Rajkumar vs Sakina

Dr. Vineet Kothari, J.—The present second appeal under Section 100 of the Civil Procedure Code has been filed by the plaintiff-appellant-landlord against the judgment and decree dated 31.07.2010 passed by the learned appellate court of Additional District Judge (Fast Track) No. 2, Bikaner in Civil Appeal Decree No. 158/2009 - Rajkumar v. Smt. Sakina, affirming the judgment and decree dated 26.09.2007 passed by the learned trial court of Civil Judge (Junior Division) & Judicial Magistrate First Class, Bikaner in Civil Original Suit No. 45/2003 - Raj Kumar v. Smt. Sakina, dismissing the suit for eviction filed by the plaintiff-appellant.

The relevant extract of the findings of the learned trial court in the order dated 26.09.2007 is as under:--

The relevant extract of the findings of the learned appellate court dated 31.07.2010 is as under:--

This Court, while admitting the present second appeal on 28.08.2012, framed the following substantial question of law for consideration by this Court:--

"Whether the courts below were justified in rejecting the suit for eviction which was sought on the ground of personal and bonafide necessity of the landlord, who was himself residing with friend of his father Shri Poonam Chand and was doing his business of goldsmith in a rented shop of one Sheshkaran Suthar who appeared before the learned Court below and have supported these facts?"

I have heard the learned counsels for the parties and perused the record.

The settled legal position about bona fide need of the landlord by following various case laws is that the landlord himself is the best Judge to decide his need and it is not for the tenant or the court concerned to dictate terms in this regard or substitute its own opinion.

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 dicate 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."

In the considered opinion of this Court, the present second appeal of the plaintiff-appellant-landlord deserves to be allowed, because the courts below have illegally substituted their own opinion in place of the statement of the landlord in regard to his own need for his son and increasing number of family members. The same is allowed and the substantial question of law framed above deserves to be answered in favour of the plaintiff-appellant-landlord and the same is accordingly so answered.

In the circumstances, it is directed that the respondents-defendants-tenant shall hand over the peaceful and vacant possession of the suit property in question to the appellant-plaintiff on or before 31.12.2016 and shall pay mesne profit @Rs. 3,000/- per month (Rupees Three Thousand only) commencing from the month of January, 2016 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 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/defendants/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the appellant/plaintiff 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 defendants-tenants 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 appellant-plaintiff within a period of One Year 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. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.