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2017 DIGILAW 274 (RAJ)

Roop Lal Kanhaiyalal Saraf Kadka Chowk v. Kuber Dutt Sharma Son of Shri Kanth Dutt Sharma

2017-01-23

MOHAMMAD RAFIQ

body2017
ORDER : Mr. Mohammad Rafiq, J. 1. This writ petition has been filed by the petitioner-M/s. Roop Lal Kanhaiyalal Saraf against the judgment dated 28.4.2016 passed by the Appellate Rent Tribunal, Ajmer, which has while reversing the judgment of the Rent Tribunal, Ajmer dated 9.3.2010 allowed the eviction petition filed by the respondent-landlord and directed the ejectment of the petitioner on the ground of personal bona fide necessity of the landlord. 2. The respondent-landlord filed a petition under Section 6 and 9 of the Rent Control Act for eviction of the petitioner-tenants on the ground of bona fide necessity. Petitioners were tenant of the respondent-landlord in the premises situated at Kadka Chauk, Ajmer bearing property no.13/347 at ground floor facing east at the rent of Rs.200/- per month. The rent was Rs.43/- in the year 1948. The rent was therefore liable to be revised as per Section 6 of the Act and increased to Rs.909/- per month from 1.4.2003. It was further contended by the applicant-landlord that the tenants without his permission has parted with one of the part of the shop to M/s. Mahaveer Saree Centre whereupon business of sarees is being carried out. The property in dispute is in densely populated area where-from appropriate transportation is available. The landlord wants to open the office of Chartered Accountant. The landlord presently was earning his livelihood by private service at Baroda and now wants to open his own office of Chartered Accountant at Ajmer. The affidavits of Kuber Dutt and Kanth Dutt were submitted in support thereof. 3. The contents of the application were denied by the petitioners, who contended that increased rent as per the formula would not come to Rs.909/- per month. The tenants were ready and willing to revise the rent as per the provisions of Rent Control Act. The landlord also filed one more suit, which was pending in the Court of Additional Civil Judge (SD) No.3, Ajmer, which he did not press and got the same dismissed on 10.12.2003. With respect to the same shop, the present suit was therefore not maintainable being barred by the principles of res judicata. The present firm is on rent of Rs.200/- per month since 1983. Entire premises was given on rent after 1948 and different tenancies were entered of different premises. There is actually no need for the landlord to open office. With respect to the same shop, the present suit was therefore not maintainable being barred by the principles of res judicata. The present firm is on rent of Rs.200/- per month since 1983. Entire premises was given on rent after 1948 and different tenancies were entered of different premises. There is actually no need for the landlord to open office. The landlord earlier used to be in service at Baroda and thereafter he opened his own office at Baroda and permanently settled there. It is contended that landlord was already having a big premises in Ghee Mandi, Ajmer situated at a very short distance from the disputed premises, which is ten times bigger than the present property. It is contended that in the disputed premises on first floor and third floor, Manak Chand is tenant under separate tenancy and paying rent at the rate of Rs.660/- per month and that on that premises, the business of M/s. Mahaveer Saree was being carried out. The landlord has already filed a suit for getting the said premises vacated. In the nearby, there is no office of any Advocate or Chartered Accountant. The present premises was not suited for Chartered Accountant. The landlord has settled for last 25 years at Baroda and his only intention is to get the rent increased to the tune of Rs.3,000/- per month. The defendant-tenant produced affidavit of Jyoti Prakash, Chander Singh, Sanjay Kumar, Moti Lal etc. in support of his case. 4. While the Rent Tribunal found the increase of rent to the tune of Rs.450/- per month, but it did not find the suit barred by law only because the landlord earlier filed suit under the old Act and the new suit under the new Act, but the Rent Tribunal in the judgment did not find the bona fide necessity of the landlord proved and, therefore, rejected the eviction petition. Aggrieved thereby, the landlord filed appeal before the Appellate Rent Tribunal, which has reversed the finding and directed eviction of the tenant. 5. Shri Bipin Gupta, learned counsel for the petitioner has contended that the learned Rent Appellate Tribunal has not considered the evidence on record nor has discussed the evidence in its judgment and merely on the basis of interpretation of judgments has reversed the finding of Issue no.2 which is per-se illegal and is liable to be quashed and set aside. Shri Bipin Gupta, learned counsel for the petitioner has contended that the learned Rent Appellate Tribunal has not considered the evidence on record nor has discussed the evidence in its judgment and merely on the basis of interpretation of judgments has reversed the finding of Issue no.2 which is per-se illegal and is liable to be quashed and set aside. It is contended that the learned Appellate Court has gone to the extent of considering evidence beyond the pleadings as there was no pleadings to the effect of taking care of mother and father by landlord, where-for he pleaded his requirement considering evidence beyond pleadings by the appellate court and reversing well reasoned finding of the learned Rent Tribunal is per-se illegal and against the settled principles of law. 6. Learned counsel contended that the Rent Appellate Tribunal has also come to the conclusion that the petitioner has settled at Baroda on the date of filing the petition and was doing the job but subsequent to that has started his own practise as CA at Baroda and has held that he could not sit and wait for premises. However, while considering that fact the learned Rent Appellate Tribunal has not considered the finding recorded by the learned Rent Tribunal that if need of landlord would have been bona fide and reasonable, he could have started office at least in the alternative premises at Ajmer which is at Ghee Mandi, Naya Bazar and if the need was so dire, he could have even started the business in the premises which stood vacated during pendency of the petition if there could have any intention of the landlord to shift to Ajmer and take care of his mother and father but admittedly the landlord did not shift to Ajmer, having alternative premises and considering that aspect the learned Rent Tribunal had not found need of the landlord to be bona fide reasonable and had found it to be only mere desire to revise the rent after considering the elaborate evidence. The learned Appellate Tribunal did not consider this aspect at all and merely on the basis of judgments have held that the landlord is best judge of his need and have reversed findings of Issue No. 2. The learned Appellate Tribunal did not consider this aspect at all and merely on the basis of judgments have held that the landlord is best judge of his need and have reversed findings of Issue No. 2. It is contended that the finding of learned Rent Appellate Tribunal without considering the evidence of Kuber Dutt (PW-1) and Kanth Dutt (PW-2) is per se illegal and is liable to be quashed and set aside by this Court. 7. Learned counsel for the petitioner submitted that during pendency of the petition, the petitioner has submitted an application under section 21 read with Order 6, Rule 17 CPC for taking into consideration the subsequent events on record. The Rent Tribunal vide its order dated 03.04.2014 has held that since the amendment sought has not been denied by the landlord therefore the facts mentioned in the amendment would be taken into consideration while deciding the appeal. It is submitted that the Appellate Rent Tribunal has not considered the undisputed facts and subsequent events in respect of death of father and furthermore that by the landlord one more premises was got vacated. Its order dated 03.04.2014 is thus illegal and is liable to be quashed and set aside. 8. Learned counsel contended that another application under Order 6, Rule 16 filed on 03.08.2011 was pending in the Rent Appellate Tribunal which has not been considered by the Appellate Tribunal and without passing any order on the said application, the appeal has been decided which is also pre-se illegal as no application should have been left undecided and therefore also order passed by the learned Appellate Rent Tribunal is illegal and liable to be quashed and set aside. 9. Shri U.M. Jain, learned counsel for the respondent opposed the writ petition and submitted that even though the Rent Tribunal did not find the bona fide necessity of the landlord proved, but the Appellate Rent Tribunal has rightly analysed the law by holding that the landlord is best judge of his requirement for residential or business purpose. The tenant cannot suggest to the Court as to which premises is suitable for the landlord. The tenant cannot suggest to the Court as to which premises is suitable for the landlord. The Appellate Rent Tribunal is perfectly justified in holding that there is no reason why assertion of the landlord that he wants to set up office of Chartered Accountant in the disputed premises by settling down there and also for the purpose of looking after his old aged parents, is not accepted. Learned counsel therefore prayed that the writ petition be dismissed. 10. Having heard the learned counsel for the parties, this Court finds that the landlord in the present case raised the argument that he is a Chartered Accountant and he need premises for setting up his office at Ajmer. He has also stated that he has old aged father and mother and he wanted to shift from Baroda to Ajmer to look after them. The Appellate Rent Tribunal found that there is every justification for the landlord to come back to his native place to look after his old aged parents and set up his office at Ajmer. The assertion of the petitioner that there is no possibility of the landlord to return to Ajmer and start his practise as Chartered Accountant, was not accepted as mere doubt could not be a reason to discard the legal argument available to the landlord. Merely because the landlord was in private practise or otherwise having practise of Chartered Accountant at Baroda, it cannot be assumed that he could never come back to Ajmer to settle down and start his practise. The Appellate Rent Tribunal rightly held that tenant cannot dictate to the landlord that he should continue to practise at Baroda and not at Ajmer. It held that no presumption can be raised that the landlord would not require the disputed premises for setting up his office as Chartered Accountant. The Appellate Rent Tribunal also was not persuaded to accept the argument that the landlord and his father have a residential premises at Ghee Mandi, Naya Bazar because as per the statement of Jyoti Prakash (DW-1) and Chandra Singh (DW-3), the said house was not owned by the respondent, but his parents were residing therein. 11. The Appellate Rent Tribunal also was not persuaded to accept the argument that the landlord and his father have a residential premises at Ghee Mandi, Naya Bazar because as per the statement of Jyoti Prakash (DW-1) and Chandra Singh (DW-3), the said house was not owned by the respondent, but his parents were residing therein. 11. Learned counsel submitted that the Appellate Rent Tribunal has held that the petitioner-tenant did not cross examine the landlord on the aspect that premises at Ghee Mandi was more appropriate and useful and could be better utilised for setting up of office, nor produced any specific evidence in that behalf. On the other hand, the tenant has been able to prove that the disputed premises were uncircled by commercial establishments there on all sides and has also the offices of Chartered Accountant namely; Om Prakash, Mahaveer, Rambabu, Rajendra Babu, Jagdish Prasad Ajmera, Radha Kishan nearby. Relying on the judgment of Supreme Court in AIR 2000 Supreme Court 534 learned Appellate Rent Tribunal held that it is true that the landlord in his evidence has stated that there were number of other shops and houses belonging to the landlord, but made a categorical statement that his said houses and shops were not vacant and that suit premises is suitable for his business purpose. It is settled proposition of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reliance was also placed on the judgment of this Court in Dinesh Kumar & Anr. v. Madan Lal Mehra & Anr., 2012 (3) WLC (Raj.) 659 in which the same view was taken. 12. In view of the detailed analysis of law made by the Appellate Rent Tribunal, this Court does not find any infirmity in the view taken therein. The Supreme Court in catena of judgments has observed that landlord is the best judge to determine his/her needs and existence of such need having been ascertained, the reasonableness should not be viewed with a narrow or telescopic view and the courts should not tend to substitute their personal opinion in this regard. Genuineness of requirement is not to be tested on a par with dire need of a landlord. Genuineness of requirement is not to be tested on a par with dire need of a landlord. There is no reason to presume that the need of the landlord is not bona fide, rather in appropriate cases court can presume that landlord's requirement is bona fide and put contesting tenant to burden to show requirement is not bona fide. 13. This Court, therefore, does not find any infirmity in the judgment of the Appellate Rent Tribunal dated 28.4.2016. The writ petition, which lacks merits, is hereby dismissed.