Mst Jameela Bano And Others vs Qazi Abdul Rashid
2021 Latest Caselaw 1365 j&K/2

                               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                                AT SRINAGAR
                                               RSA no. 11/2019
                                               CM no. 5316/2019

                                                                    Reserved on: 27.10.2021
                                                                   Pronounced on: 01.11.2021

      Mst Jameela Bano and others
                                                                         .... Appellant(s)
                                         Through:   Mr Nissar Ahmad Bhat, Advocate
                                                    V/s
      Qazi Abdul Rashid
                                                                          ... Respondent(s)
                                         Through:   Mr B. A. Bashir, Sr. Advocate with
                                                    Ms Falak Bashir, Advocate
      CORAM:
                       Hon'ble Mr Justice Ali Mohammad Magrey, Judge
                                             JUDGMENT

By the instant Civil Second Appeal, the appellants are seeking setting aside of the judgments and decrees dated 28.07.2014 and 08.06.2019, for short impugned judgments and decrees, passed by the courts of Sub Judge, (Judge Small Causes) Srinagar, for short trial court and the Additional District Judge, Srinagar, for short Appellate Court, respectively, on the grounds taken in the memo of appeal.

BRIEF FACTS Briefly put the controversy as it is delineated before the trail court and appellate court is that two tin roofed shops situated at Jawahar Nagar, Srinagar, hereinafter for short as suit property, are owned by the respondent who rented out the same to the husband of the appellant no. 1 and father of appellants 2 to 6, herein at a monthly rent of Rs. 210/- for a period of one year in terms of lease deed dated 20th March, 1981, effective from 1st March, 1981. The respondent issued a notice to the appellants for evicting the suit property after the lease expired through his advocate firstly on 26th February, 1982, thereafter, through registered AD notice dated 23rd December, 1982 projecting his personal requirement for the suit property and seeking payment of arrears of rent amounting to Rs. 4515/-. Since the possession was not delivered to the respondent, therefore, he filed a Suit for Ejectment before the trial court on 16th November, 1983, projecting inter alia that he requires the suit property for his personal requirement and that the defendants/ appellants have committed more than three defaults within 18 months in the AMJAD AHMAD LONE 2021.11.01 15:17 I attest to the accuracy and integrity of this document

payment of rent, therefore, are liable to be ejected. The following prayer was made in the suit by the respondent/ plaintiff:

"a) A decree with costs for ejectment of two shops situated at Jawahar Nagar, Srinagar, may be passed in favour of the plaintiff and against the defendant.

b) A decree for the recovery of Rs. 4515/- as arrears of rent be also passed in favour of the plaintiff and against the defendants, with costs of the suit."

The other side appeared and filed its written statement projecting a different story by stating inter alia that defendant and his brothers are in occupation of the suit property since the year 1969 at an annual rent of Rs. 2000/- which was enhanced to Rs. 2520/- from March 1981 i.e. Rs. 210/- monthly. It was averred that unfair means were adopted by the respondent/ plaintiff in seeking eviction of the appellants as the notice dated 26th February, 1982 sent through Advocate P. N. Goja by the respondent did not mention about any arrears of rent as no the defendant had paid the advance rent, therefore, there was no question of being anything outstanding. It is further stated that the respondent attempted a forcible dispossession of the defendant by demolishing the walls of the suit property to which effect is a report filed by the defendant before the police concerned. The personal requirement of the respondent as also the three defaults attributed to the defendants had also been refuted.

The trial court, in order to appreciate the merit of the case, framed the following issues for determination:

"1. Whether the suit property is required personally by the plaintiff for his personal use? OPP.

2. Whether the defendant has committed three legal defaults within a time of 18 months as envisaged under law? OPP

3. In case issue no. 1 is proved, what are the comparative advantages and dis-advantages of the parties? OPP

4. Whether partial Eviction will suffice the needs of the parties OPPs (Parties).

5. Whether the valuation for the purpose of court fee and jurisdiction has not been fixed properly, if so, what is the proper valuation? OPD

6. Whether the suit is not maintainable? If so, why?

7. Whether the suit is not maintainable for want of necessary parties? OPD.

8. Whether this court has no jurisdiction to try the suit?

9. Whether amount of Rs. 4515/- as arrears of rent upto 15.12.1982 has been paid by the defendant? OPD.

AMJAD AHMAD LONE 10. In case issue no. 9 is not proved, what is the amount 2021.11.01 15:17 I attest to the accuracy and outstanding against the defendant? OPP integrity of this document

Whether the advance rent has been received by the plaintiff? OPD.

12. Relief."

After hearing the learned counsel for the parties and appreciating the evidence on record, the trial court in terms of the impugned order dated 28th July, 2014, held that the defendants/ appellants herein have failed to prove any of the issues the onus of which was on them to prove. In that view of the matter, the trial court decreed the suit of the plaintiff/ respondent by holding him entitled to the suit property for personal use and the defendants/ appellants were directed to pay the arrears of rent to the tune of Rs. 5040/- with interest @ 9% from the date of filing of the suit till final recovery. The defendants/ appellants were also burdened with costs of Rs. 25,000/- to be paid as litigation charges.

Feeling aggrieved, the husband of appellant no. 1/ defendant therein, challenged the impugned judgment of the trial court before the Appellate Court, by the medium of appeal which came to be dismissed in terms of the impugned judgment dated 8th June, 2019, and the judgment and decree of the trial court was upheld.

The appellants who are the legal heirs of defendant before the trial court, Ali Mohammad Wani, now assail both these judgments and decrees by the instant civil second appeal.

The appellants maintain this appeal inter alia on the grounds that the respondent has not proved that he actually needs the suit property for his personal use as he has other means of living and is not dependent on such property; the default in payment of rent has not been proved; although the notices are stated to have been issued to the appellants but its contents were not proved; the amount of rent was being adjusted at the end of month against the amount of goods taken on credit by the respondent therefore there was no question of default; the evidence has not been properly marshaled by the trial court or the appellate court.

Heard learned counsel for the parties and perused the impugned judgments and decrees.

Mr Nissar Ahmad, learned counsel for the appellants, submits that there are substantial questions of law which require adjudication, therefore, the impugned judgments and decrees of the trial court and the appellate court are perverse having not gone into such substantial questions of law. He submits that the findings, on the questions of fact, are returned on presumptions, therefore, this court has to interfere with the impugned judgments and decrees. AMJAD AHMAD LONE 2021.11.01 15:17 I attest to the accuracy and integrity of this document

Learned counsel for the appellants further submits that the both the courts have failed to appreciate that the respondent has failed to prove the three defaults within the stipulated period of time, therefore, the impugned judgments and decrees are bad in law and are required to be interfered with.

Learned counsel further submits that nowhere in the evidence has it come that the respondent/ plaintiff has any personal necessity of the suit property as on the date of filing of the suit no personal necessity was pleaded, therefore, the necessity was non-existing on the date of filing of the suit and the respondent cannot be said to be dependent on the suit property for maintaining the suit for ejectment. Learned counsel for the appellants submits that the suit could be maintained only if there was such a pressing need at the time of filing of the suit and not if it arose after the filing of the suit.

On the strength of the submissions so made, the learned counsel for the appellant, prays for allowing the appeal and setting aside the impugned judgments and decrees.

Mr B. A. Bashir, learned senior counsel for the respondent, on the other hand submits that the concurrent findings recorded by the trial court and the appellate court that the suit property was reasonably required by the plaintiff/ respondent herein for his personal use and occupation, cannot be questioned by the appellants, because of the bar enacted by Section 100 of the Code of Civil Procedure, for short CPC, which permits admission of the Civil Second Appeal only if substantial questions of law arise from the case.

Learned senior counsel further submits that the alleged questions of law projected to be involved in the case and referred to in the memo of appeal are only the questions of law and not the substantial questions of law as is required in terms of the mandate of law. Having said that, the learned senior counsel submits that, the scope of the Civil Second Appeal is confined to substantial questions of law only.

Learned senior counsel further submits that in terms of settled position of law, the evidence cannot be re-appreciated in the Civil Second Appeal.

The learned senior counsel, therefore, seeks dismissal of the appeal. In support of his submissions, the learned senior counsel referred to and relied upon the case law reported as AIR 1962 SC 1314 titled Sir Chunilal v. Mehta and sons Ltd.,; (1991) 1 SCC 556 titled Pankaj Bhargava and another v. Mohinder Nath and another; (1999) 8 SCC 1 titled Raghunath G. Panhale (Dead) By LRs v. Chaganlal Sundarji and Co; (2001) 2 SCC 604 titled Gaya Prasad v. Pradeep AMJAD AHMAD LONE 2021.11.01 15:17 I attest to the accuracy and integrity of this document

Srivastava; 2006 (II) S.L.J titled Vikrant Kathuria v. Smt. Kanta Devi; (2001) 5 SCC 311 titled Kamti Devi (Smt) and another v. Poshi Ram; (2005) 12 SCC 270 titled Harjeet Singh and another v. Amrik Singh and another; (2005) 10 SCC 139 titled State Kerala and another v. Mohd Kunhi (Dead) By LRs and others; (2005) 9 SCC 207 titled Christopher Barla v. Basudev Naik (Dead) By LRs; (2005) 9 SCC 362 titled Corporation of City of Bangalore v. Syed Iqbal Hussain; (2006) 2 SCC 496 titled H. P. Pyarejan v. Dasappa (Dead) By LRs and others and (2004) 8 SCC 490 titled Pratap Rai Tanwani and another v. Uttam Chand and another.

In rebuttal Mr Nissar Ahmad Bhat, learned counsel for the appellants, referred to Section 103 of the CPC to indicate that this Court can go beyond the substantial questions of law. The learned counsel for the appellants reiterated his submission of personal necessity of the respondent being missing in the case, therefore, cuts the very roots of the respondent's case.

The learned counsel for the appellants referred to and relied upon the case law reported as (1981) 3 SCC 103; titled Hasmat Rai and another v. Raghunath Prasad; AIR 1986 SC 3 titled Ram Singh and others v. Col. Ram Singh; 1993 (Supp) 3 SCC 497 titled Bhagwan Sharma v. Bani Ghosh (Smt); AIR 1999 SC 219 titled M. S. Zahed v. K. Raghavan; AIR 2006 SC 2234 titled Hero Vinoth (minor) v. Seshammal; AIR 2009 SC 1481 titled U. R. Virupakshaiah v. Sarvamma & Anr; (2010) 8 SCC 383 titled Meghmala and others v. G. Narasimha Reddy and others; (2012) 4 SCC 344 titled Hardeep Kaur v. Malkiat Kaur; (2012) 8 SCC 148 titled Union of India v. Ibrahim Uddin and another; (2017)5 SCC 127 titled S.K. Bhikan v. Mehamoodabee and others; (2017) 12 SCC 624 titled D. N. Joshi (Dead) through LRs and others v. D. C. Harris and another; and (2019) 8 SCC 383 titled State of Rajasthan and others v. Shiv Dayal and another.

Besides, the above cited law, the learned counsel for the appellants has referred to Section 13 of The Jammu and Kashmir Houses and Shops Rent Control Act, 1966 Section 61 of The Evidence Act, Svt, 1977 (1920 A.D.) to indicate that the courts below have not appreciated the controversy in its right perspective.

Considered the submissions made.

The learned counsel for the appellants emphasized, in essence, the twofold submissions, one, that there existed no personal necessity for the respondent to use and occupy the suit property as he had other means of living; two, that there was no default on the part of the defendant in the suit. Therefore, the learned counsel for the appellants, seeks to upset the judgments and decrees of the trial court and AMJAD AHMAD LONE 2021.11.01 15:17 I attest to the accuracy and integrity of this document

the appellate court on the ground that the conclusion arrived at by the two courts on the two supra counts is erroneous.

The issue no. 1 framed by the trial court, in view of the submissions of the learned counsel for the appellants as regards the personal necessity of the respondent to use and occupy the suit property and the finding recorded thereon by the trial court assumes importance, therefore, the same is reproduced hereunder in the first instance:

Issue no.1.

"1. Whether the suit property is required personally by the plaintiff for his personal use? OPP.

Finding of the trial court.

So far as issue no. 1 is concerned, it is quite clear from the evidence that, the plaintiff who retired from government service and has his one son un-employed; while the other is doing job, in order to earn his livelihood, and to keep himself in a fruitful and productive retired life which could supplement his depleted income, post retirement, also the defendant having his business expanded where whole of his family included extended family are into business, and a shop opposite the disputed shops, with a godown in the vicinity while his son running a shop in Aloochi Bagh in case the defendant is evicted he will not be absolutely out of business, but can sustain himself honourably as these shops not being his only source of income but are supplemental to the business enterprise of the defendant, the necessity of the plaintiff being greater than that of the defendant, where defendant cannot be allowed to enrich himself and expand his business at the cost of the plaintiff. Plaintiff being the owner of the premises has every right to enjoy the same, especially when he had let out the premises, for profit/ gain and there had been defaults on the part of the defendant, in that eventuality the plaintiff is entitled to the shop for his personal use as he intends to carry on the business of hardware in the suit premises. So far as personal necessity is concerned, the plaintiff has retired and his son is also so far unemployed, therefore it would be unjust to hold that defendant has dependants for whom he wants to AMJAD AHMAD LONE continue as a tenant in the disputed premises, despite the fact, 2021.11.01 15:17 I attest to the accuracy and integrity of this document

that, defendant's son is running another shop at Aloochi Bagh, while as defendant has another shop opposite the disputed property and a godown also. Therefore defendant being solely dependent on the suit property would not hold good.

Defendant may immediately incur some loses, due to vacating the premises, however, he has means adequate for him to sustain himself. The fact remains that the servient tenant cannot be allowed to prosper at the cost of the mater/ owner of the property while the actual owner suffers economic loss at the hands of a tenant who is not regular even in paying his rents. Since the plaintiff wants to carry on hardware business in the disputed premises, therefore it is enough reason to conclude that the shop (disputed premises) is required for personal use. No where in the evidence or during the course of trial it has been even suggested that, the plaintiff is trying to oust the defendant for enhancement of rent, or out of any other reasons other than the defaults on the part of the tenant and at the same time the fact that, plaintiff has retired and has an unemployed son as well. As such this court does not find any reason commensurate enough to negate the issue, accordingly the issue No. 1 & Issue No. 3 are decided in affirmative in favour of the plaintiff."

The conclusion arrived at by the trial court, on the basis of the evidence on record is subsequently affirmed by the Appellate Court also that there existed a personal necessity of the respondent to use and occupy the suit property for his personal use after his retirement and for his son. The Hon'ble Supreme Court, in case titled Raghunath G. Panhale (Dead) By LRs v. Chaganlal Sundarji and Co. reported as (1999) 8 SCC 1 has held that the landlord does not need to lose his existing job, neither to resign nor to reach the level of starvation to contemplate that he must get possession of his premises for establishing a business. Paragraph no. 11, being relevant is taken note of hereunder:

"11. It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of 'need or requirement' to be equivalent to 'dire or absolute or compelling necessity'. According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he AMJAD AHMAD LONE had not resigned his job, he could not be treated as a person 2021.11.01 15:17 I attest to the accuracy and without any means of livelihood, as contended by him and integrity of this document

hence not entitled to an order for possession of the shop. This lest, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lock-out" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job, he might indeed end up in utter proverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a Bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property. So far as experience is concerned, one would not think that a grocery business was one which required extraordinary expertise. It is, therefore, clear that the entire approach of both the Courts was absolutely wrong in law, and perverse on fact. Unfortunately the High Court simply dismissed the writ petition filed under Article 227 stating that the findings were one of fact. That is why we think that this is an exceptional case calling for interference under Article 136 of the Constitution of India."

It is writ large on the face of record that the personal necessity of the respondent/ plaintiff has been proved beyond any shadow of doubt as also the comparative advantage and disadvantage of the parties is thoroughly discussed. I do not see any ambiguity anywhere that would call for re-appreciation of evidence or call for reversal of concurrent findings even if there was a scope for doing so.

The substantial questions of law framed by this Court in the instant appeal in terms of order dated 24.12.2019 do not favour the appellants as it has sufficiently come in evidence and reasonably explained by the Trial Court as also the Appellate Court that the prior notice has in fact been issued to the defendant and it qualifies a suit to be decreed against the defendant/ appellants herein for eviction. In the foregoing paragraphs it is already held that the material on record would suffice very reasonably that there existed a personal necessity for the plaintiff/ respondent herein to seek use and occupation of the suit property. Therefore, on this count also, the case of the appellants fails.

AMJAD AHMAD LONE 2021.11.01 15:17 I attest to the accuracy and integrity of this document

The parties are in litigation over the suit property since the year 1983 when the respondent filed a suit for ejectment before the trial court which ultimately was allowed in the year 2014 on 28th day of July. Subsequently, the appellants went in appeal before the Appellate Court by filing a Civil First Appeal on 27.10.2014 2014/ 30.10.2015 which came to be decided on 8th June, 2019. The instant appeal is filed by the appellants on 31st July, 2019, and this Court in terms of order dated 24th December, 2019, stayed the operation of the impugned judgment and decree dated 28th July, 2014 which is continuing as on date. Therefore, for the last almost four decades, the litigation has not yielded any fruitful results for the party who first approached the court with a suit for ejectment and succeeded also.

It is painfully recorded that for almost four decades the appellants have continued their possession over the suit property by use of judicial process. The respondent who had come to the court almost four decades before is exactly where he was at that point of time. His need to use and occupy his personal property is still being debated because of the lengthy litigation. His need must have dusted during the long interregnum. However, the dust needs to be removed to save it from getting completely buried underneath such dust.

For all what has been said hereinbefore, the instant appeal is held to be without any merit, therefore, dismissed. The impugned judgment and decree are upheld.

The Trial Court as also the Appellate Court while passing judgment and decree have not granted any time to the defendant/ appellants herein to vacate the suit property. However, since the appellants are in use and occupation of the suit property for almost half a century, therefore, they do not deserve any further premium in vacating the suit property. The appellants, therefore, shall vacate and handover the possession of the suit property to the respondent within a period of two weeks. The respondent shall be free to take recourse of execution proceedings if the appellants fail to vacate and handover the possession of the suit property within the time allotted.

The Civil Second Appeal is, therefore, dismissed on the above lines. The record be returned to the respective courts.

(Ali Mohammad Magrey) Judge Srinagar 01.11.2021 Amjad Lone, Secretary

Whether approved for reporting: Yes AMJAD AHMAD LONE 2021.11.01 15:17 I attest to the accuracy and integrity of this document