Mathura Das vs Block H Sahakari Upbhokta Bhandar

Vineet Kothari, J.—The present second appeal has been filed by the landlord plaintiff-Mathura Das s/o Nathu Ram Arora against the defendant tenant, his own son, Baldev Raj, who started the business in the tenanted shop situated at 99, H Block, Sriganganagar in the name & style of Block H Sahakari Upbhokta Bhandar. The tenancy continued from 30/6/1985 at the monthly rent of Rs. 50/-. The present suit was instituted by the plaintiff-landlord, the father, Mr. Mathura Das seeking eviction of the suit shop measuring 31.5''x50'' in the year 1986 on the ground of default in payment of rent, dilapidated condition of the suit premises and bonafide need of the landlord for settling the business of his two younger sons, namely; Jugal Kishore and Radhey Shyam. The suit was contested by the defendant tenant and both the courts below dismissed the suit of the landlord and as far as the ground of personal and bonafide need of the landlord or his family member is concerned, the findings of the court below, as noticed by this Court, are reproduced hereunder for ready reference:-

The learned trial court also refused to decide issue no. 4 relating to comparative hardship of the elder son Baldev Raj and two younger sons; Jugal Kishore and Radhey Shyam, by observing as under:-

The appellate court of learned Civil Judge (S.D.), Sriganganagar while dismissing the appeal of the landlord (Appeal No. 30/91) vide its order dated 12/12/1995, on the issue no. 2 relating to bonafide and reasonable necessity, virtually reiterated the findings of the learned trial court in the following manner:-

The learned appellate court went on to affirm the findings of the learned trial court by observing that the landlord could take on rent some other premises for settling the business of other two sons in the following manner:-

While admitting the present appeal, a coordinate bench of this Court framed the following substantial questions of law on 3/2/1997:

"1. Whether the courts can insist the land lord to convert a residential accommodation into a commercial accommodation and also insist the landlord to construct a residential apartment on the upper floor ?

Whether on aforesaid irrelevant considerations the findings on the question of reasonable and bonafide necessity of the plaintiff landlord recorded by both the courts below are sustainable in the eye of law?

Whether the learned courts below have committed serious error of law and procedure in holding that it is necessary for the landlord to firstly take another premises on rent at a place where the business cannot be carried on and thereafter it is relevant to consider plaintiff''s reasonable and bonafide necessity ?"

Learned counsel for the appellant-landlord, Mr. Suresh Shrimali relying upon the following judgments in support of his contentions urged that the findings arrived at by the courts below albeit concurrent, are perverse and clearly contrary to the recent judgments of the Hon''ble Supreme Court and the view taken by this Court in the various decisions.

(i) Krishna Kumar Rastogi Vs. Sumitra Devi,

(ii) Dinesh Kumar Vs. Yusuf Ali,

(iii) Anil Bajaj and Another Vs. Vinod Ahuja,

(iv) Mohd. Ayub and Another Vs. Mukesh Chand,

Per contra, Mr. B.M. Agarwal relying on the decision of Hon''ble Supreme Court in the case of Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, , which are quoted below for ready reference, urged that the defendant respondent-tenant has also filed an application under Order 41 Rule 27 CPC in this Court on 3/1/2008 along with which he has produced certain additional evidence indicating that two sons of the landlord, for whose need the present suit for eviction was filed, are already settled in their businesses since 1986 in other tenanted shops and, therefore, the need of the landlord had vanquished and in view of this change of circumstances, the decree of eviction cannot be granted in favour of the landlord.

Learned counsel for the defendant-tenant also relied on the following extracted portion of the aforesaid Supreme Court decision in support of his aforesaid contention:-

"16.......... It is well settled now that in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statute controlling the eviction of tenants, unless the statute prescribes to the contrary, the requirement must continue to exist on the date when the proceeding is finally disposed of either in appeal or revision, by the relevant authority. That position is indisputable.

The High Court having failed to consider the circumstances which had arisen before it for the first time, it becomes our duty to have regard to them. Having considered the evidence in the case, particularly the fact that the landlord has obtained decrees for possession against 3 out of the 4 tenants on the ground floor and 1 out of the 3 tenants on the first floor, we do not see any justification for evicting the appellant from the premises in his occupation. The landlord''s requirement, such as it is, is more than adequately met by the eviction of those 4 tenants.

It is doubtful whether the respondent would have at all succeeded in any one of the 7 cases if, the trial court had correctly appreciated the effect of suppression of the material documentary evidence by him. But the eviction decrees passed against 6 out of the 7 tenants are now an accomplished fact and those matters, having been finally determined, cannot be reopened."

The said application under Order 41 Rule 27 of defendant is also contested by the learned counsel for the appellant-landlord by filing reply on 14/3/2008.

Having heard the learned counsels at some length and upon perusal of the record and judgments cited at the bar, this Court is of the considered opinion that the present second appeal of the landlord deserved to be allowed and the judgment & orders of the courts below deserve to the set aside. The findings and reasons arrived at by the courts below are perverse to the core and are clearly contrary to the recent judgments of the Hon''ble Supreme Court and this Court. The denial of the decree of eviction on the ground that the need of the sons for whose bonafide and reasonable need the eviction suit was filed stood satisfied over the long period of litigation, which in the present case has spilled to nearly 30 years, cannot be said to have vanquished or over with the sheer lapse of time. The sons of the landlord could not be expected de facto & dejure to await endlessly for the eviction of the decree to come and the possession of the shop in question to settle their business need. It is not for the tenant to dictate the landlord as to how he should utilise his premises in an alternative manner much less to suggest that the needs can be satisfied by taking alternative accommodation on rent at some other place. The gist of the judgments cited by the learned counsel for the landlord is clearly this that it is enough for the landlord to indicate and establish that the need existed at the time of the filing of the suit and mere long lapse of time would not finish that need, even if the family member for whose need the suit was filed, by some sort had started earning his bread and butter.

The judgment cited by the learned counsel for the defendant tenant in the case of M/s. Variety Emporium (supra) is not only distinguishable on facts and the observations made in para 16 of the said judgment in favour of the tenant also stand watered down in subsequent and recent trend of the Supreme Court, which has been consistently followed by this Court. In the said case, the eviction decree was denied to the landlord because he had three out of four shops available & while doing so, the Supreme Court observed that such bonafide need must continue to exist even when the proceedings are finally disposed of either in appeal or in revision. This position of law is no longer in consonance with the established ratio of the various later judgments of Supreme Court, cited above and with the changing trend in favour of the landlord and interpreting the various provisions of Rent control law, the courts have tilted in favour of the landlord.

The victory of the tenant is the time taken in these kinds of litigation and not the answer to the substantial questions of law. In the present case itself, 30 long years have passed and the property itself, as appear from the photographs, would show that the same has been reduced to almost a crumbling and dilapidated condition. The portion of the house where the shop in question is situated is said to be in possession of the respondent tenant. Even if the additional evidence produced by the defendants was taken into account that would all the more go to support the case of the landlord that the sons for whose need the eviction suit was filed by the father landlord had to take another shop on rent from a third party. Their need to start their business in their own premises in this case not only continued but it continued with more aggravation because when they had to start the business to make their living in a tenanted shop of some third party.

Therefore, this Court does not find any force whatsoever in the contentions of the learned counsel for the respondent tenant and no support can be drawn from the cited judgment in his favour. On the other hand, the plethora of legal precedents in favour of the landlord by the Supreme Court and this court clearly support the view of the appellant landlord. Findings of the courts below, as quoted above, are in clear conflict with the settled legal position now and, therefore, cannot be sustained. The impugned orders, therefore, deserve to be set aside and the decree of eviction deserves to be given to the appellant landlord and the substantial questions of law deserved to be answered in favour of the appellant landlord and they are so answered.

Accordingly, the present second appeal of the landlord is allowed with cost of Rs. 10,000/- to be paid by the respondent-tenant to the plaintiff-appellant. The respondent tenant shall hand over the peaceful & vacant possession of the suit premises to the appellant-plaintiff within a period of four months from today i.e. on or before 10th April, 2015 and shall pay mesne profit @ Rs. 1,500/- per month from January, 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 appellant-plaintiff and in case there is any default in payment of mesne profit, the period of four 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 plaintiff within two months from today, otherwise the same will bear interest @ 9% per annum. The respondent-tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises 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 the same would be treated as void. The respondent-defendant-tenant 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 shop is not handed over to the appellant-landlord within a period of four months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties.