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2022 DIGILAW 1070 (RAJ)

Ashok Chouhan S/o Shankar Lal Chouhan v. Ganpati Plaza, Registered Partnership (Firm Registration No. 17/26/52/2006) Through Partner Mohan Lal S/o Ramchand Makhija

2022-04-04

VIJAY BISHNOI

body2022
JUDGMENT : 1. This writ petition is filed by the petitioner being aggrieved with the judgment dated 05.01.2021 passed by the Appellate Rent Tribunal, Udaipur (hereinafter to be referred as ‘the Appellate Tribunal’), whereby the appeal preferred on behalf of respondent has been allowed and the judgment dated 24.07.2019 passed by the Additional Chief Judicial Magistrate (Rent Tribunal) Udaipur (hereinafter to be referred as ‘the Rent Tribunal’) has been set aside and the petitioner has been directed to vacate the premises in question within a period of six months from the date of passing of the impugned order. 2. Brief facts of the case are that the respondent preferred an application under Section 9(a)(i)(m) of Rajasthan Rent Control Act, 2001 (hereinafter to be referred as ‘the Act of 2001’) against the petitioner seeking eviction from a shop situated in a building at 15, Residency Road, Udaipur. The said application was filed on the ground of default in making payment of rent as well as of bonafide necessity. 3. It was contended on behalf of the respondent that it purchased a building situated at 15 Residency Road, District Udaipur from the erstwhile owner on 17.08.2002 and in that building there is one shop, which has been let out to the petitioner/tenant by the earlier owner. The description of the shop was given in para 3 of the application. 4. It is stated by the respondent that the information in respect of purchasing the property was given to the petitioner on 17.01.2006 and the petitioner was requested to deposit agreed rent in the bank account of the respondent. It is alleged that when the petitioner did not deposit the agreed rent of Rs.1000/-, the respondent sent a legal notice to him and despite this he did not deposit the rent. It is further contended by the respondent that the disputed shop is required by it for the purpose of establishing a business after demolishing the entire building. 5. In response to the application, the petitioner filed his reply and denied the averments made in the application. The petitioner has disputed that he is at fault in making payment of rent and also seriously disputed the bonafide need of the respondent in relation to the disputed shop. 6. 5. In response to the application, the petitioner filed his reply and denied the averments made in the application. The petitioner has disputed that he is at fault in making payment of rent and also seriously disputed the bonafide need of the respondent in relation to the disputed shop. 6. On the basis of the pleadings of the parties, the Rent Tribunal framed as many as four issues, which read as under: ^^1- vk;k foi{kh us ÁkFkhZ dks fookfnr ifjlj dk fdjk;k fnukad 17-8-02 ls vnk ugha fd;k gS \ ------ ÁkFkhZ 2- vk;k fookfnr ifjlj okyk Hkou iqjkuk gksdj vlqjf{kr gS rFkk fxjus ;ksX; gS \ ------ ÁkFkhZ 3- vk;k ÁkFkhZ dks fookfnr ifjlj dh fgrs"k o fnO; ds O;olk; ds fy, ;qfDr;qDr ,oa lnHkkfod vko';drk gS \----- ÁkFkhZ 4- vuqrks"k \** 7. After taking into consideration the evidence adduced by the parties, the Rent Tribunal decided the Issue Nos.1 and 3 in favour of the respondent, however, decided the Issue No.2 against it and passed the decree of eviction vide judgment dated 01.08.2011. 8. Being aggrieved with the same, the petitioner preferred an appeal before the Appellate Tribunal and the Appellate Tribunal vide judgment dated 28.05.2015 has set aside the judgment passed by the Rent Tribunal dated 01.08.2011, however, remanded the matter to the Rent Tribunal while framing three new issues, which are as under: ^^¼1½ vk;k vkosnu ÁLrqrh ds fnu Hkkxhnkjh QeZ esllZ x.kifr Iyktk iathd`r ugha Fkh \ ;fn ,slk gS rks bldk bl Ádj.k ij D;k ÁHkko gS \ ¼2½ vk;k Hkw&Lokeh }kjk Ádj.k ds fopkjk/khu jgrs nqdkuksa dk cSpku fd;k x;k gS \ ;fn gkWa rks bldk bl Ádj.k ij D;k ÁHkko gS \ ¼3½ vk;k vthZnkj Hkkxhnkjh QeZ ds Hkkxhnkjksa ds iq= tks Lo;a mDr QeZ esa Hkkxhnkj ugha gS] dh vko';drk /kkjk 9 vf/kfu;e ds rgr ,d vk/kkj gS \** 9. After remand, the Rent Tribunal, after taking into consideration the evidence in relation to the newly framed issues, rejected the eviction application filed by the respondent vide judgment dated 24.07.2019. The Rent Tribunal has decided the newly framed Issue No.1 in favour of respondent while holding that the petitioner-firm was registered in the year 2006 and as such on the date of filing of the eviction application i.e. 24.07.2007, it was duly registered. 10. The Rent Tribunal has decided the newly framed Issue No.1 in favour of respondent while holding that the petitioner-firm was registered in the year 2006 and as such on the date of filing of the eviction application i.e. 24.07.2007, it was duly registered. 10. So far as newly framed Issue No. 2 is concerned, the Rent Tribunal has held that as the respondent has sold some of the shops during the pendency of the proceedings, it can be concluded that the respondent has failed to prove its bonafide necessity in respect of the disputed shop. 11. In respect of newly framed Issue No.3, the Rent Tribunal has concluded that sons of the partners of the respondent-firm are not its partners and the firm cannot claim bonafide need of the shop for the purpose of establishment of business of sons of the partners of the respondent-firm. The Rent Tribunal is of the opinion that the firm can claim bonafide needs of the shop for itself only and not for the sons of the partners. The Rent Tribunal has, therefore, rejected the eviction application filed on behalf of the respondent vide judgment dated 24.07.2019. Being aggrieved with the same, the respondent preferred an appeal before the Appellate Tribunal, which came to be allowed vide judgment dated 05.01.2021, which is under challenge in this writ petition. 12. Learned counsel for the petitioner has argued that the Appellate Tribunal in the impugned judgment has grossly erred in reversing the findings arrived at by the Rent Tribunal in its judgment dated 24.07.2019. 13. Learned counsel for the petitioner has submitted that the old Issue No.2 framed by the Rent Tribunal was specifically decided against the respondent and the respondent has not challenged the findings of old Issue No.2 before the Appellate Tribunal and the Appellate Tribunal has specifically noted this point in its judgment dated 28.05.2015. In such circumstances, the Appellate Tribunal cannot disturb the findings in respect of old Issue No.1 as it has done in the judgment dated 05.01.2021. 14. Learned counsel for the petitioner has submitted that the finding in respect of old Issue No.2 has attained finality up to the Appellate Tribunal, therefore, it was not open for the Appellate Tribunal to again decide the Issue No.2 without there being any cross-objection filed on behalf of the respondent. 14. Learned counsel for the petitioner has submitted that the finding in respect of old Issue No.2 has attained finality up to the Appellate Tribunal, therefore, it was not open for the Appellate Tribunal to again decide the Issue No.2 without there being any cross-objection filed on behalf of the respondent. It is contended that the party cannot challenge the findings of trial court before appellate court without filing cross-objection against finding of trial court. 15. In support of the above contention, learned counsel for the petitioner has placed reliance on decisions of Hon’ble Supreme Court rendered in Laxman Tatyaba Kankate and Anr. vs. Taramati Harishchandra Dhatrak, (2010) 7 SCC 717 and Banarasi & Ors. vs. Ram Phal, 2003(2) CCC 125 (SC). 16. Learned counsel for the petitioner has further submitted that the Rent Tribunal in its judgment dated 24.07.2019 has rightly decided the newly framed Issue Nos. 2 and 3 after taking into consideration the evidence available on record but the Appellate Tribunal in its judgment dated 05.01.2021, without appreciating the evidence available on record, reversed those findings purely on the basis of surmises and conjectures. It is submitted that during the pendency of the eviction proceedings, admittedly, the landlord sold some of the premises to other persons, where he could very well establish its office or could also establish shop for sons of its partners to start new business. It is submitted that the Rent Tribunal has rightly observed that the respondent landlord was having sufficient place for establishing its office and for opening shops for new business to be run by the sons of the partners but it sold the said place to some other person, which shows that the respondent is not in bonafide need of the disputed shop. 17. Learned counsel for the petitioner has further submitted that the necessity of sons of the partners of the partnership firm cannot be termed as necessity of the firm and taking into consideration the above fact, the Rent Tribunal has rightly decided the newly framed Issue No.3 against the respondent-firm. 18. Learned counsel for the petitioner has, therefore, submitted that the Appellate Tribunal has grossly erred in reversing the findings of the Rent Tribunal and thus, the impugned judgment is liable to be set aside. 19. 18. Learned counsel for the petitioner has, therefore, submitted that the Appellate Tribunal has grossly erred in reversing the findings of the Rent Tribunal and thus, the impugned judgment is liable to be set aside. 19. Per contra, Mr Deelip Kawadia – learned counsel for the respondent has argued that the respondent has established a case for bonafide necessity before the Appellate Tribunal and the Appellate Tribunal after taking into consideration the material available on record and the evidence adduced on behalf of the parties has rightly passed the impugned judgment and in such circumstances, no case for interference is called for. 20. Heard learned counsel for the parties and perused the material available on record. 21. So far as contention of the learned counsel for the petitioner of this effect that the Appellate Tribunal in its judgment dated 05.01.2021 has illegally reversed the findings in respect of the old Issue No.2 is concerned, I am of the opinion that the Appellate Tribunal has not reversed the findings of the Rent Tribunal in respect of the old Issue No.2 vide judgment dated 05.01.2021. Precisely in para No.27 of the impugned judgment, the Appellate Tribunal after taking into consideration the fact that during the pendency of the proceedings, the landlord demolished the whole building except the disputed shop and constructed some of the shops on the ground floor and first floor, however, it has observed that the said construction is not completed as the shop of the petitioner is still existing. The Appellate Tribunal is of the opinion that simply because a new building is constructed by the respondent without demolishing the disputed shop, it cannot be said that the bonafide need of the petitioner has come to an end. The Appellate Tribunal has observed that the petitioner himself has admitted in his evidence that the work of the building is incomplete as his shop has not been demolished. 22. Taking into consideration the above facts and circumstances of the case and after thoroughly going through the impugned judgment, this Court is of the opinion that vide impugned judgment, the Appellate Tribunal has not reversed the findings of old Issue No.2, which has attained finality and in such circumstances, the judgments on which the petitioner has placed reliance are not applicable in the present case and are of no help to the petitioner. 23. 23. So far as newly framed Issue No.1 is concerned, the Rent Tribunal in its judgment dated 24.07.2019 gave a finding that on the day of filing of the eviction application i.e. 24.07.2007, the firm was registered. Moreover, the finding of Issue No.1 has not been challenged by the petitioner either before the Appellate Tribunal or before this Court. 24. So far as newly framed Issue No.2 is concerned, though it is an admitted position that during the pendency of the proceedings, the respondent sold some of the premises to other persons, however, in the opinion of this Court, this fact itself will not affect the bonafide necessity of the respondent in respect of the disputed shop. The question relating to the bonafide necessity of the landlord does not get illuminated merely because he has sold some of the premises situated in the building to other persons. 25. It is to be noticed that the respondent came with a specific plea that for the purpose of establishment of office of it and for the purpose of establishment of shop for the sons of the partners, it is in requirement of place on the ground floor. The respondent has also come with a plea that behind the disputed shop, some vacant place is lying and after demolishing the disputed shop, it can establish its office as well as a shop for the purpose of starting a new business of sons of the partners. The petitioner in his evidence has admitted that after inclusion of his disputed shop with the vacant place, an office and a shop can be established. In view of the above facts, no fault can be found in the findings of the Appellate Tribunal that only because the respondent sold some of the premises of the building to other persons, the bonafide necessity of the respondent came to an end. 26. So far as newly framed Issue No.3 is concerned, the Appellate Tribunal has held that bonafide necessity of sons of the partners of the firm can be treated as bonafide necessity of the partnership firm also. 27. In para 48 of the impugned judgment, the Appellate Tribunal has held that it is not required for a partnership firm to establish a new business through its partners only. 27. In para 48 of the impugned judgment, the Appellate Tribunal has held that it is not required for a partnership firm to establish a new business through its partners only. It can establish a new business either through sons of the partners or managers/ employees etc., who are really not the partners in the partnership firm. 28. I don’t find any fault with the above finding of the Appellate Tribunal as a partnership firm can prove its bonafide necessity for a premises to start a new business through the sons of partners or employees/managers. 29. In view of the above discussion, I do not find any merit in this writ petition and the same is, therefore, dismissed. 30. There shall be no order as to costs. 31. Stay petition also stands dismissed.