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2017 DIGILAW 196 (RAJ)
Ladoo Lal Jain (deceased) through his legal heirs Prem Bai Wd/o late Ladoo Lal Jain v. Kailash Bai W/o Shri Bhanwar Lal
2017-01-17
MOHAMMAD RAFIQ
body2017
ORDER : 1. This writ petition has been filed by seven petitioners, who are all legal heirs of Ladoo Lal Jain, original tenant in the premise of landlord-respondent Smt. Kailash Bai. The respondent-landlord (for short, 'the landlord') filed a petition for eviction of the tenant under Section 9 of the Rajasthan Rent Control Act, 2001 before the Rent Tribunal, Kota, praying for eviction of the petitioners-tenant on the ground of default and reasonable bona-fide necessity. The Rent Tribunal, by judgment dated 18.02.2011 allowed the petition for eviction on both the counts. The petitioners-tenant filed appeal against the aforesaid judgment before the Appellate Rent Tribunal, Kota, which also came to be dismissed vide judgment dated 28.10.2015. Hence this writ petition. 2. Mr. Ravi Kumar Kasliwal, learned counsel for petitioners-tenant, has argued that both the Tribunals have erred in law in holding that the petitioners-tenant failed to deposit the rent in time and therefore committed default. The respondent-landlord served the notice on the petitioners-tenant on 27.04.2007 intimating the bank account number therein and at that time, the rent of only 26 days was due. The requirement of Section 9(a) of the Rajasthan Rent Control Act, 2001 is that to apply for eviction of the tenant, the default should have been of at-least four months. Thereafter, the respondent-landlord served further notices dated 18.09.2007 and 29.09.2007, in which he demanded the outstanding rent for the period of four months. The petitioners-tenant immediately on 16.10.2007 deposited the rent on the same day but the bank authorities informed the petitioners-tenant that the bank account was in the name of Smt. Kamlesh Bai and not in the name of Smt. Kailash Bai and therefore did not accept the amount. Even in the last notice dated 29.09.2007 the respondent-landlord did not indicate the correct bank account number nor did she mention the correct name of the holder of the bank account. In the facts of the case, therefore, both the Tribunals erred in law in holding that despite receipt of the notice, the petitioners-tenant failed to deposit the rent. 3. On the ground of bona-fide necessity, learned counsel for petitioners-tenant argued that the Tribunals erred in law in allowing the petition on the ground of bona-fide necessity. On the western side petitioners-tenanted shop, there are two kiosks attached with the shop; one of which is of the petitioners-tenant.
3. On the ground of bona-fide necessity, learned counsel for petitioners-tenant argued that the Tribunals erred in law in allowing the petition on the ground of bona-fide necessity. On the western side petitioners-tenanted shop, there are two kiosks attached with the shop; one of which is of the petitioners-tenant. The shop of the respondent-landlord has opening on hundred feet wide road towards eastern side. The respondent-landlord filed petition for eviction as she wanted to open the shop on the western side as well. When there is already entry on the eastern side, eviction of the petitioners-tenant only to open the shop towards western side cannot be said to be reasonable and bona-fide. The respondent-landlord maintained that she wanted to remove both the kiosks on the western side but the requirement of the landlord could be satisfied in having only one kiosk rather than two. The respondent-landlord filed two suits for respective kiosks and both the suits were decreed. Learned counsel for the petitioners-tenant argued that the respondent-landlord purchased the disputed premise with a sitting petitioners-tenant and she fully knew that the kiosks were on rent with the petitioners-tenant even at the time of purchase by the respondent-landlord. Learned counsel for petitioners-tenant, in support of his argument, has relied on the judgment of the Supreme Court in Kempaiah Vs. Lingaiah and Others – (2001) 8 SCC 718 , Deena Nath Vs. Pooran Lal – (2001) 5 SCC 705 and M.S. Zahed Vs. K. Raghavan – (1999) 1 SCC 439 . 4. Mr. Carn Bhatnagar, learned counsel for the respondent-landlord opposed the writ petition and submitted that the Rent Tribunal was perfectly justified in recording finding on the question of default in favour of the respondent-landlord because as per the requirement of law the respondent-landlord, after she purchased the disputed shop, had already intimated to the petitioners-tenant her bank account by communication/notice dated 27.04.2007. Subsequently, the respondent-landlord served two consecutive notices dated 18.09.2007 and 29.09.2007 demanding due rent of more than four months. Even if at the time of earlier notice default was not committed for a period of four months, the bank account number of the respondent-landlord stood conveyed to the petitioners-tenant. The petitioners-tenant were indeed in default of more than four months at the time of receipt of notices dated 18.09.2007 and 29.09.2007.
Even if at the time of earlier notice default was not committed for a period of four months, the bank account number of the respondent-landlord stood conveyed to the petitioners-tenant. The petitioners-tenant were indeed in default of more than four months at the time of receipt of notices dated 18.09.2007 and 29.09.2007. There was nothing wrong in the finding recorded by the Rent Tribunal that the requirement of Section 9(a) of the Rajasthan Rent Control Act, 2001, in serving notice conveying bank account number, stood fulfilled. Learned counsel for the respondent-landlord argued that in the facts of the present case even the question of bona-fide and reasonable necessity, the necessity of the respondent-landlord was bona-fide and cannot be said to be not genuine. 5. Learned counsel for the respondent-landlord argued that the Rent Tribunal as also the Appellate Rent Tribunal were fully justified in recording the finding on issue no.1 in favour of the respondent-landlord because the petitioners-tenant failed to prove that he ever deposited the rent with the bank. Neither the Bank Manager nor any employee of the bank was produced in order to prove this fact. If the petitioners-tenant wanted to prove this fact, he should have produced the bank officer in evidence. Learned counsel for the respondent-landlord, in support of his argument, relied on judgment of the Supreme Court in Gulshera Khanam Vs. Aftab Ahmed – Civil Appeal No.9727/2016 arising out of SLP © No.16643/2012), decided on 27.09.2016, and the judgment of a coordinate bench of this court in Nand Kishor Vs. Ramesh Gidwani – S.B. Civil Writ Petition No.12125/2012, decided on 12.09.2013. 6. Learned counsel for the respondent-landlord further submitted that the finding on the question of default as well as bona-fide necessity are findings of fact and since both the Tribunals have concurrently recorded such finding against the petitioners-tenant, the same not called for any interference. 7. I have given my anxious consideration to rival submissions and perused the material on record. 8.
7. I have given my anxious consideration to rival submissions and perused the material on record. 8. In so far as the findings recorded by learned Rent Tribunal and the Appellate Rent Tribunal on the question of default is concerned, admittedly when the first notice was served by the respondent-landlord on the petitioners-tenant on 27.04.2007 conveying her bank account number, mere fact that default of four months period was not committed by that time, cannot be a reason to overlook the bank account number, which stood conveyed to the petitioners-tenant. Even if therefore in the subsequent notice when the default of four months had already committed the bank account was not conveyed, the requirement of law contained in Section 9(a) of the Rajasthan Rent Control Act, 2001, the bank account number should be conveyed on the ground of default, the requirement of conveying the bank account number after default of four months stood substantially complied with. In any case, the finding on the issue that there was default of more than four months, is a finding on the question of fact. Similarly, the finding on the question of bona-fide necessity is again a finding on the question of fact. Both the Tribunals on these issues have concurrently recorded findings against the petitioners-tenant. This being a finding on the questions of fact is not open to interference, unless it is shown that the findings so recorded by both the courts below are manifestly erroneous and are so perverse that no reasonable persons of ordinary prudence could on given material arrive at such finding or that they could if not corrected, otherwise lead to grave miscarriage of justice. Having perused the impugned judgments, this court is not inclined to hold so and therefore such finding has to be accepted as valid. 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.
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. 9. Moreover, the Supreme Court in Shamshad Ahmad and Others Vs. Tilak Raj Bajaj – (2008) 9 SCC 1 , 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. 10. 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. 11. In Chundvarkar Sita Ratna Rao Vs.
11. 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. 12. 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. 13. 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. 14. It is thus trite that findings on the question of bona-fide necessity and of default are essentially findings 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 subordinate 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 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 respondent-landlord. 15. 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 more than four decades, this court deems it appropriate to grant them reasonable time to vacate the rented shop by 31.01.2018 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.1500/- per month, till the date of actual delivery of possession thereof, by 10th day of the next succeeding month or in advance to respondent-landlord in her bank account 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 respondent-landlord would be entitled to get the judgment/decree of eviction executed forthwith in accordance with law. 16. Stay application is also disposed off accordingly.[ 2017 DIGILAW 196 (RAJ) · digilaw.ai ]