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2022 DIGILAW 2277 (RAJ)

Sohan Lal Sharma v. Lrs. Of Kunna Ram

2022-08-18

VIJAY BISHNOI

body2022
ORDER 1. This writ petition is filed by the petitioner being aggrieved with the judgment dated 07.05.2022 passed by the Appellate Rent Tribunal, Jodhpur Metropolitan (hereinafter to be referred as ’the Appellate Tribunal’), whereby the appeal preferred on behalf of petitioner has been dismissed and the judgment dated 05.07.2017 passed by the Additional Chief Judicial Magistrate (Rent Tribunal) Jodhpur Metropolitan (hereinafter to be referred as ’the Rent Tribunal’) has been affirmed and the petitioner has been directed to handover the peaceful and vacant possession of the premises in question to the landlord within a period of six months from the date of passing of the impugned order. 2. Brief facts of the case are that the landlord Kunna Ram preferred an application under Section 6, 9(a) and (i) of Rajasthan Rent Control Act, 2001 (hereinafter to be referred as ’the Act of 2001’) against the petitioner seeking eviction from a shop situated near to Bombay Motor’s Company, Residency Road, Jodhpur (hereinafter to be referred as ’shop in question’). The said application was filed on the ground of default in making payment of rent as well as of bonafide necessity. Kunna Ram also sought revision of rent under section 6 of the Act. 3. It is averred that the shop in question was let out to the petitioner in the year 1987 on monthly rent of Rs. 1800/-, in which the petitioner is carrying on business in the name of S.L. Sharma. It is further averred in the eviction petition that the petitioner paid the rent only up to 31st October, 2003 and thereafter on being asking time and again, the petitioner did not pay the agreed rent and therefore, a notice dated 18.03.2004 was sent to him to end the tenancy w.e.f. 31st March, 2004 on the ground of reasonable and bonafide necessity. It is further averred that in response to the said notice, the petitioner filed a false and frivolous reply on 15.04.2004 and a rejoinder to that reply was sent to the petitioner, but despite that the petitioner did not pay the rent at the agreed rate within the fixed time, so the petitioner is liable to vacate the shop in question on the ground of default in payment of the rent. 4. Further, it is averred in the eviction petition that respondent had three sons; two of them are living separately, and one son viz. 4. Further, it is averred in the eviction petition that respondent had three sons; two of them are living separately, and one son viz. Jagdish has died leaving behind his wife and three children, who are living with him in a rented home. It is also averred that respondent is an unemployed person and in dire need to earn his livelihood, however, despite having knowledge of the business of building material, he is not able to do the same for want of required premises, so he is having reasonable and bonafide necessity of the shop in question. 5. In response to the application, the petitioner filed his reply denying the averments made in the application. He 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 shop in question. 6. On the basis of the pleadings of the parties, the Rent Tribunal framed as many as four issues, which are as under: ^^1- vk;k vÁkFkhZ&fdjksnkj us mlls 'kks/; pkj ekg ls vf/kd vof/k dk fdjk;k ckotwn uksfVl ds ÁkFkhZ&HkwLokeh dks lanÙk o fufonÙk ugha dj fdjk;k vnk;xh esa O;frØe fd;k gS\ 2- vk;k ÁkFkhZ dks fookfnr fdjk;slqnk ifjlj dh viusa Lo;a ds fcfYMax esVsfj;y dk O;olk; djus ds fy;s ;kfpdk esa of.kZr mn~ns'; vius ifjokjtu ds thfodksiktZu ds fy;s ;qfDr;qDr ,oa lnHkkfod vko';drk gS\ 3- vk;k ÁkFkhZ fookfnr ifjlj dk fdjk;k iqujhf{kr djokdj ÁkIr djus dk vf/kdkjh gS] ;fn gka rks iqujhf{kr fdjk;k D;k gks\ 4- vuqrks"k\** 7. After taking into consideration the evidence adduced by the parties, the Rent Tribunal decided the Issue Nos.2 and 3 in favour of the respondents, however, decided the Issue No.1 against them and passed the decree of eviction vide judgment dated 05.07.2017 on the ground of bonafide necessity. 8. Being aggrieved with the same, the petitioner preferred an appeal before the Appellate Tribunal and the Appellate Tribunal vide judgment dated 07.05.2022 has affirmed the judgment passed by the Rent Tribunal dated 05.07.2017. Hence this writ petition. 9. Learned counsel for the petitioner has argued that the original landlord Kunna Ram filed the eviction petition only for his reasonable and bonafide necessity, but he died during the pendency of eviction petition and even his wife also expired, so the reasonable and bonafide necessity automatically came to an end. 10. Hence this writ petition. 9. Learned counsel for the petitioner has argued that the original landlord Kunna Ram filed the eviction petition only for his reasonable and bonafide necessity, but he died during the pendency of eviction petition and even his wife also expired, so the reasonable and bonafide necessity automatically came to an end. 10. Learned counsel for the petitioner further argued that the application filed by Ramratan S/o Landlord Kunna Ram under Order VI Rule 17 CPC with respect to showing reasonable and bonafide necessity of his son Prakash and to substitute him as respondent has been withdrawn by him, therefore, this should be taken as an admission of him that the reasonable and bonafide necessity was of his father which came to an end on his death. 11. Learned counsel for the petitioner has further argued that on the death of landlord in the original eviction suit, the right to seek eviction on the ground of personal requirement became extinct and in support of his contention learned counsel for the petitioner has placed reliance on the judgment of Hon’ble Supreme Court rendered in Seshabal (Dead) Through L.R.s v/s M/s. Chelur Corporation Chelur Building & Ors. Reported in 2010(1) RLW 848(SC). 12. Learned counsel for the petitioner has further argued that the courts below should have taken into consideration the subsequent events i.e. death of the original respondent and the admission made by his son Ramratan. In support of his contention, learned counsel for the petitioner has placed reliance on the Judgment of Hon’ble Apex Court rendered in Mohd. Ismail v/s Dinkar Vinnayakrao Dorlikar reported in (2009) 10 Supreme Court Cases 193. 13. Learned counsel for the petitioner has, therefore, submitted that the Appellate Tribunal has grossly erred in affirming the findings of the Rent Tribunal and thus, the impugned judgments are liable to be set aside 14. Per contra, Mr O. P. Kumawat learned counsel for the respondent has argued that the respondent has established a case of bonafide necessity before the courts below and the courts below after taking into consideration the material available on record and the evidence adduced on behalf of the parties have rightly passed the impugned judgments and in such circumstances, no case for interference is called for. 15. 15. Learned counsel for the respondents has argued that bonafide necessity should be seen from the date of presentation of the eviction petition and death of the original landlord during the pendency of the eviction petition would not result into the cessation of the bonafide and reasonable need and it can be made by the legal heirs of the deceased landlord if the bonafide need, pleaded in the plaint whether directly or indirectly, relates to the landlord’s legal heirs and dependants. 16. Learned counsel for the respondents further argued that the respondent landlord filed the eviction petition for the bonafide need of himself as well as of his family members, therefore, on the death of original respondent the ground of bonafide necessity would not extinguish. 17. Learned counsel for the respondents further argued that the application filed by Ramratan S/o landlord Kunna Ram cannot be considered as an admission because the original respondent had specifically pleaded in the eviction petition about the bonafide necessity of himself and his grandsons and the grandsons of him have never pleaded that bonafide necessity came to an end with the death of original respondent Kunna Ram. 18. In support of above contentions learned counsel for the respondents has placed reliance on the Judgment of this Court rendered in S.B. Civil Second Appeal No. 582/2003 (Nand Kishore and ors. V/s Janki Devi & Ors.) decided on 23.08.2018. Heard learned counsel for the parties and perused the material available on record. 19. The general 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. 20. Coming to the facts of the present case, the landlord Kunna Ram had filed eviction petition on various grounds including the ground of reasonable and bonafide necessity. As per the petitioner, landlord Kunna Ram had filed the eviction petition only on the ground of his bonafide necessity and not of his family members. 20. Coming to the facts of the present case, the landlord Kunna Ram had filed eviction petition on various grounds including the ground of reasonable and bonafide necessity. As per the petitioner, landlord Kunna Ram had filed the eviction petition only on the ground of his bonafide necessity and not of his family members. For that purpose, if we go through the eviction petition, it is to be noticed that in grounds of eviction petition, particularly the ground B, though in the opening para, the landlord averred that he is in bonafide requirement of the shop in question for himself for doing business of building material, however, in the middle of the very same para, he specifically pleaded that as his daughter-in-law namely Basanti wife of late Jagdish and his grand sons have no source of income, therefore, after death of his son Jagdish, the responsibility of maintaining them is upon him and to provide higher education to the grandsons for their bright future is necessary. The relevant part of the aforesaid para is reproduced hereunder :- ^^ÁkFkhZ dh iq=o/kq clUrh iRuh LoŒ Jh txnh'k o ikS=ksa ds dksbZ vk; dk tfj;k ugha gSA blfy, iq= txnh'k ds nsgkUr ds i'pkRk~ mDr ifjokj ds ykyu&ikyu o thodksiktZu dh ftEesokjh Hkh ÁkFkhZ ij gh gS rFkk mu ikS=ksa ds mTtoy Hkfo"; ds fy, mPp f'k{kk fnykuk Hkh vko';d gSA** 21. The courts below have noticed that even in the rejoinder to the reply of the eviction petition, the landlord Kunna Ram specifically pleaded that his grand son Prakash, who is unemployed, would also help him in doing business. While deposing before the trial court, landlord Kunna Ram, in his crossexamination, specifically averred that he would sit in the shop in question and his grand sons would do work there and bring the material. 22. In view of the above facts, it is difficult to conclude that the landlord Kunna Ram had approached the Rent Tribunal claiming bonafide necessity of himself only and not for his family members. 23. The Hon’ble Supreme Court in Seshabal’s case (supra) has non-suited the appellant while taking into consideration the fact that in the eviction petition, the owners had pleaded their own requirement only. The eviction petition was totally silent about the requirements of any member of the family of the landlords living alone or any member of their family, who was depending upon them. 24. The eviction petition was totally silent about the requirements of any member of the family of the landlords living alone or any member of their family, who was depending upon them. 24. It would be appropriate to quote the observations of the Hon’ble Supreme Court made in Para 9, on the basis of which, relief has been denied to the legal heirs of the landlords : "It is not in dispute that in the eviction petition the owners had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the owners-petitioners leave alone any member of their family who was dependant upon them. That being so the parties went to trial before the Rent Controller on the basis of the case pleaded in the petition and limited to the requirement of the owners for their personal occupation. Neither before the Rent Controller nor before the Appellate Authority was it argued that the requirement in question was not only the requirement of the petitioner-owners of the premises but also the requirement of any other member of their family whether dependant upon them or otherwise. Not only that, even in the petition filed before this Court the requirement pleaded was that for the deceased-widowed owner of the demised premises and not of any member of her family. Super added to all this is the fact that the legal representatives who now claim to be the family members of the deceased are all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependant upon the deceasedpetitioner is also a fact undisputed before us. Even otherwise in the social milieu to which we are accustomed, daughters happily married have their own families and commitments financial and otherwise. Such being the position we find it difficult to see how the legal representatives of the deceased-appellant can be allowed to set up a case which was never set up before the Courts below so as to bring forth a requirement that was never pleaded at any stage of the proceedings." 25. Such being the position we find it difficult to see how the legal representatives of the deceased-appellant can be allowed to set up a case which was never set up before the Courts below so as to bring forth a requirement that was never pleaded at any stage of the proceedings." 25. It is noticed that in the same para, the Hon’ble Supreme Court has clearly observed that the position may indeed have been differentiated if in the original petition, the landlords have pleaded their own requirement and the requirements of any other member of family depending upon them. The relevant observations of the Hon’ble Supreme Court are reproduced hereunder : "The position may indeed have been differentiated if in the original petition the petitioner-owners had pleaded their own requirement and the requirement of any member of their family dependant upon them. In such a case the demise of the original petitioners or any one of them may have made little difference for the person for whose benefit and bona fide requirement the eviction was sought could pursue the case to prove and satisfy any such requirement." 26. As observed earlier, in the present case, the landlord Kunna Ram had specifically pleaded in his eviction petition about the requirements of his grand sons and in rejoinder also, he has specifically pleaded that his grand son Prakash, who is unemployed would also help him in business. In his deposition before the Rent Tribunal, the landlord had also pleaded that his grand sons would help him in the business. In view of the above, the judgment of the Hon’ble Supreme Court rendered in Seshabal’s case (supra) is of no help to the petitioner. 27. In Mohd. Ismail’s case (supra), the Hon’ble Supreme Court has remanded the matter to the High Court while taking into consideration the fact that one son of the landlord had expired and another son had absconded from last 8-9 years and the landlord has already took possession of another shop/premises from other tenant, in which, his third son was running a business. 28. The situation in the present case is different as since beginning, the landlord has pleaded that he is in bonafide need of the disputed shop for himself and his grand sons. 28. The situation in the present case is different as since beginning, the landlord has pleaded that he is in bonafide need of the disputed shop for himself and his grand sons. The petitioner has failed to prove the fact regarding availability of alternate accommodation for the landlord to run his business and both the Courts below have found that no alternate accommodation was available for the landlord to run his business. 29. A Co-ordinate Bench of this Court vide its judgment dated 23.08.2018 passed in Nand Kishore’s case (supra) while taking into consideration the various pronouncements of the Hon’ble Supreme Court has summed up as under : "The position of law regarding eviction, bona fide need of the landlord and the death of the landlord during the pendency of the appeal, as emerging from above discussed case-laws can be briefly summarized as thus:- (A) The crucial date for determining the bona fide need of the landlord is the date of institution of the eviction suit/proceeding. (B) The death of the original landlord during the pendency of the appeal does not necessarily result into the cessation of the bona fide and reasonable need. The appeal can be contested by the legal heirs the deceased landlord if the bona fide need pleaded in the plaint whether directly or indirectly relates to the landlord’s legal heirs and dependents. (C) Even in the absence of any explicit plea, the courts can assume that the bona fide need as pleaded by the landlord also extends to his dependents, if he has any. (D) The court should take note of subsequent events only if three conditions are fulfilled. First, the relief as originally claimed has by reason of the subsequent event, become inappropriate or cannot be granted. Second, taking note of the subsequent event would shorten the litigation and enable the court to do justice to both the parties. Third, such subsequent event is brought to the notice or the court promptly and without any delay. 30. Taking into consideration the above principles of law, I am of the opinion that even the subsequent events, took place in the present case such as death of landlord Kunna Ram and his wife will not result into cessation of bonafide and reasonable need of their legal heirs. 30. Taking into consideration the above principles of law, I am of the opinion that even the subsequent events, took place in the present case such as death of landlord Kunna Ram and his wife will not result into cessation of bonafide and reasonable need of their legal heirs. In view of the above discussion, I do not find any merit in this writ petition and the same is hereby dismissed. Stay petition is also dismissed.