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Judgment
Heard.
The present misc. application has been filed on behalf of the petitioner seeking correction in the judgment dated 20.2.2017.
It is stated that inadvertently, at pages no.5 and 6 of the judgment dated 20.2.2017, in place of the petitioner, respondent is mentioned and in place of the respondent, petitioner is mentioned.
In this view of the matter, the instant application is allowed.
Now, this Court's judgment dated 20.2.2017 shall read as under :-
"By way of this writ petition preferred under Article 227 of the Constitution of India, the petitioner Nand Kishore Chhaparwal
(landlord) has approached this Court in order to assail the judgment Annex.17 dated 20.8.2010 passed by the learned Appellate Rent Tribunal, Bhilwara in Rent Appeal No.106/2005 reversing the judgment cum certificate of recovery dated 17.9.2005 passed by the learned Rent Tribunal, Bhilwara in Rent Control Case No.5/2003.
The petitioner landlord filed an original application under Sections 6, 9(i) and 9(j) of the Rent Control Act before the Rent Tribunal, Bhilwara seeking eviction of the respondent tenant on the ground of bonafide necessity and also on the ground of availability of alternate accommodation. A prayer was also made in the application for revision of rent. The petitioner averred in the application that he was having a small shop in his possession and he wanted to merge the said shop with the shop given on rent to the respondent and build a showroom for setting up a business for himself and his son Pawan Kumar.
The Rent Tribunal held that the ground of personal and bonafide necessity set forth in the application was genuine and that the plaintiff had duly proved this fact. The petitioner retired and thereafter wanted to run the business in the suit premises which fact was held to be palpable. The Tribunal allowed the eviction application by judgment dated 17.9.2005 and directed eviction of the respondent tenant from the suit premises. The Appellate Tribunal, however, proceeded on the assumption that the petitioner had no genuine and bonafide necessity of the suit premises as, there was already another shop measuring 17.7 feet x 9 feet in possession of the petitioner and that the said shop was being run by Kanku Devi, the petitioner's wife. The Appellate Tribunal held that in common parlance, it could not be accepted that the petitioner's wife who claimed to be running a business independently would not appear to give evidence in support of her husband's claim. On this ground, the Appellate Tribunal held that as a matter of fact Kanku Devi was not doing any business in the shop adjoining the suit premises. It was further held that there was no legal presumption that the business was being run by the very person in whose name, the license was issued. Holding thus, the Tribunal went on to conclude that the petitioner was actually running business in the shop adjoining the suit premises and the name of his wife in such business was just a facade and as such, there was no genuine or bonafide necessity of the petitioner for the shop rented out to the respondent. The appeal was allowed vide judgment dated 20.8.2010 and the judgment rendered by the Tribunal was set aside. Hence, this writ petition.
Learned senior counsel Mr.R.K. Thanvi representing the petitioner assailed the aforesaid finding of the Appellate Tribunal as being perverse. He contended that the Appellate Tribunal has demonstrated grave gender bias while recording the said finding.
Indisputably, the petitioner was in Government service and his son Pawan Kumar was minor at the relevant point of time and thus, there was no reason for the Appellate Tribunal to discard the plea advanced by the petitioner that the business in adjoining shop was run by his wife Kanku Devi. He thus submitted that the Appellate Tribunal's judgment deserves to be set aside as suffering from perversity and error apparent on the face of record and the judgment passed by the Rent Tribunal should be restored.
Per contra, Shri Himanshu Maheshwari learned counsel for the respondent vehemently tried to support the findings recorded by the Appellate Tribunal. However, he too was not in position to dispute the fact that the findings recorded by the Appellate Tribunal regarding Kanku Devi being a woman, not being in position to run the business on her own smacks of an absolutely unwarranted gender biased approach.
On the previous date of hearing i.e. on 15.2.2017, Shri Maheshwari had been given time to seek instructions from his client as to the time frame which his client would require to vacate the suit premises in case, the writ petition is allowed. Having taken instructions, Shri Maheshwari requested that the respondent tenant may be granted time till 10.1.2019 for vacating the suit premises in case the writ petition is allowed.
Shri Thanvi does not object to the said submission.
I have considered the arguments advanced by the rival parties and have gone through the material available on record.
The Appellate Tribunal reversed the well reasoned and elaborate judgment passed by the Rent Tribunal holding that it was unacceptable and unbelievable that Smt.Kanku Devi being a woman could run the business in the shop adjoining the suit premises. Under this pretext, the Tribunal virtually held that the business in the shop of which all documents stood in Kanku Devi's name was being done in a benami fashion by the petitioner. This finding is absolutely perverse and arbitrary and reflects of biased mind of the Tribunal. Woman of this country have achieved highest positions World over and thus, there is no sanction behind the finding recorded by the Appellate Tribunal that Kanku Devi was not carrying on her own independent business in the shop adjoining the suit premises. All the documents of the shop including income tax returns of Kanku Devi indicate that she was running the business on her own. The said finding deserves to be set aside as being perverse and thus, the judgment passed by the Appellate Tribunal cannot be sustained because it is based on this sole reasoning.
Shri Maheshwari has fairly conceded that the respondent would vacate the suit premises till 10.1.2019 and the petitioner's counsel has agreed to this submission.
In view of the above discussion, the instant writ petition deserves to be and is hereby allowed. The judgment Annex.17 dated 20.8.2010 passed by the learned Appellate Rent Tribunal, Bhilwara in Rent Appeal No.106/2005 is hereby quashed and set aside and the judgment cum certificate of recovery dated 17.9.2005 passed by the learned Rent Tribunal, Bhilwara in Rent Control Case No.5/2003 is restored. It is directed that the respondent tenant, shall furnish an undertaking within a period of four weeks from today before the Rent Control Tribunal, Bhilwara in the following terms:-
That he shall vacate the suit premises latest by 10.1.2019.
He shall clear of the arrears of rent, if any, accruing to the petitioner landlord for the suit premises within a period of four weeks from today.
He shall continue to make payment of rent/mesne profits as per law to the petitioner landlord from March, 2017 till the date the premises are actually vacated.
He shall not alter, alienate or sublet the suit premises.
In the event of deviation from any of the terms and conditions of the undertaking, the Tribunal shall be at liberty to direct immediate eviction of the respondent tenant from the shop in question and restoration of possession thereof to the petitioner landlord.
Upon an undertaking in the above terms being furnished by the respondent tenant with the trial Court within a period of four weeks from today, the respondent tenant shall be given time upto 10.1.2019 for vacating the shop in question. Failure to do so would entitle the petitioner landlord to seek summary eviction of the respondent tenant and also to invoke the contempt jurisdiction of this Court.
The stay application also stands disposed of.
No order as to cost.