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2015 DIGILAW 1149 (RAJ)

Sohan Lal v. Ashok Kumar Gupta

2015-05-28

MOHAMMAD RAFIQ

body2015
Order This writ petition has been filed by tenant Sohan Lal, assailing the order dated 02.02.2015 passed by the Appellate Rent Tribunal, whereby the order dated 28.05.2009 passed by the Rent Tribunal has been affirmed and the eviction petition filed by landlord was allowed. Briefly stated, the facts of the case are that landlord (petitioner herein) filed petition for eviction of tenant (respondent herein), before the Rent Tribunal from the rented premise described in para 3 of the eviction petition. The petition was filed on the ground of personal bona-fide necessity asserting that landlord wants to start business of sanitary and pipe fittings in the rented premise. In reply to the aforesaid application, tenant denied all allegations and asserted that landlord has no bona-fide necessity of rented premise. He asserted that in fact the landlord has already started business in the name and style of Shri Vinayak Agro Private Limited. Landlord filed rejoinder thereto and denied all the aforesaid averments. Shri Bihari Lal Agarwal, learned senior counsel for tenant argued that the courts below have miserably failed to consider that landlord Ashok Kumar has already started his business in the name of Shri Vinayak Agro Private Limited. The law is well settled that if necessity of a person as defined in the suit, stands satisfied, then the suit cannot be decreed on that ground. Both the courts below did not consider the documentary evidence i.e. photographs produced on record as Exhibit-A7 and Exhibit-A8, which clearly show that landlord has already started business in the name of Shri Vinayak Agro Private Limited, which is clear from the wedding invitation card of the daughter of landlord, produced on record as Exhibit-A6 and ExhibitA13, wherein the address of the said firm is shown. This proves that he had already started the business and the bona-fide necessity did not exist at the time of filing of the eviction petition. Learned senior counsel for petitioner, in this behalf, referred to invitation card of marriage of daughter of landlord, which took place on 09.02.2004, in which, apart from Shri Vinayak Store and Agro Centre, Agra Gate, Ajmer, one more firm, namely, Shri Vinayak Agro (Pvt.) Limited, Agra Gate, Ajmer, has been mentioned as a business firm of the landlord. Learned senior counsel for petitioner, in this behalf, referred to invitation card of marriage of daughter of landlord, which took place on 09.02.2004, in which, apart from Shri Vinayak Store and Agro Centre, Agra Gate, Ajmer, one more firm, namely, Shri Vinayak Agro (Pvt.) Limited, Agra Gate, Ajmer, has been mentioned as a business firm of the landlord. It is argued that alleged necessity of landlord is mere wish and not a genuine necessity as he has already been doing the business in the name of Shri Vinayak Agro Private Limited even before filing of the suit. The bona-fide necessity must exists at the time of filing of the suit and it should continue till the final decision of the case. It is also argued that the courts below have failed to prove that landlord took voluntary retirement from Hindustan Machine Tools, Ajmer, and was getting Rs.8000/- per month as pension, whereas the tenant earns his livelihood from the rented premise in question. No hardship would cause to the landlord if the rented premise is not vacated. Shri Bihari Lal Agarwal, learned senior counsel for tenant submitted that eviction petition was barred by principle of res-judicata because earlier the landlord filed a civil suit for eviction against tenant on the ground of bona-fide necessity of his son but on enforcement of the Rajasthan Rent Control Act, 2001 with effect from 01.04.2001, the landlord, taking advantage of the provisions of Section 32(3) of the Act of 2001, withdrew the aforesaid civil suit with liberty to file a fresh petition for eviction under sub-section (3) of Section 32 of the Act of 2001. According to learned senior counsel, Section 32 of the Act of 2001 provides that all applications, suits or other proceedings under the repealed Act, pending on the date of commencement of the Act of 2001 before any court, shall be continued and disposed of in accordance with the provisions of the repealed Act, as if the repealed Act had continued in force and the Act of 2001 had not been enacted. However, the plaintiff, within a period of one hundred and eighty days of coming into force of the Act of 2001, shall be entitled to withdraw any suit or appeal or any other proceeding, pending under the repealed Act, with liberty to file fresh petition in respect of the subject matter of such suit or appeal or any other proceeding under and in accordance with the provisions of the Act of 2001, and for the purpose of limitation, such petition shall, if it is filed within a period of two hundred and seventy days from the commencement of the Act of 2001, be deemed to have been filed on the date of filing of the suit, which was so withdrawn and in case of withdrawal of appeal or other proceeding, on the date on which the suit, out of which such appeal or proceeding originated, was filed. Learned counsel for the tenant submitted that even if phraseology that “fresh petition in respect of the subject matter of such suit”, which is withdrawn with liberty to file eviction petition, which is then “deemed to have been filed on the date of filing of original suit”, the ground of eviction of tenant cannot be changed as they by fiction of law should relate to the date of filing of the original suit. Learned counsel for the tenant, in support of his argument, has relied on judgment of the Supreme Court in Deena Nath Vs. Pooran Lal – 2001 WLC (SC) Civil 557, and Sri Balaji Krishnan Hardware Stores Vs. Srinivasaiah – AIR 1998 SC 994 . E-converso, Shri J.P. Goyal, learned senior counsel for landlord, argued that there is no bar in law for incorporating new ground of eviction while filing a fresh petition for ejectment of tenant, after withdrawing a suit filed under the repealed Act with reference to Section 32(3) of the Act of 2001. Learned senior counsel, relying on judgment of this court in Chetna Dadhich and Another Vs. Mehrunnisa and Others – 2007 (6) WLC (Raj.)633, argued that the issue raised by tenant, stands concluded by that judgment, wherein it has been held that proceedings pending under the repealed Act, on coming into force of the Act of 2001, shall continue under the repealed Act unless landlord withdraws the same within the specified time. Mehrunnisa and Others – 2007 (6) WLC (Raj.)633, argued that the issue raised by tenant, stands concluded by that judgment, wherein it has been held that proceedings pending under the repealed Act, on coming into force of the Act of 2001, shall continue under the repealed Act unless landlord withdraws the same within the specified time. If fresh petition is filed under the Act of 2001, the landlord is not required to obtain permission for filing such fresh petition. Learned senior counsel argued that there was no impedement in filing the petition for eviction on the ground of bona-fide need of son of landlord, even if earlier suit was filed for bona-fide necessity of landlord himself. It is argued that in fact the landlord filed an application for amendment of the petition and sought to incorporate amendment that above firm has own bona-fide necessity, now he also required the shop in question for his son. Before the said amendment application could be decided, the Rajasthan Rent Control Act, 2001, came to be enforced and therefore, instead of getting the plaint amended, the landlord thought it appropriate to withdraw the suit with liberty to file fresh petition for eviction under the new Act. There is no compulsion in law that fresh petition under the new Act after withdrawing the suit under the repealed Act with reference to the provisions of Section 32(3), supra, should be necessarily confined to the grounds of eviction raised in the suit as originally filed and no new grounds can be taken. Shri J.P. Goyal, learned senior counsel argued that concurrent finding recorded by both the courts below on the ground of bona fide and reasonable need of the landlord is a finding of fact, not open to challenge in the scope of writ of certiorari under Article 227 of the Constitution of India. Reliance in this connection is placed on Mehmood Rahmat Ullah Khan and Another Vs. Niyaz Ahmad Khan – (2011) 14 SCC 672. Learned senior counsel also relied on judgment of the Supreme Court in Shamshad Ahmad and Others Vs. Tilak Raj Bajaj – (2008) 9 SCC 1 . Reliance is also placed on the judgment of the Supreme Court in Mehmood Rahmat Ullah Khan and Another Vs. Niyaz Ahmad Khan – (2011) 14 SCC 672. Learned senior counsel also relied on judgment of the Supreme Court in Shamshad Ahmad and Others Vs. Tilak Raj Bajaj – (2008) 9 SCC 1 . Reliance is also placed on the judgment of the Supreme Court in Mehmood Rahmat Ullah Khan and Another Vs. Niyaz Ahmad Khan – (2011) 14 SCC 672, that the High Court in writ petition cannot interfere with finding of fact with regard to bona-fide need, this being a finding of fact. I have given my anxious consideration to rival submissions and also perused the material on record. The Rent Tribunal as well as Appellate Rent Tribunal have concurrently recorded a finding as to bona-fide and reasonable requirement of landlord. Both the courts have concurrently held that the landlord required the tenanted premise for his own business of sanitary and pipe fittings, building material etc. and also for his son. In the affidavit filed before the Rent Tribunal, landlord Ashok Kumar (PW-1) has stated that he took voluntary retirement on 31.03.2003 from Hindustan Machine Tools because it became a sick industry and that he had no business or employment of his son. He was aged 54 years and was fit and healthy. He also received some monetary benefits at the time of retirement. He wanted to start his own business of paints and building material and therefore, required the shop in question for his personal bona-fide necessity. His residence is on the first floor of the said building. His son Amit is running his business in the name and style of Vinayak Store and Agro Centre, of sale of fertilizers, seeds and insecticides etc., in the shop adjacent to the rented shop. In his statement, he denied the suggestion that he has received about Rs.20,00,000/- as retiral benefits or was in receipt of monthly pension of Rs.8000/-. In fact, he was receiving only Rs.920/- as pension. Most of the money received by him as retiral benefits, was spent in the marriage of his daughter. He has not yet started any business in the name of Shri Vinayak Agro Private Limited. This name was used by his son for extension of his business before the marriage of his daughter, therefore, it was printed in the marriage invitation card. He denied the suggestion that he has received vacant possession of the shop in 2003. He has not yet started any business in the name of Shri Vinayak Agro Private Limited. This name was used by his son for extension of his business before the marriage of his daughter, therefore, it was printed in the marriage invitation card. He denied the suggestion that he has received vacant possession of the shop in 2003. Learned Rent Tribunal also analyzed the statement of tenant-respondent Sohan Lal (DW-1), who has asserted to the contrary. Learned Appellate Rent Tribunal has upheld the findings recorded by the Rent Tribunal on that question. This issue should not detain us any further because when the question of bona-fide and reasonable necessity of the landlord has been concurrently decided in favour of landlord by both the courts below, this being a question of fact is not open to interference. Unless it is shown that the findings recorded by both the courts below are manifestly erroneous and also was perverse that no reasonable persons of ordinary prudence could arrive at such finding. The Supreme Court in Mehmood Rahmat Ullah Khan and Another Vs. Niyaz Ahmad Khan – (2011) 14 SCC 672, held that the High Court in writ petition cannot interfere with finding of fact with regard to bona-fide need, this being a finding of fact. The Supreme Court in Babhutmal Raichand Oswal Vs. Laxmibai R. Tarta and Another - (1975) 1 SCC 858 , while dealing with supervisory power of a High Court under Article 227 of the Constitution, held that if an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari, it should follow a fortiori that it is not subject to correction by the High Court in exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact, which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising jurisdiction under Article 227, convert itself into a court of appeal, when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. Moreover, the Supreme Court in Shamshad Ahmad, supra, held that a finding as to bona fide requirement is a finding of fact. Moreover, the Supreme Court in Shamshad Ahmad, supra, held that a finding as to bona fide requirement is a finding of fact. Neither it could have been interfered with, nor can it be set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition. In State of Maharashtra Vs. Milind – (2001) 1 SCC 4 , it was held by the Supreme Court that the High Court, while exercising the power of judicial review under Article 227 of the Constitution of India, against an order of inferior Tribunal, being supervisory and not appellate, would be justified in interfering with the conclusion of the Tribunal, only when it records a finding that the inferior Tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior Tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record. In Chundvarkar Sita Ratna Rao Vs. Ashalata S. Guram - (1986) 4 SCC 447 , the Supreme Court held that unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it was not for the High Court under Articles 226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the court has not misdirected itself either on law or on fact, then the High Court, in exercise of the power under Article 226 or Article 227 of the Constitution, should refrain from interfering with such findings. In Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil – (2010) 8 SCC 329 , after dealing with plethora of previous case law, the Supreme Court held that jurisdiction under Article 227 of the Constitution of India is entirely discretionary and no person can claim it as a matter of right. A petition under Article 226 is different than a petition under Article 227. The mode of exercise of power by the High Court under these two Articles is also different. In State Vs. A petition under Article 226 is different than a petition under Article 227. The mode of exercise of power by the High Court under these two Articles is also different. In State Vs. Navjot Sandhu, (2003) 6 SCC 641 , the Supreme Court held that the power of judicial superintendence, under Article 227, must be exercised sparingly only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Where the statute bans the exercise of revisional powers, it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. The jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise. It is thus trite that findings on the question of bona-fide necessity is essentially a finding of fact. Findings recorded by the Rent Tribunal and affirmed by the Appellate Rent Tribunal are not such, which no reasonable person, on given material could reach. Law is well settled that if the courts below or the subordiante Tribunal has, in recording such finding, considered relevant evidence and eschewed irrelevant evidence from consideration and if on evidence available on record, it is possible to arrive at such finding, this court in writ of certiorari, would not be justified in upturning that finding only because another view is possible. Supervisory power of this court under Article 227 of the Constitution cannot be confused with appellate powers. Such power has to be used sparingly only if the inferior court or Tribunal has misdirected itself on a question of law or fact and not for correcting any or every mistake. This is all the more so as because this court in writ of certiorari is having very restricted scope of interference as the legislature has in the Act of 2001 provided remedy of only one appeal against the judgment of the Rent Tribunal before the Appellate Rent Tribunal and no further appeal has been provided from the judgment of the Appellate Rent Tribunal. The legislature has thus intended finality to be given to the judgment of the Appellate Rent Tribunal. The legislature has thus intended finality to be given to the judgment of the Appellate Rent Tribunal. The writ court under Article 227 of the Constitution of India cannot therefore question the correctness of the finding of facts especially about factual aspect of reasonable and bona-fide necessity, concurrently recorded by both the Rent Tribunal and the Appellate Rent Tribunal proving such necessity of the landlord. Adverting now to the arguments raised with reference to Section 32(3) of the Act of 2001, it should be noted that this argument was never pressed by the defendant-petitioner either before the Rent Tribunal or the Appellate Rent Tribunal and surprisingly, not raised even in the memorandum of writ petition before this court. This argument has been raised by learned counsel for defendant-petitioner only during the course of argument, which is noted to be rejected for stated reasons. This court had an occasion to deal with somewhat similar argument in Chetna Dadhich, supra, in which case the landlord had filed a suit for eviction against tenant on the ground of default in payment of rent in the Act of 1950, which was dismissed and appeal against that suit, was pending at the time of enforcement of the Act of 2001. Landlord filed a fresh petition for eviction. The objection as to maintainability of such fresh petition for eviction was raised by the tenant on the ground that according to Section 32(3) if the suit/appeal was pending between the landlord and tenant, the landlord had liberty to withdraw the suit or even appeal, with a view to filing of fresh eviction petition. Reliance in this connection was placed on sub-section 3(1)(a) of Section 32 of the Act of 2001, according to which if the landlord wanted to file a fresh petition for eviction of the tenant, he was required to obtain permission of the court prior to doing so. In those facts, this court in Para 5 and 6 of the report held thus, “5. What was intended to be withdrawn was the pending suit or appeal, as would be evident from the language used in sub-section 3(1)(a) that the “plaintiff within a period of one hundred and eight days of coming into force of this Act shall be entitled to withdraw any suit or appeal or any other proceeding pending under the repealed Act”. What was intended to be withdrawn was the pending suit or appeal, as would be evident from the language used in sub-section 3(1)(a) that the “plaintiff within a period of one hundred and eight days of coming into force of this Act shall be entitled to withdraw any suit or appeal or any other proceeding pending under the repealed Act”. A right has therefore been given to the plaintiff to decide to withdraw the suit or appeal as the case may be to institute fresh proceeding under the Act of 2001 on the basis of same cause of action and grounds on which that suit/appeal was filed. Such fresh proceedings are required to be filed within a period of 270 days i.e. nine months and if so done, such fresh proceedings shall be deemed to have been filed on the date of filing of the suit/appeal/other proceedings which were so withdrawn. 6. Right has therefore been conferred on the plaintiff/appellant to continue the proceedings under the old Act for which clause (c) of sub-section (3) of Section 32 provides that all prosecutions instituted under the provisions of the repealed Act shall be effective and disposed of in accordance with such repealed law, including the right of appeal which has been provided in clause (b) providing that “the provision for appeal under the repealed Act shall continue in force in respect of applications, suits and proceedings disposed of thereunder”. If however the plaintiff does not decide to withdraw the suit or the appeal in case the suit or appeal is pending at the time of commencement of Act of 2001, it would be continued and decided in accordance with old law. Such non withdrawal of suit or appeal however does not debar instituting a fresh proceeding by filing fresh petition under any of the provisions of the Act of 2001 provided it is based on a fresh cause of action, though nature of ground for ejectment may even be same.” The Supreme Court in Surajmal Vs. Radheshyam – AIR 1988 SC 1345 , held that even after dismissal of first suit for eviction, second suit for eviction of premises on the ground of bona-fide need is competent. Similar view was expressed in N.R. Narayan Swamy Vs. Radheshyam – AIR 1988 SC 1345 , held that even after dismissal of first suit for eviction, second suit for eviction of premises on the ground of bona-fide need is competent. Similar view was expressed in N.R. Narayan Swamy Vs. B. Francis Jagan – AIR 2001 SC 2469 , wherein the Supreme Court, while dealing with a case arising out of Section 45 of Karnataka Rent Control Act, which contains the provisions analogous to Section 10 of the CPC relating to res-judicata, held that successive suits can be filed by landlord on ground of bona fide requirement or non-payment of rent. Even if the first suit is withdrawn as not pressed, second suit would not be barred either by Order 23 Rule 1(4) of the Code of Civil Procedure or by Section 45 of the Karnataka Rent Control Act. In that case, previous suit for eviction was withdrawn as not pressed and second suit was filed on the ground of bona-fide requirement of landlord. It was held by the Supreme Court that Section 45 incorporates principle of res-judicata. This Section would have no application as to previous proceedings for taking possession of the suit premise as it was not pressed and the suit was decided without any issue. Order XXIII Rule 1(4) of the CPC precludes in respect of such subject matter or such part of the claim which the plaintiff has withdrawn. In a suit for eviction of a tenant under the Rent Act on the ground of bona fide requirement, even though the premises remains the same, the subject matter which is cause of action may be different. The ground for eviction in the subsequent proceedings is based upon requirement on the date of the said suit even though it relates to the same property.(emphasis supplied). Thus, the Supreme Court rejected the argument similar to the one raised in the present case. The ground for eviction in the subsequent proceedings is based upon requirement on the date of the said suit even though it relates to the same property.(emphasis supplied). Thus, the Supreme Court rejected the argument similar to the one raised in the present case. Learned counsel for the petitioner laid much emphasis on the phraseology used in Section 32(3)(1)(a), which is that the plaintiff shall be entitled to withdraw any suit pending under the repealed Act “with liberty to file fresh petition in respect of the subject matter of such suit..” under and in accordance with the provisions of the new Act, and for the purpose of limitation, such petition shall, if it is filed within a period of two hundred and seventy days from the commencement of the new Act, be deemed to have been filed on the date of filing of the suit, which was so withdrawn. The stress of the learned counsel for the petitioner is on the phraseology “...in respect of the subject matter of such suit ...” and “shall be deemed to have been filed on the date of filing of the suit.” To elaborate his argument, learned counsel has submitted that since the earlier suit was filed on the ground of bona-fide necessity of the landlord himself, he could not additionally incorporate now in the petition for eviction the ground of bona-fide necessity of his son along side of his own bona-fide necessity. In other words, what is argued is that the landlord when he seeks to file fresh petition with permission of the court after withdrawing the earlier suit, under Section 32(3)(a) of the Act of 2001, he cannot expand the grounds of eviction. Extension of this argument would be that he cannot raise any new ground of eviction than the one which was raised at the time of filing of the original suit in the repealed Act. If this argument is taken further, its hollowness would stand exposed, which is that even though the landlord can file a new petition on any ground whatsoever but if he wants to file such petition for eviction after withdrawing the suit, he would have very restricted scope and would be required to confine the grounds of eviction to the extent such grounds are contained in the originally filed suit. Such an argument can neither be appreciated nor countenanced. Such an argument can neither be appreciated nor countenanced. There is no warrant to place such a narrow construction on the language employed in Section 32(3)(a) of the Act of 2001, namely, “...in respect of the subject matter of such suit...”. I therefore find myself unable to uphold the contention raised. Besides, this argument proceeds on fallacious assumption that phraseology “...in respect of the subject matter of such suit...” used in the aforesaid provision, is the same property and fresh petition for eviction, if filed with respect to such premise/property, after withdrawing the suit, such petition cannot be allowed to incorporate new or additional grounds of eviction. The supreme Court in Vallabh Das Vs. Dr. Madanlal – AIR 1970 SC 987 , had the occasion to consider the expression “subject matter”. Rejecting the argument, their Lordships held that mere identity of some of the issues in two suits would not bring about identity of the subject matter in two suits. In para 5 of the report, the Supreme Court observed as under:- “The expression “subject-matter” is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.” There is thus no bar in filing fresh petition for eviction on the ground of bona-fide necessity with reference to date of filing of such petition, which would be taken as new cause of action, even though it relates to same property and certainly there is no bar for filing fresh petition on an additional and new ground, even in the face of pendency of the suit or appeal arising out of the previous suit, in the repealed Act. For the same reason, therefore, there is no bar in expanding or further elaborating or diversifying the ground of bona-fide and reasonable necessity of the landlord at the time of filing of the fresh petition under the new Act after withdrawing the suit filed under the repealed Act, as per Section 32(3) of the new Act. For the same reason, therefore, there is no bar in expanding or further elaborating or diversifying the ground of bona-fide and reasonable necessity of the landlord at the time of filing of the fresh petition under the new Act after withdrawing the suit filed under the repealed Act, as per Section 32(3) of the new Act. The deeming clause inserted therein merely keeps the lis initiated on the date of filing of the original suit on the basis of that accrued cause of action, alive by function of law, but does not create a bar for incorporating new or additional grounds even if eviction petition is filed after withdrawing the suit filed earlier. In view of the above discussion, I do not find any merit in this writ petition, which is accordingly dismissed. Stay application is also dismissed.