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2005 DIGILAW 2688 (RAJ)

Harish Kumar v. Shyam Sunder

2005-10-18

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the petitioners as well as learned Counsel for the respondents. 2. This writ petition is against the eviction order passed by the Rent Tribunal (Civil Judge (Sr. Div.), Sri Ganganagar) dated 11.01.2005 and against which, the appeal was dismissed by the appellate Court vide Judgment and decree dated 25.08.2005. 3. Brief facts of the case are that the plaintiffs after serving a notice dated 10.06.2003 upon the appellant-petitioner No. 1 Harish Kumar filed a suit for eviction on the ground that the plaintiffs demanded the rent of the suit premises from the appellant-defendant Harish Kumar as the rent of the premises was not paid by the said tenant from 01.06.2001 to 31.05.2003. In notice plaintiffs disclosed their bank account number and requested tenant-appellant No. 1 to pay the rent of 24 months amounting to Rs. 38,400/-, but the tenant failed to pay the rent despite the notice and despite disclosure of the bank account particulars. Therefore, according to plaintiffs, the plaintiffs were entitled to decree for eviction against the tenant under Section 9 of the Rajasthan Rent Control Act, 2001. The tenants-plaintiff-respondents also pleaded that suit premises required bona fidely for their own personal use. Though the notice was given to appellant No. 1 alone, but in the eviction petition, appellant No. 1s father Bharatraj was also impleaded as party. In the notice it is mentioned that in the shop in dispute Bharatraj is also sitting with his son Harish Kumar appellant No. 1. However, this fact has not been pleaded specifically in the eviction petition. 4. The defendants submitted written statement before the trial Court and took a plea that suit premises was not taken on rent of Rs. 1,600/-per month, but this was taken on rent of Rs.1,000/-per month. It was also pleaded by the defendants that suit premises was taken on rent by the defendant-appellant No. 2 father of the appellant No. 1 Harish Kumar and he was paying the rent and is doing the business. The defendants also pleaded that defendants used to pay the rent and plaintiffs did not give any rent receipt to the defendant No. 2-tenant. The ground for eviction on the ground of personal bona fide necessity was also contested by the defendants-tenants. Several documents were also submitted before the Rent Tribunal and the Rent Tribunal framed as many as six issues. The plaintiff AW. The ground for eviction on the ground of personal bona fide necessity was also contested by the defendants-tenants. Several documents were also submitted before the Rent Tribunal and the Rent Tribunal framed as many as six issues. The plaintiff AW. 1 Shyam Sunder gave his statement in support of his case and produced witnesses AW. 2 Harbhagwan, AW. 3 Nizamuddin, AW. 4 Laxmandas and AW. 5 Narayandas whereas defendant No. 2 Bharatraj gave his statement as NAW. 1 and produced witnesses NAW. 2 Jaswant Lal, NAW. 3 Harish Chandra and NAW. 4 Sunder Lal. 5. The trial Court decreed the suit of the plaintiffs by the Judgment and decree dated 11.01.2005 holding that the tenant committed default in payment of rent and further failed to pay the rent despite the notice which was served upon the plaintiffs under the provisions of Section 9 of the Act of 2001. The trial Court also decided the issue of personal bona fide necessity in favour of the plaintiffs and on both grounds, the suit was decreed. 6. It appears from the Judgment of the trial Court that no specific argument was raised by the defendants-petitioners about the non-maintainability of the suit on the ground that only defendant No. 1 Bharatraj is tenant and no notice for eviction on the ground of default was served upon him. It will also be pertinent to mention here that defendant did not request the trial Court for framing an issue on the defendants plea that Bharatraj alone is the tenant in the shop in dispute. It is further relevant to mention here whether there was two shops let out to the defendant-tenant or it was one shop, was not also the issue raised by the defendants in the trial Court. 7. Before the first appellate Court the ground was raised by the defendants that Bharatraj alone was tenant in the suit shop, but the first appellate Court after appreciation of the evidence and after relying upon the copy of the income tax return of defendant No. 1 Harish Kumar held that Harish Kumar alone is tenant in the suit shop and he is doing business as proprietor of the firm having business in the suit shop. The first appellate Court rejected the documentary evidence produced by the defendants, which are only licence issued by the Collector, Sri Ganganagar for opening a fire works shop for temporary period. The first appellate Court rejected the documentary evidence produced by the defendants, which are only licence issued by the Collector, Sri Ganganagar for opening a fire works shop for temporary period. The two Courts below after appreciation of the evidence held that the rent of the suit premises is Rs. 1,600/- per month and rejected the defendants defence that the rent of the suit shop is Rs. 1,000/-only. The first appellate Court upheld the finding of the trial Court on the issue of personal bona fide necessity. The defendants-appellants-petitioners, therefore, have preferred this writ petition to challenge the two impugned Judgment s referred above. 8. According to learned Counsel for the petitioners, it is clear from the Annexure-6 notice dated 10.06.2003 that notice was served upon only Harish Kumar and in the notice it is mentioned that there are two shops which were let out to the defendant Harish Kumar, but suit has been filed for one shop with allegation that one shop was let out on rent of Rs. 1,600/-. It is also submitted that no notice was served upon Bharatraj, is an admitted case, therefore, no eviction decree could have been passed by the Rent Tribunal under the Act of 2001 against Bharatraj, who is in fact, tenant and who has not been served with notice as required by Section 9 of the Act of 2001. Learned Counsel for the petitioner also vehemently submitted that the Courts below committed serious error of law in relying upon the statement of Nizammuddin, who was alleged to be tenant in the suit shop till 1996. According to learned Counsel for the petitioners Nizammuddin clearly stated that he was having two shops when he left the shops. He also admitted that rent of two shops were Rs. 1,600/- per month and two shops were converted into four shops. In view of the above, the Courts below committed serious error in holding that the premises was let out to the tenants on the rent of Rs. 1,000/-per month. 9. I considered the submissions of learned Counsel for the petitioner and perused the documents placed on record. It is clear that the petitioner is challenging the findings recorded by the Tribunal and appellate authority under Article 227 of the Constitution of India wherein jurisdiction of the Court is not as of appellate Court, but only supervisory in nature. 9. I considered the submissions of learned Counsel for the petitioner and perused the documents placed on record. It is clear that the petitioner is challenging the findings recorded by the Tribunal and appellate authority under Article 227 of the Constitution of India wherein jurisdiction of the Court is not as of appellate Court, but only supervisory in nature. A bare perusal of the entire facts as well as grounds mentioned in the orders of the Tribunal and the appellate authority it is clear that there was two sets of evidence for the purpose of deciding whether Harish Kumar alone was tenant or Bharatraj alone was tenant. More reliable evidence is the copy of the income tax return of Harish Kumar, which was relied upon by Tribunal and appellate authority where the objection about the tenancy was raised by the tenants more specifically. The first appellate Court not only relied upon the copy of the income tax return of Harish Kumar but also drew adverse inference against the defendants for not producing Harish Kumar himself in witness box. When Harish Kumar himself was not stating that he is not tenant in the suit shop and his father is tenant, there was no reason for the Tribunal as well as for the appellate authority to declare Bharatraj as tenant in the suit shop ignoring the reliable documentary evidence Exhibit 11, income tax return of Harish Kumar. Therefore, the finding of fact recorded by the Courts below is based on cogent evidence so far as tenancy of Harish Kumar is concerned. 10. In view of the above findings, the notice served upon the defendant Harish Kumar is legal notice inasmuch as in the notice it is stated that suit shop was let out to Harish Kumar and his father is working with him only. It is mentioned in the notice that rent is Rs. 1,600/-. It is true that in the notice it is mentioned that there are two shops in the use of the plaintiffs and they were let out to the defendant Harish Kumar, Harish Kumar did not reply to this notice dated 10.06.2003 nor he appeared and said that because of this reason, he did not pay the rent or he could not have paid the rent for the shop, which was in his tenancy. It appears that Harish Kumar must have understood that rent of the shop which has been let out to him has been demanded by the landlords. Therefore, he did not raise this objection by giving reply to the landlords. Not only this, but he did not appear in witness box to explain what prejudice has been caused to him because of mentioning two shops in plaintiff notice. Therefore, it appears that in notice inadvertently it has been mentioned that the two shops are in the use of the plaintiff and they were let out to the defendant Harish Kumar. 11. In view of the above also, the notice cannot be said to be illegal because of the mistake crept in the notice nor any prejudice can be caused to the defendant Harish Kumar. 10.12. Since, the Courts below held that Harish Kumar is tenant and decree has been passed against him, therefore, the person in occupation alongwith Harish Kumar, his father Bharatraj has also no right to remain in the suit shop. In view of the above, I do not find that the Courts below have committed any error of law in declaring Harish Kumar as tenant and declaring that Harish Kumars father was only helping hand to Harish Kumar. 13. So far as rent of the suit premises is concerned, this is pure question of fact and that has been decided by the Tribunal as well as appellant authority on the basis of evidence and the evidence cannot be said to be wholly unreliable in any manner. The statement of the witness Nizammuddin that he took two shops from landlords in the year 1991 @ Rs. 1,600/-per month and those shops were if converted in four shops and were let out, then in all probabilities it is possible that the shop has been let out @ Rs. 1,000/-per month. The finding cannot be said to be without there being any evidence. 14. So far as ground of eviction on the basis of personal bona fide necessity of the plaintiff is concerned, that finding has not been seriously challenged by the petitioners, which is because of obvious reason that the finding is based on evidence and cannot be challenged under Article 227 of the Constitution of India. 15. In view of the above, the writ petition of the petitioner is dismissed. 16. 15. In view of the above, the writ petition of the petitioner is dismissed. 16. At this stage, learned Counsel for the petitioner prays that petitioners may be given some time to vacate the suit premises because they are doing their business in the suit shops since long period and they will have to make some arrangements. Learned Counsel for the petitioner prays that at least one and half years time may be granted. Learned Counsel for the respondents-landlords submitted that tenants have already purchased the shops, therefore, there is no reason for giving further time to vacate the suit shops. 17. Looking to the facts of the case and looking to the reason that the petitioners are doing their business in the suit shops, they will have to make some arrangements for shifting their business at proper place and for winding up the business they may need some time. Therefore, it will be just and proper to allow the petitioners to continue with the possession of the suit shops till 310.2006 on furnishing a written undertaking before the Courts below that during this period, the petitioners shall not part with possession of the suit property nor they will sub-let it and shall hand over the vacant possession of the suit property to the landlords by or before 011.2006. The undertaking shall be submitted within a period of one month from today and the petitioners shall also pay the entire arrears of rent and litigation costs as awarded by the Tribunal and the appellate authority within a period of two months from today. The petitioners shall also deposit the rent month by month by 15th day of each succeeding month of tenancy in the bank account of the landlords as disclosed in the notice. In case of any default and non-compliance, the decree shall become executable forthwith.