Rajasthan High Court - Jodhpur
Panmal vs . Jamna Das on 5 January, 2015
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das
Judgment dated 05/01/2015
1/10
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
:: J U D G M E N T ::
S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal S/o Sh. Nathmal Sindhi
Vs.
Jamna Das S/o Sh. Gopal Das Maheshwari
Date of Judgment :::: 05th January, 2015.
PRESENT
HON'BLE Dr. JUSTICE VINEET KOTHARI
REPORTABLE
Appearance:
Mr. Manoj Bhandari, for the appellant/defendant.
Mr. Salil Trivedi on behalf of
Mr. Sajjan Singh, for the respondent/plaintiff.
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BY THE COURT:
1. The present second appeal has been filed by the appellant/defendant/tenant, Panmal S/o Nathmal Sindhi, aggrieved by the judgment and eviction decree dated 05.08.2008 S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 2/10 passed by learned Additional District Judge No.2, Bikaner, in Civil Appeal No.66/2005, whereby the appeal filed by the respondent/plaintiff was allowed while reversing the judgment and decree dated 29.07.2003 passed by learned Civil Judge (Jr. Division), Doongargarh, in Original Suit No.132/1992, dismissing the plaintiff's suit for eviction on the ground of personal bonafide need of the plaintiff/landlord.
2. Briefly stated, the facts of the case are that the plaintiff/respondent filed a suit on 14.07.1992 seeking eviction of the present appellant/tenant on the ground of bonafide need of the suit shop for his son, namely, Suresh Kumar, material alternation in the suit suit without the prior permission of the plaintiff/landlord and recovery of rent from the suit premises i.e. shop in question situated in Ward No.15, Mohalla Mamasar-Ka- Bas, Near Bus Stand, Doongargarh, Bikaner. The suit shop was initially let out to the defendant at a monthly rent of Rs.81/- per month on 01.10.1973 and thereafter the same was increased to Rs.170/-. The suit shop was needed for starting business of son of the plaintiff, who wishes to run the business of selling tea in the suit shop.
3. The appellant/defendant upon receipt of the summons of the said suit submitted his written statement while denying the contents of the the plaint and also denied the S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 3/10 bonafide need of the suit suit for the son of the plaintiff/landlord. The appellant/defendant questioned the bonafide need of the plaintiff/landlord and submitted that the plaintiff's son was doing the business of restaurant. The factum of material alteration was also denied while alleging that the same was got done with the prior permission of the landlord. The appellant also denied that any rent was was lying outstanding. The family of the plaintiff is not a joinly family and all the family members viz. brothers are living separately and so also are doing their business separately.
4. The learned trial court had, however, not accepted the bonafide need of the landlord and dismissed the suit on 29.07.2003 on the ground that now the son (Suresh Kumar) of the landlord had separated from the family, therefore, such bonafide need could not be taken as a ground for eviction. The appellate court, however, reversed the said finding of the learned trial court and granted eviction decree vide the judgment and decree dated 05.08.2008 and being aggrieved by the same, the appellant/defendant, has filed the present second appeal, which was admitted by this Court vide order dated 19.11.2008 and the following substantial question of law was framed:
"That after partition of the property, prior to filing of the suit whether the father who is not the owner of the shop in question and is living S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 4/10 separately, can prosecute the suit under Section 13 (1) (h) of the Act of 1950 for the bona fide need of the son in whose share the suit shop itself is alloted?"
5. Mr. Manoj Bhandari, learned counsel for the appellant/tenant relying upon the judgment of this Court in the case of Ratan Lal Vs. Kanhaiya Lal reported in 1998 (3) RLW Raj. 1435 and in the case of Nand Lal Vs. Subhash Dev reported in 1980 RLW 490 and in the case of Rajinder Dhada Vs. Jagdish Singh reported in 2001 (10) JT 188, submitted the son, for whose necessity the eviction was sought, had separated from the family after partition and, therefore, the bonafide need of the landlord and family member could not be held to be bonafide need nor the son would fall within the definition of landlord or his family members, therefore, the grounds of eviction established u/s 13 1 (h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, hereinafter referred to as 'Act of 1950') could not result into eviction decree against the tenant.
6. On the other hand, Mr. Salil Trivedi, learned counsel appearing on behalf of respondent/plaintiff (landlord) relied upon the decision of Hon'ble Supreme court in the case of A.K. Jain Vs. Prem Kapoor reported in 2008 AIR SCW 5390 and decision S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 5/10 of this Court in the case of Ajay Type Writers (M/s) Vs. Dhanpat Raj reported in 2007 (2) RLW 1483, and in the case of Prakashmal @ Prakash Chanda Vs. LR's of Lt. Rehmat (Smt.) reported in 2012 (3) DNJ (Raj.)1238 and submitted that although there is no restrictive definition of family given in the Rent Control Act of 1950, and the factum of partition does not change the character of family and the status of a member of the family, for whose need eviction decree has been given by the first appellate court on the basis of relevant findings of facts in this regard.
7. Having heard the learned counsels for the parties and upon perusal of the judgment and decree passed by both the courts below, this Court is of the considered opinion that the present second appeal of appellant/defendant/tenant deserves to be dismissed and the eviction decree given by the learned first appellate court deserves to be upheld. The reasons are as follows.
8. Firstly, there is no definition of word 'family' as such given in the Rent Control Act of 1950 and, therefore, there cannot be any dispute about the son of the landlord being a member of his family. Section 13 (1) (h) of the Rent Control Act of 1950 clearly provides for eviction on the ground of reasonable and bonafide necessity of the landlord or his family. The factum S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 6/10 of partition does not change the relationship or character of the family and the son even after partition continues to be a member of family. It is well settled that bonafide and reasonable need existing on the date of filing of suit has to be examined by the courts and the learned trial court in the present case has refused the eviction decree only on the sole ground of partition having taken place between the father and the son but the said decree was reversed by the lower appellate court.
9. The judgment relied upon by the learned counsel for the appellant/defendant/tenant in the case of Ratan Lal (supra) is on different footings, wherein the learned Single Judge of this Court held that after partition and the possession of the suit premises delivered to his son, the plaintiff/father forfeited his right to continue the suit after making partition of his property and allotting the suit shop to his son. This was a case of automatic attornment in favour of the son, where the court found that suit could not be maintained by the father, but here in the present case, there is no dispute on the fact that the suit shop continued to be in the ownership and legal possession with the father himself and it has not been given to the son upon partition nor loccus standi of father is in question. The suit shop continued to be in the possession of the defendant/tenant even after such partition between the father and son, therefore, neither the right S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 7/10 of the father to continue the suit is questionable nor the bonafide and reasonable necessity established before the courts below, can be said to have been wiped out with the said fact of partition. More particularly, when the law does not envisage any restrictive definition of word "family", the said fact of partition does not demolish the case of bonafide and reasonable necessity of the landlord or his family by the said subsequent development taking place during the long course of litigation between the parties.
10. The findings of bonafide and reasonable necessity of the landlord are the findings of fact binding on this Court and only on the substantial question of law, which was framed by this Court while admitting the present second appeal, this Court is of the considered opinion that the eviction decree cannot be refused only on the ground of there being a partition in the joint family property of the landlord, father and his son.
11. On the other hand, this Court in the case of Prakashmal @ Prakash Chandra (supra) relied upon by the learned counsel for the plaintiff/respondent, has given a extended meaning of word "family" even in Muslim Law and has held that the plaintiff (landlady) Mst. Rehmat could claim eviction of the suit shop for the bonafide need of her grandson, namely, Mohd. Raffique as her family member. The purpose and giving such extended meaning of the word "family" is not to defeat the S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 8/10 fruits of the eviction decree granted in favour of the landlord, who had sought eviction on the ground of bonafide and reasonable necessity by taking technical or rather hyper technical view as has been sought to be canvassed by the learned counsel for the appellant/tenant.
12. As already stated above, the law in this regard is well settled and no longer res-integra that bonafide need on the date of institution fo the suit has to be seen and if established, which in the present case has been established, the eviction can be ordered. It is also well settled in a catena of judgments that findings of bonafide need of the landlord or his/his family members are findings of fact and unless held to be perverse, do not give rise to any substantial question fo law requiring consideration under Section 100 of CPC. Therefore, the substantial question of law framed above is required to be answered in favour of plaintiff/landlord and the findings of bonafide need of son of the plaintiff/landlord deserves to be upheld. Thus, the substantial question fo law framed above is answered in favour of plaintiff that the plaintiff/landlord could claim the eviction of the suit shop for the bonafide need of his son as his family member and such need is not wiped out even after the partition and that bonafide need having been established, the eviction decree granted by the learned lower S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 9/10 appellate court deserves to be upheld.
13. Consequently, the present appeal of appellant
-defendant - tenant is found to be devoid of merit and the same is accordingly dismissed. No order as to costs.
14. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit shop to the respondent-plaintiff within a period of one year from today i.e. on or before 31.12.2015 and shall pay mesne profit @ Rs.4000/- per month commencing from February, 2015 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/plaintiff also and in case there is any default in payment of mesne profit, the period of one year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the respondent/plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop 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 if it is so done, the same would be treated as void. The appellant- defendant shall furnish a written undertaking incorporating the S.B. CIVIL SECOND APPEAL No.277/2008.
Panmal Vs. Jamna Das Judgment dated 05/01/2015 10/10 aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-plaintiff within a period of one year from today i.e. on or before 31.12.2015 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.
DJ/-
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