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2012 DIGILAW 2001 (RAJ)

Rajesh Kumar v. Shashi Agarwal

2012-09-21

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—This petition has been filed against the order dated 17th May, 2012 whereby the Appellant Rent Tribunal, Alwar has upheld the order dated 13th October, 2008 passed by the Rent Tribunal, Alwar, which allowed the eviction petition under Section 9 of the Rajasthan Rent Control Act, 2001 ('the Act of 2001' for brevity) filed by the respondents-landlord Smt. Shashi Agarwal and Smt. Priti Agarwal and issued a certificate of possession under Section 15(7) of the Act of 2001 against the petitioners-tenants Rajesh Kumar and Surendra Kumar. 2. Heard the learned counsel for the petitioners-tenants and respondents-landlords caveator as also perused the impugend orders. 3. The Rent Tribunal and the Appellate Rent Tribunal have come to a finding that the respondents-landlords had been able to prove their bona fide and reasonable need in respect of tenanted shop in issue for use of their husbands Inder Lal and Pawan Kumar Agarwal, as Inderlal was engaged in business from a tenanted shop and Pawan Kumar was unemployed. The courts below have also come to a finding of fact that the respondents-landlords were also able to make out a case of sub-letting under Section 9(e) of the Act of 2001 inasmuch as while the tenancy was entered into by the erstwhile landlord Vimal Chand in favour of Gyan Chand, the petitioners herein as partners of firm Ajay Kumar Manoj Kumar were in unauthorized possession. The Tribunals have also concurrently held that the landlords were also entitled to eviction of the petitioners herein under Section 9(f) of the Act of 2001 for reason of denial of the landlords' title. 4. Mr. N.K. Goyal counsel appearing for the petitioner has submitted that the ground based on Section 9(e) of the Act of 2001 could not have been agitated by the respondents-landlords Smt. Shashi Agarwal and Smt. Priti Agarwal in view of the fact that Vimal Chand the erstwhile owner of the premises had earlier filed a suit for eviction against Gyan Chand as also the petitioners Rajesh Kumar and Surendra Kumar inter alia on the ground of sub-letting but withdrawn it on 3rd July, 2003 as evident from the order passed by the Additional Civil Judge (Jr. Division) No.1, Alwar. Division) No.1, Alwar. It is submitted that suit having been withdrawn without liberty to file afresh, in terms of the Order 23 Rule 1(4) of Code of Civil Procedure, 1908, a fresh suit by the successor of the original landlord i.e. the respondent landlords Smt. Shashi Agarwal and Priti Agarwal on the very same ground of sub-letting could not have been laid. Counsel for the petitioner has submitted that only recurring cause of action such as bona fide and reasonable necessity, default, etc. can supply a fresh cause of action to facilitate filing of a fresh suit even where the earlier one had failed. It is submitted that the Hon'ble Supreme Court in the case of N.R. Narayan Swamy vs. B. Francis Jagan reported in AIR 2001 Supreme Court 2469 has held so. The argument is that the ground of sub-letting could not have been allowed to be agitated in the present case by the Tribunal at the instance of the respondents-landlords in view of earlier withdrawal of the suit by the erstwhile landlord. It is submitted that eviction and issue of a certificate of possession on ground of sub-letting cannot stick and is thus, liable to be set aside. Counsel for the petitioner has further submitted that even the finding of the Rent Tribunal as also the Appellate Rent Tribunal on the ground of bona fide and reasonable need of the respondents-landlords for the user of the shop in issue for their respective husbands was a perverse finding inasmuch as it was not established from the evidence on record that the need was indeed bona fide and reasonable as the husband of the respondent-landlord Smt. Shashi Agarwal was at the relevant time admittedly doing business out of a rented shop and Pawan Kumar the husband of Priti Agarwal had income generated from the business of Inder lal. It is further submitted that no finding on the ground of denial of title by the petitioners herein as non-applicants before the Rent Tribunal could have been arrived at because no such issue was framed. 5. Mr. G.K. Garg Senior Counsel with Mr. It is further submitted that no finding on the ground of denial of title by the petitioners herein as non-applicants before the Rent Tribunal could have been arrived at because no such issue was framed. 5. Mr. G.K. Garg Senior Counsel with Mr. Banwari Sharma appearing for the respondent landlords would submit that in view of the findings of fact on the question of bona fide and reasonable necessity arrived at by the Rent Tribunal as also the Appellate Rent Tribunal in the context proved need of the respondents-landlords for the business of their respective husbands, this Court should not interfere therewith in the exercise of its powers under Article 226/227 of the Constitution of India. It is submitted that there is no perversity in the finding of the learned Tribunals below on the aforesaid question inasmuch as the findings are rooted on the evidence before the learned Tribunal with regard to the fact of Inder lal, the husband of Smt. Shashi Agarwal doing business out of a rented shop in respect of which his landlord was pursuing an eviction petition and Pawan Kumar, the husband of Priti Agarwal being unemployed, irrespective of having an income from other sources. Counsel submits that income and unemployment do not necessarily overlap as an unemployed person can have an income while an employed person (such as in business) may not have any income at all in situations where the business does not generate profits but instead runs in a loss. Counsel has submitted that it is not an unnatural need of the owner to need his/her property for use of family members as it allows them as the de facto owners of the premises to modify them for their requirement of business as warranted from time to time, which facility could not be available to a tenant in view of limitations of Tenancy laws including prohibitions against material alterations. Counsel has submitted that the mere fact that the respondents-landlords had purchased tenanted premises does not detract from setting up a ground of bona fide and reasonable necessity in respect thereof. Counsel has submitted that the mere fact that the respondents-landlords had purchased tenanted premises does not detract from setting up a ground of bona fide and reasonable necessity in respect thereof. It is submitted that in the facts of the present case, the tenanted shop from where Inder lal husband of the respondent-landlord Smt. Shashi Agarwal was carrying out business was in the vicinity of the shop in dispute, in the same market area and consequently, the said shop was eminently suitable for his business more so in view of the fact that Inder lal at the relevant time was himself facing a petition for eviction laid by his landlord one Pannalal. Counsel submits that it has been held by the Hon'ble Supreme Court in the case of Sait Nagjee Purushotham and Co. Ltd. vs. Vimalabai Prabhulal and Others reported in 2005 8 SCC 252 that it is always the prerogative of the landlord to decide and to chose the nature and place of the business and the suitability of tenanted premises sought to be got vacated for that purpose. It is submitted that consequently, the Rent Tribunal correctly came to a finding that the requisite evidence for making out a ground for issuing a certificate of possession for reasons of bona fide and reasonable necessity of the respondent landlords under Section 9(i) of the Act of 2001 had been made out. Counsel submits that this finding of fact has been confirmed by the Appellate Rent Tribunal, which is the final statutory authority on findings of fact. 6. Counsel has further submitted that it is not for this Court in exercise his jurisdiction under Article 226 and 227 of the Constitution of India to allow re-agitation of questions of facts determined by the Rent Tribunal and Appellate Tribunal on the re-appreciation of evidence as if this Court were exercising appellate jurisdiction and not supervisory jurisdiction. It has been submitted that the scope and parameters of the power and scope of Article 227 of the Constitution of India have been well settled. It was submitted that in Management of Madurantakam Coop. Sugar Mills Ltd. vs. S. Viswanathan reported in (2005) 3 SCC 197 the Hon'ble Spreme Court has held that where the findings of fact were not perverse or otherwise based on no evidence or without jurisdiction, no interference by a writ Court with such findings was called for. It was submitted that in Management of Madurantakam Coop. Sugar Mills Ltd. vs. S. Viswanathan reported in (2005) 3 SCC 197 the Hon'ble Spreme Court has held that where the findings of fact were not perverse or otherwise based on no evidence or without jurisdiction, no interference by a writ Court with such findings was called for. Further in the case of Shamshad Ahmed and Others vs. Tilakraj Bajaj (deceased) through Lrs and Others, reported in (2008) 9 SCC 1 , the Hon'ble Supreme Court has held that even though the powers under Article 226 and 227 of the Constitution are extensive yet a writ Court cannot review, re-appreciate or reweigh the evidence upon which the determination of facts has been based by the lower court / tribunal and that the writ Court cannot definitely substitute his own decision for that of the courts below. Further reliance was placed on Mahavir Singh vs. Khiyali Ram, reported in (2009) 3 SCC 439 , wherein the Hon'ble Supreme Court has held that a writ Court should not interfere with the findings of fact by the statutory authority and judicial review is only confined to determine as to whether the procedure settled by law has been complied with by the statutory authorities; whether the principles of natural justice have been complied with; whether the Court/tribunal/authority below has taken into consideration relevant factors in the course of adjudication; whether the authority/Court/tribunal has taken into consideration or was swayed by irrelevant factors and whether extraneous consideration vitiated the findings of facts and conclusions on law by the Court/tribunal below. It is submitted that none of the grounds obtain in the present case. 7. Another aspect of the matter argued upon by the counsel for the respondents is that apart from ground of bona fide and reasonable necessity, the Rent Tribunal has found on the basis of defence plea taken by the petitioners before the Rent Tribunal that it was their specific case that the sale deed under which the respondents-landlords claimed to have come into ownership and thus, have title over the shop in question was a sham transaction – confirming no title at all - and as such, the eviction petition was liable to be dismissed. Consequently, the Tribunal held that setting up a case questioning the title of the landlord tantamounted to a denial of title and on this ground too, the respondents-landlords were liable to succeed and granted a certificate of possession under Section 9(f) of the Act of 2001. The Appellate Rent Tribunal also negatived the case of the petitioners on this ground in the appeal laid by them. 8. Heard the learned counsel for the parties and perused the petition and impugned orders. 9. I find force in the argument of the counsel for the petitioners that the Tribunals below ought not to have allowed the respondents landlords to agitate the ground of sub-letting in their eviction petition in view of Order 23 Rule 1 (4) of CPC. Order 23 Rule 1(4) of CPC provides that where the plaintiff withdraws from a suit or part of claim without permission and liberty to agitate such suit or part of claim he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. It is not in dispute that the predecessor in interest of the respondents-landlords, one Vimal Chand had laid a suit for eviction against Gyan Chand impleading therein amongst others the petitioners herein as defendants inter alia on ground of sub-letting. The said suit was admittedly abandoned/withdrawn by Gyan Chand on 30.07.2004 before the Additional Civil Judge (Jr. Division)and Judicial Magistrate, No.1, Alwar, without liberty to file afresh. In my considered opinion, the respondents-landlords as the successor in interest having purchased the disputed property from Gyan Chand were under a legal disability detailed in in Order 23 Rule 1(4) of CPC from re-agitating an eviction petition on the ground of sub-letting against the petitioners and others. Mr. G.K. Garg Senior Counsel appearing for the respondents-landlords does not fairly contest this legal position. The order of the Rent Tribunal as upheld by the Appellate Rent Tribunal on this limited count is thus, liable to be set aside. 10. However, I am of the considered view that the concurrent findings of the Rent Tribunal and the Appellate Rent Tribunal that the respondents-landlords had been able to prove their bona fide and reasonable need are neither perverse nor vitiated by any mis-direction in law and therefore, brook no interference in the exercise of powers under Article 227 of the Constitution of India by this Court. Mere purchase of the tenanted shop in issue by the respondents-landlords from Vimal Chand during the pre-existing tenancy of Gyan Chand cannot in law by itself detract from the claim of bona fide and reasonable need of the said shop by the landlords for their disclosed need of the business requirement of their respective husbands. For support of this preposition, a reference can be made in the judgment of the Hon'ble Supreme Court in the case of Sheikh Jehangir vs. Smt. S. Kaushilyabai and Others reported in 1987 Supp SCC 630. 11. To my mind, there was nothing inherently impermissible in the respondents-landlords purchasing a shop with a pre-existing tenant and thereafter seeking its vacation by an eviction petition inter alia on the ground of bona fide and reasonable need. Now to the evidence on record before the Tribunal in this regard. It was on record before the Tribunal in evidence that Inder lal the husband of Smt. Shashi Agarwal was doing business out of a rented shop situate in the vicinity of the shop in dispute in the present petition. It is not in dispute that Inder lal as tenant was facing an eviction proceedings laid by his landlord. The need and suitability of the shop presently in question for Inder lal's business alongwith his brother Pawan Kumar cannot thus, be questioned. It is also on record that Pawan was unemployed albeit he appears to have had some income. Inder lal and Pawan Kumar were the husbands of the respondents-landlords there was indeed a bona fide and reasonable need for the tenant shop in the ownership of their respective wives. The Tribunals below in this state of evidence before them committed no perversity or illegality in finding the ground based on bona fide and reasonable need proved. The issue of recovery certificate for the shop in question against the petitioners cannot thus be impugned more so in a petition under Article 227 of the Constitution of India. 12. Further, in my considered opinion, the denial of title can be construed from the pleadings of the tenant and non-framing of issues with regard thereto is of little consequence. The issue of recovery certificate for the shop in question against the petitioners cannot thus be impugned more so in a petition under Article 227 of the Constitution of India. 12. Further, in my considered opinion, the denial of title can be construed from the pleadings of the tenant and non-framing of issues with regard thereto is of little consequence. Reference in this regard can be had to the judgment of the Hon'ble Supreme Court in the case of Sayeda Akhtar vs. Abdul Ahad reported in AIR 2003 Supreme Court 2985 wherein the Hon'ble Supreme Court has held that even where no specific issue about nuisance was framed in an eviction suit, but when parties were aware of the issues which arose from the pleadings and led evidence thereon, the court had the jurisdiction to address the question one way or the other and where such a question was determined on the basis of pleadings even in the absence of framing of formal issue and decided lawfully no interference by the superior courts was called for. A similar view has been expressed by the Hon'ble Supreme Court in the case of Nedunuri Kameswaramma vs. Sampati Subba Rao reported in AIR 1963 Supreme Court 884, holding that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue framed was fatal to their case or that there was a mis-trial which vitiated the proceedings. 13. Apart from the aforesaid judgments of the Hon'ble Supreme Court, the Rajasthan Rent Control Act, 2001 does not provide for any specific procedure and has been enacted to facilitate summary and expeditious determination of landlord-tenant dispute including those relating to eviction. Section 15(6) of the Act of 2001 provides that the Rent Tribunal during the course of hearing a matter under the Act of 2001 may hold such summary enquiry as it may deem necessary and decide the petition. Section 21(3) of the Act of 2001 provides that the Rent Tribunal inter alia shall not be bound by procedures laid down in the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice, albeit, subject to other provisions of the Act of 2001 and the Rules therein. Section 21(3) of the Act of 2001 provides that the Rent Tribunal inter alia shall not be bound by procedures laid down in the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice, albeit, subject to other provisions of the Act of 2001 and the Rules therein. Thus, it is evident that petitions under the Act of 2001 are to be disposed on the basis of a summary enquiry and it is not mandatory under the Act of 2001 even to frame issues. Issues are/were framed by the Tribunal only for facilitating focus on the main points which arose for determination and non-framing of issues did not exclude the jurisdiction of Tribunal from addressing a matter which appeared to it from the pleadings of the parties. 14. In the case at hand the Tribunal below noted that in the reply to the eviction petition the petitioners had challenged the title of the respondents-landlords in respect of the shop in issue by averring that the registered sale deed dated 20.6.2003 under which the respondents claimed ownership and rights as landlords was a sham transaction. It thus, was the case of the petitioners that the landlord had no legal ownership and/or title over the disputed shop disabling them from laying a petition under Section 9 of the Act of 2001. The Tribunal found that the petitioners thereafter failed to establish the invalidity of the conveyance deed dated 20.6.2003 through any evidence. In these circumstances, the Tribunal held that the denial of title of the respondents-landlords having been taken as defence and the defence having failed it supplied a ground for eviction under Section 9(f) of the Act of 2001. 15. This finding was in any event a surplusage as the petitioners were in any event liable to be evicted on the ground of reasonable and bona fide requirements of the landlords within Section 9(i) of the Act of 2001. 16. Thus, there is no perversity or misdirection in law in the order dated 13th October, 2008 passed by the Rent Tribunal as upheld by the Appellate Rent Tribunal under the impugned order dated 17th May, 2012. 17. For the reasons aforesaid, the writ petition has no force and the same stands dismissed.