Gopal Sahni vs B.P. Sharma

Mohammad Rafiq, J.

This writ petition has been filed by the petitioner-tenant challenging judgment dated 07.01.2015 passed by Rent Appellate Tribunal, Jaipur Metropolitan, Jaipur(for short ''the Rent Appellate Tribunal'') whereby the appeal filed by the respondent-landlord has been allowed and judgment dated 05.12.2012 passed by the Rent Tribunal has been reversed.

Facts of the case are that a lease agreement was entered between the petitioner and the respondent in respect of suit premise on 12.05.2004 which is residential house on first floor of the building in question owned by the respondent at monthly rent of Rs. 9,500/-. An application under Section 9 of the Rent Control Act, 2001(for short ''the Act'') for eviction of the petitioner was filed by the respondent on the ground of bonafide necessity, material alteration and nuisance. According to the respondent, he was in bonafide necessity of the rented premise. Affidavits were filed of respondent Shri B.P. Sharma, landlord; Shri Rajesh Sharma and Smt. Archana as PW1, PW2 and PW3 respectively. The petitioner contested the application denying the averments made therein and stating that the respondent was not in a need of the rented premise, as he already had more than four rooms in his possession. The premise in question was constructed by the respondent only for the purpose of tenancy as was evident in the advertisement so published by the respondent. Alleged bonafide necessity of the son of the respondent was not real and was illusory as his son was well settled in Jhansi (MP) for last many years. Affidavits of Shri Gopal Sahni and Panna Singh were filed as DW-1 and DW-2 respectively.

The Rent Tribunal on the basis of pleadings of the parties framed issues and after examining the evidence adduced by the parties and material on record, Rent Tribunal vide judgment dated 05.12.2012 dismissed the application for eviction filed by the respondent. Being aggrieved, the respondent-landlord preferred an appeal before the Rent Appellate Tribunal, which vide judgment dated 07.01.2015 allowed the appeal filed by the respondent-landlord and reversed the judgment passed by the Rent Tribunal dismissing the eviction application of the respondent-landlord. Hence, this writ petition has been filed by the petitioner-tenant.

Mr. Anuroop Singhi, learned counsel for the petitioner has submitted that learned Rent Appellate Tribunal has erred in law in holding that Shri Gyanendra, son of the respondent will/might live with his parents in future. This finding is recorded ignoring that Shri Gyanendra is working in Jhansi(MP) and subsequently transferred to Lucknow and is well settled with his family there. There is no question of his coming back and stay with his parents. Assumption of the Rent Appellate Tribunal that Gyanendra son of the respondent was working with Reliance Company which has his office at Jaipur and therefore, he can be transferred to Jaipur is wholly baseless. There was no definite evidence to this effect. Findings of the Rent Appellate Tribunal to this effect are perverse and based on surmises and conjectures. The Rent Appellate Tribunal failed to appreciate that the respondent was in possession of entire ground floor and second floor of the house which is having six rooms attached lat-bath and two kitchens and two halls. Learned counsel for the petitioner has submitted that the Rent Appellate Tribunal has not correctly appreciated statement of PW-2, Rajesh Kumar, brother of the respondent, who has stated that he is living separately and the suit premises are not ancestral property as such no question of Rajesh Kumar living with the respondent in the suit premises arises. Even otherwise, brother does not come in the definition of ''Family''. The very fact that other portion in the suit premise was let out after 2005, when PW-2 Rajesh Kumar had already come to Jaipur after his transfer demonstrate that neither the respondent intended to live together with Rajesh Kumar, nor Rajesh Kumar intends to stay along with the respondent. Necessity of the respondent was neither bonafide nor personal. Learned counsel for the petitioner, at this stage, in alternate, has submitted that if this Court is inclined to upheld the impugned judgment passed by the Rent Appellate Tribunal, then reasonable time may be granted to the petitioner to vacate the premise in question.

Mr. J.P. Goyal, learned Senior Counsel appearing on behalf of the respondent has opposed the writ petition and submitted that Rent Appellate Tribunal has correctly recorded finding on the issue No. 1 relating to personal bonafide necessity. The Rent Tribunal failed to appreciate all these aspects or evidence on record which has rightly been appreciated by the Rent Appellate Tribunal. Ground floor and second floor are in possession of the respondent-landlord and photographs thereof Exhibit A-13 and A-14 have been produced. The respondent-landlord, PW-1 has stated that he has two sons and one of them has died. The other son is Gyanendra and name of the son who died was Rakesh. Gyanendra was presently working with Tata Communications. His younger brother was working with Rajasthan Patrika. He has stated that his younger brother does not have his own house. P.W.2, Rajesh Kumar and P.W.3, Smt. Archana in their statements have supported statement of P.W.1. P.W.2, in his cross examination has stated that he does not have any share in the suit premise and he is living jointly with the family of his brother in this house. He has admitted that in the family of his brother, respondent-landlord apart from himself, there are his wife, widow daughter-in-law, two grandsons, one is aged 11 years and other is aged 14 years and the mother who were also residing with him. P.W. 3, Smt. Archana has also stated that they got four rooms, one drawing room, dining room, kitchen and two lat-baths and one room on second floor. She, however, has denied assertion that total six rooms were there on ground floor. She stated that they require first floor because the available number of room in the building were not sufficient to cater their need. In total there are seven persons residing in the house out of which three are minor and four are majors. They needed suit premises for the family of younger brother of the landlord and the uncle. Learned Rent Tribunal did not appreciate all these facts. It is argued that the respondent-landlord has gone old and he would expect his son to come back Jaipur to stay with him particularly when his other son has died and his widow and minor two children are dependent on him. He also need suit premises for accommodation of his daughter, son-in-law and other guests, who come to stay with them.

From a conjoint perusal of the judgments passed by the Rent Appellate Tribunal and by Rent Tribunal it is evident that the learned Rent Tribunal did not find issue with regard to bonafide necessity proved in favour of the landlord-respondent on the premise that landlord had three rooms, one dining room, one drawing room with kitchen, lat-bath at ground floor. Requirement of Gyanendra was not accepted by the Rent Tribunal because his affidavit was not filed. Garage portion was originally let out to Tata Indicom for some time which has been vacated. Son of the landlord was also serving with Reliance Company at Lucknow and he has left that company and joined Tata Communications at Lucknow. Younger brother of the landlord cannot be taken as member of family, therefore, his need cannot be considered as bonafide. The Rent Appellate Tribunal has taken note of the fact that grand children have gone young and they would require independent rooms. Apart from two grand children, widow daughter-in-law of the respondent was also living with him. Mother of the respondent-landlord was also living with him. Respondent-landlord and his wife would also require separate room. Brother of the respondent Rajesh Kumar was also staying with him in the joint family before his transfer outside Jaipur and has been transferred back to Jaipur and want to stay with the respondent-landlord. His son is presently working with Tata Communications and holds a transferable post and that he wants to come back Jaipur. Learned Rent Appellate Tribunal has also taken note of the fact that the landlord is an old person aged 74 years and he would need his son to stay with him to look after his old and ailing parents. Mere non-examination of Gyanendra as witness would not deny this fact. Photographs of the ground floor Exhibit A13 and A-14 could not be taken as the basis of denial of bonafide necessity of the landlord. While learned Rent Tribunal recorded a finding that from the analysis of the evidence as discussed above, need of the respondents was not bonafide need and was mere desire. Appellate Rent Tribunal has reversed that finding not only keeping in view the requirement of number of family members, but in view of the requirement of the respondent-landlord which was not just desire, but his reasonable necessity. Except consideration with regard to brother of the respondent-landlord, all other considerations are relevant and germane to the bonafide need of the respondent-landlord and cannot be said to be lacking any bonafide. Learned Rent Appellate Tribunal has rightly held that the landlord is the master of the suit and he has to decide as to for what purpose he would require the premises. Learned Appellate Rent Tribunal has also observed that the landlord would require additional accommodation for the purpose of accommodating his daughter, son-in-law and other grand children and findings recorded by the learned Appellate Rent Tribunal in that view of the matter cannot be said to be suffering from any infirmity or perversity. Having held so, I do not find any merit in this writ petition and the same is liable to be dismissed. However, considering alternative submission made by learned counsel for the petitioner, this Court is inclined to grant reasonable time to the petitioner-tenant to handover peaceful vacant possession of suit premises/shop to landlord-respondent on following conditions:-

"1. Tenant-petitioner undertakes to hand-over vacant and peaceful possession of suit premise to landlord-respondent on or before 30.06.2016. Landlord-respondent shall not execute impugned decree till 30.06.2016.

Tenant-petitioner undertakes to pay or deposit entire arrears of rent, if any, within a period of one month from today and will further continue to pay future mesne profit @ Rs. 30,000/- per month w.e.f. 01.06.2015 by 7th of the every succeeding month or in advance to landlord-respondent or deposit the same in his account.

Tenant-petitioner further undertakes that he shall not sub-let, assign or part with possession of suit premises/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.

Tenant-petitioner shall furnish a written undertaking incorporating aforesaid conditions in the Rent Tribunal within a period of four weeks from today."

It is made clear that in case, tenant-petitioner does not comply with any of aforesaid conditions, then the Rent Tribunal shall ensure his eviction without requiring landlord-respondent to file separate execution petition even before aforesaid date and it will be open for landlord-respondent to initiate contempt proceedings in this court.

With the aforesaid direction, writ petition stands dismissed. Stay application also stands dismissed.