Smt Sharda Devi vs Bhagwati Prasad on 22 August, 2022

[Cites 24, Cited by 0]

Rajasthan High Court - Jaipur

Smt Sharda Devi vs Bhagwati Prasad on 22 August, 2022

1. This first appeal under Section 96 CPC has been filed against judgment and decree dated 23.2.2005 passed by Additional District Judge (Fast Track) No.3, Jhunjhunu in Suit No.(68/97, 30/99) 197/2003, whereby and whereunder the suit for eviction (Downloaded on 22/08/2022 at 11:40:48 PM) (2 of 26) [CFA-270/2005] and recovery of rent has been decreed against the defendant- appellants.

2. The facts of the case as culled out from the record are that respondent-plaintiff (hereinafter 'plaintiff') owned a Nohra east facing in Ward No.20, near Dalmiyon ka Kua, Chirawa, wherein two rooms, kitchen, varandah, latrine bathroom were constructed. The construction was shown in green colour and red lines in the map annexed with the plaint.

As per plaintiff rented premises comprises of only one room, kitchen, veranda, latrine and bathroom in Nohra and another room was not let out but defendant tenant, behind the back of plaintiff, has broken the lock of the room on 7-2-1997 and entered into possession. Whereas as per defendant both rooms with other portion in nohra were let out by father of plaintiff way back in the year 1967 @ Rs.45/- per month and tenancy is oral. The trial court while deciding issues No.2&4 has concluded that entire nohra including two rooms, kitchen, veranda, latrine and bathroom were let out and are in tenancy of defendant since 1967 @ Rs.45/- per month.

3. Plaintiff instituted present civil suit for recovery of rent and eviction on 25-11-1997 invoking provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1960 (hereinafter `the Rent Act') on ground of default and his bonafide necessity. For default it was stated that the defendant has not paid rent for last fifteen years and five months, thus has committed default, however since as per law the plaintiff can claim arrears of rent only for three years, therefore the plaintiff prayed for due arrears of rent only for three years preceding to filing the suit. In relating (Downloaded on 22/08/2022 at 11:40:48 PM) (3 of 26) [CFA-270/2005] the ground of bonafide necessity the plaintiff pleaded that he is permanent resident of town Chirawa and for the purpose of business he resides at Kolkata. However, he used to visit Chirawa on times and again. Earlier when one room in the nohra in question was in possession of plaintiff, he used to stay therein, but since the defendant has encroached upon on that room, therefore, now plaintiff has no other place of his own for his stay and residence at Chirawa. It was averred that plaintiff's health has turned unwell and he required the suit premises for his own residence to recuperate his health. The plaintiff also pleaded his hardship due to having no other premises of his own in Chirawa. Plaintiff stated to serve one legal notice dated 6-6-199 upon the defendant asking for due rent and to vacate the suit premises, but same was not responded, hence, present suit has been filed.

4. On issuing notice, the defendant filed written statement and admitted the oral tenancy by plaintiff's father since the time of his father since 1967 at the rate of Rs.45/- per month. He stated that no room in the nohra was in possession of plaintiff and whole nohra including two rooms and other construction are in tenancy since inception. Grounds of default and bonafide necessity were denied. The defendant took defence that the plaintiff is an affluent person and has flourishing business at Kolkata and reside there since several years. He has alternative place for residence at Chirawa also. The defendant contended that towards west side of the nohra in question another nohra of plaintiff is lying vacant and further the plaintiff has an ancestral haveli in Chirawa, so if plaintiff wants to come back and reside in Chirawa, he can stay in (Downloaded on 22/08/2022 at 11:40:48 PM) (4 of 26) [CFA-270/2005] his another nohra and Haveli. The plaintiff's necessity was alleged to be malafide. The defendant stated that he has retired from service and has no other place to reside in Chirawa. Denying the comparative hardship of landlord, he stated that any other alternative premises in Chirawa like the suit premises, would not be available to him for not less than rent of Rs.1000/- per month, whereas the suit premises is continuing in his tenancy only at the rate of Rs.45/- per month rent. So if decree for eviction is passed, the defendant would suffer greater hardship. The notice dated 6- 6-1997 issued by plaintiff was accepted to receive, but was not responded as the same was faulty. Finally he prayed for dismissal of the suit.

5. As per pleadings of parties, it is an admitted fact that defendant's father took premises in question on rent in the year 1967 at the rate of Rs.45/- per month and the rate of rent is same even at present.

6. During the trial of eviction suit, the defendant died on 7-7- 2003 and his natural heirs being legal representatives came on record as defendants No.1/1 to 1/5. As far as defendants No.1/1, 1/3 and 1/4 are concerned, they did not appear despite service, hence suit proceeded ex-party against them.

7. On the basis of pleadings of parties the trial court framed eleven issues:

First, Whether the defendant did not pay or tender the rent of six months or more of rented premises to the plaintiff and committed default in payment of rent?

Second, Whether the defendant illegally possessed over the portion mentioned in para No.5 of plaint, and the plaintiff is entitled for possession of the same area and eviction of defendant?

(Downloaded on 22/08/2022 at 11:40:48 PM)

(5 of 26) [CFA-270/2005] Third, Whether the plaintiff is entitled for the rent of three years till filing of the suit Rs.1620/-?

Fourth, Whether the plaintiff is entitled for mesne profits Rs.400/- per month as use and occupation for the portion which was illegally possessed by defendant? Fifth, Whether the plaintiff has reasonable and bonafide requirement of the premises in question for his residence? Sixth, whether in case of non vacation of premises in question the plaintiff would face more comparative hardship than the defendant?

Seventh, whether the plaintiff filed a suit for different causes of action, which cannot be decided in one suit? Eighth, whether the court has jurisdiction to hear the suit? Ninth, whether the court fees paid is less, therefore, the suit deserves to be dismissed?

Tenth, whether the suit is beyond limitation? Eleventh, Relief?

8. It is relevant to note here that since ground of default was involved in the present eviction suit, therefore, provisional rent was determined as per Section 13(3) of the Rent Act vide order dated 1-12-1999. The defendant could not prove payment of rent, therefore, provisional rent was determined, including the period of three years prior to filing the suit i.e. from 25-11-1994 to 25-11- 1999, for a period of 4 years 11 months and 10 days; The defendant was directed to pay determined rent Rs.3070/- and further to pay monthly rent @ Rs.45/- for future months regularly between 1 to 15 of each succeeding months during pendency of the suit. The defendant did not comply with the order in letter and spirit and committed default in depositing the rent, and therefore, application under Section 13(5) of the Rent Act was filed by plaintiff; The application was dismissed vide order dated 18-9- 2001, since the present suit was dismissed in default on 14-3- 2000, and was restored on 26-8-2000, therefore, the trial court extended the benefit to defendant for this period. However, as per record it appears that apart from the period, during which the suit (Downloaded on 22/08/2022 at 11:40:48 PM) (6 of 26) [CFA-270/2005] remained dismissed in default, the defendant deposited rent with delay for the subsequent period also. There was delay in paying monthly rent as under:-

6-2-2000 to 5-3-2000 deposited on 8-3-2000; 6-3-2000 to 5-7-2000 deposited on 30-6-2000; 6-7-2000 to 5-10-2000 deposited on 17-10-2000; 6-10-2000 to 5-11-2000 deposited on 10-11-2000; 6-5-2001 to 5-6-2001 deposited on 3-7-2001; 6-5-2002 to 5-6-2002 deposited on 17-10-2002;

Therefore, although application under section 13(5) of the Rent Act has been dismissed and defence of the defendant has not been struck out, however, due to non compliance of the order of provisional rent and committing default in payment of monthly rent regularly as required under Section 13(4) of the Rent Act, the defendant cannot claim entitlement for benefit of first default under Section 13(6) of the Rent Act.

9. Plaintiff Bhagwati Prasad Dalmiya examined himself as Pw.1, Pw.2 Bajrang Lal, Pw.3 Jagdish Prasad, Pw.4 Shyam Sunder and Pw.5 Chiranjilal Sharma and exhibited documents. Defendants examined Dw.1 Ramchandra Verma, Dw.2 Satya Narayan, Dw.3 Phool Singh, and Dw.4 Vijendra.

10. The trial court considered oral and documentary evidence led by both parties.

10.1 Issues No.1&3, regarding default and recovery of due rent, were considered conjointly and considering the fact that vide order dated 1-12-1999, the defendant was directed to pay rent of 4 years 11 months and 10 days along with interest at the rate of Rs.45/- per month, Rs.3070/-, was paid by defendant to Jagdish Prasad on 15-12-1999, the rent of the premises in question was (Downloaded on 22/08/2022 at 11:40:48 PM) (7 of 26) [CFA-270/2005] Rs.45/- per month. The order dated 1-12-1999 was made final and the defendant was found to have committed default in paying monthly rent. Issues were decided in favour of plaintiff and against defendant.

10.2 Issues No.2&4 relating to unauthorised possession of one room by defendant by breaking lock on 7-2-1997 and claiming mesne profits Rs.400/- per month have been held against the plaintiff. There is no cross objection regarding findings of these issues from the side of plaintiff nor any argument has been raised during course of hearing on first appeal, therefore, both these issues do not fall for consideration in the present appeal. 10.3. Issues No.5&6 relating to bonafide and reasonable necessity of plaintiff and comparative hardship were decided in favour of plaintiff and against defendant.

10.4 Issue No.7 relating to joining more than one cause of action and which cannot be decided in one suit, has been held against defendant, but he has not assailed findings of said issue in present first appeal, therefore, issue No.7 also does not fall for consideration.

10.5 Issue No.8, relating to jurisdiction of the trial court was not pressed by defendant before the trial court itself, therefore, it also does not fall for consideration.

10.6 Issue No.9 relating to payment of less court fee, has been held against defendant and defendant has not challenged the same in appeal, therefore, it does not fall for consideration. 10.7 Issue No.10 relating to limitation has been decided against defendant.

(Downloaded on 22/08/2022 at 11:40:48 PM)

                         (8 of 26)                                    [CFA-270/2005]


10.8        During course of arguments, counsel for defendant has

not challenged findings of these issues, therefore, issues No.7, 8, 9 and 10 do not fall for consideration, by this court in the present first appeal.

11. In view of decisions of issues No.1&3 and 5&6 in favour of plaintiff, the trial court decreed the suit vide judgment dated 23-2- 2005 and passed decree for eviction against defendant on the ground of default and bonafide and reasonable necessity and consequently directed the defendant to vacate the rented premises.

12. Heard learned counsel for parties and perused the impugned judgment and decree as also other material available on record.

13. The impugned decree for eviction has been passed on ground of default and bonafide necessity, therefore, findings of issues No.1&3 and 5&6 have been pressed by counsel for defendant appellant in the present appeal.

Issues No.1&3:

14. Learned counsel for defendant has submitted that the trial court failed to consider this aspect of the matter that on 14-3- 2000 the suit was dismissed in default, thereafter, the defendant tendered rent to the power of attorney of plaintiff, who refused to accept the same. Thereafter the rent was deposited in court under Section 19A and 19CC of the Rent Act. The plaintiff moved application under Section 13(5) of the Act of 1950, but the same was dismissed on 3-11-2000, therefore, the defendant cannot be held defaulter for not depositing the rent for this period and make non compliance of order of provisional determination. In such (Downloaded on 22/08/2022 at 11:40:48 PM) (9 of 26) [CFA-270/2005] circumstances the trial court committed illegality by not extending benefit of first default.

15. As per provisions of Section 13(1) of the Rent Act, if defendant has neither paid nor tendered amount of rent for six months he is treated as defaulter. The plaintiff has stated in his evidence that the defendant has not paid rent for last 18 years, and has committed default. There is no cross examination from him by defendant nor there is any suggestion to plaintiff about making payment of rent by defendant for this period. Dw.1 Ramchandra Verma has admitted that he did not pay any rent for last 20 years. The trail court determined the provisional rent vide dated 1-12-1999 w.e.f. 25-11-1994 i.e. from the date prior to three years from filing of the suit on 25-11-1997, and defendant has accepted the order dated 1-12-1999. Thus, the default in payment of rent for more than six month is clear from the record. The defendant has not disputed the determination of provisional rent by the trial court and has not disputed the non payment of rent for this period, hence default stands proved. The trial court affirmed the order dated 1-12-1999 while deciding the issue of default finally. Counsel for defendant also has not assailed the issue of default during course of his arguments, however, he argued that the trial court committed error in not extending the benefit of first default to defendant.

16. The tenant is entitled to get the benefit of first default under Section 13(6) of the Rent Act, only if he comply with the order of provisional rent and continue to pay rent as per the mandate of Section 13(4) of the Rent Act. In the present case, the defendant (Downloaded on 22/08/2022 at 11:40:48 PM) (10 of 26) [CFA-270/2005] undisputedly committed default in payment of rent during course of pendency of suit i.e. for the following period:

6-2-2000 to 5-3-2000 deposited on 8-3-2000; 6-3-2000 to 5-7-2000 deposited on 30-6-2000; 6-7-2000 to 5-10-2000 deposited on 17-10-2000; 6-10-2000 to 5-11-2000 deposited on 10-11-2000; 6-5-2001 to 5-6-2001 deposited on 3-7-2001; 6-5-2002 to 5-6-2002 deposited on 17-10-2002;

17. It is true that present suit was dismissed in default on 14-3- 2000, however the same was restored on 26-8-2000, and excluding this period, the defendant has committed default in depositing monthly rent for the post period also. Therefore, once the defendant has not deposited monthly rent as per mandatory requirement of Section 13(4) of the Rent Act, he is not entitled to claim the benefit of first default. Although the application filed by plaintiff under Section 13(5) of the Rent Act for striking off defence of defendant was dismissed by the trial court on 18-9- 2001, however, merely on account of dismissal of plaintiff's application under Sect 13(5) of the Rent Act, the defendant cannot claim the benefit of first default.

18. Relevant provision of Section 13 of the Rent Act reads thus:

13. Eviction of tenants--(1) Notwithstanding anything contained in any law or contract, no court shall pass any decree; or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied--

(2) x x x (3) x x x (4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time; not exceeding fifteen days, as may be extended by the court, (Downloaded on 22/08/2022 at 11:40:48 PM) (11 of 26) [CFA-270/2005] at the monthly rate at which the rent was determined by the court under sub-section (3).

(5) x x x (6) If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the court against him.

Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months.

19. A perusal of provisions of Section 13(6) of the Rent Act shows that a decree on the ground of default shall not be passed against the defendant tenant who is found defaulter, if the tenant continues to make payment of rent as required by sub-section 4 of Section 13 of the Rent Act. The Hon'ble Supreme Court in case of Shiv Dutt Jadiya Vs. Ganga Devi [(2002)3 SCC 189] has observed that compliance with the mandate of Section 13(4) of the Rent Act is necessary for the tenant during course of appeal also, as ordinarily an appeal is a continuation of suit. In case of Nasiruddin Vs. Sita Ram Agarwal [(2003)2 SCC 577] the Apex Court has held that provision of Section 5 of the Limitation Act is not applicable for condonation of delay in depositing rent beyond the period as stipulated under Section 13(4) of the Rent Act.

20. In the present case it appears from the record that defendant tenant has deposited rent with delay, which is beyond the period prescribed under Section 13(4) of the Rent Act. The non compliance by defendant tenant to sub-section 13(4) of the Rent Act is clear on perusal of period of delay as detailed out hereinabove. Therefore, this court is of the considered opinion that the trial court has not committed any error in not according the (Downloaded on 22/08/2022 at 11:40:48 PM) (12 of 26) [CFA-270/2005] benefit of first default to defendant and passing the decree for eviction on ground of default. Thus, findings of the trial court on issues No.1&3 do not require any interference in the present first appeal and same are affirmed.

ISSUES NO.5&6

21. These issues, pertain to bonafide and reasonable necessity and comparative hardship, have been decided by the trial court in favour of the plaintiff and against defendant. This court has considered findings of trial court with appreciation of evidence adduced by parties in this regard.

21.1 Plaintiff Bhagwati Prasad Dalmiya has appeared and examined himself as Pw.1, he deposed that he is permanent resident of Chirawa and in Chirawa he has no other house for his residence except the suit premises. He stated that his health is unwell and he is suffering from blood pressure and heart disease. The environment of Kolkata is not suitable for his health because of pollution and for the purpose of improvement of his health, unpolluted environment of Chirawa is suitable for him, and therefore, as per advise of the Doctor he requires the suit premises. He stated that whenever he visits Chirawa, he has to stay at places of his friends or relatives, therefore the suit premises is required for residence of himself and his family members. In cross examination he clarified that the adjoining nohra towards western side of suit premises is used for tethering cattle and for putting fodder and their dung. There is tin-shed structure and nohra is lying vacant for long and that nohra is not suitable for residence of plaintiff and his family members. He categorically denied to have any ancestral haveli at Chirawa. He (Downloaded on 22/08/2022 at 11:40:48 PM) (13 of 26) [CFA-270/2005] stated that in Kolkata also, he does not own his own house, but lives on rent. He further clarified that because of moisture in Kolkata he suffered Asthama and Dr.S Bhattacharya advised him to reside in dry place and in unpolluted environment. He stated that as and when he comes to Chirawa he has to stay in houses of other persons, namely, Banwari Lal, Nathmal Dalmiya, Chiranji lal and Bajrang Lal, who are his friends and relatives. He further stated that defendant is not original resident of Chirawa and he came Chirawa only for the purpose of doing government job, now he has retired from service, therefore, he can return to his original native place. Thus, if suit premises is vacated by defendant no hardship would cause to him, on the contrary plaintiff would suffer greater hardship due to non vacation of suit premises. 21.2 Pw.2 Bajrang Lal stated that plaintiff often comes to Chirawa and has to stay at house of his friends and relatives because his own house, the suit premises, is not vacant. He stated that sons of defendant's son have got other alternative houses and they reside there.

21.3 Pw.3 Jagdish Prasad, power of attorney of plaintiff appeared as witness and exhibited power of attorney (Ex.7). he stated that the plaintiff has turned unwell in Kolkata and suit premises is required for residence of the plaintiff himself and his family members. It is necessary for the plaintiff to reside at Chirawa for regaining his health. He stated that plaintiff has no other house in Chirawa and whenever he comes at Chirawa, he has to reside in houses of his friends and relative. In his cross examination he clarified that in the nohara adjoining to suit premises there is a tin-shed structure and is used for tethering (Downloaded on 22/08/2022 at 11:40:48 PM) (14 of 26) [CFA-270/2005] cattle and for putting fodder and dung. He stated that he reside at a distance of 200 yards from the suit premises.

21.4 Pw.4 Shyam Sunder in his statement deposed that plaintiff's health is not well in Kolkata and whenever he comes at Chirawa, he is bound to stay in houses of his friends and relatives. In his cross examination he stated that the nohra, in western side to the suit premises, is small and tin-shed structure therein is used for tethering cattle and that nohra is not suitable for residence of plaintiff.

21.5 Pw.5 Chiranji lal Sharma stated that plaintiff, in connection to his business, went to Kolkata and his health is not well there and whenever he comes at Chirawa, he stays with him and sometimes at the residence of other relatives. In his cross examination he admitted that plaintiff is residing in Kolkata since for long period of time, however, he often comes to Chirawa as well. He denied that the plaintiff owns ancestral haveli in Chirawa. He stated that the nohra, adjoining to suit premises, is not suitable for residence.

21.6 In rebuttal Dw.1 Ramchandra Verma deposed that plaintiff does his business at Kolkata and reside there, however, he admitted that the plaintiff comes at Chirawa once in a year. In cross examination he admitted that he has retired from service in the year 1982 and he is permanent resident of Phulera. He also admitted that in Phulera his ancestral haveli is situated. He admitted that he has four sons, one son lives at Pilani and runs a shop, another son Dharamveer lives in Chirawa and works at Chaudhary transport, who has his own house. Dw.1 has expressed ignorance about ill health of plaintiff and stated that he does not (Downloaded on 22/08/2022 at 11:40:48 PM) (15 of 26) [CFA-270/2005] know when plaintiff comes Chirawa as to where he stays. Suggestion was put to him that whenever plaintiff comes to Chirawa he has to stay at houses of his friends and relatives, namely, Shyam Sunder, Chiranji Lal, Bajrang Lal and Shyam Sunder Dalmiya etc., but he expressed his ignorance. He admitted that there is no animosity with persons who appeared as witnesses and deposed against him and in favour of plaintiff. The defendant admitted that he never entered into the nohra situated in western side to the suit premises. He stated that he does not know that the said nohra is used for tethering cattle and for putting fodder and dung. He could not prove any pucca construction in that nohra.

21.7 Dw.2 Satya Narayan stated that the defendant is tenant in suit premises and both rooms are in tenancy since beginning. For the nohra in western side to suit premises, he stated that the same was small in size and there tin-shed structure is situated. He admitted that no other premises in Chirawa like suit premises could be available, for less than Rs.1000-1500/-. 21.8 Dw.3 Phool Singh stated that defendant resides in suit premises since 1966-1967 and whole premises is in tenancy. He denied the fact that the defendant did broke out lock of one room on 7-2-1997 and entered into unauthorised possession. He stated that whenever plaintiff Bhagwati Prasad comes to Chirawa from Kolkata, he stays in his ancestral haveli and plaintiff has a comfortable facility for his residence at Chirawa. In cross examination, he admitted that he never saw any document of ancestral haveli of plaintiff nor he saw any patta or record of Nagar Palika. He admitted that he never went with defendant (Downloaded on 22/08/2022 at 11:40:48 PM) (16 of 26) [CFA-270/2005] looking for any other house on rent. He expressed his ignorance whether environment of Kolkata suits to plaintiff or not. 21.9 Dw.4 Vijendra Kumar, son of defendant, stated that in nohra in western side to suit premises one pakka room, latrine bathroom are constructed and electric and water connection also available. He admitted that defendant has four sons and the eldest son Ved Prakash live in Pilani and carry on his own business and has purchased a house there, another son Dharamveer lives in his own house in Chirawa near Chaudhary transport and does the work of repairing tape and radio etc.; third son Ramesh is rendering service on water hut at Chrawa for last fifteen years, which is nearby Government hospital Chirawa.

21.10 From the side of plaintiff, rebuttal evidence was adduced, and Pw.3 Jagdish Prasad submitted affidavit denied that plaintiff has any ancestral haveli in Chirawa.

22. After appreciation of evidence of both parties it appears that the defendant does not dispute about the factum of ill health of plaintiff and about the fact that he often comes to Chirawa for stay, atleast once in a year. The defendant and his witnesses have admitted that though the plaintiff works and carry on his business at Kolkata, but he often comes to Chirawa as well. From the evidence of plaintiff and his witnesses, it has come on record that plaintiff has no other place in Chirawa for his residence except the suit premises. The defendant contended that the plaintiff owned one another nohra, adjoining to suit premises in western side and same is lying vacant. In this regard, the plaintiff and his witnesses have clarified the situation that the said nohra is not suitable for (Downloaded on 22/08/2022 at 11:40:48 PM) (17 of 26) [CFA-270/2005] residence and the same is used for tethering cattle, for putting fodder and cow dung. In rebuttal evidence, the defendant and his witnesses are not in concurrence about the structure in the said nohra. The defendant (Dw.1) himself admitted that he never entered into the said nohra. Whereas, his son Dw.4 Vijendra stated that a structure of two rooms, kitchen, latrine and bathroom is constructed and electric and water connection is fixed in the said nohra. However, other witnesses of defendant, have not corroborated, the fact of having any construction in the adjacent nohra. There is no concurrence in statements of the defendant and his witnesses on this aspect. Thus, firstly it may not be held that adjoining nohra is suitable for residence purpose and secondly available to the plaintiff for his residence. Otherwise also, it is settled proposition of law that plaintiff is wholly free to look for his comfort and has a full choice to choose the place for his residence. The plaintiff is best judge of his own necessity. It is not in dispute that plaintiff is owner of the nohra in question and if he wants to reside in his own nohra, same is not unjust. As far as defence of defendant that plaintiff owns a haveli in Chirawa, there is no evidence on record. No detail, or location or other description about such ancestral haveli of plaintiff have been produced on record by defendant or his witnesses. Whereas plaintiff and his witnesses have clearly denied about any such ancestral haveli available to plaintiff in Chirawa for his residence. Pw.2 Bajrang Lal, Pw.3 Jagdish Prasad, Pw.4 Shyam Sunder and Pw.5 Chiranjilal have stated that whenever plaintiff comes to Chirawa, he has to stay at houses of his friends and relative. As far as defence of defendant that plaintiff is an affluent person and has flourishing (Downloaded on 22/08/2022 at 11:40:48 PM) (18 of 26) [CFA-270/2005] business at Kolkata is concerned, the same is wholly irrelevant to the plaintiff's bonafide necessity, when it is established by plaintiff and his witnesses that due to ill health, plaintiff and his family members want to come and reside in Chirawa, which is indisputably their native place, such need cannot be treated to suffer from any malafide. It is usual and natural desire of the person to use and reside in his own property. There is no reason, why the plaintiff should suffer discomfort and sacrifice his comfort, for the benefit of tenant. The defendant has not whispered about any oblique motive of plaintiff to get vacate the suit premises.

23. It is settled proposition of law that necessity need not be proved as a dire necessity. Hon'ble Supreme Court in Mohd. Ayub Vs. Mukesh Chand [(2012)2 SCC 155] has discussed the concept of bonafide requirement of plaintiff with comparative hardship between landlord and tenant. It has been held that landlord's requirement need not be a dire necessity. It was also held in the said judgment that factum of affluence of landlord is irrelevant, if landlord has bonafide need of the suit premises. The Supreme Court observed that affluence of landlord cannot be a basis to determine the issues of hardship. Otherwise if this is treated a correct approach, then affluent person can never get possession of his premises, even if he proves his bonafide requirement. The Supreme Court also observed that when the tenant did not make any genuine effort to find out any alternative accommodation, even during pendency of litigation, the tenant cannot claim hardship in future.

(Downloaded on 22/08/2022 at 11:40:48 PM)

(19 of 26) [CFA-270/2005]

24. The proposition of law and criteria to adjudge the bonafide necessity and hardship, as observed by the Supreme Court in case of Mohd. Ayub (supra) has been endorsed in subsequent judgment in case of Krishna Kumar Rastogi Vs. Sumitra Devi [(2014)9 SCC 309].

25. It is settled proposition of law that landlord is best judge of his need and courts have no concern to dictate the landlord as to how and in what manner he should live [In Prativa Devi Vs. T.V. Krishnan (1996)5 SCC 353]. It is held that bonafide need should be genuine, honest, conceived in good faith and may not be a pretext to evict the tenant or only for increasing the rent in [Ram Dass Vs. Ishwar Chander (1988)3 SCC 131].

26. In Siddalingamma Vs. Mamtha Shenoy [(2001)8 SCC 561] it was held that while determination comes of eviction of tenant an approach either too liberal or too conservative or pedantic must be guarded against, if landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant's continued occupation in tenanted premises.

27. It is well settled law that a tenant take a premises from the landlord to conduct his business or for the purpose of residence, it is always choice of landlord to choose premises for his business or residence (reference can be have of Anil Bajaj Vs. Vinod Ahuja (2014)15 SCC 610]. This principle has been relied upon by Delhi High Court in Kuldeep Singh Baweja Vs. Amarjeet Singh Khurana decided on 11-7-2022, RC REV No.411/2019 & CM Application No.13514/2022.

(Downloaded on 22/08/2022 at 11:40:48 PM)

(20 of 26) [CFA-270/2005]

28. In the case at hand it has come on record that plaintiff required the suit premises for residence of himself and his family members, and there is no other alternative place available to the plaintiff for his residence in Chirawa except the suit premises. The suit premises is in possession of defendant since time of his father from 1967. The defendant is native of Phulera as there he possess his own house. His sons have acquired other alternative accommodation in Chirawa. The defendant himself has died during the trial of suit and his three sons are well settled and residing at other places. It has come on record that plaintiff has to stay at residence of his friends and relatives, whenever he comes at Chirawa.

29. As far as the issue of comparative hardship is concerned, it is settled proposition of law that where landlord has proved his necessity as bonafide and reasonable, the hardship would also be decided in favour of the landlord, unless and until the tenant does not prove that he made his best efforts to look for any alternative premises. This aspect was observed by the Hon'ble Supreme Court in case of Mohd. Ayub (supra). It has been proved that plaintiff has no other alternative premises at Chirawa to be used for his residence. The defence of tenant about availability of another nohra adjoining to the nohra in question, has not been proved. It has come on record that the adjoining nohra is small in size and is used for tethering cattle and not useful for residence purpose. No ancestral haveli of plaintiff at Chirawa has been proved. On the contrary, the defendant tenant pleaded his hardship in the manner that if he would shift to any other rented premises in Chirawa, he would have to pay higher rent at least Rs.1000/- per month. Dw.2 (Downloaded on 22/08/2022 at 11:40:48 PM) (21 of 26) [CFA-270/2005] Satya Narayan has also stated in his cross examination that alternative premises in Chirawa like the suit premises would be available for not less than Rs.1000/1500/-. Although the tenant is original resident of Phulera, and he came to Chirawa for his government job, and he has retired from service. Even after retirement, he the defendant tenant wants to continue in Chirawa, he can look for any other alternative rented premises. Merely, he would have to pay enhanced rent for an alternative premises is not a relevant factor to be pleaded for comparative hardship. That apart, two sons of defendant tenant have acquired alternative accommodation. In such backdrop of facts and evidence, the comparative hardship stands in favour of the plaintiff landlord.

30. In such factual matrix and on appreciation of proposition of law, issues No.5&6 have rightly been decided by the trial court in favour of plaintiff and has not committed any illegality. Therefore, this court is not inclined to interfere with such findings.

31. The counsel for defendant appellant has not raised any argument on the issue of partial eviction which has not been considered by the trail court and no finding has been given in this regard. However this court is aware that the point of partial eviction is an essential issue to be considered in view of Section 14(2) of the Rent Act while passing decree for eviction on the ground of bonafide necessity.

32. In the present case neither plaintiff nor defendant has pleaded with regard to point of partial eviction. Issues are framed on the basis of pleadings of parties and when pleadings are not available on record raising a dispute about partial eviction, it cannot be said that the trial court committed any error in not (Downloaded on 22/08/2022 at 11:40:48 PM) (22 of 26) [CFA-270/2005] framing such issue, as has been held by the Apex Court in case of Badri Narayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada [2003(2) SCC 320].

33. The issue of partial eviction of the tenanted premises has been considered by the Apex Court in case of Badri Narayan Chunilal Bhutada Vs. Govindram Ramgopal Mundada (supra) and held that "It is expected of the parties to raise necessary pleading and the court to frame an issue based on the pleadings so as to enable parties to adduce evidence and bring on record such relevant material as would enable the court forming an opinion on the issue as to comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the court may discharge its duty by taking into consideration such material as may not be available on record."

34. The evidence on record has come to the effect that plaintiff needs the entire suit premises for his residence. In M/s. Prem Tent House Vs. Prakash Chand Jain [1983 RLR 438] a coordinate bench of Rajasthan High Court has observed that where sufficient evidence is available on record the appellate court can decide the issue of partial eviction. Similar view has been expressed in case of Kerala State Coir Corporation Limited Vs. Kewal Krishan Kumar [1999(1) RCR 55].

35. Keeping aforesaid principle in mind and after going through the evidence of parties on record, it appears that plaintiff adduced evidence, to the effect that his requirement is for the entire suit premises, for the purpose of residence for himself and his family members. The defendant has no where suggested that the (Downloaded on 22/08/2022 at 11:40:48 PM) (23 of 26) [CFA-270/2005] requirement of plaintiff can be satisfied by partial eviction. When the plaintiff has adduced evidence for his need of entire nohra, it was for the defendant tenant to contend and rebut that the alleged need of plaintiff could be satisfied by partial eviction. But he neither took any such defence in his written statement nor adduced any iota of evidence in this respect, therefore, the defendant cannot be allowed to take benefit of his own negligence and latches on his part. Otherwise also the suit premises is a nohra, comprising of two rooms, veranda, kitchen, latrine and bathroom; Considering the nature of need of plaintiff for the suit premises, it may not be assumed by any stretch of imagination that a part of suit premises, would be sufficient for plaintiff and his family members. Thus the point of partial eviction goes against the appellant.

36. Before parting with, this court intends to discuss the aim and object of the Rent Act, The Rent Control legislation was enacted to strike a reasonable balance between requirements of tenants for adequate protection against the aggressive designs of greedy landlord to evict the tenant or to increase rates of rent to an exorbitant limit. The father of defendant took the premises on rent in the year 1967. The defendant has already passed away during course of trial of the suit. The present appellants are legal representatives of deceased defendant. Two sons of deceased defendant have acquired alternative accommodation and are residing there. Thus, in such circumstances, seeking protection of the Rent Act by the appellant may not be held to be equitable and justified and in accordance with the aim and object of the Rent Act.

(Downloaded on 22/08/2022 at 11:40:48 PM)

(24 of 26) [CFA-270/2005]

37. In case of Shakuntala Bai Vs. Narayan Das [(2004)5 SCC 772] while dealing with Madhya Pradesh Accommodation Control Act, 1961 it was observed that there is no warrant for interpreting the Rent Control legislation in such a manner, the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the landlords of their properties for all times to come.

38. In Satyavati Sharma Vs. Union of India [(2008)5 SCC 287] the Apex Court observed that "it is trite to say that a legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and/ or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality and even if the validity of such legislation may have been upheld at a given point of time, the court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent". In para 12 of the judgment, the Apex Court observed thus:-

"12. Before proceeding further we consider it necessary to obsrve that there has been a definite shift in the court's approach while interpreting the rent control legislation. An analysis of the judgments of 1950s to early 1990s would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant--Mohinder Kumar Vs. State of Haryana [(1985)4 SCC 221] Prabhakaran Nair Vs. State of T.N. [(1987)4 SCC 238], D.C. Bhatia Vs. Union of India [(1995)1 SCC 104] and C.N. Rudramurthy Vs. K. Barkathulla Khan [(1998)8 SCC 275]. In these and other cases, the court consistently held that the paramount object of every rent control legislation is to provide safeguard for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the later judgments."

(Downloaded on 22/08/2022 at 11:40:48 PM)

                           (25 of 26)                                   [CFA-270/2005]


39.     Aforesaid   judgment        has     been       followed   in     State    of

Maharashtra Vs. Super Max International Private Limited [(2009)9 SCC 772] and it has been held that "we reaffirm the views expressed in Satyawati Sharma (supra) and emphasise the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Court's protection under all circumstances."

40. Order sheet of 26-7-2022 indicates that counsel for appellant sought time to seek instruction from appellant as to whether he is interested to pursue the first appeal on merits or wants to seek time to vacate the tenanted premises in view of the fact that the tenancy in residential nohra is from 1967, however, appellant declined to seek time to vacate the tenanted premises but wanted to argue the appeal on merits to challenge the eviction decree. Therefore, the first appeal has been heard and considered on merits.

41. The upshot of the aforesaid discussion is that the impugned judgment passed by the trial court requires no interference by this court and the same is upheld. There is no force in the first appeal filed by defendant appellant and the same is accordingly dismissed. No order as to costs. Decree be framed accordingly.

42. However, the present appeal is in the nature of first appeal and tenancy of Nohra in question for residential purpose is continuing from 1967, this court deems it just and proper to grant four months time to defendant tenant to vacate and hand over the (Downloaded on 22/08/2022 at 11:40:49 PM) (26 of 26) [CFA-270/2005] possession of the suit premises to respondent landlord, obviously on condition of paying due rent, if any, and future rent regularly till handing over the vacant possession.

43. Any other pending application(s), if any, also stand(s) disposed of.

44. Record of the court below be sent back forthwith.

(SUDESH BANSAL),J Arn/ (Downloaded on 22/08/2022 at 11:40:49 PM) Powered by TCPDF (www.tcpdf.org)

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jaipur