Dismissed

Pawan Kumar Parnami v. Narayan Das

Rajasthan HC25 Feb 2015CW/1003/2015

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the High Court dismissed the tenant's challenge to the eviction order affirmed by the Appellate Rent Tribunal. The Court upheld the finding that the landlord had a bonafide and reasonable requirement for his unemployed son to run a cooler business in the tenanted shop, rejecting claims of perversity or procedural lapse regarding CPC applications.

What did the court decide?

Writ petition dismissing the tenant's challenge to the eviction order and affirming the Appellate Rent Tribunal's judgment.

Pawan Kumar Parnami Vs Narayan Das — Execution and Attachment | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

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ORDER Pawan Kumar Parnami Vs. Narayan Das (S.B. Civil Writ Petition No.1003/2015) Date of Order: February 25^th , 2015. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA

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Mr. Vimal Chaudhary, for the petitioner.

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Mr. R.S. Yadav, for the respondent.

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BY THE COURT :

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This petition under Article 226 of the Constitution of India impugns the judgment dated 29-11-2014 passed by the Appellate Rent Tribunal Jaipur Metropolitan City Jaipur (hereinafter the Appellate Tribunal') affirming the judgment dated 17-8-2011 passed by the Rent Tribunal, Jaipur Metropolitan City Jaipur (hereinafter the Tribunal') whereby the petitioner-non-applicant-tenant (hereinafter the tenant') has been directed to be evicted from the tenanted premises at the instance of respondent-applicant-landlord (hereinafter the landlord') on his petition under Section 9 of the Rent Control Act, 2001 (hereinafter `the 2001 Act') and a certificate of possession of tenanted premises had been issued in favour of the landlord.

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FACTS:

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The landlord sought the tenant's eviction from shop No.47, Plot No.8 Gurunanakpura Rajapark Jaipur on ground of bonafide and reasonable requirement of his son Dinesh, a major and unemployed, as also on ground of default in payment of rent. On service of the eviction petition, the tenant filed a reply of denial. Three issues for trial were framed. which loosely translated, are as under:-

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(i) Whether the tenant was in default within the meaning of Section 9(a) of the 2001 Act and liable to be evicted therefrom?

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(ii) Whether the landlord required the tenanted premises for the reasonable requirement of his son?

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(iii) Relief?

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On consideration of evidence laid before it the Tribunal found that the ground of default by the tenant in payment of contracted rent had not been made out, and the first issue was therefore decided in favour of the tenant. However on the second issue of bonafide and reasonable requirement of the landlord the Tribunal found from the evidence before it that the tenanted shop was indeed so required for his married son Dinesh yet unemployed to commence his business therefrom. The Rent Tribunal's judgment passed on 17-8-2011 was affirmed in the appeal by Appellate Tribunal on 29-11-2014. Faced with the prospect of eviction, this writ stating to be one under Article 226 of the Constitution of India has been filed by the tenant.

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Counsel for the tenant (petitioner before this court) has submitted that the judgments passed by the Tribunal as also the Appellate Tribunal are perverse to the evidence on record. It has been submitted that the Tribunal as also the Appellate Tribunal have failed to appreciate that the requirement propounded by the landlord was neither bonafide nor reasonable as the evidence on record established that the landlord had in his possession an area seven times larger than the tenanted shop wherefrom his son Dinesh could carry out his business. It was also submitted that there was no proof of any probative worth to find that Dinesh had any experience to do business in the sale and purchase of coolers or their repairs as was sought. It was also submitted that Naveen, the landlord's other son had bought an adjoining property, supported by his father, the applicant landlord's funds and if Dinesh bonafidely required any place to do his business, the newly bought property could have been utilised but in fact was not and instead sold off in 2014. It has been further pointed out that Dinesh was anyways engaged in business and was working from the adjoining shop (belonging to the landlord) in the name and style of Naveen Sales Corporation as evident from the fact of his signing two bills of material sold from said shop on 25-10-2003 and 3010-2003. Counsel further submitted that even otherwise the Appellate Tribunal's judgment dated 29-11-2014 is liable to be quashed and set aside in view of its failure to consider applications under Order 41 Rule 27 CPC and under Order 11 Rule 12 & 14 CPC filed by the tenant even while

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dismissing the appeal.

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Mr. R.S. Yadav, appearing on behalf of the landlord has submitted that the scope of interference by this court under Article 226 of the Constitution of India is well defined in catena of decisions of the Hon'ble Supreme Court. It has been submitted that even though there is no standardized formula for the exercise of powers under Article 226 of the Constitution of India, yet it is well settled that such power can only be exercised to inter alia ensure that the subordinate court or Tribunal acted properly and that the impugned judgment does not suffer from procedural impropriety, defiance of logic, abuse or misuse power and the impugned decision does not shock the conscious of the court. Counsel has submitted that in the context of aforesaid state of law a bare look at the judgment dated 17-8-2011 passed by the Tribunal as affirmed by the judgment dated 29-11-2014 by the Appellate Tribunal indicates that the eviction of the tenant has been directed in the context of a case pleaded and proved by the landlord that he required the tenanted premises for the bonafide and reasonable requirement of his married but unemployed son Dinesh to facilitate him commence business in the sale, purchase and repair of coolers from the shop in issue. The evidence showed that Dinesh was the landlord's second son and neither the landlord nor Dinesh had a suitable location, such as the shop in question which was on the main road in the market, to carry on with the said business. It has also been submitted aside of conclusion of the Rent Tribunal affirmed by the Appellate Tribunal Rent

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Tribunal being based on an objective consideration of the evidence on record, the tenant cannot seek to reweigh and reappreciate the evidence before the Tribunal, nor can it be argued as has sought to be done that the landlord could have required his son to do his business from the area behind the tenanted shop, or otherwise from first floor of plot No.8 or even from the property purchased by his other son Naveen bought in 2006 although then sold in 2014. Counsel submits that Dinesh could not have any legal right in the shop/s purchased by his brotheer, even if he borrowed part of the funds for its purchase from his father, the applicant landlord. Further evidence showed that the area/ shop in issue were not on the main road, as the tenanted shop is and hence not suitable for business as intended. It has been further submitted, without prejudice to above, that even otherwise the defence set up by the tenant is absolutely untenable, inasmuch as the tenanted shop of which eviction has been directed by the Tribunal as also the Appellate Tribunal, is situate on the main road in a commercial area of Jaipur city i.e. Rajapark while the areas for Dinesh's business suggested by tenant admittedly have no access from the main road and were residential in nature. It has been submitted that it is trite that the landlord is the best judge to chose the area for requirement of himself or his dependent while pursuing an eviction petition on ground of bonafide and reasonable requirement. Counsel has further submitted that the grounds agitated in writ petition by the tenant with regard to non decision of his applications under Order 41 Rule 27 CPC as also Order 11

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Rule 12 & 14 CPC are meritless, inasmuch as the judgment dated 29-112014 passed by the Appellate Rent Tribunal specifically refers to said applications.

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Heard. Considered.

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The power of judicial review is not in a nature of appellate power and in the case of Management of Madurantakam Cooperative Sugar Mills Ltd. Vs. S. Viswanathan [(2005)3 SCC 193] the Hon'ble Supreme Court has held that when a finding is not perverse to the evidence on record, no interference therewith is warranted under Article 226 of the Constitution of India. Further in the case of Shamshad Ahmad Vs. Tilakraj Bajaj [(2008) 9 SCC 1] the Hon'ble Apex Court has held that a writ court neither can review nor reappreciate nor reweigh the evidence upon which determination of lower court or Tribunal is based. Similarly in the case of B.K. Muniraju Vs. State of Karnataka [(2008)4 SCC 451] the Hon'ble Apex Court has held that interference under Article 226 of the Constitution of India is only warranted when an error is manifest and apparent on the face of proceedings as when the judgment/ order impugned is in clear ignorance or disregard of law thereby occasioning gross failure of justice.

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Finding of bonafide and reasonable requirement is a finding of fact. The Tribunal as also the Appellate Tribunal have taken into consideration the evidence on record and considered it objectively in holding that

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landlord required the tenanted shop for the bonafide and reasonable requirement of his young unemployed son Dinesh to carry out his business of sale, purchase and repair of coolers therefrom. There was no evidence before the the Tribunal or the Appellate Tribunal that Dinesh at the time of laying the eviction petition or thereafter was employed or the requirement set up by the landlord for the business of his unemployed son was either fanciful, whimsical or a mere pretense to use the law of eviction as an instrument to evict the tenant or for enhancement of rent. The facts on record indicate that shop No.47 on Plot No.8 Gurunanakpura Rajapark is situate in a commercial area of Jaipur. It was not the tenant's case that a shop of equal location was available with the landlord to facilitate his unemployed son Dinesh to carry out his business. One shop available on main road with the landlord admittedly was being run in the name and style Naveen Sales Corporation, but by another son of the landlord namely Naveen, and the other in tenancy of one Prakash. In the circumstances, it was wholly vacuous of the tenant to suggest that Dinesh, the unemployed son of landlord, ought to have carried on his business of sale, purchase and repair of coolers from the behind of the tenanted shop, or from the first or second floor thereof. It is well settled that the landlord is the best judge of the premises from which he intends himself or his dependent to carry on business and it does not lie within the province of the tenant to suggest to the contrary. The Hon'ble Supreme Court in the case of Shiv Sarup Gupta Vs. Mahesh Chand Gupta [(1999)6 SCC 222] has held that choice of place

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where a landlord seeks to do business is a matter of his subjective satisfaction even while the issue of reasonable and bonafide requirement is a matter of objective consideration and determination from the evidence on record. In my considered opinion the issue of bonafide and reasonable necessity objectively evaluated from the evidence on record establishes that the landlord required the tenanted premises for his business needs of his major dependent son who was unemployed. Nothing malafide or unreasonable can be attributed to the requirement set up in eviction petition which found favour by the Tribunal as also the Appellate Tribunal. I am of the considered view that the conclusions arrived by the Tribunal as also the Appellate Tribunal cannot even remotely be construed as perverse. In the case of Parry's (Calcutta) Employee's Union Vs. Parry and Co. Ltd. [AIR 1966 Calcutta 31] it has been held that a possible view is not perverse and for a finding to be held to be perverse it has to be altogether against the evidence. On the aforesaid test the conclusions of the Tribunal as also the Appellate Tribunal in judgments impugned that the landlord required the eviction of the tenanted premises for bonafide and reasonable requirement is neither perverse nor vitiated by any misdirection in law.

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It would be well to remember that proceedings under the 2001 Act are summary in nature. Section 21(3) of the 2001 provides that the Rent Tribunal as also the Appellate Tribunal shall not be bound by the procedure laid down by Civil Procedure Code, 1908 but shall be guided by

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the principles of natural justice and subject to other provisions of the 2001 Act and rules made thereunder they have the power to regulate their own procedure. Yet while discharging their functions under the 2001 Act for reason of abundant caution it has been provided that the Rent Tribunal as also the Appellate Tribunal have the same powers as vested in Code of Civil Procedure while trying suit or appeal under the 2001 Act in respect of certain specified matters as in clauses (a) to (h). Order 41 rule 27 CPC is not included in the matters delineated in clause (a) of (h) of Section 21(3) of the 2001 Act. Section 19(8) of the 2001 Act provides that Appellate Rent Tribunal shall subsequent to service of the memo of appeal on the opposite party fix a date of hearing, which shall not be latter than 45 days from the date of service of notice of appeal and appeal shall be disposed of within 180 days from the date of service of notice of appeal on the opposite party. Section 19(9) of the 2001 Act provides that where the Appellate Rent Tribunal considers it necessary in the interest of arriving at a just and proper decision, it may allow filing of additional affidavit or document at any stage of proceedings in appeal.

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A conspectus of aforesaid provisions of the 2001 Act indicates that

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the Appellate Rent Tribunal is not constrained by the procedure prescribed under the Code of Civil Procedure, 1908 and it has fundamentally to adhere to the principles of natural justice while adjudicating an appeal before it, which has to be adjudicated with reasonable expedition as set

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out in Section 19(8) of the 2001 Act. Additional evidence by way of affidavits or documents in terms of Section 19(9) of the 2001 Act can be

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allowed by the Appellate Rent Tribunal if it considers it necessary in the interest of arriving at a just and proper decision. As against the provisions of 2001 Act evidencing the intent of legislature for expedited hearing of appeal, it is not uncommon for the party aggrieved of judgment of eviction passed by the Rent Tribunal to file multiple applications before the Appellate Rent Tribunal. The Appellate Rent Tribunal however has the discretion with reference to facts of each case and contents of applications moved before it and where it finds that evidence sought to be adduced by a party before it is not relevant for a just and proper decision of appeal before it, it is not bound by any provision of law to specifically deal with and debunk such puerile evidence without much weight to dislocate the case and finding of fact arrived at by the Rent Tribunal on the evidence before it. The provisions of Section 19(9) of the 2001 Act or for that matter Section 21(3) can not be used as a subterfuge to delay the disposal of appeal nor a failure to enter into a detailed address on such applications filed, furnish a good ground for interference by a writ court in exercise of its powers under Article 226/227 of the Constitution of India. What the court has to see is whether from the evidence on record the conclusions of the Rent Tribunal and/ or Appellate Rent Tribunal are reasonable, fair and just.

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In the context of aforesaid discussion, I am of the view that nothing has been pointed out by the counsel for the tenant from the applications under Order 41 Rule 27 CPC or under Order 11 Rules 12 & 14 CPC for this court to hold that the alleged failure of Appellate Rent Tribunal to discuss contents of said applications in the appeal before it is sufficient for this court to exercise its powers of judicial review or superintendence under Articles 226/ 227 of the Constitution of India in favour of the nonapplicant tenant, now the petitioner before this court.

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I therefore do not find any substance in the contention of the tenant's counsel that non consideration of additional evidence under Order 41 Rule 27 CPC or the application under Order 11 Rules 12 & 14 CPC vitiates the judgment of the Appellate Rent Tribunal rendered on 29-11-2014. A perusal of the Appellate Tribunal's judgment does not bear out the submission.

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The judgments relied upon by counsel for the non-applicant tenant which relate to the principles on which findings of bonafide and reasonable necessity should be arrived at, the principles on which additional evidence under Order 41 Rule 27 CPC should be taken on record are unexceptionable. However, in my considered opinion, the said principles have not been violated nor overlooked by the Appellate Rent

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Tribunal in its judgment dated 29-11-2014 affirming the judgment dated 17-8-2011 passed by the Rent Tribunal.

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I am therefore of the view that there is no force in the writ petition.

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Dismissed.
(Alok Sharma), J.
arn/

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All corrections made in the order have been incorporated in the order being emailed.

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Arun Kumar Sharma, Private Secretary.