Janki Lal vs Dharmi Chand

Dr. Vineet Kothari, J.—This second appeal filed by the plaintiffs-landlord is arising out of the judgment and eviction decree dated 09.11.2010 passed by the learned Additional District Judge, Gulabpura, District Bhilwara in Civil Appeal Decree No. 2/2007 "L.Rs. of Janki Lal v. Dharmi Chand" who dismissed the appeal by the appellants-plaintiffs, allowed the cross-objections filed by the defendant and set aside the judgment and partial eviction decree dated 11.01.2007 passed by the learned Civil Judge (Senior Division), Gulabpura, District Bhilwara in Civil Original Suit No. 77/1996 "L.Rs. of Janki Lal v. Dharmi Chand" by which, the learned Civil Judge (Senior Division) had partly decreed the eviction suit filed by the plaintiffs-L.Rs. of Janki Lal seeking eviction of the defendant-Dharmi Chand and for recovery of due rent in respect of the suit property, which is a shop situated at town Gulabpura, District Bhilwara on the ground of default in payment of rent and bona fide need of suit premises for the landlord and his family.

The present second appeal has been filed by the appellants, who was the plaintiffs before the learned Trial Court, against the approval of the findings of the learned Trial Court by the learned First Appellate Court and completely refusing the eviction decree while, the learned Trial Court had granted partial eviction in favour of the plaintiffs.

The eviction suit was filed by the plaintiffs-landlord - legal representatives of Janki Lal, namely, Kriparam and Ors. seeking eviction decree in respect of the suit shop given to the defendant-tenant Dharmi Chand S/o Mohal Lal Bordiya. The suit shop is situated at Gulabpura, District Bhilwara, in which, the defendant-tenant is carrying on the business of food-grain. The suit shop is of ''L'' shape situated sand-witched in between the two shops already possessed by the plaintiff-landlord, in which, he carries on the business of iron goods. The Court below has refused complete eviction on the ground of personal and bona fide business need in view of expansion of his business stated by the plaintiff. The learned Trial Court granted partial eviction of the tenant and had given back portion of the ''L'' shape shop to the plaintiff and decreed the suit of the plaintiffs partly whereas the learned First Appellate Court entirely refused to grant the eviction decree on the ground that the plaintiff-landlord had no bona fide necessity of the suit shop in question, since he has already two shops on both the sides of the disputed suit shop for doing his business of iron goods and the back portion of his residential house is also used as ''godown'' for such iron goods and, therefore, the partial eviction granted by the learned Trial Court was also refused by the First Appellate Court since it found that there was no bona fide need of the landlord at all in view of existing accommodation available to him to do his business.

The relevant portion of the discussion made by the learned Trial Court in its judgment dated 11.01.2007 is quoted herein below for ready reference:--

The relevant portion of the discussion made by the learned First Appellate Court in its judgment dated 09.11.2010 is quoted herein below for ready reference:--

Being aggrieved, the plaintiffs had preferred the present second appeal which was admitted for consideration by this Court on 04.03.2015. The order dated 04.03.2015 is also quoted herein below for ready reference:--

"Heard the learned counsel for the parties and perused the record of the case.

The following substantial question of law is framed for consideration by this Court:

"Whether in the facts and circumstances of the case, the learned Trial Court was justified in refusing the full eviction decree in favour of the plaintiff-appellant on the ground of personal and bona fide necessity of the plaintiff and in granting only partial eviction decree in respect of the suit shop situated at Gulabpura, District Bhilwara and whether the learned First Appellate Court was justified in refusing the eviction altogether even though the plaintiff was successful in proving his personal and bona fide need of the suit premises under the Rent Control Act, 1950?" Admit. Fresh notices need not be issued as the contesting respondent is served and is represented by his counsel.

The record of the Courts below has already been received.

List the matter for hearing on 17.03.2015 on the top of the list, as prayed."

The learned counsel Mr. Ashok Patel appearing for the appellants-plaintiffs-landlord submitted that looking to the expanded business of the iron goods of the plaintiff, the said bona fide need of the plaintiff had been claimed and it was fully established before the learned Trial Court that suit shop was needed bona fidely by the plaintiff-landlord and even the other shop in front of the house becoming available from the other tenant during the course of trial was also used by him for the said business of iron goods still the requirement of the suit shop was still there. The learned counsel also submitted that the plaintiff was compelled to use the back side portion of his residential house admeasuring 17x37 ft. as godown for the said business of iron goods, but if the suit shop which is of reverse ''L'' or rather of figure ''7'' shape and is sand-witched between the two shops of the landlord is vacated by the defendant-tenant, he could use all the three shops, including the ''7'' shape suit shop, as its business premises for dealing with the iron goods including godown and use the entire back portion of 17x37 ft. for his residential purposes. The learned counsel further submitted that the defendant-tenant, during the course of time, had also acquired other accommodations (shops)/properties in which he was also doing his own expanded business of food-grains and, therefore, in these circumstances, the learned counsel prayed for passing of eviction decree against the defendant on the ground of personal and bona fide need of the plaintiff-landlord for his expanded business requirements under Section 13(1)(h) of the Rent Control and Eviction Act, 1950.

On the other hand, the learned counsel Mr. Chaitanya Gahlot appearing for the defendant-tenant submitted that the concurrent findings of both the Courts below about there being no personal and bona fide necessity of the landlord do not deserve any interference by this Court. The learned counsel also urged that the requirement stated by the plaintiff for his business needs is being satisfied with the two shops already available to the plaintiff and the expanded need of the business of the plaintiff is also met out with the use of some back side portion of the residential house as godown. The learned counsel prayed that the present second appeal filed by the plaintiff is required to be dismissed while answering the substantial question framed and quoted herein above in favour of the defendant-tenant.

Having heard the learned counsel for the appellant-defendant-tenant and having perused the judgment and decree of the Courts below and the site map, this Court is of the opinion that the present second appeal of the plaintiffs-landlord deserves to be allowed and the substantial question of law, as framed and quoted herein above, deserves to be answered in favour of the plaintiff. It is well settled legal position that the landlord is the best judge of his business requirements and neither the tenant nor the Court can substitute its opinion or wisdom on the landlord and dictate terms in this regard to the landlord.

From the perusal of the map produced by the learned counsel for the plaintiff, this Court is satisfied that admittedly the suit shop in question is in reverse ''L'' shape or like 7 number and is situated in a sand-witched position between the two shops already possessed by the plaintiff. It has also come on record by evidence that besides the aforesaid two shops, the plaintiff had also used back portion of his residential house admeasuring 17x37 ft. as godown for his business requirements. From the perusal of the map, it appear that the size of the residential house left for the plaintiff is only 36x36 ft. It also appears from the perusal of the map that there are three shops existing in the front of the residential house of the plaintiff and out of which one middle shop in question, which is in "L" or "7" shape is rented out to the defendant-tenant in which the defendant is carrying on the business of food-grains. This Court finds that it is very obvious and natural that if the rented shop in question is vacated by the defendant-tenant, the plaintiff-landlord would have got adequate and sufficient space for his business of iron goods and will also get some extra portion for being used as godown and the back side vacant portion may be used for his residential house purposes. In evidence, it has also come on record that the defendant-tenant had acquired some other properties and shops in which he is doing the business of food-grains. Though this was not the ground for eviction established by the plaintiff for eviction of the defendant-tenant during the trial but it is not disputed before this Court also. The following legal precedents would support the case of the landlord that he is the best judge of his need, business as well as residential.

In Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, , the Hon''ble Supreme Court held that where the eviction is sought for bona fide requirement of landlord, the relevant date on which the said need has to be adjudged is the date of filing the suit and subsequent events taking place during the period of litigation like engaging in other activity or business for which premises in question is required do not upset such bona fide need unless such subsequent events are of such a nature and dimension as to completely eclipse such need and make it lose significance altogether and the process of litigation cannot be made the basis for denying the landlord relief when litigation at last reaches the final stage.

In Prativa Devi Vs. T.V. Krishnan, , the three Judges Bench of the Hon''ble Supreme Court while holding that the landlord is the best judge of his residential requirement observed as under:--

"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court was rather solicitous about the age of the appellant and thought that because of her age she needed to be looked after. That was a lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for. There is nothing to show that she had any kind of right whatever to stay in the house of the family friend. On the other hand, she was there merely by sufferance. There is no law which deprives the landlord of the beneficial enjoyment of his property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bonafides of the claim of the landlord under Section 14(1)(e) of the Act. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances." 13. Moreover, as held by Hon''ble Supreme Court itself in a recent decision of two Judges bench in Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Another, , which has been later on reaffirmed by three Judges bench decision of Hon''ble Apex Court in The State of Maharashtra and Another Vs. Super Max International Pvt. Ltd. and Others, in which the Hon''ble Apex Court has clearly noticed that even the trend of Apex Court has shifted from pro-tenant from 1950s to 1990s to pro-landlord from 1990s onwards. The relevant extracts from the judgments in case of Satyawati Sharma (supra) and Super Max International Pvt. Ltd. are quoted below for ready reference:

"12. There has been a definite shift in the court''s approach while interpreting the rent control legislations. An analysis of the judgments of 1950s to early 1990s would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant. In these cases the Court consistently held that the paramount object of every rent control legislation is to provide safeguard for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the later judgments." The relevant para 71 of the judgment of Apex Court in Super Max International (P) Ltd. (supra) is quoted below for ready reference:--

"71. We reaffirm the views expressed in Satyawati Sharma and emphasize the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Court''s protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq. ft. in a building, situate at Fort, Mumbai on a rental of Rs. 5236.58/-,plus water charges at the rate of Rs. 515.35/- per month more than amply highlights the point)" 14. This Court in the case of LR''s of Prakash v. 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 bona fide 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 bona fide 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". 15. In the case of Denzil Najrath v. LR''s of Balwant Singh and Ors. reported in 2011 (3) DNJ (Raj.) 1217 this Court has held under:--

"Having heard learned counsels for the parties 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 bona fide 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 bona fide 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." 16. It is directed that the respondent-defendant-tenant shall hand over the peaceful and vacant possession of the entire suit shop to the appellants-plaintiffs-landlord within a period of six months from today i.e. on or before 30.09.2015 and shall pay mesne profit @ Rs. 3,000/- per month (Rupees Three Thousand only) commencing from April, 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/landlord also and in case there is any default in payment of mesne profit, the period of six months 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 plaintiffs/plaintiffs/landlord within three months from today, otherwise the same will bear interest @9% per annum. The respondent/defendant/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 and such third parties will be bound by this decree. The respondent-defendant-tenant 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 six moths, i.e. upto 30.09.2015 from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff-landlord shall also be entitled to invoke the contempt jurisdiction of this Court.

Accordingly and in view of the above, the present second appeal of the appellants-plaintiffs-landlord-L.Rs. of Janki Lal stands allowed while answering the aforesaid quoted substantial question of law in favour of the plaintiffs. A copy of this order be sent to both the learned Courts below and both the parties forthwith.