Dr. Naraindas vs Rammanohar
2022 Latest Caselaw 6917 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

             S.B. Civil Second Appeal No. 199/1999
  Dr. Narain Das (deceased represented through legal
  representatives)
  1/1. Sh. Radha Mohan S/o Late Dr. Narain Das
  1/2. Sh. Bhagwan Das S/o Late Dr. Narain Das
  1/3. Sh. Prem Kant S/o Late Dr. Narain Das
  1/4. Sh. Krishna Kant S/o Late Dr. Narain Das
       All Residents of House No.314, Lal Ji Sand Ka Rasta, Chora
  Rasta, Modi Khana, Jaipur.
  1/5. Sh. Smt. Mohini Devi W/o Sh. Kailash Chand Badaya, R/o
  Govident Nagar, Amer Road, Jaipur
  1/6. Smt. Chitralekha W/o Sh. Hanuman Prasad Dusad, R/o
  Vidhyadhar Nagar, Sector 9, Jaipur.
  1/7. Smt. Prem Lata W/o Murli Manohar Badaya, R/o Baba
  Harish Chand Marg, Chanpole Bazar, Jaipur.
  1/8. Smt. Chandrakanta W/o Dr. B.L. Gupta, R/o Malviya Nagar,
  Sector-7, Jaipur.
                                                    ----Appellant-Plaintiffs
                                     Versus
  Ram Manohar adopted son of Nand Kishore (Since deceased)
  now being represented through following legal representatives:-
  1/1. Shakuntala Devi Khandelwal W/o Ram Manohar
  Khandelwal, R/o Vidhyadhar Ka Rasta, Kagaji Bhawan, Jaipur
  1/2. Mehul Khandelwal S/o Late Avdesh Khandelwal, grand son
  of late Shri Ram Manohar Khandelwal, R/o Vidhyadhar Ka Rasta,
  Kagaji Bhawan, Jaipur
                                             ----Respondent-Defendants

For Appellant(s) : Mr. Abhay Kumar Bhandari, Sr. Advocate assisted by Mr. Vaibhav Bhargava & Mr. Vikram Singh For Respondent(s) : None present

HON'BLE MR. JUSTICE SUDESH BANSAL Judgment JUDGMENT RESERVED ON:- October 21st ,2022

JUDGMENT PRONOUNCED ON:- November 1st,2022 REPORTABLE

1. The instant civil second appeal under Section 100 of C.P.C.

has been preferred by and on behalf of plaintiff-landlord-appellant

assailing the judgment and decree dated 26.02.1999 passed in

(2 of 19) [CSA-199/1999]

Civil First No.24/1995 by the court of Additional District Judge

No.2, Jaipur City, Jaipur whereby and whereunder while allowing

the appeal, filed by respondent-tenant, the first appellate court

has set aside the judgment and decree dated 30.03.1995 passed

in Civil Suit No.6/1970 (22/1994) by the court of Additional Civil

Judge (Jr. Division) No.1, Jaipur City, Jaipur decreeing the

plaintiff's suit for eviction on the ground of bona fide and

reasonable necessity of the rented shop for his son, after

comparing comparative hardships between the landlord and the

tenant and consequently, the civil suit for eviction has been

dismissed.

2. Heard learned counsel for appellant at length, perused the

judgments and record.

3. It appears from perusal of record that initially notices of this

second appeal were issued to the respondent-defendant-tenant

vide order dated 13.05.1999. Respondent-Defendant-Ram

Manohar put in appearance through advocate. Thereafter, having

heard learned counsel for both parties, Co-ordinate Bench of this

Court vide order dated 1st September, 2006 admitted this appeal

for consideration on the following substantial question of law:-

"Whether, the mere fact that the landlord who wanted a commercial premises for starting his own business can be said to have lost his necessity if after remaining unemployed for very long time say 11 years during the pendency of the suit joined service for his livelihood and in due course is confirmed in the service?"

4. Appellant-plaintiff Dr. Narain Das passed away during

pendency of second appeal, hence his legal representatives came

(3 of 19) [CSA-199/1999]

on record and pursued this appeal. Thereafter, sole respondent-

defendant-tenant Ram Manohar passed away on 28.06.2012.

From the side of appellant, application was filed that deceased

respondent Ram Manohar is survived by legal representatives of

his wife Shakuntala Devi and grand son Mehul Khandelwal who

may be substituted as his legal representatives in this second

appeal to pursue proceedings of the appeal but it was averred that

wife and grand son of deceased respondent never carrying on any

business in the rented shop during the life time or up to death of

respondent Ram Manohar and therefore, tenancy rights do not

devolve upon the surviving legal heirs. Notices of the application

to surviving legal representatives of deceased respondent were

issued.

As per office report, notices were duly served but no one

appeared on their behalf. Application for taking legal

representatives of deceased respondent Ram Manohar was

allowed vide order dated 07.09.2016 and respondent No.1/1 and

1/2 were substituted in his place. Again notices were issued to the

substituted respondent No.1/1 and 1/2, which were served as per

office report. Order dated 14.11.2017 goes to show that advocate

who appeared for respondent-defendant Ram Manohar, put in

appearance for his legal representatives as well and on the joint

request of learned counsel for both parties, the matter was sent

before the Mediation Center to explore possibility of amicable

settlement through Mediator. Thereafter on 13.12.2017, learned

counsel for respondents again sought time to explore possibility of

amicable settlement but mediation proceedings remained

unsuccessful. Thereafter, vide order dated 06.09.2018, in the

(4 of 19) [CSA-199/1999]

presence of learned counsel for both parties, application for early

hearing of second appeal was allowed. On next date i.e.

08.10.2018, counsel appearing for respondents No.1/1 and 1/2

pleaded no instructions and thereafter, the court notices were

ordered to be issued to respondents. As per office report, on

31.10.2018 notices served yet no one appeared on behalf of

respondents.

5. It has also revealed from the record that during pendency of

this second appeal during life time of original respondent-Ram

Manohar, appellant filed an application under Order 41 Rule 27

CPC to take on record a copy of the order dated 26 th of August,

2003. This application was allowed after haring learned counsel for

both parties vide order dated 21.12.2006 and the order in respect

of taking voluntary retirement by the appellant No.1/1 Radha

Mohan, for whom necessity, the present suit for eviction was filed,

was taken on record. Respondent was given opportunity to file any

document in rebuttal but no document is filed by the respondent

to refute such subsequent fact.

6. Since no one is appearing for and on behalf of LRs of

deceased respondent to contest this appeal, this Court, vide order

dated 11.04.2022 asked the appellant to submit an affidavit

furnishing the factual details about the present status and position

of the rented shop as also about the rent paid in respect of rented

shop. In compliance thereof, appellant Radha Mohan has

submitted an additional affidavit dated 18.04.2022 on record. In

the affidavit, it is stated that the rented shop was earlier been

used by respondent-Ram Manohar but after his death, no legal

representatives were seen doing any business, since his son

(5 of 19) [CSA-199/1999]

Avdesh Khandelwal pre-deceased to respondent. The shop

remained closed for many years. Recently, it has been seen that

occasionally some unknown persons used to do business of

stationery and toys in the shop. It has been stated in the

additional affidavit that respondents have not paid any rent of the

rented shop since October, 2005.

7. Keeping in mind all afore-stated unrebutted facts available

on record, in order to deal with the substantial question of law,

which falls for consideration in the instant second appeal, following

facts of the case as culled out from the record are need to be

taken into consideration.

8. On 20.12.1969, the plaintiff-Dr. Narain Das filed a civil suit

for eviction and recovery of arrears of rent against two defendants

namely, Nand Kishore and smt. Suraj Devi. The civil suit was

instituted under the provisions of Rajasthan Premises (Control of

Rent and Eviction), Act of 1950 (hereafter referred to as 'the Act

of 1950') on the ground of default, bona fide and reasonable

necessity and subletting. It is stated in the suit that the shop in

question bearing Municipal No.656 situated in Tripolia Bazar, Jaipur

was taken on rent by defendant Nand Kishore and his brother Ram

Kishore @Rs.35/- per month and rent note dated 16.10.1956 was

executed in favour of plaintiff. It is stated that the tenant

committed default in payment of rent, therefore, a suit for

ejectment and rent was filed on 13.11.1961 but tenant deposited

arrears of rent with interest therefore, the suit was dismissed. It is

stated that tenant again committed default in payment of rent.

Meanwhile, Ram Kishore died and defendant No.1 Nand Kishore

alone continued to carry on business in the rented shop. In

(6 of 19) [CSA-199/1999]

respect of default, plaintiff pleaded that rent of the shop in

question has not been paid since 05.03.1968. In respect of bona

fide necessity, plaintiff pleaded that one of his son namely Radha

Mohan has left his studies and is an unemployed, who wants to

start his business of general merchandise and therefore, the

plaintiff is in bona fide and reasonable required of the rented shop

for his son. In respect of subletting, it was pleaded that the

defendant No.1 part with possess the shop in question with one

Ram Manohar. The plaintiff prayed for decree of ejectment and

arrears of rent on all these grounds.

9. Defendants No.1 and 2 filed their separate written

statements and denied pleadings in respect of default, bona fide

and reasonable necessity and subletting. It was contended that

Ram Manohar is adopted son of defendant No.1 Nand Kishore and

he is not sub-tenant. Defendant also made an attempt to show

that the shop was taken on rent for a partnership firm Shivnarain

Rampratap but since rent note is in the personal names of

defendant No.1 Nand Kishre and his brother Ram Kishore,

therefore, such plea was later on found of no credence. During the

course of trial, defendant No.1 Nand Kishore passed away,

therefore, his wife was substituted as defendant No.1/1 but since

his wife also died, thereafter, his adopted son Ram Manohar was

substituted as defendant No.1/1/1 (respondent No.1 herein) who

died during the second appeal and represented through

respondents No.1/1 and 1/2. Later on defendant No.2 Smt. Suraj

Devi too passed away and her name was deleted. Defendant

No.1/1/1 Ram Manohar filed his own written statement and

contested the eviction suit. Default in payment of rent was denied.

(7 of 19) [CSA-199/1999]

Necessity of rented shop to plaintiff's son Radha Mohan was also

denied. Subsequently, defendant got amended his written

statement and stated that plaintiff's son Radha Mohan for whom

the rented shop has been alleged to be bona fidely required, has

got employment in Upbhokta Bhandar Co-operative Department

and thus, he does not require the shop for his business.

10. The Trial Court, on the basis of pleadings of both parties,

framed necessary issues and allowed both parties to adduce in

support of their respective claims. Issue No.2 is of default, issue

No.5, 6 and 8 are in respect of bona fide necessity, comparative

hardships and partial eviction and issue No.7 is in respect of

subletting.

Plaintiff produced himself as PW-1, Radha Mohan as PW-2

and other witness PW3 and PW-4 and also produced documents

(Ex.1 to Ex.17) including documents to show that plaintiff's son

Radha Mohan only got a temporary job in Upbhokta Bhandar Co-

operative Department during the course of trial of eviction suit. In

Rebuttal, defendant produced DW-1 to DW-7 and exhibited

documents (Ex.A/1 to Ex./5).

11. The Additional Civil Judge (Jr. Division) No.1, Jaipur City,

Jaipur vide its judgment dated 30.03.1995 decreed the plaintiff's

suit and passed decree for eviction against the defendant-tenant

on the ground of bona fide and reasonable necessity of the rented

shop to the plaintiff-landlord for business of his son. The

defendant-tenant was also held defaulter in payment of rent, but

benefit of first default was extended. The issue of subletting was

held against the plaintiff since the alleged sublettee Ram Manohar

is none else but is proved to be an adopted son of original tenant

(8 of 19) [CSA-199/1999]

defendant No.1 Nand Kishore and who was also impleaded as

defendant No.1/1/1 after death of original defendant-tenant and

has been treated as tenant in rented shop.

The Trial Court dealt with the subsequent event of joining the

job by the plaintiff's son Radha Mohan during the pendency of suit

and observed that at the time of institution of the present civil suit

on 20.12.1969 Radha Mohan was unemployed but he joined

temporary service on Ad hoc basis initially for 80 days in Upbhokta

Bhandar Co-operative Department on 14.12.1981 and his Ad hoc

period was later on continued. The Trial Court, after appreciation

of some of the judicial precedents, observed that the necessity of

rented shop for plaintiff's son Radha Mohan does not come to an

end or seized only due to joining a temporary job by him during

pendency of suit. It was observed that the plaintiff's son Radha

Mohan himself has deposed that he is interested in doing business

only and he deposed that even at Upbhokta Bhandar, where he is

doing temporary job, he has also got an experience in the

business of general merchandise and his need of rented shop for

doing business is persisting. The Trial Court categorically observed

that considering the long drawn process of eviction proceedings,

which has continued for about 25 years in the present suit, it may

not be expected from the plaintiff's son to sit idle and not to do

any work for his livelihood. Therefore, taking into account the

respective evidence of both parties and the subsequent event, the

Trial Court clearly observed that the necessity of rented shop to

plaintiff's son Radha Mohan to start business of general

merchandise does not come to an end, merely by joining a

temporary job or even may be permanent during pendency of the

(9 of 19) [CSA-199/1999]

eviction proceedings and necessity was held to be bona fide and

reasonable. The Trial Court, after deciding the issue of

comparative hardships and partial eviction, decreed the suit for

eviction on the ground of bona fide necessity vide judgment dated

30.03.1995.

12. Being aggrieved by the decree for eviction dated 30.03.1995

and findings of default, respondent-defendant Ram Manohar

preferred first appeal their against. Before the First Appellate

Court, plaintiff's son Radha Mohan deposed his undertaking on

affidavit that he will resign from his job as soon as he will get the

vacant possession of the rented shop and thus pursued his

necessity of rented shop. However, the First Appellate Court,

reversed the decree for eviction only for the reason that plaintiff's

son Radha Mohan has joined services in Upbhokta Bhandar Co-

operative Department and there he is in employment since last 18

years by the time of deciding the first appeal, therefore it cannot

be said that he has a reasonable and bona fide necessity of the

rented shop. The First Appellate Court also reversed findings of

default and finally, vide judgment impugned dated 26.02.1999,

set aside the decree for eviction and dismissed the plaintiff's suit

for eviction.

13. In this second appeal, this Court is dealing with the

substantial question of law related to the reversal of the decree for

eviction by the First Appellate Court, passed by the Trial Court, on

the ground of bona fide necessity, therefore, this Court is

considering findings of the First Appellate Court in respect of issue

No.5, 6 and 8, as whether they are perverse, contrary to settled

proposition of law and are liable to be sustained or not?

(10 of 19) [CSA-199/1999]

14. At the outset, it may be noticed that it is undisputed fact that

the present suit for eviction in respect of the rented shop was

instituted on 20.12.1969 for necessity of plaintiff's son Radha

Mohan who at that point of time was not in any job but was said

to be unemployed and he joined the job temporarily in Upbhokta

Bhandar on 14.12.1981 during the course of trial of eviction suit.

It has come on record in the evidence of parties that initially he

was appointed on Ad hoc and temporary basis for 80 days and

later on his Ad hoc period of service was extended time to time

(Ex.7 to Ex.11). He himself deposed evidence as (PW-2) that he is

in need of the rented shop to start business of grocery

merchandise and he wants to do business only. It was stated that

he joined the service temporarily for livelihood of his family and

the salary amount falls short for his livelihood. There is evidence

on record that any other vacant shop is available to plaintiff for

business of his son Radha Mohan and as proceedings of eviction to

get vacate the rented shop prolonged for years, he had to join job

in the meanwhile. It is after 12 years of filing of the eviction suit,

Radha Mohan joined service on 14.12.1981. Taking into

consideration of such evidence and subsequent facts on record,

the trial court passed decree for eviction on the ground of bona

fide and reasonable necessity holding that joining temporary job

during the course of trial, his necessity to the rented shop does

not extinguish. Even it was observed that if due to continuation in

service, he got the benefit of confirmation, this sole fact cannot

mitigate his necessity of the rented shop. He has deposed

evidence that he has liking for business and wants to increase his

income as much as has also gained more experience of doing

(11 of 19) [CSA-199/1999]

business of general merchandise while doing his job at Upbhokta

Bhandar.

15. The First Appellate Court has given weigh to the additional

evidence that though Radha Mohan deposed his evidence that he

has joined the service temporarily and he cannot sit idle during

the course of proceedings of eviction but has to join the job for his

livelihood, yet he has also admitted in cross-examination on the

additional affidavit filed during the course of first appeal to the

effect that now he is regular grade employee and his basic pay is

Rs.4,700/- per month other than Dearness Allowance (DA) and

House Rent Allowance (HRA). The First Appellate Court observed

that Radha Mohan admitted in cross-examination that he is doing

service in Upbhokta Bhandar since 25 years. Thus, the First

Appellate Court, swayed away by this long period of service and

brushed aside the other part of evidence and findings of the trial

court to the effect that Radha Mohan has already stated on oath

that he wants to do business only and would leave/resign from the

job as soon as he will get the rented shop vacated for his

business. The First Appellate Court, by its own treated the stand

of Radha Mohan giving an undertaking to leave the job, a planned

trick to seek eviction of the defendant from the rented shop. The

First Appellate Court by its own assume that once the service of

Radha Mohan has been permanent, his need to do job may not be

held to be bona fide and reasonable. The First Appellate Court has

erred in not pondering over to the evidence and fact that Radha

Mohan joined service after remaining unemployed for 11 years

even after filing of the suit. Further it is the sole decision of the

landlord which would prevail in respect of choosing his livelihood.

(12 of 19) [CSA-199/1999]

When Radha Mohan has deposed that he wants to do business

only and has joined the job temporarily just to earn his livelihood

and would leave the job after getting vacation of the vacant shop

and start his business, the First Appellate Court should not have

throbbed its own decision over the decision/desire of the landlord

to do the business. It is trite law that landlord is the best judge of

his need. The First Appellate Court has also erred in not taking

into consideration the evidence on record that Radha Mohan

(PW-2) opened a shop of general merchandise in Maniharo Ka

Rasta and carried on business therein for six months, later on he

could not run that shop and joined the service. This

evidence/finding is rather in favour of the plaintiff to prove his

intention to do the business. The First Appellate Court has

misconstrued the true purported of the evidence and recorded

perverse finding assuming that Radha Mohan has no intention to

do business. Such finding of First Appellate Court is contrary to

the evidence on record and are based on surmises and

conjectures by drawing an assumption of its own. During the

course of this second appeal, it has come on record that Radha

Mohan has availed Voluntary Retirement Scheme (VRS) on

31.08.2003 and order to this effect dated 26.08.2003, accepting

his VRS has already been taken on record which is marked as

(Annexure-A/1). This additional evidence was taken on record,

vide order dated 21.12.2006, after hearing learned counsel for

respondent-tenant and opportunity to the tenant was also

accorded by this Court to produce any evidence/document in

rebuttal but no evidence in rebuttal to deny/dispute the factum of

taking the VRS by Radha Mohan has been placed on record. This

(13 of 19) [CSA-199/1999]

Court is not oblivious to the fact that the plaintiff Dr. Narain Das

had filed his affidavit dated 30.07.1998, later on Dr. Narain Das as

well as Radha Mohan both furnished undertaking on 12.02.1999

before the First Appellate Court showing intention to resign from

service as soon as they will get the possession of rented shop. It

has also been held as per evidence on record that the landlord did

not want to enhance the rent and there is no oblique motive of the

landlord to file eviction suit. By the Additional evidence, the need

and intention of the plaintiff's son to do business in the rented

shop rather stands strengthen. It is no more res integra that the

landlord is the best judge of his need and neither the tenant nor

the Court may/should dictate the landlord or force to landlord to

adjust or compromise with his need. It has also come on record

that the landlord has no alternative shop. It is clear position as

emerges in the present suit that though the plaintiff's son Radha

Mohan was unemployed at the time of institution of suit and his

need for the rented shop was bona fide and reasonable at that

point of time. The eviction proceedings went prolonged for years

and now about 50 years have lapsed and after 11-12 years after

filing of eviction suit, if Radha Mohan joined any job in Upbhoka

Bhandar for his livelihood, his necessity for the rented shop should

not have been treated as abolished more so, when he deposed his

desire/wish to do the business and not to continue with the

service rather furnished undertaking to leave/resign from service

on vacation of the rented shop. It is not the requirement of law

that during pendency of eviction proceedings, landlord/the person

for whose necessity is alleged should not do any job/business or

employment for his livelihood in the interregnum period. Now it is

(14 of 19) [CSA-199/1999]

clear that Radha Mohan has resigned from his job. It may be

noticed that the First Appellate Court too has nowhere held that

the need of the rented shop to Radha Mohan was not bona fide

and reasonable at the time of the institution of the suit but the

First Appellate Court, swayed away by the fact of joining the job

during the trial of suit and by continuation in job for 25 years and

only on such account the First Appellate Court held that the

necessity of the rented shop for Radha Mohan has come to an end

and finished. Such approach of the First Appellate Court is not

correct and is not liable to be countenanced, rather is against the

material on record as well as contrary to the proposition of law.

16. In case of Padam Chand Vs. Narbada Bai reported in

[(1986) RLR 859], plaintiff filed eviction suit in the year 1971

for bona fide and reasonable necessity of the rented shop for

carrying on business by his son but during pendency of suit,

plaintiff died and his son was employed in a cement factory, where

he was made permanent. Therefore, it was argued from the side

of tenant that only need as disclosed in the plaint having been

fulfilled and the landlord cannot be said to have any reasonable or

bona fide necessity. This Court declined to accept the contention

of tenant and observed that merely because plaintiff's son got a

job in cement factory and had joined the service, it cannot be said

that he has given up the idea of doing his business in the suit

premises. The suit had been pending since 1971 and at the time

of Judgment in 1986, about 15 years have lapsed, therefore it was

not accepted that a person who wants to start his business in the

suit premises should sit idle for all the time to come and should

not accept any job so as to meet his ends and only wait for

(15 of 19) [CSA-199/1999]

ultimate result of the litigation. The ratio squarely apply to facts of

the present case.

17. In case of Gaya Prasad vs. Pradeep Srivastava [2001 (2)

SCC 604], the Hon'ble Supreme Court held that crucial date for

deciding the bona fides of the requirement of the landlord is the

date of his application for eviction and the subsequent events

cannot eclipse the said bona fide requirement, unless the

subsequent event overshadows the requirement of landlord. It

was observed by the Hon'ble Supreme Court that it was

unfortunate situation that the litigation proceed in long process. In

that case, litigation proceeded 23 years and during this period, it

is not expected from the landlord or his son to remain idle without

doing any work lest, joining any new assignment or starting any

new work as that would be at the peril of fore-fitting the bona fide

requirement of the landlord. If the subsequent events are

insufficient to overshadows bona fide the need, the necessity

pleaded and proved by the landlord does not come to an end and

eclipse. It is a stark reality that longer is the life of litigation, the

more would be the number of developments sprouting up during

the long interregnum. The facts of present case are more or less

similar and need for rented shop is not overshadowed by joining

job by plaintiff's son interregnum.

18. In case of Hukum Chandra (Dead) through LRs Vs. Nemi

Chand Jain [2019(13)SCC 363], the Hon'ble Supreme Court

after considering umpteen number of previous judgments,

expounded the judicial precedent reiterating that rights of parties

stand crystallized on the date of institution of the suit. However, in

appropriate cases, court can take note of all the subsequent

(16 of 19) [CSA-199/1999]

events. In that case, the Hon'ble Supreme Court affirmed the

bona fide requirement of landlord and the event that landlord's

son for whom eviction of suit premises was sought, became

gainfully employee after filing of the suit is held to be irrelevant

factor for adjudicating the bona fide requirement of the landlord.

19. Apart from afore-referred judgments, there are umpteen

number of judgments where a proposition of law has been settled

that in the dispute between the landlord and the tenant more

particularly, on the ground of bona fide necessity, the subsequent

events unless and until do not eclipse the necessity completely,

are not required to give weigh to decline the necessity which

exists at the time of institution of the eviction suit. Reference of

some judgments in case of Ramesh Kumar Vs. Kesho Ram

[1992 Supp (2) SCC 623], Jashwant Raj and Ors. Vs. Bata

India Limited [1997(1)RLW 322], Radhe Shyam Vs.

Kanhaiya Lal [1988(1)RLR 225], Santosh Kumar Jain Vs.

Shambhulal Krishna Kumar Suhane [AIR (1993) MP 46],

Seshambal (Dead) through LR's Vs. Chelur Corporation

Chelur Building and Ors. [2010 (3) SCC 470] may be given.

20. Having considered the proposition of law in respect of the

ground of bona fide and reasonable necessity, in the litigation

between the landlord and tenant, this Court is of unequivocal

opinion that in the case at hand, the First Appellate Court has

grossly erred in setting aside the decree of eviction passed by the

trial court on the ground of bona fide and reasonable necessity of

suit shop for plaintiff's son Radha Mohan. The subsequent event of

joining the job by Radha Mohan, after 11 years of the institution of

eviction suit, during the course of eviction proceedings that too

(17 of 19) [CSA-199/1999]

only for the purpose of earning his livelihood has wrongly been

assumed as eclipse/end of his necessity for the rented shop by

overlooking to the evidence on record that he himself has led

evidence that he intends to carry on business only and has joined

the job temporarily as much as would leave the job, as soon as

would get the vacant possession of the rented shop. During the

course of second appeal, Radha Mohan has also tendered his VRS

and his VRS has been accepted. Therefore, decree for eviction

passed by trial court is required to be restored.

21. In case of Damodar lal Vs Sohan Devi and Ors. [2016

(3) SCC 78], the Hon'ble Supreme Court while dealing a case of

eviction on the ground of material alternation in the rented

premises, observed that interference with findings of fact of the

court below by the High Court in second appeal is not permissible

unless such findings are based on no evidence or are perverse.

The criteria to determine as to whether finding(s) is concerned are

perverse or not, it was observed that the wrong finding should

stem out of a complete misreading of evidence or it should be

based only on conjectures and surmises. The safest approach on

perversity is the classic approach on reasonable man's inference

on facts. To him, if the conclusion on facts in evidence made by

the court below is possible, there is no perversity. If not, the

finding is perverse. In recent judgment of Hon'ble Supreme Court

delivered in case of C. Doddanarayana Reddy (Dead) by LR's

and Ors. Vs. C. Jayarama Reddy (dead) by LR's and Ors

[2020 (4) SCC 659], in respect of jurisdiction of High Court to

interfere with the findings of fact, while exercising its jurisdiction

under Section 100 CPC, it has been held that interference in the

(18 of 19) [CSA-199/1999]

fact finding by the High Court may not be said to be erred when

the finding recorded by the court below is based upon any

misreading of material evidence or is recorded against the settled

proposition of law or when any judge acting judicially and

reasonably could not have reached such a finding.

22. Appreciating the finding of fact recorded by the First

Appellate Court reversing the finding of trial court on the issue of

bona fide necessity, it can safely be held that the First Appellate

Court has not only misread/ignored the evidence on record but

has recorded a finding contrary to the settled proposition of law as

set out by the Hon'ble Supreme Court and High Court in umpteen

number of cases in respect of bona fide necessity as discussed

hereinabove and overall the finding of First Appellate Court is

perverse and unsustainable in the eye of law.

23. Having discussed the factual and legal aspect, the substantial

question of law is answered affirmative in favour of appellant and

it is held that merely by joining a job by the plaintiff's son during

the course of eviction proceedings to earn his livelihood, his

necessity for the rented shop may not be held as eclipse/lost.

24. Before parting with the judgment, it may be observed that

no substantial question of law in respect of reversing the finding of

fact on the issue of default has been framed. The counsel for

appellant during course of arguments has not given much

emphasis on his application filed to the effect that after the death

of original respondent-defendant Ram Manohar, tenancy rights do

not devolve upon his surviving legal representatives, therefore,

this Court is refraining itself from passing any finding on such

issues.

(19 of 19) [CSA-199/1999]

25. As a result, the instant second appeal succeeds and is hereby

allowed. The impugned judgment and decree dated 26.02.1999

passed in Civil First Appeal No.24/1995 by the court of Additional

District Judge No.2, Jaipur City, Jaipur is hereby set aside and the

judgment and decree for eviction and arrears of rent dated

30.03.1995 passed in Civil Suit No.6/1970 (22/1994) by the court

of Additional Civil Judge (Jr. Division) No.1, Jaipur City, Jaipur is

restored. The appellant would be entitled to execute the decree for

eviction after expiry of two months from today. No costs.

26. Record be sent back.

(SUDESH BANSAL),J

TN

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