Qmotiram Son Of Shri Uttamchand vs Ganesh
2022 Latest Caselaw 11601 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 16727/2021

Motiram Son Of Shri Uttamchand, Firm Satyanarayan Gera Cloth Store, Kotgate, Bikaner (Dead) Through Lrs -

1. Chandratan S/o Late Shri Motiram, Aged About 68 Years, By Caste Gera, All Partner Firm Satyanarayan Gera Clothe Store, Kot Gate, Bikaner.

2. Sitaram S/o Late Shri Motiram, Aged About 64 Years, By Caste Gera, All Partner Firm Satyanarayan Gera Clothe Store, Kot Gate, Bikaner.

3. Moolchand S/o Late Shri Motiram, Aged About 53 Years, By Caste Gera, All Partner Firm Satyanarayan Gera Clothe Store, Kot Gate, Bikaner.

----Petitioners Versus

Ganesh S/o Shri Rekhchand, By Caste Swami, Resident Of Chokhunti, Gajner Road, Bikaner.

                                                                ----Respondent


For Petitioner(s)         :    Mr. M.S. Purohit
For Respondent(s)         :    Mr. S.S. Ladrecha



            HON'BLE MR. JUSTICE VIJAY BISHNOI

                         Judgment / Order

19/09/2022

This writ petition is filed by the petitioners challenging

the order dated 28.10.2021 passed by the Rent Appellate

Tribunal, Bikaner (for short 'the Rent Appellate Tribunal'),

whereby the appeal filed by the petitioners has been

dismissed. The petitioners have filed the aforesaid appeal

before the Rent Appellate Tribunal being aggrieved with the

(2 of 6) [CW-16727/2021]

order dated 16.12.2014 passed by the Rent Tribunal, Bikaner

(for short 'the Rent Tribunal'), whereby the eviction petition

filed by respondent - Ganesh son of Shri Rekhchand was

allowed and the recovery certificate has also been issued with

a direction to the petitioners to handover the vacant

possession of the premises in question to respondent -

Ganesh within a period of six months.

The eviction petition was filed on behalf of respondent -

Ganesh for vacating the premises in question solely on the

ground of bonafide necessity. The Rent Tribunal, after going

through the pleadings as well as the evidence produced by

the parties has held that respondent - Ganesh is in

reasonable and bonafide need of the premises in question

and, therefore, it is a fit case wherein eviction order is to be

passed.

The Rent Appellate Tribunal has also analyzed the

evidence as well as the other material produced by the

parties before the Rent Tribunal and affirmed the findings

arrived at by the Rent Tribunal vide order impugned.

Learned counsel for the petitioner has argued that the

petitioners have moved an application under Order 41 Rule

27 CPC before the Rent Appellate Tribunal, however, the Rent

Appellate Tribunal has illegally rejected the said application. It

is submitted that along with the said application, the

petitioners have produced a partnership deed claiming that

the premises in question has been rented to a partnership

(3 of 6) [CW-16727/2021]

firm, however, all the partners of the partnership firm have

not been made party in the eviction petition. Learned counsel

has submitted that the Rent Appellate Tribunal, without

considering the said partnership deed in right perspective,

has illegally rejected the said application filed by the

petitioners under Order 41 Rule 27 CPC. It is further

submitted that along with the application under Order 41 Rule

27 CPC, the petitioners have also filed an application under

Order 6 Rule 17 CPC seeking amendment in the reply to the

eviction petition, but the Rent Appellate Tribunal has not even

decided the said application.

Learned counsel for the petitioners has submitted that

from a perusal of the eviction petition filed by respondent -

Ganesh, it is clear that he sought eviction of the petitioners

from the premises in question while claiming that he is in

personal requirement of the said premises and has nowhere

claimed that he is in requirement of the premises in question

on account of reasonable and bonafide need. It is further

argued that both the courts below have not considered this

aspect of the matter and have illegally passed the impugned

orders.

Per contra, learned counsel for the respondent - Ganesh

while supporting the impugned orders has argued that the

Rent Appellate Tribunal has rightly rejected the application

filed by the petitioners under Order 41 Rule 27 CPC because

the claim of the petitioners that the premises in question

(4 of 6) [CW-16727/2021]

have been rented out to a partnership firm has not been

specifically pleaded in the reply to the eviction petition and,

therefore, the Rent Appellate Tribunal while observing that in

the absence of any such pleadings in the eviction petition, the

documents produced by the petitioners such as partnership

deed cannot be taken into consideration.

Learned counsel for the respondent - Ganesh has

submitted that since the application under Order 41 Rule 27

CPC has been dismissed by the Rent Appellate Tribunal, the

application under Order 6 Rule 17 CPC filed by the petitioners

seeking amendment in the reply to the eviction petition is

deemed to be automatically dismissed.

It is further argued that from the averments made in the

eviction petition, particularly in Para Nos.5, 6, 7, 8, 9 and 10,

it is clear that the respondent sought eviction of the

petitioners from the premises in question while claiming

reasonable and bonafide need and not only for his personal

need. It is also submitted by learned counsel for the

respondent that in the facts and circumstances of the case,

the concurrent finding arrived at by both the courts below is

not liable to be interfered with.

Learned counsel for the respondent has further argued

that as a matter of fact, the possession of the premises in

question has already been taken by the respondent pursuant

to the order dated 8.8.2022 passed by the Executing Court

(5 of 6) [CW-16727/2021]

and, in such circumstances also, the present writ petition is

liable to be dismissed.

Heard learned counsel for the parties and perused the

impugned orders.

The only ground, on the basis of which, the respondent

sought eviction of the petitioners from the premises in

question is of reasonable and bonafide need. The contention

of the petitioners that the respondent has sought eviction

only on the ground of personal need and not of reasonable

and bonafide need is bereft of any merit. From the averments

made in Para Nos.5, 6, 7, 8, 9 and 10 of the eviction petition,

it can be gathered that the respondent sought eviction of the

petitioners from the premises in question on the ground of

reasonable and bonafide need and not on the ground of

personal need.

The Rent Appellate Tribunal while taking into

consideration the application under Order 41 Rule 27 CPC

filed by the petitioners has observed that as per the rent

deed (Exhibit/2), the premises in question were rented out to

late Shri Motiram and, therefore, it cannot be said that the

partners of the firm were required to be impleaded as party

in the eviction petition. It is also observed by the Rent

Appellate Tribunal that as per the rent deed, the same was

executed between the landlord Birdichand and late Motiram

only. It is also observed that the petitioners have not pleaded

about existence of the partnership deed as also not produced

(6 of 6) [CW-16727/2021]

any evidence of this effect before the Rent Tribunal. The Rent

Appellate Tribunal has, therefore, held that in the above facts

and circumstances of the case, the application under Order

41 Rule 27 CPC filed by the petitioners cannot be allowed.

This Court is of the opinion that the finding of fact

regarding reasonable and bonafide need of the respondent is

based on the evidence produced before the Rent Tribunal and

the said finding of fact cannot be said to be perverse in any

manner. The Rent Appellate Tribunal has also not committed

any illegality in rejecting the application under Order 41 Rule

27 CPC and affirming the finding of Rent Tribunal.

Resultantly, I do not find any merit in this writ petition

and the same is hereby dismissed.

Stay petition is also dismissed.

(VIJAY BISHNOI),J

5 - ms rathore

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