Landlord Best Person To Decide Property For 'Bonafide Use', Tenant Can't Resist Eviction Stating Other Properties More Suitable: Rajasthan HC

The Rajasthan High Court recently upheld an order of the Appellate Rent Tribunal, Jodhpur which allowed an eviction appeal filed by a widow (landlord) against her tenant on the ground that mere existence of other properties which are levied by the landlord would not enure to benefit of tenant in the absence of any supporting material to effect that they are reasonably suitable for the tenant to run her business.

The single judge bench of Dr. Justice Nupur Bhati observed:

“…the bonafide necessity of the respondent is to be decided by herself and even if alternate premises are available, then also it is for the landlord/respondent to choose a more suitable premise for carrying on the business by herself and the petitioner cannot dictate as to from which premise she should start the business.”

The respondent-landlord filed an application dated March 02, 2015 before the Rent Tribunal Jodhpur under section 9(i) of the Rajasthan Rent Control Act, 2001 (the Act, 2001) against the petitioner (tenant) for eviction of one shop measuring 9ft x 18ft let out on rent for rupees 4,400/- to the petitioner who is running a shop in the name of M/S Gehlot Sabji Bhandar in the premise in dispute.

Furthermore, there are in total 12 shops in the Kalu Ram market which are rented to various other people and that one shop adjacent to the suit property is of the same size and is lying vacant which is in possession of respondent-applicant. The possession of the suit premises was sought by the respondent-applicant by filing an application under Section 9 of the Act, 2011 on the ground that she is a 48 year old lady and is unemployed as her husband died in the year 2007 and after his death the family has no source of income to maintain themselves.

It was further contended by the respondent that she has three daughters out of which one is unmarried and there being other rental income from other shops as the income is not sufficient for her and her daughter therefore she intends to start a business of artificial jewellery for which no premises is available with her. Thus, she claimed reasonable and bonafide requirement of suit premises for business of artificial jewellery.

After hearing the arguments, the Rent Tribunal dismissed the application filed by respondent-applicant vide judgement dated July 27, 2022. The respondent preferred an appeal which was allowed by the Appellate Rent Tribunal vide order dated March 16, 2023.

Aggrieved by the order dated March 16, 2023 passed by Appellate Rent Tribunal, the petitioner filed the present writ petition.

The Counsel appearing for the petitioner submitted that on the perusal of the record passed by the Appellate Tribunal it is apparent that the final arguments on the part of the petitioner remained incomplete and thereafter the matter was posted for the completion of the final arguments. However, due to unforeseen circumstances, the counsel for the petitioner was not in a position to appear before the Tribunal and thus the Appellate Rent Tribunal was not justified in deciding the appeal on merits without completion of the arguments on the part of the petitioner.

It was further submitted that the respondent had already received the rent in advance up to the date December 31, 2015 on February 18, 2015 and during the currency of tenancy, the eviction petition was filed by respondent on March 02, 2015 without giving any notice for termination of the tenancy and thus the petition claiming for vacant possession of the premises is premature and the same was not maintainable.

It was further submitted that respondent in her admission before the Appellate Tribunal stated that all the shops except shop No. 6 situated in Kalu Ram Market and four shops situated in nearby property opposite Kumharo Ka Mandir belongs to her and the shops are already on lease. Therefore, it was argued that there was no justification for learned Appellate Rent Tribunal to arrive at the conclusion that no premises are available with the respondent-applicant to carry out her business.

On the other hand, the Counsel appearing for the respondent submitted that the respondent does not have any other alternative shop to carry on the business and the shop in question is 9x18 ft which is of the perfect size and at a perfect location to start the business as it is situated in the main market area having a huge space for parking where her business can flourish.

The Court noted that the respondent has specifically made out a case by way of filing the eviction petition that on account of death of her husband, the respondent has no other source of livelihood and is facing financial hardship in order to sustain herself as well as her children.

The Court relied upon the judgment of the Supreme Court in Bhupinder Singh Bawa v. Asha Devi 2016 (10) SCC 209 in which it was held that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business.

“This Court also observes that the respondent, who is a widow lady having unmarried daughter is intending to open business of artificial jewellery is the best person to decide the place of starting her business and none other than her can take a decision for her to decide a suitable place for running the business,” the Court said.

The reliance was placed by the Court upon the judgments of the Apex Court in Dhannalal v. Kalawati Bai & Ors (2002) 6 SCC 16; Kusumlata Sharma v. Arvind Singh 2023 SCC OnLine SC 488 and Hukum Chandra (D) THR.LRS. Vs. Nemi Chand Jain & Ors. 2019 (13) SCC 363.

The Court observed:

“This Court finds that mere existence of other properties which are levied by respondents would not enure to benefit of tenant/petitioner in the absence of any supporting material before Court to effect that they are reasonably suitable for the petitioner to run her business. Further, the petitioner is not able to demonstrate the extreme hardship caused to him upon vacating the premises in dispute. The litigation has consumed 10 years and thus, the hardship suffered by the respondent/landlord is more than the petitioner. Furthermore, the object of Section 9(i) of the Act of 2001 is to relieve landlords from hardship so that he gets suit premises vacated early for his personal use.”

The Court further noted that it is obligatory upon the courts to weigh the comparative hardship of the landlord and tenant and the Rent Appellate Tribunal, Jodhpur upon weighing the said hardship has found landlord's needs of the premises as bonafide while considering the fact that the respondent is a widow lady having unmarried daughter as well as the financial hardships and considering the location of the shop in dispute has allowed the appeal in favour of the respondent while setting aside the decision and certificate passed by the Rent Tribunal.

Thus, the Court upheld the impugned order dated March 16, 2023 passed by the Appellate Rent Tribunal, Jodhpur.

Counsel: Advocate Jagdish Chandra Vyas appeared for the petitioner; Advocate Avin Chhangani appeared for the respondent.

Case Title: Chain Singh Gehlot v. Sushila Parihar

Case No.: S. B. Civil Writ Petition No. 7177/2023

Citation: Citation: 2024 LiveLaw (Raj) 8

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