Jagan Nath and Others vs Sanwar Mal

Dr. Vineet Kothari, J.—This second appeal is arising out of the judgment and decree dated 17.05.2003 passed by the learned Additional District Judge, Deedwana in Civil Appeal No. 2/1998 (148/198) "Sanwar Mal S/o Jagannath Mahajan Vs. LRs of Jagnath S/o Raghunath Tapadia" who allowed the appeal filed by the present respondent-defendant and reversed the judgment and decree dated 05.12.1997 passed by the learned Civil Judge (Junior Division), Deedwana in Civil Original Case No. 113/1993 "Jagan Nath S/o Raghunath Tapadia Vs. Sanwar Mal." By which, the learned Civil Judge (Junior Division) had decreed the suit filed by the plaintiff seeking recovery of arrears of rent and dispossession of the defendant from the suit shop situated at Deedwana, District Nagaur and granted eviction decree of the defendant-Sanwar Lal. But, by the judgment and decree dated 17.05.2003, the learned Appellate Court had set aside the judgment and decree dated 05.12.1997 hence, this second appeal has been preferred on behalf of the plaintiffs.

The present second appeal has been filed by the appellants, who were the legal representatives of the deceased original plaintiff before the learned Trial Court, against the reversal of the judgment and decree of the learned Trial Court.

The brief of the present case is as follows: That the original plaintiff Jagannath S/o late Shri Raghunath Maheshwari had filed the civil suit aforesaid (No. 113/1993) (Old No. 94/1992) with the averments that the defendant Sanwar Mal S/o late Shri Jagannath Kumpawat took the suit shop in question on a monthly rent of Rs. 500/- per month on 01.09.1981 and executed a rent note on that day itself in favour of the plaintiff. It was stipulated in the rent note that the rent of the suit shop for every six months will be given in advance and the electricity charges will be separate from the rent. The plaintiff wanted eviction of the defendant on the ground of default in payment of rent. The ground of bona fide need of the suit shop in question for the son of the plaintiff was also raised. It was also averred that a two storey shop situated at Chokhadia Bheruji is owned by the defendant and was presently lying vacant and, therefore, the defendant could shift his business over there. Therefore, comparative hardship was alleged in favour of the plaintiff. In the last, the plaintiff had prayed for grant of eviction decree and also prayed for decree for due rent and mesne profits.

By filing the written statement to the plaint aforesaid, the defendant denied the averments made by the plaintiff in the plaint and also averred that the all the major sons of the plaintiff, including Anil Kumar, for whose bona fide necessity was averred, are doing their respective business at Jodhpur, Deedwana and Sujangarh. Therefore, the bona fide necessity was denied by the defendant-tenant. It was also averred that the shop mentioned in para 3(3) of the plaintiff had come in the share of the elder brother namely, Ram Niwas and, therefore, the plaintiff had no right to claim ownership over the same. It was averred that except the suit shop in question, there was no shop with the defendant and his business is in good condition in this shop. Therefore, it was averred that the defendant will be facing more hardships by vacating the shop.

On the basis of the pleadings of the parties, the learned Trial Court framed as many four issues arising for determination in the case. The learned Trial Court had held in its judgment and decree dated 05.12.1997 as under:-

The learned Trial Court of Civil Judge (Junior Division), Deedwana, decreed the plaintiffs'' suit for eviction vide judgment and decree dated 05.12.1997 in the following manner:-

The learned lower Appellate Court of Additional District Judge, Deedwana, has reversed the judgment passed by the learned Trial Court vide judgment and decree dated 17.05.2003. The relevant portion of the discussion made by the learned Appellate Court is reproduced herein below for ready reference:-

On the basis of its discussion, the learned lower Appellate Court of Additional District Judge, Deedwana, has passed the final order in the following manner:-

Being aggrieved by the appellate judgment and decree dated 17.05.2003, the legal representatives of the original plaintiff Jagannath S/o late Shri Raghunath had preferred the present second appeal and after hearing the learned counsel for the appellant, the present second appeal was admitted by a coordinate bench vide order dated 10.12.2003 and following substantial questions of law were framed:

"1. Whether the learned appellate Judge has erred in reversing the decision of the learned trial court without dealing with the meeting with the reasonings of the learned trial court?

Whether the learned appellate Judge has erred in failing to consider the principles of law governing the consideration of reasonable and bona fide necessity of landlord of the suit premises for the business of his son?

Whether any job undertaken by the son of the plaintiff during the pendency of the suit for eviction operate against need of starting independent business in the suit premises?

Whether a landlord could be compelled to opt for rental premises for the need of his son despite having his own shop with a tenant?

Whether the learned appellate Judge has erred in not considering the question of default in payment of rent by the tenant on the basis of material on record and whether the findings by the learned appellate court remain wholly perverse?

The learned counsel Mr. J.K. Bhaiya appearing on behalf of the appellants-plaintiffs submitted that the learned Appellate Court has erred in holding that the plaintiff''s son Anil Kumar could have taken another shop other than the suit shop in question and could have started his business in the other shop which are lying vacant but if the defendant is removed from the suit shop in question, then he would suffer more hardships than the plaintiff. The learned counsel also submitted that a tenant cannot dictate term to the landlord about his bona fide need and it is only the landlord who is the best judge to decide his need.

Per contra, the learned counsel Mr. Manish Shishodia appearing for the respondent-defendant without much controverting the findings of facts and rightly so submitted that in case, the suit shop is not used by the plaintiff as to the best of his information, the son namely, Anil Kumar, of the plaintiff is doing his business very well at some other place then, the plaintiff may be directed to hand over back the possession of the suit shop to the defendant-tenant as per Section 15 of the Rent Control Act, 1950. He also urged that the defendant-tenant would be advised to move the Trial Court by moving an application under Section 15 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 for extending the benefit of Section 15 of the Act, if the occasion so arises.

Having heard the learned counsels for the parties and having perused the record of the case including the impugned judgments of both the Courts below, this Court is satisfied that the learned First Appellate Court has committed an error apparent in reversing the well reasoned judgment and eviction decree of the learned Trial Court and, therefore, the substantial questions of law as framed by this Court and quoted herein above are required to be answered in favour of the appellants-plaintiffs and this second appeal deserves to be allowed. It is well settled by catena of judgments that neither the tenant nor even the Court can substitute its own wisdom and dictate term of bona fide need to the landlord as to how his business requirements would be satisfied. Here, the learned Appellate Court has gone to the extent of suggesting to the landlord that his son Anil Kumar could start his kirana business in other shops but tenants'' established business cannot be disturbed. This is a clear perversity in the judgment of the learned First Appellate Court.

Accordingly and in view of the above, the present second appeal filed by the appellants-plaintiffs - Legal Representatives of the original plaintiff Jagan Nath S/o Raghunath Maheshwari is allowed while answering the substantial questions of law, as framed and quoted herein above, in their favour. No orders as to costs. A copy of this order be sent to both the Courts below and to both the parties concerned forthwith.

However, in the circumstances of the case, it is directed that the respondent-defendant-tenant shall hand over the peaceful and vacant possession of the suit shop to the respondents-plaintiff within a period of one year i.e. on or before 31.03.2016 and shall pay mesne profit @Rs. 5,000/- per month [Rupees Five Thousand only] commencing from March, 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 appellants/plaintiffs 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 respondent/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the appellants/plaintiffs within three months from today, otherwise the same will bear interest @9% per annum. The respondent/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 respondent-defendant shall furnish a written undertaking incorporating the 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 appellants-plaintiffs within a period of one year from today i.e., 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 appellants-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court.