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2009 DIGILAW 997 (RAJ)

Jagdish Chandra S/o. Prithivi Raj v. Ashok Kumar s/o. Govind Ram Khaturia

2009-04-10

VINEET KOTHARI

body2009
JUDGMENT 1. - Jagdish Chandra, landlord-Plaintiff has filed this first appeal under Section 96 C.P.C. being aggrieved by the judgement and decree of the learned trial Court dated 4.4.2001. which deciding issue No. 7 against the plaintiff dismissed the suit for eviction against the defendant in respect of suit shop situated in Bapu Bazar, Udaipur thought all over issue including the issue No. 2 relating to bonafide necessity of the landlord for seeking eviction was however decide in favour of the plaintiff -landlord along with other issue like comparative hardship etc. and except issue No. 7 which involved a legal question and which was decided against the plaintiff the other issue were decide in favour of the plaintiff. Hence this first appeal of the landlord. 2. The defendant-tenant has filed cross-objection No. 5/2003 on the issue of bonafide necessity of landlord which were also heard along with the first appeal. 3. Mr. Manish Shishodia, learned counsel for the appellant-plaintiff urged the the learned trial Court had erred in deciding issue No.7 against the Plaintiff landlord and holding that in absence of landlord giving one months notice to the defendant-tenant for handing over vacant possession of the suit shop to the plaintiff the suit for eviction was not maintainable in view of the decision of the Rajasthan High Court In the case of Prakash Mal v. Jaswant Raj Soni, reported in 2000(2) RLW (Raj) 1227 because the said decision of the learned single judge in the case of Prakash Mal (Supra) which was held to be longer a good law in a later decision dated 18.2.2002. and therefore deserves to be quashed and set aside and present appeal deserves to be allowed on this ground alone and since other issue were decided in favour of the plaintiff-landlord the decree for eviction deserves to be passed against the defendant tenant. 4. Whether the provision of Section 106 of the Transfer of Property Act. applies in eviction suit under the provision of Rajasthan Rent Control Act. 1950 or not is the question. in the question in the case of Prakash Mal (Supra) it was held that such notice was necessary if there was an agreement between the parties to that effect and in absence or such notice the suit notice the suit for eviction could not be filed under the provision of rent Control Act. 1950. 5. in the question in the case of Prakash Mal (Supra) it was held that such notice was necessary if there was an agreement between the parties to that effect and in absence or such notice the suit notice the suit for eviction could not be filed under the provision of rent Control Act. 1950. 5. The Division Bench of this Court in a reference by another learned Single judge in S.B. Civil Revision petition No. 803 of 2001, held in the case of Fatel Lal Dak v. Sheshmal Decide by a reportable judgment on 18.2.2002 . held that such notice was not necessary notwithstanding such an agreement between the parties for giving of such a notice to the tenant as the Rajasthan Rent control Act was a special law and provision of Transfer for Property Act did not apply when the eviction was sought under the provision of Rajasthan Rent Control Act 1950 and therefor without determine these lease or terminating the tenancy after saving a notice on the lease tenant or terminating the tenancy after saving a notice of lease or tenant in accordance with section 106 of the Transfer of property Act. the landlord could seek eviction on the ground enumerated under section 13 of the rent Control Act 1950 and the judgment of the learned single judge in the case of Prakash Mal was no longer a good law in view of decision of Hon'ble Supreme Court by seven judges in the case of V. Dhanpal Chettiar v. Yasodai Ammal, reported in AIR 1979 SC 1745 . it would be appropriate to reproduce relevant part of the judgment of Division Bench of this Court : ''4. In the reference order on this aspect of the matter large number of authorities have been considered in elaborate manner and the following question was referred to the large Bench : ''Weather in view of the decision of the Honable Apex Court as wall as of this Court cited supra the law laid down by this court in Prakash Mal and others v. Jaswant Raj Soni, reported in RLW 2000(2) Rajasthan P. 1227 holds good. 5. 5. Section 106 of the Transfer of Property Act is the basic provision and in our opinion in this case of V. Dhanpal Chettiar v. Yasodai Ammal, reported in AIR 1979 SC 1745 the decision rendered by a has considered this aspect of the matter in detail in para 7 of the judgment after considered the earlier decisions the Supreme Court has observed that the difference in the phraseology of the different State Rent Acts justifies the difference of views , in our considered judgment on the question of a requirement of a notice under Section 106 of the transfer of property Act there is no scope for taking different view on the basic of the different in the phraseology of the various Rent Acts, In the regards the different in the language dose not bring about any distinction. in all the state the law should be uniform viz the either a notice is necessary or it is not. it was high time there fore that this large bench was constituted to lay down a uniform law for the governance of the whole country and not permit the unjustified different trend of decision to continue. in para 9 also it has been observed that under the transfer of property Act in order to entitle the landlord to recover possession determination of the lease is necessary as during its continuance he could not (sic) recover possession only on the fulfillment of the rigour of law provided therein otherwise not. the landlord cannot recover possession determination of tenancy Nor he can be estopped from doing so on the ground that he has not termination the contractual tenancy. Under the state Rent control Acts, the concept of the contractual tenancy has lost much of its significance and force. Identical is the position under the Bihar Act. The definition section permits the tenant to continue as a tenant even after the determination of the contractual tenancy. Section 11 gives the protection against eviction by starting with a non obstante clause. Identical is the position under the Bihar Act. The definition section permits the tenant to continue as a tenant even after the determination of the contractual tenancy. Section 11 gives the protection against eviction by starting with a non obstante clause. After noticing the decision in the case of Punjalal v. Bhagwant Prasad, 1963(3) SCR 312 , a case relating to Bombay Rent Act, it was observed by the Supreme Court that "where a tenant is in possession under a lease from the landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession under Section 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the ban on the landlord's right to evict him it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under sub-section (2) of Section 12 of the Act." True it is that Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for eviction of tenants. In the case of Manujendra Dutt v. Purendu Prosad Roy Chowdhury, reported in (1967) 1 SCR 475 , the question of notice was considered with reference to the Calcutta Thika Tenancy ACt, 1949 and in that connection, it was observed that it is not correct to say that Section 106 of the Transfer of Property Act merely providing for termination of a lease either by the lessor or the lessee by giving the requisite notice is an extra protection against eviction. The purpose of this provision is merely to terminate the contract which the over-riding Rent Acts do not permit to be terminated. The learned counsel for the revision petitioner has already invited our attention to the decision of the Sikkim High Court rendered in the case of Jiwan Ram v. Tobgyal Wangchuk, reported in AIR 1985 Sikkim 10 . Manujendra Dutt's case has already been considered in the judgement rendered by Supreme Court in the case of V. Dhanapal Chettiar (supra) to which, we have already made a reference in the earlier part of this order. Manujendra Dutt's case has already been considered in the judgement rendered by Supreme Court in the case of V. Dhanapal Chettiar (supra) to which, we have already made a reference in the earlier part of this order. So far as decision in the case of Prakash and others v. Jaswant Raj Soni (supra) is concerned, after considering Section 13 and 106 of the Transfer of Property Act, in a suit for eviction, the question for consideration was as to whether despite a contract regarding notice between the parties, a suit can be maintained under the Act of 1950 without giving such notice? In this case, the learned Single Judge of this Court held that when the parties entered into a contract although no notice was necessary under Section 106 of the Transfer of Property Act, yet a notice will be necessary and that this condition shall prevail and in para 2 of the judgement, the learned single Judge took the view that the Sikkim High Court did not consider the Supreme Court judgement in V. Dhanapal Chettiar's case (supra) and found that such a agreement which mentioned about notice was binding and therefore, when it was a condition precedent to issue notice as per the agreement in both the cases, the suits as have been filed without giving notices to the tenant petitioners, shall not be maintainable. 6. It is apparent from reading of the decision to which the reference has been made in the reference order and particularly in para 7 of the judgement in the case of V. Dhanapal Chettiar v. yesodai Ammal (supra), it is very clear that the judgement rendered by the learned Single Judge of this Court in the case of Prakash Mal and others v. Jawant Raj Soni (supra), does not hold the field and cannot be said to be a correct law to be applied for. Whereas, it is held that the termination of the tenancy without giving notice before filing the suit is not necessary and the decree for eviction etc. can be sought for even if there is an agreement for notice, the law laid down in the case of Prakash Mal and others v. Jaswant Raj Soni (supra) does not hold good and the question has been decided by the Supreme Court in the case of V. Dhanapal Chettiar v. Yasodai Ammal (supra). 7. can be sought for even if there is an agreement for notice, the law laid down in the case of Prakash Mal and others v. Jaswant Raj Soni (supra) does not hold good and the question has been decided by the Supreme Court in the case of V. Dhanapal Chettiar v. Yasodai Ammal (supra). 7. The reference is answered accordingly and it is held that the case of Prakash Mal and others v. Jaswant Raj Soni (supra) does not lay down the correct position of law and does not hold the field. The Supreme Court has already concluded this controversy in the case of V. Dhanapal Chettiar v. Yasodai Ammal (Supra). 8. The matter may be placed before the concerned Bench hearing the revision matters. Sd/- (D.N. Joshi, J) Sd/- (M.R. Calla, J)" 6. The Seven Judges Bench of Hon'ble Supreme Court in the case of V. Dhanpal Chettiar (supra) was not cited before the learned trial Court in the present case and it is only the matter of guess that had this judgement been cited and discussed whether the learned trial court could have still chosen to decide issue no. 7 against the plaintiff following the decision of this Court in the case of Prakash Mal v. Jawant Raj Soni . Though in the judgement of learned Single Judge in the case of Prakash Mal v. Jaswant Raj Soni , the Supreme Court's decision in the case of V. Dhanaraj Chettiar (supra)was cited by the counsel or the landlord, however, still without detailed discussion thereof, the learned Single Judge followed the decision of Sikkim High Court in the case of Jiwan Ram v. Tobgyal Wangchuk Tenzin, AIR 1985 Sikkim 10 and held that where there is an agreement governing the tenancy, such a notice was required though notice under Section 106 of the TP Act was not required. Be that as it may, since the Division Bench has specifically held in Fateh Lal Dak's case (supra) that no such notice is necessary even if there is agreement for giving of such notice to the tenant, the said judgement in the case of Prakash Mal (supra) can no9 longer hold the field and therefore, the learned trial Court has apparently fallen into error in deciding issue no. 7 against the plaintiff on the strength of the said overruled judgement of learned Single Judge. 7. 7 against the plaintiff on the strength of the said overruled judgement of learned Single Judge. 7. The Constitution Bench of Hon'ble Supreme Court comprising of 7 Judges in the case of V. Dhanpal Chettiar (supra) dealing with this controversy held as under:- "In order to get a decree or order for eviction against a tenant under any State Rent Act it is not necessary to give notice under Section 106 T.P. Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to to find the proceedings on the basis of determination of the lease by issue of notice in accordance with Section 106 of the T.P. Act. On the question of requirement of such a notice under Section 106 T.P. Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that Section 106 of the T.P. Act merely providing for termination of a lease either by the lessor or the lessee by giving the requisite notice is an extra protection against eviction. The purpose of this provision is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated. Even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise." 8. The learned counsel for the respondent-tenant, Mr. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise." 8. The learned counsel for the respondent-tenant, Mr. Vinay Jain however submitted that in the appeal in the case of Prakash Mal v. Jaswant Raj Soni relied upon by the learned trial Court and against which appeals reached up to the Apex Court, the Hon'ble Apex Court ultimately deciding appeals directed the learned trial Court to consider whether requirement of giving notice has been met on the basis of evidence led by the parties or not and therefore, the requirement of notice by the landlord to the tenant was still necessary because there was specific stipulation in the written agreement between the parties in the present case also that the landlord would give a notice to the tenant of one month seeking eviction. He submitted that his case was slightly distinguishable from the case of Jaswant Raj Soni v. Prakash Mal in as much as in that case the condition of giving notice was printed on the back of the rent receipt which was not considered to be an agreement between the parties, whereas in the present case there was specific stipulation in the written agreement between the parties to this effect. The said judgement of the Hon'ble Supreme Court in the case of Jaswant Raj Soni v. Prakash Mal along with another connected appeal in the case of Jabar Lal v. Kan Mal, is reported in (2005) 8 SCC 38 . It would be appropriate to reproduce para 2 and para 6 of the said judgement also as under:- "2. We have heard the learned counsel for the parties. So far as the requirement of issuance of notice under Section 106 of the Transfer of Property Act before institution of an eviction petition is concerned, the issue stands concluded as per a seven Judge Bench decision of this Court in V Dhanapal Chattiar v. Yesodai Ammal . It has been held that there is no legal requirement for issuance of a notice under Section 106 of the Transfer of Property Act before institution of an eviction petition. Therefore, requirement of notice under Section 106 is not necessary. It has been held that there is no legal requirement for issuance of a notice under Section 106 of the Transfer of Property Act before institution of an eviction petition. Therefore, requirement of notice under Section 106 is not necessary. The only point left for decision in this case is whether there was agreement between parties requiring service of one month's notice prior to the institution of an eviction petition. For agreement between the parties, reliance is placed only on a condition printed at the back of the rent receipt issued by the landlords. In our view, it cannot be said on the basis of what is printed on the back side of the rent receipt that the parties had accepted it as a condition of the lease. The rent receipt is a document issued by the landlord acknowledging the receipt of payment of rent by him. Conditions printed at the back of the rent receipt cannot be said to be a conscious decision taken by the parties governing the lease of premises. The terms and conditions of a lease result from conscious decision of parties. Therefore, we are unable to accept that the parties have entered into an agreement about service of one month's notice in advance to vacate the premises before institution of eviction petition. "6. The learned counsel for the respondent-tenant tried to argue that in view of Section 28 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the provisions of Section 106 of the Transfer of Property Act will apply to the facts of the present case and a notice to quit in terms of the said provision was required to be given. In view of V. Dhanapal case we are unable to accept this argument. There is no legal or statutory requirement for a notice being given in the facts of the present case. The only requirement regarding notice, if at all, arises from the condition printed on the back of the rent receipt which in our view cannot be said to be an agreement between the parties laying down requirement of issuance of a notice for institution of an eviction petition. IN any case as noticed above, the landlords have tried to meet that requirement. IN any case as noticed above, the landlords have tried to meet that requirement. In Jaswant Raj Soni case the requirement of notice has been met, as observed by us above, while in Jabar Lal case the trial Court will consider whether the requirement has been met on the basis of evidence led by the parties. Both the appeals are allowed and the impugned judgement of the High Court of Rajasthan is set aside. The eviction suits are directed to be expeditiously tried and disposed of by the Court(s) concerned. Both the appeals stand disposed of. "7. No order as to costs." 9. In view of the aforesaid extract of judgement, it is clear that there is no force in the contentions raised by Mr. Vinay Jain, the learned counsel for the respondent-tenant that the Hon'ble Supreme Court has held that there is still requirement on the part of the landlord to give notice to the tenant before filing the suit for eviction under the Rent Control Act, 1950. On the contrary, the Apex Court clearly held that this cannot be the requirement in view of law laid down by 7 Judges Bench decision in the case of V. Dhanapal Chettiar (supra) and notwithstanding the written agreement of this effect, no such notice is required to be given and for seeking eviction under the Rent Control Act, 1950. The afore quoted portion of Division Bench decision of this Court upon a reference has categorically laid down that such a notice by the landlord is not necessary even if there is an agreement to this effect for giving of such notice between the landlord and the tenant. The plaintiff-landlord has to establish the grounds of eviction enumerated in Section 13 of the said Act which begins with a non-obstante clause, independently of such notice or termination of the tenancy by such notice. Preamble part of section 13 of the Rajasthan Rent Control Act, 1950 is reproduced hereunder:- "Section 13. Eviction of Tenants : (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied." 10. Since the Section 13 of the Rent Control Act enumerates the grounds of eviction on which alone, the eviction decree can be sought notwithstanding any other law or contract to the contrary, therefore, requirement of determining lease in accordance with Section 106 of the Transfer of Property Act or giving notice is stipulated in the agreement between the parties cannot be considered to be necessary. The Division Bench of this Court in the aforesaid judgement in the case of Fateh Lal Dak (supra) has categorically found that requirement of giving such notice by the landlord cannot be insisted upon notwithstanding agreement between the parties to the contrary. Therefore, this Court does not find any substance in the contentions raised on behalf of the respondent-tenant. 11. Thus the issue No. 7 has wrongly been decided by the learned trial Court relying upon the judgement of the learned Single Judge of this Court in the case of Prakash Mal v. Jaswant Mal Soni (supra) which has been held to be no longer a good law not only by the Division Bench of this Court, but also impliedly by the Apex Court as cited supra. The issue No. 7 is, thus, decided in favour of the appellant-plaintiff and against the defendant-tenant and it is held that notwithstanding the agreement between the parties, the appellant plaintiff was not required to give notice to the defendant tenant before seeking eviction under the provisions of Rent Control Act, 1950. 12. The issue No. 7 is, thus, decided in favour of the appellant-plaintiff and against the defendant-tenant and it is held that notwithstanding the agreement between the parties, the appellant plaintiff was not required to give notice to the defendant tenant before seeking eviction under the provisions of Rent Control Act, 1950. 12. As far as issue No. 2 and other relevant issues about personal bonafide necessity of the landlord and the cross-objections of the defendant-tenant are concerned, having one through the findings of the learned trial Court in detail and statements of witnesses which were read out by the learned counsel for the respondents in the Court, this Court finds that the learned trial Court has appreciated the evidence fully and correctly and has found that since Vijay son of plaintiff Jagdish Chandra was a grown up boy of 17 to 18 years of age at the time of filing of suit and had married in the year 1999 and required the shop in question for establishing his fast-food centre in the said area of Bapu Bazar, Udaipur where such similar shops were already located and it was appropriate market for the same, therefore, notwithstanding availability of alternative accommodation which was used for the plaintiff's own business and his other two sons, the plaintiff had established the bonafide need for his said son Vijay for the suit shop and therefore, the eviction decree deserves to be given. The contention raised by the learned counsel for the respondent defendant that the said Son Vijay was only 15 years of age at the time of filing of the suit and therefore, could not be said to have any bonafide need for setting up of his own business separate from his father and other family members does not impress this Court at all. There is nothing in law which prevents a young man of 15 to 18 years of age to come that the said son Vijay had left the studies and wanted to start his own independent business of fast food centre in the suit shop which was appropriate market for that. All the witnesses produced by the plaintiff in support of his case established such need and vouched before the learned trial Court that the said son was fully grown up and had sufficient financial resources and experience to establish his own business of fast food centre. All the witnesses produced by the plaintiff in support of his case established such need and vouched before the learned trial Court that the said son was fully grown up and had sufficient financial resources and experience to establish his own business of fast food centre. The law also in this regard is well settled that the landlord is the best judge in this regard and the tenant cannot dictate terms to the landlord to adjust his business need in the manner as desired by the tenant. This Court, therefore, does not find any reason to upset the findings of the learned trial Court of the personal bonafide necessity of the landlord for suit shop in question. The application filed by the defendant under Order 41 Rule 26 Civil Procedure Code, namely 1A No. 1769/2007 seeking to place on record photographs of the alternative accommodation owned by the plaintiff is also without any force and the same is liable to be dismissed in as much as the learned trial Court as well as this Court finds that the mere availability of alternative accommodations to the plaintiff himself and his other two sons does not obliterate the bonafide need for son Vijay for suit shop in question for establishing his own independent fast food centre. Therefore, the said application being 1A No. 1769/2007 is also liable to be rejected and is hereby rejected. 13. The cross-objections filed by the defendant No. 5/2003 are also accordingly liable to be rejected and are hereby rejected. 14. Consequently the first appeal No. 177/2001 filed by the plaintiff-landlord is allowed and the decree of eviction be made against the defendant-respondent in respect of the suit shop. The defendant respondent Ashok Kumar shall hand over the vacant and peaceful possession of suit shop in question to the plaintiff appellant within a period of two months from today and shall further pay mesne profit to the plaintiff appellant to the extent of Rs. 2000/- per month from May, 2009 onwards till the actual handing over of peaceful and vacant possession. The defendant-respondent shall also clear the arrears of mesne profits if any in accordance with the impugned judgement of the learned Court. 2000/- per month from May, 2009 onwards till the actual handing over of peaceful and vacant possession. The defendant-respondent shall also clear the arrears of mesne profits if any in accordance with the impugned judgement of the learned Court. In case, there is any default in payment of mesne profit or the defendant respondent fails to hand over vacant and peaceful possession of the suit shop in question to the appellant plaintiff, after completion of aforesaid period of two months from today, the plaintiff appellant shall not only be entitled to get this decree executed in accordance with law, but shall also be entitled to invoke jurisdiction of this court under the Contempt Law. No order as to costs.Appeal Allowed. *******