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2013 DIGILAW 1415 (RAJ)

Satya Narain Ajmera v. Jaswant Singh Bohra

2013-08-05

SANGEET LODHA

body2013
Hon'ble LODHA, J.—This writ petition is directed against judgment dated 20.7.12 of Appellate Rent Tribunal, Bhilwara, whereby an appeal preferred by the petitioner/tenant against the judgment and order dated 11.1.10 passed by the Rent Tribunal, Bhilwara allowing the petition preferred on behalf of the respondents/landlord u/S. 9 of the Rajasthan Rent Control Act, 2001 (in short "the Act") and the certificate for recovery of possession issued pursuant thereto, stands dismissed. 2. The respondents filed a petition u/S. 9 of the Act seeking petitioner's eviction from a commercial premises, on various grounds viz. the tenant causing substantial damage to the premises, material alteration, reasonable & bona fide necessity of the premises and the tenant acquiring vacant possession of the suitable premises adequate for his requirement, in terms of the provisions of Section 9(b), 9(c), 9(i) & 9(j) of the Act respectively. The petition was contested by the petitioner by filing a reply thereto. A rejoinder to the reply was filed on behalf of the respondents. On the basis of the pleadings of the parties, the Rent Tribunal framed the issues in the following terms: ^^¼1½ vk;k izR;FkhZ us vthZnkj dks fyf[kr vuqKk ds fcuk fdjk;s'kqnk nqdkuksa ds e/; eq[kHkkx ds chp okyh nhokj dks rFkk ihNs rhljs xsgwa dh chp okyh nhokj dks gVk dj nksuksa nqdkuksa ds vkxs o ihNs ds Hkkx dh vkj-ikj dj ifjlj esa lkjoku :i ls ifjofrZr dj fn;k gS ftlls mldk ewY; de gksus dh laHkkouk gS\ ¼2½ vk;k vthZnkj dks oknxzLr ifjlj dh vthZnkj la- 2 Jherh jatuk ds fy, ;qfDr;qDr ,oa lnHkkfod vko';drk gSA ¼3½ vk;k izR;FkhZ us HkhyokM+k ds cktkj ua- 2 esa rFkk Jhjke lnu lksgu Iyktk ds lkeus mi;qDr O;olkf;d ifjlj dk dCtk vftZr dj fy;k gS vr% vthZnkj dks oknxzLr ifjlj dh vko';drk ugha gS\ ¼4½ vuqrks"k\** 3. The parties led their evidence. After due consideration of the evidence on record, the Rent Tribunal decided all the issues in favour of the respondents and against the petitioner. Accordingly, vide judgment and order dated 11.1.10, the petitioner was directed to be evicted from the premises in question and pursuant thereto, a certificate for recovery of possession was issued in his favour. Aggrieved thereby, the petitioner preferred an appeal before the Appellate Rent Tribunal, Bhilwara. The Appellate Rent Tribunal has affirmed the findings arrived at by the Rent Tribunal on all the issues and accordingly, the appeal stands dismissed. Aggrieved thereby, the petitioner preferred an appeal before the Appellate Rent Tribunal, Bhilwara. The Appellate Rent Tribunal has affirmed the findings arrived at by the Rent Tribunal on all the issues and accordingly, the appeal stands dismissed. Hence, this petition. 4. Learned counsel for the petitioner contended that the Appellate Rent Tribunal has committed jurisdictional error in not considering the defence of the petitioner that the eviction petition has been filed with oblique motive. Learned counsel submitted that in the reply filed, a specific stand was taken by the petitioner that the landlord, respondent No. 1 herein, has filed the petition for eviction with the oblique motive i.e. for enhancing the existing rent of the premises to Rs. 10,000/- per month. Learned counsel submitted that in the rejoinder filed, the averments made by the petitioner as aforesaid have not been controverted by the respondents and therefore, the Rent Tribunal should have proceeded on the basis that averments made stand admitted. Learned counsel submitted that since the petition was filed by the respondent actuated by oblique motive, no order of eviction could have been passed by the Rent Tribunal on the plea of reasonable & bona fide necessity. Learned counsel submitted that the respondent No. 2, the daughter-in-law of the petitioner, cannot be said to be a family member of the landlord and therefore, no decree of eviction could have been passed by the Rent Tribunal on the ground of reasonable & bona fide necessity as pleaded. Learned counsel submitted that in the petition for eviction filed, the daughter-in-law of the respondent was impleaded as petitioner No. 2, who is not the landlord and therefore, the Rent Tribunal had no jurisdiction to entertain the petition. 5. Learned counsel for the petitioner next contended that on the basis of the evidence on record, the ground of material alteration in the premises by raising construction is also not proved and the concurrent finding arrived at in this regard by the Rent Tribunal and the appellate Rent Tribunal are ex facie capricious and perverse. 5. Learned counsel for the petitioner next contended that on the basis of the evidence on record, the ground of material alteration in the premises by raising construction is also not proved and the concurrent finding arrived at in this regard by the Rent Tribunal and the appellate Rent Tribunal are ex facie capricious and perverse. Learned counsel submitted that as a matter of fact, the construction altering the premises as alleged, was raised by the petitioner much prior to coming into force of the Act and therefore, the eviction cannot be ordered on the ground that the petitioner has raised the construction without written permission of the landlord which has materially altered the premises and is likely to diminish the value thereof. Learned counsel submitted that on the alteration being made in the premises, the rent was enhanced by the respondent/landlord and therefore, the plea in terms of provisions of Section 9(c) is otherwise not available to him. Learned counsel submitted that as a matter of fact, the provisions of Section 9(c) of the Act cannot be applied retrospectively and therefore, the ground in terms of Section 9(c) was otherwise not available to the respondents. 6. Lastly, learned counsel contended that in terms of provisions of Section 9(j), the landlord is required to prove that the tenant has built or acquired vacant possession of or has been allotted suitable premises adequate for his requirement, however, in the instant case, the landlord has not been able to prove that the premises alleged to have been acquired by the petitioner is adequate for his requirement and therefore, the order for eviction could not have been passed on the said ground. Learned counsel further submitted that in order to get a decree or order for eviction against a tenant whose tenancy is governed by a statute, the landlord has to make out a case in accordance with the provisions of the relevant statute. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Roshan Lal & Anr. vs. Madan Lal & Anr.", (1975) 2 SCC, 785. 7. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Roshan Lal & Anr. vs. Madan Lal & Anr.", (1975) 2 SCC, 785. 7. On the other hand, learned counsel appearing for the respondents submitted that the bona fide requirement of the premises as a ground for eviction, incorporated in Section 9(i) is widely worded and daughter-in-law certainly falls within the definition of `family' and therefore, the contention raised by the learned counsel is devoid of any merit. Learned counsel submitted that no such ground was ever raised by the petitioner, before the Rent Tribunal or the Appellate Rent Tribunal and therefore, the same cannot be permitted to be raised for the first time before this court. Learned counsel submitted that no evidence was led by the petitioner to prove that the petition for eviction is filed with oblique motive i.e. for enhancing the rent and it is absurd to suggest that since the averments made in the reply regarding the oblique motive of the landlord having not been controverted, the same shall be deemed to be proved. Learned counsel submitted that the respondent No. 1 has been able to prove the reasonable & bona fide necessity of the premises for his daughter -in-law, the respondent No. 2 herein, and the findings arrived at remains a finding of fact, which cannot be said to be capricious or perverse and therefore, the same cannot be interfered with by this court. Learned counsel submitted that as a matter of fact, the findings arrived at by the Rent Tribunal, affirmed by the Appellate Rent Tribunal regarding the bona fide necessity on the basis of the evidence on record is not even challenged by the petitioner in the petitioner filed and therefore, this court is not required to enter into this question. Learned counsel submitted that it is absolutely incorrect to suggest that the provisions requiring for the written permission of the landlord for raising construction materially altering the premises has been incorporated in Section 9(c) of the Act for the first time and therefore, it cannot apply to the construction raised materially altering the premises prior to coming into force of the Act. Learned counsel submitted that the eviction on the ground material alteration was a ground available under the provisions of Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short "the Act of 1950") as well and therefore, nothing turns on the question that the requirement of the written permission being obtained from the landlord for raising construction materially altering the premises, has been introduced in the statute for the first time. Replying the arguments of the learned counsel for the petitioner regarding the eviction on the ground in terms of Section 9(j) of the Act, learned counsel submitted that if any of the three requirements as set out in Section 9(j), is satisfied, the landlord is entitled for an order of eviction. Learned counsel submitted that the fact that the petitioner has acquired possession of a commercial premises stands admitted by him in his deposition before the Rent Tribunal and therefore, the findings arrived at by the Rent Tribunal, affirmed by the Appellate Rent Tribunal also remains a concurrent finding of fact which cannot be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. Learned counsel submitted that the petition for eviction has been filed by the respondent No. 1 and therefore, even if the person for whose bona fide requirement the petition for eviction has been filed is impleaded as party to the proceedings, the petition cannot be held to be not maintainable. 8. Replying the arguments of the learned counsel for the respondent, counsel for the petitioner submitted that it is not proved that the petitioner has acquired the vacant possession of the premises adequate for his requirement and therefore, no order of eviction could have been passed on the ground in terms of Section 9(j) of the Act. Learned counsel submitted that the tenant not making efforts for taking possession of the property acquired cannot be a ground for eviction in terms of Section 9(j) of the Act. Regarding the oblique motive of the respondent No. 1, learned counsel submitted that the respondent No. 1 in his statement before the Rent Tribunal has categorically admitted the factum of his intention to enhance the rent and therefore, the bona fide necessity of the premises as pleaded cannot be held to be genuine. Regarding the oblique motive of the respondent No. 1, learned counsel submitted that the respondent No. 1 in his statement before the Rent Tribunal has categorically admitted the factum of his intention to enhance the rent and therefore, the bona fide necessity of the premises as pleaded cannot be held to be genuine. Lastly, learned counsel submitted that if this court does not feel inclined to interfere with the impugned judgment and order, the premises being commercial premises, the petitioner may be granted reasonable time to vacate the premises. 9. The prayer made on behalf of the petitioner for granting time to vacate the premises in the event of writ petition being dismissed, is opposed by the counsel appearing for the respondent. 10. I have considered the submissions of the learned counsel and perused the material on record. 11. It is to be noticed that Section 9(i) of the Act is very widely worded and covers within its ambit the reasonable and bona fide necessary of the premises for the use and occupation not only of the landlord himself or members of his family but also, of any person for whose benefit the premises is held, who may not be even member of his family. In considered opinion of this Court, having regard to the context and scheme of the Act, the term `family' as used in the said section has to be given a wider meaning so as to include even the wife or widow of any male family members. In K.V. Muthu vs. Angamuthu Anmal, (1997) 2 SCC 53 , the Hon'ble Supreme Court while dealing with the definition of family, as set out in Section 2(6-A) of Tamilnadu Buildings (Lease & Rent Control) Act, 1960, specifying the spouse, son, daughter, grand child or dependent parents as members constituting the family, observed that in its restricted sense, `family' would include only parents and their children and may include even grand children and all the persons of the same blood living together but, in its broader sense it may include persons who are not connected by blood depending upon the context in which the word is used. The court observed that the word `family' is a word of great flexibility and is capable of different meanings. The court observed that the word `family' is a word of great flexibility and is capable of different meanings. Relying on its earlier decision in "K. Balakrishna Rao vs. Haji Abdulla Suit", (1980) 1 SCC 321 , the court further observed that while interpreting a definition, it has to be borne in mind that the interpretation placed on its should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose, which is sought to be served by the Act. In the said case, the foster son was treated as a member of deceased landlord's family and application preferred for his bona fide requirement was held to be maintainable. In Oriental Fire & General Insurance Company Ltd. vs. Hukum Chand Jain, 1984 RLR, 495, this Court while dealing with the provisions of Section 13(1)(h) of the Act of 1950 observed that the sons and their wives though having separate income and reside separately, forms part of the landlord's joint family and therefore, the suit for eviction preferred to make proper arrangements for their stay with him when they come to visit him and accommodation required for the purpose would amount to reasonable bona fide necessity of the landlord. In the instant case, admittedly, the landlord's son, his daughter-in-law and the grand children, the members is a joint family are sharing a common residence with him. It has also come on record that the landlord is suffering from the disease of fits and he is not in position to do any business. Obviously, the family members including daughter-in-law living with the landlord must be taking care of him. Thus, on the facts and in the circumstances of the instant case, in no manner it can be inferred that the bona fide necessity of the premises for his daughter-in-law, as pleaded by the landlord, is not genuine. A fortiori, in our country where many generations live together in a joint family and the daughter-in-law plays a crucial role in running a family, there is absolutely no reason as to why the word `family' used in the said section should be constructed in a technical/restricted sense rather than in a sense of common parlance, so as to exclude the daughter-in-law from its purview. In this view of the matter, the contention of the learned counsel that the daughter-in-law cannot be considered to be a member of the landlord's family, cannot be countenanced by this court. 12. Coming to the reasonable & bona fide necessity of the premises for the respondent/landlord's daughter-in-law, the respondent No. 2 herein, it is to be noticed that it has come on record that the respondent No. 2 has acquired the experience of the business of readymade garments while working with Smt. Rekha Jain, a tenant, occupying the first floor of the premises in question, who is carrying on wholesale business of readymade garments therein. The respondent No. 2 Smt. Ranjana (PW.2) has deposed before the tribunal that she intends to enter into retail business of readymade garments and for that purpose only the ground floor premises is suitable and the retail business of readymade garments cannot be operated on the first floor. It is pertinent to note that the respondents have been their residence on the first floor of the disputed premises and therefore, it goes without saying that the respondent No. 2 shall be in position to operate the business in the premises in question most conveniently, while discharging her domestic obligations. It is pertinent to note that even the petitioner has specifically deposed before the Rent Tribunal that for business of readymade garments, bigger the shop it is always better. It is not even the case of the petitioner that any other suitable premises is available with the respondents, wherein the landlord's daughter-in-law may start retail business of readymade garments. Even otherwise, the landlord is the best judge to assess his bona fide necessity and has an unfettered right in choose the premises suitable to fulfill his bona fide requirement. In considered opinion of this court, the finding arrived at by the court below regarding the reasonable bonafide necessity of the premises in question for the use and occupation of the landlord's daughter-in-law remains a concurrent finding of fact, which cannot be said to be perverse or capricious so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 13. 13. The contention of the learned counsel for the petitioner that since the averments made in reply regarding the oblique motive of the landlord in seeking eviction so as to pressurise the tenant to enhance the rent having remained uncontroverted, the bona fide necessity of the premises as pleaded cannot be said to be genuine, to say the least, is absolutely devoid of any merit. The landlord was required to prove the bona fide necessity of the premises in the terms pleaded, which he has been able to prove on the basis of the cogent evidence. If according to the tenant, the bona fide necessity as pleaded was not genuine and the petition for eviction was filed for oblique motive then it was for him to prove the allegations levelled, showing that the requirement as pleaded is not genuine and the same is actuated by oblique motive. The admission of landlord-Jaswant Singh (PW.2), in his deposition before the Rent Tribunal in terms that he had asked the tenant to enhance the rent in the year 2006, in no manner leads to the inference that the bona fide necessity of the premises as pleaded by the landlord, is not genuine and the petition has been filed for oblique motive i.e. to pressurise the petitioner to enhance the rent of the premises. Thus, the concurrent findings arrived at by the Rent Tribunal and the Appellate Rent Tribunal is this regard is just and proper and does not warrant any interference by this court. 14. Coming to the material alteration, it is to be noticed that in terms of Section 9(c), a tenant shall be liable to be eviction if he has made or permitted to be made construction which was materially altered the premises or is likely to diminish the value thereof, without written permission of the landlord. Thus, if it is proved that the construction has been raised by the tenant materially altering the premises and the tenant is not able to show that such material alteration was made with the permission of the landlord in writing, the tenant shall be liable to be evicted. But nonetheless, in terms of provisions of Section 9(c) of the Act, whether the written permission is there or not, if the material alteration in the premises is proved to be made without consent of the landlord, the tenant is liable to be evicted. But nonetheless, in terms of provisions of Section 9(c) of the Act, whether the written permission is there or not, if the material alteration in the premises is proved to be made without consent of the landlord, the tenant is liable to be evicted. Thus, nothing turns on the question that prior to coming into force of the Act, the requirement of written permission of the landlord for raising the construction materially altering the premises was not there. It is to be noticed that in the instant case, the factum of the construction being raised materially altering the premises was not even disputed by the petitioner before the Rent Tribunal. Further, it was not the case set out by the petitioner in reply to the rent petition that the construction materially altering the premises was raised by him with the oral consent of the landlord. Thus, after due consideration of the evidence on record, the concurrent finding arrived at by the Rent Tribunal and the Appellate Rent Tribunal that the material alteration in the premises was made by the petitioner without consent of the landlord, also remains a finding of fact and cannot be said to be capricious or perverse. 15. Lastly, coming to the ground of eviction in terms of provisions of Sec. 9(j) of the Act, it is to be noticed that the petitioner in his cross examination before the Rent Tribunal has admitted in unequivocal terms that the premises situated opposite Oswal Marbles in Shastri Nagar is in the name of his son and he is residing with his son and daughter-in-law, which is a commercial premises with the area of 35x65 sq. ft. It has been further admitted that the premises consisting of two floors situated opposite Pratap Chitrapat and Shri Ram Sadan Sohan Plaza constructed in the area 30 x 10 sq. ft. is owned by him wherein on the ground floor there is a shop and there are two rooms on the upper floor. The petitioner has also accepted the fact in his deposition that the premises opposite the rented premises in question, is also possessed by him, however, its title is not clear. The petitioner has also stated that in the town Bhilwara, the business of all kinds may be carried on in any colony. The petitioner has also accepted the fact in his deposition that the premises opposite the rented premises in question, is also possessed by him, however, its title is not clear. The petitioner has also stated that in the town Bhilwara, the business of all kinds may be carried on in any colony. In this view of the matter, the fact that the petitioner has acquired suitable premises adequate for his requirement stands proved on the basis of his own deposition before the Rent Tribunal. Thus, the findings arrived at by the Rent Tribunal, affirmed by the Appellate Rent Tribunal holding the ground of eviction in terms of Sec.9(j) of the Act as proved, also cannot be faulted with. 16. The contention of the learned counsel that the landlord's daughter-in-law having been impleaded as petitioner in the petition before the Rent Tribunal, the petition was not maintainable, to say the least, is absolutely frivolous. It is true that the landlord was not required to implead the daughter-in-law as co-petitioner, but then, on account of her impleadment as aforesaid, in no manner makes the petition preferred by the landlord for her bona fide necessity, not maintainable. 17. In view of the discussion above, in considered opinion of this court, the concurrent findings arrived at by the Rent Tribunal and Appellate Rent Tribunal after due appreciation of evidence on record cannot be said to be capricious or perverse and do not suffer from any jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 18. Coming to the time being granted to the petitioner to vacate the premises, it is to be noticed that the order directing eviction of the petitioner was passed by the Rent Tribunal on 11.1.10 and the appeal against the said order stands dismissed by the Appellate Rent Tribunal vide judgment dated 20.7.12, and thus, the petitioner is occupying the premises for about last ten months since dismissal of the appeal by the Appellate Rent Tribunal. More-over, in the instant case, the order of eviction has been passed by the Rent Tribunal inter alia on the ground of availability of alternative accommodation with the petitioner, which stands upheld by this court as aforesaid and therefore, on the facts and in the circumstances of the case, the petitioner is not entitled for grant of further time to vacate the premise, as prayed for. 19. In the result, the petitioner fails, it is hereby dismissed. No order as to costs.