Smt. Sharda Sharma @APPELLANT@Hash Banwari Lal Agrawal

Under challenge in the instant writ petition is the judgment & decree passed by the Appellate Rent Tribunal, Jaipur dt.17-8-2010 dismissing the

appeal filed by the petitioner (to be referred as “landladyâ€) against the judgment & decree passed by the Rent Tribunal dt.7-7-2008 whereby the

eviction application filed by the landlady was dismissed.

Brief facts of the case are that the shop in dispute (“suit shopâ€) was given to the respondent no.1 (to be referred as the “tenantâ€) on

monthly rent of Rs.525/-. On 30-6-2000 husband of the landlady namely Sh. Nathu Lal stood retired from service from the Central Cooperative Bank.

The landlay filed eviction application in the year 2003 before the Rent Tribunal, Jaipur under Section 9 of the Rajasthan Rent Control Act,2001 (to be

referred as the “Act of 2001â€) for eviction of the tenant from the suit shop on the grounds of reasonable & bonafide necessity for husband’s

business to run photostat & typing shop to take care of their livelihood as they are not having any source of income since her husband after retirement

was not receiving any pension and the amount of PF & gratuity & leave encashment was incurred from time to time in solemnizing/performing

marriage of their four daughters & now they have finally exhausted and want the suit shop for the said purpose.

The tenant filed reply to the eviction application wherein while admitting the tenancy & also the amount of rent, denied the personal need &

bonafide necessity of the suit shop by the landlady for her husband.

The learned Rent Tribunal on the basis of the pleadings of the parties framed followings issues :-

“mijksDr vfHkopuksa ds vk/kkj ij izdj.k esa fuEufyf[kr okn fcanq fojfpr fd;s x;s %&

1- vk;k vthZnkj dks ewy vthZ ds iSjk u- 3 esa of.kZr nqdku dh Lo;a ,oa dqVqEc ds mi;ksx ;k vf/kHkksx ds fy, ;qfDr;qDr :i ls vkSj lnHkkfod :i ls

visf{kr gSa?

2- vk;k izR;FkhZ dh vksj ls fooknxzLr nqdku fdjk;s ij ysrs le; 6 ekg dk fdjk;k 3150 :- vfxze :i ls izkIr fd;k] tks vthZnkj ds ikl vekur ds :i esa gSa ?

3- vk;k izR;FkhZ dh vksj ls twu&2003 rd dh fdjk;k jkf'k /kkjk&19 **,** ,oa /kkjk&19 ^^lh** jkt- js.V d.Vksy ,DV ds rgr tek djkbZ] mlds i'pkr vkxkeh

ekg dk fdjk;k vthZnkj dks euhvksMZj }kjk Hkstus ds mijkar vthZnkj }kjk ugha ysus ,oa cSad [kkrk lwfpr djus ds uksfVl nsus ds ckotwn cSad dk fooj.k

ugha lwfpr djus dk vthZ ij D;k vlj gSa ?

 4a vuqrksiâ€​

The landlady in support of her case examined herself as PW1 & also got examined her husband Sh. Nathu Lal Sharma PW2 and produced the

affidavits of Sh. Shambhu Lal Sharma PW3 & Radhey Shyam PW4. She also produced documents Ex.1 to Ex.3 and got the same exhibited. The

tenant in support of his case examined himself as DW1 and produced the affidavits of Om Prakash Agrawal DW2, Kailash Chandra DW3, Kunj

Bihari Lal Agrawal DW4, Suresh Kumar Agrawal DW5, Sanwar Mal Agrawal DW6, Dayaram DW7. He also produced documents Ex.A-1 to A119

and got the same exhibited.

The learned Rent Tribunal after recording the evidence of both the parties dismissed the eviction application filed by the landlady vide judgment &

decree dt.7-7-2008.

The landlady being aggrieved by the judgment & decree passed by the Rent Tribunal dt.7-7-2008 preferred appeal before the Appellate Rent

Tribunal, Jaipur which was also dismissed by the Appellate Rent Tribunal vide judgment & decree dt.17-8-2010.

Hence the present writ petition came to be filed by the landlady under Article 226 & 227 of the Constitution of India.

During pendency of the present writ petition the landlady expired and her husband Nathu Lal Sharma was permitted to be taken on record as her

legal representative by this Court vide order dt.25-5-2016.

Counsel for the landlady submitted that the finding recorded by both the courts below on issue no.1 is perverse as the landlady proved by leading

evidence before the Rent Tribunal that husband of the landlady retired from the bank’s job and there is reasonable & bonafide need of the suit

shop for her husband but despite that both the courts below have not considered this fact in right perspective. Counsel further submits that the

Appellate Rent Tribunal has given perverse finding on the issue no.1 as it has wrongly held that it is not possible for a person of 70 years of age to

start a new business and the ground is not bonafide. Counsel further submits that the finding given by both the courts below is perverse on this count

also as the courts below have held that eviction application was not filed by the landlady just after retirement of her husband for whom the suit shop

was required.

Counsel further submits that finding given by the courts below on the issue no.1 on the pretext that the husband of the landlady was not having

experience to run the business of photostat & typing, is perverse as for starting new business as pleaded by the landlady, is not technical in nature &

no experience is required.

Counsel further submits that the concurrent finding of fact recorded by both the courts below can be looked into by the High Court under Article

227 of the Constitution of India if the same are perverse. In support of contentions the counsel relied upon the judgment passed by the Hon’ble

Supreme Court in the matter of Raghunath G. Panhale (Dead) by LRS. Vs. Chaganlal Sundarji & Co., reported in (1999)8 SCC page 1 where in

para- 11 it has been held as under :-

“11. It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of “need†or

requirement†to be equivalent to “dire or absolute or compelling necessityâ€. According to them, if the plaintiff had not permanently lost his job on

account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and

hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor

resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which

the courts have gone into the meaning of “lockout†in the Industrial Disputes Act,1947 appears to us to be nothing but a perverse approach to the

problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn

litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one’s

premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the longdrawn litigation he started some

other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or

a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that

he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an

agreement of sale of immovable property. So far as experience is concerned, one would not think that a grocery business was one which required

extraordinary expertise. It is, therefore, clear that the entire approach of both the courts below was absolutely wrong in law and perverse on fact.

Unfortunately the High Court simply dismissed the writ petition filed under Article 227 stating that the findings were one of fact. That is why we think

that this is an exceptional case calling for interference under Article 136 of the Constitution of India.â€​

Counsel further relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Vishwanath & Anr. Vs. Hidayatt Ullah,

reported in (1999) 2 SCC 535 where in para-4 it has been held as under :-

“4. There appears to be a complete misreading of the pleadings by the High Court. Even a cursory look at para 10 of the petition (supra) shows

that the landlord had unequivocally pleaded that the premises were required for starting a business for himself as well as for the benefit of his son.

There was therefore, no warrant to say that pleadings in that behalf were lacking. Besides the pleadings, the High Court also failed to appreciate the

evidence on the record which clearly established that the landlord bona fide required the premises for starting his own business. The opinion of the

High Court that since the landlord, a retired government servant, had not stated that his pension was not adequate, it implied that there was no bona

fide need for him to start any business is wholly unsustainable and not at all rational. There is no presumption that a pensioner who has adequate

pension cannot have a bonafide need to start his business after retirement. The High Court not only misread and misunderstood the pleadings, but also

ignored the vital evidence which had been brought on the record to establish the bona fide need of the landlord. The order of the High Court,

interfering with that of the Rent Controlling Authority, is clearly erroneous and cannot be sustained. These appeals, therefore, succeed and are

allowed. The impugned order is, consequently, set aside. The order of the Rent Controlling Authority is hereby restored. No costs.â€​

Counsel further relied upon the judgment of Punjab & Haryana High Court in the matter of Vinod Kumar Vs. Sat Pal Kapoor, reported in 2010(1)

RCR 92, where in para-9 it has been held as under :-

“9. It is not necessary for the landlord to seek eviction of the tenant soon after his retirement. The period of four years after retirement is not much

on the basis of which any inference doubting the bonafide of the landlord can be raised.â€​

On the other hand counsel for the respondent submits that the concurrent findings recorded by both the courts below cannot be disturbed by the

High Court under Article 227 of the Constitution of India. Counsel further submits that the findings given by the learned trial court is based on sound

appreciation of evidence and the same is not liable to be disturbed by this Court. Counsel further submits that the landlady has also mentioned in the

eviction application that the grandson (daughter’ son) namely Anoop adopted by them, more money is required for his studies, however fact of his

adoption was not proved before the learned courts below therefore the finding given by the learned courts below on issue no.1 is just & proper.

Counsel further submits that the eviction application was not filed by the landlady just after the retirement of her husband, therefore, the need of

the suit shop was not bonafide. Counsel further submits that the need projected by the landlady is manufactured & fabricated one and thus the finding

given by the courts below does not required interference by this Court.

In support of contentions, the counsel relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Sheel Chand Vs.

Prakash Chand, reported in (1998)6 SCC 683, wherein in para-7 it has been held as under :-

“7. The question of law formulated by the learned Single Judge, noticed above, strictly speaking is not even a question of law, let alone a substantial

question of law. The existence of a â€substantial question of lawâ€, is the sine qua non for the exercise of jurisdiction by the High Court under the

amended provisions of Section 100 CPC. It appears that the learned Single Judge over looked the change brought about to Section 100 CPC by the

Amendment made in 1976. The High Court unjustifiably interfered with pure questions of fact while exercising jurisdiction Under Section 100 CPC. It

was not proper for the learned Single Judge to have reversed the concurrent findings of fact while exercising jurisdiction Under Section 100 CPC.

That apart, we find that the learned Single Judge did not even notice, let alone answer the question of law which had been formulated by it at the time

of admission of the second appeal. There is no reference to the question of law in the impugned order and it appears that the High Court thought that

it was dealing with a first appeal and not a second appeal Under Section 100 CPC. The findings of fact recorded by the two courts below were based

on proper appreciation of evidence and the material on the record. There was no perversity, illegality or irregularity in those findings. None has been

brought to our notice by the learned counsel for the respondent either. The findings, therefore, did not require to be upset in a second appeal Under

Section 100 CPC. The judgment of the learned Single Judge, under the circumstances, cannot be sustained. This appeal consequently succeeds and is

allowed. The judgment and order of the High Court dated 13.09.1996 is set aside. As a result, the eviction suit filed by the landlord shall stand

dismissed. No costs.â€​

Counsel further relied upon the judgment passed by the Hon’ble Supreme Court in the matter N. Eswari, w/o Adinarayana Vs. K. Swarajya

Lakshmi, w/o Late K.V.L.N.A. Sastry, reported in 2009(9) SCC 678, where in paras-12 & 13 it has been held as under :-

“12. As noted hereinearlier, the Rent Controller, Vijayawada and the appellate authority concurrently held on fact on proper appreciation of

evidence on record that the respondent landlady had failed to prove that she required the premises in question for her bona fide need. This concurrent

finding of fact was upset by the High Court in its revisional jurisdiction. In our view, the High Court was not justified in interfering with such

concurrent finding of fact in the exercise of its revisional jurisdiction and come to a different finding on the question of bona fide need of the

respondent landlady.

In Rajbir Kaur v. S. Chokesiri and Co. this Court considered this aspect of the matter and in para 43, has dealt with the aforesaid question

elaborately:

“43. When the findings of fact recorded by the courts below are supportable on the evidence on record, the Revisional Court must, indeed, be

reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record

admitted of and supported the one reached by the courts below. With respect to the High Court, we are afraid, the exercise made by it in its revisional

jurisdiction incurs the criticism that the concurrent finding of fact of the courts below could not be dealt and supplanted by a different finding arrived at

on an independent reassessment of evidence as was done in this case.â€​

This Court has considered the rival submissions made by the counsel for the parties and also the perused the material on record.

The argument raised by counsel for the petitioner that the perverse finding recorded by both the courts below can be entertained by this Court

under Article 227 of the Constitution of India deserves to be accepted in view of the judgment passed by the Hon’ble Supreme Court in the matter

of Raghunath G. Panhale (supra).

A bare reading of the findings given by both the courts below on the issue no.1 in my considered opinion is perverse. The finding given by the

learned courts below that the eviction application was not filed just after the retirement of the husband of the landlady is also perverse as admittedly

the eviction application was filed just after 3½ years of the retirement of husband of the landlady and such period in my considered opinion cannot be

said to be inordinate delay in filing the eviction application and bonafide of the landlady for her husband cannot be doubted as has been held by the

Punjab & Haryana High Court in the matter of Vinod Kumar (supra). Further the finding given by the learned courts below on the issue no.1 relating

to age of the husband of the petitioner that it is not possible to start a new business is also perverse as at the time of filing of the eviction application

the husband of the landlady was 61 years of age. The finding given by the learned courts below on the issue no.1 is that husband of the landlady for

whom the suit shop is required, has not experience to run such a business as pleaded, in my considered opinion is also perverse since the business of

photostat & typing machine is not such a technical and no expertise is required to start such business.

Lastly, as has been proved by the landlady before the courts below that she has four daughters and her husband is not getting pension, therefore

more money is required to take care of theirs, in my considered opinion, the personal need & necessity of suit shop by the landlady for her husband is

reasonable & bona fide one.

The first argument raised by counsel for the respondent that there is concurrent finding of the fact and this Court has limited jurisdiction under

Article 227 of the Constitution of India & cannot disturb such findings, is not acceptable the findings given by both the courts below are perverse on

many counts as has been discussed above.

The next argument raised by counsel for the respondent that the ground taken by the landlady in her application that she needs more money for

further study of her grand son (daughter’s son Anoop) as pleaded, the same has not been proved before the courts below, is also not acceptable

for the reason that the landlady has mentioned other grounds also and that was not the sole ground.

The last argument raised by counsel for the tenant that the application was not filed just after the retirement of the husband of the landlady is also

not acceptable in view of the judgment passed by the Punjab & Haryana High Court in the matter of Vinod Kumar (supra) and in my considered view

the delay is not fatal in such matters.

In view of the entire discussion made above, the writ petition filed by the petitioner deserves acceptance.

At this stage, counsel for the respondent submitted that at least while staying the effect and operation of the present judgment, they may be

granted interim relief for a period of two months.

Since the petitioner at the time of filing of the eviction application was 61 years of age and by passage of time has become of 80 years, this Court

in the facts and circumstances is not inclined to grant the interim relief prayed for.

Consequently, the writ petition is allowed. Both the judgments & decree of the Appellate Rent Tribunal as well as of the Rent Tribunal dt.17-8-

2010 & 7-7-2008 respectively, are set aside. The petitioner is held entitled to vacant possession of the suit shop.