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2018 DIGILAW 1373 (RAJ)

Bhairoou Lal v. Ramesh Chandra Maliwal

2018-05-29

NIRMALJIT KAUR

body2018
ORDER : Nirmaljit Kaur, J. The present writ petition has been preferred against the impugned Order and Judgment dated 24.04.2012 passed by the Rent Appellate Tribunal, Bhilwara vide which the appeal filed by the respondent - tenant against the Order and Judgment dated 18.11.2009 passed by the Rent Tribunal, Bhilwara decreeing the eviction petition filed by the petitioner - landlord was allowed with a further prayer to uphold the Order and Judgment dated 18.11.2009 passed by the Rent Tribunal, Bhilwara. 2. The petitioner-landlord filed the eviction petition under Sections 9, 10(1)(i)(c) and 10(3) of the Rajasthan Rent Control Act, 2001 for eviction of the respondent - tenant on the ground of personal and bonafide necessity of the suit premises for his own use as senior citizen. The Rent Tribunal framed 06 issues for determination of the eviction petition. The Issue No. 4 was with respect to bonafide and personal necessity of the suit premises and Issue No. 5 was with respect to the right to recover immediate possession as Senior Citizen. The Rent Tribunal allowed the eviction petition vide Order and Judgment dated 18.11.2009. The respondent-tenant challenged the said order and judgment before the Appellate Rent Tribunal, Bhilwara. The Appellate Rent Tribunal, however, allowed the appeal vide Order and Judgment dated 24.04.2012 and set aside the order and judgment of the Rent Tribunal on the ground that the need of the petitioner - landlord was not bonafide and reasonable as three rooms are still lying vacant with him behind the disputed shop, which he can utilize for the purpose, if required. The very fact that they are lying vacant and are not being used, the plea of bonafide is false. 3. Learned counsel for the respondent - tenant while vehemently opposing the writ petition submitted that the petitioner - landlord on being cross-examined had accepted that there are three rooms lying vacant behind the disputed shop. 4. The Apex Court in the case of Uday Shankar Upadhyay and ors. v. Naveen Maheshwari reported in 2010(1) RCR 554 in almost similar set of circumstances held as under :- "11. In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. v. Naveen Maheshwari reported in 2010(1) RCR 554 in almost similar set of circumstances held as under :- "11. In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. It is well-known that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide. Hence, the view of the courts below that the sons of plaintiff No. 1 should do business on the first floor in the hall which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained." Similarly, in the case of Savitri Sahay v. Sachidanand Prasad reported in AIR 2003 Supreme Court 156, the Apex Court observed :- "9. The next question which, however, arises is whether the conclusion of the High Court that the findings of the Trial Court were perverse can be said to be correct. Under normal circumstances if a landlord during the trial gets vacant possession of some other premises which are equally suitable and chooses to let them out on higher rent then it may be arguable that the need of the landlord, made out in the Eviction Petition, was not reasonable or in good faith. However, as seen above, the said Act provides specifically, in Explanation II, that even though a landlord may have two or more premises which have been let out, it is for the landlord to choose which one would be preferable to him or her and the tenant could not question such preference. In this case, the Appellant had indicated a preference for the flat occupied by the Respondent. She had given a reason why she preferred this flat. She was an old lady. She therefore could not climb to the first floor and thus the two flats on the first floor were not suitable to her. The other flat on the Southern side of this building faced a road which was a very busy road and would therefore be noisy. She was an old lady. She therefore could not climb to the first floor and thus the two flats on the first floor were not suitable to her. The other flat on the Southern side of this building faced a road which was a very busy road and would therefore be noisy. This particular flat faced the Bungalow in which she has been residing for so many years and also faced an open piece of land belonging to her husband. The Trial Court accepts these reasons. The High Court has merely set aside the decree on the ground that the Appellant had chosen not to occupy the three other flats which became available in the same building. In our view, Explanation II to Section 11(1)(c) permitted the landlord to ignore other premises and to prefer a particular premise. The Appellant having made a preference cannot be forced to occupy other premises which may become available. Further the Appellant was not required to keep those premises vacant because her Eviction Suit was pending, nor was there any duty cast on the Appellant, under any provision of law, to offer those other premises to the Respondent. If the Respondent had so desired, he could have offered to vacate the flat preferred by the landlady and move into one of those other premises. If the Appellant had refused to accept such an offer, it possibly could have been said that the landlady was merely seeking to get vacant possession in order to get higher rents. In that case it could have been inferred that the need of the Appellant was not genuine and/or in good faith. No such case has been made out. In view of the specific provision in the said Act the reasoning of the High Court cannot be sustained." 5. A perusal of the order of the Rent Appellate Tribunal shows that the order of the Rent Tribunal was set aside on the ground that the respondent - landlord has not been able to support his claim that the vacant rooms do not belong to him and hence, he has not come to the court with clean hands. The petitioner - landlord has specifically pleaded that he is old. He finds it difficulty to climb up and down due to his knee joint problem and requires the ground floor premises both for his residence, living room and parking of vehicles. The petitioner - landlord has specifically pleaded that he is old. He finds it difficulty to climb up and down due to his knee joint problem and requires the ground floor premises both for his residence, living room and parking of vehicles. Even if, he has three available vacant rooms as alleged on the ground floor, the same is not a sufficient reason to reject his bonafide requirement as the availability of three rooms may still not be sufficient as he wants to shift his residence, living room and toilet etc. on the ground floor. While doing so, it was ignored that the petitioner - landlord who is a senior citizen and has now returned back after retirement is entitled to the basic facilities on account of his being physically not fit due to problem in his knee. He needs more space with extra facilities of toilet, bathroom, sitting room, parking of vehicles etc. on the ground floor. There is no reason why he should not live in more comfort surroundings instead of squeezing in a small space. The landlord is the best judge of his bonafide need. The tenant cannot dictate the terms to the landlord and advise him as to how the vacant rooms are sufficient and as to how he can fulfill his requirement. There is no reason as to why the landlord should allow the tenant to continue at the cost of his own comfort. 6. Accordingly, this Court is unable to agree with the order and judgment passed by the Rent Appellate Tribunal. 7. In view of the above, the present writ petition is allowed. The Order and Judgment dated 24.04.2012 passed by the Rent Appellate Tribunal, Bhilwara is set aside and the Order and Judgment dated 18.11.2009 passed by the Rent Tribunal, Bhilwara is upheld. The respondent - tenant shall handover the vacant possession of the suit premises to the petitioner-landlord forthwith.