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2014 DIGILAW 26 (RAJ)

Nilesh v. Saremal

2014-01-03

GOPAL KRISHAN VYAS

body2014
JUDGMENT 1. - Instant writ petition has been filed by the petitioners to challenge the impugned judgment and certificate dated 17.11.2012 (Annexs.-19 and 20, respectively) passed by the Appellate Rent Tribunal, Udaipur in Civil Appeal No. 16/2007 and prayed that the judgment and certificate passed by the Rent Tribunal, Udaipur may be restored. 2. As per facts of the case, respondent filed eviction petition before the Rent Tribunal, Udaipur against the petitioners on the ground of material alteration, nuisance and bona fide necessity under the Rent Control Act, 2001. After taking into consideration entire facts of the case the Rent Tribunal, Udaipur dismissed the eviction petition on the basis of appreciation of the evidence of PW-1 Saremal, PW-2 Lalit and PW-3 Pratap Singh and other documentary evidence placed on record and statements of NAW-1 Nilesh Sharma, NAW-2 Saroj Sharma, NAW-3 Prem Prakash and NAW-4 Narendra Kumar. According to the petitioners, two applications were filed before the Rent Tribunal under Section 21(3) of the Rent Control Act, 2001 for framing suggested points for determination but the same were rejected by the Tribunal vide order dated 20.5.2004 and order dated 24.5.2007. The Rent Tribunal, Udaipur dismissed the eviction petition vide its judgment dated 5.6.2007 while holding that the landlord applicant has not proved the point of determination with regard to bona fide necessity, material alternation and nuisance by the petitioner-defendants. 3. The respondent preferred appeal before the Appellate Rent Tribunal, Udaipur and the appellate Tribunal after hearing finally passed judgment in appeal on 17.11.2012 whereby the Appellate Rent Tribunal, Udaipur upheld the finding of the Rent Tribunal with regard to issue No. 2 whereby allegation was levelled by the respondent for material alteration and creating nuisance to decide the issue of bona fide necessity in favour of the respondent-appellant on illegal grounds. 4. Learned Counsel for the petitioners vehemently argued that no material evidence was produced by the respondent-applicant before the Rent Tribunal to prove the ground of bona fide necessity and as per assessment of the evidence it is abundantly clear that son of respondent-applicant, Lalit is pursuing business at Srivardhan (Maharashtra) by running medical and general store, therefore, the finding given by the Appellate Rent Tribunal deserves to be quashed. Learned Counsel for the petitioners invited attention of this Court towards the statements of PW-1 Saremal and PW-2 Lalit Kumar and submits that the finding given by the Rent Tribunal was perfectly justified but the Appellate Rent Tribunal illegally disturbed the finding given by the Rent Tribunal with regard to bona fide necessity while misreading the evidence in favour of the respondent-applicant, therefore, the order impugned deserves to be quashed. 5. Per contra, learned Counsel appearing on behalf of the respondent-applicant vehemently argued that no documentary evidence is produced by the petitioners before the Rent Tribunal to prove the fact that Lalit Kumar PW-2 for whom the shop in question is desired is pursuing any business. Merely on the basis of oral evidence, that too, not sufficient to be accepted, the Rent Tribunal dismissed the application. However, the Appellate Rent Tribunal considered the oral evidence of all the witnesses of petitioners and respondent-applicant both and gave clear finding in para 17 of the judgment that respondent-applicant has proved the fact that there is bona fide necessity in favour of the applicant Saremal. Therefore, it is submitted that no case is made out for interference in this writ petition filed under Article 227 of the Constitution of India under which re-appreciation of the evidence is not permissible, therefore, this writ petition may be dismissed. 6. After hearing learned Counsel for the parties, I have perused the judgment impugned passed by the Appellate Rent Tribunal, Udaipur whereby issue with regard to bona-fide necessity is adjudicated. 7. The Appellate Rent Tribunal gave clear finding in para 17 of the judgment that there is no documentary evidence produced by the petitioners to prove the alleged fact that son of the respondent-applicant, Lalit Kumar is pursuing any business at Srivardhan (Maharashtra). Further, it is observed that vague oral evidence is produced before the Court in which name of market, area or name of shop is not even mentioned. It is also one of the important finding of the Appellate Rent Tribunal that the petitioner-defendants have not proved the fact that Lalit Kumar S/o Saremal is pursuing any business for the simple reason that he has not disclosed from where he has obtained the information. 8. It is also one of the important finding of the Appellate Rent Tribunal that the petitioner-defendants have not proved the fact that Lalit Kumar S/o Saremal is pursuing any business for the simple reason that he has not disclosed from where he has obtained the information. 8. After taking into consideration entire facts of the case, I am of the opinion that the finding given by the Appellate Rent Tribunal, Udaipur does not require any interference because son of respondent-applicant Saremal is unemployed and for the purpose of establishing business for him there is bona-fide necessity of the shop in question to the respondent-applicant Saremal. Therefore, no interference is called for in this writ petition with the finding arrived at by the Appellate Rent Tribunal. 9. With regard to the judgments cited by learned Counsel for the petitioners I am of the opinion that those judgments are not even relevant to the present controversy.Consequently, this writ petition is hereby dismissed. However, for giving breathing time to vacate the premises the petitioners are hereby granted six months' time to vacate the premises in question for which the petitioners shall furnish undertaking before the Rent Tribunal, Udaipur that they will give peaceful possession of the shop in question on or before 15.7.2014 to the respondent Saremal. Further, it is made clear that in the event of non-compliance of the said undertaking the respondent will be at liberty to file contempt petition before this Court.Petition dismissed. *******