Rajasthan High Court - Jodhpur
Smt.Nirmala & Anr vs U.I.Ins.Company & Ors on 17 September, 2008
Equivalent citations: AIR 2009 (NOC) 784 (RAJ.)
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
...
JUDGMENT
S.B. CIVIL FIRST APPEAL NO.524/2006.
The United India Insurance Company Ltd. & Ors.
Vs.
Smt. Nirmala Mehta & Anr.
......
S.B. CIVIL FIRST APPEAL NO.549/2006.
Smt. Nirmala Mehta & Anr.
Vs.
United India Insurance Company & Ors.
......
S.B. CIVIL FIRST APPEAL NO.257/2008.
The United India Insurance Company Ltd. & Ors.
Vs.
Smt. Nirmala Mehta & Anr.
........
S.B. CIVIL FIRST APPEAL NO.206/2008.
Smt. Nirmala Mehta & Anr.
Vs.
United India Insurance Company & Ors.
.......
Date of Judgment :: 17th September 2008
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Jagdish Vyas, for the defendants-appellants in CFA Nos.
524/2006 and 257/2008 (respondents in CFA Nos. 549/2006
and 206/2008).
Mr. R.K. Thanvi, for the plaintiffs-appellants in CFA Nos.
549/2006 and 206/2008 (respondents in CFA Nos. 524/2006
and 257/2008)
.....
Reportable BY THE COURT:
These four civil first appeals, for having arisen out of the single civil suit (CO No. 93/2002), have been heard together 2 and are taken up for disposal by this common Judgment. The Background The suit aforesaid was filed by the landlords plaintiff No. 1 Smt. Nirmala Mehta and her husband, plaintiff No. 2 Shri Rajendra Mehta (appellants in CFA Nos. 549/2006 and 206/2008), against the tenants defendants Nos. 1 to 3, the United India Insurance Company Ltd., its Regional Manager, and its Divisional Manager (appellants in CFA Nos. 524/2006 and 257/2008) for recovery of arrears of rent, fixation of standard rent with enhancement, and eviction from the suit premises on the grounds of default, nuisance, and reasonable and bonafide requirement.
In the impugned judgment and decree dated 24.05.2006, the learned Trial Court, though held that the defendants were not in arrears of rent nor had committed default in payment nor caused nuisance but found that the plaintiffs had been able to establish their requirement of the suit premises for the purpose of residence of the old-aged father of the plaintiff No.2. The learned Trial Court, however, held that from out of the area of the suit premises as let to the defendants, admeasuring about 2126.50 square feet, only an area of about 250 square feet would be sufficient for the requirement as established; and proceeded to pass a so- called preliminary decree for eviction in favour of the plaintiffs 3 in relation to the part of premises and observed that the portion to be vacated by the defendants shall be determined with further enquiry after obtaining a Commissioner's report. The learned Trial Court also found that the agreed rent of the premises in question had been Rs. 7,438.75 per month and, with reference to a proposal stated by the plaintiffs in the year 2001 for 35% increase, proceeded to fix the standard rent at Rs. 10,042.25 per month from the date of filing of the suit even after deduction of the aforesaid 250 square feet area.
Aggrieved of the aforesaid judgment and decree dated 24.05.2006, the defendants have preferred the appeal (CFA No. 524/2006) questioning the findings so far recorded by the learned Trial Court against them and submit that the suit is required to be dismissed in toto. On the other hand, the plaintiffs have also preferred the appeal against the judgment and decree aforesaid (CFA No. 549/2006) questioning the findings so far recorded against them; and would urge that the suit is required to be decreed in toto. Earlier, by an interim order dated 20.09.2006 as passed in the defendants' appeal (CFA No. 524/2006), this Court stayed further proceedings under the impugned judgment and decree dated 24.05.2006; but the said interim order was vacated on 02.02.2007 and the record was returned to the Trial Court for preparation of final decree.
4
The learned Trial Court issued Commission to carry out the requirements of the preliminary decree dated 24.05.2006 and to suggest the area to be handed over in possession of the plaintiffs and, after adjudicating upon the objections as raised by the parties against the Commissioner's report, proceeded to draw a final decree on 03.04.2008 specifying the portion of the premises to be handed over to the plaintiffs and with further directions to the defendants not to use the open space in the building of the plaintiffs for the purpose of parking of the vehicles.
Again, both the parties being dissatisfied with the decree so passed, have preferred the respective appeals. While the defendants have questioned the final decree dated 03.04.2008 in CFA No. 257/2008, on the other hand, the plaintiffs have questioned the same in CFA No. 206/2008.
In view of multiple questions arising for determination in these appeals, necessary it is to take into comprehension at the first the relevant of the pleadings of the parties. The pleadings:
The plaintiffs, wife and husband, referred in their plaint as presented on 28.02.2002 the particulars and location of their double storied building at Plot No. 172-A, Near Rotary Club, Residency Road, Jodhpur and pleaded that the premises in the said building comprised of the basement 5 admeasuring about 348 square feet and the ground floor admeasuring about 1974 square feet, was leased out to the defendant No.1 on 01.06.1984 for a period of six years at a monthly rent of Rs.4,309/- apart from the electricity and water charges and house tax with the stipulations that the lease would be renewable after the term for another three years with 15% increase in rent. The plaintiffs averred that with the consent of the parties, the period of lease was extended and the rent was enhanced several times and lastly, the lease period was extended for five years from 01.06.1996 at a rent of Rs. 7,438.75 per month apart from electricity and water charges and house tax; and that the rent at the aforesaid rate was paid until 31.05.2001, the date when tenancy came to an end with efflux of time. According to the plaintiffs, the defendants were required to hand over the premises after expiry of the period of lease but did not do so and, having neither paid nor tendered the rent from 01.06.2001, committed default in payment of rent.
The plaintiffs further stated that the demised premises were required by them reasonably and bona fide because the old-aged parents of the plaintiff No.2 (parents-in-law of the plaintiff No.1) Shri Joharimal and Smt. Pushpa Mehta had shifted for permanent residence at Jodhpur in the month of October 2001 after retirement from Bihar on 24.05.2001; and 6 both of them being in old age were suffering from several ailments and were finding it difficult to reside at the upper floor of the building in question. The plaintiffs stated that the defendants though assured to vacate the premises realising their requirement but did not do so and the plaintiffs had, with difficulty, made arrangements for the stay of the old-aged parents in a room on the first floor that was entirely inconvenient. It was also stated that neither the plaintiffs nor the parents of the plaintiff No.2 were having any other property in the city of Jodhpur and the parents were dependent on the plaintiff No. 2 for residence.
In paragraph 10 of the plaint, the plaintiffs stated their entitlement to a decree for eviction on the grounds that: (a) the lease period had expired and has not been extended; (b) the defendants have neither paid nor tendered the rent from 01.06.2001 and were rendered defaulters; (c) the suit premises were required reasonably and bona fide for residence of the parents of the plaintiff No.2 who could not conveniently occupy the upper floor and for paucity of accommodation, their residence at the upper floor was not even possible; (d) for want of accommodation, the plaintiffs and their family were suffering serious hardship and the said old-aged parents were required to reside at the first floor even against the medical advice and the defendants being only the 7 tenants and capable of purchasing the property or taking any other property on rent, would not suffer any inconvenience; (e) the plaintiffs were in need of the entire premises and their requirement would not be satisfied by partial eviction; and (f) the defendants have started using the open land in front of the suit property for the purpose of parking that has created nuisance and the defendants have also increased the electricity load.
The plaintiffs further stated their entitlement to have the standard rent fixed at Rs. 20,000/- per month and stated: that the premises were located at the main Residency Road, Jodhpur having a market value of about Rs. 70,00,000/- and as per the BSR of PWD, could fetch monthly rent of Rs. 25,000/- but they were demanding only Rs. 20,000/- per month; and that the rates of rent of the premises in the locality were much on the higher side and looking to the present market rate and enhancement of prices, the standard rent of the premises was required to be fixed at Rs. 20,000/-. The plaintiffs, accordingly, prayed for the reliefs of eviction, fixation of standard rent, and recovery of arrears of rent against the defendants.
The defendants in their joint written statement, while did not deny the basic facts concerning the location of the property in question and the relationship of landlord and tenant 8 between the parties and of extension of lease period from 01.06.1996 for five years at a monthly rent of Rs. 7,438.75 apart from electricity and water charges but denied any agreement for payment of house tax. The defendants also denied themselves being in arrears of rent and stated that the entire rent upto the month of September 2002 had already been paid to the plaintiffs. The defendants denied any entitlement of the plaintiffs to recover the possession of the suit premises with the submissions that merely with expiry of the period of lease, their rights as tenants have not come to an end; and tenancy could be terminated only in accordance with the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 ('the Act of 1950').
In relation to the allegations of default, the defendants asserted that the rent upto the month of May 2001 was accepted by the plaintiffs in the office of the defendant No.3 against receipt; that thereafter, the rent was tendered several times but the plaintiffs were not ready to issue a receipt and the defendant No.3 was unable to make payment of rent without obtaining receipt, for the defendant being a Nationalised Insurance Company; that the rent from the month of June 2001 to November 2001 was sent to the plaintiffs under Cheque No. 819505 dated 26.12.2001; that Cheque No. 819547 dated 01.01.2002 was sent for the rent for the month 9 of December 2001; that yet another Cheque No. 819625 dated 01.02.2002 was sent to the plaintiff No.1 towards the rent for the month of January 2002 but the plaintiffs, in order to create the ground of default, did not encash the cheques and then, the defendants made a request to the plaintiffs under the letter dated 06.02.2002 to encash the cheques and thereafter, sent the cheques every month to the plaintiffs until the month of September 2002.
The defendants denied the averments regarding reasonable and bona fide requirement of the suit premises for the parents of the plaintiff No.2, denied the suggestions about the difficulties faced by the said parents, and also denied if any assurance was given for vacating the premises. The defendants also asserted that the plaintiffs were having substantial accommodation available on the first floor of the house in question and submitted that the plaintiffs have concealed the particulars of members of the family and the extent of available accommodation. It was also suggested that another part of accommodation was available for occupancy at the mezzanine floor. The defendants submitted that if evicted, they would suffer greater inconvenience and the furniture and fixtures placed after incurring substantial expenditure with the consent of the plaintiffs would go waste, and their business would be adversely affected. In relation to partial eviction, the 10 defendants asserted that though the plaintiffs were not having any requirement yet, and if the Court would come to a conclusion about any such requirement, the same could be satisfied even with one room and eviction from the entire premises was not necessary.
The defendants also joined the issue on the claim of standard rent as made by the plaintiffs and denied the allegations that the property could fetch a monthly rent of Rs. 25,000/-. The defendants stated that some reasonable enhancement could be made in the monthly rent looking to the rate of inflation and rising prices but the claim as made by the plaintiffs was not countenanced by law. The defendants pointed out that a claim was made by the plaintiffs under the letter dated 05.10.2001 for enhancement of rent by 35% and averred that though such a demand was unjustified, yet, even as per such demand, the plaintiffs claimed enhancement only by about Rs. 2,603/- per month but, on the other hand, they were claiming standard rent at Rs. 20,000/- in the present suit. According to the defendants, such a demand was clearly indicative of the only intention of the plaintiffs to claim extra and excessive rent. The defendants denied the other averments taken by the plaintiffs in support of their claim for enhancement of rent and submitted that in any case, the rent could not be enhanced to Rs. 20,000/- per month. The 11 defendants also took certain other objections regarding court fees and the description of the parties.
Issues:
On the pleadings, the learned Trial Court, framed the following issues on 18.04.2003:-
"1. आय पत व द गण न व दगस पर स क गह क कक य क अल व दन य ककय ?
वद
2. आय पत व द गण न ववव दगस समपत क कक य कद. 1.6.01 क ब द न ध म न ह अद ककय थ 6 म ह स जय द अवतध क कक य क# अद यग$ न क क क न%नन वयत कम ककय इस आध प कय व द तनषक सन क# क+क# प प क न क अतधक ह- ?
वद
3. आय ववव दगस समपत क# व द गण क व द पत क पद स/. 6 म0 कदए गए ववव ण क अन2रप श$ ज6ह मल व श$मत प2षप क तनव स ह 2 तनज$, य2व7य27 एव/ सदभ व$ आवशयक ह- ?
वद
4. आय ववव दगस समपत ख ल$ न ह न प पत व द गण क म2क बल व द क 2लन तमक रप स जय द कक<न ई क स मन क न पडग ?
वद
5. आय ववव दगस समपत क आ/त?क तनषक सन स/भव ह- ?
पत व द
6. आय पत व द गण न व द क# वबन सव$कत ववव दगस ज यद द क आग आई ख2ल$ जम$न क# प कक@ग क रप म0 उपय ग लन ?2र क कदय जजसस व द गण क नय%सनस क र ह2ई ?
वद 12
7. आय ववव दगस पर स क कक य अतयतधक नय%न ह- यकद हD म नक कक य कक न रपय पत म ह ह ग ?
वद
8. आय व द न व द म%लय /कन गल ककय ह-
थ नय य?2लक कम अद ककय ह- इस क ण व द चलन य गय नह / ह- ?
पत व द
9. आय पत व द स/. 1 क जर ए क+व$जनल म-नज , ज धप2 क र पजनH क न दत?I क ह2ए समन म$ल क व य ह- ज क न%नन गल ह- इसतलए द व चलन य गय नह / ह- ?
पत व द 10- आय क ई व दक ण उतपनन नह / ह2आ इसतलए द व चलन य गय नह / ह- ?
पत व द 11- आय व द गण क प स व-कजलपक पर स ज6ह मल व श$मत प2षप क र ह इ? ह % उपलबध ह-
जजनक व द द व द म0 उललख नह / ककय गय ह-
इस क ण व द चलन य गय नह / ह- ?
पत व द
12- सह य ?"
Thus, issue No.1 relates to the question as to whether house tax was payable by the defendants; issue No.2 relates to the question as to whether the defendants committed default in payment of rent; and issue No.7 refers to the claim of the plaintiffs for standard rent. Issue No.6 relates to the ground of eviction because of nuisance whereas issues Nos. 3, 4, 5 and 11 take into comprehension the inter-related questions of reasonable and bona fide requirement, 13 comparative hardship, and partial eviction. Issues Nos. 8, 9 and 10 refer to the objections of the defendants on the frame of the suit.
Ancillary proceedings:
During the progress of the suit, certain ancillary proceedings took place, relevant of which for the present purpose could be noticed thus: The plaintiffs moved an application on 02.11.2002 with reference to Section 7 of the Act of 1950 and also referred to the valuation of their property; and submitted that the rent being paid by the defendants at Rs. 7,438.75 per month was negligible and the premises of the equal measurement in the vicinity were fetching rent at about Rs. 22,000/- per month. The plaintiffs also asserted that the defendant-Company itself had established another office on the same road in a nearby complex at the first floor and was paying rent of Rs. 22,000/- per month for the premises having lesser area; and, thus, the plaintiffs prayed for fixation of provisional rent for the premises in question on that basis. The application was put to contention by the defendants with reference to the pleadings of the parties and with the submissions that the application contained vague and uncertain averments. While denying the allegations about agreed rent being low and also denying that there had been enormous increase in the rent rates, in relation to the 14 allegations about the defendant-Company having established another office in a nearby complex, it was pointed out that the defendant-Company had taken such other premises in a modern commercial complex about 300 metres away from the suit premises at a monthly rent of Rs.11,705/- that was proper with reference to the location and the quality of construction of the said premises; and that two premises could not be compared with.
The learned Trial Court by its order dated 18.04.2003 proceeded to fix the provisional rent at Rs. 8,553/- per month while allowing 15% increase over the last paid rent particularly with reference to the averments of the plaintiff as contained in paragraph 2 of the plaint but with the observations that the other aspects related with the BSR Rates and the report of private valuer could be considered only after evidence of the parties.
Another aspect had been that after the evidence of the defendants was closed on 16.02.2006 and the matter was fixed for final arguments, the defendant moved an application on 01.03.2006 seeking to amend the written statement with the submission that the said Smt. Pushpa Mehta (mother of the plaintiff No.2) expired on 05.02.2006; and the defendant wanted to take the averments that because of demise of Smt. Pushpa Mehta, the requirement as stated by the plaintiff came 15 to an end. On the application so moved by the defendants, the learned Trial Court observed in its order dated 22.03.2006 that factum of demise of Smt.Pushpa Mehta was not in dispute and obviously, the requirement as stated in her relation has come to an end; but proceeded to reject the application with the observations that such a fact regarding demise of Smt. Pushpa Mehta was not required to be taken in the pleadings by way of amendment of written statement being not necessary for determination of real questions between the parties more particularly when the requirement was stated in relation to both Smt. Pushpa Mehta and Shri Johrimal Mehta, the parents of plaintiff No.2.
Evidence: Oral & Documentary In the hearing of the suit, on behalf of the plaintiffs were examined PW-1 Rajendra Kumar Mehta (plaintiff No.2); PW-2 Mahaveer Chand Mehta, a retired Executive Engineer and working as an approved valuer, in relation to the valuation reports prepared by him regarding the house in question; PW- 3 Johrimal Mehta (father of the plaintiff No.2) whose requirement had been the basis of the plaintiffs' claim for eviction; PW-4 Dr. Dashrathmal Bhandari in proof of ailments of the parents of the plaintiff No.2, the medical advice given and the treatment administered by him; and PW-5 Nirmal Kumar Sarraf, alleged landlord of a neighbouring property in 16 assertion of the fact that the property in question could fetch a rent of about Rs. 25,000/- per month. In rebuttal, the defendants examined DW-1 Dinesh Goyal, Administrative Officer of the defendant Company.
In documentary evidence, the plaintiffs produced a copy of the communication dated 24.04.1998 from the Divisional Office of the defendant Company to the Deputy Manager at Regional Office, Jaipur endorsing a consent of the landlady for accepting rent w.e.f. 01.06.1996 for a period of 5 years at the rate as stated in the letter and informing that for renewal after 2001, the landlady had mentioned that further agreement shall be made through mutual understanding as Ex.1; the medical opinion and advice of Dr. Dashrathmal Bhandari dated 20.01.2002 in relation to the parents of the plaintiff No.2 as Exs. 2 and 3; the rent proposal statement as given out by the registered valuer Mahaveer Chand Mehta as Ex. 4 and his valuation report as Ex. 10; a copy of the notice served by the lawyer of the plaintiff No.1 on 08.12.2001 as Ex. 5 and its acknowledgments as Ex. 8 and 9; copy of another notice served by the lawyer of the plaintiffs on 10.01.2002 as Ex. 6 and its postal receipt as Ex. 7; a copy of the PAN Card of Johrimal Mehta as Ex. 11, his educational certificate as Ex. 12, his resignation letter dated 23.04.2001 as Ex. 13 and his senior citizen's card of Indian Airlines as Ex. 14; the treatment 17 slip of Smt. Pushpa Mehta dated 25.10.1993 as Ex. 15, her treatment slip dated 18.04.1994 as Ex. 16, her another treatment slip with illegible date as Ex. 17 and her treatment slip dated 19.05.2000 again marked as Ex. 17, her treatment slips dated 28.06.2001 and 28.09.2002 as Exs. 18 and 19 respectively, her electro-cardiogram dated 28.12.1998 as Ex. 20; the treatment slips dated 25.12.1998, 03.06.1999, 17.05.2000, 06.06.2002, 23.04.2003 and dated 26.10.2002 in relation to Shri Johrimal Mehta as Ex. 21 to Ex. 26 respectively; and copy of the rent agreement as entered by the tenants with the plaintiffs' witness Nirmal Kumar on 30.09.2000 as Ex. 27. The defendants, on the other hand, produced a copy of their letter dated 26.12.2002 forwarding cheque No. 819505 as Ex. A/1; a copy of their letter dated 06.02.2002 to the plaintiff No.1 to get realised the three cheques sent earlier as Ex. A/2; a copy of the letter dated 05.10.2001 from the plaintiff No.1 for leasing the premises for the extended period as Ex. A/3; and copy of the plan of the house in question as Ex. A/4.
The impugned judgment and decree dated 24.05.2006:
The learned Trial Court by its impugned judgment dated 24.05.2006 proceeded to determine the issues involved in the case thus: In issue No.1, the learned Trial Court found that the plaintiffs had failed to establish if the house tax was agreed 18 to be paid apart from rent. In issue No.2, the learned Trial Court held that the rent was being collected by the representative of the plaintiff from the office of the defendants; and that the defendant had tendered the rent by registered post also; and that the plaintiff had given out evasive statements and had failed to establish if the defendants committed default in payment of rent from 01.06.2001.
So far the question of standard rent in issue No.7 was concerned, the learned Trial Court found that the plaintiff had not been able to establish the rent of other premises nor the valuation report could be accepted. The learned Trial Court, however, referred to the letter Ex. A/3 and the statement of PW-1 Rajendra Kumar Mehta in that regard that a proposal was indeed made to the defendant Company for increasing the rent by 35% but the defendant Company was agreeable to increase the rent only by 20% and later on by 30% and that he was agreeable to renew the lease deed upon 35% increase in rent. The learned Trial Court, therefore, found that with increase of 35% over the amount payable on 31.05.2001 at Rs. 7,438.75 per month, the rent would come to Rs. 10,042.25. Though in other issue, the learned Trial Court held the need of the plaintiffs proved to the extent of 250 square feet of area on the ground floor but in issue No.7, the learned Trial Court held that even after reduction of 250 square feet, it 19 would be proper that the rent of the premises be fixed at Rs. 10,042.25.
The learned Trial Court further observed that the open land in front of the suit property was not of the plaintiffs and if the same was being used for parking purposes, it cannot be said that any nuisance was being caused to the plaintiffs and hence decided issue No.6 against the plaintiffs.
In issue No.3, the learned Trial Court referred to the admitted fact of demise of Smt. Pushpa Mehta on 05.02.2006 but referred to the old age, ailments, and problems of PW-4 Johrimal (father of the plaintiff No.2) and want of any specific rebuttal by the defendants in that regard. The learned Trial Court found proved the fact that Johrimal was suffering from the problems related with heart and with knee movements and it was difficult for him to take to the stairs and found that providing him with the space at ground floor was proper and, thus, decided issue No.3 in favour of the plaintiffs.
In the related issue No.11, the learned Trial Court observed that PW-3 Johrimal had admitted having in his name two rooms on the first floor in the house situated at the Dafatarion-ka-bas but observed that the plaintiff was the best judge of the requirement and then, because of ailments, it was difficult for Shri Johrimal to take to the stairs and hence, even if there were available in his name two rooms on the first floor 20 in the other house at Dafatarion-ka-bas, the same were not of adequate alternative accommodation.
After finding reasonable and bona fide necessity in favour of the plaintiffs, the learned Trial Court proceeded to consider the questions of comparative hardship and partial eviction in issues Nos. 4 and 5 together. The learned Trial Court referred to the fact that the defendants were carrying on with their business in the suit premises since 01.06.1984 and had admittedly incurred substantial expenditure on furniture and fixtures; and found that if evicted form the entire premises, the investment made by the defendants would go waste and their goodwill would suffer serious setback.
On the other hand, the learned Trial Court observed, the defendants had 2126.50 square feet of area with them and such an area was quite too large whereas the requirement of the plaintiffs was limited to the residence of an old person, i.e., the father of the plaintiff No.2. The learned Trial Court, thus, deduced that if an area of 250 square feet is made available to the plaintiffs on the ground floor, the problem relating to residence of Johrimal Mehta would be solved and the defendants would also be able to carry on with their work in the remaining part of the premises. Therefore, the learned Trial Court held, the requirement of both the parties would be satisfied by partial eviction and none would face difficulty. 21
On the considerations and observations aforesaid, the learned Trial Court proceeded to hold in issues Nos.4 and 5 that partial eviction was possible and the requirement could be satisfied by providing 250 square feet area to the plaintiffs.
Issues Nos. 8, 9 and 10 in relation to the frame of the suit were, of course, decided against the defendants.
The learned Trial Court, with reference to its aforesaid findings, concluded in the issue relating to relief that 250 square feet of area was required to be made available to the plaintiffs from the suit premises and further observed that it would be proper to appoint a Commissioner to ascertain such 250 square feet area and it would be proper to fix the standard rent at Rs. 10,042.25. The learned Trial Court, therefore, proceeded to pass a preliminary decree in the suit in the following manner:
"उपय27
I वववचन क आध प व द गण क पक म0 व
पत व द गण क ववरद प जमभक क+क# प र क# ज $
ह- कक पत व द गण 250 वगIकNH पर स ख ल$ क क
व द क व स ववक भ6त क कबज स2प2दI क । उ7 250
वगIकNH पर स क6न स ह ग यह य क न क तलए
कतमश तनय27 ककय ज ह- । उपय27
I न2स 250
वगIकNH कतNल क पर स ख ल$ क क व द क दन
क उप / ?ष बच पर स क तलए म नक कक य
10,042 रपय 25 प-स पत म ह ह ग । व द-पत द य स
क+क# क# ख क क तलए भ$ म नक कक य
10,042 रपय 25 प-स पत म ह ह ग । व द पत व द गण
स कतमश वयय सकह व द वयय प प क न क
अतधक ह ग । इस पक वद वद ववरद
पत व द गण आ/त?क तनषक सन ह 2 सवयय क+क# ककय
ज ह- । औपच र क प जमभक क+क# पच I इस$ अन2रप
-य ककय ज ए।"
22
As noticed at the outset, both the parties being dissatisfied with the decree aforesaid preferred respective first appeals (CFA Nos. 524/2006 and 549/2006) before this Court. In the appeal preferred by the defendants, CFA No. 524/2006, earlier a stay was granted staying further proceedings for eviction but the said order was vacated on 02.02.2007 and record was sent back to the Trial Court.
The impugned judgment and decree dated 03.04.2008:
Pursuant to the said judgment and decree dated 24.05.2006, the learned Trial court had appointed Shri M.C. Purohit, Advocate as Survey Commissioner on 24.05.2006 itself and such Survey Commissioner, after visiting the site on 24.07.2006 in the presence of the representatives of the parties, drew a plan and made the proposal about the portions marked 'A', 'B' and 'C' on the ground floor, practically on the southern side of the suit premises, to be vacated for the purpose of partial eviction under the decree in question.
In relation to the Commissioner's report, objections were filed by the plaintiffs on 08.08.2006 and by the defendants on 05.04.2007. The defendants further filed a reply to the objections as taken by the plaintiffs on 27.04.2007 whereas the plaintiffs also filed a reply to the objections of the defendants on 27.04.2007.23
The learned Trial Court thereafter proceeded to analyse minutely the accommodation available in the suit premises and pondered over various permutations and combinations for the purpose of partial eviction and ultimately carved out the requisite portion for the purpose of partial eviction and also directed that the defendants would not use the open space in front of the record room for the purpose of parking and passed a so-called final decree in the following terms:
"पर ण मसवरप व द गण क पक म0 व पत व द गण क ववरद तनमन पक अ/त म क+क# प र क# ज $ ह-:-
A) कदन /क 28/07/2006 क इस नय य लय म0 अतधव7 एम.स$. प2 कह द पस 2 क# गई कतमश र प HI क स थ स/लगन नक? म0 द? य I गय र क +I रम, लकSन, य%र नल, लकSन व य%र नल क ब$च क ख2ल सथ न एव/ सH / ककचन क व स ववक र 7 भ6त क आतधपतय आज स द म ह म0 पत व द गण द व द गण क स2प2दI क कदय ज ए।
B) द म ह म0 पत व द गण द उ7 पर स क र 7 भ6त क आतधपतय व द गण क स2प2दI नह / ककए ज न प व द गण क नय य लय क म धयम स र 7 भ6त क आतधपतय प प क न क अतधक ह ग ।
C) कतमश र प HI क स थ स/लगन नक? इस क+क# क अतभनन अ/ग ह ग ।
D) कतमश र प HI क स थ स/लगन नक? म0 द? य I गय र क +I रम क स मन क open passage म0 स ईककल, म H स ईककल, सक%H व क इतय कद ककस$ भ$ पक क क ई व हन खड क न (parking) क पत व द गण कमपन$ क अतधक नह / ह ग ।"
Again dissatisfied and aggrieved, both the parties have preferred appeals (CFA Nos.257/2008 & 206/2008) questioning the final decree so passed by the learned Trial Court.24
Rival contentions:
While assailing the finding on the question of reasonable and bona fide requirement, as recorded in the impugned judgment dated 24.05.2006 in issue No.3, the learned counsel for the defendants strenuously contended that the findings remain contrary to the material available on record. Learned counsel at the first referred to the pleadings as contained in the plaint and contended that the only case pleaded by the plaintiffs had been of the parents having come down to Jodhpur and both of them being in old age and suffering from ailments were finding it difficult to occupy the upper floor but then, it has not been the case of the plaintiffs that the accommodation otherwise available was insufficient. Learned counsel further contended that the learned Trial Court has failed to consider the material fact that the period of lease was admittedly extended with the consent of the parties upto 31.05.2001; and even after on 31.05.2001 discussions were on for further extension of the lease period and by the letter dated 05.10.2001 (Ex.A/3), the plaintiff clearly stated the consent to renew the lease for next five years subject to enhancement of rent by 35%. Learned counsel contended that such a proposition directly cuts across the claim of reasonable and bona fide requirement particularly when the same is stated with reference to the retirement of Shri Johrimal in the 25 month of May 2001. Learned counsel further referred to the statement of the plaintiff Rajendra Kumar Mehta that he was agreeable to extend the lease period upon enhancement of rent, and submitted that the only intention of the plaintiffs had been to earn excessive rent and such a relevant aspect has not been considered by the learned Trial Court. Learned counsel further submitted that for the purpose of eviction, the requirement has to be reasonable as well as bona fide and in the present case, the relevant facts emerging on record are that the averment taken in paragraph-7 of the plaint about no other accommodation being available was incorrect and Shri Johrimal having other property at Dafatarion-ka-bas was a fact relevant but not disclosed; and it is also borne out that another accommodation is available at the mezzanine floor of the house in question; but all these aspects were not considered by the learned Trial Court at all. Learned counsel submitted that for non-disclosure of important and relevant facts, adverse inference ought to have been drawn against the plaintiffs. Learned counsel has referred to the decision in Hameedia Hardware Stores Vs. B.Mohan Lal Sowear: AIR 1988 SC 1060. Learned counsel further submitted that when the plaintiffs were residing at Ahmedabad and when the fact remains undeniable that mother of the plaintiff No.2 expired during pendency of the suit and sufficiency of accommodation 26 was not the matter in issue, in the totality of circumstances, the issue of bona fide requirement ought to have been decided against the plaintiffs. Learned counsel referred to the decision in Ram Kumar Barnwal Vs. Ram Lakhan: (2007) 5 SCC 660 to submit that the subsequent event having fundamental impact on the question of requirement ought to have been taken into consideration.
Learned counsel also submitted that even if by some stretch of arguments, the case of reasonable and bona fide requirement of the plaintiff is accepted with reduction of 250 square feet area, fixation of standard rent for the remaining part of premises at Rs.10,042.25 per month with 35% increase cannot be said to be justified. Learned counsel further contended that while passing the final decree dated 03.04.2008, the learned Trial Court has failed to appreciate that after taking over possession of a part of premises, the fundamental requirements of the defendant would not be satisfied and the plaintiffs ought to have been directed to make arrangements for the essential requirements like those of latrine, urinal, wash basin, pantry/kitchen in the remaining portion of the premises. Learned counsel further contended that the injunction as issued by the learned Trial Court restraining the defendants from utilising the open space was not justified because while passing the preliminary decree, no 27 such relief was granted and the Trial Court had no jurisdiction to pass such a decree thereafter.
Per contra, and while maintaining that the plaintiffs have been able to establish their reasonable and bona fide requirement, learned counsel for the plaintiffs strenuously contended that in the overall circumstances of the case, the learned Trial Court was not justified in passing a decree for partial eviction only for 250 square feet area without even a finding as to which portion of the suit premises was considered proper and sufficient to meet with the requirement? Learned counsel referred to Section 14 of the Act of 1950 and submitted that the procedure as adopted by the learned Trial Court was not correct inasmuch as only if at the time of passing of decree, the Court is having material to find that the need could be satisfied by partial eviction that such a decree for part of the premises could be granted; and, according to the learned counsel, the scheme of the Act of 1950 does not envisage such an enquiry to be made after passing of the decree. Learned counsel submitted that even when suggesting that the requirement could be satisfied with one room, the defendants failed to point out as to which of the portion could be given to meet with such requirement and hence passing of a decree only for partial eviction was not justified. Learned counsel also referred to the fact that PW-3 Johrimal Mehta 28 was not suggested if his requirement could be satisfied with partial eviction nor DW-1 Dinesh Goyal stated that partial eviction was possible. Learned counsel assailed the observations and findings in the later decree dated 03.04.2008 also and submitted that the directions to the landlord to use the store as kitchen and other similar nature directions were not in accord with human requirements.
Learned counsel for the plaintiffs further submitted that neither there was any such defence of the defendants that the eviction was sought for enhancement of rent nor such aspect was put in cross-examination; that insufficiency of the present available accommodation was clearly pleaded in paragraph-7 of the plaint and clearly established in the statement of PW-1. Learned counsel also pointed out that even in respect of the house at Dafatarion-ka-bas, it was not the case pleaded by the defendants that the same was an adequate alternative accommodation available for the plaintiffs' requirement and when put in cross-examination, the facts were clearly explained by PW-1 Rajendra Kumar and by PW-3 Johrimal Mehta. Learned counsel pointed out that the defendants have also not pleaded that the room at mezzanine floor was available as alternative premises. Learned counsel further submitted that the subsequent events particularly of the problems faced by the plaintiffs and by-pass surgery of plaintiff 29 No.2 could also be considered and eviction from entire of the premises deserves to be allowed. Learned counsel urged that mere demand for enhancement of rent does not necessarily operate against the claim for eviction on the ground of bona fide requirement and pointed out that the letter Ex.A/3 was specifically withdrawn by the notice Ex.5. Learned counsel has referred to and relied upon the decisions in Om Prakash Vs. Smt.Chand Devi: 1972 WLN 878, Jeevanlal Vs. Anant: 1972 RCR 266, John Vs. District Court: 1992(2) RCJ 309, Sarla Ahuja Vs. United India Insurance Company Limited: 1998 (2) Apex Court Journal 704, Shree Ram Vs. Radhaballabh and another: 2006 (3) DNJ (Raj.) 1204, R.C.Tamrakar and another Vs. Nidi Lekha: (2001) 8 SCC 431, Gaya Prasad Vs. Pradeep Shrivastava: 2001 (1) Apex Court Journal 606, and Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal and others: 2005 CJ (Rent Control) 341.
Learned counsel further submitted that while taking up the question of standard rent, the requirements of Section 6(3) of the Act of 1950 have not been considered; the substantial letting value of the suit premises and the relevant rates of rent in the locality have also been ignored; and further the aspects emerging from the cross-examination of DW-1 particularly of his inability to deny the fact about making payment of rent at Rs.18,500/- for the other nearby premises of lesser area, has 30 not been considered. Learned counsel submitted that looking to the overall circumstances, the claim as made by the plaintiffs could not have been denied and standard rent ought to have been fixed at Rs.20,000/- .
Learned counsel for the defendant Insurance Company countered with the submissions that in the letter (Ex.A/3) though the plaintiff suggested that the premises could fetch rent at Rs.20,000/-but then, specifically agreed for increasing the rent at 35% and, learned counsel contended, the claim for rent at Rs.20,000/- per month having been relinquished cannot be pressed upon by the plaintiffs. Learned counsel further submitted that the fact regarding cardiac problem of plaintiff No.2 was never brought on record by way of specific pleading and rather the case had been that the plaintiffs were residing at Ahmedabad and, therefore, alleged ailment of the plaintiff No.2 is of no bearing on the aspect of bona fide requirement as involved in this case. Learned counsel referred to the pleading of the defendants and submitted that it was the specific case pleaded that the suit was filed only to seek excessive rent and further submitted that it was not a case of mere demand of enhanced rent by the plaintiffs but further, there had been an express consent to extend the lease for five years with increase in rent.31
Points for determination:
Submissions of learned counsel and the respective stand of the parties essentially lead to the following broad points for determination in these appeals:- (1) As to whether the learned Trial Court was right in deciding the issue regarding reasonable and bona fide requirement in favour of the plaintiffs?
(2) As to whether the learned Trial Court was right in holding the plaintiffs entitled for a decree for eviction only in respect of 250 sq.ft. of area from out of the demised premises? (3) As to whether the learned Trial Court was right in adopting the procedure of passing a preliminary decree and then appointing a Commissioner in this case; and was right in allotting the area to the plaintiff as carved out in the impugned decree dated 03.04.2008?
(4) As to whether while passing the final decree, the learned Trial Court has exceeded its jurisdiction in issuing injunction against defendants restraining them from using the open space in the building for parking of the vehicles? 32 (5) As to whether the learned Trial Court was right in fixing the standard rent at Rs.10,042.25 per month?
Point No.1 - the question of reasonable and bona fide requirement:
The only basis wherefor the learned Trial Court found proved reasonable and bona fide requirement in issue No.3 has been the fact that Shri Johrimal, father of the plaintiff No.2, was in advanced old age and was suffering from several ailments and, thus, it was inconvenient for him to occupy the accommodation at the upper floor; and he was required to be accommodated at the ground floor. To add to the said requirement, it has been contended during the course of submissions that the plaintiff No.2 himself has suffered heart ailment and this being a subsequent event available on record, decree for eviction from the whole of suit premises ought to be granted in favour of the plaintiffs. It has also been contended on behalf of the plaintiffs that the defendant or even the Court cannot dictate as to how the landlord should accommodate himself and the learned Trial Court was wrong in providing only 250 square feet area in the ground floor without there being any material as to which portion would satisfy the requirement of the plaintiffs. The aspect of partial eviction would come later on; and it is required to be seen in the first 33 place as to whether a decree for eviction on the ground of reasonable and bona fide requirement could justifiably be passed in this case?
So far the submissions with reference to the ailment of the plaintiff No.2 are concerned, even when they are suggested to be of subsequent event, the fact remains that such an aspect has not been incorporated in the pleading at all and the case of the plaintiffs had been that they were residing at Ahmedabad. The fact that the plaintiffs have also shifted to Jodhpur is, again, not the case pleaded. In this view of the matter, the suggestion about the requirement of the plaintiffs further becoming prominent with ailment of plaintiff No.2 cannot be gone into. So far the case of requirement on the basis of old age and ailments of father of plaintiff No.2 is concerned, in a comprehension of all the facts and the surrounding circumstances of the case, this Court is unable to agree with and affirm the findings of the learned Trial Court in this regard.
The plaintiffs vaguely suggested in the plaint that after taking retirement in the month of May 2001, the parents of plaintiff No.2 have shifted to Jodhpur in the month of October 2001 and, thus, has arisen their requirement because they could not conveniently occupy the premises at the upper floor. The case of the defendant had been that the plaintiffs put 34 forward the so-called requirement of the parents only in order to somehow seek eviction and the real intent had been to seek increase of rent. There are two major factors, in the opinion of this Court, operating decisively against the plaintiffs. One that admittedly the father of the plaintiff No.2 is having another house at Dafatarion-ka-bas, Jodhpur but the plaintiffs stated positively in the plaint that they or the parents were not having any other property in the city of Jodhpur. When confronted with the fact of having a house at Dafatarion-ka-bas, Jodhpur in cross-examination, PW-3 Johrimal, of course, admitted the fact and then, it was sought to be suggested that the accommodation was not fit for his occupancy. Definitely, as to whether such premises were adequate and fit for the requirement of the father of plaintiff No.2 or not, was an aspect primarily for the consideration of the plaintiffs and nobody would be dictating as to how they should accommodate or settle themselves, but then, while pleading a case of bonafide requirement, the plaintiffs cannot conceal material facts and cannot make mis-statement on relevant facts. The fact of availability of other house or some accommodation in the name of or in the share of the father of the plaintiff was not only concealed in paragraph-7 of the plaint but the plaintiffs, on the converse, categorically maintained that they or the parents were not having any other property in the City of 35 Jodhpur. The plaintiffs averred,-
"व द गण अथव ज6ह मल ज$ व उनक# पजU क प स ?ह ज धप2 म0 अनय क ई ज यद द नह / ह- औ ज6ह मल ज$ व उनक# पजU व द गण प हव स क तलय तनभI ह- व उनक तलय हव स क# वयवसथ क न व द गण क क वI य ह- ।"
It is apparent from the cross-examination of PW-1 and PW-3 that this assertion of fact in the plaint was not correct. The plaintiffs do not appear to have come out forthright while seeking eviction of the tenant on the ground of reasonable and bona fide requirement.
Secondly, and more significantly, the letter dated 05.10.2001 (Ex.A/3) and the overall conduct of the plaintiffs makes it absolutely clear that the claim of bona fide requirement was only a ruse and the real intent had been to seek enhanced rent. The said letter stating willingness of the plaintiff No.1 to extend the lease for five years, and even beyond, was sent as late as on 05.10.2001 and the contents thereof read as under:-
''The lease period for the premises had expired way back on 31.05.2001. In this connection, the matter of vacating of the premises or enhancement of Rent had been discussed with your goodself, and the undersign's request is still pending till now i.e. from 01.06.2001.
The present rental rates in this particular locality i.e. on the Residency Road has 36 erroneously (sic) increased. Please note that if your office is vacated from my premises, I can easily fetch rent worth more than Rs.20,000/- per month. However, looking to the past assurances given by your Department, we agree to further extend the lease period provided there is an enhancement in the rent by at least 35% on the present rent last paid by your Department, which if agreed upon can be set for the next five years, after which the same can be once again reviewed and revised.
Looking to the above proposal kindly give us a positive reply and oblige.'' The submission of the plaintiffs had been that the parents of plaintiff No.2 took retirement in the month of May 2001 and came down to Jodhpur. In fact, the plaintiff No.2 while deposing as PW-1 has stated that parents were taken to Ahmedabad and thereafter they came down to Jodhpur. Leaving this aspect aside, the fact about the ailment of the parents, their old age and their inconvenience in residing at the first floor of a building were the facts and factors clearly in the knowledge of the plaintiffs in the month of May 2001 itself (and, as shall be seen presently, even before that). The plaintiffs have conveniently avoided to state the date when the parents shifted to Jodhpur in the month of October 2001; whereas the fact remains that as on 05.10.2001, the proposition of the plaintiffs was to renew the lease for next five years with 35% enhancement of rent with further proposition that after the said period, the rent could once 37 again be reviewed and revised. The plaintiff PW-1 Rajendra Mehta had very specifically admitted in his cross-examination that he was ready to renew the lease deed with 35% increase in rent. PW-1 stated,-
''यह सह ह- कक 35 पत ? बढ क न प मW ल$ज
+ + क नव$न$क ण क न क तलय -य थ ।''
Looking to the timing of the communication dated 05.10.2001, and looking to its contents and so also the statements of the plaintiff No. 2 it is apparent that had the defendant Company agreed on enhancement by 35%, the plaintiffs were willing and keen to continue with the tenancy.
The suggested difficulties of the parents, even when existing, were not creating any hitch in the plaintiffs in renewing and continuing with the lease once the rent was enhanced as demanded. In the face of these circumstances, the suggestion that the letter dated 05.10.2001 (Ex. A/3) was withdrawn by the notice dated 08.12.2001 (Ex. 5) does not make out a case in favour of the plaintiff. The suggestion in the notice Ex. 5 as if the requirement for parents has now arisen, was not the correct projection of all the facts by the plaintiffs; and such notice appears to have been instructed only after the proposal of enhancement of rent as put forward by the plaintiffs was not acceded to by the defendant Company.
Surrounding circumstances moreover strongly belie the 38 requirement as suggested by the plaintiffs. Although mother of the plaintiff No.2 has, unfortunately, expired but the facts as available on record and emerging from the documents produced by the plaintiffs cannot be ignored that she had been regularly under treatment at Jodhpur itself even in the year 1993 and onwards as is apparent from the documents i.e., her prescription slips dated 25.10.1993 (Ex.15), dated 18.04.1994 (Ex.16) and dated 19.05.2000 (Ex.17); and her electro- cardiogram dated 28.12.1998 (Ex.20). Noteworthy it is that the suit was filed with reference to her requirement also. If her difficulties were at all constituting the reason with the plaintiffs of bona fide requirement of the suit premises, what to say of writing such a letter as the one dated 05.10.2001 (Ex. A/3), anything even suggesting such a proposition would have met with strong disapproval from the plaintiff.
Apart from the aforesaid documentary evidence in relation to the mother of the plaintiff, further significant aspect is that the prescription slips Ex.21, Ex.22 and Ex.23 clearly make out that father of the plaintiff i.e, PW-3 Shri Johrimal Mehta was also under treatment at Jodhpur right from the year 1998. The said prescriptions and advices are of Navjeevan Hospital,Jodhpur bearing dates respectively 25.12.1998, 03.06.1999 and 17.05.2000. Again, had the plaintiffs having requirement of the suit premises with reference to the ailment 39 and problem of the father of the plaintiff No. 2, the letter dated 05.10.2001 would have been the last thing to be extended by them.
The plaintiffs' witness Dr.Dashrathmal Bhandari, the Physician practicing at Jodhpur, leaves no manner of doubt that parents of plaintiff No.2 were under his treatment at Jodhpur since long. The said witness categorically stated in his statement recorded on 05.05.2005 that he was treating Smt.Pushpa Mehta for the last 12 years and Shri Johrimal Mehta for the last 8 years! It is apparent from such pieces of evidence as produced by the plaintiffs themselves that the parents of the plaintiff No.2, whose ailment, old age, and alleged settlement at Jodhpur from the month of October 2001 were the basis of claim of their eviction, were and had been receiving treatment at Jodhpur right from the year 1993. The suggestions as if the requirement sprang up in or about the month of October 2001 because of ailments and old age of the parents of plaintiff No.2 are obviously incorrect. Nothing has been explained on record as to how and where the parents were residing/staying during such a long period from 1993 onwards while receiving treatment at Jodhpur?
Taking an overall view of the matter, this Court is convinced that the plaintiffs have not been forthright while 40 putting forward a claim of eviction with reference to old age and ailments of parents of plaintiff No.2 and have concealed too many of the material facts.
Learned counsel for the plaintiffs submitted that mere demand of enhanced rent does not operate against the claim of bona fide requirement. There is no quarrel with this principle that mere demand of higher rent would not debar the claim of eviction on reasonable and bona fide requirement; but the present one is a case where the demand has been made exactly at the time when, according to the plaintiffs' own suggestion, the requirement was existing. The plaintiffs cannot blow hot and cold together and cannot say that though they do have a requirement yet would also be ready to continue with tenancy if the rent is increased. When such suggestion comes from the plaintiffs after accrual of requirement, the claim of bona fide requirement gets a serious dent; and when the same is coupled with concealment of material facts, a decree for eviction on such a ground cannot be passed. Eviction of the tenant is permitted not merely upon proof of requirement but when the professed requirement is shown to be reasonable as well as bona fide. The elements of reasonableness as well as bona fide being totally missing in the present case, finding on issue No.3 cannot be sustained and the claim for eviction on the ground of requirement is 41 required to be rejected.
In the case of John (supra), as relied upon by learned counsel the Hon'ble Kerala High Court said,-
''8. The mere fact that a landlord demanded higher rent on previous occasions which the tenant declined to oblige is not a reflection of any oblique motive on the part of landlord claiming eviction on the ground of his own need to occupy the building. It is only normal propensity of a landlord to desire increase in the rent for his building from time to time. Such a desire expressed is not a mark of misconduct in landlord-tenant relationship. Of course, if the tenant establishes that the landlord nurtures grouse towards his tenant for persistently refusing to reciprocate his request to increase the rent, it may have a bearing on the question of bona fides of the particular landlord's move for eviction on this ground. However, no presumption of mala fides can be drawn just because the tenant declined to increase the rent demanded by the landlord.'' Going by such principle, true it is that on the mere fact of demand of higher rent on some 'previous' occasion, no oblique motive would be imputed on the landlord while considering his claim for eviction on the ground of requirement, but as noticed, in the present case, the totality of circumstances makes it clear that the suit has been filed only when the tenant-defendant did not agree on the demanded rent and else the plaintiffs were always keen to continue with the tenancy. Further, it was not something of 'previous occasion' that the demand was made for higher rent. In fact, the demand for higher rent was made after the professed 42 need had definitely arisen or at least simultaneous with the awareness about the requirement, if at all, for the parents. The said decision is not of much help to the plaintiffs.
So far the decisions in Sarla Ahuja (supra) and R.C.Tamrakar (supra) are concerned, there is no doubt about the proposition that the landlord is the best judge of the requirement and neither the tenant nor even the Court would endeavour to show as to how the landlord should adjust himself, but then, equally settled are the principles that a case of reasonable and bona fide requirement is required to be examined from objective point of view and the totality of facts and circumstances are required to be considered. The broad principles as available from the decisions in the cases of Gaya Prasad, Sait Nagjee Purshottam & Co. Ltd., and Shree Ram (supra) that essentially the requirements should be seen on the date of filing of the application and subsequent events intervening due to protracted litigation are not relevant, are not of any help to the plaintiffs in this case. It is not assumed that because of demise of mother of the plaintiff No.2, the need has come to an end, but the need as alleged in the totality of facts, does not appear to be that of a genuine case. It may again be pointed out that the principles relating to subsequent events so far further requirement of the plaintiffs as suggested during the course of submissions on account of the ailment of 43 plaintiff No.2 is concerned, the same is not being given consideration for having not been specifically pleaded and rather, the plaintiffs having kept all the particulars of their residence and properties in obscurity.
Finding of the learned Trial Court on issue No.3 is reversed and claim for eviction on the ground of reasonable and bona fide requirement is rejected.
Points Nos.2 & 3:
For the finding on the ground of reasonable and bona fide requirement being not sustained, the questions of comparative hardship and partial eviction are rendered redundant and are not required to be gone into. However, having regard to the facts noticed, even when not of any bearing on the final conclusion, this Court considers it appropriate to say that had it been a case where the bona fide requirement of the plaintiffs was accepted, the proposition as adopted in the impugned judgment dated 24.05.2006 that 'for an old person only 250 sq.ft. area would be sufficient' would not have been countenanced. It sounds rather extravagant to state such a proposition.
The question of partial eviction is considered as per the requirements of Section 14 of the Act of 1950 that where Court be satisfied that no hardship would be caused either to 44 the landlord or to the tenant by passing a decree in respect of a part of premises, the Court would be passing the decree in respect of such part only.
Although the decisions as cited by learned counsel for the plaintiffs in this regard i.e., the cases of Om Prakash and Jeevanlal (supra) have no direct application inasmuch as the decree considered in the case of Om Prakash (supra) was in relation to the premises consisting of shop and residential portion and the landlady sought eviction for whole of the premises and this Court held that mere non-disclosure of nature of business in the commercial part of premises would not operate against her claim for tenancy being indivisible; and the said decision was rendered in the year 1972 when Section 14 in its present form was not available in the statute book; and, similarly, in the case of Jeevanlal (supra) also, the Hon'ble Madhya Pradesh High Court found that the M.P. Accommodation Control Act did not contain any provision permitting ejectment of a tenant from a part of premises only and hence, observed that when the tenancy was indivisible and could not be split, the tenant was not to be evicted from part of the premises; however, even when the aforesaid decisions are not applicable, noticeable it is that the relevant provisions of Section 14(2) of the Act of 1950 read as under:- 45
''(2) No decree for eviction on the ground set forth in clause (h) of sub-section (1) of section 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.
Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only.'' It is essentially the question of hardship that is considered while granting a decree for eviction on the ground contained in clause (h) of sub-section (1) of Section 13; and as a concomitant thereof is the requirement that when the Court would be satisfied that no hardship would be caused to either of the parties by passing the decree in respect of part of premises, the Court shall pass decree in respect of such part only. On a literal and direct interpretation of Section 14(2), this Court is of view that 'such part' regarding which the decree is contemplated by the said provision has to be found and the Court has to be satisfied that decree in respect of such part would not be causing hardship to either of the parties. The proposition as employed, adopted and sought to be enforced by the learned Trial Court in this case in the very first place gives rise to a serious question as to what was the 46 basis of the finding that for an old man only an area of about 250 sq.ft. would be sufficient? Then, evidently, the learned Trial Court had no material before it nor could find 'such part' regarding which decree for partial eviction was to be granted.
The learned Trial Court has adopted the procedure as if dealing with division of property between co-sharers and bringing about partition. A decree for partial eviction is not akin to a decree for partition where specific shares are found and allotted and whenever necessary, division is brought about by metes and bounds.
That no hardship would be caused by passing a decree for eviction from a specific part of premises is a finding to be arrived at by the learned Trial Court in the first place before it could be said that a decree only for such a part could be passed and that would not be causing hardship to either. The learned Additional District Judge was not right in restricting the relief in relation to 250 sq.ft. of area on his own assumption that for an old man, such an area was sufficient without it being the case of either of the parties. Then, the manner in which the Commissioner had been appointed and the Commissioner's report had been dealt with, the learned Trial Court has proceeded as if by carving out one room here and one room there, some accommodation is being made available for the old man without even considering that the 47 requirement was being considered not for storage of a thing or material but for living of an old person; and that means dignified living, commensurate with the status and the needs. The approach of the learned Trial Court in this regard cannot be approved. All in all, when the requirement of the plaintiff was accepted by the learned Trial Court, and sufficient and adequate material was not available on record to come to a definite conclusion that no hardship would be caused to either of the parties by passing decree in respect of part of premises, in the opinion of this Court, the logical course would have been to grant a decree for eviction from the entire premises.
Splitting up of tenancy in Section 14(2) of the Act of 1950 is envisaged by law only in the clear cases of satisfaction of the Court on the material available on record that no hardship would be caused by partial eviction. In the scheme of the said provisions, a doubtful position would, ordinarily, result only in the finding in the negative so far the question of partial eviction is concerned.
This aspect of the matter is not being dilated upon further because in this case, the finding on reasonable and bona fide requirement itself is not being sustained; however, had such finding been sustained, this Court is clearly of the view that on the state of record, there was no question of passing any decree for partial eviction and the plaintiffs would 48 have been entitled for a decree for eviction for whole of the premises.
Point No.4 : decree for perpetual injunction So far the decree for perpetual injunction as passed by the learned Trial Court on 03.04.2008, whereby the defendants have been restrained from using the open space in the premises in question for parking of the vehicles is concerned, this Court finds it rather inexplicable as to how the learned Trial Court has at all chosen to pass such a decree while passing a so-called final decree. Such a claim for injunction was not even set forth in the plaint nor was even a subject-matter of any of the issues. The other part of claim as made by the plaintiffs, of nuisance with reference to parking of the vehicles in open space in front of the building in question had already been negatived while deciding issue No.6 against the plaintiffs. So far nuisance because of parking inside the building was concerned, such was not a case of the plaintiffs nor any issue was framed in that regard nor any finding was given in the preliminary decree. The proceedings of so-called final decree were limited to the said, unwarranted, proposition of carving out 250 square feet area for the purpose of eviction. As already noticed, even the entire exercise as carried out in the decree dated 03.04.2008 was uncalled for; but in any case and to put the record straight, it appears necessary that such 49 a decree for injunction as passed by the learned Trial Court be set aside.
Point No.5: question of standard rent:
The question of fixation of standard rent in the present case has got different overtones and is required to be considered from a different perspective. Even when the plaintiffs do not appear justified in their claim for eviction on the ground of reasonable and bona fide requirement particularly for their intention to have the rent enhanced, this Court finds that the claim for enhancement of rent is, of course, partly justified and the enhancement as made by the learned Trial Court only at the static figure of Rs.10,042.25 appears to be inadequate.
In this case, the plaintiffs have taken elaborate pleading to the effect that premises in question carrying a value of about Rs.70 lacs and being located at an important commercial place known as Residency Road in the City of Jodhpur, could fetch a rent at about Rs.25,000/- per month and have submitted that their claim of rent at Rs.20,000/- per month was a reasonable one. In their written statement, the defendants, while did not deny that the premises in question were convenient and appropriate for their business but denied the same to be situated in an important area. The claim of the 50 valuation of the property and likely increase in the letting value were denied. The defendants even suggested that for the last 4-5 years, there had been recession in the valuation of real estate in the city of Jodhpur and further stated that the plaintiffs have not provided any extra amenity wherefor the rent be enhanced to Rs. 20,000/- per month. The plaintiff No.2 asserted the facts as stated in the plaint in his examination-in-chief and submitted with reference to the valuer's report that the rent of the premises in question was assessed at about Rs. 47,444/- per month. The plaintiff also asserted the fact that another show-room situated about 200 feet from the suit premises, though having lesser floor area, was let out on a rent of Rs. 28,000/- per month. It was also asserted that on the very same road about a furlong away, the defendants have taken the premises in Sukh Sagar Complex on the first floor, and having lesser area, at a rent of Rs. 18,000/- per month. Some other premises and respective rates of rent were also given out. A look at the cross- examination of PW-1 makes it clear that though certain questions were asked regarding other show-rooms, banks and offices but the fact asserted by the plaintiff regarding the premises taken on rent at Rs. 18,000/- per month by the defendants only about a furlong away was not put to specific cross-examination. The plaintiff had categorically stated: 51
"इस$ सडक प पत व द गण न क ब एक Nल Xग द 2 प एक पर स कक य प तलय ह-
जजसक कतNल व दगस पर स स कम ह- थ वह पर स पथम म/जजल प ह- औ कक य 18,000/-
रपय पत म ह ह- । यह पर स स2खस ग क मपलकस म0 जसथ ह- ।"
The valuation of the property as stated in the rental value report Ex. 10 and Ex. 4 respectively have duly been proved by the witness PW-2 Mahaveer Chand Mehta. The plaintiff's witness PW-5 Nirmal Kumar has pointed out that his premises located nearby on the same Residency Road were let out in the year 2000 under the agreement Ex. 27 on a rent of Rs. 23,000/- per month; and that the suit premises were larger than his own premises. The witness also stated that the suit property could fetch rent at about Rs. 25,000/- per month and in the year 2000 also it could have fetched the rent at about Rs. 20,000/- to 25,000/- per month. Cross-examination of this witness brings to the fore the facts that his premises were of 20' x 35' size, having roof height of about 16 feet, having underground of the same size, and there was a loft in about 1/3rd portion of the premises that were constructed in the year 1999-2000; and, of course, the rent note Ex. 27 was not a registered document. The rebuttal of the defendants came in the form of the statements of DW-1 who stated in the affidavit in examination-in-chief that the rent of the suit premises at Rs. 52 7,438.75 was reasonable and the Company was agreeable to increase the rent by 30% and no premises in the neighbourhood carried the rent of Rs. 20,000/- per month nor such premises could fetch the rent of Rs. 20,000/-. The witness was put to cross-examination about the other premises on rent with the defendant Company and though he pointed out that the Company was having five offices in the city of Jodhpur but denied having any office at the Residency Road and expressed want of knowledge about the rent paid in respect of other premises. In relation to the office as referred by the plaintiff in Sukh Sagar Apartment, the witness stated that the same had been closed in the year 2005 and he did not know if its rent had been Rs. 18,000/- per month but admitted that the said office was situated on the third story. The witness said:
"मजणध असप ल क प स ज स2खस ग अप HI मनH
ह- ज म दख ह2आ ह- वह / हम कद $य मण+ल$य
कयल I य थ । ज इस$ वषI 2005 म0 ह ब/द ककय गय
ह- । यह म2झ प नह / कक स2खस ग व ल क य ल I य क
कक य 18500/- रपय थ ।
स2खस ग अप HI मनH म0 हम कयल I य $य
म/ज$ल प थ ।"
The witness also expressed want of knowledge if the suit premises could fetch rent at about Rs. 18,000/- or Rs. 20,000/- in the year 2000.
On the question of standard rent, the learned Trial Court considered the aspects that the plaintiff PW-1 was unable to 53 state the names of owner of the Vediocon Office and his evidence in relation to the rent as paid by the Banks was also of uncertain nature or hearsay evidence; and further observed that the report as prepared by PW-2 could not be accepted on its face value. The learned Trial Court then referred to such part of the statement of DW-1 Dinesh Goyal that the plaintiff had proposed increase of rent by 35% and found that both the plaintiff PW-1 Rajendra Kumar Mehta and the defendant's witness DW-1 Dinesh Goyal accepted that with increase of rent by 35%, the lease would have been renewed and, therefore, concluded that 35% increase would satisfy the claim of the plaintiff. The learned Trial Court, thus, arrived at the figure of Rs. 10,042.25 with 35% increase on the last paid rent for fixation of standard rent; but maintained the same as the rent payable even after the proposed deduction of 250 square feet area.
It is noticed that the learned Trial Court while considering the question of fixation of standard rent though referred to some of the irrelevant aspects of the case but totally omitted to consider the testimony of PW-5 Nirmal Kumar who stated having let out nearby premises in the year 2000 at the rent of Rs. 23,000/- per month and produced the document Ex. 27 in that regard that was taken on record after rejecting the objection of the defendants by the order dated 54 12.08.2005. The learned Trial court further omitted to consider the significant aspect of the matter that the plaintiff categorically stated about the defendant Company itself having taken on rent another premises on the same road at a distance of about one furlong that was situated on the first floor at a rent of Rs. 18,000/- per month having lesser area than the area of the suit premises. As noticed, such part of the testimony of the PW-1 has not even been challenged in cross-examination. The defendants' witness made the statement of avoidance on this aspect of the matter but stated that such an office was on the upper floor and alleged that the same was closed in the year 2005.
There had been another relevant fact available on record that the defendant-Company itself in its reply to the application under Section 7 of the Act of 1950 admitted having taken another premises on rent about 300 meters away from the suit premises at a monthly rent of Rs.11,705/-. Although the said premises were stated to be in a modern commercial complex, but the defendant-Company definitely avoided to state all its particulars including the relevant facts about the measurements and about the floor location.
When all the relevant aspects of the matter as available on record are taken into comprehension, this Court is of opinion that the claim of enhancement of rent as made by the 55 plaintiffs cannot be said to be wholly unjust or unreasonable.
True it is that by the letter dated 05.10.2001 Ex. A/3, the plaintiff agreed for five year's extension of the lease with increase of 35% rent but also stated that otherwise the premises could fetch rent more than Rs. 20,000/- per month. The defendant Company could not dare deny having taken premises at a nearby place on rather upper floor of a building at a rent of about Rs. 18,000/- per month. The defendant- Company, when wish to continue as a tenant, cannot avoid its liability to make payment of fair rent of the suit premises.
The suit in question was filed on 28.02.2002. Looking to the last agreed rent at Rs.7,438.75 as settled with effect from 01.06.1996 and looking to the propositions exchanged between the parties, the evidence available on record in relation to the rent in the vicinity and even the rent paid by the defendant-Company itself, and also taking into account the fact that in the suit premises had been an old tenancy continuing from the year 1984, this Court is of opinion that interest of justice shall be served if the standard rent of the premises in question is fixed, in keeping with the principles as available from Section 6 of the Rajasthan Rent Control Act, 2001 as now in force, in the following manner :-
With effect from 01.03.2002 standard rent of the premises be fixed at Rs.12,000/- per month with a provision of 56 increase of the rent at the rate of 5% per annum and with further provision that the amount of increase shall be merged in such rent after ten years; and the amount of rent so modified shall again be liable to be increased at the rate of 5% per annum and so on until subsistence of tenancy. Conclusions:
As a result of the aforesaid:
(a) CFA Nos.524/2006, 549/2006 and 257/2008 are partly allowed;
(b) The decree for eviction on the ground of reasonable and bona fide requirement is reversed and the suit for eviction is dismissed;
(c) The claim for fixation of standard rent is allowed and the decree of the Trial Court in that regard is modified in the manner that rent is fixed at Rs.12,000/- per month w.e.f.
01.03.2002 with a provision of increase of the rent at the rate of 5% per annum and with further provision that the amount of increase shall be merged in such rent after ten years; and the amount of rent so modified shall again be liable to be increased at the rate of 5% per annum and so on until subsistence of tenancy;
(d) Decree for injunction as passed on 03.04.2008 is set aside;
57
(e) Decree for eviction on the ground of reasonable and bona fide requirement having been reversed, the entire exercise taken up by the learned Trial Court for carving out 250 square feet of area is rendered redundant and, therefore, the judgment and decree dated 03.04.2008 are set aside in toto;
(f) CFA No.206/2008 is dismissed as redundant;
(g) In the circumstances of the case, the parties are left to bear their own costs throughout.
(DINESH MAHESHWARI), J.
Mohan/