Rajasthan High Court - Jodhpur

Sohan Lal Sharma vs Lrs Of Kunna Ram on 18 August, 2022

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 7486/2022

Sohan Lal Sharma S/o Shri Panna Lal Sharma, Aged About 73 Years, By Caste Brahmin, Address C/o SL Sharma, Near Bombay Motors Company, Residency Road, Jodhpur, Rajasthan.

----Petitioner

Versus

1. Lr's Of Kunna Ram, S/o Late Shri Jawahar 1/1. Lr's Of Smt. Santosh W/o Late Shri Chhagan Lal, D/o Shri Kunna Ram 1/1/1. Vikram Kumar S/o Late Shri Chhagan Lal, 1/1/2. Dinesh Kumar S/o Late Shri Chhagan Lal, Both Resident Of Near Kumharon Ka Mandir, First B Road, Sardarpura, Jodhpur, Rajasthan.

1/2. Ram Ratan S/o Late Shri Kunna Ram, 1/3. Smt. Basanti Devi W/o Shri Jagdish, Both Resident Of First B Road, Sardarpura, In Front Of Kumharon Ka Mandir, Jodhpur, Rajasthan.

1/4. Lr's Of Smt. Damyanti W/o Shri Hari Ram Limba, D/o Late Shri Kunna Ram 1/4/1. Hari Ram Limba S/o Late Shri Pappa Ram, 1/4/2. Gaurav Limba S/o Shri Hari Ram Limba, 1/4/3. Smt. Mona D/o Shri Hari Ram Limba, W/o Shri Raunak Kumawat, All Resident Of Near Goru Sweet Home, First B Road, Sardarpura, Jodhpur, Rajasthan.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Joga Ram Patel
For Respondent(s)        :     Mr. O. P. Kumawat
                               Mr. Mahesh Chandra
                               Mr. Surendra Singh Rathore





                                          (2 of 11)              [CW-7486/2022]


            HON'BLE MR. JUSTICE VIJAY BISHNOI

                                    Order

18/08/2022

This writ petition is filed by the petitioner being aggrieved

with the judgment dated 07.05.2022 passed by the Appellate Rent

Tribunal, Jodhpur Metropolitan (hereinafter to be referred as 'the

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

petitioner has been dismissed and the judgment dated 05.07.2017

passed by the Additional Chief Judicial Magistrate (Rent Tribunal)

Jodhpur Metropolitan (hereinafter to be referred as 'the Rent

Tribunal') has been affirmed and the petitioner has been directed

to handover the peaceful and vacant possession of the premises in

question to the landlord within a period of six months from the

date of passing of the impugned order.

Brief facts of the case are that the landlord Kunna Ram

preferred an application under Section 6, 9(a) and (i) of Rajasthan

Rent Control Act, 2001 (hereinafter to be referred as 'the Act of

2001') against the petitioner seeking eviction from a shop situated

near to Bombay Motor's Company, Residency Road, Jodhpur

(hereinafter to be referred as 'shop in question'). The said

application was filed on the ground of default in making payment

of rent as well as of bonafide necessity. Kunna Ram also sought

revision of rent under section 6 of the Act.

It is averred that the shop in question was let out to the

petitioner in the year 1987 on monthly rent of Rs. 1800/-, in

which the petitioner is carrying on business in the name of S.L.

Sharma. It is further averred in the eviction petition that the

petitioner paid the rent only up to 31 st October, 2003 and

thereafter on being asking time and again, the petitioner did not

(3 of 11) [CW-7486/2022]

pay the agreed rent and therefore, a notice dated 18.03.2004 was

sent to him to end the tenancy w.e.f. 31 st March, 2004 on the

ground of reasonable and bonafide necessity. It is further averred

that in response to the said notice, the petitioner filed a false and

frivolous reply on 15.04.2004 and a rejoinder to that reply was

sent to the petitioner, but despite that the petitioner did not pay

the rent at the agreed rate within the fixed time, so the petitioner

is liable to vacate the shop in question on the ground of default in

payment of the rent.

Further, it is averred in the eviction petition that respondent

had three sons; two of them are living separately, and one son

viz. Jagdish has died leaving behind his wife and three children,

who are living with him in a rented home. It is also averred that

respondent is an unemployed person and in dire need to earn his

livelihood, however, despite having knowledge of the business of

building material, he is not able to do the same for want of

required premises, so he is having reasonable and bonafide

necessity of the shop in question.

In response to the application, the petitioner filed his reply

denying the averments made in the application. He 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

shop in question.

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

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

"1- vk;k vizkFkhZ&fdjk;snkj us mlls "kks/; pkj ekg ls vf/kd vof/k dk fdjk;k ckotwn uksfVl ds izkFkhZ&HkwLokeh dks lanÙk o fufonÙk ugha dj fdjk;k vnk;xh esa O;frØe fd;k gS \

(4 of 11) [CW-7486/2022]

2- vk;k izkFkhZ dks fookfnr fdjk;slqnk ifjlj dh viusa Lo;a ds fcfYMax esVsfj;y dk O;olk; djus ds fy;s ;kfpdk esa of.kZr mÌs"; vius ifjokjtu ds thfodksiktZu ds fy;s ;qfä;qä ,oa lnHkkfod vko";drk gS \ 3- vk;k izkFkhZ fookfnr ifjlj dk fdjk;k iqujhf{kr djokdj izkIr djus dk vf/kdkjh gS] ;fn gka rks iqujhf{kr fdjk;k D;k gks\ 4- vuqrks'k \"

After taking into consideration the evidence adduced by the

parties, the Rent Tribunal decided the Issue Nos.2 and 3 in favour

of the respondents, however, decided the Issue No.1 against them

and passed the decree of eviction vide judgment dated

05.07.2017 on the ground of bonafide necessity.

Being aggrieved with the same, the petitioner preferred an

appeal before the Appellate Tribunal and the Appellate Tribunal

vide judgment dated 07.05.2022 has affirmed the judgment

passed by the Rent Tribunal dated 05.07.2017. Hence this writ

petition.

Learned counsel for the petitioner has argued that the

original landlord Kunna Ram filed the eviction petition only for his

reasonable and bonafide necessity, but he died during the

pendency of eviction petition and even his wife also expired, so

the reasonable and bonafide necessity automatically came to an

end.

Learned counsel for the petitioner further argued that the

application filed by Ramratan S/o Landlord Kunna Ram under

Order VI Rule 17 CPC with respect to showing reasonable and

bonafide necessity of his son Prakash and to substitute him as

respondent has been withdrawn by him, therefore, this should be

taken as an admission of him that the reasonable and bonafide

necessity was of his father which came to an end on his death.

(5 of 11) [CW-7486/2022]

Learned counsel for the petitioner has further argued that on

the death of landlord in the original eviction suit, the right to seek

eviction on the ground of personal requirement became extinct

and in support of his contention learned counsel for the petitioner

has placed reliance on the judgment of Hon'ble Supreme Court

rendered in Seshabal (Dead) Through L.R.s v/s M/s. Chelur

Corporation Chelur Building & Ors. Reported in 2010(1)

RLW 848(SC).

Learned counsel for the petitioner has further argued that

the courts below should have taken into consideration the

subsequent events i.e. death of the original respondent and the

admission made by his son Ramratan. In support of his

contention, learned counsel for the petitioner has placed reliance

on the Judgment of Hon'ble Apex Court rendered in Mohd. Ismail

v/s Dinkar Vinnayakrao Dorlikar reported in (2009) 10

Supreme Court Cases 193.

Learned counsel for the petitioner has, therefore, submitted

that the Appellate Tribunal has grossly erred in affirming the

findings of the Rent Tribunal and thus, the impugned judgments

are liable to be set aside

Per contra, Mr O. P. Kumawat learned counsel for the

respondent has argued that the respondent has established a case

of bonafide necessity before the courts below and the courts below

after taking into consideration the material available on record and

the evidence adduced on behalf of the parties have rightly passed

the impugned judgments and in such circumstances, no case for

interference is called for.

(6 of 11) [CW-7486/2022]

Learned counsel for the respondents has argued that

bonafide necessity should be seen from the date of presentation of

the eviction petition and death of the original landlord during the

pendency of the eviction petition would not result into the

cessation of the bonafide and reasonable need and it can be made

by the legal heirs of the deceased landlord if the bonafide need,

pleaded in the plaint whether directly or indirectly, relates to the

landlord's legal heirs and dependants.

Learned counsel for the respondents further argued that the

respondent landlord filed the eviction petition for the bonafide

need of himself as well as of his family members, therefore, on

the death of original respondent the ground of bonafide necessity

would not extinguish.

Learned counsel for the respondents further argued that the

application filed by Ramratan S/o landlord Kunna Ram cannot be

considered as an admission because the original respondent had

specifically pleaded in the eviction petition about the bonafide

necessity of himself and his grandsons and the grandsons of him

have never pleaded that bonafide necessity came to an end with

the death of original respondent Kunna Ram.

In support of above contentions learned counsel for the

respondents has placed reliance on the Judgment of this Court

rendered in S.B. Civil Second Appeal No. 582/2003 (Nand

Kishore and ors. V/s Janki Devi & Ors.) decided on

23.08.2018.

Heard learned counsel for the parties and perused the

material available on record.

(7 of 11) [CW-7486/2022]

The general rule is that in any litigation, the rights and

obligations of the parties are adjudicated upon as they obtain at

the commencement of the lis, but this is subject to an exception.

Wherever subsequent events of fact or law which have a material

bearing on the entitlement of the parties to relief or on aspects

which bear on the moulding of the relief occur, the court is not

precluded from taking a 'cautious cognizance' of the subsequent

changes of fact and law to mould the relief.

Coming to the facts of the present case, the landlord Kunna

Ram had filed eviction petition on various grounds including the

ground of reasonable and bonafide necessity. As per the petitioner,

landlord Kunna Ram had filed the eviction petition only on the

ground of his bonafide necessity and not of his family members.

For that purpose, if we go through the eviction petition, it is to be

noticed that in grounds of eviction petition, particularly the ground

B, though in the opening para, the landlord averred that he is in

bonafide requirement of the shop in question for himself for doing

business of building material, however, in the middle of the very

same para, he specifically pleaded that as his daughter-in-law

namely Basanti wife of late Jagdish and his grand sons have no

source of income, therefore, after death of his son Jagdish, the

responsibility of maintaining them is upon him and to provide

higher education to the grandsons for their bright future is

necessary. The relevant part of the aforesaid para is reproduced

hereunder :-

"izkFkhZ dh iq=o/kq clUrh iRuh Lo- Jh txnh'k o ikS=ksa ds dksbZ vk; dk tfj;k ugha gSA blfy, iq= txnh'k ds nsgkUr ds i'pkRk~ mDr ifjokj ds ykyu&ikyu o thodksiktZu dh ftEesokjh Hkh izkFkhZ ij gh gS rFkk mu ikS=ksa ds mTtoy Hkfo"; ds fy, mPp f'k{kk fnykuk Hkh vko';d gSA"

(8 of 11) [CW-7486/2022]

The courts below have noticed that even in the rejoinder to

the reply of the eviction petition, the landlord Kunna Ram

specifically pleaded that his grand son Prakash, who is

unemployed, would also help him in doing business. While

deposing before the trial court, landlord Kunna Ram, in his cross-

examination, specifically averred that he would sit in the shop in

question and his grand sons would do work there and bring the

material.

In view of the above facts, it is difficult to conclude that the

landlord Kunna Ram had approached the Rent Tribunal claiming

bonafide necessity of himself only and not for his family members.

The Hon'ble Supreme Court in Seshabal's case (supra) has

non-suited the appellant while taking into consideration the fact

that in the eviction petition, the owners had pleaded their own

requirement only. The eviction petition was totally silent about the

requirements of any member of the family of the landlords living

alone or any member of their family, who was depending upon

them.

It would be appropriate to quote the observations of the

Hon'ble Supreme Court made in Para 9, on the basis of which,

relief has been denied to the legal heirs of the landlords :

"It is not in dispute that in the eviction petition the owners had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the owners-petitioners leave alone any member of their family who was dependant upon them. That being so the parties went to trial before the Rent Controller on the basis of the case pleaded in the petition and limited to the requirement of the owners for their personal occupation. Neither before the Rent Controller nor before the Appellate Authority was it argued that the requirement in question was not only the requirement of the petitioner-owners of the premises but also the requirement of any other member of their family whether dependant upon them or otherwise. Not only that, even

(9 of 11) [CW-7486/2022]

in the petition filed before this Court the requirement pleaded was that for the deceased-widowed owner of the demised premises and not of any member of her family. Super added to all this is the fact that the legal representatives who now claim to be the family members of the deceased are all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependant upon the deceased- petitioner is also a fact undisputed before us. Even otherwise in the social milieu to which we are accustomed, daughters happily married have their own families and commitments financial and otherwise. Such being the position we find it difficult to see how the legal representatives of the deceased-appellant can be allowed to set up a case which was never set up before the Courts below so as to bring forth a requirement that was never pleaded at any stage of the proceedings."

It is noticed that in the same para, the Hon'ble Supreme

Court has clearly observed that the position may indeed have

been differentiated if in the original petition, the landlords have

pleaded their own requirement and the requirements of any other

member of family depending upon them.

The relevant observations of the Hon'ble Supreme Court are

reproduced hereunder :

"The position may indeed have been differentiated if in the original petition the petitioner-owners had pleaded their own requirement and the requirement of any member of their family dependant upon them. In such a case the demise of the original petitioners or any one of them may have made little difference for the person for whose benefit and bona fide requirement the eviction was sought could pursue the case to prove and satisfy any such requirement."

As observed earlier, in the present case, the landlord Kunna

Ram had specifically pleaded in his eviction petition about the

requirements of his grand sons and in rejoinder also, he has

specifically pleaded that his grand son Prakash, who is

unemployed would also help him in business. In his deposition

before the Rent Tribunal, the landlord had also pleaded that his

grand sons would help him in the business.

(10 of 11) [CW-7486/2022]

In view of the above, the judgment of the Hon'ble Supreme

Court rendered in Seshabal's case (supra) is of no help to the

petitioner.

In Mohd. Ismail's case (supra), the Hon'ble Supreme Court

has remanded the matter to the High Court while taking into

consideration the fact that one son of the landlord had expired and

another son had absconded from last 8-9 years and the landlord

has already took possession of another shop/premises from other

tenant, in which, his third son was running a business.

The situation in the present case is different as since

beginning, the landlord has pleaded that he is in bonafide need of

the disputed shop for himself and his grand sons. The petitioner

has failed to prove the fact regarding availability of alternate

accommodation for the landlord to run his business and both the

Courts below have found that no alternate accommodation was

available for the landlord to run his business.

A Co-ordinate Bench of this Court vide its judgment dated

23.08.2018 passed in Nand Kishore's case (supra) while taking

into consideration the various pronouncements of the Hon'ble

Supreme Court has summed up as under :

"The position of law regarding eviction, bona fide need of the landlord and the death of the landlord during the pendency of the appeal, as emerging from above discussed case-laws can be briefly summarized as thus:-

(A) The crucial date for determining the bona fide need of the landlord is the date of institution of the eviction suit/proceeding.

(B) The death of the original landlord during the pendency of the appeal does not necessarily result into the cessation of the bona fide and reasonable need. The appeal can be contested by the legal heirs the deceased landlord if the bona fide need pleaded

(11 of 11) [CW-7486/2022]

in the plaint whether directly or indirectly relates to the landlord's legal heirs and dependents.

(C) Even in the absence of any explicit plea, the courts can assume that the bona fide need as pleaded by the landlord also extends to his dependents, if he has any.

(D) The court should take note of subsequent events only if three conditions are fulfilled. First, the relief as originally claimed has by reason of the subsequent event, become inappropriate or cannot be granted. Second, taking note of the subsequent event would shorten the litigation and enable the court to do justice to both the parties. Third, such subsequent event is brought to the notice or the court promptly and without any delay.

Taking into consideration the above principles of law, I am of

the opinion that even the subsequent events, took place in the

present case such as death of landlord Kunna Ram and his wife

will not result into cessation of bonafide and reasonable need of

their legal heirs.