suit shop being HUF property or being its receiver of the rent for the suit shop could bring the suit against the tenant on all the grounds set forth in Sec. 13(1) of the Act except on the ground of bonafide need u/Sec. 13(1)(h)?
(3) Whether the findings of fact concurrently arrived at by the Courts below either on issue of comparative hardship of bo
