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2010 DIGILAW 1445 (RAJ)

Om Prakash Bhati v. LRs. of Har Kanwar

2010-08-11

VINEET KOTHARI

body2010
Hon'ble Dr. KOTHARI, J.—This second appeal has been filed by the defendant-tenant Om Prakash Bhati being aggrieved by the decree of first appellate Court dated 6.10.2010 allowing the appeal of the plaintiff landlord No.48/2006 on the ground of bona fide necessity of grand-children of landlady. The trial Court has dismissed the suit of the plaintiff landlady on 1.9.2006 while dismissing the Civil Suit No. 56/2004 - Harkanwar vs. Om Prakash. 2. Mr. R.R. Nagori, Sr. Advocate assisted by Mr. Alkesh Agarwal appearing for the appellant - defendant vehemently submitted that the present suit was filed in the year 2003 for the alleged need of the grand-children who were only the students of 11th and 12th standard at that time and whereas two shops in question each measuring 9 x 20 ft. total 18 x 20 ft. were given on rent to the defendant - tenant at the monthly rent of Rs. 1000/- since 1.6.1993. He submitted that the alleged ground of bona fide necessity of landlady for her grand children was not rightly believed by the learned trial Court, which dismissed the suit of the plaintiff. Since the said need was admittedly only a future and probable need, whereas it is well settled that bona fide need of landlord should exists on the date of filing of the suit and therefore, the alleged need that since her grand children are doing Computer course and therefore, need shown that the suit premises which is situated near Pal Balaji Temple at Pal Road, a prominent and busy road of Jodhpur for starting their computer business, was not genuine and bona fide need and mere whims and desire of landlord cannot furnish a valid ground for passing eviction decree. He submitted that findings of first appellate Court are perverse and baseless. The youngest daughter Dipika was doing Dental course, whereas her need for computer business was pleaded. Their father Dr. Har Govind, whose need after retirement after 2 years was shown, did not even appear in Court for cross-examination. He relied upon several case-laws, which would be referred to herein, a little later. 3. The youngest daughter Dipika was doing Dental course, whereas her need for computer business was pleaded. Their father Dr. Har Govind, whose need after retirement after 2 years was shown, did not even appear in Court for cross-examination. He relied upon several case-laws, which would be referred to herein, a little later. 3. By moving an application under Order 41 Rule 27 C.P.C. before this Court on 6.12.2010, which has been replied by the plaintiff - landlord and both the parties by producing photographs of the site in question have tried to bring on record the additional facts that alternative accommodation is available to the landlord, whereas the landlord has tried to establish that the tenant has his own other business accommodation/shops where he is carrying on the business of selling building materials which business he is carrying on in the disputed premises also. 4. The learned counsel for the defendant-appellant Mr. R.R. Nagori, Sr. Advocate therefore, vehemently submitted that the learned first appellate Court has grossly erred in reversing the judgment of the learned trial Court and passing a decree for eviction on the alleged ground of bona fide need of the landlord and the said judgment deserves to be set aside. He has submitted that the substantial questions of law arise in the present appeal for determination by this Court. 5. On the other hand, Mr. J.R. Patel, learned counsel appearing for the plaintiff-respondent, landlady opposed the submissions made by the learned counsel for the defendant-appellant and submitted that the learned trial Court had wrongly dismissed the suit of the plaintiff and it was legally absolutely permissible for the landlord to file suit for the bona fide need even if the said bona fide need is to arise in near future and it is not necessary that need must exist on the date of filing of the suit itself, but which may arise in near future and at the time of trial of the suit, the landlord establishes that such need does exist and in such circumstances, the Court can pass eviction decree. He relied upon the several judgments in support of his contention. He submitted that the plaintiff in her affidavit has stated that her husband expired on 19.6.1995 and her son Dr. He relied upon the several judgments in support of his contention. He submitted that the plaintiff in her affidavit has stated that her husband expired on 19.6.1995 and her son Dr. Har Govind Sankhala who was working in the office of Chief Medical and Health Officer, Jodhpur was to retire after about 1 and ½ years as per the affidavit dated 29.4.2004 and her grand-son Jitesh and grand-daughter Dipika both were doing computer training and diploma in computer course and would need the said shop for starting their computer business. Her grand-daughter Jyoti was doing diploma in Computer Science and Engineering and other grand-daughter Dipika would also assist them in same business and therefore, for settling her grand-children, she bonafidely needs these two shops in question given on rent to the defendant. In her cross-examination also, the said witness P.W.1 Harkanwar Devi has reiterated these averments and nothing in the cross-examination suggests that the defendant has been able to dislodge her from her averments about the bonafide need of the shop in question for the aforesaid business of grand-children. The learned counsel for the plaintiff Mr. J.R. Patel further urged that P.W.2 Tara Sankhla W/o Shri Hargovind Sankhla, mother of these three children and Jitesh Sankhla (son), Dipika Sankhla and Jyoti Sankhla (daughters), all of them have given their affidavits and two of them have been thoroughly cross-examined by the defendant's counsel. The learned counsel for the plaintiff-respondent Mr. J.R. Patel drew the attention of the Court towards all these affidavits and cross-examination and submitted that the bona fide need was absolutely established before the Court below, but still the learned trial Court rejected the suit for eviction and that is why, the first appellate Court has rightly decreed the same discussing and appreciating the same evidence again and finding that there was bona fide need to the landlord for the shops in question for setting up of said computer business of grand-children. 6. I have heard the learned counsels for the parties and perused the impugned judgments, evidence on record and the case laws cited at Bar. 7. The proposition that the landlord can seek eviction on the basis of anticipated bona fide need is well settled. Existence of bonafide need, need not be there on the date of filing suit itself, but if it is reasonably foreseeable in near future, then it would be sufficient to order eviction. 7. The proposition that the landlord can seek eviction on the basis of anticipated bona fide need is well settled. Existence of bonafide need, need not be there on the date of filing suit itself, but if it is reasonably foreseeable in near future, then it would be sufficient to order eviction. A reference may be made to English Law in this regard in the form of observations of Lush J., in Harcourt vs. Lowe reported in (1919) 35 TLR 255, in the context of construing Section 1(3) of the Increase of Rent and Mortgage Interest (War Restriction) Act, 1915. The learned Judge observed : "In my opinion the only time which it is necessary to consider in order to apply the provisions of the sub-section is the time when the Court is asked to make the order. It is quite immaterial to consider the time when the notice to quit was given. Even if the conditions do not exist at the time of the trial, the plaintiff is entitled to the judgment if he proves some other ground which may be deemed satisfactory to the Court." 8. Again in a slightly different context, Lord Justice Somewell in Burman vs. Woods reported in (1948) 1 KB 111 observed : "...The Court has to direct its mind to the date of proceedings and the evidence which it hears at the time and clearly that is the date on which its order is drawn up but it is plain that the relevant facts with regard to hardships at any time the occupier of the house was whose hardship is the relevant consideration on January 1 may die on January 2 or to take a longer period families may increase, there may be illnesses or houses may become more plinthful." 9. The Indian Courts have also held similarly that eviction of tenant can be sought for the bonafide need likely to arise in near future. If a party who is aware of the nature of proceedings files an application for eviction on the basis of bona fide requirement which may come into existence in future cannot be punished by refusing to entertain such petition on the ground that the need is not present when he filed the petition. If a party who is aware of the nature of proceedings files an application for eviction on the basis of bona fide requirement which may come into existence in future cannot be punished by refusing to entertain such petition on the ground that the need is not present when he filed the petition. Knowing fully well that a reasonable need may arise in near future and securing eviction decree even though such bonafide need is established may take reasonable time, the landlord can very well initiate the action well in time in view of bonafide need which he envisages, is likely to arise in near future. "A stitch in time saves nine" is a well known quotation and that means to prevent an injury one may take appropriate measures well in time. Likewise if the landlord is of the opinion that the bonafide need may arise in near future, he may initiate action for eviction of the tenant even prior to actually arising of such need which in course of time would be established before the Court of law and while the decree of eviction is passed, such bonafide need would be clearly before the Court of law. While the landlord cannot seek eviction on whims and desire only and need should be bonafide, at the same time, bonafide need not be absolute, compelling and dire need which if not fulfilled, the landlord should be seen to be suffering misery or irreparable loss. The bonafide need of the landlord lies somewhere in between and it is the landlord, who is the best judge to really assess such need and make his planning and apply to the Court for eviction if landlord is of the opinion that the suit premises would be required for the bonafide need of his or her own; or his or her children or grand-children in near future. 10. In the case of T. Sunil Kumar vs. M/s. S.G. Edulgri and Sons reported in AIR 1993 Andhra Pradesh 205, the learned Single Judge of Andhra Pradesh High Court held as under : "11. As the petitioners were studying at the time of filing of the petition and as one of them was a minor, it was contended that there was no bona fide requirement of the premises at the time when they filed the petition for eviction. As the petitioners were studying at the time of filing of the petition and as one of them was a minor, it was contended that there was no bona fide requirement of the premises at the time when they filed the petition for eviction. It is not necessary that the need for starting business should exist on the date of suit and the plaintiff can file a suit in respect of his requirement which is to be in near future vide Hemran Nima vs. Rajnarayan, 1980 MP RCJ 65. In another decision reported in 1974 RCR between Padma Rammurthy vs. M. Ragha, 1974 RCR (Hyd.) 197, it held that, it is true that the need for personal occupation must be present, but it cannot also be lost sight of the fact that disposal of rent cases do take time and, therefore, a petition filed in the year 1969 for requirement of premises in 1971 on the ground that the landlord would retire and thereafter he wishes to settle down, cannot be dismissed that the need is not present. 12. It is a matter of common knowledge that proceedings for eviction of a tenant cannot be finalized at least within a period of five years if there is contest between the parties. So, if a party who is aware of the nature of the proceedings filed an application for eviction on the basis of bona fide requirement which may come into existence in future cannot be punished by refusing to entertain such petition on the ground that the need is not present when he filed the petition. It should be remembered that this petition for eviction was filed in the year 1979 but still the same has not been finally disposed of. After all the petitioners were studying intermediate at the time when the petition was filed. So, it is not a course which could not be given up in the middle in the normal circumstances even if the respondent vacates the premises so as to say that there was no bona fide requirement. Further, it is clear from the evidence of P.Ws.1 and 2 that the petitioners have taken some other premises situated at Maredpalli on rent from P.W.2 for commencing business. This is a subsequent event which would go to show that the petitioners bona fide required the premises. Further, it is clear from the evidence of P.Ws.1 and 2 that the petitioners have taken some other premises situated at Maredpalli on rent from P.W.2 for commencing business. This is a subsequent event which would go to show that the petitioners bona fide required the premises. In appropriate cases, events subsequent to the filing of eviction suit can be taken notice of and can be duly considered by the Court provided the same is relevant in determining the question of bona fide requirement. 11. Similarly, M.P. High Court in the case of Madhukar vs. Ramesh reported in 1997(1) All India Rent Control Journal 258 was of the same view and relying upto the Madras High Court decision and Andhra Pradesh High Court decision cited above, M.P. High Court held as under : "16. In Petroleum Workers Union vs. A. Mohd. and Co. Madras, Venkatadri, J., while elaborating the reasonable requirement of landlord under Section 10 of the Madras Buildings (Lease and Rent Control) Act, 1960 observed : "....In such a case it is the duty of the Rent Controller to ascertain the reasonableness and the bona fides of the landlord as on the date of the hearing of the petition and not as on the date of the institution of the petition." 18. In A.P. Madhuwan vs. M.P. Ramachundran, V.R. Krishna Iyer J., (as his Lordship then was), while interpreting the concept of bona fide need of the landlord under the Kerala Buildings (Lease and Rent Control) Act of 1965 observed : "...However, respondents' counsel has argued that since on the date of institution of the petition, the landlord was a teacher in Perinthalamamma and not at Pathirippulla, he had set upon only a future and not a present need in his eviction petition and this was fatal. I must point that the concept of need cannot be narrowly understood or pedantically interpreted but applied in a pragmatic way. The petitioner has really been transferred to Pathirpala, even as he had alleged in this petition. He must have reasonably expected a transfer and it might well be said that a need had arisen then. It is not necessary that there should be a current urgent need. It is enough if it is reasonably likely to arise in the near future. He must have reasonably expected a transfer and it might well be said that a need had arisen then. It is not necessary that there should be a current urgent need. It is enough if it is reasonably likely to arise in the near future. Knowing that between the institution of the petition and ultimate order from the Apex Court years pass, it will be as good as repealing the provisions for eviction on the ground of bona fide need, if courts insist on landlords proving a present need as against the prospective but certain need. Else, when the need confronts him, the building will be years away from him. Proceedings in Court should not become tantalizing trick." Thus, even if the argument of the learned Counsel for the petitioner is accepted that the application was filed on day before the date of retirement, even then the petitioner is not entitled to any relief. However, in this case, as indicated above, the learned trial Court has recorded a positive finding that the application was presented on 1.8.1988. The argument of the learned counsel for the petitioner that the petition u/Sec. 23-J was not maintainable cannot be accepted." 12. Similarly, Calcutta High Court in the case of M/s. Sumit Chemicals vs. Gyan Nath Zutshi reported in 2001(1) RCJ 87 has held as under : "It appears that the plaintiff's anticipation that he would be transferred was correct and further more, he is going to retire in July, 2000. In that circumstances, his anticipation that he would be back to India is a good ground for reasonable requirement. Actually, hopelessness is not required in a suit of this nature. If the prospect of being without shelter is certain, the landlord can claim vacant possession of his house on the ground of reasonable requirement. It would not be expected that a person having a flat at Calcutta will run after tenanted accommodation elsewhere. The learned Advocate for the appellant submits that the Court should not take notice of the fact of his requirement, but the respondent cannot wait for his retirement and then will come to Calcutta and shall then file a suit for eviction. The learned Advocate for the appellant submits that the Court should not take notice of the fact of his requirement, but the respondent cannot wait for his retirement and then will come to Calcutta and shall then file a suit for eviction. Therefore, his anticipation being reasonable and he must make it clear that he will get the suit flat on his return to Calcutta, and so he can ask the appellant to quit and vacate otherwise on returning to Calcutta, the respondent will be stranded. The appellant has raised another point that the plaintiff-respondent had a rented house inasmuch as he had share in that property. To this, the respondent replied that the said property is a rented one and the accommodation there is small. Now, when the respondent has a personal property, he is within his right to claim vacant possession of the said property. So, the learned Court of first appeal has rightly overruled the contentions of this appellant. Upon a consideration of the facts and circumstances of the case and the materials on record, I agree that the findings arrived at by the Court of first appeal below and I do not find any substantial question of law in this appeal. In the result, the appeal fails. The appeal is accordingly dismissed with costs throughout. The appellant is directed to quit and vacate the suit premises within 31 July, 2000." 13. Now coming to the judgments relied upon by Mr. R.R. Nagori, Sr. Advocate for the defendant-tenant. 14. It may be stated that learned counsel for the defendant firstly relied upon the decision of Hon'ble Supreme Court in the case of Roshan Lal vs. Madan Lal reported in AIR 1975 SC 2130 in support of the contention that need should be bonafide existing on the date of filing of suit and only on that basis of pleadings, the issues for trial are decided. Therefore, need arising in future cannot be decided. 15 . Therefore, need arising in future cannot be decided. 15 . The learned counsel for the defendant-appellant further relied upon decision of Hon'ble Supreme Court in the case of Sarju Parshad Ramdeo Sahu vs. Jwaleshwari Pratap Narain Singh reported in AIR 1951 SC 120 in support of the contention that while the first appellate court reverses the findings of the trial Court, cogent and overriding reasons should be given for such reversal, which can reasonably justify the conclusion that the trial Court had arrived at the findings with the element of improbability and cryptic orders of the first appellate Court reversing the findings of the trial Court are not proper and in second appeal, substantial questions of law do arise in such cases. For this contention, the learned counsel for the defendant-appellant also relied upon the decision of Hon'ble Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari reported in 2001 AIR SCW 723. 16. For the proposition that necessity should be decided objectively and not subjectively, the learned counsel for the appellant relied upon the decision of Hon'ble Supreme Court in the case of Neta Ram vs. Jiwan Lal reported in AIR 1963 SC 499 and in the case of Precision Steel and Engineering Works vs. Prem Deva Niranjan Tayal reported in (1982) 3 SCC 270 . 17. In support of contention that Jitesh and Dipika for whose necessity the eviction was sought even though they had filed their affidavits but since they did not appear for cross-examination, adverse inference deserves to be drawn against them, reliance was placed on the case of Aminabai A.M. Usman vs. Bhjagwan Balmukund Oza reported in 1996(3) Scale (SP) SP-1 for their non appearance in the witness box. Further reliance was placed in this regard on the case of Gopak Krishnaji Ketkar vs. Mohd. Haji Latif reported in AIR 1968 SC 1413 and Patel Naranbhai Marghabhai vs. Deceased Dhulabhai Galbaghai reported in AIR 1992 SC 2009 and Habeeb Khan vs. Valasula Devi reported in AIR 1997 AP 53 . 18. Further reliance was placed in this regard on the case of Gopak Krishnaji Ketkar vs. Mohd. Haji Latif reported in AIR 1968 SC 1413 and Patel Naranbhai Marghabhai vs. Deceased Dhulabhai Galbaghai reported in AIR 1992 SC 2009 and Habeeb Khan vs. Valasula Devi reported in AIR 1997 AP 53 . 18. Strongly relying upon the judgment in the case of Deena Nath vs. Pooran Lal reported in (2001) 5 SCC 705 , the learned counsel for the appellant urged that statutory requirement of establishing bonafide requirement is that such need should be in prsenti and the landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. 19. Relying upon the decision of Hon'ble Supreme Court in the case of Raghunath G. Panhjale (dead) by L.Rs. vs. M/s. Chhagan Lal Sundarji and Co. reported in 2000(1) RCJ 161 (SC), the learned counsel for the appellant submitted that a reasonable and bonafide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in presenti or within reasonable proximity in the future. 20. Summing up therefore, the learned counsel for the appellant-defendant submitted that in the present case no such immediate need in presenti was established by the plaintiff nor probable need to arise in future was in proximity of time of filing of the suit. He, therefore, prayed that the first Appellate Court has grossly erred in allowing the appeal of the plaintiff and setting aside the trial Court's judgment dismissing the suit. 21. It may be stated that there is no quarrel on the proposition that bonafide need has to be reasonable and objectively considered and established by the landlord, but at the same time need to exist at the time f filing of the suit is not a straight jacket formula. Such need may arise in reasonably near future as already observed above. Such need may arise in reasonably near future as already observed above. The reasonable period after which such need is likely to arise in view of existing set of facts and circumstances like education of children in a particular line as in the present case and the plans of parents to settle them in particular kind of business for which suit shops will be required, is the fact to be established by the landlord, but no fixed period can be set for this purpose. It will depend upon the facts and circumstances of each case. The period which the landlord can reasonably assess that would be taken in the process of litigation upon which only he can secure vacant possession of the suit premises, can best be said to be period if such need is to arise around after such period. The planning for eviction by filing of suit envisaging a need which may crystallize after about 4 to 5 years cannot be said to be whimsical or far fetched. This much time is normally taken in securing an eviction decree and its execution. In the present case itself, the suit of 2003 is being decided by this Court in 2011 after 8 years. The fact to be established for that is only that the persons for whose need the suit premises are required, are undertaking that kind of education and qualification which upon its completion would help them in establishing the business for which need, the eviction is claimed. In other words the seeds of such future need should exist now, even though actual need may crystallize after a reasonably expected and estimated period of time. It may be pointed out here that Section 15 of the Rajasthan Rent Control Act provides a safeguard to the tenant that in case suit premises are not used for avowed purpose within the stipulated time framework and for stipulated time frame after eviction, then the defendant-tenant has a right of repossession of the suit premises. Therefore, apprehension about such need not crystallizing at all or that such eventuality can happen only in future, therefore, the tenant can claim that since such eventuality has not arisen at the time of filing of the suit, it does not amount to bonafide need of the landlord to seek eviction, is not well founded. Therefore, apprehension about such need not crystallizing at all or that such eventuality can happen only in future, therefore, the tenant can claim that since such eventuality has not arisen at the time of filing of the suit, it does not amount to bonafide need of the landlord to seek eviction, is not well founded. This Court finds that judgments relied upon by the learned counsel for the landlord are more appropriately applicable to the facts of the present case, rather than the other set of case laws relied upon by Mr. Nagori. 22. That as far as appreciation of evidence in the present case is concerned, this Court finds that the first appellate Court has properly and in detail reappreciated the evidence and on the basis of evidence of plaintiff Smt. Har Kanwar herself, her daughter-in-law Smt. Tara Sankhla and Ms. Jyoti, besides affidavits filed for examination in chief of Dr. Har Govind Sankhla, Jitesh and Dipika, last three of them were not available for cross-examination, but first three despite cross-examination, their evidence has remained unshaken and they have appropriately and duly established the need for setting up of computer business for the grand-children Jitesh and Dipika. Even if, in evidence it has come that said Dipika at the time of recording of evidence was undertaking further dental course, it does not dislodge or falsify the pleadings that the shops were required for setting up of computer business. As far as grand-son Jitesh is concerned, he was undertaking the Engineering Course and even Dipika had done diploma course in computer, therefore, her doing dental course does not demolish the case of the plaintiff. 23. The non-appearance of Dr. Har Govind Sankhla, does not support the defendant in any manner. The facts that he was in Government job nd was to retire after 2 years is sufficient proof looking to his age and there is no inconsistency in the statement of mother Smt. Har Kanwar and his wife Smt. Tara Sankhla. It may also be noticed that retirement age of Government service in the State of Rajasthan has been increased from 58 to 60 years and therefore, even this need could be added to the need of the grand-children. 24. It may also be noticed that retirement age of Government service in the State of Rajasthan has been increased from 58 to 60 years and therefore, even this need could be added to the need of the grand-children. 24. As far as application under Order 41 Rule 27 C.P.C. is concerned, in view of averments made therein and reply filed thereto by the plaintiff, said application is allowed and the documents placed along with said application are taken on record. That would not change position of the decree passed by the first appellate Court because the alternative accommodation is available to the landlord has been shown to be not suitable for setting up of computer business. On the other hand from the documents placed on record, including the photo-graphs, the defendant-tenant himself appears to be in possession of other accommodation and running business therein. Therefore the decree could not have been denied to the plaintiff on the ground of availability of alternative accommodation to her. 25. Accordingly this Court is of the firm opinion that no substantial question of law arises in the present second appeal and findings of bonafide need of the landlord for setting up of business of grand-children is duly established and on objective consideration of such need, the first appellate Court has rightly held that such bonafide need to arise in near future was established and the trial Court was not justified in refusing eviction decree. Therefore, the eviction decree is upheld and the present second appeal is liable to be dismissed and the same is accordingly dismissed. 26. The appellant tenant shall hand over the peaceful and vacant possession of the suit premises to the plaintiff-respondent within a period of six months from today and shall pay mesne profit @ Rs. 5000/- per month from August, 2011. The tenant shall not sublet, assign or part with the possession in favour of any third party. It is made clear that in a case, the appellant-tenant does not handover the peaceful and vacant possession within a period of six months from today or does not pay the mesne profit as directed by this Court and does not comply with the aforesaid directions in any manner, then it will be open for the respondent landlord to get the decree passed in his favour executed in normal course and to initiate contempt proceedings in this Court. No order as to costs.