Babu Lal Vs. Smt. Raj Kumari and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/850843
SubjectTenancy
CourtRajasthan High Court
Decided OnApr-16-2010
JudgeVineet Kothari, J.
AppellantBabu Lal
RespondentSmt. Raj Kumari and anr.
DispositionAppeal dismissed
Excerpt:
- vineet kothari, j.1. this second appeal is directed against the concurrent findings of second default of the two courts below against the present defendant-appellant babulal. the learned addl. district judge no. 3, jodhpur, the first appellate court by the judgment and decree dated 27.2.2009 confirmed the decreee of eviction passed by the learned trial court in civil suit no. 43/2004 dated 19.3.2007.2. the grounds taken for eviction as stated by the leaned counsel for the respondent-landlord are; (i) second default and (ii) bonafide necessity and for other grounds, both the learned courts below have concurrently held the grounds in favour of the respondent-plaintiffs and ordered for eviction of the defendant-appellant from the shop in question which was given on rent to him way back on 1.8.1978 at the rate of rs. 52/-per month.3. learned counsel for the appellant-defendant mr. m.l.chhangani urged that there was no second default on the part of the appellant-defendant and after the payment of rent for the period 1.6.2009 to 31.8.1999 to the father of the present respondent mr. praveen, he gave rent w.e.f. 1.9.1999 to said praveen which receipts were produced by him as exhibit a/12 to a/21 before the court below. the learned courts below held that these receipts were forged and it was not proved by the defendant that the rent was paid to the landlord or son pravin and, therefore, second default in the payment of rent was made out as a ground for eviction.4. the learned courts below have also held that there was personal bonafide necessity for the respondent no. 1 smt. raj kumari, widow of amrit lal vaishnav, the original landlord, respondent no. 1 and father of respondent no. 2, who wanted to set up a clinic in the suit premises.5. the learned counsel for the appellant mr. m.l. chhangani relying on various judgments cited at the bar, the list of which is given below submitted that the signatures of respondent no. 2 pravieen could not have been tallied by the learned trial court invoking section 73 of the evidence act and since no fsl report was obtained during the course of the trial, the findings returned by the courts below are perverse and there is misreading of evidence and, therefore, substantial question of law arises. the learned counsel for the appellant-defendant relied upon the following judgments:1. air 2009 (noc) 16012. 2005 (1) dnj 4803. 2003 (1) west law cases 687a4. : air 1999 s.c. 31905. 1998 (2) rlw (raj) 9716. : air 1983 cal.3377. air 1958 panj. 448 (c)8.2008 air scw 564(b)9. : air 1979 sc 1410. air 1988 delhi 3911. : air 1969 sc 255(c)12.air 2001 m.p. 17913. : air 1981 sc 977 (b)14. 1996 (1) r.l.r. 166 (b)15. 2000 air hc 3343 (c)6. these submissions are vehemently opposed by the learned counsel for the respondent-plaintiffs, mr. jitendra chopra, who submitted that besides the learned trial court having the powers invoking section 73 of the evidence act upon which learned trial court below has found that the signatures of the respondent no. 2 on the said receipts produced by the defendant are apparently not tallying with the other documents produced before the learned trial court. even this court in the present second appeal vide order dated 6th july, 2009 had sent these very original receipts to the state forensic lab for report thereon by handwriting expert which report has come and the said state forensic laboratory vide its report dated 9th october, 2009, made in pursuance of the directions of this court, has found that the signatures on the receipts in question and other documents supplied are different.7. learned counsel for the respondent-plaintiffs mr. jitendra chopra also submitted that the receipts of the rent for the period from 1.6.1999 to 31.8.1999 given by the father of the respondent no. 2 mr. amrit lal vaishnav, who expired on 27.12.1999, the last receipt was only bearing no. 41 whereas the alleged new receipts of rent produced as exhibit a12 to a21 for the period 1.9.1999 onwards bore the serial no. 1 onwards which could not have been the case if the receipts had been issued by the same receipt book of the landlord after the death of his father even by the respondent no. 2, the son praveen.8. he further urged that the concurrent findings of the courts below about the personal bonafide necessity of the landlord are also findings of fact which cannot be upturned nor they are perverse in any manner and, therefore, do not give rise to any substantial questions of law and the present appeal has no merit and the same deserves to be dismissed.9. i have heard learned counsels at length even at the admission stage and given my thoughtful consideration to the contentions of the parties.10. having heard learned counsels and upon perusal of the documents referred to by the learned counsels, this court is of the considered opinion that no substantial questions of law arises in this present second appeal under section 100 c.p.c., as the evidence before the court below can be re-appreciated and re- apprised. this court finds no misreading of evidence or that inadmissible evidence having been considered by the courts below. the concurrent findings of the second default and bonafide necessity, on which the eviction has been ordered by the courts below, do not require any interference by this court in the present second appeal. though such re-appreciation was not permissible in law still this court for its own satisfaction had sent the receipts in question to the state forensic laboratory for comparison of the signatures which too has given its findings against the present defendant-appellant that the signatures on the said rent receipt produced by defendant do not tally with other documents produced before the said laboratory. there is no reason to disbelieve this report at this stage.11. consequently, this court finds no ground to entertain this second appeal as in the opinion of this court, no substantial question of law arises. the same is accordingly dismissed. the appellant defendant is directed to vacate the shop in question and hand over the vacant and peaceful possession to the respondent- plaintiffs within two months from today and and the mesne profit rs. 2,000/-per month may be paid to the plaintiff-respondents. the original passport may be returned back to the respondent- plaintiff. if such vacant and peaceful possession is not handed over by the appellant to the respondent-plaintiffs within the aforesaid period of two months and mesne profit is not paid as aforesaid, the respondent plaintiff landlord shall not only be entitled to execute the decree in accordance with the provisions of rent control law but shall also be free to approach this court under contempt jurisdiction. the arrears of rent as per decree, if not already paid by the appellant-defendant shall also be paid and cleared off within the aforesaid period of two months.
Judgment:

Vineet Kothari, J.

1. This second appeal is directed against the concurrent findings of second default of the two courts below against the present defendant-appellant Babulal. The learned Addl. District Judge No. 3, Jodhpur, the first appellate Court by the judgment and decree dated 27.2.2009 confirmed the decreee of eviction passed by the learned trial court in Civil Suit No. 43/2004 dated 19.3.2007.

2. The grounds taken for eviction as stated by the leaned counsel for the respondent-landlord are; (i) second default and (ii) bonafide necessity and for other grounds, both the learned courts below have concurrently held the grounds in favour of the respondent-plaintiffs and ordered for eviction of the defendant-appellant from the shop in question which was given on rent to him way back on 1.8.1978 at the rate of Rs. 52/-per month.

3. Learned Counsel for the appellant-defendant Mr. M.L.Chhangani urged that there was no second default on the part of the appellant-defendant and after the payment of rent for the period 1.6.2009 to 31.8.1999 to the father of the present respondent Mr. Praveen, he gave rent w.e.f. 1.9.1999 to said Praveen which receipts were produced by him as Exhibit A/12 to A/21 before the court below. The learned courts below held that these receipts were forged and it was not proved by the defendant that the rent was paid to the landlord or son Pravin and, therefore, second default in the payment of rent was made out as a ground for eviction.

4. The learned courts below have also held that there was personal bonafide necessity for the respondent No. 1 Smt. Raj Kumari, widow of Amrit Lal Vaishnav, the original landlord, respondent No. 1 and father of respondent No. 2, who wanted to set up a clinic in the suit premises.

5. The learned Counsel for the appellant Mr. M.L. Chhangani relying on various judgments cited at the Bar, the list of which is given below submitted that the signatures of respondent No. 2 Pravieen could not have been tallied by the learned trial court invoking Section 73 of the Evidence Act and since no FSL report was obtained during the course of the trial, the findings returned by the courts below are perverse and there is misreading of evidence and, therefore, substantial question of law arises. The learned Counsel for the appellant-defendant relied upon the following judgments:

1. AIR 2009 (NOC) 1601

2. 2005 (1) DNJ 480

3. 2003 (1) West Law Cases 687A

4. : AIR 1999 S.C. 3190

5. 1998 (2) RLW (Raj) 971

6. : AIR 1983 Cal.337

7. AIR 1958 Panj. 448 (C)

8.2008 AIR SCW 564(B)

9. : AIR 1979 SC 14

10. AIR 1988 Delhi 39

11. : AIR 1969 SC 255(C)

12.AIR 2001 M.P. 179

13. : AIR 1981 SC 977 (B)

14. 1996 (1) R.L.R. 166 (B)

15. 2000 AIR HC 3343 (C)

6. These submissions are vehemently opposed by the learned Counsel for the respondent-plaintiffs, Mr. Jitendra Chopra, who submitted that besides the learned trial court having the powers invoking Section 73 of the Evidence Act upon which learned trial court below has found that the signatures of the respondent No. 2 on the said receipts produced by the defendant are apparently not tallying with the other documents produced before the learned trial Court. Even this Court in the present second appeal vide order dated 6th July, 2009 had sent these very original receipts to the State Forensic Lab for report thereon by handwriting expert which report has come and the said State Forensic Laboratory vide its report dated 9th October, 2009, made in pursuance of the directions of this Court, has found that the signatures on the receipts in question and other documents supplied are different.

7. Learned Counsel for the respondent-plaintiffs Mr. Jitendra Chopra also submitted that the receipts of the rent for the period from 1.6.1999 to 31.8.1999 given by the father of the respondent No. 2 Mr. Amrit Lal Vaishnav, who expired on 27.12.1999, the last receipt was only bearing No. 41 whereas the alleged new receipts of rent produced as Exhibit A12 to A21 for the period 1.9.1999 onwards bore the serial No. 1 onwards which could not have been the case if the receipts had been issued by the same Receipt Book of the landlord after the death of his father even by the respondent No. 2, the son Praveen.

8. He further urged that the concurrent findings of the courts below about the personal bonafide necessity of the landlord are also findings of fact which cannot be upturned nor they are perverse in any manner and, therefore, do not give rise to any substantial questions of law and the present appeal has no merit and the same deserves to be dismissed.

9. I have heard learned Counsels at length even at the admission stage and given my thoughtful consideration to the contentions of the parties.

10. Having heard learned Counsels and upon perusal of the documents referred to by the learned Counsels, this Court is of the considered opinion that no substantial questions of law arises in this present second appeal under Section 100 C.P.C., as the evidence before the court below can be re-appreciated and re- apprised. This Court finds no misreading of evidence or that inadmissible evidence having been considered by the courts below. The concurrent findings of the second default and bonafide necessity, on which the eviction has been ordered by the courts below, do not require any interference by this Court in the present second appeal. Though such re-appreciation was not permissible in law still this Court for its own satisfaction had sent the receipts in question to the State Forensic Laboratory for comparison of the signatures which too has given its findings against the present defendant-appellant that the signatures on the said rent receipt produced by defendant do not tally with other documents produced before the said laboratory. There is no reason to disbelieve this report at this stage.

11. Consequently, this Court finds no ground to entertain this second appeal as in the opinion of this Court, no substantial question of law arises. The same is accordingly dismissed. The appellant defendant is directed to vacate the shop in question and hand over the vacant and peaceful possession to the respondent- plaintiffs within two months from today and and the mesne profit Rs. 2,000/-per month may be paid to the plaintiff-respondents. The original passport may be returned back to the respondent- plaintiff. If such vacant and peaceful possession is not handed over by the appellant to the respondent-plaintiffs within the aforesaid period of two months and mesne profit is not paid as aforesaid, the respondent plaintiff landlord shall not only be entitled to execute the decree in accordance with the provisions of Rent control Law but shall also be free to approach this Court under Contempt jurisdiction. The arrears of rent as per decree, if not already paid by the appellant-defendant shall also be paid and cleared off within the aforesaid period of two months.