Kalpana Vyas vs Raj Kumar Rangwani

CIVIL APPEAL No. 10811 OF 2018 [Arising out of SLP (C) No. 9716 of 2018]

KALPANA VYAS ... Appellant

Versus

RAJ KUMAR RANGWANI … Respondent

J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final

judgment and order dated 02.01.2018 passed by the

High Court of Rajasthan Bench at Jaipur in S.B. Civil Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.10.29 Writ Petition No. 5403/2015 whereby the High Court 16:44:01 IST Reason: 1 has allowed the writ petition filed by the respondent

herein.

3. The issue involved in the appeal is short, as

also the facts of the case lie in a narrow compass,

which would be clear from the narration infra.

4. The appellant is the applicant, whereas the

respondent is the non­applicant in the eviction

petition filed by the appellant against the

respondent before the Rent Control Tribunal,

Rajasthan out of which this appeal arises.

5. The appellant ­ a landlady of the suit premises

filed the eviction petition against the respondent­

tenant of the suit premises under Section 9 of the

Rajasthan Rent Control Act (for short called “The

Act”) before the Rent Tribunal Kota (R­84/2005)

praying therein for respondent's eviction from the

tenanted suit premises.

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6. The appellant claimed respondent's eviction

from the suit premises on the ground of her

personal bona fide need for raising construction in

the existing suit premises to be used for her

children and for stay of appellant's guest in the suit

premises.

7. The respondent denied the appellant's need

and, inter alia, contended that the appellant is in

possession of an alternative accommodation in the

city and hence her alleged need set up in the

eviction petition can be accomplished by using the

alternative accommodation available in the city.

8. By order dated 8.2.2011, the Rent Tribunal

dismissed the appellant's eviction petition holding

that appellant's need can be accomplished with an

alternative space available with her in the city.

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9. The appellant (landlady) felt aggrieved and filed

an appeal (144/2014) before the Appellate Tribunal.

The Appellate Tribunal by order dated 12.2.2015

allowed the appeal, set aside the order of the Rent

Tribunal, decreed the appellant's eviction petition

and passed the eviction decree against the

respondent, in relation to the suit premises.

10. The respondent (tenant) felt aggrieved and filed

writ petition before the High Court of Rajasthan

(Jaipur). By impugned order, the learned Single

Judge allowed the respondent's writ petition and set

aside the order of the Appellate Tribunal and

restored the order of the Rent Tribunal which gives

rise to filing of the special leave to appeal in this

Court by the landlady.

11. So the short question, which arises for

consideration in this appeal, is whether the High

4 Court was justified in allowing the respondent's

(tenant’s) writ petition thereby justified in setting

aside the appellate order of the Rent Appellate

Tribunal and restoring that of the Rent Tribunal.

12. Heard Dr. Manish Singhvi, learned counsel for

the appellant and Mr. Purvish Jitendra Malkan,

learned counsel for the respondent.

13. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal, modify the

impugned order and remand the case to the Rent

Appellate Tribunal for deciding the appeal

(144/2014) afresh on merits.

14. In our opinion, the need to remand the case to

the Rent Appellant Tribunal has occasioned because

the High Court, while allowing the respondent's writ

petition, came to a conclusion and accordingly held

5 that the Rent Appellate Tribunal allowed the

appellant's (landlady's) appeal with a casual

approach and failed to record any categorical

finding on the plea of bona fide need. The operative

part of the High Court order reads as under:­

“Taking into consideration the fact aforesaid, I do not find any reason for Rent Appellate Tribunal for setting aside the order of the Rent Tribunal. The perusal of the impugned order shows a casual approach of the Rent Appellate Tribunal in reversing the finding of the Rent Tribunal, that too, without going into the issue of personal bonafide necessity. The Rent Appellate Tribunal was expected to first decide the issue as to whether respondent is having personal bonafide necessity or not. Accordingly, impugned order passed by the Rent Appellate Tribunal is set aside.” (emphasis supplied)

15. Having held that, the High Court had two

options: first either to remand the case to the Rent

Appellate Tribunal for deciding the appeal afresh on

6 merits in accordance with law and second, to decide

the matter itself on merits in accordance with law.

16. Since the High Court heard the matter in its

writ jurisdiction under Article 227 of the

Constitution, it was not possible to examine the

issue on facts in detail like an Appellate Court. It is

for this reason, in our view, the High Court ought to

have resorted to first option and remanded the case

back to the Rent Appellate Tribunal for deciding the

appeal afresh on merits in accordance with law.

17. The High Court, therefore, committed an error

in not taking recourse to any option and without

deciding the issue arising in the case on its merit,

simply restored the order of the Rent Tribunal.

18. This approach of the High Court caused

prejudice to the appellant (landlady) because there

was no factual finding recorded either by the first

7 appellate Court or the High Court on the question of

bona fide need.

19. It is for this reason that we uphold the finding

of the High Court in relation to the approach and

the manner in which the Rent Appellate Tribunal

decided the appellant's appeal but consider it just

and proper to remand the case to the Rent Appellate

Tribunal for its decision on merits afresh in

accordance with law.

20. In view of foregoing discussion, the appeal

succeeds and is allowed. Impugned order is

modified to the extent that the case is remanded to

the Rent Appellate Tribunal for deciding the appeal

(No. 144/2014)(Old No. 41/11) afresh on merits in

accordance with law.

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21. Since the matter pertains to bona fide need

and eviction, the Rent Appellate Tribunal will decide

the appeal within six months as an outer limit

strictly in accordance with law without being

influenced by any observations made by this Court

and the High Court.

22. Pending application(s), if any, stand disposed

of.

………………………………..J. (ABHAY MANOHAR SAPRE)

..………………………………J. (INDU MALHOTRA)

New Delhi, October 29, 2018

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