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2014 DIGILAW 2075 (RAJ)

Manohar Lal Bagani v. Leela

2014-12-10

VINEET KOTHARI

body2014
Judgment Vineet Kothari, J. 1. The appellant/defendant/tenant has preferred this second appeal against the judgment and decree dated 07.11.2006 passed by learned Additional District Judge No.3, Jodhpur in Civil Appeal (Decree) No.73/2005, whereby the first appeal filed by the appellant/defendant has been dismissed while affirming the judgment and eviction decree dated 30.08.2005 passed by learned Civil Judge (Jr. Division) No.2,. Jodhpur in Civil Original Suit No.66/2003-Leela & Anr. Vs. Manohar Lal Bagani, whereby suit filed by the plaintiffs seeking eviction of the defendant/tenant from the suit shop in question on the ground of personal and bonafide necessity, has been decreed in favour of respondents/plaintiffs. 2. Briefly stated, the facts of the case are that the respondents/plaintiffs, Smt. Leela W/o Sh. Dayaldas and Manohar Lal S/o Sh. Govind Ram, filed the suit under the provisions of Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (for brevity, hereinafter referred to as 'Act of 1950') for seeking eviction of the appellant/defendant from the suit in the capacity of members of Joint Hindu Family. The shop shop in question, situated at 1st B Road, Sardarpura, Jodhpur, was let out to the appellant/defendant. In the suit shop, the defendant is carrying on the business of shoes in the name of style of “Maya Chappals”. The plaintiffs sought eviction on the ground of personal and bonafide necessity of plaintiff No.2, Manohar Lal. The plaintiff No.1, Smt. Leela Devi, is the wife of Sh. Dayaldas, who is the real brother of the respondent No.2/plaintiff No.2. Since, Sh. Dayaldas was living in Hongkong with his family for long period, the present suit was filed by the plaintiffs. 3. The defendant/appellant filed his written statement and denied the factum of property belonging to Hindu Undivided Family and pleaded that the plaintiffs have no bonafide need. 4. Against the concurrent judgment and decree of the courts below, the present second appeal was admitted by the coordinate bench of this Court on 27.04.2007 and following substantial question of law was framed by this Court: “1. Whether a person who is not a family member of the owner of the rented premises can or owner of the property can maintain the suit for eviction of the tenant on the ground of need of the rent collector who happens to be landlord as defined under Section 3(3) of the Act of 1950?” 5. Mr. R.K. Thanvi, Sr. Advocate, assisted by Mr. Mr. R.K. Thanvi, Sr. Advocate, assisted by Mr. Narendra Thanvi, learned counsel appearing on behalf of appellant/defendant relied upon the judgment of the Hon'ble Supreme Court in the case of M.M. Quasim Vs. Manohar Lal Sharma reported in AIR 1981 SC 1113 and in the case of Rishabh Chand Bhandari (D) by LR's & Anr. Vs. National Engineering Industry Ltd. reported in 2010 (1) CCC 68 (SC). He also relied upon the judgment of Andhra Pradesh High Court in the case of B. Vinod Kumar Vs. D. Ravindernath reported in 1985 (2) Rent Control Reporter 663. Relying upon these judgments, learned counsel for the appellant/defendant submitted that the plaintiff No.2, namely, Manohar Lal, himself could not even file suit for eviction much less on the personal necessity of his own because he was neither the owner of the property and was merely the rent collector, therefore, even though he fell within the definition of 'landlord' under Section 3(iii) of the Act of 1950, but Clause (h) of Section 13(1) of the Act of 1950, which is relevant provision for seeking eviction on the ground of personal, reasonable and bonafide necessity of the landlord or his family member, does not permit such person, who is not the owner of the property and the sole right to occupy the suit premises i.e. shop in question cannot seek eviction on such grounds. He also read before the Court the statement of plaintiff No.2, Manohar Lal, recorded by the trial court on 22.01.2004, in the cross-examination of which, he has admitted that he was merely a rent collector on behalf of his elder brother, namely, Sh. Dayaldas, husband of the plaintiff No.1, and Sh. Dayaldas was the owner of the said property. 6. Mr. Thanvi, therefore, submitted that the substantial question of law framed as above, deserves to be answered in favour of appellant/defendants and the eviction decree granted by the courts below deserves to be reversed. 7. On the other hand, Mr. Ashok Patel, learned counsel appearing on behalf of respondents/plaintiffs (landlord) urged that the shop in question is a joint family property, of which, Sh. 7. On the other hand, Mr. Ashok Patel, learned counsel appearing on behalf of respondents/plaintiffs (landlord) urged that the shop in question is a joint family property, of which, Sh. Dayaldas, being the elder brother, was “Karta” at the relevant point of time and since he was living in Hongkong, therefore, his wife, Smt. Leela (plaintiff No.1) joined as plaintiff and filed the present suit for eviction on the ground personal and bonafide necessity of the plaintiff No.2, Manohar Lal, who being the brother of Dayaldas, was and is definitely a family member and, therefore, the eviction could be sought on the grounds as specified in Section 13(1)(h) of the Act of 1950. He, therefore, submitted the judgments relied upon by the learned counsel for the appellants/defendants are not applicable to the facts of the present case and the eviction decree concurrently given by the courts below, deserves to be upheld. 8. I have heard the learned counsel for the parties at length and perused the record and judgments cited at Bar. 9. Section 13 of the Act of 1950 provide for eviction on specified grounds. For the purpose of ready reference, the Section 13(1)(h) reads as under:- “13. Eviction of tenants.: -(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied- (a) ..... (b). .... (h). that the premises are required reasonably and bonafide by the landlord:- (i) for the use of occupation of himself or his family; or (ii) for the use or occupation of any person for whose benefit the premises are held; or (iii) for public purpose; or (iv) for philanthropic use; or.” 10. The word “Landlord” is defined under Section 3 (iii) of the Act of 1950, which reads as under:- “(iii). The word “Landlord” is defined under Section 3 (iii) of the Act of 1950, which reads as under:- “(iii). “Landlord” means any persons who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account of as an agent, trustee, guardian or receiver or any other person, or who would so receive or be entitled to receive the rent, if the premises are let to a tenant; it includes a tenant in relation to a sub-tenant.” 11. From a bare perusal of the definition of 'landlord' it is beyond the pale of doubt that the plaintiff No.2, Manohar Lal, also clearly fell within the definition of 'landlord', which proposition is not even disputed by the learned counsel for the appellant/tenant. But, the question only raised is whether such landlord even falling within the definition of 'landlord', as defined u/s 3(iii) of the Act of 1950 being a rent collector, could file the eviction suit on the grounds as specified in Clause (h) of the Section 13(1) of the Act or not. A closer look at the grounds specified under Clause (h) would reveal that the words are 'premises are required reasonably and bonafidely by the landlord, (i) for the use of occupation of himself of his family (ii) for the use or occupation of any person for whose benefit the premises are held, (iii) for public purpose and (iv) for philanthropic use. 12. The grounds of Clause (h) are not narrowly couched but widely worded. In view of the fact that the suit property in question was a Joint Hindu Family property and the elder brother Dayaldas, was described as “Karta” of said HUF, the statement of plaintiff No.2, Manoharlal, is already before this Court that Dayaldas, was the owner of the suit property, does not make him the exclusive owner of the suit property. Not only the owner but even a rent collector falls within the definition of 'landlord' as defined under Section 3(iii) of the Act of 1950. There is no occasion for the word 'landlord' to be interpreted differently while interpreting different provisions of the Act. For Clause (h) also the word 'landlord' would include the 'rent collector' and he can also be the 'family member' of the 'landlord'. There is no occasion for the word 'landlord' to be interpreted differently while interpreting different provisions of the Act. For Clause (h) also the word 'landlord' would include the 'rent collector' and he can also be the 'family member' of the 'landlord'. There may not be a sole owner of the property in question, therefore, his right to use the suit premises after eviction solely to the exclusion of the entire world is not envisaged in Section 13(1)(h) of the Act of 1950. The only criteria is that the premises are reasonably and bonafidely required, by the landlord for occupation of himself or the family. Clause (ii) of Clause (h) further enlarges it to for the benefit of any person for whose benefit the premises are held, therefore, even brother of the sole owner even assuming for arguments' sake, that Dadyaldas was the soler owner of the property, would include his brother Manoharlal, in the definition of 'family member' and Dayaldas as well as his wife, Smt. Leela (plaintiff No.1) acting on his behalf, could seek eviction of the tenant on the grounds specified in Clause (h) of Section 13(1) of the Act of 1950. 13. The judgment in the case of M.M. Quasim (supra) relied upon by the learned counsel for the appellant/defendant, Mr. R.K. Thanvi, where in para 14 of the judgment, the Hon'ble Apex Court held that person claiming possession on the ground of his reasonable requirement of the leased building must show that he is a landlord in the sense that he is owner of the building and has a right to occupy the same in his own right, does not apply in the facts of the present case, inasmuch as here the plaintiffs are two in number, not only the rent collector (Manoharlal) but also plaintiff No.1, namely, Smt. Leela W/o Dayaldas also. The suit has been jointly filed by both these persons. It is not even disputed that both of them fall within the definition of 'landlord'. It is also not disputed that the plaintiff No.2, Manohar Lal, is the real brother of Sh. Dayaldas and, therefore, a family member of plaintiff No.1 and her husband, Sh. Dayaldas. The suit has been jointly filed by both these persons. It is not even disputed that both of them fall within the definition of 'landlord'. It is also not disputed that the plaintiff No.2, Manohar Lal, is the real brother of Sh. Dayaldas and, therefore, a family member of plaintiff No.1 and her husband, Sh. Dayaldas. Therefore, had said Manoharlal merely being a rent collector filed the present suit on the grounds specified in Clause 13(1)(h) of the Act of 1950, perhaps the judgment relied upon by the learned counsel for the appellants could be of some use or help to him, but here the facts are entirely different. Once, the court comes to the conclusion that even the plaintiff No.2, Manoharlal is landlord, as defined in Section 3(iii) of the Act, he along-with plaintiff No.1, Smt. Leela (“Bhabhi”/sister-in-law) filed the suit for personal bonafide necessity of plaintiff No.2, the locus of plaintiff No.2, to file the suit alone is not even relevant question and, therefore, the judgments relied upon by the learned counsel for the appellant/defendant are clearly distinguishable. 14. As far as eviction on the ground of personal and bonafide necessity of the plaintiffs is concerned, it well settled that these are findings of facts and unless such findings are shown to be perverse, based on no material or irrelevant evidence, they cannot be questioned in second appeal under Section 100 of CPC, 1908, nor any such substantial questions of law have been framed by this Court while admitting the present appeal. 15. The upshot of the above discussion is that the present second appeal of the appellant/defendant/tenant preferred against the concurrent judgment and decree, is bereft of any merit and the same is hereby dismissed. No order as to costs. 16. 15. The upshot of the above discussion is that the present second appeal of the appellant/defendant/tenant preferred against the concurrent judgment and decree, is bereft of any merit and the same is hereby dismissed. No order as to costs. 16. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit shop situated at 1st B Road, Sardarpura, Jodhpur, to the respondent-plaintiff within a period of six months from today i.e. on or before 10th June 2015 shall pay mesne profit @ Rs.7,500/-per month commencing from January, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent also and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within six months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.