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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.