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2015 DIGILAW 1163 (RAJ)

Umesh Jain v. Rajmal Jain

2015-05-29

MOHAMMAD RAFIQ

body2015
Order This writ petition has been filed by tenant-petitioners challenging the judgment dated 13.01.2010 passed by the Rent Tribunal and judgment dated 30.04.2015 passed by the Appellate Rent Tribunal. The Rent Tribunal allowed the original application filed by the landlord-respondent for eviction of the tenant-petitioners on the ground of bona-fide and reasonable necessity. Landlord-respondent filed original application for eviction of the tenant-petitioners on the ground of default, reasonable and bona-fide necessity and nonuser. It was stated by the landlord-respondent that he purchased Shop No.6, which was part of House No.A-1, Janta Store, Bapu Nagar, Jaipur, through registered sale-deed on 09.03.1989. The petitioners were the tenants in the said shop. They took the shop on rent at the rate of Rs.400/- per month on 01.04.1984. The landlord-respondent informed the tenant-petitioners that he has purchased the shop in question and therefore, the tenant-petitioners started paying the rent to the landlord-respondent since March, 1989, but they later committed default in payment of rent. The landlord-respondent required the rented shop for the necessity of his son. It was also stated that the landlord-respondent intended to start business of their sons and his son Jinendra Kumar Jain wants to start his own business. It was also pleaded that the tenant-petitioners are not using the shop and the same is lying closed. The tenant-petitioners filed reply to the original application and denied the averments contending that landlord-respondent has got sufficient premises, where he is running his business in the name and style of J.K. Brothers, Bahubali and Jinendra Kirana Store. First floor of the shop was lying vacant since last three years and landlord-respondent filed the original application with ulterior motive and need was not bona-fide. The landlord-respondent filed rejoinder to the reply asserting his necessity. Learned Rent Tribunal framed as many as six issues. The landlord-respondent in support of his case produced as many as three witnesses, namely, PW-1 Rajmal Jain, PW-2 Jinendra Jain and PW-3 Satyanarain. He also produced documents Exhibit-1 to Exhibit-6 and got the same exhibited. The tenant-petitioners produced three witnesses, namely, Dwp1 Umesh Jain, DW-2 Laxman Vaidh and DW-3 Jagendra Purohit and got 89 documents exhibited from Exhibit-D1 to Exhibit-D89. During the proceedings, the application filed by tenant-petitioners under Order 6 Rule 17 of the Code of Civil Procedure, was dismissed by the Rent Tribunal. The tenant-petitioners produced three witnesses, namely, Dwp1 Umesh Jain, DW-2 Laxman Vaidh and DW-3 Jagendra Purohit and got 89 documents exhibited from Exhibit-D1 to Exhibit-D89. During the proceedings, the application filed by tenant-petitioners under Order 6 Rule 17 of the Code of Civil Procedure, was dismissed by the Rent Tribunal. Ultimately, the Rent Tribunal allowed the original application vide judgment dated 13.01.2010 on the ground of reasonable and bona-fide necessity. The tenant-petitioners preferred appeal thereagainst. During pendency of the appeal, tenant-petitioners filed application under order 41 Rule 27 of the CPC to bring on record certain new facts by way of documents and photographs, which was opposed by the landlord-respondent by filing reply thereto. The Appellate Rent Tribunal, vide judgment dated 09.01.2015, dismissed the appeal. Aggrieved thereby, the tenant-petitioners preferred Writ Petition No.1526/2015 before this Court, which was allowed vide order dated 25.02.2015 and the matter was remanded back to the Appellate Rent Tribunal with direction to provide opportunity of cross-examination to the parties on the documents filed under order 41 Rule 27 of the CPC. Tenant-petitioners produced the witnesses, namely, Umesh Jain as DW-1, Laxman Jain as DW-2, Fakarrudin as DW-3 and Giriraj Sharma as DW-4 and they were cross-examined by the landlord-respondent. In rebuttal, the landlord-respondent produced himself and one Shubham Jain and they were cross-examined by the tenant-petitioners. After hearing both the parties, the Appellate Rent Tribunal dismissed the appeal vide impugned judgment dated 30.04.2015. Hence this writ petition. Shri R.K. Daga, learned counsel for tenant-petitioners, has argued that the order passed by the Rent Tribunal as also the Appellate Rent Tribunal suffer from errors apparent on the face of record inasmuch as perverse finding on the issue as to bona-fide and reasonable necessity has been recorded by both the courts. Learned counsel submitted that as per the plea set up by the landlord-respondent in the original application for eviction, he has three sons and that his son Jinendra Jain was presently working in the joint business of the family but he wanted to start independent business of his own in the rented shop. Learned counsel submitted that as per the plea set up by the landlord-respondent in the original application for eviction, he has three sons and that his son Jinendra Jain was presently working in the joint business of the family but he wanted to start independent business of his own in the rented shop. The tenant-petitioners denied the aforesaid plea in reply contending that the landlord-respondent has sufficient number of shops for himself as also for his sons to satisfy their needs and that the business in one of the shops was being run in the name and style of M/s. J.K. Brothers and that three storied departmental store was there in the name of Bahubali, and one more grocery shop, which was being run as Jinendra Kirana Store, by the landlord-respondent and his son. Besides, the landlord-respondent has shops also on the first floor of the building which were lying closed for last three years. The landlord-respondent did not have any bona-fide or genuine necessity. Learned counsel for tenant-petitioners submitted that the landlord-respondent, in rejoinder, has sought to expand the scope of plea set up in the original application by asserting that he had three sons, three daughter-in-laws and one grandson, who are all in business and required the premises. It was stated in the rejoinder that for the first time the landlord-respondent has set up a case that family business was running in the name of M/s. Bahubali. Jinendra Jain and other two sons of the landlord-respondent and his daughter-in-law were partners in that firm, but their relations were not cordial, therefore Jinendra Jain left the partnership and required the suit premises for independent business. Learned counsel for the tenant-petitioners argued that the Rent Tribunal and the Appellate Rent Tribunal ought not to have taken such new plea in consideration not taken by landlord-respondent in original application for eviction. Referring to the judgment of the Rent Tribunal on Issue no.1, learned counsel for the tenant-petitioners submitted that the Rent Tribunal has illegally brushed aside all the afore-mentioned arguments on the premise that the landlord-respondent was best judge of his needs and in this case the landlord-respondent has discharged the burden of proving his bona-fide requirement. The Appellate Rent Tribunal has also committed similar illegality by merely observing that bona-fide necessity of the landlord-respondent of the time when the original application for eviction was filed, has to be seen. The Appellate Rent Tribunal has also committed similar illegality by merely observing that bona-fide necessity of the landlord-respondent of the time when the original application for eviction was filed, has to be seen. Learned counsel for the tenant-petitioners submitted that the tenant-petitioners wanted to place on record certain additional documents by recourse to Order 41 Rule 27 of the CPC but when the evidence was not allowed to be led on that aspect, the tenant-petitioners approached this court by filing Writ Petition No.1526/2015, which was allowed vide judgment dated 25.02.2015. This court remanded the matter to the Appellate Rent Tribunal, Jaipur, with liberty to the tenant-petitioners to lead oral evidence. When the statement of PW-1 Rajmal Jain was recorded on 01.04.2015, he admitted in the cross-examination that one shop was given by him on rent to Havit Ice-cream parlour but this shop was owned by his wife Maina Devi, and he could not say as to when the said shop was let out to Havit Ice-cream Parlour. In cross-examination, he admitted that he is the owner of the shops running in the name of Ravi Dry-cleaners, Khandelwal Vegetable and a Tailor shop, apart from the shop let out to the tenant-petitioners, whereas he has filed the suit for eviction only against tenant-petitioners because his wife wanted that his son Jinendra should start his business therein. On specific query made in the cross-examination, that when the shop in the name of Havit Ice-cream Parlour was vacated by Khadi Bhandar (Exhibit A-91), why the wife of landlord-tenant let out the same instead of giving to their son to start the business, he answered that their son was not willing to start the business at that time therefore he gave the shop situated behind Havit Ice-cream Parlour to his grandson. His grandson Shubham is running the shop in the name of Amul Dairy and Jinny Bakery. He stated that his son was not firm on start the business but now for the last 4-6 months he has decided to start the business. Learned counsel argued that there is a big hall on the first floor of the disputed shop lying vacant as has been admitted by PW-1 Shri Rajmal Jain. He has admitted in the cross-examination that he has let out the hall about 3-4 years before. Learned counsel argued that there is a big hall on the first floor of the disputed shop lying vacant as has been admitted by PW-1 Shri Rajmal Jain. He has admitted in the cross-examination that he has let out the hall about 3-4 years before. Shri R.K. Daga, learned counsel for the tenant-petitioners submitted that even if the findings recorded by the courts below are concurrent, there would not be any impediment for this court to interfere with the impugned judgments because such findings are perverse and erroneous inasmuch as relevant evidence has not been properly appreciated and irrelevant evidence has been considered. Shri R.K. Daga, learned counsel for the tenant-petitioners, in support of his arguments, has relied on judgment of the Supreme Court in Rajender Kumar Vs. Jamna Das Kotewala – 1990 (2) RCR 281, and argued that mere wish or desire as opposed to need or requirement does not entitle a landlord to seek eviction. He also relied on judgment of the Supreme Court in Deena Nath Vs. Pooran Lal – (2001) 5 SCC 705 , in which it was held that the statutory requirement to prove the bona-fide requirement of landlord is that there must be an actual pressing need, not a mere whim or fanciful desire; it must be in praesenti,; and also landlord must not be in possession of any other reasonably suitable accommodation of his own in the town or city concerned. Reliance has also been placed on the judgment of the Supreme Court in Sree Balaji Krishna Hardware Stores Vs. Srinivasaiah – 1998 SAR (Civil) 469, S.J. Ebenezer Vs. Velayudhan and Others – AIR 1998 SC 746 , and that of this court in Mukti Lal Vs. Badri Narain – 2006 (1) WLC (Raj.) 402, and that of Himachal Pradesh High Court in Smt. Mastu Devi Vs. Shri Harish Chander – 1980 (2) RCR 488. Per contra, Shri Ashok Mehta, learned senior counsel for the landlord-respondent, opposed the writ petition and submitted that the tenant-petitioners are tenant in the shop of the landlord-respondent since April, 1984. Badri Narain – 2006 (1) WLC (Raj.) 402, and that of Himachal Pradesh High Court in Smt. Mastu Devi Vs. Shri Harish Chander – 1980 (2) RCR 488. Per contra, Shri Ashok Mehta, learned senior counsel for the landlord-respondent, opposed the writ petition and submitted that the tenant-petitioners are tenant in the shop of the landlord-respondent since April, 1984. After the Rent Tribunal allowed the eviction petition filed by the landlord-respondent and the Appellate Rent Tribunal dismissed the appeal filed by the tenant-petitioners, they filed writ petition before this court and this court remanded the matter to the Appellate Rent Tribunal because certain documents, which were allowed to be taken on record by recourse to Order 41 Rule 27 of the CPC, were not allowed to be substantiated by evidence. This court directed rehearing on the appeal of the tenant-petitioners limited to taking into consideration the effect of the evidence filed by them with application under order 41 Rule 27 of the CPC. It was observed that an affidavit in evidence, confined to the evidence referred to in the application under Order 41 Rule 27 of the CPC, for taking on record subsequent events, but no more, be filed by the tenant-petitioners within one week from the date of the judgment of this court, and that the landlord-respondent would be entitled to cross-examination of the tenant-petitioners on the additional affidavit. However, under the guise of the aforesaid order, the tenant-petitioners sought to enormously expand the scope of remand. All those questions, which were outside scope of remand, should not have been allowed by the Rent Tribunal and if allowed, then that part of the cross-examination should be excluded from consideration. Contention that two shops became available to the landlord-respondent and, were yet not used by him for the purpose of business of his son, is not correct. One shop, which became available, has been put to use by his grandson Shubham, a fact which has not been denied by the tenant-petitioner, wherein his grandson is running Amul Dairy and Jinny Bakery, and another shop was let out by his wife to Havit Ice-cream Parlour, is not owned by him but that belongs to his wife. One shop, which became available, has been put to use by his grandson Shubham, a fact which has not been denied by the tenant-petitioner, wherein his grandson is running Amul Dairy and Jinny Bakery, and another shop was let out by his wife to Havit Ice-cream Parlour, is not owned by him but that belongs to his wife. The tenant-petitioners have merely filed CD and photos of two shops but DW-1 Laxman Jain, who has filed these CD and photos, has stated that he did not take those photos but his nephew snapped the same and he also prepared the CD from his computer, who has not been produced. It is argued that CD/photographs can at the best be taken as secondary evidence and not primary evidence, as possibility of their being tinkered with cannot be ruled out. Learned senior counsel argued that the Appellate Rent Tribunal and the Rent Tribunal have concurrently recorded the finding of bona-fide necessity in favour of the landlord-respondent and rightly so because the law thereabout is well settled that the landlord is the best judge of his need. Neither the tenant nor the court can decide as to in what manner the landlord should make use of his property. There is no evidence that Jinendra, son of the landlord-respondent, has started his own business. Shri Ashok Mehta, 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, 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. Learned senior counsel in this connection has also relied on judgments of the Supreme Court in Iswarlal Mohanlal Thakkar 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. Learned senior counsel in this connection has also relied on judgments of the Supreme Court in Iswarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij Company Ltd. and Another – 2014 STPL (Web) 287 SC, and Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil – (2010) 8 SCC 329 . 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 below have concurrently held that the landlord required the tenanted premise for his son to start the business. Out of two shops with regard to which the tenant-petitioners alleged that they became available to the landlord-respondent and yet were not used by him for the purpose of setting a business for his son, one shop has been put to use by Shubham, grandson of landlords, a fact which has not been denied by the tenant-petitioner, that he is running Amul Dairy and Jinny Bakery. Another shop is not owned by him but that belongs to his wife, who has let out the same to Ice-cream Parlour much ago. The tenant-petitioners have merely filed CD and photos of two shops but DW-1 Laxman Jain, who has filed these CD and photos, has stated that he did not snap those photos but his nephew snapped the same and he also prepared the CD from his computer but he was not produced in evidence. The CD/photographs can at the best be taken as secondary evidence and they do not in any manner disprove the reasonable bona-fide necessity of the landlord because both, his son as well as grandson, have right to start independent business and for that purpose, which shop should be got vacated by the landlord, is choice of the landlord and cannot be decided by the tenant. 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. 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. 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. 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 sub-ordiante 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. In view of foregoing discussion, I do not find any merit in this writ petition. It is accordingly dismissed. However, considering that tenant-petitioners are tenant in the rented shop for last four decades, this court deems it appropriate to grant them reasonable time to vacate the rented shop by 31.12.2016 subject to their furnishing undertaking with the court below, within 15 days from today with advance copy thereof to opposite party, to pay or deposit the entire arrears of rent, if any, within a period of one month from today and will further continue to pay the monthly mesne-profit of the rented shop at the rate of Rs.5000/- per month, till the date of actual delivery of possession thereof, by 15th day of the next succeeding month or in advance to landlord-respondent and that they shall not sub-let, assign or part with possession of rented shop 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. If, however, tenant fails to furnish undertaking to the above effect, the landlord would be entitled to get the judgment/decree of eviction executed in accordance with law. Stay application is also dismissed.