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2018 DIGILAW 1660 (RAJ)

Nand Lal Dhingra S/o Shri Shiv Dayal Dhingra v. Rent Appellate Tribunal, Jaipur Metropolitan

2018-08-07

INDERJEET SINGH

body2018
JUDGMENT : 1. This writ petition has been filed by the petitioner (hereinafter referred to as ‘Tenant’) under Article 226 & 227 of the Constitution of India against the order dated 04.04.2013 passed by the Appellate Rent Tribunal, Jaipur Metropolitan in appeal No.88/2011 whereby the appeal filed by the petitioner-tenant against the order dated 17.03.2011 passed by Rent Tribunal, Jaipur Metropolitan was dismissed and appeal filed by respondent no.3 (hereinafter referred to as ‘Landlord’) was partly allowed. 2. Brief facts of the case are that the Landlord filed an eviction application before the Rent Tribunal, Jaipur Metropolitan against the Tenant for his eviction from the disputed premises on the grounds of bona-fide need and personal necessity default in making the payment of Rent and nuisance and material alteration under Section 9 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as ‘Act of 2001’). 3. The Tenant filed reply to the said application and denied the averments made in the application. Lastly, prayed for dismissal of the eviction application. 4. The learned Rent Tribunal has framed as many as five issues. ^^01 vk;k izR;FkhZ us oknxzLr ifjlj dk fdjk;k vnk;xh esa O;frØe fd;k gS\ vthZnkj 2 vk;k izR;FkhZ us fdjk;snkj ij fn;s x;s ifjlj ds vykok xSjst iks’kZu ij dCtk dj U;wlsUl dkfjr fd;k gS \ vthZnkj 3 vk;k izR;FkhZ us fdjk;k’kqnk ifjlj ds vykok xSjst iks’kZu ij dCtk dj vthZnkj dh vuqefr ds fcuk xSjst iks’kZu ij ,oa fdjk;s’kqnk ifjlj esa nhokj [kM+h dj yksgs dk xsV yxk fn;k rFkk xSjst dks dejs dk :i nsdj ifjlj esa lkjHkwfr ifjorZu dj fn;k gS \ vthZnkj 4 vk;k vthZnkj dks oknxzLr ifjlj dh ;qfDr;qDr ,oa lnHkkoh vko’;drk gS\ 5 vuqrks"k \ 5. The Landlord in support of his case produced the evidence of PW-1 Raj Kumar Jain, PW-2 Kuman Saxena & PW-3 Rajendra Sogani and also produced the documentary evidence Ex.1 to Ex.7 and got the same exhibited. Tenant in support of his case produced the evidence of DW1 Nand Lal Dhingra, DW2 Gulab dhingra, DW3 Naresh Khatri DW4 Revadmal and also produced the documentary evidence Ex.A1 to Ex.A24 and got the same exhibited. 6. The learned Rent Tribunal vide order dated 17.03.2011 decided only issues no.1 in favour of the Landlord and partly allowed the eviction application vide order dated 17.03.2011. 7. 6. The learned Rent Tribunal vide order dated 17.03.2011 decided only issues no.1 in favour of the Landlord and partly allowed the eviction application vide order dated 17.03.2011. 7. Being aggrieved by the order dated 17.03.2011 Tenant filed an appeal before the Rent Tribunal being appeal no.88/2011 and the Landlord also filed an appeal being appeal no.87/2011 before the Appellate Rent Tribunal. Both the Appeals were decided by the Appellate Rent Tribunal vide judgment dated 17.03.2011 by which the appeal filed by the Tenant was dismissed and appeal filed by the Landlord was partly allowed on the ground of bona-fide need and personal necessity. Hence, this writ petition has been filed by the Tenant against the order dated 17.03.2011. 8. Counsel for the petitioner submitted that the findings recorded by the Rent Tribunal as well as Appellate Rent Tribunal on issue no.1, is perverse. Counsel further submits that the finding recorded by the both the Tribunals below on issue No.1 is contrary to Section 9A of the Act of 2001 as no evidence was submitted by the Landlord before the Rent Tribunal regarding service of notice upon Tenant. Counsel further submits that the Tenant has regularly paid the rent to the Landlord by way of Cheque or by cash. Counsel further submits that sometime Landlord has received the rent through his agent also. Counsel further submits that the Rent Tribunal as well as Appellate Rent Tribunal has not considered this aspect of the matter that on various occasions the rent was adjusted on account of new construction of Garage and taking of new Electricity connection and submitted that the calculation made by both the courts below is not proper. Counsel further submits that Landlord failed to submit the detail regarding number of bank account in his notice. 9. Counsel further submits that the Appellate Rent Tribunal has erred in reversing the finding of issue no.4 regarding bona-fide and reasonable need of the Landlord given by the Rent Tribunal. Counsel further submits that before the Rent Tribunal Tenant has established that the Landlord is doing the business of Photography in Assam (Gauhati) and there is no reasonable need of the landlord for the disputed premises and it is only his wish to got the premises vacated. Counsel further submits that the respondents-landlords is having ancestral house/joint family property at Jaipur and he can stay their. 10. Counsel further submits that the respondents-landlords is having ancestral house/joint family property at Jaipur and he can stay their. 10. Counsel for the Landlord supported the judgment passed by the Tribunals below and submitted that both the learned Tribunals have arrived at concurrent finding of fact on issue No.1 with regard to default in making the payment of rent by the Tenant and therefore, the concurrent finding of fact arrived at by both the Tribunals below are not liable to disturbed by this court under Article 226 & 227 of the Constitution of India. Counsel further submits that the finding recorded by the Appellate Rent Tribunal on issue no.4 with regard to bona-fide need and personal necessity of the Landlord is a correct finding recorded by the Appellate Rent Tribunal on the basis of evidence available on record. Counsel further submits that the Landlord wants to shift her family from Assam to Jaipur, the said area is a disturbed area and originally Landlord belongs to Jaipur, therefore, wants to shift his business and family from Assam (Gauhati) to Jaipur and the disputed premises is very much needed for his personal use. 11. Counsel for the landlord 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, reported in 2008 (9) Supreme Court Cases 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.” 12. Counsel further relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Bhupinder Singh Bawa Vs. Asha Devi, reported in 2016 (10) Supreme Court Cases 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.” 13. Heard counsel for the parties and perused the record. 14. Heard counsel for the parties and perused the record. 14. The first argument raised by the counsel for the Tenant regarding no details of the arrears of rent was given by the Landlord in his notice which is required as per proviso to Section 9A is not acceptable in view of the concurrent finding recorded by both the Tribunals below that the details of arrears of Rent was given in the notice to the Tenant and after a detail calculation made by both tribunals below a finding of fact has been recorded that there was a default in making four months rent by the Landlord. The next argument raised by the counsel for the Tenant regarding no evidence submitted by the Landlord regarding notice of arrears of rent given to the Tenant is also not acceptable in view of the finding recorded by both the tribunals below that notice dated 24.04.2007 (Ex.3) was duly served upon the Tenant despite that the Tenant failed to deposit the due rent within thirty days as required proviso to Section 9 under the Act of 2001. The next argument raised by the counsel for the Tenant regarding no bona-fide, need and personal necessity of disputed premises to the Landlord is also not accepted as the Appellate Rent Tribunal has recorded a finding of fact on issue no.4 in favour of the Landlord based of sound appreciation of evidence that the disputed premises is needed for the Landlord himself as he wants to shift his business and family from Assam (Gauhati) to Jaipur due to disturbance in Assam (Gauhati). The next argument raised by the counsel for the Tenant that the Landlord is having ancestral house at Jaipur where he can reside is also not acceptable in view of the fact that the Landlord wants to live independently along with his family in the Mansrover area in Jaipur which is newly developed area. 15. The next argument raised by the counsel for the Tenant that the Landlord is having ancestral house at Jaipur where he can reside is also not acceptable in view of the fact that the Landlord wants to live independently along with his family in the Mansrover area in Jaipur which is newly developed area. 15. In view of the above discussion, the writ petition filed by the petitioner deserves to be dismissed for the reasons; firstly, the finding recorded by both the Tribunals below on issue no.1 being finding of fact is not liable to be disturbed under Article 226 & 227 of the Constitution of India in view of the judgment passed by the Hon’ble Supreme Court in the matter of Shamshad Ahmad (supra); secondly, it is for the Landlord to start the business or to shift his family at a place of his choice and the Tenant cannot dictate the landlord as to which place is more suitable for him in view of the judgment passed by the Hon’ble Supreme Court in the matter of Bhupindra Singh Bawa (supra); thirdly, the tenant failed to pay the due rent within a period of thirty days as required under the Act of 2001 despite the service of notice upon him. 16. In that view of the matter, the writ petition filed by the petitioner stands dismissed.