Rajasthan High Court - Jodhpur
Mohammad Farukh & Anr vs Gulam Rasool on 1 February, 2013
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
&
S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013
1/19
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
(1) S.B. Civil Writ Petition No.1604/2012 Smt. Raisa Vs. Gulam Rasul & Anr.
& (2) S.B. Civil Writ Petition No.2743/2011 Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
DATE OF ORDER ::: 01st February, 2013
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
Mr. Moti Singh, for the petitioner (In CWP No.1604/2012) None present for the petitioners/tenants (In CWP No.2743/2011) Mr. O.P. Mehta, for the respondent-landlord.
--
1. This order would dispose of the two writ petitions filed by the petitioner, Smt. Raisa D/o Mohammad Ismail (CW No.1604/12) and the petitioners, namely, Mohammad Farukh and Mohammad Harun both sons of late Mohammad Ismail (CW No.2743/11) against the landlord, Gulam Rasul, against the concurrent decree of eviction on the ground of bonafide need of the landord.
2. The petitioners, Smt. Raisa D/o Mohammad Ismail, Mohammad Farukh and Mohammad Harun, both sons of Mohammad Ismail, are the real sister and brothers, against whom the plaintiff- landlord, namely, Gulam Rasul filed Eviction Petition No.116/2008 before the learned Rent Tribunal, Jodhpur, which came to be allowed and eviction decree was passed in favour of respondent-landlord, S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 2/19 inter-alia, on the ground of bonafide necessity of the landlord on 21.05.2009. While passing the eviction decree on 21.05.2009, learned Rent Tribunal held that the defendant No.3, Smt. Raisa D/o Mohammad Ismail, sister of these two brothers, Mohammad Farukh and Mohammad Harun, was not the tenant in the suit premises a small residential house, situated at "Chhipa-Basti", Khanda-Falsa, in the street near Rajasthan Amplifiers, Jodhpur; and therefore, while dismissing the eviction petition qua her, decreed the suit and eviction decree was granted against the two brothers i.e. defendants, Mohammad Farukh and Mohammad Harun on 21.05.2009.
3. An appeal against the said eviction decree was, therefore, preferred by these two brothers under Section 19 of the Rajasthan Rent Control Act, 2001, (for short, hereinafter referred to as 'Act of 2001') which also came to be dismissed by the learned Appellate Rent Tribunal, Jodhpur on 03.03.2011. Since the eviction decree was passed passed by the Rent Tribunal exparte, an application under Order 9 Rule 13 CPC for setting aside the exparte proceedings was also filed by these two brothers but that application too was dismissed by the learned Rent Tribunal vide order dated 01.02.2011, and thus both the eviction decree dated 21.05.2009 as well as the order dated 01.02.2011, were challenged before the learned Appellate Rent Tribunal, which appeal came to be dismissed vide the order dated 03.03.2011 of the Appellate Rent Tribunal.
4. The execution proceedings were filed by the landlord being Execution Case No.32/09- Gulam Rasul Vs. Mohammad S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 3/19 Farukh & Anr, in which the Smt. Raisa (Petitioner in CW No.1604/2012) filed objections, and the said objections also came to be rejected by the learned Executing Court by the impugned order dated 01.02.2012 (Annex.4 in CW No.1604/12). Being aggrieved by the said order dated 01.02.2012, Smt. Raisa has filed the present writ petition before this Court being SBCWP No.1604/12 on 24.02.2012, in which a coordinate bench of this Court vide order dated 28.02.2012 while issuing notices to the respondents granted interim relief in her favour; whereas the two brothers, namely, Mohammad Farukh and Mohammad Harun filed the connected writ petition being SBCWP No.2743/11, aggrieved by concurrent eviction decree dated 21.05.2009, order dated 01.02.2011 rejecting their application under Order 9 Rule 13 CPC, and the Appellate Rent Tribunal's order dated 03.03.2011.
5. It also appears from the record that in Execution Case No.32/2009 on 25.02.2012, the Court Commissioner, Mr. Manoj Gehlot, Advocate after some resistance by the judgment-debtors (Mohammad Farukh and Mohammad Harun) and Objector (Smt. Raisa), the possession of the suit premises was handed over to the landlord on 25.02.2012 with the police aid. Thereafter the petitioner, Smt. Raisa forcibly re-entered into the suit premises and, therefore, in CW No.1604/12, the landlord-respondent being a law abiding person, filed an Interlocutory Application (IA No.3312/12) on 12.03.2012 seeking repossession of the suit premises, to which a detailed reply and rejoinder have been filed by the parties and an FIR was also filed S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 4/19 by the landlord being FIR No.28 dated 01.03.2012 in Police Station- Khanda-Falsa, Jodhpur.
6. Mr. Moti Singh, learned counsel for the petitioner, Smt. Raisa, vehemently submitted that since the Rent Tribunal while passing the eviction decree dated 21.05.2009, had clearly held that the petitioner, Smt. Raisa was not the tenant in the suit property and, therefore, the eviction petition was dismissed against her and only exparte decree was passed against her brothers, namely, Mohammad Farukh and Mohammad Harun, therefore, she could not be evicted from the suit premises as the decree did not bind her. Learned counsel for the petitioner-Smt. Raisa, however, denied the factum of taking forcible the possession of the suit premises after the vacant possession of the same was handed over to the landlord. He also submitted that the application (IA No.3312/12) filed by the landlord for repossession, as well as the FIR No.28/2012 dated 01.03.2012, were misconceived and her objections deserved to be allowed by the learned Rent Tribunal, but the same have been wrongly dismissed by the impugned order dated 01.02.2012 in Executive Case No.32/2009, and therefore, the writ petition deserves to be allowed.
7. So far as the connected writ petition being SBCWP No.2743/11- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors. is concerned, no counsel appeared on behalf of petitioners, though names of Mr. P.M. Vyas, Mr., N.K. Jain, Mr. Girish Joshi, and Mr. Ashok Chhangani, have been shown in the cause list and on earlier S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 5/19 occasions they have put in appearance on behalf of writ-petitioners viz. Mohammad Farukh and Mohammad Harun.
8. On the other hand, Mr. O.P. Mehta, learned counsel for the respondent/landlord vehemently opposed both these writ petitions and submitted that it is a glaring example of misuse and abuse of the process of law by the petitioners and despite a legal eviction decree concurrently granted by the two courts below viz. Rent Tribunal and Appellate Rent Tribunal in favour of plaintiff-landlord, and even application for setting aside the exparte proceedings/decree having been rejected by the learned Rent Tribunal and the possession having been once delivered to the landlord on 25.02.2012, the tenants in collusion with each other, the two brothers and one sister, have audacity to flout the process of law; and despite the vacant possession handed over with police aid on 25.02.2012, they have re- entered into the suit property forcibly by breaking open the locks and removing the articles/furniture of the landlord, for which an FIR No.28/12 was lodged by the landlord on 01.03.2012 in Police Station- Khanda-Falsa and the stand taken by the petitioner, Smt. Raisa,, is nothing but the tissues of lies. He, therefore, submitted by the both the writ petitions deserve to be dismissed with exemplary costs and the application (IA No.3312/12) for repossession of the suit premises to be given to the landlord, deserves to be allowed in favour landlord- Gulam Rasul, who is a law abiding person; and therefore, he has not taken the law in his own hands and against the forcible repossession, the landlord has filed the present application (IA No.3312/12) in the S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 6/19 writ petition filed by the petitioner Smt. Raisa and with a detailed rejoinder to the reply filed on behalf of said objector, producing all the relevant documents. He also submitted that the objections of petitioner, Smt. Raisa were rightly rejected by the learned Tribunal in Execution Application No.32/09 vide impugned order dated 01.02.2012 as she is also equally bound by the decree even though she was not treated as tenant therein but she was party in the suit and she never filed any appeal against the eviction decree; and she cannot raise objection now against the eviction decree granted in favour of landlord, as the appeal filed by the judgment-debtors, the two brothers, has also been dismissed on 03.03.2011.
9. Mr. O.P. Mehta, brought to the notice of the Court, the affidavit dated 09.10.2009 filed by Smt. Raisa, which was filed by her in the proceedings under Order 9 Rule 13 CPC. In the said affidavit, the she has given her address of residence of a different place and she did not even regularly reside in the suit premises. According to said affidavit dated 09.10.2009 (Annex.9 in the CW No.1604/12), the petitioner, Smt. Raisa has given her address as "Resident of House of Advocate Riyaz Mohd., Mohalla Laykan, Jodhpur", which is about two kilometers away from the disputed suit premises, situated at Khanda-Falsa; and in the said affidavit she has also stated that being resident of Mohalla Laykan, she is presently living ("Hall-Mukam") at Khanda-Falsa. In the affidavit, the petitioner, Smt. Raisa has also averred that she never received the court-notice dated 03.06.2008 or even before or thereafter, and she never refused to accept the notice S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 7/19 and though she had been living separately from her brothers for last two and half years, but before some time on the occasion of "Eid", they reconciled and, therefore, she was living with them now.
10. Mr. O.P. Mehta, learned counsel for the respondent- landlord, has also produced the copy of certain rent-receipts issued in favour of petitioner, Smt. Raisa by her landlord (Mohd. Riyaz, Advocate) dated 01.01.2008, 15.04.2008, 05.04.2009 and 05.09.2009 of Rs.3000/- as rent. He, therefore, submitted that the objector, Smt. Raisa, deserves to be prosecuted as she has taken a false stand before the court even though she is living separately from her brothers at a different place, she has pleaded before this Court that she is occupying the suit premises and has objected to the execution of the eviction decree. He also brought to the notice of the Court that a notice was served on the tenants dated 30.03.2008 (Annex.R/6) by Shri O.P. Mehta, Advocate himself, on which a specific note for the present petitioner, Smt. Raisa was made to the effect that copy of said notice addressed to the tenants, brothers, Mohammad Farukh and Mohammad Harun, was being sent to her also though she is not a tenant in the suit premises but if she is residing in the suit premises, she should pay the rent of the same due to the landlord. The petitioner, Smt. Raisa, however, neither sent any response to the said notice nor paid any rent to the landlord, Gulam Rasul, which proves that she was not living in the suit premises and she was not the tenant of the suit premises upon death of her father late Mohammad Ismail. Mr. O.P. Mehta, therefore, submitted that S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 8/19 both the writ petitions deserve to be dismissed and all the three petitioners or any body else now occupying the suit premises on their behalf deserve to be prosecuted as they have not only taken law in their hand but have subverted the process of law by forcibly repossessing the suit premises, once the possession of the same was handed over to the landlord through Court Commissioner, Mr. Manoj Gehlot, Advocate on 25.02.2012 with the police aid.
11. Mr. O.P. Mehta, also submitted that the findings of facts cannot be said to be perverse at all and same do not require any interference by this Court in a limited and narrow scope in supervisory jurisdiction under Article 227 of the Constitution of India and the concurrent decree based on the findings of facts of bonafide need of the landlord, does not require any interference in the writ petition filed by two brothers, namely, CW No.2743/11 as the findings of facts of bonafide need of the landlord are binding on this Court. He also relied upon a recent verdict of Hon'ble Supreme Court decision rendered in the case of Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil reported in 2010 AIR SCW 6387 and submitted that writ petition is not maintainable. He also relied upon following case laws:
1. Ahmed Farooq & Ors. Vs. Harish Chandra & Ors.
reported in 2012 (3) DNJ (Raj.) 1640.
2. Chandra Prakash Vs. Hasti Mal reported in 2012 (3) DNJ (Raj.) 1267.
3. Ajaib Singh & Ors. Vs. Delhi Cloth & General Mills Co. Ltd., New Delhi reported in 2012 (3) DNJ (Raj.) S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 9/19 1281.
4. Jamnadas Vs. Rajendra Kumar reported in 1989 (1) RLW 119.
12. I have heard learned counsels for the parties at length and perused the impugned orders, material on record and judgments cited at bar.
13. This Court is of the considered opinion that both these writ petitions deserve to be dismissed with costs looking to the conduct of the petitioners specially with the concurrent decrees of the Rent Tribunals having been executed after rejection of their application for setting aside the exparte decree by the Rent Tribunal under Order 9 Ruile 13 CPC; and also with the dismissal of appeal of the two brothers, the objector sister under whose cover, the defendants-tenants, appear to have repossessed the suit premises forcibly once the decree was executed and the objector, the married sister, Smt. Raisa, even living separately at a different place, falsely claimed that she was living in the suit premises and has filed this writ petition on wholly untenable grounds. The rejection of eviction petition against her was based on the ground that she was not living in the suit premises and, therefore, she could not be treated as 'tenant' in the suit premises; and thus the decree was passed against the two brothers, namely, Mohammad Farukh and Mohammad Harun, who were really occuping the said suit premises on the ground of bonafide need of the respondent/landlord, Gulam Rasul.
14. The objections filed by the petitioner, Smt. Raisa, were S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 10/19 wholly misconceived and preposterous and, therefore, were rightly rejected by the learned Rent Tribunal on 01.02.2012 in Execution Case No.32/2009. Taking of law in their own hand, they repossessed the suit premises forcibly and that is a grave indicator that the petitioners have scant regard for the due process of law and even though the possession by the Court Commissioner, Mr. Manoj Gehlot, had to be given to the landlord on 25.02.2012 with police aid, but the petitioners showing the audacity and little respect for the Court process forcibly repossessed the suit premises for which the landlord had to file an FIR in Police Station- Khanda-Falsa on 01.03.2012.
15. The Hon'ble Supreme Court in the case of Shalini Shyam Shetty (supra) has held as under: -
"Writ petition in dispute between landlord and tenant where only respondent is landlord is not maintainable. Supreme Court deprecated the practice of entertaining petition under Art. 227 over disputes relating to partition suits, matters relating to execution of decree, disputes between landlord and tenant, in cases of money decree and other case where disputed questions of property are involved.
A writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State of instrumentalities of a State within the meaning of Art.12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Art.226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform."
16. This Court in the case of Ahmed Farooq & Ors. (supra), has held as under: -
S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 11/19 "20. In view of settled legal position, it is for the landlord to choose the premises which would suit his requirement and it hardly lies with the tenant to dictate the terms to landlord and suggest the landlord to satisfy his business need with available premises, which may or may not belong to the person for whose need the eviction is sought. The trial court in the present case at page 10 had clearly found that this first floor is not at all suitable for setting up the crockery business for appellant no.2.
21. However, the learned first appellate court not emphasizing much about the said first floor space, reversed the eviction decree on the ground that a triangular shop in Abdulla Building `B' has become available to the father of the appellant no.2 -
Abdulla Farooq, which fact was subsequently brought on record by way of application under Order 41 Rule 27 CPC filed by the defendant tenant and since the said shop no.1 had already became available in the year 1990, on which point learned counsel for the plaintiff landlord differred and submitted that vacant position of the said shop was only received after execution proceedings only in 1993 and after his retirement as TTE from the Railways in 1992 the plaintiff landlord Ahmed Farooq himself wanted to set up his own travel agency business in the name of M/s Jodhpur Travels, but the learned first appellate court held on the basis of evidence of R.W.4 Kailash Chand Jain, employee of M/s Jodhpur Travels that since on the receipt book/bill book "Shri Mahaveerai Namah" was handwritten on some carbon copies of Bills, vide Ex.D, R.W.1/1, which would indicate that business in the said premises was carried on by a person belonging to Jain community as against the Muslim community to which the plaintiff landlord belonged in the present case, therefore, the appellate court wrongly concluded that the appellant no.1 himself was not carrying business in the name and style of M/s Jodhpur Travels and in fact the said shop no.1 after eviction by Danmal was let out again to one Mohan Lal Jain. This premise taken by the learned first appellate court is wholly erroneous in the opinion of this Court. Merely because in the cross examination of R.W.4 - Kailash Jain has stated that there was handwritten inscription "Shri Mahaveerai Namah" on Ex.DR. W.1/1 - on one & two leafs of the Bill Book, even though name of Ahmed Farooq with Jodhpur Travels is printed & this inscription was not printed at all, without clearly stating that Ahmed Farooq has no connection with M/s. Jodhpur Travels, as against the S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 12/19 documentary evidence led by appellant no.1 - Ahmed Farooq for registration of M/s Jodhpur Travels with the Government Authorities like Shop & Establishment Act etc., the learned first appellate court could not have concluded that appellant-plaintiff no.1 was not doing his own business in the said shop no.1, which had become available in the year 1990/1993. Even assuming for argument sake that appellant plaintiff - Ahmed Farooq instead of doing his own business of Travel Agency had entered into any business arrangement with one Mohan Lal Jain, though such an inference is not called for in the present case, even then it does not lie with the defendant tenant to contend that such business was not belonging to appellant no.1 himself and said shop no.1 may be deemed to be available for satisfying the need of setting up the crockery business for appellant no.2 - Abdulla Farooq, son of Ahmed Farook, once landlord says that such shop is not suitable for setting up his crockery business. The learned first appellate court in para 33 of its judgment itself has ultimately not relied upon the statement of R.W.4 - Kailash Chand Jain finding him to be making contradictory statements.
22. As aforesaid, it is for the landlord to adjudge & satisfy his need and the said shop no.1 which is triangular in shape and of awkward measurements, as given above, cannot be said to be appropriate and suitable shop available to the landlord as against the suit shop measuring 15'x20', which is in possession of the defendant tenant situated in same area & road on the opposite side.
23. Therefore, the learned first appellate court has apparently fallen in error in substituting its own wisdom and decision for that of the landlord, who alone is the best judge in this regard as held in various decisions discussed above and the learned trial court was justified in decreeing the suit upon establishing of the bonafide and reasonable necessity of the landlord.
24. Accordingly, the present second appeal of the appellant landlords deserves to be allowed and the same is hereby allowed & answering the substantial questions of law framed as above in favour of the plaintiff landlords & against the respondent-defendant- tenants and setting aside the appellate court's judgment and decree dated 3/12/1995, the eviction decree of the learned trial court dated 28/3/1987 is restored. The second appeal of plaintiff is allowed with no order as to costs."
17. This Court in the case of Chandra Prakash (supra) has S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 13/19 held as under: -
"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 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 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 S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 14/19
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 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 S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 15/19 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-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.
16. Consequently, the present second appeal of the defendant - tenant deserves to be dismissed and the same is accordingly dismissed. No order as to S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 16/19 costs."
18. This Court in the case of Ajaib Singh & Ors. (supra) has held as under: -
"14. A bare perusal of the judgments cited by the learned counsel for the respondent-tenant indicates that the facts of those judgments are absolutely distinguishable from the facts of the present case. In one case, tin shed was installed by the tenant outside the rented premises, and such temporary tin shed could not be compared with the nature of the material alterations done in the present case. In the present case, the tenant has made material alterations in the suit premises/shop without permission or consent of the landlord, referred to supra. Similarly, in Rajasthan High Court decision in the case of Smt. Supyar Bai (supra), the nature of construction raised was absolutely of temporary nature, which could be removed at any time, however, such facts are not obtaining in the case in hand. Therefore, both these judgments cited and relied upon by the learned counsel for the respondent-tenant are of no avail to him.
15. On an overall reading of the reasons given by the learned lower appellate court, this Court is satisfied that the findings returned the learned lower appellate court in the impugned judgment and decree dated 14.11.1990 are perverse and not sustainable. The suit seeking eviction deserves to be decreed on both the grounds as aforesaid.
16. Accordingly, the present second appeal filed by the appellants-plaintiffs is allowed and substantial questions of law, framed above, are answered in favour of plaintiffs-landlord and against the respondent- defendant-tenant. No costs. The present second appeal itself has been allowed, therefore, application filed by the respondent-tenant during the course of arguments, being IA No.11336/2012 is rejected."
19. A coordinate bench of this Court in the case of Jamnadas (supra) has held as under: -
"15. In the aforesaid observations the Addl. District Judge, while emphasising that there must be an element of need as opposed to mere which or desire has, observed that it must be "backed by extreme want or destitution." Again he has gone to observe that "facts S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 17/19 should be proved from which irresistible inference can be drawn that plaintiff has a pressing necessity." In my view, the Addl. District Judge was not right in placing the qualifications, namely, "extreme want or destitution" and "pressing necessity" while dealing with the reasonableness of the need of the landlord. The said qualifications do not appear to be justified from the decisions of the Supreme Court and this Court. It is, therefore, appears that in judging the reasonableness of the need of the appellant, the Addl. District Judge has applied a more stringent standard than that is applicable and the findings that have been recorded by the Addl. District Judge by applying this standard cannot be held to be conclusive in second appeal. It is, therefore, necessary to examine as to whether on the basis of the tests which are applicable, the appellant has established that he requires the suit premises reasonable and bonafide for his personal use, namely, for the purpose of carrying on his business in electrical goods.
19. As regards better suitability of Tripolia Bazar for the purpose of carrying on the business in electrical goods, it may be stated that from the evidence it appears that the appellant is carrying on wholesale and retail business and there are shops dealing in electrical goods both in Johari Bazar as well as in Tripolia Bazar. It has come in evidence that in Tripolia Bazar two other dealers of Philips Company, namely, Gangabux Ratan Lal and Radha Ballabh and sons, have their business and in addition there are other shops of electrical goods which shows that Tripolia Bazar is a market for electrical goods. The appellant wants to shift his business to Tripolia Bazar where other dealers of the goods of Philips Co., have their shops. The courts below have held that Johari Bazar is equally suitable for carrying on business in electrical goods because there are a number of shops of electrical goods in Johari Bazar and the side lanes and that the appellant had maximum sale of the products of Philips Co. In the year 1975. In my view, the fact that the appellant was able to have maximum sale of the products of Philips Co. at his shop at Johari Bazar does not mean that the need of the appellant to shift his business to Tripolia Bazar, where the other two dealers of goods of Philips Co. are having their shops, is not genuine. The appellant feels that he would be in a position to further increase his sales if he shifts his business to Tripolia Bazar where the other two dealers of Philips goods are also having their shops. It cannot be said that the appellant is not justified in S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 18/19 proceeding on that basis."
20. It is well settled that jurisdiction under Article 227 of the Constitution of India, specially in the special laws like the Rent Control Act, has to be very narrow and unless glaring perversity is shown in the impugned orders of the Rent Tribunals, unless the Rent Tribunals have grossly erred or have given the findings of facts are bereft of any evidence in this regard. There is ample evidence on record that the petitioner, Smt. Raisa has taken false stand before this Court and, therefore, the present writ petition filed by her, deserves to be dismissed with costs.
21. At the same time, the writ petition (CW No.2743/11) filed by the judgment-debtors/petitioners/tenants, Mohammad Farukh and Mohammad Harun under Article 227 of the Constitution of India, also deserves to be dismissed in view of aforesaid judgments cited at bar.
22. Consequently, both these writ petitions are dismissed with costs of Rs.5000/- for each of the petitioners, which will be paid to the landlord/respondent within three months from today. The eviction decree granted by the learned Rent Tribunal, Jodhpur dated 21.05.2009 and the order dated 01.02.2011 rejecting their application under Order 9 Rule 13CPC as well as Appellate Rent Tribunal's order dated 03.03.2011 dismissing the tenants appeal are hereby upheld. The application (IA No.3312/12) filed by the respondent/landlord in CW No.1604/12 seeking repossession of the suit premises to him, is hereby allowed. The petitioners are directed to handover the the vacant and peaceful possession of the suit premises to the landlord S.B. Civil Writ Petition No.1604/2012- Smt. Raisa Vs. Gulam Rasul & Anr.
& S.B. Civil Writ Petition No.2743/2011- Mohammad Farukh & Anr. Vs. Gulam Rasul & Ors.
Order dt: 01/02/2013 19/19 forthwith. If the same is not handed over voluntarily by them within fifteen days from today, the Rent Tribunal executing the decree once again may handover the possession to the landlord to forthwith, with police aid, if necessary. If the costs are not paid or possession is not handed over back to the landlord or if the process of handing over the vacant and peaceful possession to the landlord is resisted or obstructed by any person(s), the police will immediately arrest such person and register a case against them and the respondent-landlord shall be free to move this Court by contempt petition.
(DR. VINEET KOTHARI), J.
DJ/-
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