Ravindra Kumar & Anr vs M/S Shrinath Complex

S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT

Ravindra Kumar & Anr. vs. M/s Shrinath Complex

S.B.CIVIL FIRST APPEAL NO. 127/2012

DATE OF JUDGMENT : 31st MAY, 2012

PRESENT

HON'BLE DR.JUSTICE VINEET KOTHARI

Mr. J.P.Joshi, Sr. Advocate Mr. M.C.Bhoot, Sr. Advocate assisted by Mr. Siddharth Joshi & Mr. Surendra Kumar, for the appellant-defendant-tenants. Mr. Ravi Bhansali, ] Mr. Dhanesh Saraswat,] for the respondent-plaintiff-landlord. REPORTABLE

BY THE COURT:

1. The defendant tenants have filed the present appeal against the

eviction decree dated 14/2/2012 passed by learned Addl. District

Judge (Fast Track) Bhilwara in Civil Suit No. 100/2011 (Original Suit S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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No. 72/2002 - M/s Shrinath Complex vs. Ravindra Kumar & Anr.) on

the ground of bonafide and reasonable necessity of the plaintiff

landlord, a registered partnership firm.

2. The suit premises, a shop, in question was given to the present

appellants-tenants in May 1989, who set up its business of selling

children toys known as, "Kids Kingdom" on monthly rent of

Rs.5000/- by the predecessor in title, Smt. Geeta Devi w/o Shanker

Lal, who sold the suit premises in June, 1992 to the present

respondent-plaintiff and landlord M/s. Shrinath Complex, a registered

partnership firm and defendant tenants continued to remain tenants of

present plaintiff. The tenants did not pay any rent for about ten years,

117 months to be precise i.e. from 1.11.1992 till 31.7.2002 and on the

other hand, the defendant tenant also filed suit on 20/10/1992 for

reducing the monthly rent and fixation of standard rent of the suit

premises at Rs. 1450/- per month in which suit the provisional rent

under Section 13(3) of the Rent Control Act, 1950 was fixed by the

learned trial court on 5/12/1992 at Rs. 1450/-. Against the provisional

rent fixation under Section 13(3) of the Rent Control Act, 1950, the

landlord filed an appeal on 4/1/1993 before the learned Addl. District S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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Judge, which was allowed on 29/7/1999 and opportunity was given to

the landlord to lead evidence about the rent against which the tenant

filed revision petition before the High Court, from where the matter

was remanded back to the learned trial court on 16/10/2000.

However, thereafter, the tenant got its suit for fixation of standard

rent dismissed for want of appearance & defendant tenant withdrew

back the deposited rent from the trial court.

3. On the basis of default in payment of rent for more than six

months from 1/11/1992 to 31/7/2002 for 117 months @ Rs.5000/- per

month amounting to Rs.5,80,000/-, and for bonafide & reasonable

need the landlord filed a suit for eviction in the year 2002 on

30/8/2002 viz. Suit No.72/2002 which has come to be decreed by the

learned court below on both these grounds by the impugned judgment

and eviction decree dated 14/2/2012.

4. Learned counsel for the appellant-defendant-tenants submitted

that there was no default in payment of rent as entire arrears of rent of

Rs.5,80,000/- has since been paid by the tenants and the learned court

below itself has held that arrears of rent for the period June 1992 to S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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December, 1998 had become time barred being due for more than

three years period and defendant tenant is now regularly paying

monthly rent of Rs.5000/- and, therefore, ground of default in

payment of rent does not remain.

5. Learned counsels for the appellant-defendants further

submitted that there was no bonafide and reasonable necessity of the

plaintiff- respondent landlord as the shop of toys known as `Kids

Kingdom' set up by the defendant tenants is in the area of about 750

sq.ft. out of 1100 sq.ft. space on the ground floor of five storied

building of the plaintiff respondent and the plaintiff has remaining

270 sq.ft. available with it for establishing the Reception and

Restaurant of the Hotel, which they propose to open in the said

building, and, therefore, it cannot be said that there was any need of

the landlord to get the defendant tenant evicted.

6. Learned counsel for the appellant-defendants further

vehemently urged that the tenant has established his shop since 1989

and alternative accommodation of setting up the Reception and

Restaurant is available to the plaintiff on the first floor of the five S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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storied building,which after purchase of the property was let out by

the respondent landlord to some other tenant, where the ready made

garment business in the name and style of `Decent Look' was

established by the said tenant. They also submitted that since

purchase of the property, the landlord had not commenced any hotel

business and had given the remaining floors to one Topaz Hotel, who

was running the said hotel for last 4-5 years and, therefore, it cannot

be said that the landlord requires the disputed suit premises for

establishing Reception and Restaurant, so as to seek eviction of the

defendant tenant.

7. Learned counsels for the appellant-defendant read the statement

of P.W.1-Sobhagya Singh, a partner of the landlord firm, M/s

Shrinath Complex and his cross examination in detail.

8. Learned counsels for the appellant-defendants, despite

opportunity granted, have neither filed any written submission nor

even provided the list of case laws in support of their case.

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9. On the other hand, learned counsel appearing for the

respondent-plaintiff vehemently opposed the contentions raised by

the appellant-defendant-tenants and submitted that the tenant cannot

dictate the terms to the landlord as to whether they should have the

Reception and Restaurant of their hotel business at the ground floor

or first floor of the five storied building; whether they should have the

Reception of the hotel only in 270 sq.ft. of triangular space left after

the measurement of suit shop of 750 sq. ft.; whether the triangular

space available at the ground floor with the landlord measuring 14.5

ft. at the front, 30 ft. deep and 4 ft. at the back side is proper for

Reception or not and whether giving of remaining floors to another

tenant to keep the building in maintained condition was proper or not.

They also submitted that the first floor accommodation given to

another tenant, M/s Decent Look cannot be used for the Reception

and Restaurant for which easy access would be available only at the

ground floor and this cannot be disputed and denied. They further

submitted that the appellant tenant soon after the purchase of the

property by the plaintiff respondent deliberately and mischievously

did not pay rent for 117 months from June 1992 till July 2002 and on

the contrary filed suit for reduction of rent which also deliberately S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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after 8-10 years of contest upto High Court, the suit was got

dismissed for default of appearance in the year 2000 and in the

present suit for eviction filed by the plaintiff-respondent also, the

defendant tenant has filed cross suit for reduction of rent even though

since May 1989, at the point of time of taking the tenancy, the rent

was being paid at the rate of Rs.5000/- per month without demur and

now looking to the increase in the market price and rental value, the

rent of the shop in question even in the year 2002 could not be less

than Rs.15,000/- per month.

10. Learned counsel for the respondent plaintiff urged that the

detailed and cogent findings of fact arrived at by the learned court

below for the bonafide and reasonable necessity of the respondent

landlord are not liable to be disturbed in the present appeal and

despite detailed cross examination of P.W.1-Sobhagya Singh, partner

of the landlord firm, the defendant tenant failed to dispel the bonafide

and reasonable necessity of the landlord firm for suit premises for

setting up of the Reception and Restaurant area for the hotel business

of the plaintiff respondent.

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11. Learned counsel for the respondent plaintiff, therefore,

submitted that the learned court below was perfectly justified in

giving the eviction decree and same deserves to be upheld by this

Court by dismissal of the appeal of the appellant-tenant. They relied

upon the following judgments in support of their contentions.

12. The record of the trial court was summoned and the arguments

for final disposal were heard at length at the admission stage itself.

13. Before adverting to the evidence on record, a brief look at the

relevant case laws is considered opportune.

(i) The proposition that the landlord can seek eviction on the basis

of even anticipated bonafide need is well settled. Existence of

bonafide need, need not be there on the date of filing suit itself, but if

it is reasonably foreseeable in near future, then it would be sufficient

to order eviction. A reference may be made to English Law in this

regard in the form of observations of Lush J., in Harcourt V/s Lowe

reported in (1919) 35 TLR 255, in the context of construing Section

1(3) of the Increase of Rent and Mortgage Interest (War Restriction) S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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Act, 1915. The learned Judge observed:

"In my opinion the only time which it is necessary to consider in order to apply the provisions of the sub-section is the time when the court is asked to make the order. It is quite immaterial to consider the time when the notice to quit was given. Even if the conditions do not exist at the time of the trial, the plaintiff is entitled to the judgment if he proves some other ground which may be deemed satisfactory to the court."

(ii) Again in a slightly different context, Lord Justice Somewell in

Burman V/s Woods reported in (1948) 1 KB 111 observed :-

"...The Court has to direct its mind to the date of proceedings and the evidence which it hears at the time and clearly that is the date on which its order is drawn up but it is plain that the relevant facts with regard to hardships at any time the occupier of the house was whose hardship is the relevant consideration on January 1 may die on January 2 or to take a longer period families may increase, there may be illnesses or houses may become more S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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plinthful."

(iii) The Indian Courts have also held similarly that eviction of

tenant can be sought for the bonafide need likely to arise in near

future. If a party who is aware of the nature of proceedings files an

application for eviction on the basis of bona fide requirement which

may come into existence in future cannot be punished by refusing to

entertain such petition on the ground that the need is not present

when he filed the petition. Knowing fully well that a reasonable need

may arise in near future and securing eviction decree even though

such bonafide need is established may take reasonable time, the

landlord can very well initiate the action well in time in view of

bonafide need which he envisages, is likely to arise in near future. "A

stitch in time saves nine" is a well known quotation and that means

to prevent an injury one may take appropriate measures well in time.

Likewise if the landlord is of the opinion that the bonafide need

may arise in near future, he may initiate action for eviction of the

tenant even prior to actually arising of such need which in course of

time would be established before the Court of law and while the S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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decree of eviction is passed, such bonafide need would be clearly

before the court of law. While the landlord cannot seek eviction on

whims and desire only and need should be bonafide, at the same time,

bonafide need need not be absolute, compelling and dire need which

if not fulfilled, the landlord should be seen to be suffering misery or

irreparable loss. The bonafide need of the landlord lies somewhere in

between and it is the landlord, who is the best judge to really assess

such need and make his planning and apply to the Court for eviction

if landlord is of the opinion that the suit premises would be required

for the bonafide need of his or her own; or his or her children or

grand- children in near future.

(iv) In the case of T. Sunil Kumar V/s M/s S.G. Edulgri and sons

reported in AIR 1993 Andhra Pradesh 205, the learned Single Judge

of Andhra Pradhes High Court held as under:

"11. As the petitioners were studying at the time of filing of the petition and as one of them was a minor, it was contended that there was no bona fide requirement of the premises at the time when they filed the petition for eviction. It is not necessary S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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that the need for starting business should exist on the date of suit and the plaintiff can file a suit in respect of his requirement which is to be in near future vide Hemran Nima v. Rajnarayan, 1980 MP RCJ 65.

In another decision reported in 1974 RCR between Padma Rammurthy v. M. Ragha, 1974 RCR (Hyd.) 197, it held that, it is true that the need for personal occupation must be present, but it cannot also be lost sight of the fact that disposal of rent cases do take time and, therefore, a petition filed in the year 1969 for requirement of premises in 1971 on the ground that the landlord would retire and thereafter he wishes to settle down, cannot be dismissed that the need is not present.

12. It is a matter of common knowledge that proceedings for eviction of a tenant cannot be finalized at least within a period of five years if there is contest between the parties. So, if a party who is aware of the nature of the proceedings filed an application for eviction on the basis of bona fide requirement which may come into existence in future cannot be punished by refusing to entertain such petition on the ground that the need is not S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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present when he filed the petition. It should be remembered that this petition for eviction was filed in the year 1979 but still the same has not been finally disposed of. After all the petitioners were studying intermediate at the time when the petition was filed. So, it is not a course which could not be given up in the middle in the normal circumstances even if the respondent vacates the premises so as to say that there was no bona fide requirement. Further, it is clear from the evidence of P.Ws.1 and 2 that the petitioners have taken some other premises situated at Maredpalli on rent from P.W.2 for commencing business. This is a subsequent event which would go to show that the petitioners bona fide required the premises. In appropriate cases, events subsequent to the filing of eviction suit can be taken notice of and can be duly considered by the court provided the same is relevant in determining the question of bona fide requirement.

(v) Similarly, M.P. High Court in the case of Madhukar V/s

Ramesh reported in 1997 (1) All India Rent Control Journal 258

was of the same view and relying upon the Madras High Court

decision and Andhra Pradesh High Court decision cited above, M.P. S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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High Court held as under:

"16. In Petroleum Workers Union v. A. Mohd. and Co. Madras, Venkatadri, J., while elaborating the reasonable requirement of landlord under section 10 of Madras Buildings (Lease and Rent Control) Act, 1960 observed:

"....In such a case it is the duty of the Rent Controller to ascertain the reasonableness and the bona fides of the landlord as on the date of the hearing of the petition and not as on the date of the institution of the petition."

(vi) In A.P. Madhuwan v. M.P. Ramachundran, V.R. Krishna

Iyer J., (as his Lordship then was), while interpreting the concept of

bona fide need of the landlord under the Kerala Buildings (Lease and

Rent Control) Act, of 1965 observed:

"...However, respondents' counsel has argued that since on the date of institution of the petition, the landlord was a teacher in Perinthalamamma and not at Pathirippulla, he had set upon only a futrue S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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and not a present need in his eviction petition and this was fatal. I must point that the concept of need cannot be narrowly understood or pedantically interpreted but applied in a pragmatic way. The petitioner has really been transferred to Pathirpala, even as he had alleged in this petition. He must have reasonably expected a transfer and it might well be said that a need had arisen then. It is not necessary that there should be a current urgent need. It is enough if it is reasonably likely to arise in the near future. Knowing that between the institution of the petition and ultimate order from the Apex Court years pass, it will be as good as repealing the provisions for eviction on the ground of bona fide need, if courts insist on landlords proving a present need as against the prospective but certain need. Else, when the need confronts him, the building will be years away from him. Proceedings in court should not become tantalising trick."

Thus, even if the argument of the learned Counsel for the petitioner is accepted that the application was filed on day before the date of retirement, even then the petitioner is not entitled to any relief. However, in this case, as indicated S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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above, the learned trial Court has recorded a positive finding that the application was presented on 1st of August, 1988. The argument of the learned Counsel for the petitioner that the petition under Section 23-J was not maintainable cannot be accepted."

(vii) Similarly, Calcultta High Court in the case of M/s Sumit

Chemicals V/s Gyan Nath Zutshi reported in 2001(1) RCJ 87 has

held as under:

"It appears that the plaintiff's anticipation that he would be transferred was correct and further more, he is going to retire in July, 2000. In that circumstances, his anticipation that he would be back to India is a good ground for reasonable requirement. Actually, hopelessness is not required in a suit of this nature. If the prospect of being without shelter is certain, the landlord can claim vacant possession of his house on the ground of reasonable requirement. It would not be expected that a person having a flat at Calcutta will run after tenanted accommodation elsewhere. The learned Advocate for the appellant submits that the S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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Court should not take notice of the fact of his requirement, but the respondent cannot wait for his retirement and then will come to Calcutta and shall then file a suit for eviction. Therefore, his anticipation being reasonable and he must make it clear that he will get the suit flat on his return to Calcutta, and so he can ask the appellant to quit and vacate otherwise on returning to Calcutta, the respondent will be stranded.

The appellant has raised another point that the plaintiff - respondent had a rented house inasmuch as he had share in that property. To this, the respondent replied that the said property is a rented one and the accommodation there is small. Now, when the respondent has a personal property, he is within his right to claim vacant possession of the said property. So, the learned Court of first appeal has rightly overruled the contentions of this appellant.

Upon a consideration of the facts and circumstances of the case and the materials on record, I agree that the findings arrived at by the Court of first appeal below and I do not find any substantial question of law in this appeal. In the S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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result, the appeal fails. The appeal is accordingly dismissed with costs throughout.

The appellant is directed to quit and vacate the suit premises within 31st July, 2000."

14. The contention of the learned counsel for the defendant-

tenants that since the respondent landlord did not itself start the hotel

business for last 10 years after purchase of property and thus, they

cannot be believed to have any bonafide need of starting the business

is adequately met by the aforesaid case laws and the evidence on

record & the contention of the respondent-plaintiff that it is on

account of said tenant not handing over the vacant possession that

they could not start its business in the absence of lack of availability

of space for setting up Reception and Restaurant at the ground floor.

It is undoubted that the tenant cannot dictate the terms to the landlord

and ask the landlord to adjust his business needs in particular manner

by using the particular space. Rent Control law giving protection to

tenants simply does not permit this. The bonafide need has to be

established by the landlord on the available facts and circumstances,

with the evidence, to the satisfaction of the Court.

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15. The Delhi High Court in a recent decision in the case of

Gulshan Rai vs. Samrendra Bose Secy & anr. (RC.Rev.100/2011 &

CM No. 6814/2011 decided on 23/1/2012) (MANU/DE/1729/2012)

relying upon the Supreme Court decisions in the case of Sait Nagjee

Purushotham & co. Ltd. vs. Vimalabai Prabhulal& ors. - (2005) 8

SCC 252 & Ram Babu Agarwal vs. Jay Kishan Das - 2009(2) RCR

455 again reiterated that the land lord is the best judge of his

requirements and it is not open to the tenant or even to the Court to

dictate the landlord the manner or the style in which he must live. In

that case also, to expand the business of Guest House, the plaintiff

sought eviction of the tenant, which was a heritage property and the

tenant contested that the heritage building cannot be used as a Guest

House and its heritage value has to be maintained and the court

negatived these contentions and held that with the approval of

Heritage Conservation Committee such heritage building could be

used for commercial or non-commercial purpose and the tenant

cannot dictate the terms in this regard and refusing the leave to

defend to the tenant viz. Bengali Club, which was granted by the

court below, setting aside the said order, the Hon'ble Delhi High

Court held that if the defence raised is moonshine, sham and illusory, S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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the leave to defend has to be refused; otherwise the whole purpose

and purport of the summary procedure as prescribed under Section

25B of the Delhi Rent Control Act would be defeated. Para 10 to 14

of the said judgment are reproduced below for ready reference:

"10. The Apex Court has time and again reiterated that the landlord is the best judge of his requirement; it is not open to the tenant or to the court to dictate to the landlord the manner or the style in which he must live.

11. In Sudesh Kumar Soni & anr. Vs. Prabha Khanna & Anr.,153 (2008) Delhi Law Times 652, the Court observed as under:-

"It is not for tenant to dictate terms to landlord as to how else he can adjust himself without getting possession of tenanted premises-suitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background."

12. In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal and Others, (2005) 8 Supreme S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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Court Cases 252; the Court observed as under:

"It is always the 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. 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 business."

13. In 2009(2) RCR 455 titled as Ram Babu Agarwal vs. Jay kishan Das, the Apex Court observed as under:-

"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."

14. Impugned order granting leave to defend in this scenario suffers from an illegality. It is accordingly set aside. Eviction petition is decreed."

16. This Court in L.R's of Parkash & Ors. vs. Smt. Poornima &

Ors. - SBCSA No. 132/2009 decided on 11/5/2011 also upheld the

eviction decree where the tenant was running the STD PCO Booth in

a place under the staircase and the landlord needed the suit shop for

setting up his own STD PCO Booth and the Court upheld the

bonafide need of the landlord in the following terms:-

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"3. The bonafide need of the landlord established before the learned trial court is that the plaintiffs themselves were running the STD PCO Booth in a place under the staircase and, therefore, they needed the suit premises as a larger premises for setting up their STD PCO booth. The husband of the plaintiff no.1, plaintiff no.2 was not doing any other job and, therefore, the only source of livelihood was this STD PCO booth and the suit was decreed by the learned trial court on 24/5/2006 and Rs.200/- was fixed as mesne profits. The first appeal also came to be dismissed on 28/1/2009 by the learned first appellate court and applications under Order 41 Rule 27 and Order 6 Rule 17 for amendment of written statement filed by the tenant were also rejected by the learned first appellate court. These applications were filed by the defendant tenant to bring on record the subsequent development that another shop had become available to the landlord, which was, however, given on rent to another tenant.

5. Learned counsel for the respondent-plaintiffs, Mr. S.N.Pungali strongly opposed these submissions and urged that no substantial question of law arises in the present second appeal and the finding of facts returned by the courts below are based on cogent and relevant evidence and the second appeal deserves to be S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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dismissed as the bonafide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon'ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bonafide need for his business place and from the facts found by the courts below it was clear that the very source of livelihood of plaintiffs was the STD PCO Booth, which is presently run under the staircase and they need bigger premises for carrying out this business.

6. Having heard the learned counsels and upon perusal of the impugned orders passed by learned courts below, this Court is of the opinion that no substantial question of law arises for determination by this Court and the present second appeal is liable to be dismissed and same is accordingly dismissed."

17. Again this Court in Om Prakash Bhati vs. L.Rs. Of Har

Kanwar - 2012 (1) RLW 360 = 2011 (3) DNJ (Raj.) 1245 also

upheld the bonafide need for commencing the business by the grand

children of landlady, who were undertaking the computer training at

the time of filing of the suit for eviction and the Court held that even S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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though the eviction suit is filed 2-3 years in advance and the actual

need may arise after such period, still the eviction decree can be

granted on such bonafide need of the landlady for setting up the

business for her grand children. The Court held as under:-

"21. It may be stated that there is no quarrel on the proposition that bonafide need has to be reasonable and objectively considered and established by the landlord, but at the same time need to exist at the time of filing of the suit is not a straight jacket formula. Such need may arise in reasonably near future as already observed above. The reasonable period after which such need is likely to arise in view of existing set of facts and circumstances like education of children in a particular line as in the present case and the plans of parents to settle them in particular kind of business for which suit shops will be required, is the fact to be established by the landlord, but no fixed period can be set for this purpose. It will depend upon the facts and circumstances of each case. The period which the landlord can reasonably assess that would be taken in the process of litigation upon which only he can secure vacant possession of the suit premises, can best be said to be period if such need is to arise around after such S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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period. The planning for eviction by filing of suit envisaging a need which may crystallize after about 4 to 5 years cannot be said to be whimsical or far fetched. This much time is normally taken in securing an eviction decree and its execution. In the present case itself, the suit of 2003 is being decided by this Court in 2011 after 8 years. The fact to be established for that is only that the persons for whose need the suit premises are required, are undertaking that kind of education and qualification which upon its completion would help them in establishing the business for which need, the eviction is claimed. In other words the seeds of such future need should exist now, even though actual need may crystallize after a reasonably expected and estimated period of time. It may be pointed out here that Section 15 of the Rajasthan Rent Control Act provides a safeguard to the tenant that in case suit premises are not used for avowed purpose within the stipulated time framework and for stipulated time frame after eviction, then the defendant - tenant has a right of repossession of the suit premises. Therefore, apprehension about such need not crystallizing at all or that such eventuality can happen only in future, therefore, the tenant can claim that since such eventuality has not arisen at the time of filing of the suit, it does not amount to bonafide need of the S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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landlord to seek eviction, is not well founded. ......

25. Accordingly this Court is of the firm opinion that no substantial question of law arises in the present second appeal and findings of bonafide need of the landlord for setting up of business of grand-children is duly established and on objective consideration of such need, the first appellate court has rightly held that such bonafide need to arise in near future was established and the trial Court was not justified in refusing eviction decree. Therefore, the eviction decree is upheld and the present second appeal is liable to be dismissed and the same is accordingly dismissed."

18. Learned counsel for the respondent landlord relied upon the

following case laws:-

1. Ragavendra Kumar vs. Firm Prem Machinery & Co. -

AIR 2000 SC 534

2. Mrs. Meenal Eknath Kshirsagar vs. M/s Traders & Agencies & Anr.- JT 1996 (6) SC 468

3. Smt. Ramkubai vs.Hajarimal Dhokalchand Chandak -

AIR 1999 SC 3089

4. Akhileshwar Kumar & Ors. vs. Mustaqim & Ors. - 2003 S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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(1)WLC (SC) 501

5. G.C.Kappor vs. Nand Kumar Bhasin & Ors. - 2002 WLC (SC) 91

6. Allimuddin vs. Chandrika Prasad & Ors. - 1996(1) RLW 289

7. Bishnu Kumar Shah vs. CJM Cum House Rent Control Authority, Balasore & ors. - AIR 2000 Orissa 24

8. M/s Raptakos Brett & Co. Ltd. vs. Ganesh Property -

AIR 1998 SC 3085

(i) In Ragavendra Kumar vs. Firm Prem Machinery & Co.

- AIR 2000 SC 534, the Hon'ble Supreme Court in a case arising out

of the provisions of M.P. Accommodation Control Act, 1961, upheld

the concurrent findings of the trial court with regard to bonafide need

of the plaintiff landlord of the suit premises in question for opening

the show room, though the plaintiff landlord in his evidence stated

that there were number of other shops and houses belonging to him

but the suit premises is most suitable for his business purpose. The

Supreme Court in the said judgment observed that the landlord is the

best judge of his requirement and has complete freedom in the matter.

(ii) In Mrs. Meenal Eknath Kshirsagar vs. M/s Traders & S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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Agencies & Anr.- JT 1996 (6) SC 468, the Hon'ble Supreme Court

upholding the eviction decree on the ground of bonafide need of the

landlord observed that landlord is the best judge of his residential

requirements and if the landlord desires to beneficially enjoy his own

property when the other property occupied by him as a tenant or on

any other basis is either insecure or inconvenient, it is not for the

courts to dictate him to continue to occupy such premises.

(iii) In Smt. Ramkubai vs.Hajarimal Dhokalchand

Chandak - AIR 1999 SC 3089, the Hon'ble Supreme Court upheld

the bonafide need of the landlady of the suit premises for her son,

who was unemployed on the date filing of the suit and later on he

started the construction business. The Supreme Court observed in

para 11 as under:

"It is correct that Bhikchand was unemployed on the date of filing of the suit but he could not be expected to idle away the time by remaining unemployed till the case is finally decided. It has already taken 25 years. Therefore, we do not think that taking up contractor work, in the meanwhile,will militate against his S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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carrying on the business of Kirana which is his family business, which was carried on by his father and is being carried on by his brother independently....... In our view,none of the reasons leads to the interference that Bhikchand cannot be denied to the landlady to recover the suit premises for personal requirement of Bhikchand to establish Kirana business independently."

(iv) In Akhileshwar Kumar & Ors. vs. Mustaqim & Ors. -

2003(1)WLC (SC) 501, again the Hon'ble Supreme Court

categorically laid down that the court cannot thrust upon its own

choice on the needy. The Supreme Court observed that simply

because the plaintiff no.1 is provisionally assisting his father in their

family business, it does not mean that he should never start his own

independent business and once it has been proved by the landlord that

the suit accommodation is required bonafide by him for his own

purpose and such satisfaction withstands the test of objective

assessment by the court of facts then choosing of the accommodation

which would be reasonable to satisfy such requirement has to be left

to the subjective choice of the needy.

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(v) In G.C.Kappor vs. Nand Kumar Bhasin & Ors. - 2002

WLC (SC) 91, the Hon'ble Supreme Court held that the eviction

cannot be denied on ground that son had not started the business so

far in a rented premises. The Supreme Court further added that lack

of necessary funds cannot be a ground to assess the bonafide

necessity of the landlord to start new business and that the tenant had

purchased the adjoining property having mazanine floor and the suit

property is used only to store spare parts and the appellant has no

other premises except the suit premises to start the proposed business

of his son.

(vi) In Allimuddin vs. Chandrika Prasad & Ors. - 1996(1)

RLW 289, a coordinate bench of this Court dismissing the second

appeal filed by the appellant-tenant held that the bonafide requirement

by all standards has to be objectively considered and the owner is the

best judge of his bonafide need.

(vii) In Bishnu Kumar Shah vs. CJM Cum House Rent

Control Authority, Balasore & ors. - AIR 2000 Orissa 24, the Court

held that the landlord cannot be forced to continue in rented premises S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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only because he or his predecessor in interest at some point of time let

out the premises to tenant and it is for the landlord to choose the

accommodation for running his business and the Court cannot decide

as to which of the two i.e. rented premises and his own house would

be beneficial for him.

(viii) In M/s Raptakos Brett & Co. Ltd. vs. Ganesh Property -

AIR 1998 SC 3085, the Hon'ble Supreme Court dismissing the appeal

of the appellant tenant in a suit for recovery of possession filed by the

landlord after expiry of lease deed observed in para 14 as under :

"14. In view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent Court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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sufferance akin to a trespasser having no independent right to continue in possession."

19. In light of the aforesaid judgments, let us now examine the

evidence in the form of statement of P.W.1, Sobhagya Singh, a

partner of the respondent landlord firm, to establish the bonafide need

of the landlord. The said witness P.W.1, Sobhagya Singh, has stated

in the examination in chief that even at the time of giving on rent the

suit premises in 1989 the hotel known as `Hotel Santosh' was running

in the said building and the defendant was running the shop of

children's toys known as `Kids Kingdom' when the said building was

purchased by the plaintiff firm in 1992. The defendant never regularly

paid rent and the plaintiff landlord wanted to start a fresh hotel

business in the said premises but there was no proper area for

Reception and Restaurant at the ground floor. The said witness also

gave history of the suit for standard rent filed by the defendant tenant

and how the same was dismissed for want of appearance vide Ex.111,

Ex.112 and Ex.113 and that the defendant tenant again withdrew the

entire rent deposited by him vide Ex.114. He also stated that since the S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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upper floors of the building are lying vacant for years together after

their puchase of the property, they have to give it on rent temporarily

so that the building can be maintained but with the condition to the

tenant that as soon as the suit premises (Kids Kingdom) is vacated by

the present defendant tenant, they would handover the possession so

that hotel business with necessary repairs and renovation can be

started. However, in the absence of proper place for Reception and

Restaurant at the ground floor the said Hotel business could not be

started. In the cross examination also, the said witness has stood by

his statement in the same manner and has admitted that for last 4-5

years the upper floors of the building have been given on rent to M/s

Topaz Hotel for Rs.21,000/- per month with the condition that as

soon as the ground floor is vacated by the present defendant tenant,

they would handover the vacant possession to the landlord. The said

witness also denied that hotel business can be run without Reception

and Restaurant at the ground floor and it is absolutely impractical to

have the Reception and Restaurant at the first floor as suggested by

the tenant. Despite detailed cross examination of the said witness,

there is nothing in the said statement which dislodges or dispels the

bonafide and reasonable need of the plaintiff landlord.

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20. It is undisputed and undeniable that even the business need of a

corporate body landlord or even a partnership firm like the present

landlord can be construed to be a bonafide personal need of the

landlord. It appears that in eviction matters, sheer length of the

litigation in an absolutely weak case can be a great victory for a

defendant tenant and under the garb of such length of litigation they

would indulge in arm twisting tactics with the landlord and not only

the bonafide need of the landlord is frustrated during such period but

the tenant can wrought unfair deals from the landlord if such eviction

decrees are allowed to be opposed on flimsy and untenable grounds,

like in the present case. This Court is surprised at the suggestion of

the tenant and emphatic contentions raised by both the learned Senior

counsels for the defendant tenant that first floor space could have

been used by the respondent landlord for Reception and Restaurant of

the Hotel business. The said contention is absolutely frivolous and

deserves to be rejected outrightly. It is well settled as aforesaid that it

is not within the domain of the tenant to dictate the terms in this

regard and ex-facie the Reception and Restaurant at the ground floor

would be definitely more business like than at the first floor. It is not

as if the landlord has purchased the property for the tenant only or S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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that tenant becomes the owner of the ground floor to dictate the terms

in this regard. The small triangular space available at the ground floor

is not at all sufficient and proper even for having a Reception of a

five storied hotel building what to talk of a full fledged Restaurant.

All these years have been lost in the litigation already and the conduct

of the tenant in the present case is rather curious. The tenant who was

paying Rs.5000/- per month rent from May 1989, stopped paying rent

from 1992 and filed a suit for reducing the rent to Rs. 1450/- per

month, whereas, the market and rental values have constantly gone

up. After keeping the plaintiff landlord entangled in the litigation for

ten years, the tenant surprisingly allowed his suit to be dismissed for

want of appearance and when the present suit for eviction is filed on

the ground of default and bonafide need, the tenant again filed cross

suit for reduction of rent. This is the reason, this Court summoned the

record at the initial stage and heard the arguments at the admission

stage itself, lest the pendency of this appeal itself for next 10-15 years

may cause irreparable loss to the plaintiff landlord and the defendant

tenant goes all the way to bank smiling, as it were. These kind of

cantankerous litigants have to be dealt with firm iron hands of justice

and when the legal position is so well settled and evidence on record S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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is so concrete and positive, this Court finds no merit in the present

appeal of the appellant defendant and intends to dismiss the same at

admission stage itself with exemplary costs.

21. Accordingly, the appeal of the defendant tenant being

absolutely merit less is dismissed with cost of Rs.10,000/-. The

eviction decree of the court below is upheld on the ground of personal

bonafide necessity of the respondent landlord. The appellant-

defendant-tenant shall handover the vacant and peaceful possession

of the suit premises in question to the respondent plaintiff within a

period of six months from today. The defendant-tenant shall not

sublet, assign or handover the possession of the suit premises to any

third party. The defendant tenant shall also pay mesne profits at the

rate of Rs.10,000/- per month commencing from June, 2012 till the

period of six months or earlier, if the vacant and peaceful possession

is handed over earlier than six months. Cost quantified at Rs.10,000/-,

may also be paid to the respondent-plaintiff-landlord within the

period of six months. Decree be made accordingly.

22. If the appellant-defendant-tenants fail to hand over the peaceful S.B.CIVIL FIRST APPEAL NO. 127/2012 - Ravindra Kumar & Anr. vs. M/s Shrinath Complex Judgment dt: 31/5/2012

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and vacant possession of the suit premises to the respondent-plaintiff-

landlord within six months, as aforesaid, the respondent-plaintiff shall

not only be entitled to seek execution of the decree but will be free to

initiate contempt proceedings against the appellant-defendants before

this Court.

(DR.VINEET KOTHARI), J.

baweja/-