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2013 DIGILAW 531 (RAJ)

Rajendra Singh v. Anand Swaroop

2013-03-04

ALOK SHARMA

body2013
Hon'ble SHARMA, J.—This petition has been filed under Articles 226 and 227 of the Constitution of India challenging the order dated 19.11.2008 passed by the Appellate Rent Tribunal Jaipur (hereinafter the `Appellate Tribunal') upholding the certificate of possession issued by the Rent Tribunal Jaipur (hereinafter `the Tribunal') vide order dated 19.9.2007 in favour of the respondent landlord Anand Swaroop Sharma, since deceased (hereinafter 'the landlord') and now represented through his legal representative Yashwant Prakash Sharma against the petitioner tenant (hereinafter `the tenant'). 2. The facts of the case are that the applicant landlord filed an application in 2004 against the tenant for his eviction under Section 9 of the Rajasthan Rent Control Act, 2001 (hereinafter `2001 Act') on the grounds of nuisance, acquisition of alternative accommodation and the landlord's reasonable and bonafide necessity of the tenanted shop situate at Jawahar Nagar Road, Jaipur, more particularly described in para No.3 of the application. It was stated that the landlord let out the disputed shop on 4.4.1986 on a rent of Rs.325/- per month and the rent as revised at the time of filing of the application stood at Rs.550/- excluding the charges for electricity. The grounds on which eviction was sought were that the tenant without the consent of the landlord had fixed gas-welding and lath machines in the tenanted shop damaging the floor; the machines affixed in the shop caused nuisance; the tenant had purchased the adjacent shop from the brother of the landlord, and thus had vacant possession of premises suitable and adequate for his requirement and because the shop in issue under tenancy was required for the reasonable and bonafide necessity of the landlord. It was stated that the landlord subsequent to his retirement in 1992 had depleting resources and needed to supplement his income. It was prayed that in these circumstances a certificate of possession under Section 9 of the 2001 Act be issued against the tenant who be directed to be evicted. 3. On service of notice of the eviction petition, reply thereto was filed by the tenant on 13.7.2005. All averments and grounds in support of the application were denied. The tenant denied having damaged the floor by affixing gas-welding machine and lath machine and or that he had caused any nuisance. 3. On service of notice of the eviction petition, reply thereto was filed by the tenant on 13.7.2005. All averments and grounds in support of the application were denied. The tenant denied having damaged the floor by affixing gas-welding machine and lath machine and or that he had caused any nuisance. It was submitted that the case set up by the landlord with regard to the bonafide need of doing business to supplement his income was baseless and not bonafide and reasonable as the landlord was sufficiently prosperous and had well placed sons who were in service and in business. It was submitted that the landlord hence did not need any supplement to his income. The purchase of the adjacent shop by the tenant was denied. It was submitted that the tenant has no other source of income except the business running from the tenanted shop. Consequently, it was prayed that the eviction petition was without substance and deserved dismissal. The landlord filed rejoinder to the reply to eviction application on 28.11.2005 negating the reply of the tenant on all material averments. 4. On the basis of pleadings of the parties, the learned Tribunal framed five issues. Affidavits in evidence on behalf of landlord and the tenant and documents in support thereof were filed. The learned Tribunal after hearing arguments of both the parties subsequent to taking of respective evidences on record issued a certificate of possession in favour of the landlord deciding issues No.3 and 5 in favour of the landlord, relating to availability of alternative vacant accommodation to the tenant adequate for his requirement and on the ground of bonafide and reasonable need of the landlord respectively. The judgment was rendered by the Tribunal on 19.9.2007. 5. Aggrieved of the order dated 19.9.2007, the tenant preferred an appeal before the Appellate Rent Tribunal Jaipur, which vide order dated 19.11.2008 set aside the finding of the Tribunal with regard to issue No.3 i.e. availability of alternative adequate vacant accommodation with the tenant suitable to his needs. However the Appellate Rent Tribunal proceeded to confirm the finding of the Tribunal with regard to issue No.5 i.e. pertaining to the bonafide and reasonable necessity of the landlord for the tenanted shop. The certificate of possession issued by the Tribunal in favour of the land and against the tenant was thus confirmed. The tenant was required to vacate the premises. 6. Mr. The certificate of possession issued by the Tribunal in favour of the land and against the tenant was thus confirmed. The tenant was required to vacate the premises. 6. Mr. J.P. Goyal, learned Senior counsel appearing along with Ms. Priyanka Singh on behalf of the tenant has submitted that the impugned order dated 19.11.2008 passed by the Appellate Tribunal confirming the issuance of certificate of possession by the Tribunal under order dated 19.9.2007 on the ground of bonafide and reasonable necessity of the landlord is liable to be quashed and set aside by this court in exercise of its jurisdiction under Article 226/227 of the constitution of India on the ground that the landlord Anand Swaroop Sharma has since expired and consequently the cause of action on the issue of bonafide and reasonable necessity of the landlord had become extinct. Mr. Goyal for the aforesaid submission sought to find support in the Apex Court judgment in the case of Seshambal (dead) through LRs vs. M/s. Chelur Corporation Chelur Building (2010(1) W.L.C. (SC) Civil 356 = 2010(1) RLW 848 (SC)). It is submitted that in this view of the matter the concurrent findings of fact on the landlord's bonafide and reasonable necessity for the tenanted premises are now unsustainable and ought to be set aside by this court under its powers under Article 226/227 of the Constitution of India. Sr. Counsel had submitted that even otherwise there was no adequate evidence before the Appellate rent Tribunal to come to a finding that a case of bonafide and reasonable necessity of the landlord had been made out. Senior Counsel further submitted that the learned Tribunal failed to take into consideration that even though the landlord retired in the year 1992, yet the eviction application inter alia on the ground of bonafide and reasonable necessity of the landlord was filed in the year 2004. He submits that the delay of 12 years in filing of the eviction application as aforesaid was destructive of the landlord's necessity being bonafide and / or reasonable. He submits that the delay of 12 years in filing of the eviction application as aforesaid was destructive of the landlord's necessity being bonafide and / or reasonable. Reference has been made to Indrasen Jain vs. Rameshwar Das ( (2005) 9 SCC 225 ) wherein the Hon'ble Supreme Court in the context of delay of one and a half years by the landlord therein in filing an eviction petition subsequent to purchase of the tenanted premises had held that the delay was by itself indicative of lack of bonafide and reasonable necessity of the landlord. The Hon'ble Apex court had thereon proceeded to dismiss the eviction petition. Counsel submits that aside of aforesaid the landlord admittedly was a man of 69 years of age at the time of filing the eviction petition in the year 2004 and suffering from blood-pressure and depression. He submits that with the old age of the landlord and the state of his health the learned Tribunal ought to have not mechanically held that the landlord on his mere say had established his bonafide and reasonable necessity for the tenanted premises. It is submitted that the landlord's requirement for the tenanted shop in the facts of the case and evidence on record ought to have been held to be a sham, abuse of the provision of the 2001 Act and hence the application for the tenant's eviction ought to have been dismissed. 7. Mr. M.M. Ranjan learned Senior Advocate appearing along with Mr. Rahul Agrawal on behalf of the landlord would submit that the reliance placed by learned counsel for the tenant on the case of Seshambal (supra) is absolutely inapposite. He submits that in the said case the issue of extinction of the cause of action of bonafide and reasonable necessity of the landlord arose in the context of the landlord, on whose behalf bonafide and reasonable necessity in the eviction petition was agitated, expiring before the passing of the decree of eviction in the original proceedings. He submits that in the said case the issue of extinction of the cause of action of bonafide and reasonable necessity of the landlord arose in the context of the landlord, on whose behalf bonafide and reasonable necessity in the eviction petition was agitated, expiring before the passing of the decree of eviction in the original proceedings. Counsel submits that the Hon'ble Supreme Court in the case of Shakuntala Bai vs. Narayan Das (AIR 2004 SC 3485) has held that the bonafide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate. Counsel further submits that the Hon'ble Supreme Court in case of Usha P. Kuvelkar vs. Ravindra Subrai Dalvi ( (2008) 1 SCC 330 ) has held that the death of the successful landlord agitating and obtaining of decree of eviction on the issue of bonafide and reasonable necessity was of no consequence and could not root out a crystallised right to eviction of the tenant on the ground of bonafide and reasonable necessity of the landlord. It is submitted that the law as enunciated by the Hon'ble Apex Court in the case of Usha P. Kuvelkar (supra) was also noted with approval by the Hon'ble Supreme Court in the case of Speedline Agencies vs. T. Stanes & Co. Ltd. ( (2010) 6 SCC 257 ). The Hon'ble Supreme Court in para 23 and 25 of the aforesaid judgment has held as under : 23) As to subsequent events, this Court in Gaya Prasad vs. Pradeep Srivastava (2001) 2 SCC 604 observed as under: “10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow-process system subsists. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow-process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.” It was further held in para 15 that:- “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 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.” 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. 25) Particularly in matters governed by the Rent Acts to take into account subsequent events would inflict hardship on the landlords, in a case like the present one. In this context, it was held in para 9 of Joginder Pal vs. Naval Kishore Behal (2002) 5 SCC 397 that:- “9. The rent control legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The legislative intent has to be respected by the courts while interpreting the laws. But it is being uncharitable to legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the tenants and to the landlords — both.” 8. Counsel submits that in the present case the landlord has expired—was in fact murdered—during the pendency of the writ petition, which is after the order passed by the Rent Tribunal being upheld by the Appellate Rent Tribunal. It is submitted that the present case would be even on a higher pedestal as the petition under Article 226/227 of the Constitution of India is not even in continuation of eviction proceedings. Mr. Ranjan has further submitted that this court should also take note of the fact that the death of the landlord in the instant case was not a natural death, but a case of culpable homicide amounting to murder punishable under section 302 IPC and the tenant Rajendra Singh—now the petitioner—has been challaned for the offence under Section 302 IPC with the aid of Section 120B IPC on the conclusion of the investigation by the police. Thus in the instant case even the death of the landlord cannot work to the tenant's advantage for it would otherwise be most inequitable and unjust in giving the tenant the benefit of his own murderous act. He submits that a person accused of the murder of his landlord could not conceivably be allowed, on the principle that no man can take advantage of his own wrong to argue, that with the death of the landlord the ground of bonafide and reasonable necessity of the landlord would stand extinct. 9. Mr. He submits that a person accused of the murder of his landlord could not conceivably be allowed, on the principle that no man can take advantage of his own wrong to argue, that with the death of the landlord the ground of bonafide and reasonable necessity of the landlord would stand extinct. 9. Mr. Ranjan has further submitted that the judgment of the Hon'ble Supreme Court in the case of Indrasen Jain (supra) relied on by the counsel for the petitioner does not enunciate an immutable cut and dried legal proposition that mere filing of an eviction petition subsequent to when it could first have been filed would always be destructive of the case of the bonafide and reasonable necessity of the landlord for all future point of time. It is submitted that the case before the Hon'ble Supreme Court turned on its own peculiar “sequence of events” and more importantly the conclusions of the Hon'ble Supreme Court were based on the findings of the Rent Tribunal itself against the bonafide of the landlord and yet thereafter the Tribunal having failed to decree the suit for eviction. He submits that no such situation obtains in the present case where there is a cogent concurrent finding by the two Tribunals below of fact of the bona fide and reasonable necessity of the landlord. Sr. Counsel has placed reliance on the judgment of this court in the case of Dinesh Kumar vs. Nand Lal Mehra (2012(4) RLW 3406 (Raj.)) where it has been held that because the landlord was about 80 years he could not be held incapable of doing business and that merely because he did not file the suit for eviction of the tenant on an earlier opportunity it could not entail a conclusion in law that the landlord could never ever in future seek to start a business and agitate a ground of bona fide and reasonable necessity for the eviction of the tenant. 10. Mr. Ranjan further points out that the judgment in case of Indrasen Jain (supra) is otherwise distinguishable on facts. In that case the landlord had purchased the tenanted shop about six years prior to when the landlord filed the eviction petition. 10. Mr. Ranjan further points out that the judgment in case of Indrasen Jain (supra) is otherwise distinguishable on facts. In that case the landlord had purchased the tenanted shop about six years prior to when the landlord filed the eviction petition. In the case presently before this court the landlord has at all relevant time between 1992 and 2004 as also earlier been in ownership of the shop and only when he was pressed by his economic compulsions he decided to start a small business from the tenanted shop to buttress his meager income. Mr. Ranjan submits that the Rent Tribunal and the Appellate Rent Tribunal on the basis of appreciation of evidence before them have come to a concurrent finding that the requirement of the landlord for the tenanted shop was bonafide and reasonable. He further submits that appreciation of evidence is within the domain of the statutory authorities, and even if a possible contrary view could be taken, this court in the exercise of its jurisdiction under Article 227 of the Constitution of India can not upset the findings of the Tribunal on that count. Perversity or misdirection—the only grounds to upset concurrent findings of facts—are absent in the present case. Reference has been made to Shalini Shyam Shetty vs. Rajendra Shankar Patil ((2010) 2 W.L.C. (SC) Civil 457) to point out to the limitations of the jurisdiction of this court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 11. Heard learned counsel for the parties and perused the material available on record, including the impugned order dated 19.11.2008 passed by the Appellate Tribunal Jaipur and the order dated 19.9.2007 passed by the Rent Tribunal Jaipur. 12. Before addressing the matter on merits, it would be in order to refer to the observation of the Hon'ble Supreme Court in case of Usha P. Kuvelkar (supra). In the said case concurrent findings were recorded by the courts below with regard to bonafide requirement of the landlord. The High Court in writ petition upset the said finding. In such a situation the Hon'ble Supreme Court held that High Court erred in setting aside the concurrent findings of fact. In the said case concurrent findings were recorded by the courts below with regard to bonafide requirement of the landlord. The High Court in writ petition upset the said finding. In such a situation the Hon'ble Supreme Court held that High Court erred in setting aside the concurrent findings of fact. In Shalini Shyam Shetty (supra) the Hon'ble Supreme Court has noted with concern that “of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed question of property are involved, writ courts are entertaining such disputes.” Deprecating the routine manner in which petitions under Article 227 over such disputes are entertained the Apex Court held that even though under the Civil Procedure Code (Amendment) Act, 1999 the scope of Section 115 CPC was curtailed, the scope of Article 227 of the Constitution of India was not expanded. Relying on the judgment of the Constitution Bench in the case of Waryam Singh vs. Amarnath ( AIR 1954 SC 215 ) the Court reiterated that power under Article 227 of the Constitution of India can only be exercised to keep the subordinate courts/ tribunals “within the bounds of their authority” and the High Court can interfere only in cases of patent perversity in the impugned orders of subordinate courts, cases of gross and manifest failure of justice or where the principles of natural justice have been flouted. 13. In the present case the Rent Tribunal has from evidence on record found the bonafide and reasonable necessity of the landlord and thus issued a certificate of possession in favour of the landlord. This has been upheld by the Appellate Rent Tribunal. At the time of confirmation by the Appellate Rent Tribunal, the landlord was admittedly alive. The landlord expired thereafter (rather is stated to have been murdered by the tenant during pendency of writ petition—challan u/s.302 read with 120B IPC has been filed inter alia against the tenant). The death of the landlord, in the aforesaid circumstances, cannot be a ground on which the tenant's petition under Article 227 of the Constitution of India can be sustained—both in law or equity. The death of the landlord, in the aforesaid circumstances, cannot be a ground on which the tenant's petition under Article 227 of the Constitution of India can be sustained—both in law or equity. On the point of law, the Hon'ble Supreme Court in Usha P. Kuvelkar (supra) has held that where the Rent Controller had allowed the applicant's eviction petition on the ground of his bonafide and reasonable necessity, the applicant's death during pendency of the appeal by the tenant would not entail the appeal being allowed on the ground of the cause of action i.e. the ground of bonafide and reasonable need of the landlord having become extinct. In my considered view, reliance by the tenant on the case of Seshambal (supra) is of no avail. In the said case the landlord expired before passing of eviction decree by the original court. That having been said, even on equity a tenant accused and in fact challaned for the murder of the landlord cannot be seen to argue that the landlord's cause of action of his bonafide and reasonable necessity having come to an end and rendered extinct by his death (murder) the suit for eviction should be dismissed more so after two courts / Tribunals below had upheld the ground on evidence before them. The judgment of the Seshambal (dead) through LRs (Supra) is founded in part upon reiteration of a principle in an earlier judgment of the Hon'ble Supreme Court in the case of Pasupuleti Venkateswarlu vs. Motor and General Traders ( (1975) 1 SCC 770 ) that taking into consideration subsequent events beyond what obtained at the commencement of a lis was fundamentally an exercise in equity. The Hon'ble Supreme Court in the aforesaid case held that the powers to take note of updated facts can be invoked absent other special circumstances and ensuring that the rules of fairness are scrupulously adhered to. In the context of the aforesaid enunciation of law, the power to take subsequent events into consideration for moulding the relief being a equitable power, the same cannot be exercised in the present case inasmuch as the tenant is alleged to have conspired in the murdering of the landlord and has been since challaned inter alia for an offence under Section 302 IPC read with Section 120B IPC. 14. As far as the contention of Mr. 14. As far as the contention of Mr. Goyal with regard to delay in filing the eviction petition only in 2004 subsequent to retirement of the landlord in the 1992 is concerned in my considered view, the delay in filing of eviction petition is of no avail for concluding that there was no bonafide or reasonable necessity of the landlord. The issue of delay would be relevant only where a cause of action was capable of being ascertained and delay in filing the eviction petition cannot be set up as a defence vacuously. To set up a defence on delay, the defendant would in law be required to establish factual material in the original proceedings to identify the cause of action. The defendant's purported cause of action would then compete with the plaintiff's cause of action and conclusion arrived by the original court on the issue as to when the cause of action arose. Then would delay be capable of being ascertained with all its consequences on the ground of bonafide and reasonable need of the landlord. This has not been done in the present case. Without any factual foundation in the written statement, without any evidence in support of a specific plea taken, the ground of bonafide and reasonable necessity of the landlord has been sought to be negated by a vacuous argument of delay in filing the eviction petition 12 years after the retirement of the landlord. There could not be any presumption in law as to the time when the bonafide and reasonable need of the landlord for the tenanted premises would arise. This is a question of fact–which can vary from the case to case. The judgment of the Hon'ble Supreme Court in the case of Indrasen Jain (supra) is distinguishable. In the said case the current landlord had purchased the tenanted shop. Such a situation does not obtain in the present case. More appropriate to the facts of the case is the conclusion of this court on the issue of delay in filing eviction petition by the landlord in the case of Dinesh Kumar (supra). Further I would even otherwise be disinclined to allow the tenant to agitate this ground in the context of the fact that he himself is an accused duly challaned under Section 302/120B IPC by the police for the murder of the landlord. Further I would even otherwise be disinclined to allow the tenant to agitate this ground in the context of the fact that he himself is an accused duly challaned under Section 302/120B IPC by the police for the murder of the landlord. Also, on account of equity and of morality, the tenant cannot be in a position to take advantage of his own wrong doing. 15. As stated earlier in the judgment, the issue of bonafide and reasonable necessity of the landlord is a question of fact on which concurrent findings against the tenant cannot be addressed–in the absence of perversity–in exercise of jurisdiction under Article 227 of the Constitution of India. There is no misdirection in law as the landlord was 69 years of age and reasonably healthy to seek to commence a small business both to keep occupied and supplement his retiral pension. The scope of the power of this Court in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India more so in tenant and landlord dispute is extremely narrow as held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty (supra). 16. In my considered view there is no force in the petition and the liable to be dismissed. Certificate of possession issued by the Tribunal under its order dated 19.9.2007 and sustained and upheld by the Appellate Rent Tribunal under its order dated 19.11.2008 would liable to be executed in accordance with law.