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2017 DIGILAW 162 (RAJ)

Bansi Lal v. Kunj Behari

2017-01-13

J.K.RANKA

body2017
JUDGMENT : J.K. Ranka, J. 1. This second appeal has been filed against the judgment and decree dt 3.8.1996 passed by Addl. District Judge No. 2, Jaipur City, reversing the judgment & decree dt 16.12.1987 whereby the plaintiff's suit for ejectment was decreed. 2. The appeal has been admitted on the following substantial question of law :- "Whether the findings of the learned lower appellate court on the question of reasonable and bonafide necessity and hardship are vitiated on account of consideration of irrelevant evidence and non-consideration of the material placed on the record from which it is proved beyond doubt that the plaintiff needed the premises reasonably and bonafide for carrying on of business by his eldest son Gordhan Lal?" 3. Brief facts of the case are that Smt. Gendi rented out their shop to Shri Kalyanmal at Rs. 45/- per month for 11 months on 1.5.1961. On death of Smt. Gendi on 10.2.1969, plaintiffs Banshi Lal and Ghisi Lal became owners of the shop, however, during pendency of the suit, Ghisi Lal also expired. Till June 1969 Shri Kalyanmal was regularly paying rent of the shop to the plaintiffs, however, thereafter the tenant did not pay rent to the plaintiffs of the shop. It is claimed by the plaintiffs in the suit that till filing of the suit, Rs. 771.16 was outstanding to be paid by the defendants towards rent of the shop, house tax and electric charges. It is also claimed in the suit that there was bona fide necessity of the shop in question by the plaintiffs and, therefore, sought direction for ejectment and payment of aforesaid outstanding amount from the defendant. 4. In his written-statement defendant Kunj Bihari averred that the shop in question was taken on rent by firm Kalyanmal Banshidhar, however, except rent for the shop there was no agreement for payment of house tax. Kunj Bihari joined the firm after Banshidhar withdrew his name and after death of Kalyanmal, Banshidhar alone became owner of the firm and occupant of the shop in dispute. He denied in the written statement that Kalyanmal took the shop on rent in his personal capacity, and that they (defendants) have no information about death of Smt. Gendi. Kunj Bihari joined the firm after Banshidhar withdrew his name and after death of Kalyanmal, Banshidhar alone became owner of the firm and occupant of the shop in dispute. He denied in the written statement that Kalyanmal took the shop on rent in his personal capacity, and that they (defendants) have no information about death of Smt. Gendi. It is further stated in the written statement that sofar as payment of rent is concerned, from the very beginning the plaintiffs are collecting rent from Firm Kalyanmal Banshidhar and it is claimed that the defendant has not made any default in payment of rent. That apart, it is averred in the written statement that there is no bona fide necessity of the plaintiffs of the shop in question. It is also averred in the written statement that the plaintiffs have not made the legal heirs of Kalyanmal as party to the suit, therefore, there is defect in the suit of misjoinder of parties. It is also averred in the written statement that since Smt. Alka is not wedded wife of Shri Radheyshyam, therefore, Smt. Alka and Pappu are not necessary parties to the suit. It is denied that the defendant is encroacher as claimed by the plaintiffs as the shop in question was taken on rent by firm Kalyanmal Banshidhar and the defendant Kunj Bihari was shareholder of the firm. The suit is untenable as the plaintiffs have claimed that the defendant is an encroacher and that the plaintiffs have no right to file the suit, therefore, the suit is liable to be dismissed. 5. In the written statement filed by defendant Pappu the averments in the suit have been denied and the plaintiffs have no right to claim any relief against him. 6. During pendency of the suit, plaintiffs gave up their claim against Rs. 771.16 towards non payment of rent, house tax and electric charges of the shop in dispute. Therefore, the suit of plaintiff Banshilal remained for consideration only with regard to ejectment against defendants Gopal Lal, Pappu and Kunj Bihari. 7. The trial court framed 12 issues. Plaintiffs produced six and defendants produced five witnesses in their favour. Plaintiffs and defendants, both exhibited six documents each. 8. Therefore, the suit of plaintiff Banshilal remained for consideration only with regard to ejectment against defendants Gopal Lal, Pappu and Kunj Bihari. 7. The trial court framed 12 issues. Plaintiffs produced six and defendants produced five witnesses in their favour. Plaintiffs and defendants, both exhibited six documents each. 8. After hearing arguments of respective parties, perusal of the material placed on record and on the basis of evidence produced, the trial court decided most of the issues in favour of the plaintiff except issue Nos. 3, 5 and 7, and decreed the suit with costs and gave right to the plaintiff to get vacant possession of the shop after a period of two months 9. Against the judgment & decree passed by the trial court, defendant Kunj Bihari filed appeal, which was decreed in his favour and the judgment and decree passed by the trial court was set aside vide judgment and decree dt 3.8.1996. 10. Being aggrieved from the aforesaid judgment and decree dt 3.8.1996, the plaintiff preferred this second appeal with the averments that the learned lower appellate court committed serious illegality in reversing the decree of ejectment passed by the learned trial court, which shows non application of mind to the facts of the case, and prayed to set aside the impugned judgment and decree passed by the lower appellate court and to restore the judgment and decree dt 16.12.1987 passed by learned trial court and the decree for ejectment be ordered to be maintained and that costs of all the courts be saddled on the defendant-respondents. 11. Learned counsel for the appellant vehemently contended that on going through the statements recorded by various witnesses on behalf of the appellant, it was categorically brought on record that there was comparative hardship as the property was needed for Gordhan Lal, son of the plaintiff, who was doing nothing, and the hardship continued later as well, and taking into consideration the bona fide necessity for opening of a shop in the property owned by the appellant, the suit was filed and the trial court after elaborate finding and reasoning, decreed the suit for eviction of the plaintiff appellant on issue No. 4 relating to reasonable and bona fide necessity of the plaintiff. Learned counsel further contended that against the judgment and decree of the trial court the defendants filed appeal before the appellate court, which was partly allowed and the matter was remanded back to the trial court for deciding the matter in relation to partial eviction and parties were directed to appear before the trial court. Again the trial court vide order dt 20.12.1994 decided the issue of partial eviction as well in favour of the plaintiff appellant and sent the file to the appellate court, however, the defendants filed application u/s. 151 CPC bringing to the notice of appellate court that during pendency of the First appeal the shop of plaintiff existed on southern side of the haveli in which one Prabhu Nai was tenant, has been vacated and remained for 20 days with plaintiff and thereafter the plaintiff let it out to Jeevmal Atmaram Cloth merchant, and again the same was vacated by Jeevmal Atmaram in which Laddu Gopal who is 4th son of the plaintiff started business of statues, and the above fact was objected to by the learned counsel for the plaintiff before the appellate court as these facts could not have been taken on record unless and until an application is filed u/O.6 R.17 for amending the written-statement. 12. However, the fact remained that the suit was filed for reasonable and bona fide necessity of son Gordhan Lal and it was averred that Gordhan Lal is still not doing any job. Learned counsel also contends that landlord is the best judge for the bona fide necessity he being the owner, prays that the finding reached by the trial court was just and proper and the finding reversed by the appellate court is unjust and is required to be reversed. Learned counsel further contended that the necessity of shop for Gordhan Lal arose when a daughter was born to Gordhan Lal and even by then he was not doing anything. Learned counsel also relied on judgments in LRs of Janki Lal Vs. Dharmi Chand, 2015 (4) RLW 3588, Ladu Lal Vs. Kalu Ram 1991 (2) R.C.R (Rent) 569, Surendra Kumar Jaggi Vs. Ahmed Farooq & Others, 2013 (2) R.C.R. (Rent) 10, Dinesh Kumar & Others Vs. Nand Lal Mehra & Others, 2012 (3) WLC (Raj.) 659, and contended that the appeal deserves to be allowed. 13. Dharmi Chand, 2015 (4) RLW 3588, Ladu Lal Vs. Kalu Ram 1991 (2) R.C.R (Rent) 569, Surendra Kumar Jaggi Vs. Ahmed Farooq & Others, 2013 (2) R.C.R. (Rent) 10, Dinesh Kumar & Others Vs. Nand Lal Mehra & Others, 2012 (3) WLC (Raj.) 659, and contended that the appeal deserves to be allowed. 13. Per contra, learned counsel for the respondent vehemently contended that since there was perversity in the order of trial court, therefore, the appellate court reversed the finding and the order of First Appellate Court is just and proper and is not required to be interfered with. Learned counsel contended that a bare perusal of the statements recorded by the various persons including the witnesses on behalf of the plaintiff clearly establishes that Gordhan Lal, for whom the need and necessity was shown, was doing the business of sweet shop and this fact was not denied by anyone. Learned counsel also contended that the statement of PW1 Bansilal, plaintiff, himself admitted in his cross-examination that there are two sweet shops and one workshop/factory which is even bigger than even the court room and that it was an admitted fact that plaintiff purchased three more shops thereafter. Learned counsel further contended that admittedly the shop which was vacated earlier was let out to Jeevmal Atmaram Cloth Merchant and the plaintiff knowing fully well about the need of Gordhan Lal but still let out to Jeevmal and contended that the need of Gordhan Lal was not at all proved by the appellants and merely a story has been built to evict the tenants. Learned counsel also contended that the appellants are not in need of any property as they have ample other shops and the respondent is carrying its business since long and is continuously paying the desired rent and thus no case is made out by the plaintiff/appellants, and relied upon S.J. Ebenezer Vs. Velayudhan & Others, (1998) 1 SCC 633 , Mohd. Ismail Vs. Dinkar Vinayakrao Dorlikar, 2010 (1) Civil Court Cases 278 (S.C.), Om Prakash Gupta Vs. Ranbir B. Goyal, (2002) 2 SCC 256 , Kempaiah Vs. Lingaiah & Others, (2001) 8 SCC 718 , De Vs. Pooran Lal, (2001) 5 SCC 705 , Naresh K. Aggarwala & Co. Vs. Canbank Financial Services Ltd. & Anr., 2010 (3) Civil Court Cases 305 (S.C.), Deena Nath Vs. Ranbir B. Goyal, (2002) 2 SCC 256 , Kempaiah Vs. Lingaiah & Others, (2001) 8 SCC 718 , De Vs. Pooran Lal, (2001) 5 SCC 705 , Naresh K. Aggarwala & Co. Vs. Canbank Financial Services Ltd. & Anr., 2010 (3) Civil Court Cases 305 (S.C.), Deena Nath Vs. Pooran Lal, 2001 WLC (SC) Civil 557, Gajendra Singh Lodha Vs. Bhanwar Lal Kothari & Others, 2009 (1) RLR 153, Heera Lal Vs. Mandir Shri Thakurji Sangria & Another, 1005 (1) DNJ [Raj.] 480, Mishri Bai Vs. Krishna Lal Chaddha, RLW 1997 (2) Raj. 884, and contended that the appeal deserves to be dismissed. 14. I have considered the arguments advanced by the learned counsel for the parties and in my view the appeal deserves to be allowed. 15. Admittedly it is a property (shop), which was let out on 1.5.1961 and almost 56 years have passed since the property was let out. On perusal of the statements recorded of various witnesses, in my view the plaintiff appellant has been able to prove by acceptable evidence that the shop in question was needed for Gordhan Lal, one of the sons of the plaintiff, while the other sons had been doing their regular business and it is only Gordhan Lal who is said to be unemployed or not doing any business despite he having got married and even a child was born to Gordhan Lal. 16. It would be appropriate to quote the finding reached by the trial court insofar as the fact that even the respondent in addition to the disputed shop had three other shops and other properties where he was carrying on the business of statues :- 17. The fact admittedly available on record and proved beyond reasonable doubt is that the defendant-respondent has rather admitted that he had many properties in and around the rented shop in consideration. 18. The observation of the witnesses has been adequately dealt with by the trial court and this court concurs with the finding of the trial court in this regard and need not refer or repeat the same. 19. In the light of the above, it would be appropriate to take into consideration few judgments which may be relevant in furtherance of deciding the present appeal where Hon'ble Supreme Court has laid down certain principles. 19. In the light of the above, it would be appropriate to take into consideration few judgments which may be relevant in furtherance of deciding the present appeal where Hon'ble Supreme Court has laid down certain principles. It would be appropriate to even observe the stand of Hon'ble Supreme Court which tilted/shifted from pro-tenant from 1950s to pro-landlord from 1990s onwards and it would be appropriate to quote the relevant paras in the case of State of Maharashtra & Another Vs. Super Max International Private Limited & Others, 2009 (9) SCC 772 :- "12. In appeal by the tenant, this Court naturally frowned upon the interim order passed by the High Court and in paragraph 10 of the decision observed as follows: (Niyas Ahmad Khan Vs. Mahmood Rahmat Ullah Khan, (2008) 7 SCC 539 ) “10. To sum up, in writ petitions by landlords against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. But in writ petitions by tenants against grant of eviction, the High Court may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition. This again is subject to two limitations. First, the condition should be reasonable. Second, there should not be any bar in the respective State rent control legislation in regard to such increases in rent. Be that as it may.” 65. Here it is important to bear in mind that all the decisions relied upon by Mr. Lalit, from Damadilal to H. Shiva Rao were rendered between 1976 to 1986 during the period when, to put it mildly, the Court used to be overly protective of the tenant and for good reasons too because that is the apparent thrust of the Rent Act. 66. The Rent Act was the socio-legal response to certain historical developments, namely, the acute shortage of housing in the aftermath of the World War, the great influx of refugees in a number of States of the Union following the partition of the country and the massive migration inside the country from rural areas to the urban centres as a result of rapid urbanisation. All these developments that took place almost at the same time skewed the law of supply and demand totally in favour of the landlord. All these developments that took place almost at the same time skewed the law of supply and demand totally in favour of the landlord. The need of the hour, therefore, was to protect the tenant, who would have otherwise been left completely at the mercy of the landlord. The legislature intervened and brought in the Rent Act, severely restricting the grounds for enhancement of rent and for eviction of the tenant from the rented premises, thus regulating the relationship between the landlord and the tenant beyond the general law under the Transfer of Property Act, 1882. In this regard the Court responded in equal, if not greater measures. But after about three quarters of a century and three generations later when things are no longer the same and the urban centres are faced with newer problems, some of those having their origin in the Rent Act itself, there is the need to take a re-look on the Court's attitude towards the relationship between the landlord and the tenant and to provide for a more level ground in the judicial arena. 71. We reaffirm the views expressed in Satyawati Sharma and emphasise the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Court's protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq. ft. in a building, situate at Fort, Mumbai on a rental of Rs. 5236.58/-, plus water charges at the rate of Rs. 515.35/- per month more than amply highlights the point)" 20. The Apex court in the case of Prativa Devi Vs. T.V. Krishnan, 1996 (5) SCC 353 , held as under :- "..The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court was rather solicitous about the age of the appellant and thought that because of her age she needed to be looked after. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court was rather solicitous about the age of the appellant and thought that because of her age she needed to be looked after. That was a lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for. There is nothing to show that she had any kind of right whatever to stay in the house of the family friend. On the other hand, she was there merely by sufferings. There is no law which deprives the landlord of the beneficial enjoyment of his property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bona fides of the claim of the landlord under Section 14(1)(e) of the Act. In considering the availability of alternative accommodation, the court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under section 4(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances." 21. The Apex court in Mrs. Meenal Eknath Kshirsagar Vs. Traders & Agencies & Another, (1996) 5 SCC 344 , was considering a case of residential premises, but the same principles would be applicable in the instant case. It was held thus:- "..it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises." 22. The Apex court in the case of Mst. Bega Begum Vs. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises." 22. The Apex court in the case of Mst. Bega Begum Vs. Abdul Ahmad Khan, 1979 (1) RCR 170 held (in para 13) as under:- "It seems to us that the connotation of the term 'need' or 'requirement should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for one landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other State in the country. This Court has considered the import of the word requirement and pointed out that it merely connotes that there should be an element of need." 23. This court in the case of Lrs of Abdulla Vs. Priyambda Sharma, 2013 (2) WLC (Raj.) 175, has held that - "The well settled legal position is that the landlord is best judge of his requirement for the business purpose and he has got complete freedom in the matter. Neither tenant nor court can advice the landlord how he should adjust himself and satisfy his requirement in some other way. In the present case also the appellant is not legally entitled to say that as the adjoining shop has been vacated and after renovation of it and construction of basement, the respondent has started business of readymade garments in it, it is not required for her to got the suit shop also and after further renovation and reconstruction of both the shops to start the business indicated by her in the plaint.." 24. The Apex court in large number of cases, as also this court has taken into consideration the bona fide need of the landlord for eviction of the suit premises as they primarily are findings of fact and unless found to be absolutely perverse, dehors of evidence, bereft of context, such finding cannot be disturbed in second appeal u/s. 100 CPC. The Apex court in large number of cases, as also this court has taken into consideration the bona fide need of the landlord for eviction of the suit premises as they primarily are findings of fact and unless found to be absolutely perverse, dehors of evidence, bereft of context, such finding cannot be disturbed in second appeal u/s. 100 CPC. This court has also taken into consideration the judgments of the Apex court and has applied such principles in Surendra Kumar Jaggi Vs. Ahmed Farooq (supra), Ladu Lal Vs. Kalu Ram (supra), LRs of Janki Lal Vs. Dharmi Chand (supra), Dinesh Kumar Vs. Nand Lal Mehra (supra). 25. As noticed earlier, admittedly in the instant case the tenancy is from 1961 and more than 56 years and after half a century having been passed at-least owner need to get and enjoy the fruits of ownership of a property. It is also noticed that number of persons in the family of the appellant plaintiff have expired over the years and third generation has joined the litigation waiting that the said property which they own and possess, would be vacated someday for business to start by Gordhan Lal. Owner after a certain gap of time needs to somehow enjoy ownership of the property of which they are owners and small rental, as in the instant case, is not sufficient for one to be happy or satisfied. One may not be satisfied of rentals rather if the owner gets back the property, one can develop it for overall family needs and requirements, and which may be need of the landlord's family. 26. In view of what has been noticed hereinabove, and specially the observation of the Apex court about the tilt in favour of the landlords and taking into consideration the fact that the disputed shop was leased out/let out more than almost 56 years back and the respondent tenant has enjoyed such a long time in the rented premises and taking into consideration the fact brought on record that the respondent has also been in a position to acquire properties as held by the trial court and the relevant portion reproduced hereinabove, in my view the need of the landlord is much more as the landlord will never be able to enjoy the fruits which a landlord or owner needs to. Need of Gordhan Lal to start business in the said shop remained and is the prime concern to be looked into and accepted the situation as it stands at the time of filing of suit is to be looked into and seen. The judgments in view of the above facts relied by the learned counsel for respondent, are distinguishable on facts. 27. Accordingly, the second appeal is allowed. It is directed that the respondent tenant shall handover the peaceful and vacant possession of the shop to the landlord within a period of six months from today i.e. on or before 31.7.2017 and shall pay mesne profits @ Rs. 5000/- per month commencing from 1.2.2017 and will further continue to pay the mesne profits each month by 7th day of the next succeeding month or in advance to the appellant landlord in the bank account, the details of bank account will be provided by the learned counsel for the appellant to the learned counsel for the respondents, including the parties and in case there is any default in payment of mesne profits, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The arrears of rent, if any, shall be cleared within three months from today, otherwise the same will bear interest @ 9% per annum. The respondent tenant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of anyone else and would not create any third party rights/interest in the same during the aforesaid period and if it is so done, the same would be treated as void and even such third parties will be bound by this decree. The respondent tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within two months and one copy thereof along with affidavit, in this court. The respondent tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within two months 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 appellant plaintiff within a period of six months, i.e. upto 31.7.2017 from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant landlord shall also be entitled to invoke the contempt jurisdiction of this court, and no subordinate court shall entertain any plea/petition/objection and execution would take place as observed hereinbefore in a smooth and peaceful manner without further litigation. A copy of this order be sent to both the learned courts below and both the parties forthwith.