BALURAM Vs. HEERALAL

JUDGEMENT

(1.) IN this second appeal learned counsel for the appellants and the learned counsel for the respondents (who has appeared after filing caveat) were heard.

(2.) THE facts may be narrated as follows : There is a shop situated at Mount Abu which was let out to the appellants' father on a monthly rent of Rs. 40/-. Later on standard rent was fixed at the rate of Rs. 80/- per month. Suit for its eviction was filed on the grounds of default and personal bonafide necessity. The suit was dismissed by the trial Court but when the landlord preferred appeal before the learned Additional District Judge, Abu Road, same was allowed and a decree for eviction was passed. The appellants submitted that the trial Court has come to the conclusion that the witnesses were liers and, therefore, the appellate Court has committed illegality in reversing the findings. He also submitted that according to Order 41 Rule 31 CPC the appellate Court was required to determine the points but the appellate Court has not done so, therefore, the appeal should be remanded for decision by the appellate Court again. In support of his argument he relied on 1997(2) RLW, page 810, Khetu Lal v. Narsingh Das and others, and 1997(2) RLW, page 986, Smt. Patu and others v. LRs. of Dau Lal. He submitted that the finding of the trial Court was reversed by the appellate Court and in such a case the reasons given by the trial Court for its finding must be considered by the appellate Court. For this proposition reliance has been placed on AIR 1995 SC page 1607, S.V.R. Mudaliar (dead) by LRs. and others v. Mrs. Rajabu F. Buhari (Dead) by LRs. and others. It was further submitted that when the lower appellate Court had over-looked a very material part of evidence bearing on the question of bonafide requirement of landlord, the finding of fact arrived at ignoring important and relevant evidence is bad in law. In support of the aforesaid contention learned counsel relied on AIR 1976 SC page 2229, Damadilal and others v. Parashram and others. It was further argued that when the lower appellate Court in arriving its conclusion ignored important evidence on record, its conclusion is not binding in second appeal. Reliance was placed on AIR 1968 SC page 466, Smt. Sonawati and others v. Sri Ram and another. Relying on AIR 1963 SC page 1279, Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and others, it was contended that in second appeal decision of first appellate Court is not binding when the first appellate Court reached after placing the onus wrongly or based on no evidence or where there has been substantial error or defect in the procedure, producing error or defect in the decision of the case on the merits. Reliance has also been placed on 1987(II) RLR page 299, Khet Singh and others v. Hari Singh and others, and it has been submitted that when there are contrary findings of fact of two Courts below, in order to decide that which of the finding is correct, High Court has to consider reasons given by the trial Court as well as first appellate Court for taking their views of the matter and in such cases appreciation of evidence is permissible.

(3.) SO far as Order 43 Rule 31 CPC is concerned, it provides that judgment of the appellant Court shall be in writing and shall state the points for determination, the decision thereon, the reasons for the decision, and where the decree appealed from is revensed or varied, the relief to which the appellant is entitled. I have gone through the detailed judgment of the learned appellate Judge. He has formulated points for determination right from para No. 17 to para No. 22 (page No. 8 to page No. 14) and they are about factum of service of Vishnu Prasad, the point about personal and bonafide need of the landlord, the point about comparative hardship. By no stretch of imagination this judgment can be regarded which might be lacking on the points for determination. Therefore, the contention of the learned counsel for the appellants that the judgment lacks the point for determination, is not acceptable.