Jhumar Lal vs Sunder Devi

Dr. Vineet Kothari, J.—This second appeal is arising out of the judgment and decree dated 27.10.2004 passed by the learned Additional District Judge No. 3, Jodhpur in Civil First (Decree) Appeal No. 46/2002 "Smt. Sunder Devi Vs. Jhumar Lal" who allowed the appeal filed by the present respondent-plaintiff-landlord and set aside the judgment and decree to the extent of dismissal of suit for eviction dated 27.04.2002 passed in Civil Original Suit No. 59/2000 "Sunder Devi Vs. Jhumar Lal" by the learned Additional Civil Judge (Junior Division) and Judicial Magistrate, First Class No. 1, Jodhpur (Raj.) whereby, the suit filed by the plaintiff-landlord for eviction of the tenant-Jhumar Lal. The learned First Appellate Court, while setting aside the judgment and decree of the learned Trial Court directed the defendant-tenant to hand over the vacant possession of the suit shop to the plaintiff within a period of two months and also rejected the cross-objections filed by the defendant-tenant, while maintaining the judgment and decree of the learned Trial Court in relation to the rent of the disputed shop.

The present second appeal has been filed by the appellant, who was the defendant-tenant before the learned Trial Court, against the reversal of the finding of the learned Trial Court by the learned First Appellate Court whereby, he was directed to hand over the vacant possession of the suit shop within a period of two months.

The brief fact of the case are as follows: That the plaintiff-landlord filed the suit (No. 59/2000) seeking eviction of the defendant-tenant with the averments that the she has a house at Plot No. 178 situated in the Jodhpur City at Masuriya, Near Dalley Khan Ki Chakki. It was averred that in the south side of the house towards the road, three shops were constructed and the present defendant is the tenant of one of them. The rent of the suit shop was stated at Rs. 600/- per month. The plaintiff averred that the questioned shop is required for his son, who is doing the work of mechanic and presently he is unemployed. The claim of recovery of arrears of rent was also raised by the plaintiff. The plaintiff had made certain other averments and it was prayed that she may given a decree of eviction and arrears of rent.

By filing the written statement to the suit aforesaid, the defendant denied the relationship of landlord-tenant with the plaintiff. It was averred by the defendant-tenant that he had taken the suit shop from the husband of the plaintiff. The rate of rent was also disputed by the defendant-tenant by saying that the rent was fixed at Rs. 300/- per month. The defendant also averred that the entire rent has been paid to the husband of the plaintiff and, therefore, no arrears of rent become due. The claim of bona fide need of the suit shop for the son of the plaintiff was also denied. The defendant had also made several other averments in the written statement and also filed counter-claim for fixing the rent of suit shop at Rs. 200/-.

On the basis of pleadings of the parties, the learned Trial Court framed the relevant issues and after recording the statements of witnesses and evidence of the parties, vide judgment and decree dated 18.03.1979 had dismissed the suit of the plaintiff-landlord seeking eviction but held that the plaintiff is entitled to receive Rs. 600/- as rent of the suit shop.

The learned Trial Court, while dealing with the issue relating to bona fide need of the suit shop claimed by the plaintiff observed as under:-

The learned Trial Court, while dealing with the issue relating to denial of title observed as under:-

The learned Trial Court on the basis of the discussion made on each of the issue, while extending the benefit of first default in payment of rent to the defendant-tenant, denied the eviction decree and had ultimately passed the decree in the following terms:-

Being aggrieved by the judgment and decree dated 27.04.2002 passed by the learned Trial Court, the plaintiff-landlord filed the appeal in the First Appellate Court of Additional District Judge No. 3, Jodhpur namely, Civil Appeal Decree No. 46/2002 which was also allowed by the judgment and decree dated 27.10.2004 and the judgment and decree of the learned Trial Court 27.04.2002 was reversed and the learned First Appellate Court granted eviction decree in favour of the plaintiff-landlord.

The learned First Appellate Court, while discussing the issue relating to bona fide need and while reversing the findings of the learned Trial Court, observed as under:-

On the basis of the findings recorded on each of the issue, the learned First Appellate Court, passed the following final order which reads under:-

Being aggrieved by the judgment and decree dated 27.10.2004 passed by the learned First Appellate Court, the defendant-tenant has filed the present second appeal before this Court. While admitting this appeal on 01.11.2006, a coordinate bench of this Court framed the following substantial questions of law arising out of the judgments of the two Courts for consideration in this appeal, which are as under:-

(i) Whether in view of the statement of the plaintiff, P.W. 1 recorded on 18.11.96 read with sale deed, Ex. 1, which is dated 26.11.90, the learned Appellate Court was right in coming to the conclusion that the defendant has denied the title of the landlord?

(ii) Whether in the totality of circumstances, including the fact, that P.W. 1 had deposed to have herself obtained the plot in allotment from the UIT, and to have raised the construction, including shops some 16-17 years back i.e. around 1980, while according to Ex. 1, the property is purchased by her from her husband, and one Sanwal Ram, in those circumstances, when the defendant has come with this story of, having been inducted as tenant by the plaintiff''s husband, Durga Ram, the learned Courts below were in error in ordering evicting on the ground of denial of title of the landlord?

(iii) Whether the learned lower Appellate Court was right in reversing the finding of the learned trial Court on the question of reasonable and bona fide necessity of the plaintiff for her son Mohan, more particularly in view of the fact that admittedly Ex. 1, sale deed is in favour of the plaintiff, Sunder Devi, and her sons Gordhan, Idan and Mohan, and admittedly two shops had fallen vacant, and when this fact was brought on record, the plaintiff came with a version of family settlement, wherein the suit shop is said to have fallen to the share of plaintiff, and Mohan, while admittedly, there is no document of family settlement, and if that version had any trace of truth, Mohan himself must have been the plaintiff?

The learned Senior Advocate Mr. R.L. Jangid appearing for the appellant-defendant-tenant submitted that in view of the sale-deed dated 26.11.1990 and admitted position of the plaintiff, as mentioned, the defendant-tenant was fully justified to state in his written statement that the suit shop was not taken on rent from the plaintiff and there was no relation of tenant and landlady between him and her namely, the plaintiff Sunder Devi. It is also submitted that the son of the plaintiff for whom the plaintiff claimed reasonable and bona fide necessity for the suit shop was also not impleaded as plaintiff, therefore, this is a clear case where it can be said that the son of the plaintiff namely, Mohan was not at all in the need of the suit premises for his own use and it cannot be said that there was reasonable and bona fide necessity for him. It is submitted that the learned Trial Court has clearly held that the plaintiff has no reasonable and bona fide necessity and that is why the suit for abetment/eviction of the appellant-tenant was dismissed but the learned First Appellate Court has utterly failed to consider the entire relevant evidence on the record and also failed to appreciate the evidence in right and correct perspective and, therefore, it was the duty of the learned First Appellate Court to give clear reasons for reversing the findings relating to reasonable and bona fide necessity claimed by the plaintiff, of the learned Trial Court and thus, it can very well be said that only for the purpose of getting eviction of the shop, the case has been erroneously built-up on the ground of reasonable and bona fide necessity. It is also urged by the learned Senior Advocate Mr. R.L. Jangid that the learned First Appellate Court has totally ignored the mandatory provisions of Section 14 of the Rent Control Act. The learned Trial Court considered the issue of hardship and found that no hardship would be caused to the plaintiff if decree of eviction is not passed in her favour but the learned First Appellate Court has not recorded any finding on the question of hardship. The learned counsel submitted that in view of the serious errors of law committed by the learned First Appellate Court, in passing the impugned judgment and in directing eviction of the appellant-tenant, the impugned judgment and decree is liable to be set aside.

On the other hand, the learned counsel Mr. S.D.N. Bhatt appearing for the respondent-plaintiff-landlady submitted that the learned First Appellate Court has passed the impugned judgment and directed eviction of the appellant-tenant in view of the settled legal position of law. The learned counsel has relied upon the following judgments namely:-

(1) Legal Representatives of Subhash Sidhwani Vs. Madhulika Agarwal, (2002) 2 WLC 267 : (2003) 2 WLN 262 .

(2) Bishan Singh Vs. Virendra Verma and Ors. (110) RLW 1992 (1) 506.

(3) Sheo Narain alis Saon Vs. Janki Prasad (dead) through L.Rs. Radhey Shyam and Others, AIR 1995 Raj 87 : (1994) 2 WLC 723 : (1994) 2 WLN 363 .

(4) Smt. Myadi through L.Rs. Vs. Smt. Ratni through L.Rs., (2010) 1 RLW 500 : (2010) 1 WLN 291 .

(5) Asuji Bharat Kumar Vs. Shantilal and Others, (2007) 1 RLW 241 .

(6) Ratan Singh and Others Vs. Chhitar Lal, (2007) 3 RLW 2052 .

(7) Naresh Chand Vs. Smt. Premlata Bakshi, (2009) 1 RLW 784 : (2009) 1 WLN 266 .

(8) Baldev Krishan Vs. Satya Narain, (2013) 9 AD 373 : (2014) 1 RCR(Rent) 1 : (2013) 10 SCALE 623 : (2013) 14 SCC 179 .

(9) Raman Das Vs. The State of Uttar Pradesh and Others, AIR 1952 All 703 : (1952) 22 AWR 225 .

(10) Ram Saran Sharma Vs. Smt. Kamla Acharya .

(11) Mrs. Meenal Eknath Kshirsagar Vs. M/s. Traders and Agencies and another, (1996) 5 AD 606 : AIR 1997 SC 59 : (1996) 6 JT 468 : (1996) 5 SCALE 302 : (1996) 5 SCC 344 : (1996) 3 SCR 466 Supp : (1996) 2 UJ 703 : (1996) AIRSCW 4211 : (1996) 5 Supreme 635 .

(12) Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, AIR 2006 SC 770 : (2005) 12 JT 225 : (2005) 8 SCC 252 : (2005) 3 SCR 973 Supp : (2006) AIRSCW 45 : (2005) 6 Supreme 722 .

(13) Govind Prasad Vs. Bangali RLW 1996 (3) 362.

(14) Nand Kishore and Others Vs. Shri Niwas and Others, (2013) 1 RCR(Rent) 212 : (2012) 4 RLW 3571 .

(15) Lohade Ram Meena and Others Vs. State of Rajatshan and Others, (2012) 4 RLW 3578 .

(16) M/s. Ramesh Chand Bihari Lal Bajaj and Another Vs. Ravindra Kumar, (2013) 1 CDR 217 : (2013) 4 RLW 3029 .

Having heard the learned counsels for the parties and upon perusal of the impugned judgments and decree as also the records of the both Courts below, including the case laws cited at Bar, this Court is satisfied that essentially, the findings of facts are based on relevant evidence led before the Courts below and, therefore, the findings of the learned First Appellate Court given on the issue of reasonable and bona fide need as claimed by the plaintiff-landlady cannot be said to be perverse and, therefore, eviction decree granted in favour of the plaintiff-landlady deserves to be upheld and the questions, as quoted herein above, deserve to be answered in affirmative in favour of the respondent-landlord.

In the case of Naresh Chand Vs. Smt. Premlata Bakshi, (2009) 1 RLW 784 : (2009) 1 WLN 266 , this Court, while passing the judgment, observed as under:-

"19. 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 bona fide need of the plaintiff continues even after death of her husband as the bona fide 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 the 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 bona the 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 adornment 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."

In view of the aforesaid circumstances, the present second appeal filed by the defendant-tenant is liable to be dismissed and the questions, as framed, deserve to be answered in favour of the respondent-landlady and they are hereby so answered.

Accordingly and in view of the above discussion, the present second appeal filed by the appellant-defendant-tenant stands dismissed. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.

In the circumstances of the case, it is directed that the appellant-defendant-tenant shall now hand over the peaceful and vacant possession of the suit shop to the respondents-plaintiffs within a period of six months from today i.e. on or before 31.07.2015 and shall pay mesne profit @ Rs. 5,000/- per month (Rupees Five Thousand p.m.) commencing from February, 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 respondent/plaintiff 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 appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the respondents/plaintiffs within three months from today, otherwise the same will bear interest @9% per annum. The appellant/tenant shall also not sublet, 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 appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within one month 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 respondents-plaintiffs within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court.