Mahadev Kharwal vs Harak Chand

Vineet Kothari, J.—This first appeal filed by the defendant-tenant is arising out of the judgment and decree dated 12.08.2004 passed by the learned Additional District Judge (Fast Track) No. 2, Jodhpur in Civil Regular Case No. 199/2003 "Harak Chand Salecha v. Mahadev Kharwal" by which, the learned Additional District Judge (Fast Track) No. 2, Jodhpur had decreed the suit filed by the plaintiff-Harak Chand seeking eviction of the defendant and for recovery of rent in relation of the disputed house situated at Chopasni Housing Board, House No. 15/137, Jodhpur. The suit was decreed on the ground of bona fide necessity of the house in question of the landlord.

The present first appeal has been filed by the appellant, who was the defendant-tenant before the learned Trial Court, against the decree of eviction granted by the Court below in favour of the plaintiff.

The relevant portion of the discussion made by the learned Trial Court in its judgment and decree dated 12.08.2004 is quoted herein below for ready reference:--

Having heard the learned counsel for the parties, this Court fully concurs with the view taken by the Trial Court. The bona fide need of the plaintiff and his family members was fully established. The tenant is not permitted in law to dictate terms to the land-lord to how he should adjust his family accommodation requirements. The need established is not mere wishes or desire but a bona fide and reasonable need of the son''s family. There is no reason to take a different view of the matter as taken by the Trial Court as there is no contra evidence available on record.

In view of catena of the judgments of this Court and the Hon''ble Supreme Court cited below, the view taken by the learned Trial Court is fully supported that land-lord is the best judge of his bona fide need and neither the tenant nor the Court can substitute its opinion or dictate terms in this regard.

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 bonafide 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 bonafide need unless such subsequent events are of such a nature & 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 bonafide 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."

More over, 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) & 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)"

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 bonafide 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 bonafide 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".

In the case of Denzil Najrath v. LR''s of Balwant Singh & 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 bonafide 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 bonafide 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."

Accordingly, it is directed that the appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit house to the respondent-plaintiff within a period of Six (06) Months from today i.e. on or before 31.10.2015 and shall continue to pay mesne profit @ Rs. 6,000/- per month (Rupees Six Thousand only), presently being paid to the land-lord and will further continue to pay the same 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 (06) 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 respondent/plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/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 also be bound by this decree. The appellant-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 respondent-plaintiff within a period of Six (06) Months from today, i.e., on or before 31.10.2015 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court.

With the aforesaid directions, the present first appeal of the appellant-defendant-Mahadev Kharwal S/o. Basti Ram Kharwal stands dismissed. A copy of this judgment be sent to both the learned Court below and both the parties forthwith.