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2019 DIGILAW 1714 (RAJ)

Praveen Parihar v. Satish Kumar Pahwa

2019-05-30

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: "(i) The impugned judgment and certificates dated 13.02.2019 (Annex. 45) and 30.01.2017 (Ann. 64) be set aside. (ii) The original application of the respondent of eviction petition be dismissed. (iii) Any other relief for which petitioner is entitled be given." 2. As the pleaded facts would reveal, the respondent/landlord filed an eviction petition against the present petitioner/tenant under Section 6, 9AI and (J) of the Rajasthan Rent Control Act, 2001 on 03.06.2006. The rent payable by the petitioner/tenant was stated to be Rs.1620/- per month and the premises were rented out initially on 10.10.1980 for a period of nine years. The petitioner/tenant has claimed to have paid the rent until 09.10.1989, however, he did not pay the rent thereafter. The respondent/landlord thus gave a notice to the petitioner on 03.02.2006, giving his Bank account number. The petitioner/tenant gave reply to the said notice on false facts. 3. The petitioner however, deposited Rs.1,05,360/- out of Rs.2,67,380/- arrears of rent upto November, 1996. The respondent/landlord stated that the rent from December, 1996 to May, 2006 i.e.Rs.1,68,420/- was due and more than four months' rent was due from the petitioner/tenant, and according to the provision of Section 9A, a second notice dated 07.04.2006 was given to the petitioner/tenant, which was received by him on 08.04.2006. 4. As the pleaded facts would further reveal, the learned Rent Tribunal vide judgment dated 30.01.2017 has partly allowed the eviction application holding that although there was default in payment of rent, but the ground of reasonable and bonafide necessity of the landlord/respondent was not found to be proved. 5. Against the aforesaid judgment dated 30.01.2017, the petitioner/tenant as well as respondent/landlord preferred appeals before the learned Appellate Rent Tribunal, but the same were dismissed vide judgment dated 13.02.2019. 6. Learned counsel for the petitioner/tenant submitted that the evidence and cross examination of both the parties have been misread and the appeal preferred by the petitioner/tenant has been wrongly dismissed. 7. Learned counsel for the petitioner further submitted that the respondent/landlord knowingly did not encash the cheque in question, just to put the onus of default upon the petitioner. 8. Learned counsel for the petitioner/tenant submitted that the evidence and cross examination of both the parties have been misread and the appeal preferred by the petitioner/tenant has been wrongly dismissed. 7. Learned counsel for the petitioner further submitted that the respondent/landlord knowingly did not encash the cheque in question, just to put the onus of default upon the petitioner. 8. Learned counsel for the petitioner also submitted that the witnesses of the petitioner/tenant were not taken into consideration properly, and the petitioner in fact has not committed default in payment of rent, as the petitioner/tenant sent a letter dated 02.06.1990 along with cheque of Rs.1080/-, which was not adjusted by the respondent/landlord. 9. Learned counsel for the petitioner further submitted that the application under Section 21 of the Rajasthan Rent Control Act, 2001 for appointment of Mokha Commissioner for the inspection of the disputed rental premises along with possession of vacant premises, which was not entertained by the learned Tribunal, and that, the learned Tribunal has failed to decide the main issue of reasonable and bonafide necessity. 10. Learned counsel for the petitioner further submitted that the rent upto 31.05.2019 has been deposited in Bank Account No.10185993728 in SBI, Shastri Nagar, Jodhpur, and hence, there was no rent due from the present petitioner. Thus, as per learned counsel for the petitioner/tenant, the pleas of the respondent/landlord were not maintainable. 11. On the other hand, learned counsel for the respondent/landlord submitted that there are two consecutive orders of the learned courts below, which are well justified, and thus, opposed the submissions made on behalf of the petitioner. 12. Reliance has been placed by learned counsel for the respondent/landlord on the precedent law laid down by the Hon'ble Supreme Court in Pratap Rai Tanwani and Anr vs. Uttam Chand and Anr., reported in (2004) 2 WLC (SC) Civil 713 , relevant portion of which reads as under:- "8. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale after passing through all the previous levels of the litigation merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period. 18. In the background of the factual position one thing which clearly emerges is that the High Court had considered the subsequent events which the appellants highlighted and tend to hold that the bona fide need continues to subsist. As observed in Hasmat Rai's case (supra) the appellate Court is required to examine, evaluate and adjudicate the subsequent events and their effect. This has been done in the instant case. That factual finding does not suffer from any infirmity. What the appellants have highlighted as subsequent events fall within the realm of possibility or probability of non-return and a certainty, which is necessary to be established to show that the need has been eclipsed. 19. At this juncture it would be appropriate to take note of Section 17 of the Act. Same deals with consequences which statutorily follow if there is deviation from the purposes for which possession has been recovered. If in the instant case such contingency arises, the respondents shall redeliver possession to the appellants-tenants on such terms as the Rent Controlling Authority shall fix." 13. Learned counsel for the respondent also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Shailendra Kumar vs. Rent Appellate Tribunal, Jaipur and Ors., reported in (2012) 4 CDR 2196 (Raj.) , relevant portion of which reads as under: "6. Learned counsel for the respondent also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Shailendra Kumar vs. Rent Appellate Tribunal, Jaipur and Ors., reported in (2012) 4 CDR 2196 (Raj.) , relevant portion of which reads as under: "6. After thoroughly considering the material on record filed by the petitioner along with the writ petition which includes all the documents which were there before the learned Rent Tribunal such as the application under Sections 6 and 9 of the Act of 2001; copies of statements of the witnesses produced by the respective parties etc., this Court is of the considered opinion that the present case is not of a nature where any interference is called for in exercise of extraordinary powers vested with this Court under Article 227 of the Constitution of India. Moreover, the eviction of the suit premises in the present case has been sought mainly on the ground of reasonable and bona fide necessity of the land lord which has been looked into by both the courts below after properly appreciating and analyzing the statements of witnesses produced by both the sides and have concurrently arrived to a finding in this regard. The learned Tribunals have gone into details in respect of the premises which the respondent No.3 is having and the genuine difficulties being faced in her day to day working. She had to run simultaneously her petty shop to earn livelihood and also to have a portion with regard to her residence. There had not been any space to attend the visitors and her relatives so as to have them sit in the residential portion and they were to be kept in the part of premises which was meant for the shop. On consideration of the facts of the present case as well as the evidence on record, it cannot be said that the demand for more space by the land lord is not bona fide or that it is merely a desire or wish on her part. Both the Tribunals have considered in detail the material on record and have arrived to a concurrent finding of fact in respect of the bona fide necessity of the land lord and the suit premises for her use. There is nothing on record so as to establish any mala fide on the part of respondent No.3, in initiating the proceedings for eviction. There is nothing on record so as to establish any mala fide on the part of respondent No.3, in initiating the proceedings for eviction. 7. It is a settled principle of law that for a bona fide requirement, the land lord is the best judge as to what his requirements are and neither the tenant nor the court may endeavour to say as to how the land lord should adjust himself. It is equally settled that once a land lord proves his bona fide upto the objective satisfaction of the Court on facts, the choice of accommodation which would satisfy his requirements should be left to land lord's subjective choice. Even the Court cannot impose its own choice. In the present case, both the Tribunals have come to a concurrent finding in respect of bona fide requirement of premises by the land lord. It is a settled principle that the bona fide necessity is a finding of act. In the instant case, despite of a specific query having been made by the court to the learned counsel for the petitioner, he was unable to point out any perversity in the findings arrived at by both the Tribunals below. Consequently, this Court in exercise of extraordinary powers under Article 227 of the Constitution of India cannot interfere in the findings of fact arrived at by both the Tribunals below. 8. Coming to another aspect of the present case with regard to the limited scope which is left to this Court while exercising powers under Article 227 of the Constitution of India in respect of concurrent findings arrived at by both the Tribunals, an aspect which has been much emphasized by learned counsel for the respondent, this Court is of the considered opinion that it is a settled principle of law since long that the powers under Article 227 of the Constitution are neither akin to appellate powers or revisional powers. Moreso, when the proceedings in the present case arises under the Act governing the land lord and tenant relationship and their dispute, it does not provide for any second appeal or revision to the High Court. The purpose behind providing such a remedy is to give finality to the orders passed under the Act. Moreso, when the proceedings in the present case arises under the Act governing the land lord and tenant relationship and their dispute, it does not provide for any second appeal or revision to the High Court. The purpose behind providing such a remedy is to give finality to the orders passed under the Act. The power under Article 227 is exercisable when it is found by the High Court that due to a certain grave error, an injustice has been caused to a party. The said jurisdiction of the High Court is limited only to seeing that the subordinate courts functions within the limits of its authority and does not extend to correction of mere error of fact by examining the evidence and reappreciating an error of fact that can be corrected only by a superior court in exercise of statutory powers as a court of law. Therefore, the High Court cannot be anxious in exercising its jurisdiction under Article 227 of the Constitution of India to convert itself into a court of appeal" 14. Learned counsel for the respondent has also placed reliance on the judgment rendered by this Hon'ble Court at Jaipur Bench in Ram Chandra Sharma and Anr. vs. Rent Appellate Tribunal, Sikar and Anr., reported in (2013) 1 CDR 537 (Raj.) , relevant portion of which reads as under: "9. On the material before this court, I am of the view that the findings arrived at by the Tribunals are based on the evidence laid before them. The Hon'ble Supreme Court in the case of Narayan Govind Gavate vs. State of Maharshtra, [ (1977) 1 SCC 133 ] has held that the result of a trial is determined by a weighing of the totality of facts and circumstances and taking into consideration the presumptions operating in favour of one party or those against it which tilt the balance of the trial in favour of one of the contesting parties. In the case at hand, it is not disputed that the rented shop was let out by the landlord to the tenant who engaged there from in selling of footwear. Subsequently the tenant appears to have abandoned the said business starting driving a taxi as evident from the evidence. In the case at hand, it is not disputed that the rented shop was let out by the landlord to the tenant who engaged there from in selling of footwear. Subsequently the tenant appears to have abandoned the said business starting driving a taxi as evident from the evidence. On the material before the Tribunal, it was established that the barber's shop was being run thereafter in the rented shop by one Nemi Chand Sain without the permission of the landlord and that the tenant had neither skill or experience of running a barber's shop. In these circumstances the burden was on the tenant to establish that the said Nemi Chand Sain was not in possession of the rented shop in his own capacity but as an employee of the tenant. This burden was not discharged by the tenant. Consequently in my considered view, the learned Tribunal and the learned Appellate Tribunal have not committed any perversity nor are the impugned orders vitiated by any misdirection in law for coming to a conclusion that the rented shop had been let out/parted with the possession without the permission of the landlord. This was in contravention of Section 9(e) of the Rent Act. 10. Further the jurisdiction of this Court under Article 227 of the Constitution of India is extremely limited as held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patil, [ (2010) 8 SCC 329 ] and no reason obtains in the facts of the present petition to exercise it in favour of the petitioners herein." 15. Reliance has also been placed by learned counsel for the respondent on the judgment rendered by this Hon'ble Court in Madan Lal vs. Champa Lal, reported in (2013) 1 CDR 494 (Raj.) , relevant portion of which reads as under: "12. In the considered opinion of this Court, there is no merit in the writ petition filed by the petitioner-tenant against the order of the Appellate Rent Tribunal allowing the landlord's appeal vide the impugned order dated 23.08.2012. In the considered opinion of this Court, there is no merit in the writ petition filed by the petitioner-tenant against the order of the Appellate Rent Tribunal allowing the landlord's appeal vide the impugned order dated 23.08.2012. The Appellate Rent Tribunal has given detailed and cogent reasons and has discussed all the relevant facts and evidence on record; and the defence set up by the petitioner-tenant and thereafter returned its own reasons and findings of facts that bonafide need of the landlord and his family members was established and the Rent Tribunal had erred in rejecting the eviction petition of the landlord. No narrow and pedantic approach in this regard could be taken by the Rent Tribunal that since a vacant/empty plot of land was available to the landlord, he should satisfy his need with that. The need of setting up of "Ayurvedic Hospital" and a Hotel and restaurant, jointly taken can require a large space or accommodation and the defendant-tenant certainly cannot dictate terms that the Hotel or Restaurant should be of a particular limited size or so also the "Ayurvedic Hospital" to be set up by the landlord should be constructed newly on the vacant plot of land. The requirement of the family can always be pleaded and then established by the statements of various witnesses, who are family members and others, and once the genuineness of that is felt by the Rent Tribunal, then no dissection of such statements can be made by S.B. Civil Writ Petition No. 11741/2012 Madan Lal vs. Champa Lal Order dt: 07/02/2013 the Tribunal or the court as it is well settled that the landlord alone is the best judge of his needs business needs or personal needs and even courts cannot substitute their own opinion Therefore, only the bonafideness or reasonableness of the same has to be seen and if such reasonable and bonafide need is established, eviction decree has to follow and such findings of facts are binding on this Court in supervisory jurisdiction under Article 227 of the Constitution of India. 18. 18. It is well settled that jurisdiction under Article 227 of the Constitution of India, specially in the special laws like the Rent Control Act, has to be very narrow and unless glaring perversity is shown in the impugned order of the Appellate Rent Tribunal even upon a reversal or even concurrent decisions of both the Rent Tribunals, the said findings of facts cannot be interfered with. Merely because the Appellate Rent Tribunal has reversed the findings of Rent Tribunal, it does not per se becomes a fit case of interference S.B. Civil Writ Petition No. 11741/2012 Madan Lal vs. Champa Lal Order dt: 07/02/2013 under Article 227 of the Constitution of India always, unless the Appellate Rent Tribunal has grossly erred or has given the findings of facts are bereft of any evidence in this regard. The assailing of such findings on the grounds like raised in the present case, that there is no finding of unsuitability of accommodation for the landlord, or that the landlord should adjust his bonafide needs in the vacant rooms in the said building now available, which were vacated during the pendency of the present suit, are not sufficient for interference in such findings of learned Appellate Rent Tribunal, which essentially remain the findings of facts and are binding even on this Court. If the findings of the Rent Tribunal below have been traversed and dealt with by the Appellate Rent Tribunal, which has a co-extensive and superior jurisdiction over the Rent Tribunal below, it can always give its reasons and reverse the findings of Rent Tribunal, as has been done in the present case as well. 19. Recently, the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and Anr. vs. Rajendra Shankar Pateil reported in 2010 AIR SCW 6387 has held as under: - "Writ petition in dispute between landlord and tenant where only respondent is landlord is not maintainable. Supreme Court deprecated the practice of entertaining petition under Article 227 over disputes relating to partition suits, matters relating to execution of decree, disputes between landlord and tenant, in cases of money decree and other case where disputed questions of property are involved. Supreme Court deprecated the practice of entertaining petition under Article 227 over disputes relating to partition suits, matters relating to execution of decree, disputes between landlord and tenant, in cases of money decree and other case where disputed questions of property are involved. A writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State of instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the S.B. Civil Writ Petition No.11741/2012 Madan Lal vs. Champa Lal Order dt: 07/02/2013 respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." 16. Learned counsel for the respondent has also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Firm Roop Prakash Enterprises and Anr. vs. Smt. Vidhya and Ors. reported in , (2012) 2 WLC (Raj.) 176 , relevant portion of which reads as under: "13. This Court is dismayed by the manner in which the very salutary jurisdiction of writ Courts which has been conferred by the Constitution to aid and assist the citizens in seeking justice even against multiple findings of facts and conclusions on law is invoked in several cases. Writ proceedings under Article 226 or petition under Article 227 of the Constitution of India are not to be casually invoked as if a matter of right. The writ petition under Articles 226 and 227 of the Constitution of India, particularly against the findings of fact by multiple statutory authorities below should be filed with due care and consideration and not agitated as if by way of a further appeal. Writ jurisdiction against findings of fact should be and has to be very sparingly invoked and has to be stricter than the jurisdiction under section 100 CPC where even civil second appeals are not maintainable without framing of substantial questions of law. Writ jurisdiction against findings of fact should be and has to be very sparingly invoked and has to be stricter than the jurisdiction under section 100 CPC where even civil second appeals are not maintainable without framing of substantial questions of law. It cannot be visualized that approaching a writ Court invoking its powers under Article 226 and 227 of the Constitution of India against findings of fact on appreciation of evidence can be more casual and without limitations even as against the provisions of section 100 CPC." 17. Learned counsel for the petitioner, in his rejoinder arguments, submitted that there shall be a bar on the respondent seeking rent on the ground of limitation also as the same is barred by three years from the date of default. 18. In response to such argument made on behalf of the petitioner, learned counsel for the respondent submitted that such plea has not been taken before the learned courts below, and therefore, now the same cannot be raised suddenly as a surprise argument. 19. After hearing learned counsel for the parties as well as perusing the record of the case along with the precedent law cited at the Bar, this Court is of the opinion two consecutive impugned orders of the learned Tribunals dated 30.01.2017 and 13.02.2019 appears to be well justified, as the learned Tribunals have considered all the facts and circumstances and the petitioner/tenant has in fact committed default in payment of rent. Hence, no interference is called for in the present writ petition. 20. Consequently, the present writ petition is dismissed. Stay Application No. 5511/2019 also stands dismissed accordingly.