Rajasthan High Court

Smt Sharda Devi vs Bhagwati Prasad on 22 August, 2022

Bench: Sudesh Bansal

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

                  S.B. Civil First Appeal No. 270/2005

     1. Smt. Sharda Devi daughter of Shri Ramchandra Verma wife of Shri
     Daulatram Verma aged 50 years, resident of Khetari Nagar Copper
     House 3D Sector House No.250 Hat Bazar kai Pas, Copper Khetari
     Nagar, District Jhunjhunu.
     2. Ved Prakash son of Late Shri Ramchandra Verma, resident of
     Chirawa Gali Dalmiyon ki Pradeep Printers kai Pas Main Bazar,
     Chirawa, District Jhunjhunu.
     3. Dharamveer son of Late Shri Ramchandra Verma, resident of Shiv
     Decoration Gandhi Chouk kai Pas, Chirawa Tehsil Chirawa, District
     Jhunjhunu.
     4. Ramesh son of Late Shri Ramchandra Verma, resident of Chirawa
     Ghandi Chouk Dalmion kai Kuai Kai Pas, Chirawa, District Jhunjhunu.
     5. Vijendra son of Late Shri Ramchandra Verma, aged 35 years,
     resident of Gandhi Chouk Dalmion kai Juai kai Pas, Chirawa, Tehsil
     Chirawa, District, Jhunjhunu.
                                                           ----defendant-Appellants
                                        Versus
     Bhagwati Prasad Dalmion son of late Shri Laxmi Chand Dalmiyon,
     resident of Chirawa Tehsil Chirawa District, Jhunjhunu at present
     resident of 6 South and Park Calcutta (West Bengal) through power of
     attorney Shri Jagdish Prasad Shah aged 55 years, son of late Shri
     Hariram Shah, resident of Station Road, Chirawa, District Jhunjhunu.
                                                             ----Plaintiff-Respondent


    For Appellant(s)         :     Mr. M.M. Ranjan, Sr. Advocate
                                   assisted by Mr. Rohan Agarwal
    For Respondent(s)        :     Mr. Alok Garg



                HON'BLE MR. JUSTICE SUDESH BANSAL

                                        Order

    JUDGMENT RESERVED ON:                          : 01/08/2022
    JUDGMENT PRONOUNCED ON:                        : August _22nd_,2022
    BY THE COURT:

REPORTABLE

1. This first appeal under Section 96 CPC has been filed against

judgment and decree dated 23.2.2005 passed by Additional

District Judge (Fast Track) No.3, Jhunjhunu in Suit No.(68/97,

30/99) 197/2003, whereby and whereunder the suit for eviction

(2 of 26) [CFA-270/2005]

and recovery of rent has been decreed against the defendant-

appellants.

2. The facts of the case as culled out from the record are that

respondent-plaintiff (hereinafter 'plaintiff') owned a Nohra east

facing in Ward No.20, near Dalmiyon ka Kua, Chirawa, wherein

two rooms, kitchen, varandah, latrine bathroom were constructed.

The construction was shown in green colour and red lines in the

map annexed with the plaint.

As per plaintiff rented premises comprises of only one room,

kitchen, veranda, latrine and bathroom in Nohra and another room

was not let out but defendant tenant, behind the back of plaintiff,

has broken the lock of the room on 7-2-1997 and entered into

possession. Whereas as per defendant both rooms with other

portion in nohra were let out by father of plaintiff way back in the

year 1967 @ Rs.45/- per month and tenancy is oral. The trial

court while deciding issues No.2&4 has concluded that entire

nohra including two rooms, kitchen, veranda, latrine and

bathroom were let out and are in tenancy of defendant since 1967

@ Rs.45/- per month.

3. Plaintiff instituted present civil suit for recovery of rent and

eviction on 25-11-1997 invoking provisions of the Rajasthan

Premises (Control of Rent and Eviction) Act, 1960 (hereinafter

`the Rent Act') on ground of default and his bonafide necessity.

For default it was stated that the defendant has not paid rent for

last fifteen years and five months, thus has committed default,

however since as per law the plaintiff can claim arrears of rent

only for three years, therefore the plaintiff prayed for due arrears

of rent only for three years preceding to filing the suit. In relating

(3 of 26) [CFA-270/2005]

the ground of bonafide necessity the plaintiff pleaded that he is

permanent resident of town Chirawa and for the purpose of

business he resides at Kolkata. However, he used to visit Chirawa

on times and again. Earlier when one room in the nohra in

question was in possession of plaintiff, he used to stay therein, but

since the defendant has encroached upon on that room, therefore,

now plaintiff has no other place of his own for his stay and

residence at Chirawa. It was averred that plaintiff's health has

turned unwell and he required the suit premises for his own

residence to recuperate his health. The plaintiff also pleaded his

hardship due to having no other premises of his own in Chirawa.

Plaintiff stated to serve one legal notice dated 6-6-199 upon the

defendant asking for due rent and to vacate the suit premises, but

same was not responded, hence, present suit has been filed.

4. On issuing notice, the defendant filed written statement and

admitted the oral tenancy by plaintiff's father since the time of his

father since 1967 at the rate of Rs.45/- per month. He stated that

no room in the nohra was in possession of plaintiff and whole

nohra including two rooms and other construction are in tenancy

since inception. Grounds of default and bonafide necessity were

denied. The defendant took defence that the plaintiff is an affluent

person and has flourishing business at Kolkata and reside there

since several years. He has alternative place for residence at

Chirawa also. The defendant contended that towards west side of

the nohra in question another nohra of plaintiff is lying vacant and

further the plaintiff has an ancestral haveli in Chirawa, so if

plaintiff wants to come back and reside in Chirawa, he can stay in

(4 of 26) [CFA-270/2005]

his another nohra and Haveli. The plaintiff's necessity was alleged

to be malafide. The defendant stated that he has retired from

service and has no other place to reside in Chirawa. Denying the

comparative hardship of landlord, he stated that any other

alternative premises in Chirawa like the suit premises, would not

be available to him for not less than rent of Rs.1000/- per month,

whereas the suit premises is continuing in his tenancy only at the

rate of Rs.45/- per month rent. So if decree for eviction is passed,

the defendant would suffer greater hardship. The notice dated 6-

6-1997 issued by plaintiff was accepted to receive, but was not

responded as the same was faulty. Finally he prayed for dismissal

of the suit.

5. As per pleadings of parties, it is an admitted fact that

defendant's father took premises in question on rent in the year

1967 at the rate of Rs.45/- per month and the rate of rent is same

even at present.

6. During the trial of eviction suit, the defendant died on 7-7-

2003 and his natural heirs being legal representatives came on

record as defendants No.1/1 to 1/5. As far as defendants No.1/1,

1/3 and 1/4 are concerned, they did not appear despite service,

hence suit proceeded ex-party against them.

7. On the basis of pleadings of parties the trial court framed

eleven issues:

First, Whether the defendant did not pay or tender the rent of six months or more of rented premises to the plaintiff and committed default in payment of rent?

Second, Whether the defendant illegally possessed over the portion mentioned in para No.5 of plaint, and the plaintiff is entitled for possession of the same area and eviction of defendant?

(5 of 26) [CFA-270/2005]

Third, Whether the plaintiff is entitled for the rent of three years till filing of the suit Rs.1620/-?

Fourth, Whether the plaintiff is entitled for mesne profits Rs.400/- per month as use and occupation for the portion which was illegally possessed by defendant? Fifth, Whether the plaintiff has reasonable and bonafide requirement of the premises in question for his residence? Sixth, whether in case of non vacation of premises in question the plaintiff would face more comparative hardship than the defendant?

Seventh, whether the plaintiff filed a suit for different causes of action, which cannot be decided in one suit? Eighth, whether the court has jurisdiction to hear the suit? Ninth, whether the court fees paid is less, therefore, the suit deserves to be dismissed?

Tenth, whether the suit is beyond limitation? Eleventh, Relief?

8. It is relevant to note here that since ground of default was

involved in the present eviction suit, therefore, provisional rent

was determined as per Section 13(3) of the Rent Act vide order

dated 1-12-1999. The defendant could not prove payment of rent,

therefore, provisional rent was determined, including the period of

three years prior to filing the suit i.e. from 25-11-1994 to 25-11-

1999, for a period of 4 years 11 months and 10 days; The

defendant was directed to pay determined rent Rs.3070/- and

further to pay monthly rent @ Rs.45/- for future months regularly

between 1 to 15 of each succeeding months during pendency of

the suit. The defendant did not comply with the order in letter and

spirit and committed default in depositing the rent, and therefore,

application under Section 13(5) of the Rent Act was filed by

plaintiff; The application was dismissed vide order dated 18-9-

2001, since the present suit was dismissed in default on 14-3-

2000, and was restored on 26-8-2000, therefore, the trial court

extended the benefit to defendant for this period. However, as per

record it appears that apart from the period, during which the suit

(6 of 26) [CFA-270/2005]

remained dismissed in default, the defendant deposited rent with

delay for the subsequent period also. There was delay in paying

monthly rent as under:-

6-2-2000 to 5-3-2000 deposited on 8-3-2000; 6-3-2000 to 5-7-2000 deposited on 30-6-2000; 6-7-2000 to 5-10-2000 deposited on 17-10-2000; 6-10-2000 to 5-11-2000 deposited on 10-11-2000; 6-5-2001 to 5-6-2001 deposited on 3-7-2001; 6-5-2002 to 5-6-2002 deposited on 17-10-2002;

Therefore, although application under section 13(5) of the

Rent Act has been dismissed and defence of the defendant has not

been struck out, however, due to non compliance of the order of

provisional rent and committing default in payment of monthly

rent regularly as required under Section 13(4) of the Rent Act, the

defendant cannot claim entitlement for benefit of first default

under Section 13(6) of the Rent Act.

9. Plaintiff Bhagwati Prasad Dalmiya examined himself as Pw.1,

Pw.2 Bajrang Lal, Pw.3 Jagdish Prasad, Pw.4 Shyam Sunder and

Pw.5 Chiranjilal Sharma and exhibited documents. Defendants

examined Dw.1 Ramchandra Verma, Dw.2 Satya Narayan, Dw.3

Phool Singh, and Dw.4 Vijendra.

10. The trial court considered oral and documentary evidence led

by both parties.

10.1 Issues No.1&3, regarding default and recovery of due

rent, were considered conjointly and considering the fact that vide

order dated 1-12-1999, the defendant was directed to pay rent of

4 years 11 months and 10 days along with interest at the rate of

Rs.45/- per month, Rs.3070/-, was paid by defendant to Jagdish

Prasad on 15-12-1999, the rent of the premises in question was

(7 of 26) [CFA-270/2005]

Rs.45/- per month. The order dated 1-12-1999 was made final

and the defendant was found to have committed default in paying

monthly rent. Issues were decided in favour of plaintiff and

against defendant.

10.2 Issues No.2&4 relating to unauthorised possession of

one room by defendant by breaking lock on 7-2-1997 and

claiming mesne profits Rs.400/- per month have been held against

the plaintiff. There is no cross objection regarding findings of these

issues from the side of plaintiff nor any argument has been raised

during course of hearing on first appeal, therefore, both these

issues do not fall for consideration in the present appeal.

10.3. Issues No.5&6 relating to bonafide and reasonable

necessity of plaintiff and comparative hardship were decided in

favour of plaintiff and against defendant.

10.4 Issue No.7 relating to joining more than one cause of

action and which cannot be decided in one suit, has been held

against defendant, but he has not assailed findings of said issue in

present first appeal, therefore, issue No.7 also does not fall for

consideration.

10.5 Issue No.8, relating to jurisdiction of the trial court was

not pressed by defendant before the trial court itself, therefore, it

also does not fall for consideration.

10.6 Issue No.9 relating to payment of less court fee, has

been held against defendant and defendant has not challenged the

same in appeal, therefore, it does not fall for consideration.

10.7 Issue No.10 relating to limitation has been decided

against defendant.

                         (8 of 26)                                    [CFA-270/2005]


10.8        During course of arguments, counsel for defendant has

not challenged findings of these issues, therefore, issues No.7, 8,

9 and 10 do not fall for consideration, by this court in the present

first appeal.

11. In view of decisions of issues No.1&3 and 5&6 in favour of

plaintiff, the trial court decreed the suit vide judgment dated 23-2-

2005 and passed decree for eviction against defendant on the

ground of default and bonafide and reasonable necessity and

consequently directed the defendant to vacate the rented

premises.

12. Heard learned counsel for parties and perused the impugned

judgment and decree as also other material available on record.

13. The impugned decree for eviction has been passed on

ground of default and bonafide necessity, therefore, findings of

issues No.1&3 and 5&6 have been pressed by counsel for

defendant appellant in the present appeal.

Issues No.1&3:

14. Learned counsel for defendant has submitted that the trial

court failed to consider this aspect of the matter that on 14-3-

2000 the suit was dismissed in default, thereafter, the defendant

tendered rent to the power of attorney of plaintiff, who refused to

accept the same. Thereafter the rent was deposited in court under

Section 19A and 19CC of the Rent Act. The plaintiff moved

application under Section 13(5) of the Act of 1950, but the same

was dismissed on 3-11-2000, therefore, the defendant cannot be

held defaulter for not depositing the rent for this period and make

non compliance of order of provisional determination. In such

(9 of 26) [CFA-270/2005]

circumstances the trial court committed illegality by not extending

benefit of first default.

15. As per provisions of Section 13(1) of the Rent Act, if

defendant has neither paid nor tendered amount of rent for six

months he is treated as defaulter. The plaintiff has stated in his

evidence that the defendant has not paid rent for last 18 years,

and has committed default. There is no cross examination from

him by defendant nor there is any suggestion to plaintiff about

making payment of rent by defendant for this period. Dw.1

Ramchandra Verma has admitted that he did not pay any rent for

last 20 years. The trail court determined the provisional rent vide

dated 1-12-1999 w.e.f. 25-11-1994 i.e. from the date prior to

three years from filing of the suit on 25-11-1997, and defendant

has accepted the order dated 1-12-1999. Thus, the default in

payment of rent for more than six month is clear from the record.

The defendant has not disputed the determination of provisional

rent by the trial court and has not disputed the non payment of

rent for this period, hence default stands proved. The trial court

affirmed the order dated 1-12-1999 while deciding the issue of

default finally. Counsel for defendant also has not assailed the

issue of default during course of his arguments, however, he

argued that the trial court committed error in not extending the

benefit of first default to defendant.

16. The tenant is entitled to get the benefit of first default under

Section 13(6) of the Rent Act, only if he comply with the order of

provisional rent and continue to pay rent as per the mandate of

Section 13(4) of the Rent Act. In the present case, the defendant

(10 of 26) [CFA-270/2005]

undisputedly committed default in payment of rent during course

of pendency of suit i.e. for the following period:

6-2-2000 to 5-3-2000 deposited on 8-3-2000; 6-3-2000 to 5-7-2000 deposited on 30-6-2000; 6-7-2000 to 5-10-2000 deposited on 17-10-2000; 6-10-2000 to 5-11-2000 deposited on 10-11-2000; 6-5-2001 to 5-6-2001 deposited on 3-7-2001; 6-5-2002 to 5-6-2002 deposited on 17-10-2002;

17. It is true that present suit was dismissed in default on 14-3-

2000, however the same was restored on 26-8-2000, and

excluding this period, the defendant has committed default in

depositing monthly rent for the post period also. Therefore, once

the defendant has not deposited monthly rent as per mandatory

requirement of Section 13(4) of the Rent Act, he is not entitled to

claim the benefit of first default. Although the application filed by

plaintiff under Section 13(5) of the Rent Act for striking off

defence of defendant was dismissed by the trial court on 18-9-

2001, however, merely on account of dismissal of plaintiff's

application under Sect 13(5) of the Rent Act, the defendant cannot

claim the benefit of first default.

18. Relevant provision of Section 13 of the Rent Act reads thus:

13. Eviction of tenants--(1) Notwithstanding anything contained in any law or contract, no court shall pass any decree; or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied--

       (2) x       x     x
       (3) x       x     x

(4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time; not exceeding fifteen days, as may be extended by the court,

(11 of 26) [CFA-270/2005]

at the monthly rate at which the rent was determined by the court under sub-section (3).

(5) x x x (6) If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the court against him.

Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months.

19. A perusal of provisions of Section 13(6) of the Rent Act

shows that a decree on the ground of default shall not be passed

against the defendant tenant who is found defaulter, if the tenant

continues to make payment of rent as required by sub-section 4 of

Section 13 of the Rent Act. The Hon'ble Supreme Court in case of

Shiv Dutt Jadiya Vs. Ganga Devi [(2002)3 SCC 189] has

observed that compliance with the mandate of Section 13(4) of

the Rent Act is necessary for the tenant during course of appeal

also, as ordinarily an appeal is a continuation of suit. In case of

Nasiruddin Vs. Sita Ram Agarwal [(2003)2 SCC 577] the

Apex Court has held that provision of Section 5 of the Limitation

Act is not applicable for condonation of delay in depositing rent

beyond the period as stipulated under Section 13(4) of the Rent

Act.

20. In the present case it appears from the record that

defendant tenant has deposited rent with delay, which is beyond

the period prescribed under Section 13(4) of the Rent Act. The

non compliance by defendant tenant to sub-section 13(4) of the

Rent Act is clear on perusal of period of delay as detailed out

hereinabove. Therefore, this court is of the considered opinion that

the trial court has not committed any error in not according the

(12 of 26) [CFA-270/2005]

benefit of first default to defendant and passing the decree for

eviction on ground of default. Thus, findings of the trial court on

issues No.1&3 do not require any interference in the present first

appeal and same are affirmed.

ISSUES NO.5&6

21. These issues, pertain to bonafide and reasonable necessity

and comparative hardship, have been decided by the trial court in

favour of the plaintiff and against defendant. This court has

considered findings of trial court with appreciation of evidence

adduced by parties in this regard.

21.1 Plaintiff Bhagwati Prasad Dalmiya has appeared and

examined himself as Pw.1, he deposed that he is permanent

resident of Chirawa and in Chirawa he has no other house for his

residence except the suit premises. He stated that his health is

unwell and he is suffering from blood pressure and heart disease.

The environment of Kolkata is not suitable for his health because

of pollution and for the purpose of improvement of his health,

unpolluted environment of Chirawa is suitable for him, and

therefore, as per advise of the Doctor he requires the suit

premises. He stated that whenever he visits Chirawa, he has to

stay at places of his friends or relatives, therefore the suit

premises is required for residence of himself and his family

members. In cross examination he clarified that the adjoining

nohra towards western side of suit premises is used for tethering

cattle and for putting fodder and their dung. There is tin-shed

structure and nohra is lying vacant for long and that nohra is not

suitable for residence of plaintiff and his family members. He

categorically denied to have any ancestral haveli at Chirawa. He

(13 of 26) [CFA-270/2005]

stated that in Kolkata also, he does not own his own house, but

lives on rent. He further clarified that because of moisture in

Kolkata he suffered Asthama and Dr.S Bhattacharya advised him

to reside in dry place and in unpolluted environment. He stated

that as and when he comes to Chirawa he has to stay in houses of

other persons, namely, Banwari Lal, Nathmal Dalmiya, Chiranji lal

and Bajrang Lal, who are his friends and relatives. He further

stated that defendant is not original resident of Chirawa and he

came Chirawa only for the purpose of doing government job, now

he has retired from service, therefore, he can return to his original

native place. Thus, if suit premises is vacated by defendant no

hardship would cause to him, on the contrary plaintiff would suffer

greater hardship due to non vacation of suit premises.

21.2 Pw.2 Bajrang Lal stated that plaintiff often comes to

Chirawa and has to stay at house of his friends and relatives

because his own house, the suit premises, is not vacant. He stated

that sons of defendant's son have got other alternative houses and

they reside there.

21.3 Pw.3 Jagdish Prasad, power of attorney of plaintiff

appeared as witness and exhibited power of attorney (Ex.7). he

stated that the plaintiff has turned unwell in Kolkata and suit

premises is required for residence of the plaintiff himself and his

family members. It is necessary for the plaintiff to reside at

Chirawa for regaining his health. He stated that plaintiff has no

other house in Chirawa and whenever he comes at Chirawa, he

has to reside in houses of his friends and relative. In his cross

examination he clarified that in the nohara adjoining to suit

premises there is a tin-shed structure and is used for tethering

(14 of 26) [CFA-270/2005]

cattle and for putting fodder and dung. He stated that he reside at

a distance of 200 yards from the suit premises.

21.4 Pw.4 Shyam Sunder in his statement deposed that

plaintiff's health is not well in Kolkata and whenever he comes at

Chirawa, he is bound to stay in houses of his friends and relatives.

In his cross examination he stated that the nohra, in western side

to the suit premises, is small and tin-shed structure therein is

used for tethering cattle and that nohra is not suitable for

residence of plaintiff.

21.5 Pw.5 Chiranji lal Sharma stated that plaintiff, in

connection to his business, went to Kolkata and his health is not

well there and whenever he comes at Chirawa, he stays with him

and sometimes at the residence of other relatives. In his cross

examination he admitted that plaintiff is residing in Kolkata since

for long period of time, however, he often comes to Chirawa as

well. He denied that the plaintiff owns ancestral haveli in Chirawa.

He stated that the nohra, adjoining to suit premises, is not

suitable for residence.

21.6 In rebuttal Dw.1 Ramchandra Verma deposed that

plaintiff does his business at Kolkata and reside there, however, he

admitted that the plaintiff comes at Chirawa once in a year. In

cross examination he admitted that he has retired from service in

the year 1982 and he is permanent resident of Phulera. He also

admitted that in Phulera his ancestral haveli is situated. He

admitted that he has four sons, one son lives at Pilani and runs a

shop, another son Dharamveer lives in Chirawa and works at

Chaudhary transport, who has his own house. Dw.1 has expressed

ignorance about ill health of plaintiff and stated that he does not

(15 of 26) [CFA-270/2005]

know when plaintiff comes Chirawa as to where he stays.

Suggestion was put to him that whenever plaintiff comes to

Chirawa he has to stay at houses of his friends and relatives,

namely, Shyam Sunder, Chiranji Lal, Bajrang Lal and Shyam

Sunder Dalmiya etc., but he expressed his ignorance. He admitted

that there is no animosity with persons who appeared as

witnesses and deposed against him and in favour of plaintiff. The

defendant admitted that he never entered into the nohra situated

in western side to the suit premises. He stated that he does not

know that the said nohra is used for tethering cattle and for

putting fodder and dung. He could not prove any pucca

construction in that nohra.

21.7 Dw.2 Satya Narayan stated that the defendant is tenant

in suit premises and both rooms are in tenancy since beginning.

For the nohra in western side to suit premises, he stated that the

same was small in size and there tin-shed structure is situated. He

admitted that no other premises in Chirawa like suit premises

could be available, for less than Rs.1000-1500/-.

21.8 Dw.3 Phool Singh stated that defendant resides in suit

premises since 1966-1967 and whole premises is in tenancy. He

denied the fact that the defendant did broke out lock of one room

on 7-2-1997 and entered into unauthorised possession. He stated

that whenever plaintiff Bhagwati Prasad comes to Chirawa from

Kolkata, he stays in his ancestral haveli and plaintiff has a

comfortable facility for his residence at Chirawa. In cross

examination, he admitted that he never saw any document of

ancestral haveli of plaintiff nor he saw any patta or record of

Nagar Palika. He admitted that he never went with defendant

(16 of 26) [CFA-270/2005]

looking for any other house on rent. He expressed his ignorance

whether environment of Kolkata suits to plaintiff or not.

21.9 Dw.4 Vijendra Kumar, son of defendant, stated that in

nohra in western side to suit premises one pakka room, latrine

bathroom are constructed and electric and water connection also

available. He admitted that defendant has four sons and the eldest

son Ved Prakash live in Pilani and carry on his own business and

has purchased a house there, another son Dharamveer lives in his

own house in Chirawa near Chaudhary transport and does the

work of repairing tape and radio etc.; third son Ramesh is

rendering service on water hut at Chrawa for last fifteen years,

which is nearby Government hospital Chirawa.

21.10 From the side of plaintiff, rebuttal evidence was

adduced, and Pw.3 Jagdish Prasad submitted affidavit denied that

plaintiff has any ancestral haveli in Chirawa.

22. After appreciation of evidence of both parties it appears that

the defendant does not dispute about the factum of ill health of

plaintiff and about the fact that he often comes to Chirawa for

stay, atleast once in a year. The defendant and his witnesses have

admitted that though the plaintiff works and carry on his business

at Kolkata, but he often comes to Chirawa as well. From the

evidence of plaintiff and his witnesses, it has come on record that

plaintiff has no other place in Chirawa for his residence except the

suit premises. The defendant contended that the plaintiff owned

one another nohra, adjoining to suit premises in western side and

same is lying vacant. In this regard, the plaintiff and his witnesses

have clarified the situation that the said nohra is not suitable for

(17 of 26) [CFA-270/2005]

residence and the same is used for tethering cattle, for putting

fodder and cow dung. In rebuttal evidence, the defendant and his

witnesses are not in concurrence about the structure in the said

nohra. The defendant (Dw.1) himself admitted that he never

entered into the said nohra. Whereas, his son Dw.4 Vijendra

stated that a structure of two rooms, kitchen, latrine and

bathroom is constructed and electric and water connection is fixed

in the said nohra. However, other witnesses of defendant, have

not corroborated, the fact of having any construction in the

adjacent nohra. There is no concurrence in statements of the

defendant and his witnesses on this aspect. Thus, firstly it may

not be held that adjoining nohra is suitable for residence purpose

and secondly available to the plaintiff for his residence. Otherwise

also, it is settled proposition of law that plaintiff is wholly free to

look for his comfort and has a full choice to choose the place for

his residence. The plaintiff is best judge of his own necessity. It is

not in dispute that plaintiff is owner of the nohra in question and if

he wants to reside in his own nohra, same is not unjust. As far as

defence of defendant that plaintiff owns a haveli in Chirawa, there

is no evidence on record. No detail, or location or other description

about such ancestral haveli of plaintiff have been produced on

record by defendant or his witnesses. Whereas plaintiff and his

witnesses have clearly denied about any such ancestral haveli

available to plaintiff in Chirawa for his residence. Pw.2 Bajrang Lal,

Pw.3 Jagdish Prasad, Pw.4 Shyam Sunder and Pw.5 Chiranjilal

have stated that whenever plaintiff comes to Chirawa, he has to

stay at houses of his friends and relative. As far as defence of

defendant that plaintiff is an affluent person and has flourishing

(18 of 26) [CFA-270/2005]

business at Kolkata is concerned, the same is wholly irrelevant to

the plaintiff's bonafide necessity, when it is established by plaintiff

and his witnesses that due to ill health, plaintiff and his family

members want to come and reside in Chirawa, which is

indisputably their native place, such need cannot be treated to

suffer from any malafide. It is usual and natural desire of the

person to use and reside in his own property. There is no reason,

why the plaintiff should suffer discomfort and sacrifice his comfort,

for the benefit of tenant. The defendant has not whispered about

any oblique motive of plaintiff to get vacate the suit premises.

23. It is settled proposition of law that necessity need not be

proved as a dire necessity. Hon'ble Supreme Court in Mohd. Ayub

Vs. Mukesh Chand [(2012)2 SCC 155] has discussed the

concept of bonafide requirement of plaintiff with comparative

hardship between landlord and tenant. It has been held that

landlord's requirement need not be a dire necessity. It was also

held in the said judgment that factum of affluence of landlord is

irrelevant, if landlord has bonafide need of the suit premises. The

Supreme Court observed that affluence of landlord cannot be a

basis to determine the issues of hardship. Otherwise if this is

treated a correct approach, then affluent person can never get

possession of his premises, even if he proves his bonafide

requirement. The Supreme Court also observed that when the

tenant did not make any genuine effort to find out any alternative

accommodation, even during pendency of litigation, the tenant

cannot claim hardship in future.

(19 of 26) [CFA-270/2005]

24. The proposition of law and criteria to adjudge the bonafide

necessity and hardship, as observed by the Supreme Court in case

of Mohd. Ayub (supra) has been endorsed in subsequent

judgment in case of Krishna Kumar Rastogi Vs. Sumitra Devi

[(2014)9 SCC 309].

25. It is settled proposition of law that landlord is best judge of

his need and courts have no concern to dictate the landlord as to

how and in what manner he should live [In Prativa Devi Vs. T.V.

Krishnan (1996)5 SCC 353]. It is held that bonafide need

should be genuine, honest, conceived in good faith and may not

be a pretext to evict the tenant or only for increasing the rent in

[Ram Dass Vs. Ishwar Chander (1988)3 SCC 131].

26. In Siddalingamma Vs. Mamtha Shenoy [(2001)8 SCC

561] it was held that while determination comes of eviction of

tenant an approach either too liberal or too conservative or

pedantic must be guarded against, if landlord wishes to live with

comfort in a house of his own, the law does not command or

compel him to squeeze himself and dwell in lesser premises so as

to protect the tenant's continued occupation in tenanted premises.

27. It is well settled law that a tenant take a premises from the

landlord to conduct his business or for the purpose of residence, it

is always choice of landlord to choose premises for his business or

residence (reference can be have of Anil Bajaj Vs. Vinod Ahuja

(2014)15 SCC 610]. This principle has been relied upon by Delhi

High Court in Kuldeep Singh Baweja Vs. Amarjeet Singh

Khurana decided on 11-7-2022, RC REV No.411/2019 & CM

Application No.13514/2022.

(20 of 26) [CFA-270/2005]

28. In the case at hand it has come on record that plaintiff

required the suit premises for residence of himself and his family

members, and there is no other alternative place available to the

plaintiff for his residence in Chirawa except the suit premises. The

suit premises is in possession of defendant since time of his father

from 1967. The defendant is native of Phulera as there he possess

his own house. His sons have acquired other alternative

accommodation in Chirawa. The defendant himself has died during

the trial of suit and his three sons are well settled and residing at

other places. It has come on record that plaintiff has to stay at

residence of his friends and relatives, whenever he comes at

Chirawa.

29. As far as the issue of comparative hardship is concerned, it is

settled proposition of law that where landlord has proved his

necessity as bonafide and reasonable, the hardship would also be

decided in favour of the landlord, unless and until the tenant does

not prove that he made his best efforts to look for any alternative

premises. This aspect was observed by the Hon'ble Supreme Court

in case of Mohd. Ayub (supra). It has been proved that plaintiff

has no other alternative premises at Chirawa to be used for his

residence. The defence of tenant about availability of another

nohra adjoining to the nohra in question, has not been proved. It

has come on record that the adjoining nohra is small in size and is

used for tethering cattle and not useful for residence purpose. No

ancestral haveli of plaintiff at Chirawa has been proved. On the

contrary, the defendant tenant pleaded his hardship in the manner

that if he would shift to any other rented premises in Chirawa, he

would have to pay higher rent at least Rs.1000/- per month. Dw.2

(21 of 26) [CFA-270/2005]

Satya Narayan has also stated in his cross examination that

alternative premises in Chirawa like the suit premises would be

available for not less than Rs.1000/1500/-. Although the tenant is

original resident of Phulera, and he came to Chirawa for his

government job, and he has retired from service. Even after

retirement, he the defendant tenant wants to continue in Chirawa,

he can look for any other alternative rented premises. Merely, he

would have to pay enhanced rent for an alternative premises is

not a relevant factor to be pleaded for comparative hardship. That

apart, two sons of defendant tenant have acquired alternative

accommodation. In such backdrop of facts and evidence, the

comparative hardship stands in favour of the plaintiff landlord.

30. In such factual matrix and on appreciation of proposition of

law, issues No.5&6 have rightly been decided by the trial court in

favour of plaintiff and has not committed any illegality. Therefore,

this court is not inclined to interfere with such findings.

31. The counsel for defendant appellant has not raised any

argument on the issue of partial eviction which has not been

considered by the trail court and no finding has been given in this

regard. However this court is aware that the point of partial

eviction is an essential issue to be considered in view of Section

14(2) of the Rent Act while passing decree for eviction on the

ground of bonafide necessity.

32. In the present case neither plaintiff nor defendant has

pleaded with regard to point of partial eviction. Issues are framed

on the basis of pleadings of parties and when pleadings are not

available on record raising a dispute about partial eviction, it

cannot be said that the trial court committed any error in not

(22 of 26) [CFA-270/2005]

framing such issue, as has been held by the Apex Court in case of

Badri Narayan Chunilal Bhutada Vs. Govindram Ramgopal

Mundada [2003(2) SCC 320].

33. The issue of partial eviction of the tenanted premises has

been considered by the Apex Court in case of Badri Narayan

Chunilal Bhutada Vs. Govindram Ramgopal Mundada

(supra) and held that "It is expected of the parties to raise

necessary pleading and the court to frame an issue based on the

pleadings so as to enable parties to adduce evidence and bring on

record such relevant material as would enable the court forming

an opinion on the issue as to comparative hardship and

consistently with such finding whether a partial eviction would

meet the ends of justice. Even if no issue has been framed, the

court may discharge its duty by taking into consideration such

material as may not be available on record."

34. The evidence on record has come to the effect that plaintiff

needs the entire suit premises for his residence. In M/s. Prem

Tent House Vs. Prakash Chand Jain [1983 RLR 438] a

coordinate bench of Rajasthan High Court has observed that

where sufficient evidence is available on record the appellate court

can decide the issue of partial eviction. Similar view has been

expressed in case of Kerala State Coir Corporation Limited Vs.

Kewal Krishan Kumar [1999(1) RCR 55].

35. Keeping aforesaid principle in mind and after going through

the evidence of parties on record, it appears that plaintiff adduced

evidence, to the effect that his requirement is for the entire suit

premises, for the purpose of residence for himself and his family

members. The defendant has no where suggested that the

(23 of 26) [CFA-270/2005]

requirement of plaintiff can be satisfied by partial eviction. When

the plaintiff has adduced evidence for his need of entire nohra, it

was for the defendant tenant to contend and rebut that the

alleged need of plaintiff could be satisfied by partial eviction. But

he neither took any such defence in his written statement nor

adduced any iota of evidence in this respect, therefore, the

defendant cannot be allowed to take benefit of his own negligence

and latches on his part. Otherwise also the suit premises is a

nohra, comprising of two rooms, veranda, kitchen, latrine and

bathroom; Considering the nature of need of plaintiff for the suit

premises, it may not be assumed by any stretch of imagination

that a part of suit premises, would be sufficient for plaintiff and his

family members. Thus the point of partial eviction goes against

the appellant.

36. Before parting with, this court intends to discuss the aim and

object of the Rent Act, The Rent Control legislation was enacted to

strike a reasonable balance between requirements of tenants for

adequate protection against the aggressive designs of greedy

landlord to evict the tenant or to increase rates of rent to an

exorbitant limit. The father of defendant took the premises on rent

in the year 1967. The defendant has already passed away during

course of trial of the suit. The present appellants are legal

representatives of deceased defendant. Two sons of deceased

defendant have acquired alternative accommodation and are

residing there. Thus, in such circumstances, seeking protection of

the Rent Act by the appellant may not be held to be equitable and

justified and in accordance with the aim and object of the Rent

Act.

(24 of 26) [CFA-270/2005]

37. In case of Shakuntala Bai Vs. Narayan Das [(2004)5

SCC 772] while dealing with Madhya Pradesh Accommodation

Control Act, 1961 it was observed that there is no warrant for

interpreting the Rent Control legislation in such a manner, the

basic object of which is to save harassment of tenants from

unscrupulous landlords. The object is not to deprive the landlords

of their properties for all times to come.

38. In Satyavati Sharma Vs. Union of India [(2008)5 SCC

287] the Apex Court observed that "it is trite to say that a

legislation which may be quite reasonable and rational at the time

of its enactment may with the lapse of time and/ or due to change

of circumstances become arbitrary, unreasonable and violative of

the doctrine of equality and even if the validity of such legislation

may have been upheld at a given point of time, the court may, in

subsequent litigation, strike down the same if it is found that the

rationale of classification has become non-existent". In para 12 of

the judgment, the Apex Court observed thus:-

"12. Before proceeding further we consider it necessary to obsrve that there has been a definite shift in the court's approach while interpreting the rent control legislation. An analysis of the judgments of 1950s to early 1990s would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant--Mohinder Kumar Vs. State of Haryana [(1985)4 SCC 221] Prabhakaran Nair Vs. State of T.N. [(1987)4 SCC 238], D.C. Bhatia Vs. Union of India [(1995)1 SCC 104] and C.N. Rudramurthy Vs. K. Barkathulla Khan [(1998)8 SCC 275]. In these and other cases, the court consistently held that the paramount object of every rent control legislation is to provide safeguard for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the later judgments."

                           (25 of 26)                                   [CFA-270/2005]


39.     Aforesaid   judgment        has     been       followed   in     State    of

Maharashtra Vs. Super Max International Private Limited

[(2009)9 SCC 772] and it has been held that "we reaffirm the

views expressed in Satyawati Sharma (supra) and emphasise

the need for a more balanced and objective approach to the

relationship between the landlord and tenant. This is not to say

that the Court should lean in favour of the landlord but merely

that there is no longer any room for the assumption that all

tenants, as a class, are in dire circumstances and in desperate

need of the Court's protection under all circumstances."

40. Order sheet of 26-7-2022 indicates that counsel for appellant

sought time to seek instruction from appellant as to whether he is

interested to pursue the first appeal on merits or wants to seek

time to vacate the tenanted premises in view of the fact that the

tenancy in residential nohra is from 1967, however, appellant

declined to seek time to vacate the tenanted premises but wanted

to argue the appeal on merits to challenge the eviction decree.

Therefore, the first appeal has been heard and considered on

merits.

41. The upshot of the aforesaid discussion is that the impugned

judgment passed by the trial court requires no interference by this

court and the same is upheld. There is no force in the first appeal