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2014 DIGILAW 1438 (RAJ)

Ramdayal v. Bhawani Shanker

2014-07-30

SANGEET LODHA

body2014
Hon'ble LODHA, J.—This petition is directed against the judgment and order dated 3.1.14 passed by the Appellate Rent Tribunal, Bikaner in Appeal No.27/12, whereby the judgment and order dated 7.2.12 passed by the Rent Tribunal, Bikaner in Rent Case No.63/08, allowing the petition preferred by the respondents-landlord, seeking eviction of the petitioners-tenant from the rented premises, stands affirmed. 2. The respondents-landlord filed a petition before the Rent Tribunal, Bikaner, seeking eviction of the petitioners from the rented premises, a shop. The eviction was sought on the ground of reasonable & bona fide requirement in terms of provisions of Section 9(i) of the Rent Control Act, 2001(in short “the Act of 2001”). 3. The premises in question occupied by the petitioners as tenant was purchased by the respondents from the erstwhile landlord of the petitioners vide a registered sale deed dated 17.1.08. The petition seeking eviction was filed by the respondents pleading bona fide requirement in terms that the second respondent-Dinesh Kumar, who is the son of first respondent is pursuing studies of M.A. (Final) and after completion of his studies he intends to start business of hosiery and readymade garments therein. The respondents pleaded that the petitioner-Radha Kishan has joined government service and the petitioner-Ram Dayal has adopted the profession of advocacy and therefore, the premises is not being used by them. 4. The petition was contested by the petitioners herein by filing a reply thereto. The stand taken by the petitioners was that while purchasing the disputed premised on 8.1.08, the respondents were knowing fully well that the premises is occupied by the petitioners-tenant and they will not vacate the premises. It was contended that the premises was purchased by the respondents with the ulterior motive so as to earn the undue benefits. It was averred that the area of the disputed premises is only 4 X 13 sq. ft. which is insufficient for carrying on business of readymade and hosiery. It was further averred that the second petitioner-Radha Kishna has relinquished his rights of tenancy in favour of his son, the cotenant Ram Dayal, who is accepted to be sole tenant in the premises. Regarding the second petitioner-Ram Dayal joining the profession of advocacy, it was averred that he has already taken the proceedings with Bar Council of Rajasthan for suspension of his enrollment as an advocate. 5. Regarding the second petitioner-Ram Dayal joining the profession of advocacy, it was averred that he has already taken the proceedings with Bar Council of Rajasthan for suspension of his enrollment as an advocate. 5. On the basis of the pleadings of the parties, the Rent Tribunal framed the issues in the following terms : ^^¼1½ vk;k oknxzLr ifjlj dh izkFkhZ dks ;qfä;qä vkSj ln~Hkkfod vko';drk gS\ --izkFkhZ ¼2½ vk;k oknxzLr ifjlj dks vizkFkhZ mi;ksx o miHkksx esa ugha ys jgk gS o vdlj can jgrh gS\ --izkFkhZ ¼3½ vk;k jk/kk fd'ku dks vuko';d :i ls i{kdkj cuk;k x;k gS= --vizkFkhZ ¼4½ vuqrks"k\ ¼3,½ D;k vizkFkhZ ds odkyr dh lun fuyfEcr gks pqdh gS\ ;fn gka rks nkos ij bldk d;k vlj gksxk\ --vizkFkhZ 6. The parties led their evidence. After due consideration of the evidence on record, the Rent Tribunal arrived at the finding that reasonable and bona fide requirement of the premises as pleaded by the respondents stands proved. Accordingly, vide judgment and order dated 7.2.12, the petition preferred by the respondents seeking eviction of the petitioners in terms of provisions of Section 9(i) of the Act, was allowed. Aggrieved by the judgment and order dated 7.2.12 passed by the Rent Tribunal, allowing the petition seeking eviction, the petitioners herein preferred an appeal before the Appellate Rent Tribunal, Bikaner, which stands dismissed by the order impugned. Hence, this petition. 7. Learned counsel for the petitioners contended that the Appellate Rent Tribunal has seriously erred in affirming the findings arrived at by the Rent Tribunal on the issue of reasonable and bona fide requirement of the respondents of the premises in question. Learned counsel submitted that the premises in question was purchased by the respondents knowing full well that it is occupied by the tenant and it will be difficult to get the same vacated. Learned counsel submitted that the petitioners never promised the respondents that they will vacate the premises. Learned counsel submitted that Section 9 of the Act of 2001, is non obstante clause and in terms thereof any promise made for vacating the premises is illegal and void and therefore, cannot be enforced. Learned counsel submitted that the petitioners never promised the respondents that they will vacate the premises. Learned counsel submitted that Section 9 of the Act of 2001, is non obstante clause and in terms thereof any promise made for vacating the premises is illegal and void and therefore, cannot be enforced. Learned counsel submitted that in terms of provisions of Section 9(i) the bona fide requirement of the landlord of the premises must exists as on the date of filing of the petition and it cannot relate to any future requirement of the premises and therefore, the petition preferred by the respondents pleading bona fide requirement of the premises by the second respondent in future was not maintainable. Learned counsel submitted that when the respondents have purchased the premises with the full knowledge of the fact that it is occupied by a tenant, the bona fide requirement of the premises as pleaded, apparently lacks bona fides. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of 'Indrasen Jain vs. Rameshwardas', AIR 2005 SC 578 . 8. On the other hand, learned counsel appearing for the respondents submitted that the respondents having purchased the disputed premises are well within their right to seek eviction of the tenant from the premises in question on all available grounds in terms of the provisions of Act of 2001.Learned counsel submitted that the purchase of the premises by the landlord with pre existing tenant cannot be a ground to deny the eviction of the tenant on the ground of reasonable and bona fide requirement. In this regard, learned counsel has relied upon a decision of this Court in the matter of 'Rajesh Kumar and Another vs. Smt. Shashi Agrawal and Others', 2013 CJ (Rent Control) 80 = 2013(2) RLW 929 and a decision of Bombay High Court in the matter of 'Gurulingappa Sharnappa Birajdar, since deceased through legal heirs and representatives Ashok Kumar Gurulingappa Birajdar and another vs. Sidramappa Ganpatrao Mulge and Others', 2009(2) Rent Law Report 178. Learned counsel submitted that Section 9(i) of the Act of 2001 providing for eviction of the tenant on the ground of reasonable and bona fide requirement of the premises cannot be given restrict meaning so as to include only the bona fide requirement of the premises as on the date of filing the petition. Learned counsel submitted that Section 9(i) of the Act of 2001 providing for eviction of the tenant on the ground of reasonable and bona fide requirement of the premises cannot be given restrict meaning so as to include only the bona fide requirement of the premises as on the date of filing the petition. Learned counsel submitted that the requirement of the premises by the landlord in near future is also included within the expression 'the premises are required reasonably and bona fide by the landlord' used in Section 9(i) of the Act of 2001. Learned counsel submitted that the landlord is the best judge to assess his necessity and the tenant cannot dictate terms. In this regard, learned counsel has relied upon a decision of this Court in the matter of 'Shyma Mahatma vs. Shri Babu Khan', 2009(2) RLW 1495 (Raj.). Learned counsel submitted that the findings arrived at by the Rent Tribunal regarding reasonable and bona fide requirement of the premises by the respondents, affirmed by the Appellate Rent Tribunal, after due appreciation of evidence on record, cannot be said to be capricious or perverse so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 9. Replying the arguments advanced on behalf of the respondents, learned counsel for the petitioners urged that the respondents have not been able to establish the bona fide requirement of the premises as on the date of filing of the petition and therefore, in absence of cause of action as on the date, the petition was not maintainable before the Rent Tribunal. 10. I have considered the rival submissions and perused the material on record. 11. Section 9 of the Act of 2001 while providing for the specified grounds on which the landlord can get the premises vacated, also provides for inbuilt protection to the tenants against eviction by the landlord at his whims and fancy. But then, the fact remains that in respect of the tenancy governed by the provisions of the Act of 2001, a landlord who did not be necessarily the owner of the premises, has a right to get the premises vacated on any of the grounds specified under Section 9 of the Act. But then, the fact remains that in respect of the tenancy governed by the provisions of the Act of 2001, a landlord who did not be necessarily the owner of the premises, has a right to get the premises vacated on any of the grounds specified under Section 9 of the Act. It is pertinent to note that neither the right of the owner of a premises occupied by a tenant to transfer his property is restricted under the law nor the exercise of the rights of a person acquiring status of a landlord available under the Act of 2001 are restricted in any manner merely because, he has purchased the property occupied by the tenant and therefore, the respondents-landlord who have purchased the premises occupied by the petitioners, from its owner, have every right to seek eviction of the petitioners on all available grounds as provided for under Section 9 of the Act of 2001. 12. It is true that while seeking eviction of a tenant on the grounds specified under Section 9 (i) of the Act of 2001, a landlord is required to establish that the premises is required reasonably and bona fide for own use or occupation of himself or his family or for the use and occupation of a person whose benefits the premises is held. But then, the question with regard to reasonable and bona fide requirement of the premises in terms of Section 9(i) of the Act has to be determined by the Rent Tribunal in each case, taking into consideration the evidence led by the parties in this regard. In any case, merely because a person has purchased the property occupied by a tenant cannot be a basis to draw a presumption that the requirement of the premises as pleaded by such landlord is not bona fide. 13. In any case, merely because a person has purchased the property occupied by a tenant cannot be a basis to draw a presumption that the requirement of the premises as pleaded by such landlord is not bona fide. 13. In Indrasen Jain's case (supra), where the landlord retiring as Principal from private school purchased already rented property five years after his retirement and issued notice of eviction to the tenant after a lapse of more than one year, the Hon'ble Supreme Court observed that if the landlord for the purposes of looking himself occupied after his retirement needed to do a business, he would have felt such a need soon after his retirement in the year 1994 whereas, the suit property was purchased in the year 1999, which shows that he had no intention or desire to start a business. The court observed that even after purchasing the property in the year 1999, the landlord waited for more than a year and issued a notice to the tenant in February,2001 and instituted eviction petition in the end of May,2001 i.e. after a lapse of one and half years after the purchase of property. Thus, taking into consideration, the sequence of event, the court arrived at the finding that bona fides on the part of the landlord in setting up a case of bona fide requirement of the premises is lacking. 14. Suffice it to say that in the said decision, the Hon'ble Supreme Court has nowhere laid down the law of universal application that wherever a premises occupied by a tenant is purchased by the landlord and immediately thereafter, if a suit for eviction is preferred on the ground of reasonable and bona fide requirement, lack of bona fides on the part of the landlord in seeking eviction on the ground of bona fide requirement of a suit premises, shall be presumed. Thus, the decision of the Hon'ble Supreme Court in Indrasen's case (supra), also does not help the petitioners in any manner. 15. In Rajesh Kumar's case (supra),where the landlord had purchased the premises occupied by the tenant, a coordinate Bench of this court held that there is nothing inherently impermissible in the landlord purchasing a shop with a pre-existing tenancy and thereafter seeking its vacation by an eviction petition inter alia on the grounds of bona fide and reasonable need. 15. In Rajesh Kumar's case (supra),where the landlord had purchased the premises occupied by the tenant, a coordinate Bench of this court held that there is nothing inherently impermissible in the landlord purchasing a shop with a pre-existing tenancy and thereafter seeking its vacation by an eviction petition inter alia on the grounds of bona fide and reasonable need. The court observed that the pre-existence tenancy cannot in law by itself detract from the claim of bona fide and reasonable need of the said shop by the landlords for their disclosed need of business requirement of their husbands. 16. In Gurulingappa Sharnappa Birajdar's case (supra), the Bombay High Court held that landlord purchasing the suit property with full knowledge that suit premises were already occupied by tenant would not preclude him from pursuing the remedy of possession on the ground of his bona fide and reasonable requirement. 17. In Chunni Lal's case (supra), the plaintiff let out two shops in the year 1981-82 and thereafter, filed a suit for eviction of the tenant occupying yet another shop on 1.6.84 on the ground of his need for doing the business of tailoring in the disputed shop after his retirement. The plaintiff was to retire in the year 1985 however, the age of retirement was extended and therefore, he retired on 31.3.88. The trial court and the first appellate court found that the bona fide need as pleaded by the plaintiff is not proved. Reversing the judgment and decree passed by the trial court as also by the first appellate court, this court held that the courts below erred in holding that if there was a future need, the plaintiff would not have let out his two shops in the year 1981-82. The court observed that the plaintiff being owner of the property was the best judge to manage the same and it is not expected from him that he will keep the shops vacant till his actual need arises. 18. In view of the discussion above, in the considered opinion of this court, the contention of the petitioners that the requirement of the premises pleaded by the respondent-landlord lacks bona fide inasmuch as, he has purchased the property knowing fully well that the same is occupied by a tenant, is absolutely devoid of any merit. 19. 18. In view of the discussion above, in the considered opinion of this court, the contention of the petitioners that the requirement of the premises pleaded by the respondent-landlord lacks bona fide inasmuch as, he has purchased the property knowing fully well that the same is occupied by a tenant, is absolutely devoid of any merit. 19. Coming to the contention of the learned counsel for the petitioners that the reasonable and bona fide requirement of the premises must actually exists on the date of filing of the petition before the Rent Tribunal, undoubtedly, as per the provisions of Section 9 of the Act of 2001, a landlord seeking eviction of the tenant from the rented premises on the ground of reasonable and bona fide requirement, must satisfy the Rent Tribunal that the premises is required reasonably and bona fide by him for the use and occupation of himself or his family or for the use and occupation of any person for whose benefit, the premises are held but then, from the provisions incorporated in no manner, it can be inferred that the bona fide requirement of the premises should be time specific i.e. as on the date of filing the petition. Obviously, the landlord has a right to manage and plan the use of the premises according to his need, which obviously includes the requirement of the premises in future and therefore, the landlord is not precluded from seeking eviction of the tenant from the premises keeping in view his bona fide requirement in near future. As a matter of fact, it will be absurd to suggest that the landlord should wait for filing of the eviction petition till the date actual need arises and the idea of intended use of the premises should be deferred by him till the litigation seeking eviction remains pending before the Rent Tribunal. Thus, this court is firmly of the opinion that a landlord is entitled to file a petition seeking eviction, in terms of provisions of Section 9(i) of the Act of 2001, on the ground of reasonable and bona fide requirement of the premises bound to arise in near future. 20. Thus, this court is firmly of the opinion that a landlord is entitled to file a petition seeking eviction, in terms of provisions of Section 9(i) of the Act of 2001, on the ground of reasonable and bona fide requirement of the premises bound to arise in near future. 20. Adverting to the facts of the present case, it is to be noticed that in the instant case, the respondents-landlord had pleaded bona fide requirement of the premises for the son of second respondent, who was pursuing the studies of M.A. Final at the relevant time and had intention to start business of readymade garments therein. After objective consideration of the evidence on record, the Rent Tribunal arrived at a categorical finding that the bona fide requirement of the premises as pleaded by the respondents-landlord stands proved. The contention of the petitioners-tenant regarding non suitability of the premises for the business of readymade and hosiery, the Rent Tribunal opined that the small area of the disputed shop cannot be a ground to draw a conclusion that bona fide requirement as pleaded is superficial. It is well settled that the landlord is the best judge of his necessity and the tenant cannot dictate terms in this regard to the landlord. It is for the respondent-landlord to decide as to in what manner, he will manage his intended business in the premises sought to be evicted. Thus, on the facts and in the circumstances of the case, the findings arrived at by the Rent Tribunal regarding the bona fide requirement of the premises by the landlord, affirmed by the Appellate Rent Tribunal cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 21. In the result, the petition fails, it is hereby dismissed. No order as to costs.