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2018 DIGILAW 1416 (RAJ)

Shakila v. Ashok Kumar Ahuja

2018-07-03

INDERJEET SINGH

body2018
JUDGMENT Inderjeet Singh, J. This writ petition has been filed by the petitioner under Article 226 & 227 of the Constitution of India challenging the judgment dated 12.11.2014 passed by the Appellate Rent Tribunal, Kota whereby the appeal filed by the respondent (hereinafter referred to as 'landlord') was allowed and the judgment and decree passed by the Rent Tribunal, Kota dated 12.03.2010 was quashed and set aside. 2. Brief facts of the case are that the landlord filed an eviction application under Section 9 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as 'Act of 2001') before the Rent Tribunal, Kota for eviction of petitioners (hereinafter referred to as 'tenants') on the grounds of bona-fide and personal necessity, default in making payment of rent and also on the ground of subletting. It was also stated in the eviction application that the shop in dispute was given on rent to late Fahumuddin, husband of Shakila (petitioner no.1) in the year 1983 @ Rs. 450 per month and the original tenant Fahimuddin expired in the year 2001. 3. The tenants filed reply to the eviction application before the learned Rent Tribunal and denied the averments made in the eviction application and stated that the landlord is having alternative accommodation to run his business and prayed for dismissal of the eviction application. 4. The learned Tribunal framed as many five issues. The landlord in support of his case produced two witnesses namely PW1 Ashok Kumar and PW2 Pradeep Kumar. He also produced documents Ex.1 to Ex. 10 and got the same exhibited. Tenants produced evidence of Shakila as DW-1 and submitted the documentary evidence Ex.1 to Ex.13 and also got the same exhibited. The learned trial court after recording the evidence of both the parties dismissed the eviction application filed by the landlord vide judgment and decree dated 12.03.2010. 5. The landlord filed an appeal before the Appellate Rent Tribunal, Kota against the judgment and decree dated12.03.2010. The Appellate Rent Tribunal considering the evidence submitted by both the parties, partly allowed the appeal filed by the landlord and vide judgment and decree dated 12.11.2014 decided the issue no.4 in favour of the landlord regarding bona-fide need and personal necessity for starting his own business of property dealing in the shop in dispute. 6. The Appellate Rent Tribunal considering the evidence submitted by both the parties, partly allowed the appeal filed by the landlord and vide judgment and decree dated 12.11.2014 decided the issue no.4 in favour of the landlord regarding bona-fide need and personal necessity for starting his own business of property dealing in the shop in dispute. 6. Aggrieved by the judgment and decree dated 12.11.2014 passed by the Appellate Rent Tribunal, Kota the tenants have preferred the present writ petition before this court under Article 226 & 227 of the Constitution of India. 7. Counsel for the petitioner submitted that the finding given by the learned Appellate Rent Tribunal on issue no.4 is perverse and against the evidence available on record. Counsel further submits that the eviction application was filed by the landlord before the Rent Tribunal, in the year 2005 whereas, the landlord has given one another shop on rent in the year 2004, therefore, the bonafide need of the landlord is doubtful. Counsel further submits that the landlord is having the alternative place for doing his business of property dealing and in such circumstances the need of the landlord cannot be said to be bona fide one. Counsel further submits that during pendency of the writ petition before this court, the landlord got other shop vacated from where he can start his business of property dealing. Counsel further submits that in the facts and circumstances of the present case the need of the landlord cannot be said to be bona fide one and it is only his wish that he wants the shop in dispute vacated. 8. In support of his contentions counsel for the tenants relied upon the judgment passed by the Hon'ble Supreme Court in the matter of M/s. Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, (1985) AIR SC 207 in which in para 6 has held as under:- "6. It cannot be overlooked that three courts have held concurrently in this case that the respondent has proved that he requires the suit premises bona fide for his personal need. Such concurrence, undoubtedly, has relevance on the question whether this Court should exercise its jurisdiction under Article 136 of the Constitution to review a particular decision. That jurisdiction has to be exercised sparingly. But, that cannot possibly mean that injustice must be perpetuated because it has been done three times in a case. Such concurrence, undoubtedly, has relevance on the question whether this Court should exercise its jurisdiction under Article 136 of the Constitution to review a particular decision. That jurisdiction has to be exercised sparingly. But, that cannot possibly mean that injustice must be perpetuated because it has been done three times in a case. The burden of showing that a concurrent decision of two or more Courts or Tribunals is manifestly unjust lies on the appellant But once that burden is discharged, it is not only the right but the duty of this Court to remedy the injustice. Shri Tarkunde, who appears for the respondent, argued that this may lead and, in practice, does lead to different standards being applied by different courts to find out whether a concurrent decision is patently illegal or unjust that in the present dispensation, is inevitable. Quantitatively, the Supreme Court has a vast jurisdiction which extends over matters as far apart as Excise to Elections and Constitution to Crimes. The Court sits in Benches and not en banc, as the American Supreme Court does. Indeed, even if the entire Court were to sit to hear every one of the eighty-thousand matters which have been filed this year, a certain amount of individuality in the response to injustice cannot be avoided. It is a well-known fact of constitutional history, even in countries where the whole court sits to hear every case, that the composition of majorities is not static. It changes from subject to subject though, perhaps, not from case to case. Personal responses to injustice are not esoteric. Indeed, they furnish refreshing assurance of close and careful attention witch the judges give to the cases which come before them. We do not believe that the litigating public will prefer a computerised system of administration of justice: only, that the Chancellor's foot must tread warily. 9. Counsel for the tenants further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Deena Nath Vs. Pooran Lal, (2001) AIR SC 2655 in which in para 16, 17 & 18 it has been held as under:- "16. In this connection, we may refer to the decision of this Court in the case of Shiv Sarup Gupta v. Dr. Pooran Lal, (2001) AIR SC 2655 in which in para 16, 17 & 18 it has been held as under:- "16. In this connection, we may refer to the decision of this Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 , in which it was held, inter alia, that "the term 'bona fide' or 'genuinely' refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much higher that in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant." "herein it was further held : "the High Court in revision is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law." For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available." 17. Coming to the case on hand, the judgment of the High Court clearly bears out the position that the lower courts had failed to consider the requirement of the section regarding availability of reasonable accommodation in occupation of the landlord-appellant. As noted earlier, at the time of filing the suit, one vacant shop room was in occupation of the landlord and in course of the proceedings one more shop-room, on being vacated by the tenant, came in his occupation. The High Court has found that the landlord could easily make arrangements for starting the shop which his son Pradeep Kumar Gupta intends to open in the vacant shop-rooms. If any adjustment was necessary, then the tenant-respondent could also have been offered an alternate shop-room for his occupation. No such step was taken by the landlord during all these years. The High Court has found that the landlord could easily make arrangements for starting the shop which his son Pradeep Kumar Gupta intends to open in the vacant shop-rooms. If any adjustment was necessary, then the tenant-respondent could also have been offered an alternate shop-room for his occupation. No such step was taken by the landlord during all these years. During the hearing of this appeal, we made a suggestion to the learned counsel appearing for the landlord-appellant, whether he is willing to permit the tenant-respondent to occupy the shop-room presently in his (landlord) occupation so that he may have a block of four shop-rooms for the business of himself and his son. The learned counsel stated that the landlord, who was present in the Court, declined to accept the suggestion. 18. On the discussions in the judgment there is hardly any scope for doubt that the requirement of the landlord cannot be termed to be a (bona fide) requirement within the meaning of the statute (noticed above). The High Court was justified in interfering with the concurrent judgment in the contextual facts and the same does not warrant any interference under Article 136 of the Constitution of India." 10. Counsel for the respondent submits that the landlord filed the eviction application on the grounds of bona fide and reasonable need before the Rent Tribunal and bona need of the landlord should be taken into consideration on the date of filing of the eviction application. Counsel further submits that due to long pendency of the litigation in eviction matters, the subsequent events cannot be taken into consideration and the bona fide need should be considered on the date of filing of the eviction application. Counsel further submits that the finding of fact arrived at by the Appellate Rent Tribunal should not be disturbed by this court under Article 227 of the Constitution of India, as the only one remedy of appeal is provided in the Act of 2001. 11. Counsel further submits that the landlord is the best judge to choose the place for starting his business. In support of his contentions counsel for the landlord relied upon the judgments passed by the Hon'ble Supreme Court in the matter of Pratap Rai Tanwani and another Vs. Uttam Chand and another, (2004) 8 SCC 490 in which in para 8,9 & 10 it has been held as under:- "8. In support of his contentions counsel for the landlord relied upon the judgments passed by the Hon'ble Supreme Court in the matter of Pratap Rai Tanwani and another Vs. Uttam Chand and another, (2004) 8 SCC 490 in which in para 8,9 & 10 it has been held as under:- "8. We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. In Ramesh Kumar v. Kesho Ram a two-judge Bench of this Court (M.N. Venkatachalia, J., as he then was, and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this: (SCC pp.626-27, para 6) "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief." 9. The next three-Judge Bench of this Court which approved and followed the above decision in Hasmat Rai v. Raghunath Prasad : has taken care to emphasise that the subsequent events should have "wholly satisfied" the requirement of the party who petitioned for eviction on the ground of personal requirement. The relevant passage is extracted below: (SCC pp. 113-14, para 14) "Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. 113-14, para 14) "Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord's requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events." 10. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused." 12. Counsel for the landlord further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Shamshad Ahmad and others vs. Tilak Raj Bajaj and others, (2008) 9 SCC 1 in which in para 36, 37 & 38 it has been held as under:- "36. A finding as to bona fide requirement for doing readymade garments business by Matloob Ahmad has been expressly recorded by the appellant authority. The said finding was a finding of fact. Neither could it have been interfered with, nor has it been set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition. 37. As observed earlier, statutory remedy has been provided under the Act against an order passed by the prescribed authority by filing an appeal before the District Judge (Section 22). There is no further remedy under the Act. The tenant, in the circumstances, approached the High Court by filing a petition under Articles 226 and 227 of the Constitution. 38. 37. As observed earlier, statutory remedy has been provided under the Act against an order passed by the prescribed authority by filing an appeal before the District Judge (Section 22). There is no further remedy under the Act. The tenant, in the circumstances, approached the High Court by filing a petition under Articles 226 and 227 of the Constitution. 38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law." 13. Counsel for the landlord further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Bhupinder Singh Bawa Vs. Ahsa Devi, (2016) 10 SCC 209 in which in para 12 it has been held as under:- "12. In light of the above, Additional Rent Controller and the High Court rightly concluded that no alternative premises were lying vacant for running business of respondent's son. The High Court rightly relied on the ratio of Anil Bajaj v. Vinod Ahuja to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to which shop her son should start the business from." 14. I have considered the submissions made by counsel for the parties. 15. The first argument raised by the counsel for the tenants that the need of the landlord is not bona fide in the present matter, is not acceptable in view of the findings given by the learned Appellate Court on issue no.4. I have considered the submissions made by counsel for the parties. 15. The first argument raised by the counsel for the tenants that the need of the landlord is not bona fide in the present matter, is not acceptable in view of the findings given by the learned Appellate Court on issue no.4. The learned Appellate Rent Tribunal while considering the evidence of PW1 Ashok Kumar and PW2 Pradeep Kumar recorded finding of fact that the landlord is in bona fide and reasonable need of shop in dispute to run his business of property dealing. The second argument raised by the counsel for the tenants regarding alternative place available to the landlord to run his business is also not acceptable in view of the fact that it is for the landlord to decide and choose the place of business and the landlord is the best judge in this regard. The next argument raised by the counsel for the tenant regarding availability of another shops to the landlord during pendency of the writ petition to start the business from that available place is also not acceptable in view of the fact that the bona fide and reasonable need of the landlord should be taken into consideration as on the date of filing of the eviction application. The last argument raised by the counsel for the Tenants regarding subsequent events should be taken into consideration, is also not acceptable and the application filed by the tenant for taking on record, the subsequent events was dismissed by this court vide order dated 10.05.2018. 16. In that view of the matter, the writ petition filed by the Tenants deserves to be dismissed for the reasons; firstly, the landlord is the best judge to decide and choose the place for starting of his business in view of the judgment passed by the Hon'ble Supreme Court in the matter of Bhupinder Singh ; secondly, A finding of bona-fide requirement for doing the business of property dealing by the landlord has been recorded by Appellate Rent Tribunal. The said finding was a finding of fact and I am not inclined to exercise the jurisdiction of this court under Article 226 & 227 of the Constitution of India to disturb the finding of fact in view of the judgment passed by the Hon'ble Supreme Court in the matter of Shamshad Ahmad ; and thirdly, the bona-fide and reasonable need of the landlord has rightly been considered by the Appellate Rent Tribunal as on the date of filing of the eviction application. 17. In that view of the matter, the writ petition filed by the petitioners-tenants stands dismissed. No order as to costs.