A.C. Goyal, J.
1. The plaintiff-landlord has preferred this second appeal against the judgment and decree dated 18.7.2000 whereby learned Additional District Judge No. 1, Sikar while setting aside the judgment and decree of eviction passed by learned Additional Civil Judge (Junior Division), Sikar dismissed the plaintiff-landlord's suit. The parties in this appeal shall be referred as arrayed in the plaint.
2. Briefly narrated the facts are that the plaintiff filed a civil suit on 20.7.1985 for arrears of rent and eviction with the averments that the suit shop was let out to the defendant on monthly rent of Rs. 30/-. The eviction was sought on the grounds of default in payment of rent from 1.12.1982, reasonable and bonafide requirement and non-user of the premises by the defendant for last four years.
3. The defendant in written statement while admitting himself to be the tenant in the suit shop pleaded that the real owner of the shop is Shri Phool Das. The plaintiff is relative of Shri Phool Das. The plaintiff is relative of Shri Phool Das, hence rent note was got executed by Shri Phool Das in the plaintiff's name. He denied all the grounds of eviction.
4. Amended pleadings were also placed on record by the parties.
5. On the basis of the pleadings of the parties six issues were framed. Evidence of the parties was recorded.
6. The learned Trial Judge decided issue No. 2 of non-user of the shop against the plaintiff and while deciding issue No. 1 of default in payment of rent, Issue No. 3 of reasonable and bonafide requirement, Issue No. 4 of comparative hardship and issue No. 5 of partial eviction in plaintiff's favour passed a decree of eviction.
7. First appeal preferred by the defendant-tenant was allowed and cross objections submitted by plaintiff-landlord with regard to decision of the Trial Court on Issue No. 2 were dismissed by learned Additional District Judge No. 1, Sikar vide impugned judgment dated 18.7.2000.
8. The First Appellate Court affirmed the decision of the Trial Court on issue No. 1 of default in payment of rent, issue No. 2 of non-user of shop and issue No. 5 of partial eviction but set aside the findings on issues No. 3 & 4 relating to reasonable and bonafide requirement of the plaintiff as well as comparative hardship.
9. This Court framed following substantial questions of law on 3.9.2000.
1. Whether the appellate decree reversing the decree of the trial court on the ground of bonafide need, is vitiated by non- reading and misreading of evidence ?
2. Whether the first appellate court has failed in its duty to appreciate evidence in detail within the scope of Section 96 of the C.P.C. ?
10. I have heard learned counsel for the parties. To determine whether it is a case of non-reading, misreading and non- consideration of the evidence of the parties in detail by the First Appellate Court, it is necessary to go through the pleadings and the evidence. In para 3 of the amended plaint, it is pleaded that the plaintiff is going to retire within a period of two years and his son is an employee in a Kirana Shop for the last three years and thus the plaintiff's son Gajanand would start his business of Kirana in the suit shop with assistance of the plaintiff and thus the plaintiff's requirement is reasonable and bonafide. It is also pleaded that the tenant is only carrying the job of astrology and for that no shop is required as this job may be carried out even in the residential house of the defendant-tenant. In para 3 of amended written statement the averments made in the plaint have been denied with a plea that the plaintiff's son Gajanand is carrying on transport business with his maternal uncle at Jaipur and both, the plaintiff and his son never resided in Sikar and the plaintiff let-out his other shops on rent after filing the present suit. It was also pleaded that the plaintiff has got about ten shops near the suit shop and some shops are still lying vacant and it is Phool Das who is contesting this suit and thus the averments with regard to plaintiff's requirement are not true. The defendant having admitted this fact that he is doing the business of astrology in the suit shop pleaded that a number of religious books and books of astrology have been stored in the suit shop and a number of astrologers are doing such job in the shops.
11. P.W. 1 Sh. Sitaram is the plaintiff, According to his statement he requires this shop for his son's business. In cross- examination, he admitted four shops of his own in Sikar. He denied having eight shops in Sikar. It was also stated by him that all the four shops are on rent and one Sitaram Saini is not his tenant but may be the tenant of Phool Das but he does not know this fact. He denied this fact that suit shop belongs to Phool Das. He denied his relationship with Phool Das and also the fact that his son Gajanand is carrying on transport business with his maternal uncle at Jaipur but admitted this fact that Gajanand never did business of Kirana. It was also admitted that his son Gajanand is residing with him at Jaipur. P.W.2 Phool Das supported the plaintiff's version. In cross-examination, he stated that he had sold land to the plaintiff for four shops and five-six shops of his own are also situated nearby the four shops of the plaintiff. It is also admitted by him that he let out one shop of his own to Sitaram Mali one year ago. It was also stated by him that plaintiff's son Gajanand was his tenant in Sikar for a period of about three years, six years ago when Gajanand was student in Sikar. P.W.3 Gajanand is the plaintiff's son. His statement was recorded on 8.1.1990 and at that time he was of 24 years of age. According to his statement he is unemployed and he wants to start Kirana business in the suit shop. In cross- examination, he admitted this fact that all the shops from the shop of Satya Narayan to one temple belong to his father. Subsequently, he stated that only four shops belong to his father and out of the four shops, three shops are occupied by Tulsi Ram, Rameshwar and Mahavir (the defendant) and only one Kotari belonging to his father is lying vacant. He pleaded ignorance as to whether shop No. 4 is on rent with one Lala Dhobi. He also pleaded ignorance about the other shops on rent to different persons. He further pleaded ignorance as to whether his father let-out any shop during last five years and he also pleaded ignorance about the ownership of shops No. 7 to 10. He admitted this fact that his maternal uncle is doing transport business at Jaipur but denied this fact that he is also carrying business with his maternal uncle. P.W.4 Radheyshyam and P.W.5 Ramesh Das have also tried to support the plaintiff's statement. P.W.5 Ramesh Das has proved rent note Ex. 1 executed between the plaintiff and the defendant. According to this document Ex. 1, the suit shop is on rent since 4.12.1976.
12. D.W.1 Mahavir Prasad is the defendant-tenant. According to his statement the plaintiff has got ten shops in Sikar and shop No. 2 was let-out to him and five shop No. 6 to 10 are lying vacant. He further stated that shop No. 6 was let-out to one Sitaram Mali by Phool Das and Phool Das is relative of the plaintiff who is contesting this case. He denied the suggestion that the plaintiff is not owner of shops No. 5 to 8. He pleaded ignorance as to why this fact was not pleaded in the written statement that the shop No. 5 to 10 belong to the plaintiff and the plaintiff's son Gajanand may carry on business in any of these shops. D.W.2 Ganesharam supported the statement of the defendant that the plaintiff has got ten shops out of which five are lying vacant. In cross-examination, he stated that he does not know plaintiff Sitaram and his family members. Subsequently he stated that he knows both Sitaram and his son Gajanand. He further stated that he had never seen any document relating to the title of these shops. He further admitted this fact that these shops belong to Phool Das and the plaintiff is not owner of these shops. D.W.3 Surja Ram stated that the defendant is doing astrology job in the suit shop for the last 20 years and he did not see the plaintiff and his son Gajanand in Sikar for the last 10-12 years. According to his statement, in cross-examination he does not know the plaintiff as well as his son Gajanand. According to statement of P.W.4 Shri Udaram, the plaintiff has got 10 shops in Sikar and out of these 10 shops, 4-5 shops are lying vacant. In cross-examination, he denied this suggestion that these shops belong to Phool Das. It was admitted by him in examination in-chief that he docs not know Gajanand and he did not see Sitaram & Gajanand in Sikar. D.W.5 Onkarmal also stated that the plaintiff has got 10 shops in Sikar. He was also tenant in one shop but that was vacated by him 7-8 years ago at the instance of the plaintiff. He further stated that according to government record plaintiff is the owner of these 10 shops but neighbours treat Phool Das as owner of these shops as Phool Das is relative of the plaintiff. This witness is brother of the defendant.
13. Learned trial Judge having taken into consideration the evidence of the parties came to this conclusion that there is no evidence on record to show that the plaintiff filed the present suit with any ulterior motive; that the plaintiff's son is unemployed and these facts show that the requirement of the plaintiff is reasonable and bonafide. It was also held that the defendant-tenant is carrying on only astrology work and for that purpose requirement of the defendant in comparison to the requirement of the plaintiff cannot be taken to be necessary and thus comparative hardship would be caused to the plaintiff in case the decree of eviction is not passed.
14. Now, both law questions are taken up for determination.
15. While dealing with issues No. 3 & 4, the First Appellate Court observed that the plaintiff, contrary to the contents of the plaint, stated that his son Gajanand did not carry on business of Kirana. No doubt, it was pleaded in para-3 of the plaint that Gajanand worked as an employee in a Kirana shop but the statement of the plaintiff in this regard is in this context that his son never carried on business of Kirana. This statement of the plaintiff is not in this context that his son was not an employee in a Kirana shop as pleaded in the plaint. Thus the observation of the First Appellate Court amounts to mis-reading of the statement of the plaintiff. Next observation made by the First Appellate Court is that it is proved from the statement of P.W.2 Phool Das that he let out his one shop to one Sitaram Saini one year prior to recording his statement on 3.9.1987. It was case of the defendant-tenant that it is Phool Das who is the real owner of the suit shop but he got the rent note executed in the name of the plaintiff who is relative of P.W.2 Phool Das. Goth plaintiff as well as P.W.2 Phool Das denied this fact that Phool Das is the owner of the suit shop. No such question was put to them in cross-examination that the rent note Ex.1 was got executed by Phool Das in the name of plaintiff. Hence giving the shop on rent to Sitaram Saini by P.W.2 Phool Das had no relevancy to the plaintiff's claim over the suit shop. It was next observed by the First Appellate Court that the Trial Court did not consider the distinction between mere desire of the landlord and reasonable and bonafide requirement. This observation is also unfounded as the Trial Court having considered the entire evidence of the parties arrived at a definite conclusion that the plaintiff-landlord proved his requirement to be reasonable and bonafide. It was next observed by the First Appellate Court that P.W.3 Gajanand stated before the Trial Court that he has no desire to carry on business of Kirana. This observation is completely contrary to the statement of P.W.3 Shri Gajanand who categorically stated that presently he is unemployed and he wants to carry on business of Kirana in the suit shop. It was further observed that one shop of Phool Das near the suit shop was lying vacant one year prior to filing the present suit but that shop was not taken into use by the plaintiff and one Kotari (shop) belonging to the plaintiff is also lying vacant and these facts were suppressed by the plaintiff in the plaint. These observations of the First Appellate Court arc completely devoid of merit as plaintiff had nothing to do with the shop of P.W.2 Phool Das. It was admitted by the plaintiff that his one Kotari is lying vacant. During the course of the arguments, it was asked by the Court to the appellant-landlord as to whether this vacant Kotari can be given to the respondent-tenant. The appellant vide application supported by his own affidavit agreed to hand-over this Kotari to the respondent. On account of some confusion on the point of location of this Kotari, another application along with affidavit of the appellant and one map was submitted on 12.4.2004. As per the site-plan, 4 shops of the plaintiff are in row and all the 4 shops are occupied by tenants including the shop No. 2 which is in possession of the defendant. This Kotari is situated in the back side of the shop occupied by Lala Dhobi. Learned counsel for the defendant-respondent declined to take this Kotari on the ground that it is not suitable to the tenant to carry on his astrology business. Thus, in view of the entire discussion made above, the observations made by the First Appellate Court that the material facts were suppressed by the plaintiff and thus the conclusions that the plaintiff's son had no desire even to carry on Kirana business and it is mere desire of the plaintiff that in case he gets the vacant possession of the suit shop, he would give it on rent by charging premium are without any basis. This finding of the First Appellate Court is based on no evidence that the plaintiff wants to give this shop on further rent after charging premium.
16. While deciding the issue of comparative hardship also the First Appellate Court arrived at this finding that the plaintiff has got a number of other shops and premises and plaintiff's son is assisting his maternal uncle in his transport business. These findings are also contrary to evidence available on the record. A perusal of entire evidence clearly goes to show that the plaintiff had no shop of his own which is or was vacant at the time of filing the suit.
17. It was contended by learned counsel for the defendant that the plaintiff did not controvert the facts pleaded in para-3 of the written statement by filing rejoinder, hence, these facts were rightly taken to be admitted by the First Appellate Court. It was also contended that the First Appellate Court having taken into consideration the above facts arrived at finding of fact with regard to requirement of the plaintiff and such finding of fact cannot be disturbed in second appeal. He placed reliance upon Ms. Labanya Neogi (through L.Rs.), v. W.B. Engineering Co., (1).
18. Learned counsel for the plaintiff contended that the First Appellate Court failed to consider material evidence and it is a case of misreading and non-reading of material evidence and such erroneous finding of fact can be set aside in second appeal. He placed reliance upon Raghunath G. Panhale (dead) by L.Rs. v. Chaganlal Sundarji & Co. (2), and Ishwar Dass Jain (dead) through L.Rs. v. Sohan Lal (dead) L.Rs. (3).
19. I have considered the rival submissions. Mere non-filing of rejoinder does not mean that the evidence on record is not to be taken into consideration. In Ms. Labanya Neogi case (supra), Hon'ble Supreme Court held that when the lower appellate court has extensively discussed the evidence on record and has come to the finding that the property in question is not required by the landlord, in that case, it was held that the High Court rightly refused to interfere with the findings of the lower appellate court. But the instant case is an example of mis-reading and non- reading of the material evidence. In such a situation, this Court in second appeal can interfere with the findings of the First Appellate Court and this view finds support from the two judgments of Hon'ble the Apex Court delivered in Raghunath G. Panhale and Ishwar Dass Jain's case (both supra).
20. In the result, this second appeal is allowed, the impugned judgment and decree dated 18.7.2000 stand set aside and the judgment and decree dated 30.9.1996 passed by learned Additional Civil Judge (Junior Division), Sikar stand restored. The parties are directed to bear their own costs.