Devi Rani v. Kul Bhushan Sharma

confirmed by the Appellate Authority on 12.6.2004. Learned Appellate Authority also found that with the judgment of Hon'ble Supreme Court in Harbilas Rai Bansal and another Vs. State of Punjab, 1996(1) PLR 227 and Ved Parkash Gupta Vs. State of Haryana, 1997(2) PLR 775, the dis(cid:27)nc(cid:27)on between commercial property and non-commercial property for seeking ejectment on the ground of bonafide necessity, had now vanished. It was also observed that the landlady is the best judge of her bonafide needs and that tenant cannot ques(cid:27)on the same.

4.1 Assailing the aforesaid orders passed by the two courts below, it is contended by the learned counsel for the tenant-pe(cid:12)(cid:12)oner herein that aBer filing of the present pe(cid:27)(cid:27)on, the husband of the landlady has since expired in 2009 and therefore, the projected necessity has come to an end. Besides, by moving an applica(cid:27)on bearing CM No.5144-CII of 2023, under Order 41 Rule 27 CPC, the tenant also sought to place on record copy of the sale deed dated 29.11.2011 in order to contend that remaining por(cid:27)on of the house had been sold by the landlady to one Brij Mohan and that she has now permanently shiBed to the place of her son in Noida and thus, she did not have any other requirement leB for the demised shop. It is contended that while deciding this pe(cid:27)(cid:27)on, the court is required to look into the subsequent events.

4.2 Learned counsel has referred to Mohd. Ismail Vs. Dinkar Vinayakaro Dorlikar, 2012(2) PLR 670 and Shri S.R. Du(cid:22)a Vs. Shri Chun Lal Bha(cid:12)a, 1981(1) RentLR 318, wherein it had been held that pe(cid:27)(cid:27)on is to be decided by taking into considera(cid:27)on the subsequent events, which come up during the pendency of the proceedings.

5.1 Refu(cid:27)ng the aforesaid conten(cid:27)ons, it is urged by the learned counsel for the landlady (respondent herein) that subsequent events are not liable to be taken into considera(cid:27)on and that bonafide requirement of the landlord is required to be seen at the (cid:27)me of filing of the pe(cid:27)(cid:27)on. It is further contended that the bonafide necessity as projected by the landlady was not only for her husband but also for herself because she wants to Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order Page No.3 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) open a kiryana shop in the demised premises. Learned counsel contends that said bonafide necessity s(cid:27)ll exists and therefore, merely because of the death of the husband of the landlady in 2009, cannot be a reason to set aside the ejectment orders as passed by the Courts below.

5.2 Learned counsel contends further that this pe(cid:27)(cid:27)on is filed by the tenant against the concurrent findings of the Courts below, holding that the necessity as projected by the landlady is bonafide & genuine and therefore, under its revisional power, this court cannot re-appreciate the evidence, unless there is some perversity in the same. For this, learned counsel has relied upon Daya Rani & Anr. Vs. Shabbi Ahmed, Law Finder Doc Id # 1574566.

6. This Court has considered submissions of both the sides at depth and have appraised the record carefully.

7. The issue as to whether a landlord can seek ejectment of a tenant from the non-residen(cid:27)al building on the ground of personal necessity, has been set at rest by Hon'ble Supreme Court in Harbilas Rai Bansal's case (supra). The Hon'ble Supreme Court has observed that the dis(cid:27)nc(cid:27)on between non-residen(cid:27)al and residen(cid:27)al building with regard to the ejectment of the tenant on the ground of personal necessity had no nexus with the objects sought to be achieved and that the classifica(cid:27)on causes serious hardship to the landlord and therefore, was held to be cons(cid:27)tu(cid:27)onally invalid. This authority has been followed by this Court in Ved Parkash Gupta's case (supra). Even Hon'ble Supreme Court in a later decision rendered in Ashok Kumar vs. Ved Prakash and others, 2010 (2) SCC 264 reiterated the same view by holding that a landlord can seek evic(cid:27)on of a tenant from a non-residen(cid:27)al building on the ground that he requires it for his own use, though this is not a ground under the Haryana Rent Act.

8. As such, the conten(cid:27)on of the tenant i.e. pe(cid:27)(cid:27)oner herein to be effect that the landlady could not seek his ejectment from the non- residen(cid:27)al building, has absolutely no merit.

9. Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order What is the criteria to judge the need of the landlord to be Page No.4 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) bonafide and as to what does the term ‘bonafide need’ means, has been considered by Hon'ble Supreme Court in plethora of authori(cid:27)es. Reliance can be placed upon Paramjit Singh Vs. Jagat Singh 2014 (2) RCR (Civil) 774, wherein this court referred to various authori(cid:27)es of the Hon’ble Supreme Court as well as of High Court and then held in para No.9 as under: “9. Though the terminology of `bonafide requirement' has not been defined in the Act but in Raghunath G. Panhale v. M/s Chagan Lal Sudarji and Company, 1999(2) RCR(Rent) 485, the Hon'ble Supreme Court has enumerated the following guidelines:-

1. Requirement of landlord must be both reasonable and bonafide.

2. The word "reasonable" connotes that requirement is not fanciful or unreasonable. It cannot be mere desire.

3. The word requirement coupled with the word reasonable means that it must be something more than mere desire but need not certainly be a compelling or absolute or dire necessity.

4. A reasonable and bonafide requirement is something in between a mere desire or wish on one hand that a compelling or dire or absolute necessity at the other end. 5. It may not be need in praesen(cid:27) or within reasonable proximity in the future. The word bona fide means that need must be honest and not be trained with any oblique mo(cid:27)ve.

6. Language of provision cannot be unduly stretched or strained as to make it impossible for landlord get possession. Construc(cid:27)on of relevant statutory provision must strike a balance between right of landlord and right of tenant.

7. Court should not proceed on assump(cid:27)on that requirement of landlord was not bona fide and that tenant could not dictate to the landlord as to how he should adjust himself without geJng possession of tenant premises.

10. This Court then further held in paras No.10 & 11 as under: “10. The Hon'ble Apex Court in various pronouncements had laid down guiding principles to be followed by a court while adjudica(cid:27)ng the bonafide requirement of a landlord, which should be genuine, honest and conceived in good faith. In M/s Rahabhar Produc:ons Pvt. Ltd. v. Rajendra K. Tandon, 1998(1) Rent Control Reporters 482, it has been Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order Page No.5 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) observed as under:- "The phrase "bona fide need" or "bona fide requirement" occurs not only in the Delhi Rent Control Act but in the Rent Control legisla(cid:27)on of other States also. What is the meaning of this phrase has been considered innumerable (cid:27)mes by various High Courts as also by this Court and requires no cita(cid:27)ons to explain its legal implica(cid:27)ons. Even then reference may be made to the decision of this Court in Ram Das v. Ishwar Chander and others, 1988(1) RCR(Rent) 625, in which it was indicated that "bona fide need" should be genuine, honest and conceived in good faith. It was also indicated that landlord's desire for possession, however honest it might otherwise be, has, inevitably, a subjec(cid:27)ve element in it. The "desire" to become "requirement" must have the objec(cid:27)ve element of a "need" which can be decided only by taking all relevant circumstances into considera(cid:27)on so that the protec(cid:27)on afforded to a tenant is not rendered illusory or whiIled down. These observa(cid:27)ons were made in respect of the provisions contained in E.P. Urban Rent Restric(cid:27)on Act, 1949."

11. The bonafide requirement of a landlord depends upon facts and circumstances of each case and there cannot be a strait jacket formula for this purpose. The burden lies upon the landlord to establish that the accommoda(cid:27)on is bonafide required by him for personal use. While adjudica(cid:27)ng whether the requirement is bonafide or not, it is to be seen objec(cid:27)vely and not subjec(cid:27)vely by the Court though, the landlord is the best judge of his requirement. The need of the landlord must exist so as to dis(cid:27)nguish it from mere wish or desire.”

11. In Sarla Ahuja Vs. United India Insurance Company Ltd. 1998 (2) Apex Court Journal 704, it has been held by Hon'ble Supreme Court that when landlord asserts that he requires building for his own occupa(cid:27)on, Rent Controller shall not proceed on presump(cid:27)on that requirement is not bona fide. Hon'ble Supreme Court held as under: “When a landlord asserts that he requires his building for his own occupa(cid:27)on, the Rent Controller shall not proceed on the presump(cid:27)on that Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order the requirement is not bona fide. When other condi(cid:27)ons of the clause are Page No.6 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) sa(cid:27)sfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presump(cid:27)on that the requirement of the landlord is bona fide. It is oNen said by the Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without geJng possession of the tenanted premises. While deciding the ques(cid:27)on of bonafide of the requirement of the landlord, it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself.”

12. In the light of aforesaid legal posi(cid:27)on, it is required to be seen as to whether landlady in the present case has been able to prove her bonafide need for the tenanted premises so as to order the ejectment of the respondent – tenant.

13. When in the light of aforesaid legal posi(cid:27)on, the evidence as appreciated by the Courts below is seen, it will be found that the tenant was unable to rebut the evidence of the landlady regarding her bonafide need. No doubt that the landlady was found to have sold an adjoining shop along with the vacant por(cid:27)on in April 1987 but it was proved by her that this por(cid:27)on was sold in order to meet out the expenses to perform marriage of her daughter, which was done in November, 1987. Not only this, it was proved from the evidence that in 1974, the husband of the landlady had met with an accident by falling from roof, in which his vertebra was damaged making him unemployed. Thus, the landlady and her husband having no other source of income, had the sufficient cause to sell the adjoining shop to raise funds to perform the marriage of their daughter. These facts are not only proved by the tes(cid:27)mony of the landlady and her husband, who had entered the witness box but also by the own witnesses of the tenant. As such, it cannot be said that the necessity as projected by the landlady was not genuine.

14. The main emphasis of the learned counsel for the pe(cid:27)(cid:27)oner herein i.e. tenant is about the subsequent events, inasmuch as the husband of the landlady had expired in 2009. It is contended that with the death of the husband, the bonafide need as projected by the landlady has come to an end and therefore, the said subsequent event is liable to be taken into Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order Page No.7 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) considera(cid:27)on so as to reject the ejectment pe(cid:27)(cid:27)on.

15. Ld. Counsel for the tenant has also referred to M/s Variety Emporium Vs. R.M. Mohd. Ibrahim Naina, Law Finder Doc Id #56011 and Hasmat Rai and another Vs. Raghunath Prashad, 1981(2) RCR (Rent) 401, in order to contend that in case of bonafide requirement, the Court must take into account the subsequent events during pendency of proceedings and mould the relief in the light of those events and that in case the necessity of landlord cease to exist during pendency of the appeal, the Appellate Court should take into account the said subsequent events.

16. There can be no dispute to the afore-said legal proposi(cid:27)on but in the present case, but at the same (cid:27)me, it is necessary to no(cid:27)ce that even if the husband of the landlady has expired, her bonafide necessity has not come to an end because it was specifically pleaded by her that she wanted the shop not only for herself but also for her husband. The landlady s(cid:27)ll wants to run the Kiryana shop aBer geGng the demised shop vacated, having no other source of income. In case aBer selling a residen(cid:27)al por(cid:27)on in 2011 as is contended by counsel for the tenant, the landlady is presently residing with her son at Noida, that cannot be a ground to reject the ejectment pe(cid:27)(cid:27)on as the landlady cannot be expected to sit idle, without having any other source of income, par(cid:27)cularly when she has no other premises where she can run her business.

17. Apart from this, in D. Sasi Kumar Vs. Soundararajan, AIR 2019 (SC) 4525, it has been categorically held by Hon'ble Supreme Court that crucial date for deciding the bonafide requirement of landlord is the date of applica(cid:27)on of evic(cid:27)on and it is not necessarily required to be there on the date of final adjudica(cid:27)on of the rights. It will be relevant to reproduce the observa(cid:27)ons made by Hon'ble Supreme Court in this regard. “11. Further the High Court has also erroneously arrived at the conclusion that the bonafide occupa(cid:27)on as sought should be not only on the date of the pe(cid:27)(cid:27)on but it should con(cid:27)nue to be there on the date of final adjudica(cid:27)on of rights. Firstly, there is no material on record to indicate that the need as pleaded at the (cid:27)me of filing the pe(cid:27)(cid:27)on does not subsist at Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order this point. Even otherwise such conclusion cannot be reached, when it Page No.8 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is declined it would only encourage the tenants to protract the li(cid:27)ga(cid:27)on so as to defeat the right. In the instant case it is no(cid:27)ced that the pe(cid:27)(cid:27)on filed by the landlord is of the year 2004 which was disposed of by the Rent Controller only in the year 2011. The appeal was thereaNer disposed of by the Appellate Authority in the year 2013. The High Court had itself taken (cid:27)me to dispose of the Revision Pe(cid:27)(cid:27)on, only on 06.03.2017. The en(cid:27)re delay cannot be aIributed to the landlord and deny the relief. If as on the date of filing the pe(cid:27)(cid:27)on the requirement subsists and it is proved, the same would be sufficient irrespec(cid:27)ve of the (cid:27)me lapse in the judicial process coming to an end. This Court in the case of Gaya Prasad vs. Pradeep Srivastava, (2001) 2 SCC 604 has held that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bonafide requirement of landlord is the date of applica(cid:27)on for evic(cid:27)on, which we hereby reiterate.”

18. This Court in Jugal Kishore Vs. Om Parkash and others, 2023(2) R.C.R.(Rent) 83, has also held that need of the landlord is to be seen at the (cid:27)me of filing of the evic(cid:27)on pe(cid:27)(cid:27)on, which is the crucial date for determining the bonafide need .

19. Apart from all above, it is most important to no(cid:27)ce that the finding of the Courts below regarding the bonafide necessity of the landlady is a concurrent find of fact. Whether this Court exercising in its revisional jurisdic(cid:27)on can interfere in the said finding.

20. In Daya Rani vs. Shabber Ahmed cited (supra), an ejectment pe(cid:27)(cid:27)on was allowed by the Rent Controller. The appeal of the tenant was dismissed by the Appellate Authority. The revision was allowed by High Court while exercising its power under Sec(cid:27)on 15 (6) of the Haryana Urban Control of Rent and Evic(cid:27)on Act, 1973, thus, seGng aside the concurrent findings of the courts below and dismissing the ejectment pe(cid:27)(cid:27)on. The landlord approached Hon'ble Supreme Court. SeGng aside the order of the High Court, Hon'ble Supreme Court held as under:- “10. The provisions rela(cid:27)ng to revisional powers of the High Court in other Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order Rent Legisla(cid:27)ons came up for considera(cid:27)on before the Cons(cid:27)tu(cid:27)on Bench Page No.9 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) of this Court in Hindustan Petroleum Corpora:on Ltd. vs. Dilbahar Singh 2014(4) RCR (Civil) 162: 2014(2) RCR (Rent) 210” (2014) 9 SCC 78. The maSer was referred to the larger Bench because of two lines of decisions which were somewhat inconsistent as is apparent from the referral order quoted in para 3 of the decision. ”3. The two-Judge Bench in Hindustan Petroleum Corpora:on Ltd. Case (2014) 9 SCC 102 felt that there was conflict in the two decisions and for its resolu(cid:27)on referred the maSer to the larger Bench. In the reference order Hindustan Petroleum Corpn Ltd. v. Dilbahar Singh 2014(9) SCC 102 (dated 27.8.2009), the two-Judge Bench observed, thus: ”The learned counsel for the appellant has placed reliance on a three-Judge Bench decision of this Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, wherein Sec(cid:27)on 20 of the Kerala Rent was in ques(cid:27)on. It was held in the said decision that though Sec(cid:27)on 20 of the said Act provided that the Revisional Court can go into the ‘propriety’ of the order but it does not en(cid:27)tle the Revisional Court to reappreciate the evidence. A similar view was taken by a two-Judge Bench of this Court in Ubaiba vs. Damodaran (1999) 5 SCC 645. On the other hand the learned counsel for the respondent has relied upon a decision of this Court in Ram Dass v. Ishwar Chander 1988(1) RCR (Rent) 625: (1988) 3 SCC 131 which was also a three- Judge Bench decision. It has been held in that case that the expression ‘legality and propriety’ enables the High Court in revisional jurisdic(cid:27)on to reappraise the evidence while considering the findings of the first appellate court. A similar view was taken by another three-Judge Bench of this Court in Mo: Ram vs. Suraj Bhan AIR 1960 Supreme Court 655. From the above, it is clear that there are conflic(cid:27)ng views of coordinate three-Judge Benches of this Court as to the meaning, ambit and scope of the expression ‘legality and propriety’ and whether in revisional jurisdic(cid:27)on the High Court can reappreciate the evidence. Hence, we are of the view that the maSer needs to be considered by a larger Bench since this ques(cid:27)on arises in a large Page No.10 out of 13 pages Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) number of cases as similar provisions conferring power of revision exists in various rent control and other legisla(cid:27)ons, e.g. Sec(cid:27)on 397 of the Code of Criminal Procedure. Accordingly, we direct that the papers be placed before the Hon’ble the Chief Jus(cid:27)ce for cons(cid:27)tu(cid:27)ng a larger Bench.” “11. While approving the law laid down by a Bench of three Judges in Rukmini Amma Saradamma vs. Kallyani Sulochana & Ors. [(1993) 1 SCC 499], the Cons(cid:27)tu(cid:27)on Bench in para 43 of its judgment observed:- “43. We hold, as we must, that none of the above Rent Control Acts en(cid:27)tles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on re- apprecia(cid:27)on of the evidence, its view is different from the court/authority below. The considera(cid:27)on or examina(cid:27)on of the evidence by the High Court in revisional jurisdic(cid:27)on under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without considera(cid:27)on of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that if allowed to stand it would result in gross miscarriage of jus(cid:27)ce, is open to correc(cid:27)on because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdic(cid:27)on under the above Rent Control Acts shall be en(cid:27)tled to set aside the impugned order as being not legal or proper. The High Court is en(cid:27)tled to sa(cid:27)sfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to sa(cid:27)sfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsidera(cid:27)on of all ques(cid:27)ons of fact as a court of first appeal. Where the High Court is required to be sa(cid:27)sfied that the decision is Sarita Rani 2024.08.22 01:57 I attest to the accuracy of this document/order Page No.11 out of 13 pages (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:4)(cid:8)(cid:9)(cid:9)(cid:10)(cid:1)(cid:11)(cid:12)(cid:13)(cid:14)(cid:15) according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.”

12. It would, therefore, be relevant to consider the view taken by this Court in Rukmini Amma Saradamma. That maSer arose from the exercise of Revisional Power by the High Court under Sec(cid:27)on 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, which is in pari materia Sec(cid:27)on 15(6) of the Act and empowers the High Court to call for and examine the record rela(cid:27)ng to any order passed as to the legality or propriety of such order or proceeding. Para 20 of the decision in Rukmini Amma Saradamma was to the following effect: “20. We are afraid this approach of the High Court is wrong. Even the wider language of Sec(cid:27)on 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the dis(cid:27)nc(cid:27)on between appellate and revisional jurisdic(cid:27)on will get obliterated. Hence, the High Court was not right in re- apprecia(cid:27)ng the en(cid:27)re evidence both oral or documentary in the light of the Commissioner's report (Ext. C1 and C2 mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdic(cid:27)on. Even by the presence of the word "propriety" it cannot mean that there could be a re- apprecia(cid:27)on of evidence. Of course, the revisional court can come to a different conclusion but not on a re-apprecia(cid:27)on of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdic(cid:27)on.”