Dr Nirmal Kumar And Ors vs Bishan Dass And Ors
2022 Latest Caselaw 4048 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           S.B. Civil Second Appeal No. 117/2001
Dr. Nirmal Kumar (Deceased) Through Its Legal Representatives
1. Rajesh Sharma, son, aged 38 years, R/o 1-Gha 9, Vigyan
Nagar, Kota.
2. Ashok Kumar, son, aged 35 years, R/o 1-Gha 9, Vigyan Nagar,
Kota.
                                                   ----Appellants-defendants
                                   Versus
1.     Bishandas S/o Dulhamal Chawla, Chhabni, Kota.
       1/1. Pratap Rai, S/o Bishandas, Rampura Nagar, Kota,
       Chawla Brothers, R/o 21, Tilak Nagar, Chhabni Chauraha,
       Kota-7.
       1/2. Gopi Chand, S/o Bishandas, Rakesh Industries, Opp.
       J.K. Factgaory, Samal Industries, Kota, R/o 24, Tilak
       Nagar, Chhabni Chaurana, Kota-7.
       1/3. Suresh Kumar, S/o Bishandas, Anand Industries,
       (Dal Mill) Gandhi Chowk, Rampura, Kota, R//o 24, Tilak
       Nagar, Chhabni Chauraha, Kota-7.
       1/4. Shyam Sunder, S/o Bishandas, Anand Industries
       Gandhi Chowk, Rampura Kota (Partner), R/o 24, Tilak
       Nagar, Chawla Bhawan, Chhabni Chauraha, Kota.
       1/5. Janki Devi, D/o Bishandas, W/o Manohar Magwani,
       R/o H. No. 1, N-7, Dada Bari, Kota.
2.     Smt. Usha Viad D/o Late Dr. Niramal W/o Prakash Vaid,
       R/o 1, Sadia Bhawan, Chhabni Chauraha, Kota
                                                                ----Respondents

For Appellant(s)         :     Mr. Yogesh Pujari
For Respondent(s)        :     None Present



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

24/05/2022

1. Appellants-defendants have filed this second appeal under

Section 100 of the Code of Civil Procedure, assailing judgment and

decree dated 14.11.2000 passed by Additional District Judge No.4,

Kota in appeal No. 20/99, affirming the judgment and decree

dated 07.10.1996 passed by Additional Civil Judge (Junior

Division) No.1, Kota (South) in Civil Suit No. 650/89 whereby suit

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for rent and eviction has been decreed in favour of respondent-

plaintiff.

2. The relevant facts as culled out from the record are that one

shop situated at Chhawni Chauraha, Kota was in tenancy of the

defendant Dr. Nirmal Kumar at the rate of Rs.140/- per month.

Respondent-plaintiff-landlord instituted a civil suit for eviction

against defendants on 28.10.1989, on the ground of default,

bonafide and personal necessity and sub-letting invoking the

provision of Section 13 of the Rajasthan Premises (Control of Rent

& Eviction) Act, 1950 (hereinafter referred as "the Act of 1950).

Plaintiff alleged the necessity of rented shop for his grandson-

Mukesh to start the grocery business in the rented shop.

Defendant tenant submitted written statement denying the default

and bonafide necessity of plaintiff. Defendant took defense that

plaintiff has other shops in his house and if he is desirous to start

business of grocery for his grandson, the alternative shop is

available with him, hence, the necessity alleged by plaintiff was

denied to be bonafide and reasonable. It may be noticed that in

the written statement defendant never took any defense that

plaintiff's grandson- Mukesh is not family member of plaintiff and

for his necessity plaintiff could not bring the eviction suit. The trial

Court on the basis of rival pleadings of both parties settled issues

and recorded evidence of both parties.

3. Since in the present eviction suit, apart from the ground of

bonafide and reasonable necessity, the ground of default was also

involved, therefore, the provisional rent was determined under

Section 13(3) of the Act of 1950. The trial Court while decided the

eviction suit finally vide judgment dated 07.10.1996 observed that

the defendant-tenant has paid provisional determined rent and

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has not committed any further default, hence, the defendant was

declared as defaulter but benefit of first default was extended

under Section 13(6) of the Act of 1950. The trial Court while

decided the issue of bonafide necessity, evaluate the evidence of

both parties. From the plaintiff's evidence, it came on record that

plaintiff's grandson- Mukesh has attained the age of 23 years and

he is unemployed and wants to start a business of general store.

Plaintiff also adduced evidence that no other vacant alternative

shop is available to be used for business of his grandson. Defense

of the defendant, that the grandson of plaintiff is already partner

in Chawla Brothers or Anand Industries, was not found proved.

Another defense of the defendant that plaintiff has other vacant

shops in his possession was also not found proved. Thus, on

appreciation of respective evidence of both parties, the trial Court

decided the issue of bonafide and reasonable necessity in favour

of plaintiff-landlord. The connected issues of comparative hardship

and partial eviction were also considered and it was observed by

the trial Court that the plaintiff would suffer comparative hardship

in case of not allowing the eviction. Further it was observed that

rented shop is one shop and its partition is not possible, hence,

the partial eviction would not be possible nor would fulfill the need

of plaintiff. Accordingly, both the issues were also decided in

favour of plaintiff. The issue of sub-letting was held against

plaintiff. Finally decree for eviction was passed by the trial court

on the ground of bonafide and reasonable necessity vide judgment

dated 07.10.1996.

4. Defendant-tenant assailed the judgment and decree for

eviction dated 07.10.1996, by way of filing first appeal, In the first

Appellate Court, appellant-defendant pressed only one issue that

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the grandson of plaintiff namely- Mukesh is not his family member

and the plaintiff could not have instituted the suit for eviction on

the ground of bonafide necessity of his grandson- Mukesh. All

other objections and the grounds of challenge against the

judgment and decree dated 07.10.1996 of the trial Court were not

pressed. The first appellate court clearly mentioned this fact in the

judgment of first appeal itself. Thus, the first Appellate Court

considered the only issue as to whether for the bonafide necessity

of grandson, plaintiff can institute the eviction suit. The first

Appellate Court, observed that ground of bonafide reasonable

necessity is provided under Section 13(1) (h) of the Act of 1950

wherein the word "Family" is not defined. However, with the help

of judgments of different High Courts, the first Appellate Court

discussed the word "Family" and observed that as per evidence on

record, the grandson resides with the plaintiff as family member

and for the purpose of deciding the issue of necessity, grandson

cannot be treated as excluded from the family of the plaintiff.

Further the first Appellate Court observed that defendant himself

admits that the grandson of plaintiff- Mukesh is dependent upon

the plaintiff and his family member. Thus, the first Appellate

Court, categorically recorded findings that the grandson of plaintiff

is family member of plaintiff and also dependent on the plaintiff

and plaintiff has a joint family. Hence, plaintiff has right to

institute the eviction suit for the necessity of his grandson.

Accordingly, the first Appellate Court, affirming the decree for

eviction passed on the ground of bonafide necessity and dismissed

the first appeal vide judgment dated 14.11.2000.

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5. This Court vide order dated 22.05.2001 admitted the second

appeal for hearing and framed following substantial questions of

law:-

(i) Whether the need of the grandson can be said to be the need of family or of plaintiff within the meaning of Section 13(1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950?

         (ii)    Whether    the      Courts       below      have      rightly
         determined      the     issues      of     bonafide        necessity,
         comparative hardship and partial eviction?
         (iii)   Whether     the     shop      in    question        have   a
         character of joint family or HUF property?

6.      Heard    learned    counsel       for appellant             and perused     the

impugned judgments on record.

7. In order to determine the substantial question of law No.(i),

it is necessary to consider the provision of section 13(1) (h) of the

Act of 1950 which reads as under:-

"(h) that the premises are required reasonably and bonafide by the landlord-

(i) for the use or occupation of himself or his family, or

(ii) for the use or occupation of any person for whose benefit the premises are held, or

(iii) for a public purpose, or

(iv) for philanthropic use, or

The word "family" mentioned in the provision is nowhere

defined. The expression "family" must be given a wider liberal and

practical manner. The Hon'ble Supreme Court in case of Joginder

Pal Vs. Naval Kishore Behal [(2002) 5 SCC 397], while

interpretating the expression "for his own use" as incorporated

under Section 13(3) (a) of the East Punjab Urban Rent Restriction

Act, 1949, observed that the requirement of the landlord does not

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mean that the landlord must himself physically occupy the

premises. The requirement of a member of the family or of a

person on whom the landlord is dependent or who is dependent on

the landlord can be considered to be the requirement of landlord

for his own use. The Supreme Court after discussing the umpteen

number of cases arising out of rent control legislation of different

States, observed that the landlord's necessity includes the

requirement of the wife, husband, sister, children including son,

daughter, a widowed daughter and her son, nephew, another

coparceners, member of family and dependants and kith and kin

in the requirement of the landlord as "his or his own requirement

and user".

8. The High Court of Delhi in case of Rishal Singh Vs. Bohat

Ram [2014 (2) RCR (Rent) 256], considered the issue of

bonafide necessity made by the landlord for his grandson for the

rented premises. The High Court held that the need of any

member including the son, wife, son's wife and children are to be

treated as need for the landlord. It was observed that law, on this

point, has evolved to the extent where it is accepted position that

grandson is included in dependants of the landlord.

9. Thus, as per settled proposition of law for the purpose of

bonafide necessity, the landlord can file eviction suit for the

necessity on his grandson, if grandson is his family member and

dependent on him. The trial Court as well as first Appellate Court,

have discussed this issue in detail and has recorded a finding of

fact that plaintiff's grandson- Mukesh resides with him and

dependent on the plaintiff and is a family member of plaintiff.

Even the defendant himself admits that plaintiff's grandson-

Mukesh is dependent on him and family member of plaintiff. The

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fact findings recorded by both Courts are not only based on

appreciation of evidence but also within parameters of law

according to the judgments refereed therein. It may also be

noticed that defendant did not took any such defense in his

written statement to the effect that plaintiff's grandson- Mukesh is

not his family member. Thus, this substantial question of law, does

not arise at all in the present appeal and the same deserves to be

answered in negative against the appellant.

10. As far as question No.2 is concerned, first it may be noticed

that before the first Appellate Court, the appellant-tenant himself

not pressed all other objections and grounds of challenge against

the decree for eviction except one issue that the plaintiff's

grandson- Mukesh, is not family member of plaintiff and the

eviction suit for his necessity could not have been filed. In such

view of matter, this substantial question of law does not arise in

the facts of present appeal. That apart, this substantial question of

law is in relation to comparative hardship and partial eviction

deserves to be answered in negative as this question of law is

based on appreciation of evidence and the trial Court has

discussed the evidence. The re-appreciation of evidence at the

stage of second appeal is not permissible, hence, this question of

law may not be treated as substantial question of law.

11. As far as substantial question of law No.3 is concerned, no

such defence was taken by defendant in his written statement.

Thus, this question does not arise out of the pleadings of parties.

Once both Courts have recorded fact findings that plaintiff's

grandson is a member of joint family of plaintiff and resides in the

house of plaintiff and dependent on him, the decree for eviction

(8 of 9) [CSA-117/2001]

was rightly passed for his necessity. In this view, this substantial

question of law also stands answered in negative.

12. 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.

13. 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.

14. 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

15. 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.

16. However, considering the old tenancy of the appellant-

tenant, three months time is granted to the appellant to vacate

and handover the rented premises, if has not already been

vacated, subject to payment of due arrears of rent/ rent as mesne

profit.

(9 of 9) [CSA-117/2001]

17. All pending application(s), if any, stand(s) disposed of.

18. Record of both Court below be sent back.

(SUDESH BANSAL),J

NITIN /93

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