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2022 DIGILAW 627 (RAJ)

Mohammed Jakir v. Mohammed Naushad

2022-02-21

INDERJEET SINGH

body2022
ORDER 1. This writ petition has been filed by the petitioner (hereinafter to be referred as ’tenant’) against the judgment & decree dated 19.03.2021 passed by the Appellate Rent Tribunal, Jaipur Metropolitan-I in Appeal No.43/2020 as well as against the judgment & decree of eviction dated 10.12.2019 passed by the Rent Tribunal, Jaipur in Eviction Application No.463/2006 (CIS-1069/2014). 2. Brief facts of the case are that the respondents (hereinafter to be referred as ’landlords’) filed an application under Section 9 of the Rent Control Act, 2001 (hereinafter to be referred as the ’Act, 2001’) before the Rent Tribunal for eviction of the tenant on the grounds of default in making payment of rent, personal & bonafide necessity of the landlords, nuisance and change of use by the tenant of the disputed shop for the purpose it was let out. The tenant filed reply to the eviction application and denied the averments made in the eviction application. The landlords also filed rejoinder to the reply. On the basis of the pleadings of the parties, the learned Rent Tribunal framed as many as five issues for consideration which read as under :- 3. The landlords in support of their case examined PW1 Mohd. Naushad & PW2 Mohd. Irshad and produced certain documents and got the same exhibited as Ex.1 to Ex.14. The tenant in support of his counter to the eviction application examined DW1 Mohd. Zakir, DW2 Ahsan Khan & DW3 Niyaj Ahmed and produced documents and got the same exhibited as Ex.A1 to Ex.A11. The learned Rent Tribunal after recording the evidence of the parties on the issues so framed and examining the material which came on record and after hearing the parties passed the judgment and decree of eviction dated 10.12.2019. 4. Being aggrieved by the judgment and decree of eviction passed by the Rent Tribunal dated 10.12.2019, the tenant preferred appeal before the Appellate Rent Tribunal. The learned Appellate Rent Tribunal after considering the arguments raised by the parties, dismissed the appeal preferred by the tenant and affirmed the judgment and decree of eviction passed by the Rent Tribunal. Assailing the findings of fact recorded by both the courts below, the present writ petition has been filed by the tenant under Article 226 & 227 of the Constitution of India. 5. Assailing the findings of fact recorded by both the courts below, the present writ petition has been filed by the tenant under Article 226 & 227 of the Constitution of India. 5. Counsel for the tenant submitted that the finding recorded by both the courts below with regard to issue no.2 of personal and bonafide necessity of the suit shop is perverse as there are five shops in all and for one reason or the other the shops were got vacated but even then the landlords did not start business as alleged of Kirana & General Store in the vacant shop, as such the present eviction application came to be filed by the landlords only just to get the suit shop vacated from the present tenant and to give the same on higher rent to some another person and both the courts below failed to consider this aspect of the matter. 6. Counsel for the tenant further submitted that the landlords earlier also filed an eviction application no.527/2009 against Gulab Chand Sain, which was allowed and the shop was ordered to be vacated, against which appeal was filed and the same was disposed of as compromised and pursuant thereto the possession of the shop was handed over by Gulab Chand Sain to the landlords and thus in view of the vacant shop being available to the landlords, there was no personal and bonafide need of the landlords.7. Counsel for the tenant further submitted that the findings recorded by both the courts below on the other issues is also perverse being contrary to the facts on record. Counsel further submitted that during pendency of the eviction application two other shops became available to the landlord for doing business, as such the personal and bonafide need of the landlord didn’t survive any more, even though the Rent Tribunal passed the decree of eviction which has been wrongly affirmed by the Appellate Rent Tribunal and lastly, prayed for quashing of both the judgments and decrees passed by the Tribunals below. 8. Counsel for the landlords while supporting the judgments and decree passed by both the Tribunals below submitted that father of the present landlords passed away in the year 2020, then only the personal need for the suit shop arose for which the eviction application was filed by the landlords. 8. Counsel for the landlords while supporting the judgments and decree passed by both the Tribunals below submitted that father of the present landlords passed away in the year 2020, then only the personal need for the suit shop arose for which the eviction application was filed by the landlords. Counsel further submitted that after detailed discussion of the evidence of both the parties, finding of fact has been recorded by the Tribunals below in favour of the landlords with regard to issue of personal and bonafide necessity and that being the finding of fact, this Court is not supposed to interfere in the same. Counsel further submitted that the findings given by both the Tribunals below on all other issues is only after due deliberation and careful scrutiny of the material as well as after consideration of the personal and bonafide need of the landlords and no question of law arises in the present writ petition which could call upon this Court to interfere in the impugned judgments and decrees of eviction. Counsel further submitted that the possession of the shop in dispute has already been taken over by the landlord through Executing Court and further no question of law arises in the present matter, therefore no interference is warranted by this Court under Article 227 of the Constitution of India and lastly prayed for dismissal of the writ petition. 9. In support of the contentions, counsel for the landlords relied upon the judgment passed by the Hon’ble Apex Court in the matter of Shamshad Ahmad and others Vs. Tilak Raj Bajaj and others, reported in 2008(9) SCC 1 , where in paras-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. 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. 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." 10. 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) SCC 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 Ahuja2 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." 11. Heard counsel for the parties and perused the record. 12. Heard counsel for the parties and perused the record. 12. The first argument raised by counsel for the tenant regarding the findings given by both the Tribunals below on the issue of personal and bonafide necessity being perverse is not acceptable as both the Tribunals below have come to a finding of fact after appreciating the material and evidence on record in favour of the landlords and I am not inclined to disturb the same under Article 227 of the Constitution of India. 13. The next argument raised by counsel for the tenant regarding the findings on the issue of default in making the payment of rent being perverse is also not acceptable as both the Tribunals below after examining the pleadings of the parties and the documentary evidence placed on record, arrived to the finding of fact that the tenant has committed default in making the payment of rent to the landlords and that being the finding of fact I am not inclined to interfere in the same. 14. The further argument raised by counsel for the tenant about the findings on other issues being contrary, is also not acceptable in view of the cogent reasons being assigned by both the Tribunals below in arriving to the findings. 15. In view of the above discussion, this writ petition filed by the tenant deserves to be dismissed for the reasons; firstly the finding of fact arrived at by both the Tribunals is not liable to be disturbed by this Court under Article 227 of the Constitution of India, in view of the judgment passed by the Hon’ble Supreme Court in the matter of Shamshad Ahmed (supra); secondly it is for the landlords to choose the best place for doing its business and not for the tenant to dictate to the landlord as from which shop he should start the business as has been held by the Hon’ble Supreme Court in the matter of Bhupendra Singh Bawa (supra); thirdly possession of the shop in dispute has already been taken over by the landlords through the Executing Court. 16. In that view of the matter, the writ petition fails and is hereby dismissed. All the pending applications stand disposed of.