Rajasthan High Court - Jodhpur
Chanda Prakash vs Hasti Mal on 3 August, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL
: JUDGMENT DTD.3.8.2012
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. CIVIL SECOND APPEAL NO.178//2010
Chandra Prakash
versus
Shri Hasti Mal
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.Ashok Chhangani, for the appellant - tenant.
Mr.Kaushal Sharma, for the respondent - landlord.
DATE OF JUDGMENT : 3rd August, 2012
BY THE COURT (ORAL)
1. This second appeal has been filed by the appellant - tenant Chandra Prakash being aggrieved by the judgment and decree dtd.25.9.2010 passed by the learned Additional Dist. Judge (Fast Track), Rajsamand in Civil Appeal No.8/2009 - Chandra Prakash V/s Hastimal whereby the learned lower appellate Court dismissed the appeal of the defendant - tenant Chandra Prakash and affirmed the judgment and decree dtd.23.2.2007 passed by the learned Civil Judge (Jr. Division), Rajsamand in civil Suit No.20/1999 - Hasti Mal V/s Chandra Prakash whereby the learned trial Court decreed the suit of the plaintiff Hasti Mal for eviction on the ground of bonafide necessity of the plaintiff landlord.
SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 2/10
2. By concurrent decree of eviction, the learned courts below had decreed the suit for eviction filed by the plaintiff - respondent in respect of suit shop situated at Rajnagar, Dist. Rajsamand in which the defendant - tenant is carrying on the business of cloth shop. The need claimed by the plaintiff Hastimal for his son Sanjay was to open a cloth business only by converting the shop into a proper showroom for which the plaintiff claimed that they have sufficient financial means to establish that cloth show-room.
3. Both the courts below have found that the the plaintiff - respondent landlord had bonafide need for the suit shop in question and therefore, directed eviction under Section 13(h) of the Rajasthan Rent Control Act, 1950.
4. The learned counsel for the appellant- defendant - tenant Mr. Ashok Chhangani relying upon the following judgments submitted that the plaintiff landlord did not have bonafide need inasmuch as son of the plaintiff was an income tax payer and in his own statement, he has stated before the Court below that he was doing business with his father who owns 3 (three) Gangsaws marble cutting machines and had other properties also. Therefore, he submitted that such person at this level would not be expected to open a cloth show-room in the disputed premises and therefore, the courts SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 3/10 below have erred in believing that the plaintiff - respondent had bonafide need of the suit premises in question. He relied upon the following judgments :
i) Dinesh Kumar V/s Yusuf Ali - AIR 2010 SC 2679
ii) Bhagirath V/s Ram Prasad reported in 1987 RLW 555
5. In the case of Dinesh Kumar (supra), the Hon'ble Supreme Court in para 25 has held as under:
"The landlord is the best Judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent."
6. In the case of Bhagirath (supra), this Court in para 12 has held as under
"The plaintiff has already been carrying on his business of transportation in addition to money lending and cultivation of land, whereas the tenant has got no other alternative accommodation available to him where he could shift his business. Merely because the defendant has not been able to prove by evidence that the plaintiff had filed the suit for oblique motive like increase in rent, the case of the plaintiff SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 4/10 cannot be held to be proved for his bonafide need. Mere desire of the landlord is not sufficient. But the court has to examine objectively."
7. On the side opposite, the learned counsel for the respondent Mr. Kaushal Sharma supported the impugned judgments and submitted that no substantial question of law arises in the present second appeal. He also refuted the contention of learned counsel for the appellant and urged that being an income tax payer does not mean that Sanjay would not open cloth showroom, nor he could be expected to remain unemployed till eviction of the tenant.
8. Having heard the learned counsel for the parties and upon perusal the record of the case, this Court is of the considered opinion that the present second appeal filed by the defendant - tenant has no force and no substantial question of law arises in the present second appeal. The finding of bonafide need of the landlord is a finding of fact.
9. Normally, evidence on record is not re-appreciated in the second appeal under Section 100 C.P.C. which cannot be made a third round of trial in such rent control and eviction matters. Unless the findings of the courts below are shown to be ex-facie perverse and palpably erroneous, normally such findings of finds do not require SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 5/10 any interference by this Court under Section 100 C.P.C. It has been well settled by umpteen number of judgments of this Court as well as Hon'ble Supreme Court, some of which are referred below that the tenant cannot dictate the terms as to how the landlord should adjust his need and whether he should do particular business in the particular manner or at a particular place or not.
10. The landlord is the best judge of his need in this regard. The contention of the learned counsel for the appellant - tenant that since the son of the plaintiff, namely, Sanjay is also an income tax payee and belongs to a rich family and is not expected to do cloth business, is not at all acceptable. It is for the landlord and his son to decide as to what business they are going to set up in the disputed premises. The defendant himself has been admittedly doing the cloth business in that shop and if by renovating the same and converting into a proper show-room, the son of the plaintiff respondent wants to open cloth showroom, there is no lack of bonafides or reasons to disbelieve such a contention of the plaintiff. The findings regarding bonafide need of the landlord are findings of facts and unless they are palpably wrong and perverse, they do not require any interference by this Court in the second appeal.
11. The tenant is not the best judge of the need of the landlord, but on the other hand, the plaintiff landlord himself is the SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 6/10 best judge of his business need and tenant cannot dictate terms in this regard. In this regard, following judgments may be referred to:
i) 2011(3) DNJ (Raj.) 1217 - Denzil Nagrath V/s LRs.
of Balwant Singh
ii) SB CSA NO.132/2009 - LRs. of Prakash V/s Poornima decided on 11.5.2011.
iii)SBCSA No.174/2006 - Abdul Salam V/s Arvind Kumar decided on 17.1.2009
iv)SBCSA No.159/2005 - Raj Kumar V/s Shevi Bai decided on 22.1.2009 reported in 2009 (3) RLW 2663.
v) SBCSA No.203/2010 - Om Prakash Bhati V/s LRs. of Har Kanwar decided on 11.8.2011.
12. This Court in the case of LR's of Prakash Vs. Poornima (SBCSA No.132/2009, decided on 11.05.2011) also emphasized that landlord was the best judge of his needs in the following terms:
"5. Learned counsel for the respondent-plaintiffs, Mr. S.N. Pungalia strongly opposed these submissions and urged that no substantial question of law arises in the present second appeal and the finding of facts returned by the courts below are based on cogent and relevant evidence and the second appeal deserves to be dismissed as the bonafide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon'ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bonafide need for SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 7/10 his business place and from the facts found by the courts below it was clear that the very source of livelihood of plaintiffs was the STD PCO Booth, which is presently run under the staircase and they need bigger premises for carrying out this business.
6. Having heard the learned counsels and upon perusal of the impugned orders passed by learned courts below, this Court is of the opinion that no substantial question of law arises for determination by this Court and the present second appeal is liable to be dismissed and same is accordingly dismissed."
13. This Court in the case of Denzil Najrath Vs. LR's of Balwant Singh & Ors. reported in 2011 (3) DNJ (Raj.) 1217, in which this Court held in para 6 as under: -
"Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bonafide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff's family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross-
SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 8/10 examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bonafide need of the landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit."
14. The judgments relied upon by the learned counsel for the appellant - defendant are distinguishable on facts and therefore, are of no avail to the appellants.
15. In the present case, this Court is fully satisfied that on the basis of pleadings and statements, which were read before this Court also, the courts below were perfectly justified in arriving at the findings of bonafide and reasonableness of the need of plaintiff for setting up cloth business of his son Sanjay.
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16. Consequently, the present second appeal of the defendant
- tenant deserves to be dismissed and the same is accordingly dismissed. No order as to costs.
17. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit property viz. shop in question to the respondent-plaintiff within a period of six months from today i.e. on or before 31st January, 2013 and shall pay mesne profit @ Rs.3,000/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent also and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop SBCSA NO.178/2010-CHANDRA PRAKASH V/S HASTI MAL : JUDGMENT DTD.3.8.2012 10/10 is not handed over to the respondent-landlord within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.
(Dr.VINEET KOTHARI)J. Ss/-
item No.6