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2012 DIGILAW 946 (RAJ)

Dinesh Kumar v. Nand Lal Mehra

2012-04-13

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—This civil second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 17.4.2009 passed by Additional District Judge No.9, Jaipur City Jaipur in Civil Regular Appeal No. 60/2006 whereby the learned First Appellate Court has upheld and affirmed the judgment and decree dated 27.7.2001 passed by learned trial Court i.e. Additional Civil Judge (Junior Division) East, Jaipur in Civil Suit No.172/93 whereby suit filed by plaintiff-respondents for eviction on the ground of bonafide and reasonable necessity was decreed. 2. With the consent of the learned counsel for the parties, the appeal was admitted on the following substantial questions of law and the same was heard finally:- (i) Whether the necessity shown by the plaintiff-landlord can be said to be not bonafide and reasonable in view of the fact that he ceased to do business in the year 1985 and after purchasing the tenanted premises in the year 1990, he filed the suit in the year 1993? (ii) Whether the necessity of the plaintiff-landlord can be said to be reasonable and bonafide even when he purchased the tenanted premises with a sitting tenant rather than purchasing a shop with vacant possession? (iii) Whether the necessity of the plaintiff-landlord can be said to be reasonable and bonafide even when he has got vacant possession of adjacent shop in the same premises during pendency of the first appeal and has failed to commence business in that shop? 3. For the disposal of this appeal following facts are relevant which are now not in dispute between the parties:- (1) Before 1965 the plaintiff-respondent (landlord) was doing cloth business in Amritsar and thereafter he shifted to Jaipur with his family members and started business as a Cloth Merchant in a rented shop and in the year 1985 he voluntarily surrendered possession of the rented shop to his landlord and close down his cloth business and after that he is not doing any business or occupation. (2) Elder son of respondent Shri Rajendra in the year 1988 shifted to Meerut and since then he is continuously doing business as a commission-agent of cloths in partnership. Another son of respondent Shri Subhash Kumar Mehra is in Government Service. (3) Respondent purchased a house vide registered sale deed dated 15.11.90 having two shops in the front portion of it. Another son of respondent Shri Subhash Kumar Mehra is in Government Service. (3) Respondent purchased a house vide registered sale deed dated 15.11.90 having two shops in the front portion of it. In one of the shops Shri Jaswant Lal was tenant at that time whereas in the suit shop defendant-appellant was a sitting tenant. The respondent with his family members is residing in the back portion of the house since the time of its purchase. Each of the shops is of the size of 9' x 8'. (4) The respondent filed the present suit for eviction with the averment that he and his son Shri Rajendra require it to do cloth business in it claiming that their requirement is bonafide and reasonable. The respondent also filed a suit for eviction from the other shop with the same averments. In both the suits the case of the respondent was that after getting vacant possession of both the shops, he will convert them into one shop and use it for cloth business. (5) The respondent has got vacant possession of the other shop on 30.4.2007 during pendency of the first appeal but has failed to use it for cloth business or for any other business. (6) During pendency of the suit respondent has constructed two rooms each of the size of 12 ft x 12 ft. on the upper floor of the house for residential purpose. (7) Age of the respondent at present is more than 80 years and he has experience of more than 50 years in business of cloths. (8) The present suit was filed on 30.4.1993 i.e. after two and half years from the date of purchase of the suit shop. (9) The defendant-appellant alleged that the respondent gave up possession of his rented shop to his landlord in consideration of receipt of huge amount as premium in cash but this allegation has been held not established both by the trial Court as also by the first appellate Court. 4. (9) The defendant-appellant alleged that the respondent gave up possession of his rented shop to his landlord in consideration of receipt of huge amount as premium in cash but this allegation has been held not established both by the trial Court as also by the first appellate Court. 4. Assailing the impugned judgment and decree, the learned counsel for the appellant has raised the following grounds: (i) It is an admitted fact that at present the age of respondent is more than 80 years and he is not doing any business since the year 1985 and he filed the present suit two and half years after the purchase of the suit shop in the year 1990 and all these facts are a clear indication of the fact that the necessity shown by the respondent is not bonafide and reasonable. It was also submitted that it is an admitted fact that the respondent voluntarily vacated his rented shop in the year 1985 and this fact also shows that the requirement shown for the suit shop is not bonafide and reasonable. It was further submitted that it is also an admitted fact that the elder son of respondent Shri Rajendra is continuously doing business of cloths in Meerut since the year 1988 and, therefore, this contention of respondent cannot be believed that he and his son intend to start business in the suit shop. (ii) The fact that the respondent opted to purchase the suit shop with a sitting tenant and not a vacant shop is a clear indication of the fact that the respondent never had an intention to use the same for his business. If the respondent really wanted to start a new business in his own shop he would never have purchased a shop with a sitting tenant. (iii) It is an admitted fact that the respondent has got vacant possession of the adjacent shop during pendency of the first appeal in the year 2007 but he has failed to commence business in that shop and this fact is also an indication that the requirement shown for the suit shop is not bonafide and reasonable. Otherwise also as a suitable accommodation has been made available to the respondent, his requirement for the suit shop has come to an end. 5. Otherwise also as a suitable accommodation has been made available to the respondent, his requirement for the suit shop has come to an end. 5. On the other hand, learned counsel for the respondents submitted that none of the grounds raised on behalf of the appellants can negative the bonafide and reasonable necessity shown by the respondents. It was further submitted that merely because the respondent purchased the suit shop with a sitting tenant, he is not doing any business since the year 1985, after purchasing the suit shop in the year 1990 he failed to file suit for eviction immediately and also the fact that he has not commenced any business in the adjacent shop of which he has got vacant possession in the year 2007 are not such facts which may adversely affect the bonafide and reasonable necessity shown by the respondents. 7. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as relevant legal provisions and the case law. 8. It is useful to consider the well settled legal position which is relevant to determine the bonafide and reasonable necessity of a landlord shown for a tenanted premises which is as follows:- (i) Mere assertion on the part of the landlord that he requires the commercial accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show, the burden being upon him, that he genuinely requires the accommodation for the purpose of starting or continuing his own business. (ii) While considering the question of bonafides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be decided objectively and not subjectively. The burden lies upon the landlord to establish that he genuinely requires the accommodation for the purpose of starting or continuing his own business. (ii) While considering the question of bonafides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be decided objectively and not subjectively. The burden lies upon the landlord to establish that he genuinely requires the accommodation for the purpose of starting or continuing his own business. (iii) The word 'reasonable' connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word 'requirement' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. (iv) The landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Neither tenant nor Court can advise the landlord how he should adjust himself and satisfy his requirement in some other way. (v) If it is found that the landlord has some other vacant premises in his possession that by itself would not be sufficient to negative the landlords requirement shown for tenanted premises but in such a situation it is expected from the landlord to establish that the premises which is vacant is not sufficient and suitable for the purpose for which he requires the tenanted premises. Whether the vacant premises available to the landlord is sufficient and suitable for his requirement or not will depend upon facts and circumstances of each case but mere being in possession of a vacant premises cannot negative the need shown by the landlord. Suitability of alternative accommodation available with the landlord has to been seen from convenience of the landlord and on the basis of totality of circumstances including profession, vocation, style of living, habits and background. (vi) Crucial date for deciding bonafides of the need shown by the landlord is the date of the suit and subsequent developments and events occurred during pendency of suit/appeal can be taken into consideration only when the need of the landlord can be shown to be completely eclipsed by such subsequent events. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the landlord should have been completely vanished by such subsequent events. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the landlord should have been completely vanished by such subsequent events. (vii) If a landlord is doing his business or he is residing in a rented premises and he purchases a premises with a sitting tenant, he cannot be compelled to continue to do business or reside in the same rented premises only to accommodate the tenant and the tenanted premises as purchased by him can be vacated if his requirement is found to be bonafide and reasonable. An order or decree of eviction cannot be denied to him only by the reason that he opted to purchase a premises with a sitting tenant. 9. In the case of Bastichand Bhansali vs. Dharam Vir Kalia reported in 1989(1) RLW 103, a learned Single Bench of this High Court has held that: “Shelter with a roof on his head and pursuit of happiness, subject to his means, is the normal and ordinary desire of a human being. Apart from that it is the legal and statutory right of a person to actually possess the property owned by him. It would be purely against all logic to ask a landlord owner to opt for rental premises instead of his own building. There is no rule of law that the landlord purchased can never get the occupying tenant vacated from a demised premises which the landlord plaintiff purchased with intention to live therein and more so when it is the only property of a plaintiff-landlord. Just as a tenant can be ejected under Section 13(1)(i) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 on the ground that the tenant has built or has acquired vacant possession or had been allotted a suitable residence, a landlord can also very well eject the tenant on the ground that he has purchased the property for his own use and he cannot be compelled to live in rented premises for ever. It was never the intention behind the enactment of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 that a landlord should be disentitled to occupy his own house and continue to live in a rented house merely because the premises at the time of his purchasing or acquiring the same had been rented out by its previous landlord. It is not a case where the plaintiff let out the suit premises to the defendant after he had purchased the same. It is also not a case where the landlord owned any other property except the suit premises. The landlord cannot be denied his statutory right to possess and live alongwith his family in the property which by his means he has purchased for self occupation.” 10. Similarly, in the case of Jaswant Raj vs. Bata India Limited reported in 1997(2) RCR 3 it has been held that: “If a landlord is doing business in a rented shop on higher rent, then his desire to start business in his own shop cannot be said to be inspired by dishonest motive but on the contrary it is most natural human desire to start business in his own shop, therefore, in natural circumstances the court must proceed on the presumption that such desire is an honest and bonafide desire.” 11. In the case of Rajendra Kumar & Ors. vs. Parasram reported in 2011(3) WLC (Raj.) 165 = 2011(3) RLW 2534 learned Single Bench of this High Court after taking into consideration the view expressed in above cases has held that: “There is no provision of law laying down that if a person purchases any property which is under tenancy with a third party, it should be presumed that he does not need that property for his personal use.” 12. In the light of undisputed facts of this case and the well settled legal position as referred above, my findings with reasons on each of the grounds raised on behalf of appellants are as below:- (i) Merely because the plaintiff-respondent has attained the age of more than 80 years and he is not personally carrying on any business since the year 1985, it cannot be said that the requirement shown by him for the suit shop is not bonafide and reasonable. Simply because he has attained the age of eighty years does not mean that he is not capable of doing business now. Similarly, even if he has failed to file the suit immediately after purchasing the suit shop and he has filed the suit two and half years after the purchase of the same in the year 1990 it cannot negative the need shown by the respondent. It has come on record that the respondent voluntarily surrendered possession of the rented shop to his landlord in the year 1985 but that does not mean that he made a decision that for all times to come he will never start a new business or restart the same business. If the respondent as a law abiding citizen voluntarily vacated his rented shop in the year 1985, it does not mean that he cannot re-start his business. He has a very long experience of dealing in cloth business and after ceasing to do that business or any other business and after a break of few years he again makes up his mind to re-start his business and that also alongwith his elder son Shri Rajendra, his bonafides cannot be doubted. Similarly, the requirement shown by the respondent regarding suit shop cannot be doubted by the reason that the suit was filed after two and half years. It has come on record that the respondent continuously kept asking the appellants to vacate the suit shop in this period and, therefore, it cannot be said that he did not take any steps to get the suit shop vacated before filing the present suit. A suit for eviction on the ground of necessity can be filed as and when the landlord feels that a need has arisen. It is not the requirement of law that as soon as a landlord purchases a premises with a sitting tenant he must file the suit immediately or within a particular time period. It is to be noted that suit was filed in the year 1993 when the age of the respondent was around sixty years only. Merely because during the pendency of this litigation the respondent has attained the age of eighty years, it can not be said that the need shown by him has completely eclipsed. It is to be noted that suit was filed in the year 1993 when the age of the respondent was around sixty years only. Merely because during the pendency of this litigation the respondent has attained the age of eighty years, it can not be said that the need shown by him has completely eclipsed. It must be appreciated that even after attaining such an old age the respondent has a strong will to restart his business and share his long experience with his son instead of sitting idle. Although, it is an admitted fact that elder son of respondent-Shri Rajendra is at present carrying on business of cloths in Meerut since the year 1988 but it does not mean that Shri Rajendra do not or can not intend to start business in the suit shop alongwith his father. It has come on record that Shri Rajendra temporarily shifted to Meerut to carry on business there whereas other family members are permanently residing in Jaipur, therefore, if he intends to shift back to Jaipur and start business in a shop purchased by his father, his need also cannot be doubted. It is well settled that the landlord is best judge of his requirement and he has got complete freedom in this regard and neither tenant nor Court can advise him how he should adjust himself and satisfy his requirement. If the respondent and his son now intend to start or re-start business in the shops purchased including the suit shop they have complete freedom for this and the appellant cannot advise that Shri Rajendra must continue to do business in Meerut for forever. (ii) Merely that the respondent opted to purchase the suit shop with a sitting tenant and not a vacant one can never negative the need shown by the respondent. When a landlord carrying on his business in a rented shop purchases a shop with a sitting tenant cannot be compelled to do or continue to do his business in the same rented shop only to accommodate his tenant and an order or decree of eviction cannot be denied to him, how a landlord not doing any business even in a rented shop at the time of purchase can be denied order or decree of eviction only by the reason that he knowingly purchased a shop with a sitting tenant? If the contention of learned counsel for the appellant is held to be correct, it would mean that such a landlord would never be able to evict his tenant even if his requirement/need is otherwise found bonafide and reasonable and he would have no option other than that either to sit idle or take some premises on rent or to purchase a new shop with a vacant possession. Apart from that if the contention made by the learned counsel for the appellant is held to be correct it would mean that a landlord doing business in a rented shop would be in an advantageous position in comparison to such a landlord who is not doing any business because the first category of landlord would be able to evict his tenant whereas the second category of landlord could not do so. I am in agreement with the view expressed by Coordinate Bench of this High Court in the case of Rajendra Kumar & Ors. vs. Parasram (supra) to the effect that “there is no provision of law laying down that if a person purchases any property which is under tenancy with a third party it would be presumed that he does not need that property for his personal use.” (iii) Although, it is an admitted fact that the respondent has got vacant possession of the adjacent shop in the year 2007 and till date he has failed to commence any business in that shop but it could not mean that the need shown for the suit shop is not bonafide and reasonable or the need shown has come to an end as the respondent can satisfy his requirement by that shop. It is well settled that mere availability of some other vacant premises to the landlord is not sufficient to negative the requirement shown for the tenanted premises without considering the suitability of the alternative premises for the requirement shown by the landlord. From the very beginning it is the case of the respondent that after vacation of both the shops he would convert them into one shop and use it for his and his sons cloth business. It is an admitted position that size of each of the shops is 9' x 8'. From the very beginning it is the case of the respondent that after vacation of both the shops he would convert them into one shop and use it for his and his sons cloth business. It is an admitted position that size of each of the shops is 9' x 8'. Looking to the size of the shops and also looking to the long experience of respondent and his son-Shri Rajendra as a Cloth-Merchant if they feel that it is more convenient and beneficial for them to carry business of cloths in a shop of bigger size in comparison to a shop of size of 9' x 8', their bonafides cannot be doubted. The well settled legal position is that landlord is best judge of his requirement and he has a complete freedom in this regard. The Court or the appellant can not advise the respondent to adjust himself in the shop already vacated and satisfy his requirement by that shop only. It is also well settled that the premises available to the landlord is sufficient and suitable for his requirement or not shall depend upon facts and circumstances of each case. Suitability of alternative accommodation available with the landlord has to be seen from the convenience of the landlord on the basis of totality of the facts. In the present case, if the respondent intends to re-start his cloth business in a comparatively bigger shop he has complete freedom for this and he cannot be compelled to satisfy his requirement from the vacated shop only. 13. For the reasons stated above, all the submissions raised by the learned counsel for the defendant-appellants fail and the substantial questions framed by this Court are answered against the appellants. 14. The result of the above discussion is that the judgments and decrees of the Courts below are liable to be confirmed and this Civil Second Appeal is liable to be dismissed. 15. Accordingly, this Civil Second Appeal filed by the defendant-appellants is dismissed without any order as to costs. The defendants-appellants are given two months time to vacate the suit premises. The stay application also stands dismissed.