Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1181 (RAJ)

Mohd. Iqbal @ Habib v. Shamshudeen

2018-05-05

NIRMALJIT KAUR

body2018
ORDER : Nirmaljit Kaur, J. The present writ petition is preferred against the judgment and order dated 05.10.2017 vide which the Appellate Rent Tribunal, Jodhpur Metropolitan set aside the order dated 01.08.2012 passed by the Rent Tribunal, Jodhpur dismissing the eviction petition filed by the respondent - landlord and thereby, allowing the eviction petition of the respondent - landlord. 2. While praying for setting aside the order of the Appellate Rent Tribunal, learned counsel for the petitioner submitted that when an order of reversal is being passed, the Appellate Rent Tribunal is under an obligation to give the concurrent and reasoned judgment while nullifying the order impugned. Whereas, the Appellate Rent Tribunal passed the said order in a mechanical manner. The finding of the Rent Tribunal was based upon the admission of the respondent - landlord that he had other vacant portion in the same premises which was sufficient for him. However, the Appellate Rent Tribunal while setting aside the order of the Rent Tribunal did not nullify this finding based on the admission of the respondent - landlord and simply went on the presumption that the landlord is the best judge of his premises. 3. Secondly, the respondent - landlord could not produce any evidence to show that the premises occupied by the petitioner-tenant was in such dilapidated condition that it was not possible to either reside or run business from there and in spite of the same, the Appellate Rent Tribunal has set aside the finding. 4. Learned counsel for the respondent - landlord, however, while vehemently opposing the writ petition submitted that the Rent Tribunal had misread the evidence of the respondent - landlord and that sufficient evidence was produced by the respondent - landlord vide his application under Order 41, Rule 27 CPC before the Appellate Rent Tribunal to prove that the premises occupied by the petitioner - tenant was in a dilapidated condition and not fit for habitation and running business. 5. Heard. 6. The respondent - landlord had preferred an appeal before the Appellate Rent Tribunal, Jodhpur Metropolitan against the order of the Rent Tribunal, Jodhpur dated 01.08.2012. Along with the appeal, an application under Order 41, Rule 27 CPC with documents was also submitted for taking additional documents on record. 5. Heard. 6. The respondent - landlord had preferred an appeal before the Appellate Rent Tribunal, Jodhpur Metropolitan against the order of the Rent Tribunal, Jodhpur dated 01.08.2012. Along with the appeal, an application under Order 41, Rule 27 CPC with documents was also submitted for taking additional documents on record. One of the relevant documents to show that that as per the spot inspection, the said premises was in a dilapidated condition and not fit for human habitation and therefore, requires necessary re-construction after its demolition was a notice received by the respondent - landlord from the Municipal Corporation. The Appellate Rent Tribunal while allowing the application under Order 41, Rule 27 CPC along with its documents, remanded the matter back to the Rent Tribunal vide its order dated 02.05.2016 for deciding the same afresh. Being aggrieved with the order of the Appellate Rent Tribunal vide which the matter was remanded back to the Rent Tribunal, the petitioner - tenant preferred SB Civil Writ Petition No.12356/2016 before this Court. The learned Single Bench while setting aside the order of the Appellate Rent Tribunal on the concession given by the counsels for both the parties that the order of the Appellate Rent Tribunal dated 02.05.2016 can be set aside to the extent vide which the matter has been remanded back to the Rent Tribunal and that the Appellate Rent Tribunal be directed to decide the appeal on its own merits took note of the fact that the application of the respondent - landlord under Order 41, Rule 27 CPC had not been challenged and accordingly, remanded the matter back by observing as under: "In view of the submission made by learned counsel for the parties and the fact that the respondent landlord has conceded that the Appellate Rent Tribunal be directed to decide the appeal by setting aside the order of remand, the writ petition filed by the petitioners is partly allowed, the order dated 02.05.2016 passed by the Appellate Rent Tribunal is set aside to the extent that the matter has been remanded back to the Rent Tribunal. However, the order passed on application under Order 61, Rule 27 CPC is upheld. The petitioners - tenants would be free to make submissions regarding the nature and admissibility of the documents taken on record. However, the order passed on application under Order 61, Rule 27 CPC is upheld. The petitioners - tenants would be free to make submissions regarding the nature and admissibility of the documents taken on record. The Appellate Rent Tribunal shall hear and decide the appeal as expeditiously as possible preferably within a period of three months." 7. Thereafter, the Appellate Rent Tribunal while deciding the matter afresh and taking into account the documents placed on record vide application under Order 41, Rule 27 CPC observed that the notice was issued by the Municipal Corporation, a constitutional institution and therefore, there was no reason to disbelieve that the premises in question was not fit for human habitation and required to be re-built after demolishing the same. Thus, to say that there was no evidence before the Appellate Rent Tribunal while dealing with condition of the building is not correct. 8. The argument of the learned counsel for the petitioner - tenant that the appeal of the respondent - landlord has been allowed without reversing the finding of the Rent Tribunal wherein the respondent - landlord had admitted that he had sufficient space to carry out his business too has no substance. It is evident from the evidence on record that the respondent - landlord is not having any premises of his own for residential and business. He along with his family and his two brothers are presently residing in the house of their father. They are five brothers. This part of the property which is in the possession of the petitioner - tenant was purchased by the respondent - landlord. The respondent - landlord has been told to vacate the accommodation which he is presently occupying. Hence, the premises in the occupation of the petitioner - tenant, which was purchased by the respondent - landlord, is required both for his residential accommodation and business which is bonafide necessity on the face of it. The paragraph 19 of the judgment of the Appellate Rent Tribunal is crystal clear. Hence, the premises in the occupation of the petitioner - tenant, which was purchased by the respondent - landlord, is required both for his residential accommodation and business which is bonafide necessity on the face of it. The paragraph 19 of the judgment of the Appellate Rent Tribunal is crystal clear. The same reads as under : 19- i=korh ds voyksdu ls Li"V gS fd vihykFkhZ@Hkw&Lokeh vkSj mlds xokgku us vius l'kiFk dFkuksa esa Li"V crk;k gS fd Hkw&Lokeh ds ikl Lo;a dk dksbZ ifjlj jgokl] ,ao O;olk; gsrq miyC/k ugha gSaA vihykFkhZ us ;g Hkh dFku fd;k gS fd og orZeku esa ftl ifjlj esa viuk O;olk; djrk gS ml ifjlj ds Hkw&Lokeh us mls ifjlj [kkyh djus gsrq dg fn;k gS ftlds dkj.k mlus viuh tk;nkn ds fdjk;snkjksa ls ifjlj [kkyh djus dks dgk rks izR;FkhZ ds vfrfjDr vU; fdjk;snkjksa us ifjlj [kkyh dj fn;k fdUrq izR;FkhZ ifjlj [kkyh ugha dj jgk gS vkSj voS/kkfud ekax dj jgk gSA vihykFkhZ dk ;g Hkh dFku gS fd ifjlj th.kZ 'kh.kZ gksus ds dkj.k uxj fuxe us mls ifjlj ttZj ,oa fxjkm gkyr esa gksus ds dkj.k mlds fdlh fgLls ds fxjus ds dkj.k tku eky ds fy;s vlqjf{kr gksus ds dkj.k mlds fgLls ds fxjus ds dkj.k tku eky ds fy;s vlqjf{kr gksus ds dkj.k ifjlj fxjkus dks uksfVl izn'kZ 23 fn;k Fkk ysfdu v/khuLFk vf/kdj.k us mDr uksfVl ij fdlh izdkj dk fopkj fd;s] ifjlj dks ekuo jagokl gsrq mi;qDr ekuk gS rFkk vkykSP; fu.kZ; esa ;g mYys[k fd;k gS fd ifjlj ds uo fuekZ.k ckcr izkFkhZ }kjk fdlh bUthfu;j dh fjiksVZ is'k ugha dh xbZ gS tcfd uxj fuxe ,d loSa/kkfud laLFkk gS ftlds }kjk fn;k x;k uksfVl fdlh jktif=r vf/kdkjh }kjk fn;k x;k uksfVl gS vr% mDr ds vk/kkj ij Hkh ifjlj dks ttZj ,ao th.kZ 'kh.kZ voLFkk esa ekuk tkrk gS rFkk vihykFkhZ us viuh ;kfpdk vkSj vihy eheksa esa ;g dFku fd;k gS fd og lEiw.kZ ifjlj fxjkdj mldk uo fuekZ.k dj mlesa viuk O;olk; ,ao jgokl djuk pkgrk gSA vr% izR;FkhZ }kjk bl lac/k esa yh xbZ ;g vkifRr fd ifjlj fxjkm gkyr esa ugha gS rFkk og jgokl ;ksX; gS mudh ;g vkifRr ekus tkus ;ksX; ugha gSA 9. It is evident that the statement of the respondent - landlord that he has sufficient premises has been totally misread and distorted by the Rent Tribunal, Jodhpur. 10. It is evident that the statement of the respondent - landlord that he has sufficient premises has been totally misread and distorted by the Rent Tribunal, Jodhpur. 10. In view of the above, this Court finds no reason to set aside the well reasoned order dated 05.10.2017 passed by the Appellate Rent Tribunal, Jodhpur Metropolitan based on strong and reliable evidence produced by the respondent - landlord in order to prove his case of bonafide need. 11. Accordingly, the present writ petition is dismissed being devoid of merit.