Rajasthan High Court

Hazi Mohammed Ayub Khan Son Of Shri ... vs Gulamuddin Son Of Shri Bafati ... on 3 January, 2023

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 14512/2021

Hazi Mohammed Ayub Khan Son Of Shri Hazi Mohammed Yakub
Khan, Aged About 75 Years, Resident Of House No. Anc-6/390 A
Lane Langerkhana, Khadim Mohalla, Ajmer (Rajasthan)
                                                                    ----Petitioner
                                     Versus
Gulamuddin Son Of Shri Bafati Khalifa, Resident Of Lane
Langerkhana,        Khadim      Mohalla,        Ajmer        (Rajasthan)   (Since
Deceased)      Through         His      Alleged        Legal      Representative-
Shamsuddin Son Of Shri Gulamuddin, Resident Of House No.
Amc-481/6, Resident Of Lane Langerkhana, Khadim Mohalla,
Ajmer (Rajasthan)
                                                                  ----Respondent

For Petitioner(s) : Mr. Saransh Saini assisted by Mr. Vinod Kumar Sharma & Mr. Sanjeev Kumar.

For Respondent(s) : Mr. Alok Chaturvedi.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

03/01/2023

This writ petition has been filed by the petitioner (hereinafter to

be referred as 'Landlord') challenging the order dated 30.10.2021

passed by the Appellate Rent Tribunal, Ajmer whereby the appeal

filed by the respondent (hereinafter to be referred as 'tenant') was

allowed and the judgment and decree dated 06.10.2016 passed by

the Rent Tribunal, Ajmer in favour of the landlord was set aside.

Brief facts of the case are that the landlord filed eviction

application before the Rent Tribunal, Ajmer against the tenant on

the ground of bona-fide need of the shop in dispute for his son i.e.

Shabir Khan and the Rent Tribunal, Ajmer vide its judgment and

(2 of 5) [CW-14512/2021]

decree dated 06.10.2016 allowed the eviction application filed by

the landlord. Thereafter, the tenant filed appeal before the

Appellate Rent Tribunal, Ajmer and the same was allowed and the

judgment passed by the Rent Tribunal, Ajmer dated 06.10.2016

was set aside vide judgment dated 30.10.2021. Being aggrieved

by the judgment dated 30.10.2021 the landlord has filed this writ

petition.

Counsel appearing on behalf of the landlord submitted that

the eviction application was filed by the landlord on the ground of

bona-fide need of the shop in dispute for business of his son and

in this regard the Rent Tribunal, Ajmer framed issue No.1 and

after recording a finding of fact in favour of the landlord allowed

the eviction application. Counsel further submits that the Appellate

Rent Tribunal, Ajmer has committed serious illegality in reversing

the finding of the Rent Tribunal, Ajmer which was based on the

oral as well as documentary evidence available on record. Counsel

further submits that the Appellate Rent Tribunal, Ajmer has not

considered the fact that the landlord is partner in the business of

his brothers whereas, the present shop in dispute is needed for

the business of his son and not for himself. Counsel further

submits that the son of the landlord is in service and getting

monthly salary and the Appellate Rent Tribunal, Ajmer has

wrongly held that he will not get more earning than what he is

getting from salary at present. Counsel further submits that it is

for the landlord to choose a business of his choice and not for the

tenant to advise to do what type of business or service would be

suitable to the landlord.

In support of the contention counsel relied upon the

judgment passed by the Hon'ble Supreme Court in the matter of

(3 of 5) [CW-14512/2021]

Bhupinder Singh Bawa Vs. Asha Devi, reported in 2016 (10)

Supreme Court Cases 209 in which in para 12 it has been held

as under:-

"12. In light of the above, Additional Rent Controller and the High Court rightly concluded that no alternative premises were lying vacant for running business of respondent's son. The High Court rightly relied on the ratio of Anil Bajaj v. Vinod Ahuja2 to hold that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to which shop her son should start the business from."

Counsel further relied upon the judgment passed by 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 36, 37 & 38 it has been

held as under:-

"36. A finding as to bona fide requirement for doing readymade garments business by Matloob Ahmad has been expressly recorded by the appellant authority. The said finding was a finding of fact. Neither could it have been interfered with, nor has it been set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition.

37. As observed earlier, statutory remedy has been provided under the Act against an order passed by the prescribed authority by filing an appeal before the District Judge (Section 22). There is no further remedy under the Act. The tenant, in the circumstances, approached the High Court by filing a petition under Articles 226 and 227 of the Constitution.

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

(4 of 5) [CW-14512/2021]

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."

Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Maganlal Vs.

Nanasaheb, reported in (2008) 13 SCC 758 in which in para-16

it has been held as under:-

"16. This Court in Sait Nagjee Purushotham & Co. Ltd. v.Vimalabai Prabhulal and Ors.MANU/SC/2480/2005 :AIR2006SC770 held that it is always a prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai and Hyderabad, therefore, it is not genuine need. Further, it is held that it is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of the business.

Counsel appearing on behalf of the tenant has opposed the

writ petition and submitted that son of the landlord is living

separately and the shop in dispute is not needed for his business.

Counsel further submits that earlier also the suit filed by the

landlord was dismissed with regard to need of his another son.

Counsel further submits          that there is contradiction in the


                                                                                (5 of 5)            [CW-14512/2021]

statement of the landlord recorded before the Rent Tribunal.

Counsel further submits that necessity of the shop in dispute is

not bona-fide and prayed for dismissal of the writ petition.

Heard counsel for the parties and perused the record.

This writ petition filed by the landlord deserves to be allowed

for the reasons; firstly, the petitioner who is landlord has every

right to choose as to which shop is most suitable for the business

of his son; secondly, admittedly, as per the evidence submitted by

both the parties, in my view the Rent Tribunal has rightly recorded

finding of fact that the shop in dispute is needed for the business

of son of the landlord; thirdly, the finding of fact recorded by the

Rent Tribunal, Ajmer has been reversed by the Appellate Rent