Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 547 (RAJ)

Phool Chand v. Rent Tribunal Baran

2013-03-07

ALOK SHARMA

body2013
Hon'ble SHARMA, J.—This petition under Articles 226 and 227 of the Constitution of India challenges the order dated 1.11.2012 passed by the Appellate Rent Tribunal Baran (hereinafter the `Appellate Tribunal') allowing an appeal filed by respondent No.3 landlord (hereinafter `the landlord') against the petitioner tenant (hereinafter `the tenant') and holding that the landlord was entitled to a certificate of possession of the tenanted premises on the ground of the tenant being in default with reference to Section 9(a) of the Rajasthan Rent Control Act, 2001 (hereinafter `2001 Act') and on the ground that the tenant had acquired vacant possession of a suitable premises adequate for his requirement covered under section 9(j) of the 2001 Act. 2. The facts of the case that the tenant was in use and occupation of the premises situate in Rajpura ward, near Narsingh Temple, Baran belonging to the landlord on a monthly rent of Rs.20/-. The landlord filed a petition (22/ 2010) on 27.3.2010 before the Rent Tribunal, Baran (hereinafter `the Tribunal') for revision of rent under Section 6 of the 2001 Act and for eviction of the tenant under Section 9 thereof inter alia on the grounds of default, material alteration, bonafide and reasonable need to repair the premises which were in a dilapidated condition and on the ground of tenant having acquired vacant possession of suitable premises in Uttam colony Baran, adequate for his requirement. On notices being issued on the petition, reply thereto was filed and the eviction petition was contested. The tenancy was admitted but the grounds agitated by the landlord for eviction under the provisions of Section 9 of the 2001 Act denied. Of chief relevance to this petition was the denial that the tenant had vacant possession of premises adequate to his requirement. The Rent Tribunal, Baran framed 8 issues on the pleadings of parties. Evidences were led before the Tribunal by the two parties. 3. Even though the Tribunal allowed the application for revision of rent in respect of tenanted premises with reference to Section 6 of the 2001 Act, yet it proceeded to dismiss under its order dated 25.1.2012 the eviction petition negating all grounds on which eviction petition was filed with reference to Section 9 of the 2001 Act. 4. 3. Even though the Tribunal allowed the application for revision of rent in respect of tenanted premises with reference to Section 6 of the 2001 Act, yet it proceeded to dismiss under its order dated 25.1.2012 the eviction petition negating all grounds on which eviction petition was filed with reference to Section 9 of the 2001 Act. 4. The landlord aggrieved of the rejection of the eviction petition agitated by him before the Tribunal filed an appeal under Section 19 of the 2001 Act against the order dated 25.1.2012 passed by the Tribunal. The tenant however did not challenge the order of the Tribunal, in so far as it pertained to revision of rent as statutorily mandated under section 6 of the 2001 Act. 5. The Appellate Tribunal on consideration of the evidences as laid proceeded to find that the appeal of the landlord was liable to succeed on the ground of the tenant having defaulted in payment of rent for a period of four months immediately preceding the filing of the petition with reference to 9(a) of the 2001 Act and also on the ground that the tenant had acquired vacant possession of suitable premises adequate for his requirement—9(f) of the 2001 Act. The appeal filed by the landlord vide order dated 1.11.2012 was allowed and a certificate of possession issued by the Appellate Tribunal. Hence this petition. 6. Mr. B.L. Mandhana, learned counsel appearing on behalf of the tenant has submitted that the impugned order dated 1.11.2012 passed by the Appellate Tribunal is liable to be set aside for being perverse and misdirected in law. He submits that no order of eviction on the ground of default within the meaning of section 9(a) of the 2001 Act was justified as it was not established before the Tribunal that the landlord had notified the tenant by registered post acknowledgement due demanding arrears of rent for four months or more and that the tenant had thereafter not made payment of arrears of rent within thirty days from the date of service of notice. He submits that the second proviso to section 9(a) of the 2001 Act provides that no petition on the ground of default “shall be filed” without the requisite notice having been served prior to the laying of the eviction petition on the ground of default. 7. Mr. He submits that the second proviso to section 9(a) of the 2001 Act provides that no petition on the ground of default “shall be filed” without the requisite notice having been served prior to the laying of the eviction petition on the ground of default. 7. Mr. B.L. Mandhana has further submitted that the Appellate Tribunal has also erred in law in misinterpreting the provisions of Section 9(j) of the 2001 Act and in finding that the acquisition of vacant possession of suitable premises by the wife of the tenant tantamounted to an acquisition of vacant possession of suitable premises by the husband-tenant himself. Counsel submitted that the word used in section 9(j) of the 2001 Act is “tenant” which as defined in clause (i) sub-section (i) of section 2 of the 2001 Act means the person by whom or on whose account or behalf rent is paid in respect of tenanted premises to the landlord. He submits that it is not in dispute that the petitioner tenant alone had paid the rent to the landlord for the premises in his occupation and consequently it was the petitioner who alone could be construed as the tenant. It was submitted that the wife of the tenant would not be covered within the word “tenant” as defined in clause (i) of sub-section (i) of Section 2 of the 2001 Act. Mr. Mandhana submits that consequently the acquisition of premises by the wife could not be construed as the acquisition of vacant possession of a suitable premises by the tenant adequate for his requirement, entailing making out of a ground for his eviction under section 9(j) of the 2001 Act. It is further submitted that aside of the aforesaid, it was incumbent upon the landlord to satisfy the Tribunal—which he did not—that the premises in question purportedly acquired by the wife of the tenant, were suitable for the requirement of the tenant. Counsel submitted that this was not done and no evidence on the issue of adequacy or suitability of the premises acquired by the petitioner's wife was led before the Tribunal. Counsel submitted that this was not done and no evidence on the issue of adequacy or suitability of the premises acquired by the petitioner's wife was led before the Tribunal. Consequently argued, emphatically, the counsel for the petitioner, the Appellate Tribunal had not only committed a gross legal error in holding that the tenant had acquired vacant possession of premises but also compounded the said error in concluding that the said vacant premises acquired were suitable and adequate for the requirement of the tenant. Mr. Mandhana has placed reliance on a judgment of the Hon'ble Supreme Court in case of B.R. Mehta vs. Atma Devi ( AIR 1987 SC 2220 ) to contend that the Hon'ble Supreme Court therein has held that the acquisition of vacant possession of premises by the wife of a tenant could not be construed as acquisition of vacant possession by the tenant to bring the case of tenant within the mischief of Section 14(1)(h) of the Delhi Rent Control Act, 1958, which provision is para materia with Section 9(i) of the 2001 Act. It was thus submitted that the judgment of the Appellate Rent Tribunal dated 1.11.2012 is liable to be quashed and set aside. 8. Per contra, Mr. Amit Jindal, learned counsel appearing on behalf of the landlord submits that he does not press the ground with regard to the tenant having defaulted in payment of rent, inasmuch as it is apparent that the pre condition for agitating such a ground as mandated by second proviso to Section 9(a) of the 2001 Act does not appear to have been satisfied and no notice by registered post appears to have been issued to the tenant with acknowledgment due demanding arrears of rent for four months or more, disclosing the bank account of the landlord and the name of the Bank of the landlord to facilitate the tenant in payment of rent in arrears within thirty days from the date of service of notice. 9. Mr. Amit Jindal, however emphatically submitted that the ground of eviction under section 9(j) of the 2001 Act was made out and has been so rightly held by the learned Appellate Tribunal. 9. Mr. Amit Jindal, however emphatically submitted that the ground of eviction under section 9(j) of the 2001 Act was made out and has been so rightly held by the learned Appellate Tribunal. Counsel submits that the judgment of the Hon'ble Supreme Court in case of B.R. Mehta (supra), relied upon by the learned counsel for the tenant, turned on its own facts and was in-apposite to the facts of the present case. Counsel submits that in the case of B.R. Mehta (supra) the Hon'ble Supreme Court took into consideration the peculiar facts of that case before it where the wife of the tenant, working as a school teacher, had been allotted only a temporary government accommodation, on her own askance in the context of disharmonious matrimonial relations with her husband at the relevant time. Mr. Jindal points out that aside of the aforesaid important facts, at the time of appeal being heard before the Hon'ble Supreme Court, the wife of the tenant had resigned from her job as school teacher, reconciled with her husband and come back to the tenanted premises occupied by her husband, against whom the courts below had in the meantime issued a decree of eviction on the ground based on Section 14(1)(h) of the Delhi Rent Control Act, 1958 (of the tenant having acquired vacant possession of alternate premises). Mr. Jindal submits that in the obtaining facts on record of the said case, the Hon'ble Supreme Court had held that the tenant could not be stated to have acquired the vacant possession of a suitable alternate premises to furnish the landlord a ground for his eviction on that ground. 10. Counsel submits that in fact a close reading of the judgment of the Hon'ble Supreme Court in case of B.R. Mehta (supra) indicates that the Hon'ble court has held that where for “all practical and real sense” the tenant acquires, builds or is allotted another residence then his need for the old tenanted residence evaporates and the tenant loses his right to retain the tenanted premises. That was the rationale behind the scheme of Section 14(1)(h) of the Delhi Rent Control Act, 1958 the Hon'ble Supreme Court in fact had found. Mr. That was the rationale behind the scheme of Section 14(1)(h) of the Delhi Rent Control Act, 1958 the Hon'ble Supreme Court in fact had found. Mr. Jindal submits that it is thus evident that the Hon'ble Supreme Court has effectively held that the question of a tenant having acquired vacant possession of a suitable premises was a question of fact determinable with reference to the evidence on record in a particular case. No immutable principle of law, as having been enunciated by the Hon'ble Supreme Court, can be culled out from B.R. Mehta's case that the acquisition of vacant possession of suitable premises by the wife of a tenant cannot in any event or circumstance whatsoever tantamount to acquisition of vacant possession of suitable premises by the husband to entail his ouster from the tenanted premises on the said ground statutorily conferred on the landlord. 11. Mr. Jindal submits that in fact the case of the landlord before this court is more appropriately covered under the dictum of the Hon'ble Supreme Court in the case of Prem Chand vs. Sher Singh (1981 DRJ 287 (SC)), wherein the Hon'ble Supreme Court has held that the purchase of a DDA Flat by the wife of the tenant, tantamounted to the tenant husband, of such wife, having come into vacant possession of an alternate suitable premises within the meaning of Sec. 14(1)(h) of the Act of 1958 entitling the landlord to a decree of eviction against such a tenant. Mr. Jindal has then relied upon a judgment of the Hon'ble Supreme Court in the case of Narender vs. Pradeep Kumar (2005(2) WLC (SC) Civil 44), wherein the Hon'ble Court upheld with approval the finding of the Additional Rent Controller, Delhi in proceedings under Section 14(1)(h) of the Delhi Rent Control Act, 1958 that the wife of a tenant having purchased a flat, the tenant would be taken to have himself acquired vacant possession of a suitable accommodation relating to his requirement. 12. Mr. Jindal has then drawn the attention of this court to the evidence of the landlord and tenant in the present case before the Tribunal, where from it is clear that the wife of tenant had no independent source of income, but had yet acquired a residential house which was duly registered in her name. 12. Mr. Jindal has then drawn the attention of this court to the evidence of the landlord and tenant in the present case before the Tribunal, where from it is clear that the wife of tenant had no independent source of income, but had yet acquired a residential house which was duly registered in her name. Counsel submits that the residential house being in the name of wife of the tenant, it was for the tenant to establish before the Tribunal with reference to the principle best of evidence under section 106 of the Evidence Act that the said house had been acquired by the tenant's wife out of her own funds and that in the state of strained relationship between the husband and wife, the tenant was not entitled to use and occupy the house acquired by his wife as her spouse. Mr. Jindal has further submitted that aside of aforesaid, this court should also hold that once the burden had been discharged by the landlord establishing that the tenant through his wife had acquired vacant possession of suitable premises adequate for his requirement, the onus of proof was on the tenant to contend in his pleadings and prove in rebuttal evidence that the house so acquired by his wife was not suitable and adequate for his requirements. Reference in this regard was made by counsel to the judgment of the Apex Court in case of L.N. Gadodia vs. Regional Provident Fund Commissioner ( (2011) 13 SCC 517 ) to contend that though a burden is always on the plaintiff who asserts the positive but after it is initially discharged, the onus shifts to the other party in whose possession the best evidence is to discharge the rule of the plaintiff's evidence by bringing the best evidence in his possession on the record of the court to overcome its effect. In the case of Gadodia (supra) the Hon'ble Supreme Court has held that when any fact is especially within the knowledge of any person, the burden of proving such fact lies on him, as this rule of logic emanates from Section 106 of the Evidence Act, and the failure to do so would entail the drawing of necessary adverse inference against such a person. Counsel submits that from the evidence before the Tribunal it being established that the tenant's wife without any independent source of income had acquired vacant possession of a house and the tenant having failed to establish that the house acquired by his wife was not adequate and suitable to his requirement, the ground under section 9(j) of the 2001 Act was fully made out against the tenant warranting his eviction. Counsel submits that his submissions are based on a wholistic reading of the provisions of Sections 101, 102 and 106 of the Evidence Act. 13. Heard learned counsel for the parties and perused the material available on record, including the impugned order dated 1.11.2012 passed by the Appellate Tribunal. 14. In my considered view a vacant house acquired by a non-working wife of a tenant not in conflict with her husband will in tenancy law have to be construed as a house acquired by the husband- tenant himself for determining as to whether a ground for eviction of the husband as a tenant is made out under Section 9(j) of the 2001 Act. For coming to this conclusion this court is fortified by the judgments of the Hon'ble Supreme Court in cases of Prem Chand (supra), Narendra (supra), and even the enunciation of law as deter-minable from a close reading of the judgment of the Hon'ble Supreme Court in case of B.R. Mehta (supra). It would be well at this stage to recapitulate the observations of the Hon'ble Supreme Court in the case of B.R. Mehta (supra), wherein it has been observed that where/ in the “practical and real sense” the tenant acquired, built or was allotted another residence then his need for the old tenanted residence would cease and the tenant would lose his right to retain the tenanted premises. The controlling words in the observations of the Hon'ble Supreme Court are “practical and real sense”. It is thus evident that a pragmatic and practical view of the evidence on record of the given case has to be taken. A literal doctrinaire view that vacant possession of premises in the ownership of the wife, for purpose of legislation relating to tenancy laws, can never be taken to be the vacant possession with the husband-as tenant is not in order or permissible/ desirable. A literal doctrinaire view that vacant possession of premises in the ownership of the wife, for purpose of legislation relating to tenancy laws, can never be taken to be the vacant possession with the husband-as tenant is not in order or permissible/ desirable. The Hon'ble Supreme Court in the case of Union of India vs. Filip Tiago De Gama of Vedem Vasco De Gama ( AIR 1990 SC 981 ) has held that where a grammatical or literal interpretation of a statute leads to an absurdity, the courts should eschew such an interpretation and invoke the principles of purposive construction. 15. In the context of the construction of statutes, a bare look at Section 9(j) of the 2001 Act would indicate that amongst the grounds for eviction statutorily provided, the acquisition of vacant possession of a suitable premises adequate for the requirement of the tenant is a ground for the eviction of tenant. If the word 'tenant' were to be literally and mechanically construed it is not difficult for this court to visualise a situation where a tenant could through his family members such as his wife, unmarried sons and daughter own multiple properties and yet continue to invoke the protection of tenancy laws—Act of 2001—defeating its very purpose and object in seeking to strike a balance between the rights of a tenant and of the landlord. Lopsided mechanical protection of tenant was not the purpose of incorporating Section 9(j) into the 2001 Act. The provision in fact is for the protection of the landlord as the 2001 Act sought to balance the rights of the landlord and that of the tenant. Excessive protection to a tenant under the provisions of the Rajasthan Premises (control of Rent and Eviction) Act, 1950 has been done away with the repeal of the said Act. Further the word “tenant” as defined in Section 2(i) of the 2001 Act is by itself subject to the caveat that definitions set out in Section 2 would be subject to the context. The definition of the “tenant” under Section 2(i) of the 2001 Act is thus not absolute and no drag on a purposive and contextual construction for including the spouse of the tenant unless disharmony and judicial separation of the two is established from the evidence on record. The definition of the “tenant” under Section 2(i) of the 2001 Act is thus not absolute and no drag on a purposive and contextual construction for including the spouse of the tenant unless disharmony and judicial separation of the two is established from the evidence on record. In fact the 2001 Act in same way also relates the tenant to the spouse amongst others—as in respect of residential tenancies—by providing that where a tenant expires his spouse, son, daughter, mother and father who had been ordinarily residing with him before his death would also be tenants. In the instant case it is not the case of the appellant that his wife not residing with him or that she was not a housewife or that she had any independent source of income. It was also not the case of the tenant that he did not have cordial relations with his wife or that their marital life was inflicted with disharmony entailing judicial separation which disentitled the tenant from using or occupying his wife's residential premises—standing in her name by a registered sale deed. Thus in the facts of the case, in my considered opinion there is no substance in the reliance placed by tenant's counsel Shri B.L. Mandhana on a partial reading of B.R. Mehta's case which turned on its own peculiar facts. For one, in the B.R. Mehta's case the allotment of a government accommodation to the wife, then a government teacher, was on her askance and only temporary; there was evidence on record that there was disharmony between the husband and the wife owing to which the wife was seeking independent living from her husband; and by the time the matter came up before the Hon'ble Supreme Court for hearing, the wife of the tenant had resigned from the job, reconciled with her husband and returned to live with him while he was continuing as tenant in the tenanted premises. The aforesaid facts to my mind turned the case in favour of the tenant and resulted in the Hon'ble Supreme Court's holding that the tenant in the said case had not acquired vacant possession of the suitable premises adequate for his requirement and was liable to eviction on that ground. Such facts are all evidently absent in the case presently before this court. Such facts are all evidently absent in the case presently before this court. Consequently, the case of B.R. Mehta (supra) can be of a little succor to the petitioner tenant in the present case. The tenant's case here is more fully negated by the judgments of the Hon'ble Supreme Court in the case of Narendra vs. Pradeep Kumar (supra) and Prem Chand vs. Sher Singh (supra). 16. In my considered view, therefore this petition challenging the impugned order dated 1.11.2012 passed by the Appellate Tribunal Baran is liable to fail on the ground of the tenant having acquired through his wife vacant possession of suitable premises adequate for his requirement. I can not find the Appellate Rent Tribunal as having erred in allowing the landlord's appeal on this ground and issuing a certificate of possession in his favour. To this extent the judgment of the Appellate Rent Tribunal passed on 1.11.2012 entitled to be upheld. This petition is therefore deserving of dismissal. Hence dismissed.