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M/S. Ramavatar Kailash Chand v. Smt. Suraj Bai

Rajasthan High Court

Aug 13, 1986

Judgment

Subsequent
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Factual and Procedural Background

This appeal arises from a suit for eviction brought by the plaintiff-landlady, Smt. Suraj Bai, who had given the suit premises on rent to the appellants on 13-6-1951 at the rate of Rs. 18 per month. The appellants used the premises as a godown. The plaintiff runs a primary school named "Nehru Bal Shiksha Kendra" and alleged that the accommodation available to her was insufficient for the school; she therefore required the adjacent suit premises to accommodate students and for office use.

Procedurally, the trial Court (Additional Munsif Magistrate No. 1, Jaipur City) framed four issues on the parties' pleadings. The plaintiff did not herself testify; evidence was led through PW-1 Gulab Chand (a general power of attorney holder) and PW-2 Narain Lal. The defendants examined two witnesses (DW-1 Lajpat Rai and DW-2 Chunnilal). The trial Court dismissed the plaintiff's suit, finding failure to prove bona fide and reasonable necessity. The plaintiff appealed; the first appellate Court (Additional District Judge No. 5, Jaipur City) reversed the trial Court and decreed the suit. The present matter is the tenants' second appeal from that decree.

At admission, the high Court framed one substantial question of law for consideration: whether the statement of PW-1 Gulab Chand, alleged to be a constituted attorney, could be treated as legal evidence on the question of reasonable and bona fide necessity under Section 13(1)(h) of the Act. The appeal was ultimately heard for final disposal.

Legal Issues Presented

Whether the statement of PW-1 Gulab Chand, alleged to be the plaintiff's constituted attorney, could be considered legal evidence on the question of the plaintiff's reasonable and bona fide necessity under the provisions of Section 13(1)(h) of the Act.

Arguments of the Parties

Appellants' Arguments

An adverse inference should be drawn because the landlady (plaintiff) did not examine herself in Court; no explanation was offered for her non-appearance as a witness despite having signed various documents (plaint, amended plaint, Vakalatnama, and memo of appeal).
PW-1 Gulab Chand, the power of attorney holder, was not authorised by the Mukhtiarnama (Ex. 1) to give the statement he made; therefore his testimony should not be treated as legal evidence on the crucial question.
PW-1 refrained from disclosing material facts in cross-examination and gave evasive answers, and reliance was placed on Section 60 of the Evidence Act to support the contention that adverse consequences should follow.
The first appellate Court was not justified in reversing the trial Court's finding of fact without giving cogent reasons; authorities were cited to support non-interference with trial findings.
Counsel argued the High Court in second appeal may interfere with findings of fact if injustice has been or will be caused, and reliance was placed on Variety Emporium v. V.R.M. Mohd. Ibrahim Naina.
Appellants relied on multiple precedents (named in submissions) to support these contentions.

Respondent's (Plaintiff's) Arguments

Being a second appeal, the High Court ought not to reappraise facts or disturb the first appellate Court's appreciation of evidence that found reasonable and bona fide necessity.
The first appellate Court relied not only on PW-1 but also on PW-2 Narainalal and admissions by the defendant witnesses (DW-1 and DW-2) to reach its conclusion; hence there is no scope for interference.
Counsel contended that earlier single-judge precedents which were relied upon by appellants have been overtaken by later division-bench authority (specifically Nathulal Gangabaks Khandelwal v. Smt. Nandubai), and relied upon several other High Court authorities supportive of the respondent's position.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Section 60, Evidence Act (statutory provision)	Adverse inference from a witness's evasive or incomplete answers was placed before the Court by appellants.	The Court noted appellants' reliance on Section 60 but did not accept that PW-1's cross-examination established any such adverse inference; the Court required proof from defendants of the allegation that the plaintiff sought increase of rent.
Virendra Pal v. Daljit Singh Sandhu (1979) 1 Rent LR 743	Authority relied on by appellants concerning evidence and the necessity for landlord's own testimony (as argued by appellants).	The Court stated it was in respectful disagreement with the view expressed by the Delhi High Court in this case.
Nanalal Goverdhandas & Co. v. Smt. Samrathbai Lilachand Shah, AIR 1981 Bom 1	Single-judge Bombay High Court view supporting a position disfavoured by the present Court.	The Court observed that this single-judge view has been overruled by a later division-bench decision (Nathulal Gangabaks Khandelwal) and treated it accordingly.
Chinta Narayanamma v. Kholli Sahu, AIR 1982 Orissa 183	Referenced as connected to or based upon the single-judge Bombay view.	The Court noted that AIR 1982 Orissa 183 was based on the earlier single-judge Bombay decision and therefore was not controlling in light of the later division-bench authority.
Gangabisan Panalal Joshi v. Dattatraya Chandrasa Bilade, AIR 1984 Bom 332	Single-judge Bombay High Court decision following the earlier single-judge view.	The Court observed this single-judge decision followed the earlier ruling and did not notice the division-bench judgment; implicitly treated as not authoritative over the division-bench decision.
Sarju Pershad v. Jwaleshwari Pratapnarain, AIR 1951 SC 120	Authority relied upon by appellants regarding appellate interference with findings of fact.	The decision was cited by appellants; the Court did not rest its decision solely on this case and discussed the applicable standard for interference in second appeal in relation to later authorities.
Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114	Authority cited in support of appellants' contention about appellate interference.	The Court recorded the citation but decided the matter on the standard applicable to second appeals and the evidence on record.
Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, (1985) 1 SCC 251 : AIR 1985 SC 207	Supreme Court observations on scope for interference in appellate and special leave jurisdictions (Art. 136) and interference with findings of fact.	The Court applied the principle that a High Court should not ordinarily interfere in a second appeal unless the first appellate Court's findings are absurd or would perpetuate great injustice; used this to justify non-interference in the present second appeal.
Nathulal Gangabaks Khandelwal v. Smt. Nandubai, AIR 1984 Bom 340	Division-bench Bombay High Court authority overruling earlier single-judge views and supporting the position that the landlord need not always be the witness.	The Court relied on and followed the division-bench view as supportive of its conclusion that the plaintiff's non-appearance as a witness did not automatically defeat her case.
Smt. Sumitra Devi v. Smt. Pritam Kaur, (1982) 2 Rent LR 661 (2) (Punj & Har)	High Court authority cited as supporting the proposition that the landlord's testimony is not invariably necessary to prove bona fide requirement.	The Court cited this decision as one of several High Court authorities that support the view that bona fide need may be established through other evidence.
V.R. Shah v. N. Visalakshi, (1983) 2 Ren CJ 610 (Mad)	High Court authority on proof of bona fide necessity without mandatory personal testimony by the landlord.	The Court cited this decision as supporting the proposition that bona fide necessity can be proved by other evidence and circumstances.
K.C. Bhaskaran v. P.C. Unni, (1985) 1 Ren CJ 34 (Ker)	Kerala High Court authority supporting the view that the landlord need not always personally testify and that other evidence may suffice.	The Court expressly stated that the view it took was fully supported by the view in K.C. Bhaskaran's case.

Court's Reasoning and Analysis

The Court proceeded by first addressing the core procedural-evidentiary contention: whether the plaintiff's failure to testify personally required an adverse inference or mandated rejection of her claim of bona fide and reasonable necessity. The Court held that no absolute rule exists that a landlord must always enter the witness-box; whether absence of personal testimony gives rise to an adverse inference depends on the facts of each case and is a circumstance to be weighed in the overall appreciation of evidence.

The Court explained that bona fide necessity may be proved by oral and documentary evidence and by circumstances. The Court relied on a line of High Court decisions (K.C. Bhaskaran, Nathulal division-bench, V.R. Shah, Sumitra Devi) endorsing the position that personal testimony of the landlord is not invariably required. The Court also noted that certain single-judge decisions to the contrary have been overruled by later division-bench authority (specifically referencing the Nathulal division-bench decision), and the Court explicitly disagreed with the Delhi High Court view in Virendra Pal.

Turning to the facts, the Court observed that PW-1 Gulab Chand had been appointed a Mukhtiar Aam on 1-8-1961 and that the language of the Mukhtiarnama (Ex. 1) plainly included authority to appear and give evidence in Court on behalf of the plaintiff. The Court found that the first appellate Court's decision was not based solely on PW-1's testimony but on the totality of evidence, including PW-2 and admissions by DW-1 and DW-2. The objection that defendants lacked opportunity to cross-examine the plaintiff personally or that PW-1 gave evasive answers was rejected because the defendants had the burden to prove the allegation that the suit was instituted to increase rent and had led no satisfactory evidence on that point.

The Court reiterated the standard for interference in a second appeal (drawing on Variety Emporium): ordinarily the High Court should not interfere with an appellate Court's factual findings unless they are absurd or would perpetuate grave injustice. Applying that standard to the evidence before it, the Court found no perversity, misreading, or non-consideration of material evidence that would justify interference.

On the merits, the Court accepted the factual finding that the appellants were using the premises primarily for storing goods while conducting business from another shop, and that the plaintiff needed the premises to expand accommodation for her school. That factual assessment supported the first appellate Court's decree for eviction.

Holding and Implications

Holding: The appeal is dismissed and the judgment and decree of the first appellate Court are confirmed.

Implications and direct consequences:

The first appellate Court's decree in favour of the plaintiff (Smt. Suraj Bai) stands.
No new broad legal precedent beyond application of existing authorities was created; the Court applied and followed relevant High Court and Supreme Court authorities on the limited scope of interference in second appeals and on proof of bona fide necessity.
Costs: the parties were ordered to bear their own costs.
Relief to defendants/appellants: In the interest of justice the Court granted the appellants three months' time to vacate the suit premises, conditional upon (a) paying the rent regularly by the 15th of each month to the plaintiff and (b) filing an undertaking within one month that they will hand over vacant possession on or before November 15, 1986.

Closing Observations

The Court's decision is grounded in (i) a fact-sensitive approach to adverse inference from the landlord's non-appearance, (ii) acceptance that a constituted attorney (Mukhtiar Aam) with appropriate authority may give admissible evidence on the landlord's behalf, and (iii) the settled principle that a High Court should not ordinarily interfere in a second appeal with findings of fact unless those findings are manifestly perverse or would perpetuate grave injustice.

Show all summary ...

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 the plaintiff. 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 has placed 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 also looked 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 other evidence 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 first appellate 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.