Ashok Chouhan vs M/S Ganpati Plaza
2022 Latest Caselaw 5010 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4028/2021

Ashok Chouhan S/o Shankar Lal Chouhan, Aged About 71 Years, By Caste Rajput, Address Kalarthi Studio, 15 Residency Road, District Udaipur, Rajasthan.

----Petitioner Versus M/s Ganpati Plaza, Registered Partnership (Firm Registration No.17/26/52/2006) Through Partner Mohan Lal S/o Ramchand Makhija, Resident Of - B-94, Shakti Nagar, District Udaipur, Rajasthan.

                                                                ----Respondent


For Petitioner(s)        :     Mr Joga Ram Patel
                               Mr Kuldeep Singh Solanki
For Respondent(s)        :     Mr Deelip Kawadia




             HON'BLE MR. JUSTICE VIJAY BISHNOI

                         Judgment / Order

04/04/2022

This writ petition is filed by the petitioner being

aggrieved with the judgment dated 05.01.2021 passed by the

Appellate Rent Tribunal, Udaipur (hereinafter to be referred as 'the

Appellate Tribunal'), whereby the appeal preferred on behalf of

respondent has been allowed and the judgment dated 24.07.2019

passed by the Additional Chief Judicial Magistrate (Rent Tribunal)

Udaipur (hereinafter to be referred as 'the Rent Tribunal') has

been set aside and the petitioner has been directed to vacate the

premises in question within a period of six months from the date

of passing of the impugned order.

(2 of 9) [CW-4028/2021]

Brief facts of the case are that the respondent preferred

an application under Section 9(a)(i)(m) of Rajasthan Rent Control

Act, 2001 (hereinafter to be referred as 'the Act of 2001') against

the petitioner seeking eviction from a shop situated in a building

at 15, Residency Road, Udaipur. The said application was filed on

the ground of default in making payment of rent as well as of

bonafide necessity.

It was contended on behalf of the respondent that it

purchased a building situated at 15 Residency Road, District

Udaipur from the erstwhile owner on 17.08.2002 and in that

building there is one shop, which has been let out to the

petitioner/tenant by the earlier owner. The description of the shop

was given in para 3 of the application.

It is stated by the respondent that the information in

respect of purchasing the property was given to the petitioner on

17.01.2006 and the petitioner was requested to deposit agreed

rent in the bank account of the respondent. It is alleged that when

the petitioner did not deposit the agreed rent of Rs.1000/-, the

respondent sent a legal notice to him and despite this he did not

deposit the rent. It is further contended by the respondent that

the disputed shop is required by it for the purpose of establishing

a business after demolishing the entire building.

In response to the application, the petitioner filed his

reply and denied the averments made in the application. The

petitioner has disputed that he is at fault in making payment of

rent and also seriously disputed the bonafide need of the

respondent in relation to the disputed shop.

On the basis of the pleadings of the parties, the Rent

Tribunal framed as many as four issues, which read as under:

                                                (3 of 9)                      [CW-4028/2021]




             "1-     vk;k foi{kh us izkFkhZ dks fookfnr ifjlj dk fdjk;k fnukad
                     17-8-02 ls vnk ugha fd;k gS \                        ------ izkFkhZ
             2-      vk;k fookfnr ifjlj okyk Hkou iqjkuk gksdj vlqjf{kr gS
                     rFkk fxjus ;ksX; gS \                                ------ izkFkhZ
             3-      vk;k izkFkhZ dks fookfnr ifjlj dh fgrs'k o fnO; ds O;olk;

ds fy, ;qfDr;qDr ,oa lnHkkfod vko";drk gS \

----- izkFkhZ 4- vuqrks'k \"

After taking into consideration the evidence adduced by

the parties, the Rent Tribunal decided the Issue Nos.1 and 3 in

favour of the respondent, however, decided the Issue No.2 against

it and passed the decree of eviction vide judgment dated

01.08.2011.

Being aggrieved with the same, the petitioner preferred

an appeal before the Appellate Tribunal and the Appellate Tribunal

vide judgment dated 28.05.2015 has set aside the judgment

passed by the Rent Tribunal dated 01.08.2011, however,

remanded the matter to the Rent Tribunal while framing three new

issues, which are as under:

"¼1½ vk;k vkosnu izLrqrh ds fnu Hkkxhnkjh QeZ esllZ x.kifr Iyktk iathd`r ugha Fkh \ ;fn ,slk gS rks bldk bl izdj.k ij D;k izHkko gS \ ¼2½ vk;k Hkw&Lokeh }kjk izdj.k ds fopkjk/khu jgrs nqdkuksa dk cSpku fd;k x;k gS \ ;fn gkWa rks bldk bl izdj.k ij D;k izHkko gS \ ¼3½ vk;k vthZnkj Hkkxhnkjh QeZ ds Hkkxhnkjksa ds iq= tks Lo;a mDr QeZ esa Hkkxhnkj ugha gS] dh vko";drk /kkjk 9 vf/kfu;e ds rgr ,d vk/kkj gS \ "

After remand, the Rent Tribunal, after taking into

consideration the evidence in relation to the newly framed issues,

rejected the eviction application filed by the respondent vide

judgment dated 24.07.2019. The Rent Tribunal has decided the

newly framed Issue No.1 in favour of respondent while holding

that the petitioner-firm was registered in the year 2006 and as

(4 of 9) [CW-4028/2021]

such on the date of filing of the eviction application i.e.

24.07.2007, it was duly registered.

So far as newly framed Issue No. 2 is concerned, the

Rent Tribunal has held that as the respondent has sold some of

the shops during the pendency of the proceedings, it can be

concluded that the respondent has failed to prove its bonafide

necessity in respect of the disputed shop.

In respect of newly framed Issue No.3, the Rent

Tribunal has concluded that sons of the partners of the

respondent-firm are not its partners and the firm cannot claim

bonafide need of the shop for the purpose of establishment of

business of sons of the partners of the respondent-firm. The Rent

Tribunal is of the opinion that the firm can claim bonafide needs of

the shop for itself only and not for the sons of the partners. The

Rent Tribunal has, therefore, rejected the eviction application filed

on behalf of the respondent vide judgment dated 24.07.2019.

Being aggrieved with the same, the respondent preferred an

appeal before the Appellate Tribunal, which came to be allowed

vide judgment dated 05.01.2021, which is under challenge in this

writ petition.

Learned counsel for the petitioner has argued that the

Appellate Tribunal in the impugned judgment has grossly erred in

reversing the findings arrived at by the Rent Tribunal in its

judgment dated 24.07.2019.

Learned counsel for the petitioner has submitted that

the old Issue No.2 framed by the Rent Tribunal was specifically

decided against the respondent and the respondent has not

challenged the findings of old Issue No.2 before the Appellate

Tribunal and the Appellate Tribunal has specifically noted this point

(5 of 9) [CW-4028/2021]

in its judgment dated 28.05.2015. In such circumstances, the

Appellate Tribunal cannot disturb the findings in respect of old

Issue No.1 as it has done in the judgment dated 05.01.2021.

Learned counsel for the petitioner has submitted that

the finding in respect of old Issue No.2 has attained finality up to

the Appellate Tribunal, therefore, it was not open for the Appellate

Tribunal to again decide the Issue No.2 without there being any

cross-objection filed on behalf of the respondent. It is contended

that the party cannot challenge the findings of trial court before

appellate court without filing cross-objection against finding of

trial court.

In support of the above contention, learned counsel for

the petitioner has placed reliance on decisions of Hon'ble Supreme

Court rendered in Laxman Tatyaba Kankate and Anr. vs.

Taramati Harishchandra Dhatrak, (2010) 7 SCC 717 and

Banarasi & Ors. vs. Ram Phal, 2003(2) CCC 125 (SC).

Learned counsel for the petitioner has further

submitted that the Rent Tribunal in its judgment dated 24.07.2019

has rightly decided the newly framed Issue Nos. 2 and 3 after

taking into consideration the evidence available on record but the

Appellate Tribunal in its judgment dated 05.01.2021, without

appreciating the evidence available on record, reversed those

findings purely on the basis of surmises and conjectures. It is

submitted that during the pendency of the eviction proceedings,

admittedly, the landlord sold some of the premises to other

persons, where he could very well establish its office or could also

establish shop for sons of its partners to start new business. It is

submitted that the Rent Tribunal has rightly observed that the

respondent landlord was having sufficient place for establishing its

(6 of 9) [CW-4028/2021]

office and for opening shops for new business to be run by the

sons of the partners but it sold the said place to some other

person, which shows that the respondent is not in bonafide need

of the disputed shop.

Learned counsel for the petitioner has further

submitted that the necessity of sons of the partners of the

partnership firm cannot be termed as necessity of the firm and

taking into consideration the above fact, the Rent Tribunal has

rightly decided the newly framed Issue No.3 against the

respondent-firm.

Learned counsel for the petitioner has, therefore,

submitted that the Appellate Tribunal has grossly erred in

reversing the findings of the Rent Tribunal and thus, the impugned

judgment is liable to be set aside.

Per contra, Mr Deelip Kawadia - learned counsel for the

respondent has argued that the respondent has established a case

for bonafide necessity before the Appellate Tribunal and the

Appellate Tribunal after taking into consideration the material

available on record and the evidence adduced on behalf of the

parties has rightly passed the impugned judgment and in such

circumstances, no case for interference is called for.

Heard learned counsel for the parties and perused the

material available on record.

So far as contention of the learned counsel for the

petitioner of this effect that the Appellate Tribunal in its judgment

dated 05.01.2021 has illegally reversed the findings in respect of

the old Issue No.2 is concerned, I am of the opinion that the

Appellate Tribunal has not reversed the findings of the Rent

Tribunal in respect of the old Issue No.2 vide judgment dated

(7 of 9) [CW-4028/2021]

05.01.2021. Precisely in para No.27 of the impugned judgment,

the Appellate Tribunal after taking into consideration the fact that

during the pendency of the proceedings, the landlord demolished

the whole building except the disputed shop and constructed some

of the shops on the ground floor and first floor, however, it has

observed that the said construction is not completed as the shop

of the petitioner is still existing. The Appellate Tribunal is of the

opinion that simply because a new building is constructed by the

respondent without demolishing the disputed shop, it cannot be

said that the bonafide need of the petitioner has come to an end.

The Appellate Tribunal has observed that the petitioner himself

has admitted in his evidence that the work of the building is

incomplete as his shop has not been demolished.

Taking into consideration the above facts and

circumstances of the case and after thoroughly going through the

impugned judgment, this Court is of the opinion that vide

impugned judgment, the Appellate Tribunal has not reversed the

findings of old Issue No.2, which has attained finality and in such

circumstances, the judgments on which the petitioner has placed

reliance are not applicable in the present case and are of no help

to the petitioner.

So far as newly framed Issue No.1 is concerned, the

Rent Tribunal in its judgment dated 24.07.2019 gave a finding that

on the day of filing of the eviction application i.e. 24.07.2007, the

firm was registered. Moreover, the finding of Issue No.1 has not

been challenged by the petitioner either before the Appellate

Tribunal or before this Court.

So far as newly framed Issue No.2 is concerned, though

it is an admitted position that during the pendency of the

(8 of 9) [CW-4028/2021]

proceedings, the respondent sold some of the premises to other

persons, however, in the opinion of this Court, this fact itself will

not affect the bonafide necessity of the respondent in respect of

the disputed shop. The question relating to the bonafide necessity

of the landlord does not get illuminated merely because he has

sold some of the premises situated in the building to other

persons.

It is to be noticed that the respondent came with a

specific plea that for the purpose of establishment of office of it

and for the purpose of establishment of shop for the sons of the

partners, it is in requirement of place on the ground floor. The

respondent has also come with a plea that behind the disputed

shop, some vacant place is lying and after demolishing the

disputed shop, it can establish its office as well as a shop for the

purpose of starting a new business of sons of the partners. The

petitioner in his evidence has admitted that after inclusion of his

disputed shop with the vacant place, an office and a shop can be

established. In view of the above facts, no fault can be found in

the findings of the Appellate Tribunal that only because the

respondent sold some of the premises of the building to other

persons, the bonafide necessity of the respondent came to an end.

So far as newly framed Issue No.3 is concerned, the

Appellate Tribunal has held that bonafide necessity of sons of the

partners of the firm can be treated as bonafide necessity of the

partnership firm also.

In para 48 of the impugned judgment, the Appellate

Tribunal has held that it is not required for a partnership firm to

establish a new business through its partners only. It can establish

a new business either through sons of the partners or managers/

(9 of 9) [CW-4028/2021]

employees etc., who are really not the partners in the partnership

firm.

I don't find any fault with the above finding of the

Appellate Tribunal as a partnership firm can prove its bonafide

necessity for a premises to start a new business through the sons

of partners or employees/managers.

In view of the above discussion, I do not find any merit

in this writ petition and the same is, therefore, dismissed.

There shall be no order as to costs.

Stay petition also stands dismissed.

(VIJAY BISHNOI),J

masif/-PS

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