[2025:RJ-JP:38461] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 108/2006 Smt Kaushalya Devi W/o Late Shri Navratan Manihar, R/o House No. 1688, Jadioyon Ka Rasta, Near Beauty Parlour, Jaipur ----Appellant/Plaintiff Versus 1. Bhagwan Das, (Since Deceased) Through Legal Representatives- 1/1. Jai Kishan S/o Late Shri Bhagwan Das, (Since Deceased) Through Legal Representatives. 1/1/1. Vinod, S/o Late Shri Jai Kishan 1/1/2. Bhishma, S/o Late Shri Jai Kishan 1/2. Narayan Das, S/o Late Shri Bhagwan Das 1/3. Nanak Ram, S/o Late Shri Bhagwan Das 1/4. Kamal Kumar, S/o Late Shri Bhagwan Das 1/5. Ishwar S/o Late Shri Bhagwan Das, 1/1 To 1/5 Are Residents Of Shop No.3, Gopaljee Ka Rasta, Jaipur 1/6. Smt. Meera D/o Late Shri Bhagwan Das, W/o Shri Manhohar Lal 1/7. Smt. Chandra D/o Late Shri Bhagwan Das W/o Shri Gulab Rai, 1/6 To 1/7 Are R/o 132, Sindhi Colony, Near Devi Mata Mandir, Adarsh Nagar, Jaipur 1/8. Smt. Deepa D/o Late Shri Bhagwan Das, R/o C/o Pirumal Sindhi, Sarafa Bazar Chauraha, Fatehbad (UP) ----Respondents For Appellant(s) : Mr. B.L. Gupta with Mr. Rahul Ghiya For Respondent(s) : Mr. J.P. Goyal, Senior Advocate with Ms. Sakshi Tiwari and Mr. Siddarth Singh Mr. Prem Shanker Sharma with Mr. Jitendra Kumar Sharma [2025:RJ-JP:38461] (2 of 14) [CSA-108/2006] HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 30/06/2025 1. The instant second appeal is preferred by the appellant Smt. Kaushalya Devi aggrieved from judgment dated 25.11.2005 in Civil Regular Appeal No.107/2004 passed by learned Additional District Judge No.2, Jaipur City, Jaipur whereby an appeal preferred by the defendant Bhagwan Das (since dead) aggrieved from judgment and decree for eviction dated 25.05.2004 in Civil Suit No.211/1998 passed by learned Additional Civil Judge (JD), Jaipur City (East), Jaipur is allowed and after setting aside decree of eviction, the suit of plaintiff was dismissed. 2. During pendency of this appeal, original defendant Bhagwan Das has expired and his legal representatives were brought on record. Later, the legal representative No.1/1 Jai Kishan also expired and his legal representatives were brought on record. 3. During pendency of the appeal, an application under Order 41 Rule 27 CPC is filed by the defendant for taking on record three documents annexed with application as an additional evidence. In view of order dated 14.11.2019, the application is also decided with this judgment. 4. Learned counsel for the appellant-plaintiff while relying upon grounds of appeal have submitted that the plaintiff has filed a suit for eviction and arrears of rent against original defendant Bhagwan Das on ground of default in payment of rent, material alteration resulting in substantial damage and [2025:RJ-JP:38461] (3 of 14) [CSA-108/2006] reasonable and bona fide need and necessity of the plaintiff. He further submitted that the trial Court has decided issue No.3 to 5 in favour of plaintiff thereby passing a decree on ground of personal, reasonable and bona fide necessity and comparative hardship in favour of plaintiff. He further submitted that the Appellate Court committed serious illegality and perversity in reversing the findings of the trial Court and it has misread the evidence on record. He further submitted that the Appellate Court has not only relied upon documents which were neither tendered in evidence nor part of record before the trial Court. He also submitted that the defendant has filed certain documents under Order 41 Rule 27 of CPC and without accepting the application, the documents were considered by Appellate Court. He also submitted that the Appellate Court has erroneously opined that the plaintiff has concealed the material fact at the time of filing of suit for eviction and the plaintiff does not have reasonable and bona fide need. He also submitted that the Appellate Court has decided issue of comparative hardship in favour of defendant as there are twenty-three members in family of defendant as compare to three of plaintiff. He also referred the findings recorded by Appellate Court and submitted that these findings are contrary to settled legal position and if the findings are contrary to settled legal position then same is perverse and illegal. He also submitted that landlord is best judge to assess his bona fide need and tenant has no right to dictate but acting contrary to settled [2025:RJ-JP:38461] (4 of 14) [CSA-108/2006] proposition of law, the Appellate Court has reversed the findings recorded by the trial Court. 5. Aforesaid contentions were opposed by learned Senior Advocate appearing on behalf of the respondents-defendants and submitted that on basis of erroneous interpretation of evidence and law the trial Court has passed a decree on account of reasonable and bona fide need and further decided issue of comparative hardship in favour of plaintiff but when a fact is brought on record to show that the plaintiff is in possession of large number of properties and if the need of plaintiff is reasonable and bona fide then the plaintiff may opt any of available premises for opening the office for her son. He also submitted that the plaintiff has not only concealed the partition between the members of family but also properties acquired by way of partition and has not mentioned available premises. He further referred subsequent application filed before the Rent Tribunal for enhancement of rent and submitted that the suit is filed for enhancement of rent not for actual eviction of defendant tenant. He further submitted that the defendant does not have any premises other than suit property and twenty-three family members are dependent upon livelihood earned from present suit property. He also referred the findings recorded by learned Appellate Court and defended the findings and submitted that the trial Court has committed serious error and perversity while passing a decree in a suit where the plaintiff does not have reasonable and bona fide need. At last, he submitted that it was duty of the plaintiff to file a [2025:RJ-JP:38461] (5 of 14) [CSA-108/2006] suit with clean hands. If a party fails to file suit with clean hands, then she is not entitled to get equity from the Court. 6. Heard learned counsel for the appellant and learned Senior Advocate for respondents. Also perused the record along with material available on record. 7. Brief facts of the case are that the appellant-plaintiff Smt. Kaushalya Devi filed a suit for eviction and arrears of rent against defendant Bhagwan Das (since dead) stating inter alia that the defendant is a tenant on the suit property mentioned in para No.1 of plaint on monthly rent of ₹100/-. It is averred that defendant neither tendered nor paid the rent from 01.09.1997 and committed default in payment of rent for a period more than six months continuously. Further, the tenant defendant materially altered suit property and committed nuisance. The plaintiff has further averred that the suit property is required for jewellery business of her son Surendra Kumar, who is unemployed and comparative hardship is in favour of plaintiff and need of plaintiff will not be fulfilled from partial eviction. The defendant denied the averment in plaint but admitted ownership of plaintiff and also his tenancy over the suit property. The defendant has denied any default in payment of rent and further making material alteration in the shop and causing damage thereby or creating a nuisance. The need for business of son of plaintiff is also denied and suggested other premises available with plaintiff. The defendant has also pleaded that the suit property is not suitable for business of jewellery and eviction would result in greater hardship to tenant. The [2025:RJ-JP:38461] (6 of 14) [CSA-108/2006] defendant has requested for dismissal of suit. The plaintiff has filed rejoinder to the written statement. 8. On basis of pleadings of the parties, the trial Court has framed six issues. Later, an additional issue No.7 for not serving a notice before institution of suit for eviction was also framed. Four witnesses were examined by the plaintiff and five by the defendant. The trial Court has decided issue Nos.1 and 2 against the plaintiff but decided issue Nos.3 to 5 in favour of plaintiff. The trial Court has also decided issue No.7 as not pressed. As a result of decision on Issue Nos.3 to 5, the suit for eviction was decreed on ground of reasonable and bona fide need of the plaintiff and three months’ time was granted to defendant to vacate the suit premises. 9. The defendant has filed an appeal under Section 96 of CPC before learned District Judge and same was transferred to learned Additional District Judge No.2, Jaipur City. During pendency of this appeal, the defendant has filed an application under Order 6 Rule 17 of CPC for amendment in written statement but the said application was dismissed on 22.09.2005 on ground that it is an admitted fact that the defendant is tenant of plaintiff and he is not at liberty to deny admission made by him. The defendant has also filed an application under Order 41 Rule 27 of CPC on 10.02.2005 and the First Appellate Court has directed for disposal of application with decision of appeal. 10. While considering the appeal preferred by the defendant, learned Additional District Judge No.2, Jaipur City, has [2025:RJ-JP:38461] (7 of 14) [CSA-108/2006] allowed the appeal on 25.11.2005 and set aside the judgment and decree dated 25.05.2004 and dismissed the suit preferred by the plaintiff. 11. Instant second appeal is preferred by the plaintiff and while considering second appeal for admission on 03.03.2006, a Co-ordinate Bench of this Court has framed following substantial question of law:- “Whether in the facts and circumstances of the case the finding of reversal of the appellate Court below on the issue of reasonable and bonafide necessity is perverse and vitiated on account of misreading and non-reading of material evidence on record and wholly erroneous approach to the matter and is not sustainable in law?” 12. The respondent-defendant has filed an application under Order 41 Rule 27 CPC for taking on record certain additional evidence in form of documents and these are certified copy of sale deed dated 21.11.2002 executed by Laddu Gopal son of late Gordhan Das in favour Murlidhar S/o Narayandas about shop No.183, near Ganga Mata Temple, Chokdi Vishweshwar Ji, Gopal Ji Ka Rasta, Jaipur City, notice dated 10.10.2019 issued on behalf of Bhagwan Das son of Gordhan Das to eight legal heirs of Bhagwan Das (respondents), notice dated 23.09.2019 issued by Bhagwan Das S/o Gordhan Das to Narayandas and others (legal heirs of original tenant) about shop No.3. 13. The only ground for filing of this application under Order 41 Rule 27 CPC is to show that the plaintiff is not entitled to file a suit for eviction and she is not entitled to receive rent from [2025:RJ-JP:38461] (8 of 14) [CSA-108/2006] the defendants (legal heirs of Bhagwan Das). We have referred order dated 22.09.2005 passed by learned Additional District Judge No.2, Jaipur City, while dismissing application under Order 6 Rule 17 of CPC for amendment in written statement. It is an admitted fact in written statement of defendant that the defendant is paying rent to the plaintiff as she is ancestor and landlord of suit premises. While filing written statement, the defendant has admitted that he is tenant on the suit property and the plaintiff is landlord. 14. Section 116 of the Indian Evidence Act, 1872 (corresponding Section 122 of Bhartiya Sakshya Adhiniyan, 2023) deals with principle of estoppel against tenant regarding denial of title of their landlord at the beginning of tenancy. The Rule of estoppel prevents the tenant from denying the title of landlord. 15. Here in this case, the plaintiff has specifically admitted the relationship of landlord and tenant between the parties. Therefore, the respondents (tenant or LRs of defendant) are not at liberty to retract his admission. His attempt to amend written statement was already dismissed by First Appellate Court under Order 6 Rule 17 of CPC. The admission made by the defendant is a relevant fact and it is part of the pleading and same is having a binding effect upon the defendant. 16. Order 41 Rule 27 CPC authorizes the Appellate Court for taking of additional evidence while considering the appeal. As a general rule, parties to an appeal are not entitled to produce additional evidence, oral or documentary at the appellate stage, however, the rule provides exception under [2025:RJ-JP:38461] (9 of 14) [CSA-108/2006] which the Appellate Court may allow additional evidence, if following conditions are met:- (i) The trial Court refused to admit evidences that should have been accepted; (ii) The party established that the evidence was not known to him at the time of trial; (iii) The party despite due diligence was unable to produce the evidence during the pendency before the Courts below; (iv) The Appellate Court itself requires the production of documents or the examination of witness to decide the appeal; (v) Any other substantial cause sufficient to allow additional evidence or document on record. 17. The judgment of Appellate Court clearly indicate that Appellate Court had discussed application under Order 41 Rule 27 CPC filed by defendant and also placed reliance upon documents annexed with application under Order 41 Rule 27 CPC. The entire judgment of First Appellate Court clearly reflect that the application under Order 41 Rule 27 CPC was neither allowed nor dismissed but the Appellate Court has referred and relied upon the documents filed with application under Order 41 Rule 27 CPC which are not part of record before the trial Court. 18. In case of Union Of India vs Ibrahim Uddin & Anr. : (2012) 8 SCC 148, Hon’ble Supreme Court has observed that fresh evidence cannot be introduced under the provision at appellate stage and if the evidence available on record is [2025:RJ-JP:38461] (10 of 14) [CSA-108/2006] sufficient for judgment then the provision under Order 41 Rule 27 CPC cannot be resorted to. The provision was further considered in case Jagdish Prasad Patel(D) Thr. Lrs. vs Shivnath and Ors. : (2019) 6 SCC 82. 19. Having considering the reasons as assigned in support of application under Order 41 Rule 27 CPC by defendant, it is apparent that these documents are neither satisfies the essential ingredients of Rule 27 of Order 41 CPC nor they are necessary for proper adjudication of instant appeal. 20. There has to be an extraordinary circumstance whereby the Appellate Court would realize that the documents are necessary for just decision of the lis between the parties but the documents does not satisfy any of the condition necessary for taking these documents on record. Therefore, the application under Order 41 Rule 27 CPC is liable to be dismissed. 21. In case of Kanahaiya Lal Arya vs Md. Ehshan : 2025 INSC 271, it was held that eviction of a tenant from the suit premises on the ground of bona fide need of landlord is well settled. The need has to be real one rather than a desire to get the premises vacated. The landlord is the best judge to decide which of the property should be vacated for satisfying his particular need. The tenant has no role in dictating as to which premises the landlord should get vacated for satisfaction or his need in a suit for eviction on ground of personal, reasonable and bona fide need. 22. In first appeal, one of the objection of tenant was that the landlord is having some other properties but again it was [2025:RJ-JP:38461] (11 of 14) [CSA-108/2006] held that it is for the appellant landlord to take a decision in this regard. Thus, the existence of other properties is not a ground to frustrate the need and requirement of landlord. 23. In case of Shiv Sarup Gupta vs Dr. Mahesh Chand Gupta : AIR 1999 SC 2507, Hon’ble Supreme Court has extensively dealt with bona fide need and requirement under the Rent Control Law. It is settled proposition of law that landlord is the best judge of his own needs and he cannot be dictated by the tenant. 24. The judgment dated 25.11.2005 passed by learned Appellate Court clearly indicate that learned Appellate Court has placed reliance upon documents which were filed with application under Order 41 Rule 27 CPC and on basis of said documents, the Appellate Court has drawn a conclusion that plaintiff is possessing a large number of properties and these properties are in actual possession of plaintiff which were acquired by way of succession. These documents neither tendered in any evidence nor proved by defendant. The application of defendant under Order 41 Rule 27 CPC was not allowed by the First Appellate Court. The Appellate Court has also compared number of members in family of plaintiff vis-a-vis number of members in family of defendant and then drawn a conclusion about reasonable and bona fide need and comparative hardship of plaintiff. The plaintiff is a landlord whereas the defendant is a tenant and a tenant has no right to dictate the landlord, where need of the plaintiff is not declared as malafide and just a desire. The Appellate Court has specifically mentioned that plaintiff has not [2025:RJ-JP:38461] (12 of 14) [CSA-108/2006] disclosed her ancestral and other properties in the plaint. There is no law which mandates plaintiff to disclose other properties in her ownership. The defendant is free to bring those facts while defending the suit but the plaintiff cannot be blamed for not bringing the details of property possessed by family of plaintiff. The Appellate Court has not only overstepped his jurisdiction but traveled beyond the settled principles of law while deciding the first appeal under Section 96 of CPC. It is apparent on record that the document which were relied by Appellate Court are not part of the record before the trial Court. If the evidence not on record either in the form of documentary or oral, the judgment of Appellate Court cannot be based on such material, thus, judgment itself is perverse and illegal. 25. The trial Court while considering issue Nos.3 to 5 referred judgments of Hon’ble Supreme Court and also of this Court after considering the evidence on record and based on the principle that there is no suitable premises for business of Surendra Kumar, the trial Court has passed a decree in favour of plaintiff. The Appellant Court has not assigned any reason to set aside the findings recorded by trial Court on issue No.3. There is no alternative premises in the vicinity where plaintiff can fulfill her desire to set up office of her son which means the plaintiff is not having any other alternative and suitable premises to so that the son of plaintiff may establish his business of jewellery. It indicate that the landlord is the best judge and the Appellate Court has committed perversity and illegality by not following the [2025:RJ-JP:38461] (13 of 14) [CSA-108/2006] settled principle of law as referred and relied by the trial Court. 26. The number of members in once family is not sufficient to deny the reasonable and bona fide need of plaintiff particularly when the need of plaintiff is reasonable and bona fide then a comparative hardship is in his or her favour. The material on record clearly indicate that the trial Court has decided issue Nos. 3 to 5 on basis of evidence available on record and the trial Court has rightly considered the evidence and applied the principle of law correctly in accordance with evidence and material on record but First Appellate Court has committed serious illegality by misreading the evidence and material on record. 27. In view of above discussion, the substantial question of law is answered in affirmative in favour of appellant and consequently, the appeal is liable to be allowed. The application under Order 41 Rule 27 CPC preferred by the defendant-respondent is liable to be rejected. 28. As a result, the instant second appeal preferred by the appellant-plaintiff aggrieved from judgment dated 25.11.2005 in Civil Regular Appeal No.107/2004 passed by Additional District Judge No.2, Jaipur City, Jaipur is hereby allowed and judgment dated 25.11.2005 passed by the First Appellate Court is set aside. As a result, the judgment and decree dated 25.05.2004 in Civil Suit No.211/1998 passed by learned Additional Civil Judge (J.D.), Jaipur City, Jaipur City (East) is restored. The application under Order 41 Rule [2025:RJ-JP:38461] (14 of 14) [CSA-108/2006] 27 CPC is also dismissed. The respondent-defendant are granted six months’ time to vacate the suit premises. 29. Misc. application, if any, also stands disposed of. 30. No order as to costs. (ASHOK KUMAR JAIN),J MR/78