Vikrant Kathuria vs Kanta Devi

This civil second appeal coming up for motion hearing is directed against decree and judgment dated 21.10.2003 of Sub Judge, CJM,

Udhampur in file No.50/30/Civil, whereby suit for ejectment of appellant, Vikrant Kathuria, from a shop situated at Ward No. 3 (near Court

premises), Udhampur, was decreed on the premise that the shop was needed by the plaintiff, Kanta Devi, for her husband, who had retired from

bank service and wanted to do Bank Consultancy from the shop in question, allowing two months period to the appellant, defendant, to vacate

and surrender the possession of shop in question to the landlady, as also against decree and judgment dated 30.09.2004 of District Judge,

Udhampur, whereby he dismissed the appeal of the appellant providing three months time to the appellant to vacate the premises.

Appellant seeks to maintain this appeal on the grounds taken in paragraph 2 of the memo of appeal. Paragraph 2 of the memo of appeal reads,

thus:

That the present civil second appeal raises the following questions of law for judicial adjudication by this Hon'ble Court: (i) Whether the scope

of section

I l(l)(h) of the J and K Houses and Shops Rent Control Act can be construed to include a nonexistent necessity on the date of filing of the suit till

disposal of the suit as well as the first appeal, seeking eviction of the tenant?

(ii) Whether a tenant in law can be asked to vacate and handover the tenanted premises on the ground of alleged personal necessity of the demised

premises on behalf of person who is not dependant on the land lady? (iii) Whether in proceedings for ejectment under the J and K Houses and

Shops Rent Control Act, dependence of the person for whom the premises is required, is a sine qua non for invoking the section 11 of the J and K

Houses and Shops Rent Control Act? (iv) Whether the demised premises can be got vacated on the ground of necessity of a 3rd person for using

the premises on the basis of alleged expertise, when perse such expertise is nonexistent?

(v) Whether the findings returned by the Courts below suffer from the element of perversity on the appreciation of evidence for eviction of the

tenant, does not fall in the purview of section 11 of the J and K Houses and Shops Rent Control Act, especially when it lacks essential requisites

necessary therefore? (vi) Whether the test of reasonableness can get satisfied on the basis of the comparative analysis of the personal necessity

between a tenant of 24 years and a land lord still serving in a Bank?

Sh. S. D. Sharma, learned counsel appearing for the respondent, opposes the admission of this civil second appeal on the grounds viz., (i)

concurrent findings of fact recorded by the two Courts that the suit shop was reasonably required by the respondent, landlady, for the use and

occupation of her husband, cannot be questioned by the appellant, tenant, because of the bar enacted by Section 100 of the Code of Civil

Procedure, which permits admission of a civil second appeal only if a substantial question of law arose from the case; (ii) the memo of appeal

raises only alleged questions of law rather than substantial questions of law as contemplated by Section 100 of the Code of Civil Procedure; (iii)

plea raised by the appellant in memo of appeal stands since settled by a catena of judgments of Hon'ble Supreme Court of India, and as such no

interference is required with the impugned decrees; and (iv) the questions framed by the appellant in his memo of appeal do not arise out of facts of

the case.

Learned counsel refers to 'Raghunath G Panhale (Dead)byLRS. Y Chaganlal Sundarji and Co.' reported as (1999) 8 SCC1; 'Vinay Kumar and

others v. Distt. Judge, Ghazipur and others' reported as 1995 Supp (2) SCC 586; 'Gaya Prasad v. Pradeep Srivastava' reported as (2001) 2

SCC 604; and 'Joginder Pal v. Naval Kishore Behal' reported as (2002) 5 SCC 397.

Sh. D. C. Raina, learned senior counsel appearing for the appellant, on the other hand, submits that there appears to be typographical error in

the memo of appeal and that questions of law framed by the appellant in paragraph 2 of memo of appeal are, in fact, substantial questions of law

and such the appeal is maintainable.

I have considered the submissions of learned counsel for the parties and gone through the judgments of learned District Judge, Udhampur, and

Sub Judge, CJM, Udhampur.

Sh. D. C. Raina, learned senior counsel appearing for the appellant contends that the necessity of the plaintiff landlady, was nonexistent on the

date of filing of the suit and that the husband of the landlady cannot be said to be dependent on the lady for whose benefit she could have

maintained a suit for ejectment against the defendant, appellant. In nutshell, the thrust of the learned counsel for the appellant, tenant, is that a suit

for ejectment of a tenant could be maintained only if there was a pressing need at the time of filing of the suit and no suit would be maintainable if

the need was to arise sometime after the date of filing of the suit.

Before dealing with the submissions of learned counsel for the parties and as to the maintainability of this civil second appeal, I would like to

quote issue No. 1 and the findings of learned Sub Judge, CJM, Udhampur, the trial Court, on this issue. Issue No. 1 and the findings of the trial

Court on it are as follows:

Issue No.1. Whether the plaintiff reasonable' and bonafidely requires the suit shop for the personal use and occupation of her husband? Finding

on Issue No.1. After evaluating the evidence adduced by parties one conies to a conclusion that the retirement and the income of plaintiffs husband

is not disputed at all. What is disputed is his liability/dependency, and the availability of shops in Udhampur town. After reading the evidence of

defendant conjointly we find that it is found in evidence of defendant that shops are available on rent but premium has to be paid. Reference to

statement of defendant himself would be apt. It is not the problem of plaintiff to arrange for the premium for defendant. The question is shops are

available on rent. Payment of premium if any, would not justify the defendant to retain the suit shop. Land lord cannot be refused eviction on the

ground that defendant has to pay premium for an alternative accommodation. Rent Control legislation never intends to put the tenant in a

commanding position at the cost of landlord. The landlord here in this case requires the tenanted premises genuinely for the use and occupation of

her husband to supplement his income, to maintain his standard of living, meet his social obligations etc, and above all to utilize his talent and past

experience, to save himself from post retirement trauma idleness, and frustration, and the tenant is coming up with a plea, that he cannot get an

alternative shop without payment of premium. This really seems to be funny. An owner cannot be made to suffer financially and physically, or

premium, would not justify a tenant to retain the suit shop. These are immaterial considerations, once bonafide requirement is established by

landlord which I am sure that plaintiff has established here. Defendant admits that plaintiff is ailing. Plaintiff's daughter usually visits her parents.

Plaintiff's husband has a widowed sister, who allegedly is financially dependant on plaintiff's husband. Plaintiff's husband is helping his son too. That

apart he has a meager pension of around 3/4 thousand rupees per month, as against a salary of Rs.25,000/ per month, when he was in service. He

has social obligations to fulfill, towards his four married sisters, other relations etc. He is said to have got employed in Devika Bank, but how much

he gets there is not known. It is asserted and even admitted by plaintiff that plaintiff's husband got employed as manager in Devika Bank for two

years. What then? Would this be a ground to refuse eviction, when this is even not known, as to how much he is being paid there. It is not only

food, shelter and clothing, which are needed now a days. There are so many needs, which one has to arrange for, to have a smooth normal living.

Plaintiff's husband cannot be forced to a pitiable life, below his social status, and keep the defendant undisturbed, who can manage alternative

business accommodation. Reemployment of plaintiff's husband, even if established would not mitigate the trouble of defendant as he has not

established the income of plaintiff's husband after reemployment. Even if it is tentatively fired at Rs.5,000/ even per month, still the monthly income

of plaintiff's husband works about 8/9 thousand, which is again not sufficient to manage the family affairs.

That apart, plaintiff's husband wants to start bank consultancy. He has a right to do so. Defendant tenant cannot prevent him from doing so, on the

plea that bank consultancy is an unknown trade or that his tenancy will get disturbed. Generally people experience, depression, trauma idleness, on

account of loss of substantial income, status etc, so if plaintiff's husband wants to remain busy and involved, he cannot be denied this opportunity.

He wants the suit shop to be used for bank consultancy, as he has no other premises available. So he has a bonafide and genuine need. Defendant

has not been able to repel the contention of plaintiff, and her evidence forcefully. The plaintiff's evidence weighs heavy and seems to be coherent,

consistent and plausible, so I am of the opinion that plaintiff has fulfilled the test laid down in (1996) 6 SCC 622 (supra) and has established that

the suit shop is needed by her genuinely and bonafidely, for the bonafide use of her husband. During arguments Ld. Counsel for defendant agitated

that the requirement for eviction is that landlord must be in need of suit shop for his/her own use and in this case plaintiff needs the shop for her

husband, so the requirement of law is not fulfilled. (2002) 5 SCC 397, in my opinion, is sufficient to repel the objection of Ld. Counsel for

defendant. I quote here relevant portion

We are of the opinion that the expression ""for his own use"" as occurring in section 13(3)(a)(ii) of the Act cannot be narrowly construed. The

expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that

the landlord must for himself require the accommodation and to fulfil the requirement he must himself physically occupy the premises. The

requirement of a member of the family or of a person on whom the landlord is dependant or who is dependant on the landlord can be considered

to be the requirement of the landlord for his own use....

No other substantial point was raised. So issue No.1 is decided in favour of plaintiff and against defendant.

Learned District Judge, Udhampur, confirmed the findings of the trial Court on Issue Nos. 1 and 2 and held that the shop was reasonably

required by the landlady for the benefit of her husband, who had retired from government service and wanted the shop to augment his income and

maintain the standard, which the family had been enjoying when the husband of the landlady had been posted as Deputy General Manager and

enjoying a good salary, which income had considerably decreased because of the retirement of the husband of the landlady.

Reasonable requirement contemplated by Section 11(1 )(h) of the J and K Houses and Shops Rent Control Act, cannot be taken to mean that

a landlord should have reached a level of starvation before he could justify his need and maintain a suit for seeking possession of his premises from

the tenant. A landlord cannot be expected to wait till he or she looses his or her existing job so as to launch an action to seek the eviction of his

tenant for its occupation by him/her or by any person on whose behalf the premises are held by him/her. A suit for ejectment, may, in my view, be

initiated by a landlord against his tenant, also on the basis of a need, which may arise in the near future.

One cannot blink at the ground realities because of which, it has become very difficult for a landlord to seek eviction of his premises from a

tenant within a short span of time of his launching such cause because of the slowness of process of litigation itself and the attitude adopted by the

tenant in resorting to all ways and means to protract eviction proceedings to perpetuate his possession over the tenanted premises. The law on the

point stands settled in 'Raghunath G. Panhale (Dead) by LRS v. Chaganlal Sunderji and Co.' reported as (1999) 8 SCC I and 'Gaya Prasad v.

Pradeep Srivastava' reported as (2001) 2 SCC 604, that the landlord or the person for whose benefit the litigation is launched by the landlord

need not require the premises on the date of filing of the suit and a cause may be initiated for a need, which is to arise in the near future.

The plaintiffrespondent had specifically pleaded in paragraph 3 of her plaint that the suit shop was required for the personal use and occupation

of her husband, who was at the verge of retirement from bank service and had to retire on 31.12.2000. The landlady had further stated that after

retirement, her husband would become total idle and jobless and that he wanted to open and start a consultancy office in the suit shop to offer

consultancy services in bank matters so as to augment his meager income, which he will get as adhoc pension after the retirement and to enable him

to earn livelihood for himself and the family members including the plaintiff. She had pleaded that her husband was dynamic and energetic and

would be able to keep himself busy and involved even after his retirement, which would prevent him from falling prey to any sort of depression or

sickness. The plaintiff further averred in this paragraph that the family of the plaintiffs husband consisted of his wife, old widowed sister, two

daughters and a son and all those two daughters and the son were married yet it was hard and worth judicial notice that a father of the daughters in

the Indian society is never free from their responsibility and as regards the son after doing engineering he could not get suitable job and had started

his own business, which was in its infancy and virtually the son of the family was still dependent on the plaintiff's husband.

This stand of the landlady stands substantiated by her evidence and the two Courts have concurrently held this stand and requirement of the

landlady proved to be justified and reasonable. One fact, which may be noticed at this stage is that during the pendency of the litigation between

the parties, the husband of the landlady stood retired and had taken a temporary job, which term of the temporary job too expired during the

pendency of the litigation. The tenant had tried to agitate the plea of landlady's husband's temporary employment during the currency of

proceedings, seeking leading of evidence on this point but this was declined by this Court when the matter came up in a revision on an earlier

occasion. The facts of the case, thus, indicate that the landlady's husband stands retired and is without any job and as per the findings of the two

Courts below the plaintiff needs the suit shop for her husband to run bank consultancy from the suit shop. The evidence further indicates that the

shops in Udhampur town were available on rent and the appellant, tenant, had not done any exercise in getting alternative shop for his occupation.

It stands further established from the findings of the two Courts that keeping in view the comparative advantage and disadvantage of the landlady,

her husband and the appellant tenant, the requirement of the plaintiff was reasonable.

The question raised by the appellant in paragraph 2 of the memo of appeal centers around only one point as to whether or not the

need/necessity of the landlady was nonexistent

in terms of Section 11 of the J and K Houses and Shops Rent Control Act. The question as to whether or not the landlord/landlady can file a suit

for a necessity which had to arise after the filing of the suit, is no longer resintegra in view of law laid down by the Hon'ble Supreme Court of India

in 'Raghunath G Panhale (Dead) by LRs v. Chaganlal Sundarji and Co.' reported as (1999) 8 SCC 1 and 'Gaya Prasad v. Pradeep Srivastava'

reported as.(2001) 2 SCC 604.

In view of the legal position settled by Hon'ble Supreme Court of India in the judgments referred to in the preceding paragraph, I do not find

any question of law, much less, a substantial question of law, which may arise in this appeal. A civil second appeal may be entertained under

Section 100 of the Code of Civil Procedure only if a substantial question of law arises in the appeal and such question is framed in the memo of the

appeal.

The appellant having failed to raise any substantial question of law in his memo of appeal and nor any such question arises out of this appeal. I,

therefore, do not find the present case a fit one, which may justify its admission to hearing. The appellant has failed to make out a case for

admission of this civil second appeal, which is, accordingly, dismissed with costs quantified at rupees five thousand (Rs.5,000/).

The appellant was granted time by the two Courts to vacate the shop but he has not made use of the time granted by the Courts and has been

using the judicial process to perpetuate his possession over the shop in question. I am not, thus, inclined to give him more time to vacate the shop in

question. He is, however, granted two weeks period to vacate and handover the possession of shop to the respondent, failing which the

respondent may take out execution proceedings in accordance with law.