Judgment:
S.N. Bhargava, J.
1. This is tenants' second appeal against the judgment and decree passed by Additional District Judge No. 5, Jaipur City setting aside the judgment and decree passed by Additional Munsif Magistrate No. 1, Jaipur City, and decreeing the suit of the plaintiff Smt. Suraj Bai.
2. The plaintiff Smt. Suraj Bai filed the present suit for eviction from the suit premises which was given on rent to the appellants on 13-6-1951 at the rate of Rs. 18/- per month and wherein the appellants have got their godown. The plaintiff is running a primary school namely, Nehru Bal Shiksha Kendra, and the accommodation which she had was insufficient for the School. Therefore, the plaintiff required the suit premises which is adjacent to the school, for accommodating the students as also for office.
3. The suit was contested by the tenants. In the written statement, it has been asserted that there is no reasonable and bona fide necessity and further that the plaintiff wanted to increase the rent of the suit premises, and with this object, the suit has been filed only to harass the defendants.
4. On the pleadings of the parties, the trial Court framed the following four issues :[
(Matter in vernacular omitted -- Ed.)
5. The plaintiff did not examine herself but she examined Gulab Chand, her general power of attorney holder and PW-2 Narain Lal; whereas defendants also examined Lajpat Rai as DW-1 and Chunnilal as DW-2.
6. The trial Court dismissed the suit of the plaintiff and held that the plaintiff has not been able to prove her bona fide and reasonable requirement.
7. The plaintiff preferred appeal and the first appellate Court, decreed the suit of theplaintiff. It found that the suit premises are required by the plaintiff reasonably and bona fide. It is against these judgment and decree that the present appeal has been filed.
8. This appeal was admitted after hearing both the counsel for the parties and the only substantial question of law that was framed by the Court at the time of admission was as under:--
'Whether the statement of PW-1 Gulab Chand alleged to be constituted attorney could be considered to be legal evidence in the case on the question of reasonable and bona fide necessity of the plaintiff under the provisions of Section 13(1)(h) of the Act'.
This case was ordered to be listed for final disposal on 4-8-86 and hence this appeal has come up before me today for final disposal.
9. Learned counsel for the appellants has submitted that the landlady has not examined herself and, therefore, an adverse inference should be drawn against her. He has further submitted that the power of attorney holder Gulab Chand was not authorised to give statement by Mukhtiarnama (Ex. 1). He has further submitted that before filing the suit, the notice was given to the defendants on the instructions of the plaintiff. Plaint, amended plaint, Vakalatnama, and the memo of appeal have all been signed by the plaintiff herself and no reason has been assigned nor any explanation offered as to why the plaintiff did not examine herself. He has drawn my attention to the evidence of PW-1 Gulab Chand and has submitted that he has refrained from disclosing material facts in cross-examination. In this connection he has placed reliance on Section 60, Evidence Act. Reliance was also placed on Virendra Pal v. Daljit Singh Sandhu, (1979) 1 Rent LR 743, Nanalal Goverdhandas & Co. v. Smt. Samrathbai Lilachand Shah, AIR 1981 Bom 1, Chinta Narayanamma v. Kholli Sahu, AIR 1982 Orissa 183 and Gangabisan Panalal Joshi v. Dattatraya Chandrasa Bilade, AIR 1984 Bom 332.
10. He has further submitted that the first appellate Court was not justified in reversing the finding of the trial Court and it has not given cogent reasons as to why it had interfered with the finding of fact arrived at by the trial Court. In this connection, he hasplaced reliance on Sarju Pershad v. Jwaleshwari Pratapnarain, AIR 1951 SC 120 and Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114.
11. Learned counsel for the appellants has further submitted that merely because this Court is hearing second appeal, it should not refrain from interfering even with the finding of fact, if the Court feels that the injustice has been done in the case, and that injustice should not be perpetuated in second appeal. In this connection, he has placed reliance on Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, (1985) 1 SCC 251 : (AIR 1985 SC 207).
12. On the other hand, learned counsel for the plaintiff-respondent has equally vehemently submitted that this being second appeal, this Court cannot go into the question of fact which has been arrived at by the first appellate Court on appreciation of evidence and has cited a number of authorities which need not be mentioned here. He has further submitted that the first appellate Court has taken into consideration the evidence of PW 2 Narainalal as well as the admissions made by DW-1 Lajpat Rai and DW-2 Chunnilal, and then has come to a finding of fact that the suit premises are required reasonably and bona fide by the landlady. Therefore, this Court should not interfere with such a finding of fact. He has further submitted that the judgment of learned Single Judge in Nanalal's case, (AIR 1981 Bom 1) (supra) has been specifically overruled by a Division Bench judgment of the Bombay High Court in Nathulal Gangabaks Khandelwal v. Smt. Nandubai, AIR 1984 Bom 340. AIR 1982 Orissa 183 was based on AIR 1981 Bom 1 and in Gangabisan's case, (AIR 1984 Bom 332) (supra) the learned Single Judge had followed his earlier ruling in AIR 1981 Bom 1 and did not notice the division bench judgment in Nathulal's case (supra) which had been decided earlier. He has also placed reliance on Smt. Sumitra Devi v. Smt. Pritam Kaur, (1982) 2 Rent LR 661 (2) (Punj & Har), V.R. Shah v. N. Visalakshi, (1983) 2 Ren CJ 610 (Mad) and K.C. Bhaskaran v. P.C. Unni, (1985) 1 Ren CJ 34 (Ker).
13. I have carefully considered the submissions made at the bar and have alsolooked into the judgments of both the Courts below as also record of the case and the authorities cited before me.
14. It cannot be laid down as a very general proposition that if the landlord or landlady does not examine himself/herself, an adverse inference has to be necessarily drawn. It will depend on facts of each case. This fact, of course, will be considered as a circumstance while considering the case of the, plaintiff and while arriving at the conclusion whether the plaintiff has been able to prove its case of reasonable and bona fide necessity. Ordinarily, a person for whom there is need for getting the suit premises vacated, should appear as a witness in the Court and make himself available for cross-examination by the other side. But the bona fide need can be proved by other evidence, both oral and documentary and even by circumstances and it is not correct to state that in every case the plaintiff must enter the witness-box and depose about the requirement. The view that I have expressed above is fully supported by the view taken by the Kerala High Court in K.C. Bhaskaran's case, (1985-2 Ren CJ 34) (supra), division bench decision of the Bombay High Court in Nathulal's case, (AIR 1984 Bom 340) (supra), Madras High Court in V.R. Shah's case, (1983-2 Ren CJ 610) (supra) and Punjab and Haryana High Court in Sumitra Devi's case, (1982-2 Rent LR 661 (2)) (supra). The view taken by the learned Single Judge of the Bombay High Court in Nana Lal's case, (AIR 1981 Bom 1) (supra) and Ganga Bishan, (AIR 1984 Bom 332) (supra) has already been overruled by a division bench judgment of the Bombay High Court in Nathulal's case (supra). I am in respectful disagreement with the view expressed by the Delhi High Court in Virendra Pal's case, (1979-1 Rent LR 743) (supra).
15. Now coming to the facts of the present case. PW-1 Gulab Chand was appointed as a Mukhtiar Aam as back as on 1-8-1961 and he had been authorised to do all the acts connected with the Court work. The words used in Ex; 1 (matter in vernacular omitted -- Ed.) will obviously include appearing in the witness-box on behalf of the plaintiff. The finding of the first appellate Court is not based on the evidence of PW-1 Gulab Chand alone but he has placed reliance on otherevidence adduced by the parties including PW-2 and the admissions made by defendant witnesses 1 and 2. As regards the objection that the defendants did not get opportunity to cross-examine the plaintiff or that PW-1 Gulab Chand gave evasive answers and had showed his ignorance, specially with regard to the plea of the defendants regarding increase of rent, suffice it to say that it was defendants' plea that the landlady wanted to increase the rent and it was basically for the defendants to have proved by leading evidence in that connection. I do not find any evidence worth the name led by the defendants to show that the plaintiff wanted to increase the rent and, therefore, her requirement was not bona fide. Moreover, the question of bona fide and reasonable necessity is a question of fact and sitting in second appeal, I am not inclined to interfere with this finding of fact which is based on appreciation of evidence. Learned counsel for the appellants has failed to show that this finding of fact is perverse or erroneous or is based on no evidence or there is misreading of some evidence or non consideration of some material evidence.
16. The observations of the Supreme Court while exercising their powers under Art. 136 of the Constitution in Variety Emporium's case, (AIR 1985 SC 207) (supra) do not entitle the High Court to ordinarily interfere in second appeal unless the Court comes to the conclusion that the findings arrived at by the first appellate (Court?) are absurd or some great injustice is likely to perpetuate, if no interference is made in second appeal. It is only in compelling circumstances that the High Court should interfere with the finding of fact with a view to impart justice and to remedy the injustice which must be apparent to the Court.
17. In the present case, the suit premises are being utilised by the appellants only for storing their goods and they are running business in another shop which is not the subject matter of this litigation; whereas the plaintiff requires the suit premises for running her school.
18. Thus, I do not find any force in this appeal. The appeal is, therefore, dismissed, the judgment and decree passed by the firstappellate Court are confirmed but looking to the facts and circumstances of the case I leave the parties to bear their own costs.
19. Learned counsel for the appellants has prayed that the appellants should be granted some time to vacate the suit premises which request was opposed by the learned counsel for the plaintiff-respondent. However, in the interest of justice, I think it proper to grant three months' time to the appellants-defendants to vacate the suit premises and to hand over vacant possession of the suit premises, provided the appellants go on paying rent of the suit premises regularly by 15th of each month to the plaintiff and also file an undertaking within one month from today before this Court that they will hand over vacant possession of the suit premises to the landlady (plaintiff) on or before Nov. 15, 1986.