Patna High Court
Case Details
Patna High Court SA No.160 of 2011 (9) dt.14-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.160 of 2011 ====================================================== Vijay Prasad .... .... Appellant/s Munna Prasad & Ors Versus .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ashok Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 9 14-08-2013 (1) Heard the learned counsel, Mr. Sreenandan Prasad
Legal Reasoning
Singh on behalf of the appellant and the learned counsel, Mr. Ranjan Kumar Dubey on behalf of the respondents under Order XLI Rule 11 C.P.C. (2) The defendant-appellant-appellant has filed this Second Appeal against the judgment and decree dated 17.02.2011 passed by the learned Additional District Judge, F.T.C. II, Siwan in Eviction Appeal No.2 of 2009 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree of the trial court dated 25.03.2009 passed by learned 1st Munsif, Siwan in Eviction Suit No.6 of 2005. (3) The plaintiff-respondent filed the aforesaid eviction suit for the eviction of the defendant from the suit premises which is a shop on the ground of default from the month of January, 2004 at the rate of Rs.192 per month and also on the Patna High Court SA No.160 of 2011 (9) dt.14-08-2013 2 ground of personal necessity alleging that the two sons of plaintiff no.1 and grandson of plaintiff no.2 are unemployed and they proposed to start a grocery shop in the suit premises. (4) The defendant filed contesting written statement denying the question of default and also personal necessity. According to the defendant, on refusal by the landlord to accept the rent, the defendant was sending the monthly rent of Rs.192 by money orders regularly which was refused by the plaintiff, therefore, there is no default on the part of the defendant. So far personal necessity is concerned, the defendant alleged that the plaintiff’s son and grandson are employed in jewellery shop and, therefore, the requirement of the plaintiff is not bonafide. (5) The trial court after considering the evidences oral and documentary recorded the finding that the defendant is a defaulter and that the plaintiff requires the suit premises reasonably and in good faith and by partial eviction, the plaintiff’s purpose will not be solved. Accordingly, the plaintiff’s suit for eviction was decreed. (6) The defendant then filed title appeal before the Lower Appellate Court. The Lower Appellate Court confirmed the finding of the trial court and dismissed the defendant’s appeal. (7) The learned counsel for the appellant raised only Patna High Court SA No.160 of 2011 (9) dt.14-08-2013 3 two points. Firstly, according to the learned counsel, the defendant had produced all the money order coupons which were sent to the plaintiff by the defendant but the courts below have discarded the said money order coupons without considering as to whether the defendant in fact, had sent money orders for the month for which default is alleged. Secondly, the learned counsel submitted that the plaintiff only alleged that the suit premise is required reasonably and in good faith and, therefore, the requirement is mere wish of the plaintiff. (8) On the other hand, the learned counsel for the respondents submitted that both the courts below on the basis of the evidences oral as well as documentary recorded concurrently that the defendant is defaulter and that the suit premise is required reasonably and in good faith for starting a business. In such circumstances, both the findings are findings of fact. Therefore, the findings cannot be interfered with in exercise of jurisdiction under Section 100 C.P.C. (9) From perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court has considered all the evidences produced by the parties. The defendant contended that he was regularly remitting the money orders through post office and he filed Exhibit A/14 to A/63 in Patna High Court SA No.160 of 2011 (9) dt.14-08-2013 4 support of his contention. Both the courts below found that in all these money order coupons, there is no mention about the months for which the money orders were sent and even the money order coupons do not bear the seal and signature of the postal authorities and, therefore, both the courts below did not rely upon these Exhibits. Accordingly, both the courts below have held that the defendant is defaulter. So far this finding is concerned, it is concurrent finding of fact. It is settled principles of law that unless it is shown that the finding of fact is perverse, this court while sitting in exercise of jurisdiction under Section 100 C.P.C. cannot reappreciate the evidence and substitute the finding of fact. (10) So far the question regarding personal necessity is concerned, from perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court considered the evidences produced by the plaintiff in support of the fact that the suit premise is required reasonably and in good faith and thereafter, has also considered the defence case. After considering the evidences, accepted the case of the plaintiff and rejected the defendant’s case and held that the suit premise is required reasonably and in good faith. (11) So far the submission of the learned counsel that the requirement is mere wish of the plaintiff is concerned, it may Patna High Court SA No.160 of 2011 (9) dt.14-08-2013 5 be mentioned here that the plaintiff clearly pleaded and also adduced evidences that the two sons of the plaintiff no.1 and grandson of plaintiff no.2 are sitting idle and the suit premise is required for them to start a grocery shop. It is well settled principles of law that reasonable requirement postulates that there must be some element of need as opposed to mere desire and wish. Connotation of the term “need” or “requirement” should not be artificially extended to such an extent that it will be impossible for the landlord to get a decree on the ground of personal necessity. Here, when the plaintiff alleged that the suit premise is required reasonably and in good faith for personal occupation of the two sons of the plaintiff no.1 and grandson of plaintiff no.2, it cannot be said that it is mere wish of the plaintiff particularly when both the courts below relied upon the case of the plaintiff that the sons of plaintiff no.1 and grandson of plaintiff no.2 are idle. (12) In view of the above facts and circumstances of the case, I find that the submissions of the learned counsel for the appellant are not at all substantial question of law. Therefore, this Second Appeal is dismissed at the admission stage itself as no substantial question of law is involved. Interim order if any, is vacated. Saurabh/- (Mungeshwar Sahoo, J)