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2018 DIGILAW 755 (RAJ)

Hardeva Ram S/o Late Sh. Shankar Lal v. Ashok Kumar Moyal (Major), S/o Sh. Dayaram

2018-03-13

INDERJEET SINGH

body2018
JUDGMENT : 1. The instant writ petition has been filed by the petitioner against the order dated 31.01.2018 passed by the Rent Appellate Tribunal, Sikar in Appeal No.28/2015 whereby, the appeal filed by the petitioner-tenant against the order dated 17.09.2015 passed by Rent Tribunal Sikar in application no.5/2013 was dismissed. 2. Brief facts of the case are that the respondent-landlord filed an application under Section 9, 18 & 21 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as ‘Act of 2001) for eviction of petitioner-tenant on the ground of default, bona-fide necessity and availability of alternative of shop and for non user of the shop. The respondent-landlord stated that the suit shop has been purchased by the respondent vide registered sale deed dated 03.10.2011 and oral information about the same was given to the petitioner-tenant. It has been further stated that the petitioner assured him to tender rent to the respondent on 01.11.2011. The rent for the period of 13 months remained due (1.10.2011 to 31.10.2012 and when the respondent met with the petitioner, the petitioner-tenant showed in his inability to pay the rent as his shop had remained close for about 6 months. It has also been stated by the respondent-landlord in the application that the petitioner assured him to vacate the shop in question. It was also stated in the application that the alternative shops are available to the petitioner-tenant and the shop in question is required by the respondent-landlord to run his shop for Tailoring and Readymade Garments. 3. The petitioner-tenant filed reply to the said application and stated that he has regularly paid the rent to erstwhile owner of the shop i.e. Smt. Kamal Prabha. It was further stated in the reply that the tenant has neither any knowledge about the sale deed nor information was given to the petitioner-tenant. It was further stated that the shop in question was never remained close for six months. It was further stated that the respondent-landlord is having a shop adjoining to the shop in question. It was also stated that the petitioner-tenant was regularly paying the rent to Smt. Kamal Prabha i.e. erstwhile owner of the shop till 30.04.2013. It was further stated that the shop in question was never remained close for six months. It was further stated that the respondent-landlord is having a shop adjoining to the shop in question. It was also stated that the petitioner-tenant was regularly paying the rent to Smt. Kamal Prabha i.e. erstwhile owner of the shop till 30.04.2013. The petitioner-tenant further stated in the reply that the father of the respondent is having number of shops in the town and the respondent is already doing the business of Readymade Garments in one of the shop run by his father. Thus, the respondent-landlord has no bona-fide necessity. It was also stated that after receiving the notice from the court, the petitioner-tenant has also deposited the rent of Rs.5,500/- for the period from Oct, 2011 to May, 2013 in the account of respondent-landlord. Lastly, prays for dismissal of the application. 4. The learned Tribunal framed as many as six issues. The respondent-landlord in support of his case produced as many as four witnesses namely AW1 Ashok Kumar Moyal, AW2 Hariprasad, AW3 Dayaram and AW4 Manish Kumar. He also produced documents Exhibit-1 to Exhibit-9 and got the same exhibited. The petitioner-tenant produced himself in evidence as DW1 Hardeva Ram and got 38 documents exhibited from NA1 to NA38. 5. The learned Rent Tribunal vide its order dated 17.09.2015 allowed the application on the ground of default in payment of rent, availability of alternative shops with the tenant for his business, non user of shop without any reason for last six months and reasonable and bona-fide necessity of the land-lord. 6. Being aggrieved by the order dated 17.09.2015 the petitioner-tenant filed an appeal before the Rent Appellate Tribunal, Sikar who dismissed the appeal filed by the petitioner tenant vide its order dated 31.01.2018. Hence the present writ petition has been filed by the petitioner-tenant against the judgment dated 31.01.2018, as well as 17.09.2015. 7. Counsel for the petitioner submitted that learned Rent Tribunal as well as learned Appellate Tribunal have not considered the documents available on record while deciding issue no.1. He has submitted in his reply that after coming to the notice of the purchase of shop in question by the respondent-landlord, he has deposited the amount in the Bank and there was no default in paying the rent on his behalf. He has submitted in his reply that after coming to the notice of the purchase of shop in question by the respondent-landlord, he has deposited the amount in the Bank and there was no default in paying the rent on his behalf. Counsel further submits that the issue no.2 and 3 has also been wrongly decided by the learned Tribunal as the landlord is having the alternative shop and he is doing the business from the said shop. Counsel further submits that shop in question was never remain closed and petitioner landlord has submitted the documentary proof in this regard, the same was not considered neither by the Rent Tribunal and by the Rent Appellate Tribunal. Counsel further submits that issue no.4 has also been wrongly decided by the learned Rent Tribunal as the shop in question is not required by the respondent-landlord as he is doing the business of Readymade Garments along with his brother. Counsel for the petitioner further submits that the learned Rent Appellate Tribunal in a mechanical manner without appreciating the evidence and documents available on record dismissed the appeal filed by the petitioner-tenant. 8. Counsel for the respondent supported the judgment passed by the Rent Tribunal as well as Rent Appellate Tribunal and submitted that the concurrent findings recorded by the both the courts below on the ground of bona-fide and reasonable need of the land lord is a finding of fact and not open to challenged in the scope of writ of Certiorari under Article 227 of the Constitution of India. 9. Heard counsel for the parties and perused the record. 10. The argument raised by the counsel for the petitioner regarding wrong finding given by the learned Rent Tribunal on issue no.1 is not acceptable because the learned Rent Tribunal has given a finding that even after submitting the notice to the petitioner-tenant he has not deposited the due rent within 30 days of the notice as required under Section 9 of the Act of 2001. Admittedly, the petitioner-tenant has paid the rent after four months of the notice, thus, the finding given by the learned Rent Tribunal as well as Appellate Rent Tribunal on issue no.1 is a correct finding. 11. Admittedly, the petitioner-tenant has paid the rent after four months of the notice, thus, the finding given by the learned Rent Tribunal as well as Appellate Rent Tribunal on issue no.1 is a correct finding. 11. The next argument raised by the counsel for the petitioner-tenant regarding wrong finding given by the both the courts below on issue no.2 is also not acceptable because the petitioner-tenant has stated in his reply before the Rent Tribunal that eight shops are in his possession and he is using the four shops for his personal residence and four shops have been given on rent. The petitioner is having alternative shops to run his business, thus, the finding given by the courts below on issue no.2 is a correct finding. 12. The next argument raised by the counsel for the petitioner regarding wrong finding given by the learned courts below on issue no.3 is also not acceptable because the learned courts below after considering the documents submitted by the respondent-landlord comes to a finding that shop in dispute is closed for last six months and the petitioner-tenant has failed to submit any document to prove his case that he is doing the business from the shop in dispute. Thus, the finding given by the learned courts below on issue no.3 is a correct finding. 13. The next argument raised by the counsel for the petitioner-tenant regarding the respondent-landlord is not having the reasonable and bona-fide necessity of the shop in dispute for his business is also not acceptable in view of the fact that the respondent-landlord has proved his reasonable and bona-fide necessity of the shop in dispute for doing the business of tailoring work and the petitioner-landlord has failed to submit any document to show that the respondent-landlord is doing the business of Readymade Garments along with his brother. Thus, the learned courts below have rightly comes to a finding with regard to reasonable and bona-fide necessity in favour of the respondent-landlord. 14. The Rent Tribunal as well as Appellate Rent Tribunal have concurrently recorded all the findings in favour of the landlord including the finding as to bona-fide and reasonable requirement of the landlord. Thus, the learned courts below have rightly comes to a finding with regard to reasonable and bona-fide necessity in favour of the respondent-landlord. 14. The Rent Tribunal as well as Appellate Rent Tribunal have concurrently recorded all the findings in favour of the landlord including the finding as to bona-fide and reasonable requirement of the landlord. Both the courts below have concurrently held that the petitioner-tenant has made a default in paying the rent, the petitioner-tenant is having the alternative accommodation for doing his business, the shop in dispute was closed for last six months, and the respondent-landlord required the shop in dispute for doing his own business of tailoring. 15. The Hon’ble Supreme Court in the matter of Gulshera Khanam vs. Aftab Ahmad, reported in 2016(9) Supreme Court Cases 414 has held as under:- “33. Likewise, when we peruse the impugned judgment, we find, as rightly urged by the learned Counsel for the Appellant, the High Court did not keep in mind the aforesaid principle of law laid down by the Constitution Bench in Hindustan Petroleum Corpn. Ltd. (supra) so also the principle laid down by this Court in relation to exercise of jurisdiction Under Article 227 of Constitution of India in the case of Surya Dev Rai v. Ram Chander Rai and Ors. while deciding the writ petition and proceeded to decide like the first appellate court. The High Court as is clear from the judgment probed all factual aspects of the case, appreciated evidence and then reversed the factual findings of the appellate court and the Prescribed Authority. This, in our view, was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court, in our view, should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done. 34. In our considered opinion, the question in relation to the bona fide need of the Appellant's daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court in Appellant's favour by holding the Appellant's need to be bona fide and genuine. It was, however, not done. 34. In our considered opinion, the question in relation to the bona fide need of the Appellant's daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court in Appellant's favour by holding the Appellant's need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction Under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.” 16. The Hon’ble Supreme Court in the matter of Daya Nand vs. Virmo Devi, reported in 2017 (13) SCC 292 , has held as under:- “2. However, having heard the learned Counsel for the parties extensively and having regard to the concurrent findings against the Appellant, we are not inclined to interfere with the impugned order passed by the High Court.” 17. The Hon’ble Supreme Court in the matter of Nidhi vs. Ram Kripal Sharma (Dead) Through Legal, reported in 2017(5) SCC 640 , has held as under:- “14. The legislations made for dealing with such landlord-tenant disputes were pro-tenant as the court tends to bend towards the tenant in order to do justice with the tenant; but in the process of doing justice the Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is the landlord who owns the property and is entitled to possession of the same when he proves his bona fide beyond reasonable doubt as it is in the case before this Court.” 18. Thus, the findings on the question of bona-fide necessity is essentially a finding on fact. Law is well settled that if the courts below or the Subordinate Tribunal has, in recording such finding, considered relevant evidence and if on evidence available on record, it is possible to arrive at such finding, this court in writ of Certiorari would not be justified in reversing the finding only because another view is possible. Law is well settled that if the courts below or the Subordinate Tribunal has, in recording such finding, considered relevant evidence and if on evidence available on record, it is possible to arrive at such finding, this court in writ of Certiorari would not be justified in reversing the finding only because another view is possible. Supervisory power of this court under Article 227 of the Constitution of India cannot be confused with Appellate Powers. This is all the more so because this court in a writ of Certiorari is having very restricted scope of interference as the legislature has in the Act of 2001 provided remedy of only one appeal against the judgment of Rent Tribunal before the Appellate Rent Tribunal and no further appeal has been provided from the judgment of Appellate Rent Tribunal. The writ court under Article 227 of the Constitution of India cannot, therefore, question the correctness of the finding of facts especially about factual aspect of reasonable and bona-fide necessity, concurrently recorded by the both the Rent Tribunal and Appellate Rent Tribunal proving such necessity of the landlord. 19. In that view of the matter, the writ petition filed by the petitioner stands dismissed.