Rajasthan High Court

Satish Kumar Jain Son Of Late Shri ... vs Pankaj Jain Son Of Shri Aadesh ... on 1 December, 2022

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 16733/2022
1.     Satish Kumar Jain Son Of Late Shri Kanhaiya Lal Jain, R/o
       Churi Market Alwar.
2.     Anil Kumar Jain Son Of Late Shri Kanhaiya Lal Jain, R/o
       Churi Market Alwar.
                                             ----Petitioners-Non-Applicants
                                    Versus
1.     Pankaj Jain Son Of Shri Aadesh Kumar Jain, R/o Plot
       No.1, Hope Circus, Alwar.
                                                           Respondent/applicant

2. Praveen Kumar Jain Son Of Late Shri Kanhaiya Lal Jain, R/o Churi Market Alwar.

3. Nirmal Jain Son Of Late Shri Kanhaiya Lal Jain, R/o 32-B, Manu Marg, Alwar.

4. Ravindra Kumar Jain Son Of Late Shri Kanhaiya Lal Jain, R/o Ganj Ki Gali, Alwar.

5. Mahaveer Jain S/o Late Shri Kanhaiya Lal Jain, R/o Swarg Road, Sabji Mandi Wali Sadak, Alwar (Rajasthan).

6. Chandraprakash Jain S/o Late Shri Kanhaiya Lal Jain, R/o Swarg Road, Sabji Mandi Wali Sadak, Alwar (Rajasthan).

7. Shrimati Asha W/o Manoj Jain D/o Late Shri Kanhaiya Lal Jain, R/o Palam, New Delhi.

8. Shrimati Kamlesh Jain W/o Late Shri Kanhaiya Lal Jain, R/o Churi Market, Alwar (Rajasthan). (Deceased)

----Performa-Respondents/Non-Applicants

For Petitioner(s) : Mr. Rajesh Kapoor For Respondent(s) : Mr. Bipin Gupta

HON'BLE MR. JUSTICE INDERJEET SINGH Order

01/12/2022

This writ petition has been filed by the petitioners

(hereinafter to be referred to as "tenants") against the order

dated 16.05.2022 passed by the learned Appellate Rent Tribunal,

(2 of 5) [CW-16733/2022]

Alwar, whereby the appeal filed by the tenants against the

judgment and decree dated 19.03.2020 passed by the learned

Rent Tribunal, Alwar was dismissed.

Brief facts of the case are that the shop in dispute was taken

on rent by the father of the respondents No.2 to 7 Kanahaiya Lal

on 02.06.1957. The landlord, Pankaj Jain, filed an eviction

application against the original tenant Smt. Kamlesh Jain & Ors. in

the year 2015. During the pendency of the proceedings before the

learned Rent Tribunal, Smt. Kamlesh Jain died on 22.03.2018. The

learned Rent Tribunal on the basis of pleadings of the parties

framed three issues, however, the suit was decreed by the learned

Rent Tribunal vide order dated 19.03.2020 only on the basis of

issue No.2, which reads as under:-

"2 .आया प्रतययर्यर्थीगण गण नीगण ने अपगण नीगण ने ने काये कार्य र्य वयापार ने कीगण ने र के लार के लिए उपयुक्त उचचि्त पयाे कार्यप्त पपररसर अअर े कार्य्त ने कर र के लार के लिया ा हय , इस आधार पर वििादि्त पपररसर रंग lq[kZ खाार के लिी ने करागण नीगण ने ने का अचधने कारी ा हय ?

...अ ्यर्थीिार "

Being aggrieved by the judgment and decree dated

19.03.2020, the tenants filed regular appeal before the learned

Rent Appellate Tribunal, Alwar which was dismissed by the learned

Rent Appellate Tribunal vide its judgment dated 16.05.2022.

Hence, this writ petition has been filed by the petitioner

challenging the order dated 16.05.2022 passed by the learned

Appellate Rent Tribunal as well as the judgment and decree dated

19.03.2020 passed by the learned Rent Tribunal, Alwar.

Counsel for the tenants submits that the finding given by the

Rent Tribunal as well as Appellate Rent Tribunal on issue No.2 is

perverse and the same has been recorded on wrong consideration

of the evidence adduced by the parties. Counsel further submits

(3 of 5) [CW-16733/2022]

that the original tenant has purchased the alternative

accommodation in the year 1974, however, the said premises is

residential and not suitable for commercial purposes. Counsel

further submits that the landlord failed to file the suit immediately

after purchasing the alternative accommodation of the property by

the tenant. Counsel further submits that the alternative

accommodation acquired by the tenant is used by his seven sons

and their families for residential purpose and not suitable for doing

the business. Counsel further prayed for allowing the present writ

petition.

Counsel appearing on behalf of the landlord submits that the

learned Rent Tribunal as well as the learned Appellate Rent

Tribunal considered the evidence adduced on behalf of the tenants

and recorded the finding of fact that the acquired property by the

tenants is residential-cum-commercial upon which, the shops are

situated which are used for doing the business by the family

members of the original tenant, including present tenant himself.

Counsel further submits that the tenants have enjoyed the

property in dispute for more than 65 years and the finding of fact

recorded by both the Courts below not required to be interfered by

this Court under Article 227 of the Constitution of India. Counsel

further submits that this Court cannot act as an Appellate Court to

appreciate the evidence again at this stage.

Heard counsel for the parties and perused the record.

The Hon'ble Supreme Court in the matter of Shamshad

Ahmad and others vs. Tilak Raj Bajaj and others, reported in

2008 (9) Supreme Court Cases 1 in which in para No.38 it has

been held as under:-

(4 of 5) [CW-16733/2022]

38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law."

The first argument raised by the counsel for the tenants

regarding the delay in filing the eviction application is not

acceptable, as the eviction application was filed by the landlord on

various grounds i.e. bonafide need and personal necessity and

acquiring the suitable commercial accommodation by the tenants.

The second argument raised by the counsel for the petitioners-

tenants is that the acquired premises is used by her two sons for

residential purposes and the said premises is not suitable for

commercial purposes is also not acceptable.

Since, the tenants themselves have admitted in their cross-

examination that they are doing business in the acquired property

and that the acquired property is situated within the main market,