Ram Sukhi Bai vs Mishri Mal Chhotmal and Others

Dr. Vineet Kothari, J.—1. The present second appeal under Section 100 C.P.C. has been filed by Ravi Birla s/o. Shri Ramnarayan Birla, and grandson of Smt. Ram Sukhi Bai, the original plaintiff in the present eviction matter, who sought eviction of the defendant-respondent-tenant-M/s. Mishri Mal Chhotmal, in respect of the suit shop in question situated at Pali.

The plaintiff-landlord-Smt.Ram Sukhi Bai, the owner of the suit shop in question expired on 06.12.2008 and left a Will in respect of the suit shop in question in favour of the appellant-Ravi Birla and for whose bona fide business need, inter alia, the eviction of tenant was sought.

The learned courts below however, denied the said eviction decree concurrently and it is found appropriate to reproduce the relevant portions of the said orders respectively:-

Order dated 21.09.2006 passed by the learned trial court of Civil Judge (Senior Division), Pali in Civil Original Suit No. 42/2005(134/2001) - Smt. Ramsukhi Bai Vs. Firm Mishrimal Chhotmal:

Order dated 06.11.2008 passed by the learned appellate court of Additional District Judge (Fast Track) No. 2, Pali in Civil Appeal Decree No. 9/2008(74/06) - Smt.Ramsukhi Bai Vs. Firm Mishrimal Chhotmal:

While admitting the present second appeal on 04.07.2012, this Court framed the following substantial question of law for consideration:-

"(i) Whether the courts below were justified in refusing the decree of eviction on the ground of bona fide necessity of the grandson Ravi Birla on the stated grounds of the partition of the family property as also the availability of alternative accommodation to the family for the business of said grandson Ravi Birla?

The defendant-respondent-tenant has filed an application (IA No. 12925/2012) in this Court on 25.09.2012 seeking dismissal of the present second appeal as having abated, in view of death of Smt. Ram Sukhi Bai on 06.12.2008 supported by the affidavit of the defendant-tenant-Chhotmal, to which a reply has been filed by the landlord-Ravi Birla contesting the said application and he has submitted that on the basis of the Will, the appellant-Ravi Birla had filed the present appeal as landlord, aggrieved by the concurrent rejection of the eviction decree and therefore, the present second appeal deserves to be allowed on merits.

Mr. K.K. Shah, learned counsel for the plaintiff-appellant-landlord urged that not only the grandson Ravi Birla on the basis of the Will executed by the original plaintiff-Smt. Ram Sukhi Bai, his grandmother, he became the owner and landlord of the suit shop in question, but otherwise also in view of the undisputed fact that for his own business needs only, his grandmother had filed the present suit for eviction, and after her death, he had a right to maintain the present second appeal on merits and seek eviction in respect of the suit shop in question, which has been unjustifiably denied by the learned courts below. Mr. K.K. Shah also submitted that the landlord is the best judge of his own needs and neither the tenant nor the court concerned can dictate terms in this regard or substitute their own opinion about the needs of the landlord. The other shops were sold for family requirements. In support of his submissions, Mr. K.K. Shah relied upon the judgments of the Hon''ble Supreme Court in the cases of Akhileshwar Kumar & Ors., Vs. Mustaqim & Ors., , (2003) 1 SCC 462 and Lingala Kondala Rao Vs. Vootukuri Narayana Rao, , 2003 (1) WLC (SC) Civil 211 and of this Court in the cases of Ganesh Ram through LRs. Vs. Sanwarmal, , 2010 (2) RLW 1899 (Raj.) and Ahmed Farooq & Ors. Vs. Harish Chandra & Ors., 2012 (4) WLN 196 (Raj.).

On the other hand, Mr. M.R. Singhvi, Senior Advocate appearing with Mr. Hukam Singh for the defendant-respondent-tenant submitted that the present second appeal stood abated with the death of Smt. Ram Sukhi Bai and the appellant-Ravi Birla had no right to maintain the present appeal. He further prayed that the matter may be remanded back to the learned trial court for holding enquiry under Order 22 Rule 5 CPC, as to whether the said appellant had a right to sue in the present case or not. In support of his submissions, Mr. M.R. Singhvi relied upon the judgments of the Hon''ble Supreme Court in the cases of Naraindas Lilaram Adnani Vs. Narsinghdas Naraindas Adnani & Ors., , 1995 Supp. (1) SCC 312 and Jaladi Suguna (Deceased) through LRs. Vs. Satya Sai Central Trust & Ors., , (2008) 8 SCC 521. On merits, Mr. M.R. Singhvi submitted that the findings of the learned courts below being concurrent in nature, are findings of facts and do not deserve to be disturbed by this Court in the present second appeal.

Having heard the learned counsels for the parties, this Court is satisfied that the present second appeal, filed by Ravi Birla, the grandson of the original plaintiff-Smt. Ram Sukhi Bai, is not only maintainable, but the same deserves to be allowed, answering the substantial question of law framed above in favour of the plaintiff-appellant-landlord and against the defendant-respondent-tenant. The reasons are as follows.

In view of the Will in favour of the present appellant-Ravi Birla and the undisputed fact that he is the grandson of the original plaintiff-Smt. Ram Sukhi Bai and for his business needs only, the eviction was sought, his right to sue after the death of Smt. Ram Sukhi Bai on 06.12.2008 cannot be disputed by the defendant-tenant. It is neither a case of succession, nor grant of probate of Will, and therefore, those intricate questions cannot be decided in rent control and eviction cases. As per the settled legal position in this regard, such questions are neither relevant, nor germane to such cases of eviction under the Rent Control Act, 1950. The question of title is also therefore not relevant, and as far as the attornment of tenancy in favour of the landlord is concerned, that is automatic. In the present case, the defendant-tenant does not dispute the identity and the relationship of the present appellant Ravi Birla with the deceased Smt. Ram Sukhi Bai, the original plaintiff, and therefore, neither a fresh enquiry in this regard is necessary, nor the locus standi of the present appellant-Ravi Birla to maintain the present appeal can be questioned. The same is therefore, upheld and IA No. 12925/2012 filed by the defendant-tenant in this regard is liable to be rejected and the same is accordingly rejected.

Coming to the merits of the case, this Court is of the considered opinion that the learned courts below have grossly erred in refusing the eviction decree against the settled legal position in this regard.

The settled legal position about bona fide need of the landlord and his family members and that landlord is the best Judge to say so, has been delineated in several judgments off-quoted by this Court, some of which are as follows.

In Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal & Ors. - , (2005) 8 SCC 252, 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 & 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 - , (1996) 5 SCC 353, 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 bona fides 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."

More over, as held by Hon''ble Supreme Court itself in a recent decision of two Judges bench in Satyawati Sharam vs. Union of India - , (2008) 5 SCC 287, which has been later on reaffirmed by three Judges bench decision of Hon''ble Apex Court in State of Maharashtra & Anr. vs. Super Max International Private Ltd. & Ors. - , (2009) 9 SCC 772 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 Vs. 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".

In the case of Denzil Najrath Vs. 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 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."

In view of the aforesaid legal position, the contention raised on behalf of the defendant-respondent-tenant that an alternative accommodation was available to the landlord for satisfying his business needs, which the landlord claimed to be belonging to other relative and had been sold away long back, could not be a ground to refuse the eviction decree. The suitability of a particular shop also had to be adjudged by the landlord and not by the tenant. It is true that all evictions of tenants result in some inconvenience to them, but that cannot be a ground to refuse the eviction decree. The eviction decree has been refused by the learned courts below on wholly erroneous grounds by either substituting their own opinion about the genuineness of the need or accepting the version given by the defendant-tenant as a gospel truth. Merely because the plaintiff-Smt. Ram Sukhi Bai herself was not examined by the learned trial court, that could not be a ground to refuse the eviction decree. Admittedly, the appellant-Ravi Birla and his father both were examined by the learned courts below and they properly established their need for the suit shop in question. The learned courts below have therefore, acted contrary to the settled legal position, and therefore, the impugned orders cannot be sustained.

Accordingly, the present second appeal of the plaintiff-landlord is allowed and while answering the substantial question of law framed above in favour of the plaintiff-landlord and against the defendant-tenant, the eviction decree is given in favour of the appellant-plaintiff-landlord.

In the circumstances, it is directed that the defendants-tenants shall hand over the peaceful and vacant possession of the suit property in question to the plaintiff-landlord on or before 31.07.2016 and shall pay mesne profit @ Rs. 5,000/- per month (Rupees Five Thousand only) commencing from the month of February, 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 plaintiff-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 defendants-tenants shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff-landlord within three months from today, otherwise the same will bear interest @ 9% per annum. The defendants/tenants 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 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 plaintiff-landlord 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 plaintiff-landlord 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.