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2012 DIGILAW 1961 (RAJ)

Surendra Kumar Jaggi v. Ahmed Farooq

2012-09-14

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—A quick review petition has been filed by the defendant tenant against the dismissal of his second appeal No. 1/2011 vide judgment & order dated 23.8.2012 by this Court dismissing the second appeal against the concurrent decree of eviction on the ground of bonafide and reasonable necessity of the respondent-plaintiff-landlord finding that no substantial question of law arises in the present second appeal of the defendant-tenant. 2. The said judgment of 23 pages dismissing the second appeal at the admission stage, finding that no substantial question of law arises in the appeal is sought to be reviewed on the following contentions raised by Mr. M.C. Bhoot, learned Senior Advocate for the review petitioner-tenant. (i) That without framing substantial question of law, which according to him did arise in the matter, this Court could not have held, in view of the decision of Hon'ble Supreme Court in Hasmat Rai & Anr. vs. Raghunath Prasad - (1981) 3 SCC 103 , that where eviction is sought on the ground of personal need of the landlord, the said requirement must continue to exist till final determination of the case, and, therefore, the judgment deserves to be reviewed. (ii) That the decision of coordinate bench in the case of Rakesh Gupta vs. Ahmed Farooq - 1992(2) RLW 398 dealt with Section 13 of the Act which contained a non obstante clause and, therefore, observations made therein could not have been held to be an obiter in conflict with the decision of Hon'ble Supreme Court in the case of Gaya Prasad vs. Pradeep Srivastava- (2001) 2 SCC 604 in which the Supreme Court has held that the bonafide need of the landlord has to be seen on the date of filing of the eviction suit. (iii) That in second appeal against the eviction decree since the appeal is against the decree only, it could have been either set aside, affirmed or modified and, therefore, in para 19 of the judgment, the additional directions of paying mesne profits, giving of undertaking by tenant within one month to comply with the directions of handing over vacant possession, expeditious execution and liberty to invoke contempt jurisdiction of this court could not have been given. (iv) That in view of admission of the plaintiff landlord's son, Abdul Tahir, for whose need the eviction was sought, that he was Income Tax payer and, therefore, was employed, the findings of the courts below that bonafide need for him existed were perverse and it gave rise to substantial question of law, which has not been framed by this Court in the judgment under review. 3. Having heard the learned counsel at length for about one hour, this Court is of the opinion that the review petition deserves to be dismissed. 4. It is well settled that mere novelty of argument, repetition of argument and expansion of the same arguments raised, cannot be a ground of review. Unless there is any apparent error on the face of the judgment under review, such a review cannot be sought merely because the judgment is given against the review petitioner. Obviously the remedy lies else where in the form of appeal against the said judgment. 5. The present review petition is nothing but a desperate and failing effort of the tenant to retain the possession of the suit premises in a suit for eviction filed way back on 11.1.1989, 23 years back, which after repeated interlocutory orders by the two courts below as noticed in para 2 of the judgment dt.23.8.2012 and after hearing the lengthy arguments for final dispo-sal at the admission stage itself, when this Court has clearly found that no substantial question of law arises in the present second appeal of the tenant from the findings of fact about bonafide & reasonable necessity of the landlord for his son of the suit shop, the present review petition is nothing but a futile effort of the defendant tenant to pester the court with repetitive arguments. 6. All the arguments raised by the learned counsel for the review petition have already been dealt with in detail and noticing all the relevant case laws by a detailed discussion, this Court delineating the limited scope of second appeal under Section 100 CPC in the light of the decisions of the Hon'ble Supreme Court in the case of Narayan Rajendran & Anr. vs. Lekshmy Sarojini & Ors. - 2009 (2) WLC 51 and Gurdev Kaur & Ors. vs. Kaki & Ors. vs. Lekshmy Sarojini & Ors. - 2009 (2) WLC 51 and Gurdev Kaur & Ors. vs. Kaki & Ors. - 2006 (2) WLC (SC) 326, discussing evidence also, though reappreciation of evidence is not permissible under Section 100 CPC, found that no substantial question of law arises in the present second appeal of the defendant-tenant on the findings of the two courts below about the personal and bonafide need of the plaintiff landlord for his son in respect of the suit premises, a shop situated at the Station Road, Jodhpur, and, therefore, this court is of the firm opinion that present review petition is nothing but an effort on the part of the defendant-tenant just to keep the lis alive somehow. 7. The contention of the learned counsel that in view of the decision of Supreme Court in Hasmat Rai (supra), the bonafide need of the landlord/ his son cannot be said to have existed with his employment is of no avail since discussing the various Supreme Court decisions, this Court in para 12 of the judgment under review clearly held that even the previous judgment of this Court while remanding the case back to the appellate court and the obiter in this regard of learned Single Judge in the case of Rakesh Gupta (supra) could not be said to be a good law in view of the decision of Supreme court in the case of Gaya Prasad vs. Pradeep Srivastava - (2001) 2 SCC 604 & Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal & Ors. - (2005) 8 SCC 252 . 8. The contention of the learned counsel for the review petitioner, that decision of coordinate bench of this Court in Rakesh Gupta's case (supra) was binding on this Court and it was not an obiter which could be held to be not a good law but without framing this question itself which was argued before the Court, therefore, the judgment requires a review, has no merit. The decision in the case of Rakesh Gupta (supra) and later decisions of Supreme Court in the cases of Gaya Prasad (supra) & Sait Nagjee Purushotham (supra) were admittedly cited before this Court and while dealing with these judgments. The decision in the case of Rakesh Gupta (supra) and later decisions of Supreme Court in the cases of Gaya Prasad (supra) & Sait Nagjee Purushotham (supra) were admittedly cited before this Court and while dealing with these judgments. if this Court came to the conclusion in para 12 of the judgment that the observations of the learned Single Judge in Rakesh Gupta's case (supra) was merely an obiter while deciding the revision petition against an interlocutory order and remanding the case back to the appellate court below and that obiter too was in conflict with the Supreme Court decisions, is not a substantial question of law which was first required to be framed by this Court in the present second appeal, as contended by the learned for the defendant-tenant & then answered like this. Therefore, same does not furnish a ground for review of the judgment dated 23.8.2012. 9. The decision of Supreme Court in the case of Hasmat Rai & Anr. vs. Raghunath Prasad (supra) cited by the learned counsel has already been dealt with by Hon'ble Supreme Court in Gaya Prasad's case (supra) in para 14 in the following terms:- "14. The next three-Judge Bench of this Court, which approved and followed the above decision, in Hasmat Rai vs. Raghunath Prasad ( 1981 (3) SCC 103 ) has taken care to emphasise that the subsequent events should have wholly satisfied the requirement of the party who petitioners for eviction on the ground of personal requirement. The relevant passage is extracted below: Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlords requirements is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events. 10. If in the meantime events have cropped up which would show that the landlords requirements is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events. 10. The proposition that bonafide need should continue to exist till final determination of the case was negatived and answered in Gaya Prasad's case (supra) in para 15 and 16, which are quoted below for ready reference:- "15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused. 16. Of course a two-Judge Bench (K. Ramaswamy and D.P. Wadhwa, JJ) pointed out in another case Ansuyaben Kantilal Bhatt vs. Rashiklal Manilal Shah (1997) 5 SCC 457 ) that the pendency of a lis for a record period of thirty one years has transformed a middle aged landlord to advanced stage of gerenry (sic geriatry) and at that stage he could not start a new business venture. After lamenting over the system which caused a whopping delay of thirty-one years the Bench made two directions. The first was that the son of the landlord who by that time had four and a half years more to go for reaching the superannuation age could consider starting the business in the tenanted premises after retirement. The second was that in the meanwhile the rent for the building would stand enhanced from Rs.101/- to Rs.3500/- per month." 11. Even in para 18 of the said judgment, the Hon'ble Supreme Court made a suggestion to evolve some concrete scheme by creating a separate cell in High Courts for hearing of old matters lying at the bottom of the pending cases so that such delays can be avoided. 12. Even in para 18 of the said judgment, the Hon'ble Supreme Court made a suggestion to evolve some concrete scheme by creating a separate cell in High Courts for hearing of old matters lying at the bottom of the pending cases so that such delays can be avoided. 12. In view of this, if in a suit filed in 1989 of which the present appeal was filed in the year 2011 was sought to be disposed of at the admission stage, it should have hardly caused any grievance to the defendant-tenant, merely because the Court did not agree with him and found that no substantial question of law arises in the second appeal filed by the defendant-tenant. 13. Moreover, the decision of Hon'ble Supreme Court in Hasmat Rai's case (supra), strongly relied upon by the learned counsel for the review petitioner, has been distinguished in the following two later decisions of Hon'ble Supreme Court, which appear to have escaped the attention of learned counsel. In Speedline Agencies vs. T. Stanes & Co. Ltd. (2010) 6 SCC 257 , the Hon'ble Supreme Court held as under:- "Particularly in matters governed by the Rent Control Acts to take into account subsequent events would inflict hardship on the landlords, in a case like the present one. It would inflict great injustice in many cases if subsequent events are taken into account when long years have passed unless there are very compelling circumstances to take into account the subsequent events. Delay in the disposal of the revision petition should not prejudice the vested rights of the landlord under the decree of the Rent Controller confirmed by the appellate authority. In such circumstances, the well-known principle that "an act of the court shall prejudice no man" shall come into operation. When a company stands dissolved (with or without winding up) due to amalgamation, its rights under the decree for eviction devolve on the amalgamated company. The heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant. As in the present case, the company which is the landlord merges with another company, there is no forfeiture of any right of the landlord under the provisions of the T.N. Buildings (Lease and Rent Control) Act, 1960 or under the Transfer of Property Act. As in the present case, the company which is the landlord merges with another company, there is no forfeiture of any right of the landlord under the provisions of the T.N. Buildings (Lease and Rent Control) Act, 1960 or under the Transfer of Property Act. Hasmat Rai vs. Raghunath Prasad, (1981) 3 SCC; Saraswati Industrial Syndicate Ltd. vs. CIT, 1990 Supp SCC 675; General Radio and Appliances Co. Ltd. vs. M.A. Khader, (1986) 2 SCC 656 ; Hindustan Lever vs. State of Maharastra, (2004) 9 SCC 438 ; Singer India Ltd. vs. Chander Mohan Chadha, (2004) 7 SCC 1 , distinguished. In Babulal & Another vs. Shanker Lal & Others (2008) 17 SCC 638, the Hon'ble Apex Court again distinguishing the earlier decision in Hasmat Rai vs. Raghunath Prasad, held as under:- "6. A bare perusal of the substantial question of law as framed by the High Court, which is extracted above, shows that it is not even a question of law, much less a substantial question of law. Under Section 12(1)(f) of the Act what are the requirements, are stated in the impugned judgment itself. As found in the pleadings, the appellants did plead that the suit premises was bonafide required for the purpose of starting business. It is true that what kind or nature of business the appellants wanted to start is not pleaded. It is not in dispute that in the evidence led, the case is made out by the appellants as to the nature of the business they wanted to start in the premises. The High Court did not say that there is no evidence in this regard but it found fault that there is no pleading specifically about the nature of the business. The learned counsel for the first respondent relied upon a decision of this Court in Hasmat Rai vs. Raghunath Prasad in support of his submission that the plaint should have contained a specific averment as to the nature of the business. It is not possible for us to find from the judgment that under Section 12(1)(f) of the Act, even the nature or a particular type of business should be pleaded. The provision itself speaks of bonafide requirement of premises for business. It is not possible for us to find from the judgment that under Section 12(1)(f) of the Act, even the nature or a particular type of business should be pleaded. The provision itself speaks of bonafide requirement of premises for business. Assuming that the finding of the first appellate court on the basis of the evidence was erroneous, which is not a fact in this case, that itself was not a ground for the High Court to interfere with the judgment of the first appellate court, particularly in the absence of any substantial question of law that arose for consideration. The substantial question of law so framed by the High Court, as already stated above, was not at all a substantial question of law." 14. The other contention of learned counsel for the defendant-tenant that the Court should not have issued the directions in para 19 of the judgment like giving the period of six months for handing over the peaceful possession of the suit property to the landlord and to pay further mesne profits at the rate of Rs.2000/- p.m. & also file an undertaking and failing to do so would give liberty to the landlord to invoke contempt jurisdiction, besides seeking expeditious execution of decree, is hardly a ground to seek review of the order dated 23.8.2012. Not only the expeditious execution of the decree is the right of the plaintiff but equally the contempt jurisdiction is so available to him. The Hon'ble Supreme Court recently in Atma Ram Builders Private Ltd. vs. A.K. Tuli & Ors. (2011) 6 SCC 385 came down heavily on the tenant, who did not handover the possession despite decree having become final and also upon even the learned Addl. District Judge, who acting as an Executing Court, stayed the warrant of possession after decree becoming final, and invoking the contempt jurisdiction, the Hon'ble Apex Court got delivered the vacant possession of the suit premises on the very same day of hearing by observing in para 3, 4, 7 & 12 as under:- "3. From a perusal of the above order, it is evident that the tenant had to vacate the premises in question within six months' from the date of dismissal of the special leave petitions and to furnish usual undertaking within six weeks from that date. From a perusal of the above order, it is evident that the tenant had to vacate the premises in question within six months' from the date of dismissal of the special leave petitions and to furnish usual undertaking within six weeks from that date. It is extremely unfortunate that neither an undertaking was furnished nor did the tenant vacate the premises in question on the expiry of six months, i.e., 6th April, 2011. Instead, frivolous objections were filed in the execution proceedings, and our order was flouted. Hence, these contempt petitions have been filed by the landlord. 4. It is deeply regrettable that in our country often litigations between the landlord and tenant are fought up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court. The time has came that this malpractice must now be stopped effectively. 7. Today, when the case was taken up hearing at 11.25 a.m. the Senior Counsel appeared on behalf of the alleged sub-tenants and stated that their clients will vacate the premises. Hence, we directed that possession be handed over to the landlord by 12.30 p.m. today and we directed this case be put up again before us at 12.30 p.m. Today. 12. We are informed at 12.30 p.m. today that the possession of the property in dispute has now been delivered to the landlord. In view of this, the contempt petition against the contemnors is discharged." 15. Again in Ram Prakash Sharma vs. Bulbul Birla (2011) 6 SCC 449 , the Hon'ble Supreme Court even directed that after the stipulated time, if the vacant possession is not handed over to landlord, a general direction was given that when the tenant's petition/appeal is dismissed and he is given time to vacate then on expiry of that time, he will be evicted by police force, if he does not vacate of his own. The relevant para 3 is quoted below for ready reference:- "3. The relevant para 3 is quoted below for ready reference:- "3. We further make it clear that when this Court allows the petition/appeal of the landlord or dismisses the petition/appeal of the tenant and grants some time to vacate the premises in question and if the tenant does not vacate within the time granted, the tenant shall be evicted by police force. This is a general direction we are passing because we are coming across several cases where the tenants are not vacating the premises in question despite granting time by this Court or despite furnishing an undertaking to this Court with a result that the landlord has to initiate contempt proceedings or any other proceedings. Hence, we give a general direction that when the tenant's petition/appeal is dismissed and he is given time to vacate then on the expiry of that time, he will b evicted by police force if he does not vacate of his own." Therefore, the aforesaid liberty given to the plaintiff landlord in para 19 of the judgment under review cannot be said to be contrary to law and, therefore, does not call for any review. 16. The period of six months has already been granted to the defendant-tenant while dismissing the aforesaid second appeal of tenant, subject to payment of mesne profits, which directions in the opinion of this Court, were perfectly just & legal and to this extent, it only amounts to modification of the decree of courts below by this Court, therefore, no exception to the same can be taken. 17. Accordingly, the present review petition filed by defendant-tenant being devoid of merit deserves to be dismissed and same is hereby dismissed. Copy of this order be sent to opposite side forthwith.