Abdul Rehman and Others vs Harish Kumar and Others

Dr. Vineet Kothari, J.—Heard on application (IA No. 1136/15) filed by the respondents/plaintiffs for early hearing of the appeal.

Having heard the learned counsel for the respondents/plaintiffs, the application (IA No. 1136/15) is allowed and appeal taken up for final hearing.

The appellant/defendant/tenant, Abdul Rehman S/o. Rahim Bux, who is now represented through his legal heirs, and who lost the legal battle before the two courts below concurrently, has filed this second appeal u/s. 100 of CPC, 1908, assailing the judgment and decree dated 27.05.2003 passed by learned Addl. District Judge No. 2, Bhilwara, in Civil Appeal No. 13/2001- Abdul Rehman v. Harish Kumar, whereby the first appeal filed by the appellant/defendant was dismissed affirming the judgment and eviction decree dated 24.03.2001 passed by learned Addl. Civil Judge (Jr. Division) No. 2, Bhilwara in Civil Original Suit No. 02/2000 (328/74)- Harish Kumar v. Abdul Rehman, whereby the suit filed by the plaintiff- Harish Kumar, for eviction of the suit shop, situated at Gulmandi, Bhilwara, was decreed.

The relevant findings of the learned trial court while passing the eviction decree vide judgment and decree dated 24.03.2001 are quoted herein below for ready reference:--

The first appeal filed by the defendants/tenant also came to be dismissed by the learned Addl. District Judge No. 2, Bhilwara vide judgment and decree dated 27.05.2003 giving following findings:

Being aggrieved by the same, appellant/defendant, who is now represented by his legal heirs, have preferred this second appeal and following substantial questions of law were framed by a coordinate bench of this Court while admitting the present second appeal on 12.05.2005.

"1. Whether the findings on question of reasonable and bonafide necessity is vitiated on account of non-consideration of the statement of the plaintiff PW 1 himself who has admitted that pending present suit he got vacant possession of a shop consequent upon Ex. A/7 and that shop has been re-let out?

Whether the learned courts below on the face of the above statement of PW 1 were right in concluding that the shop covered by Ex. A/7 is in a demolished condition?

Whether in view of the fact that according to PW1 he completed his education in 1984 and since then is established in Delhi and is running a company named M/s. Kartikeya Associates Pvt. Ltd., having four Directors and shop covered by Ex. A/7 having come to his possession around that time itself, having been re-let out the findings of the learned courts below on the question of reasonable and bona fide necessity is sustainable or are perverse?

Whether the finding of the learned courts below on the question of material alteration is vitiated on the ground of there being no evidence as to when the door was opened while according to the defendant the door existed since beginning itself?"

During the pendency of the present second appeal, the suit property came to be purchased by the second respondent i.e. Sh. Radheyshyam Soni S/o. Badrilal, who was allowed to be impleaded as party-respondent vide order dated 16.01.2014 passed by a coordinate bench of this Court, which order is also quoted herein below:--

"An application has been filed under Order XXII Rule 10 CPC read with Order I, Rule 10 CPC seeking impleadment as respondent in the present appeal.

It has been inter-alia indicated that the applicant has purchased the suit property from the plaintiff Harish Kumar and he being a bonafide purchaser of the property in question needs to be impleaded as party in the present appeal.

A reply to the application has been filed by the appellant inter-alia opposing the application filed by the applicant. It is inter-alia submitted that the suit was filed for personal bonafide necessity of the plaintiff and said necessity has come to and end by the sale of the suit premises.

A perusal of the decree indicates that the decree was passed on the ground of personal bonafide necessity as well as material alteration.

In that view of the matter, the issue, regarding further prosecution of the litigation by the applicant by stepping into the shoes of the plaintiff, shall be considered at the time of hearing of the appeal.

The application filed by the applicant is allowed.

He is directed to be impleaded as party respondent in the present appeal.

Sd/- (ARUN BHANSALI), J."

Mr. Rakesh Chotia, appearing for Dr. Sachin Acharya, learned counsel for the respondent/plaintiff, subsequent purchaser, submitted that the controversy is squarely covered by the decision of this court in the case of Naresh Chand Vs. Smt. Premlata Bakshi, (2009) 1 RLW 784 : (2009) 1 WLN 266 , in which this Court has held that bona fide need of the plaintiff as on the date of filing of the suit has to be established and same continue even after death of persons for whose need the eviction was sought and even after the suit property is sold to a third party during the pendency of the lis. The relevant extract of the judgment relied upon by learned counsel for the plaintiffs/respondents is quoted herein below for ready reference:--

"10. Since bonafide need was claimed by the landlord - plaintiff for her husband as well as her son as stated above on the date of filing of the suit and the Courts below concurrently found that the said bonafide need existed on the date of filing suit and while the trial Court granted the decree for partial eviction, the first appellate Court granted the decree of entire residential house in question, the said findings of facts which are based on relevant evidence and material did not deserve to be disturbed at all and the second appeal was liable to be dismissed at the threshold as no substantial question of law could be said to be arising in the present appeal. However, the fact remains that since this appeal came to be admitted by this Court by framing the aforesaid question of law and which remained pending here for long number of 18 years in this Court, subsequent developments in the form of death of husband of the plaintiff and sale of property by her arose. The question which arises now in these circumstances for consideration by this Court in the changed circumstances is as to whether now the purchaser of the suit property can get fruits of the decree passed by the Courts below and can get the suit premises evicted or not or whether the defendant - tenant should be allowed to remain in the property for next 20 to 30 years after the new purchaser of the property is asked to file a fresh suit establishing his own bonafide need of the said suit property or on other grounds of eviction as specified in the Rent Control Act.

Therefore, this Court is of the opinion that not only the question framed by this Court while admitting the present appeal deserves to be answered against the appellant - defendant by holding that the bonafide need of the plaintiff continues even after death of her husband as the bonafide need was claimed for her husband as well as her son and it deserves to be further held that the purchaser of the suit property during the pendency of present second appeal who steps into the shoes of the plaintiff shall be entitled to vacant possession of the suit property in pursuance of the decree passed by two Courts below which is liable to be upheld by this Court as no perversity in those findings is found by this Court. In view of the fact that the bonafide need of the plaintiff - landlord on the date of filing of the suit is relevant, subsequent events in the form of sale of said property does not ipso facto up-set the decree of eviction. The attornment in favour of purchaser was automatic and did not depend upon the acceptance of the same by the defendant - tenant. The appellant - defendant is, therefore, not entitled to any relief in the present second appeal, which is found to be devoid of merit and the same is accordingly dismissed with no order as to costs."

Having heard the learned counsel for the parties, and upon perusal of the judgments and decrees of the courts below and the judgment cited at bar by the learned counsels for the parties, this Court is of the opinion that the reasons given by the learned courts below for granting eviction decree do not require any interference by this Court in the present second appeal and, therefore, the same deserve to be upheld and the substantial questions of law framed by a coordinate bench of this Court, deserve to be answered in favour of plaintiffs/respondents and against the defendants/appellants. The legal position with regard to bona fide and reasonable need of the land is no more res-integra and the landlord is the best judge of his/her business needs and neither the defendant/tenant can dictate terms in this regard and nor the court can substitute its own opinion of the landlord. There is no contrary evidence or material available on record. Both the courts below after considering the evidence led by the parties, have concurrently granted eviction decree in favour of plaintiff/landlord, which in the present second appeal is not required to be up set and same deserves to be upheld.

Accordingly, the present second appeal filed by the appellants/defendants is found to be bereft of any force and the same is hereby dismissed. No costs.

The appellants/defendants/tenant shall hand over the peaceful and vacant possession of the suit premises to the plaintiff/respondent on or before 31.03.2016 and shall pay mesne profit @ Rs. 2,000/- per month already fixed by this Court vide order dated 12.05.2005 passed by a coordinate bench of this Court, and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the plaintiff/ respondent, also and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellants/defendants/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff/respondent, within three months from today, otherwise the same will bear interest @ 9% per annum. The defendants/tenants shall also not sub-let, assign or part with the possession of the suit premises 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 and such third parties will also be bound by this decree. The appellants/defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months from today, 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 plaintiff/respondent on or before 31.03.2016 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the plaintiff/respondent or the owner of the suit property 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 the parties concerned forthwith.