Hon'ble Supreme Court in Bentool Steel Products Private Limited v. O.M.A. Mohammed Omar & Anr. : (2008) 17 SCC 679 while dealing with the issue of comparative hardship relying on judgment in the case of Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada : (2003) 2 SCC 320 held that onus is on the tenant of bringing relevant factors which would enable a finding as to comparative hardship being arrived at in his favour and he should discharge the onus.
In view of the language of provision regarding comparative hardship and partial eviction in Section 14(2) of the Act requiring 'satisfaction of the Court', the burden of partial eviction also has to be discharged by the defendants.
Rajasthan High Court - Jodhpur
S.B. CIVIL FIRST APPEAL NO.152/1990 Hansraj & Ors. vs. LRs of Jeetmal & Ors. Date of Judgment; 28th October, 2014 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Citation; AIR 2015(NOC)25 RAJ
These first appeals under Section 96 CPC have been filed by the defendants and plaintiff against judgment and decree dated 24.09.1990 passed by Additional District Judge, Bikaner, whereby, the suit filed by the plaintiff for arrears of rent and eviction has been partially decreed and the defendants have been ordered to be evicted from half of the suit shop.
The facts in brief may be noticed thus : the plaintiff filed the suit on 22.03.1983 for eviction of tenants from shop and a room situated at K.E.M. Road, Bikaner and for arrears of rent against the defendants with the averments that the shop and the room are on rent with the defendants from before 1962, whose rent was Rs. 85/- per month other than water and electricity; the defendants stopped payment of rent without any reason w.e.f. Falgun Badi Amavasya Samvat 2027 and refused to pay the rent and defaulted in payment of rent for over six months; whereafter the dispute was settled between the parties, whereby, the rent was enhanced to Rs. 300/- w.e.f. 31.01.1978 and a rent note was executed, which was got registered and a new tenancy came into existence; it was alleged that w.e.f. 01.02.1981 the defendants stopped paying rent and, therefore, they have become defaulters and thus the plaintiff was entitled to seek possession; it was also claimed that the suit shop was required for personal use as a shop had been taken on rent in the name of plaintiff's father at Maru Nayak Ji temple, which is quite small; after death of father, an objection being raised by his brother and looking to the age, the plaintiff now cannot do the work of sweet manufacturing; the plaintiff has two sons, elder being Ram Nath, who was educated and as the shop was not vacated in the earlier suit, he joined government service; his second son Asha Ram has little interest in studies and has failed in Class 10th and does not want to study further and has learnt the work of pipe line fitting for water supply and was involved in petty jobs and has assumed proficiency; the shop was required for Asha Ram for pipe fitting and related goods hardware, paints, electricity goods etc. and the room above the shop was required for accounts and correspondence etc. for being put to said use; it was also claimed that the plaintiff wants to construct underground under the shop for storing pipes and heavy goods and would use the same as go-down; if the shop was not vacated his young son would be rendered unemployed; defendants have another shop in the same row and has another shop at Court Gate, Bikaner where they could do their business and have sufficient income from other shops; they have employed a servant and a Munim for recovery of rent and the suit shop was not required by them; the shops were also available in other parts of Bikaner; ultimately, it was prayed that the suit shop and room be got vacated and arrears of rent to the extent of Rs. 7,500/- be awarded.
A written statement was filed by the defendants denying the averments made in the plaint and in additional pleas it was claimed that defendants have never stopped payment of rent and, therefore, are not defaulter; the rent note was got executed, again on misleading talks and an illegal agreement has been executed; it was prayed that the suit be dismissed.
The trial court framed six issues; on behalf of the plaintiff
- six witnesses were examined; on behalf of the defendants three witnesses were examined.
After hearing the parties, the trial court came to the conclusion that though the defendants have committed default in payment of rent, however, the defendants were entitled for benefit of Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act'); the suit shop was reasonably and bona fidely required by plaintiff for his son Asha Ram and comparatively plaintiff would suffer greater hardship as the defendants have another shop inside Court Gate; the requirement of the defendants would be fulfilled by partial eviction i.e. from half portion of the shop and as the rent determined on 03.11.1983 had been deposited by the defendants, the rent was not in arrears and the plaintiff would be entitled to rent @ Rs. 300/- per month and passed the decree for partial eviction.
Feeling aggrieved, the appellants have filed the present appeal questioning the finding of default in payment of rent, reasonable and bona fide requirement and partial eviction as well.
The plaintiff also felt aggrieved by decree of partial eviction only and has questioned the finding on the said issue pertaining to partial eviction; another issue has been raised that the trial court while passing the decree has not ordered for eviction of the defendants from Maliya (room).
During pendency of the appeal, the appellants-tenants filed an application under Order VII, Rule 7 CPC seeking to place on record the fact that the decree for eviction from the suit shop has been passed for the requirement of Asha Ram, who is also known as Avinash Acharya and said Asha Ram has joined government employment; he was appointed at Phalodi and then was transferred to Bikaner and was working at Additional Civil Judge (Junior Division) No.1, Bikaner and, therefore, the requirement of the suit premises has come to an end and the issue of comparative hardship is also not in favour of the plaintiff.
A reply dated 28.09.2012 to the application has been filed by the plaintiff, inter alia, contending that the suit was filed on 03.03.1983 for the bona fide necessity of Avinash, who was unemployed and wanted to set up business of sanitary ware and electrical goods, the decree for partial eviction was passed on 24.09.1990, which was stayed by this Court on 19.11.1990 and the appeal was pending for hearing in 'due course'; as the matter was pending before this Court, Avinash applied for job as Peon, where he was selected on Class-IV post and was appointed on 19.08.1999, which employment was accepted by him as he was in dire need of money for taking care of his family; the job was accepted after 16 years of filing of the suit and it is not expected that the person would sit idle and the crucial date is the day when the suit is filed; further averments were made in the reply regarding acquisition of several properties by the defendants and owned by him; it has been contended that Avinash was ready to leave his job within two years i.e. after completion of 15 years of job if decree of eviction is granted for whole of the shop and Maliya, alongwith the reply certain documents regarding acquisition of properties by the respondents have been filed.
A rejoinder to the reply has been filed by the defendants alleging that earlier suit was also withdrawn after elder son Ram Nath joined the job; an objection has been raised that the documents filed alongwith the reply cannot be taken into consideration in absence of application under Order XLI, Rule 27 CPC; further, in view of the plea regarding leaving of the job, it has been contended that if the need does not survive in presenti, decree cannot be passed; regarding the documents, it has been stated that reply cannot be given within a short span of time because Hansraj was out of station.
It was submitted by learned counsel for the appellants- tenants that in view of the Rajasthan Rent Control Act, 2001 ('the Act of 2001') the issue of first default has lost its relevance; it was further submitted that the finding recorded by the trial court regarding bona fide requirement is baseless in view of the conduct of the plaintiff in filing the earlier suit when the rent was Rs. 85/- per month and withdrawing the same after the rent was enhanced to Rs. 300/-; the present suit was also filed merely for enhancing the rent and the requirement was not reasonable and bona fide at all; much emphasis was laid by learned counsel for the tenants on the application filed under Order VII, Rule 7 CPC and it was submitted that admittedly Avinash the landlord's son for whose requirement the decree of eviction was sought, has joined government service and, therefore, the need, if any, has come to an end and on this count alone the appeal deserves to be allowed and the decree of eviction deserves to be set aside. It was submitted that the appeal filed by the plaintiff has no substance.
Reliance was placed on Rahman Jeo Wangnoo v. Ram Chand & Ors. : AIR 1978 SC 413, M.M. Quasim v. Manohar Lal Sharma & Ors. : AIR 1981 SC 1113, Pasupuleti Venkateswarlu v. The Motor & General Traders : AIR 1975 SC 1409, Vijay Kapoor & Anr. v. Maya Ram : AIR 1998 HP 15, Seshambal v. Ms. Chelur Corporation Chelur Building & Ors.: 2010 (1) WLC (SC) 356, Prabha Arora & Anr. v. Brij Mohini Anand & Ors. : 2008 (1) CCC 279 (SC), Kedar Nath Agrawal & Anr. v. Dhanraji Devi & Anr. : 2004 AIR SCW 5789 and Rakesh Gupta v. Ahmed Farooq : 1992 (2) RLW 398.
Learned counsel for the landlord vehemently opposed the submissions made by learned counsel for the tenants and submitted that the trial court was justified in coming to the conclusion that suit shop was reasonably and bona fidely required for business of the landlord's son; it was further submitted that the plea raised by the appellants regarding subsequent events has no substance in view of the law laid down in series of judgments by Hon'ble Supreme Court, inasmuch as, the appellants-tenants cannot be permitted to take advantage of prolonged litigation and the person, whose bona fide requirement is pleaded, is not expected to sit idle for the entire period of litigation, which in the present case is continuing since 1983 i.e. over 31 years.
Reliance was placed on Smt. Samkubai & Ors. v.
Hajarimal Dhokalchand Chandak & Ors.: AIR 1999 SC 3089, Ravindra Kumar & Anr. v. Ms. Shrinath Complex : 2012 (2) DNJ (Raj.) 1028, Gaya Prasad v. Pradeep Shrivastava : AIR 2001 SC 803, Shakuntala Bai & Ors. v. Narayan Das & Ors. : AIR 2004 SC 3484, Maganlal v. Nanasaheb : (2008) 13 SCC 758, Pratap Rai Tanwani & Anr. v. Uttam Chand & Anr. : (2004) 8 SCC 490,Mohinder Prasad Jain v. Manohar Lal Jain : (2006) 2 SCC 724 and Shamshad Ahmad & Ors. v. Tilak Raj Bajaj & Ors. : 2008 AIR SCW 6201.
It was further submitted that the trial court committed error in ordering partial eviction of the suit shop when it was proved on record that the plaintiff required the entire suit shop for the purpose of his business; further submissions were made regarding non passing of decree in relation to Maliya, which forms part and partial of the suit shop and, regarding which, specific requirement was pleaded and proved; it was prayed that the appeal filed by the appellants be dismissed and the appeal filed by the landlord be allowed and the suit be decreed in toto.
I have considered the rival submissions made by learned counsel for the parties.
The plaintiff filed the suit on 22.03.1983, inter alia, specifically pleading bona fide requirement of his son Asha Ram and it was claimed that he had failed in his 10th exam and was not interested in studies and had learnt the work of pipe line fitting over last two years and for the purpose of getting proper remuneration and profit from the said work of pipe fitting and related work wanted to set up a shop pertaining to pipe fitting, hardware, paints and electrical goods; the plea raised in the plaint was denied; the plaintiff entered the witness box as PW-1 and stated about the requirement of his son Asha Ram and bona fide requirement in this regard; no material cross- examination was done; Asha Ram himself appeared as PW-3 and stated requirement for setting up his own business and stated that he had learnt the work of pipe fitting from Manmohan Trading Company and produced certificate Exhibit-4; in extensive cross-examination testimony of Asha Ram PW-3 could not be shaken; other witnesses being Ram Nath his son, Prem Ratan plaintiff's elder brother, Shiv Kumar and Ram Kumar customers of Asha Ram supported the plea; defendants' witnesses baldly denied the requirement of the plaintiff; the trial court after critically examining the oral evidence available on record reached a conclusion that the shop was reasonably and bona fidely required for the business of Asha Ram; counsel for the appellants-tenants failed to point out any glaring fact in the deposition of parties and/or any perversity in the finding recorded by the trial court so as to require interference by this Court.
Coming to the crucial aspect of subsequent event regarding Asha Ram alias Avinash, getting government job in the year 1999 i.e. after almost 16 years of institution of the suit seeking eviction and after 9 years of decree passed by the trial court (stayed by this Court), regarding which, much emphasis has been laid by the learned counsel for the appellants-tenants to contend that the pleaded requirement having come to an end, the suit itself deserves to be dismissed.
In M.M. Quasim (supra) Hon'ble Supreme Court held that if a landlord losses his interest in entirety in the demised premises during the pendency of appeal, he would not be entitled to maintain or continue the action after cessation or extinguishment of his interest in the building and the appellate court is competent to take notice of the subsequent event, the said judgment has apparently no application except for the principle that subsequent events can be taken note of; similarly in Pasupuleti Venkateswarlu (supra) also the principle of taking into consideration subsequent events was laid down, however, in the said case the issue pertained to legal disability, which has no applicability to the present case; the judgment in the case of Seshambal (supra) deals with a case where the person whose requirement was pleaded had died and requirement of his family was not pleaded; in the case of Prabha Arora (supra) in view of the fact that the suit property had been placed in a Trust and the plaintiff as trustee could not use the property, the Court came to the conclusion that no decree could be passed; in case of Kedar Nath Agrawal (supra) Hon'ble Supreme Court despite death of the original plaintiff held that legal representatives can substitute their need and in the case of Rakesh Gupta (supra) this Court while deciding a revision petition seeking amendment at the first appellate stage held that the ground for eviction is not only required to be in existence at the time of filing of the suit, but also must continue to exist until decree is executed or tenant is actually evicted.
On the other hand, the judgments cited by learned counsel for the landlord deal with similar factual circumstances, which arise for consideration in the present case, wherein, in the case of Smt. Ramkubai (supra) it was held that unemployed son at the time of filing of the suit, but subsequently started work of construction cannot be expected to remain unemployed till suit is decided; similarly in the case of Gaya Prasad (supra) it was held that pendency of lis for over 23 years and son of landlord joining provincial medical service is not a sufficient ground to dislodge bona fide need; further in the case of Shakuntala Bai (supra) it was held that death of landlord during pendency of the appeal does not bring bona fide requirement to an end; similarly in the case of Magan Lal (supra) it has been held that person who started litigation is not expected to sit idle nor the subsequent development can stop him and, therefore, crucial date was when the suit for eviction was filed; the cases of Pratap Raj Tanwani (supra), Mohinder Prasad Jain (supra) and Shamshad Ahmed (supra) essentially deal with nature of bona fide requirement.
From the scanning of above judgments cited by both the learned counsel for the parties and taking in view the circumstances of the present case, while the judgments relied on by learned counsel for the appellant are distinguishable on facts, the law laid down by Hon'ble Supreme Court in the case of Smt. Ramkubai (supra), Gaya Prasad (supra) and Magan Lal (supra) cited by learned counsel for the landlord are fully applicable, wherein, also the principle regarding consideration of subsequent event though has been upheld but in the given case wherein a person for whose requirement eviction is sought has not remained unemployed has been taken into consideration and has been held not a sufficient reason to deny and/or upturn a decree for eviction.
So far as judgment of this Court in the case of Rakesh Gupta (supra) is concerned, this Court in the case of Surendra Kumar Jaggi vs. Ahmed Farooq & Ors. : S.B. Civil Second Appeal No.1/2011 decided on 23.08.2012 has held the observations as obiter while remanding the matter back to the first appellate court and the obiter also being in conflict with the decision of Hon'ble Supreme Court as not a good law.
In view of the above discussion, despite the fact that the son of plaintiff has joined service during the pendency of the appeal after 16 years of filing of the suit and has offered to quit the job in case of eviction of tenant from whole of the shop and Maliya cannot be a sufficient ground to reverse the finding regarding bona fide requirement, which already stands established in the present case.
So far as the issue of partial eviction is concerned, under Sub-section (2) of Section 14 of the Act a restriction has been put on eviction based on comparative hardship and the law further provides that where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.
Hon'ble Supreme Court in Bentool Steel Products Private Limited v. O.M.A. Mohammed Omar & Anr. : (2008) 17 SCC 679 while dealing with the issue of comparative hardship relying on judgment in the case of Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada : (2003) 2 SCC 320 held that onus is on the tenant of bringing relevant factors which would enable a finding as to comparative hardship being arrived at in his favour and he should discharge the onus.
In view of the language of provision regarding comparative hardship and partial eviction in Section 14(2) of the Act requiring 'satisfaction of the Court', the burden of partial eviction also has to be discharged by the defendants.
In the statements before the trial court PW-1 Jeet Mal was not put anything in the cross-examination regarding partial eviction; PW-2 Ram Nath stated that if the shop was divided in two parts, the same would become smaller and it would not be possible to run the business and the same would not also be useful for defendants, he was not cross-examined on the said aspect; PW-3 Asha Ram was also not put anything regarding partial eviction; Prem Ratan PW-4 stated that the shop cannot be bifurcated into two parts; the defendant in his statement sated that 6 ft. broad shop may be sufficient, however, in the cross-examination, he categorically stated that his business cannot be run in 6-7 ft. wide shop and plaintiff also cannot use the same; whereafter stated that the plaintiff's son can work in the shop; DW-2 Laxmi Narayan in his cross-examination stated that by dividing the shop into half, Hans Raj defendant, cannot work as his three sons work there and the space would be insufficient.
From the evidence led by the parties, it was not the case of any party that for the business being conducted by the defendants in the suit shop and for the business intended to be done by the plaintiff's son in the suit shop, by way of partial eviction the need would be satisfied; however, the trial court on its own by way of assumption and based on conjectures came to the conclusion that as the defendants want to set up pipe fitting related business, the same could be undertaken in half of the shop, for which, apparently, there was no material available on record. Further, the case of the plaintiff to construct an underground for godown purposes has also been totally ignored, which necessarily would involve undertaking construction, which cannot be done without getting the whole shop vacated. Therefore, the finding on issue No. 4 recorded by the trial court cannot be sustained and the same, therefore, deserves to and is reversed.
So far as contention of learned counsel for the landlord regarding non passing of decree regarding the Maliya (room) is concerned, it was the specific case of the landlord that the said Maliya was required reasonably and bona fidely by him and oral evidence in this regard was also led by PW-1 Jeet Mal, PW-2 Ram Nath and PW-3 Asha Ram, to which, there was no cross- examination whatsoever, however, the trial court while deciding the issue of bona fide requirement did not deal with the said aspect; however, from the un-controverted evidence available on record, the bona fide requirement of the plaintiff qua the room, which admittedly is part and partial of the shop is also sufficiently proved.
So far as the issue of comparative hardship is concerned, the trial court has dealt with the entire aspect of comparative hardship and has recorded a finding that in view of availability of alternative accommodation to the defendants, the plaintiff would suffer greater hardship in case the eviction was not ordered. Even before this Court by way of reply to application under Order VII, Rule 7 CPC submissions have been made by landlord regarding availability of huge accommodation with the respondents, which has not been denied by the appellants- defendants, but a reply to the same has been avoided and, therefore, also the finding on issue relating to comparative hardship does not call for any interference.
In view of the above discussion, S.B. Civil First Appeal No.152/1990 filed by the appellants-tenants has no substance and the same is, therefore, dismissed and S.B. Civil First Appeal No.2/1991 filed by the appellant-landlord is allowed. The finding on issue No. 4 regarding partial eviction is reversed and the suit filed by the plaintiff is decreed regarding the entire suit shop and the room. Looking to the facts and circumstances of the case, the tenants are granted six months' time to vacate the suit premises. The appellants would hand over the vacant possession of the suit shop and the room by 30th April, 2015. No order as to costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
8-9
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