Rajasthan High Court
Ravish Babu vs Dwarka Prasad on 11 July, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 730/2003
Ravish Babu S/o Krishna Ji Through Legal Representative-
Rajesh Kumar son of Late Shri Ravish Babu aged 33 years,
Resident of 4-Ba-15, Vigyan Nagar, Kota.
----Appellant-defendant
Versus
Dwarka Prasad Sharma S/o Radha Krishna Sharma, resident of
No.2, Cha-1, Vigyan Nagar, Kota
----Respondent-plaintiff
For Appellant(s) : Mr. R.P. Vijay
For Respondent(s) : Mr. Surendra Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
11/07/2022
1. Appellant-defendant-tenant has preferred this second appeal
against judgment and decree dated 12.09.2003 passed by
Additional District Judge No.5, Kota in Civil First Appeal
No.51/2001, affirming the judgment and decree for rent and
eviction dated 16.03.2001 passed by Civil Judge (Junior Division)
South, Kota in Civil Suit No.143/1994 whereby his civil suit for
eviction has been decreed.
2. The dispute between parties is about rented shop measuing
8X9 square feet situated at Vigyan Nagar, Kota.
3. Respondent-plaintiff instituted eviction suit, invoking
provisions of Rajasthan Premises (Control of Rent and Eviction)
Act, 1950 (hereinafter "the Act of 1950) on the ground of default
and bonafide necessity alleging inter alia that plaintiff has taken
voluntarily retirement and requires the suit shop to start his
business of stationary. It was averred that defendant-tenant has
(2 of 4) [CSA-730/2003]
committed default for payment of rent from 01.07.1993 to
28.02.1994.
4. Defendant submitted written statement and denied both
Courts.
5. Learned trial Court, on appreciation of evidence of both
parties has held that defendant has committed default, however,
extended benefit of first default on the ground of bonafide and
reasonable necessity, a decree for eviction was passed against
defendant.
6. Appellant-defendant challenged the decree for rent and
eviction by way of first appeal, the first Appellate Court, re-heard
and re-considered the matter and concurred with findings of the
trial Court and affirmed the decree for eviction passed on the
ground of bona fide necessity.
7. This Court vide order dated 28.01.2004 admitted the first
appeal on following substantial question of law:-
"Whether the need of the shop in question of the
plaintiff respondent can be taken to be reasonable and
bona fide when he has given his one shop to his
relative during the pendency of the suit and that he is
also sitting thereon?"
8. Having heard counsel for both parties and on appreciation of
evidence on record, this Court finds that substantial question of
law referred hereinabove is essentially a question of fact. In order
to decide the question of law, the re-appreciation of evidence on
record is required. Both Courts, on appreciation/ re-appreciation
of evidence on record has passed the decree for eviction on the
ground of bona fide and reasonable necessity of respondent
plaintiff landlord.
(3 of 4) [CSA-730/2003]
9. The Supreme Court in case of Ram Prasad Rajak Vs. Nand
Kumar & Bors. & Ors. [(1998) 6 SCC 748] and H.K. Sharma
Vs. Ram Lal [(2019) 4 SCC 153], has held that issue in relation
to bonafide requirement of rented premises by landlord is
essentially a question of fact and does not involve any substantial
question of law.
10. The Hon'ble Supreme Court in case of Umerkhan Vs.
Bismillabi Shaikh & Ors. [(2011) 9 SCC 684] has observed
that if a second appeal is admitted on substantial question of law,
while hearing the second appeal finally, the court can re-frame the
substantial question of law or can frame new substantial question
of law or even can hold that the question of law as already framed
do not fall within the purview of substantial question of law but
the High Court cannot exercise its jurisdiction under Section 100
CPC, without formation/involvement of substantial question of law.
11. The substantial questions of law already framed have been
considered and answered in negative. No other substantial
question of law is found involved in the second appeal.
12. Counsel for respondent-landlord submits that appellant has
vacated the rented shop and handover the possession to
respondent-defendant.
13. Counsel for appellant is not in a position to rebut the said
factum of delivery of possession of said fact, however, do not
dispute that decree for eviction has already been executed.
14. For discussion made hereinabove, considering the concurrent
fact findings on the issue of bonafide and reasonable necessity,
this Court does not find any merit in this appeal, hence, the same
is dismissed. There is no order as to costs.
(4 of 4) [CSA-730/2003]
15. All pending application(s), if any, stand(s) disposed of.
16. Record of both Court below be sent back.
(SUDESH BANSAL),J
NITIN /94
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