SHREE RAM Vs. RADHABALLABH

JUDGEMENT

(1.) THIS second appeal of tenant Shree Ram son of Bodhan is directed against the concurrent findings and judgments of two courts below decreeing the suit on the grounds of personal bona fide necessity of the plaintiff-landlord Radhaballabh son of Hiralal. THIS appeal was admitted by this Court on 11. 12. 2002 with the followings substantial questions of law framed by the Court:- (1) Whether the need of a brother who is not dependent on the plaintiff and is living separately is a member of the plaintiff's family and the ground u/s. 13 (1) (h) (i) of the Rajasthan Premises (Control of Rent and Eviction) Act is available to him for eviction? (2) Whether the decree of eviction is bad in law for non- determination of question of partial eviction? (3) Whether the impugned judgment has been passed in violation of mandatory provision of Order 41 Rule 31 CPC and is liable to be set aside on this ground as well?

(2.) THE facts giving rise to the present second appeal are that a shop situated at Sabji Mandi, Alwar was given on rent of Rs. 50/- per month on 18. 3. 1972 by the plaintiff-landlord to the defendant-tenant. THE suit for eviction was filed by the landlord on the ground of personal bona fide necessity of the brother of landlord Rakesh. According to plaintiff, after the death of the father of these two brothers, the elder brother plaintiff Radhaballabh was responsible for upbringing of the younger brother Rakesh and in the absence of any job he had to work as a driver in Delhi but he wanted to start his business in the suit premises i. e. the shop in question and, therefore, the said shop was needed for personal bona fide necessity of brother of plaintiff. Another ground raised by the plaintiff was that the shop in question was in a dilapidated condition and in order to re-construct it properly the said premises was required by the landlord.

(3.) COUNTERING the arguments of the learned counsel for the appellant Mr. Dinesh Sharma learned counsel for the respondent- plaintiff urged before the Court that bona fide necessity of brother was also very well covered under clause 13 (1) (h) of the Act as he was person closely connected with the plaintiff and was a family member and relying on the judgment in Joginder Pal vs. Naval Kishore Behal (2002) 5 SCC 397) he submitted that the decree awarded by the courts below was absolutely justified and required no interference in the present second appeal. He submitted that as a matter of fact against the concurrent findings of two courts below in favour of the landlord on the ground of personal bona fide necessity and comparative hardship no substantial question arises, as held by this Court in Jai Kishan Malpani & Ors. vs. Braspath Chand (2003 WLC (Raj.) 287 ). He also relied upon the judgment of this Court in Sohan Lal & Ors. vs. Khetu Lal & Ors. (1995 (2) WLC 742) wherein this Court held that question of bona fide personal necessity being mixed question of fact and law, mere error, if any on part of lower courts in appreciation of evidence is not sufficient for entertaining the second appeal. About the bona fide necessity of brother, learned counsel for the respondent-landlord also relied upon the judgment of this Court in Raj Rani vs. Ramanlal Agarwal (1972 All India Rent Journal 699) wherein this Court held that the family of the deceased landlord's brother must also be taken into consideration while deciding the question of personal bona fide necessity in cases of eviction. About dilapidated condition of the shop he submitted that it would depend upon age and condition of suit premises, whether such repair or re- construction is required by the local authorities or even for bona fide necessity of the landlord and since the two courts below have concurrently held that the suit premises in question were in dilapidated condition the same being a finding of fact, it could not be interested with in the present second appeal. He relied upon the judgment of Hon'ble Supreme Court in Jagat pal Dhawan vs. Kahan Singh (dead) by Lrs. & Anr. (2003 (1) SCC 191) in this regard. Abut necessity to consider the question of partial eviction he cited judgment of this Court in Hanuman Das & Ors. vs. Sanwal Ram (1982 RLR 916) and submitted that this question need not be considered when the subject matter of the suit is a single shop.