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Judgment
Dr. Vineet Kothari, J.—This is the first appeal under Section 96 of the CPC filed by the defendant/tenant-Ms. Priti Parihar d/o Col. Dr. Moti Lal Sankhla and Director of Geetanjali School, aggrieved by the eviction decree dated 23.09.2003 passed by the learned Additional District Judge (Fast Track) No. 2, Jodhpur in Civil Suit No. 09/2003(11/97) - Mali Sansthan, Jodhpur (Registered Society v. Priti Parihar & Ors.) and the suit was decreed on the ground of bona fide necessity of the landlord-Society for setting up of a hostel for boys and girls of the community at the disputed premises, which are situated at main Mandore Road, Jodhpur, a prime location.
By a 45 pages judgment passed by the learned Additional District Judge, the eviction decree was passed directing the defendant-tenant, who is running a School of about 500-600 students in about 20 rooms'' accommodation of the disputed premises and the court below has directed the defendant to hand over peaceful and vacant possession of the suit premises within a period of two months and to pay mesne profits of Rs. 5,000/- per month for the use and occupation
The relevant findings of the learned court below in respect of the bona fide need and comparative hardship in the eviction decree are quoted below for ready reference:--
The defendant-tenant has also filed an application under Order 41 Rule 27 CPC in this Court on 01.08.2012, namely, IA No. 11516/2012 to which a reply has been filed by the respondent-landlord contesting the said application.
Shri L.R. Mehta, Shri G.R. Singhvi and Shri Ramit Mehta, learned counsels appearing for the defendant-tenant urged that the main ground of bona fide necessity while deciding issues No. 3 and 4 in favour of the plaintiff-respondent-landlord, the learned court below has not taken note of the fact that the respondent-landlord Mali Sansthan, Jodhpur has already constructed another hostel of about 80 rooms during the pendency of this trial at Rambagh and therefore, their need of the disputed rented premises was fulfilled. They also urged that the plaintiff-respondent already own a nearby School known as "Sumer School", in which adequate space is available for them to construct such hostel, if they so need, and therefore, the defendant-tenant, which is also running an educational institution in the disputed premises of about 500-600 students from Kindergarten to XII Standard, comparatively more hardship will be caused to the defendant-tenant, if they are asked to vacate the suit premises in question, which is in their tenancy right from 1985. They also urged that the land in question was actually donated and a Trust Deed was created in favour of the plaintiff-respondent Mali Sansthan, Jodhpur by the grandfather of the defendant-tenant-Ms. Priti Parihar, namely, Shri Nanu Ram and one of the conditions of the said Trust Deed was that the said place would be used for educational purposes only, and therefore, the respondent-landlord cannot be held entitled to seek eviction for purportedly raising construction of hostel. Learned counsel for the defendant-tenant also produced map of the site in question and submitted that on the triangular construction of the rooms and shops on the front of the Mandore Road, if the respondent-Mali Santhan-Society wants to raise construction on the first or second floor, subject to permissions granted by the Municipal Corporation, they can do so, still allowing the defendant-tenant to run the educational institution for the benefit of children. They also offered to raise the mesne profits of Rs. 5,000/- substantially. In the alternative and in the end, they also submitted that a period of five years may be given to the defendant-tenant for vacating the said premises, in case decree of eviction is upheld, as passed by the learned court below. In support of his submissions, the learned counsel for the appellant/defendant-tenant, Mr. L.R. Mehta, relied upon the following judgments:--
"1. Kedar Nath Agrawal (Dead) and Another Vs. Dhanraji Devi (Dead) by LRs. and Another, .
Jai Prakash Gupta (D) thr. LRs. Vs. Riyaz Ahamad and Another, .
Dinesh Kumar Vs. Yusuf Ali, .
S.J. Ebenezer Vs. Velayudhan and Others, .
Sree Balaji Krishna Hardware Stores Vs. Srinivasaiah, ."
On the other hand, Mr. M.D. Boob learned counsel for the respondent-landlord-Society vehemently opposed the submissions made by the learned counsels for the defendant-tenant and urged that the findings of fact arrived at by the learned court below by a detailed and well reasoned order based on the relevant evidence are not required to be disturbed by this Court, as there is no contra evidence available on record. Opposing and refuting the application under Order 41 Rule 27 CPC filed by the defendant-tenant, Mr. M.D. Boob submitted that the alternative accommodation of the hostel constructed on the land of graveyard allotted for the Mali Samaj and the construction has been raised to use the same for the purposes of community meetings at the time of death of a persons belonging to the said community and the ground is used for such meetings. He also submitted that for setting up of a hostel on the main Mandore Road, Jodhpur cannot be said to have been fulfilled by such alternative accommodation and with the increasing and present needs of boys and girls hostel of the community, they require the suit premises urgently. On the other hand, Mr. M.D. Boob also submitted that the defendants'' School known as ''Geetanjali School'' has already opened a Branch in the City elsewhere, and therefore, they should vacate the present premises. Learned counsel for the plaintiff-respondent also urged that it is the larger community and public interest, which should prevail over the individual interest of the defendant-tenant-Ms. Priti Parihar, who does not regularly attend the Geetanjali School. They also opposed the grant of a long period of five years for vacating the said suit premises. Mr. M.D. Boob also submitted that the well settled legal position is that the landlord is the best Judge for use of the suit premises and the tenant is not allowed to dictate terms to the landlord in this regard. They also urged that the requirements of setting up of the hostel at the suit premises is perfectly in consonance with the clause of the Trust Deed created by the grandfather of the defendant vide Exhibit-3 dated 08.11.1982 and there is neither any violation of the terms of the said Trust Deed nor the defendant-tenant can claim any benefit of continuation of tenancy on this ground. Mr. M.D. Boob, therefore, submitted that the present appeal deserves to be dismissed. He also relied upon a number of judgments on the bona fide need of the landlord and the landlord being the best Judge to determine the same, which are as follows:--
"1. Baldev Krishan Vs. Satya Narain, .
Radhey Shyam and Others Vs. The Rent Tribunal and Others .
Anil Bajaj and Another Vs. Vinod Ahuja, .
Sandhya Vs. State of Maharashtra, .
Ghisi Bai & Anr. v. Appellate Rent Tribunal, Kota & Ors., , 2014 (3) DNJ (Raj.) 908 ."
I have heard the learned counsels for the parties at length, perused the record and the judgment of the court below and the judgment cited at the Bar.
As far as legal position about the landlord being the best Judge about his requirements and tenant not being allowed to dictate terms in this regard is well settled. A coordinate Bench of this Court in the case of Radhey Shyam & Anr. (supra) as follows:--
"23. While Hon''ble Supreme Court in the case of Jai Prakash Gupta (D) thr. LRs. Vs. Riyaz Ahamad and Another, held that the subsequent events can be taken into consideration for the purpose of examining the bona fide requirement of the landlord and comparative hardship, this Court in the case of Shanti and others Vs. Brijmohan and others, after noticing several judgments of the Apex Court on the issue held that bona fide need of the premises is required to be seen from the date of institution of the suit and subsequent events which occurred only on account of passage of time during the pendency of the eviction proceedings cannot render the requirement as non-existent.
Besides the above, the principle laid down by Hon''ble Supreme Court is well settled that a tenant cannot dictate the landlord that instead of getting the shop in question vacated, he should utilize other premises available to him; it is also significant to note that in the Act the issue pertaining to comparative hardship is no longer available to the tenants for denying the requirement of the landlord."
In Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, , the Hon''ble Supreme Court held that where the eviction is sought for bonafide requirement of landlord, the relevant date on which the said need has to be adjudged is the date of filing the suit and subsequent events taking place during the period of litigation like engaging in other activity or business for which premises in question is required do not upset such bonafide need unless such subsequent events are of such a nature & dimension as to completely eclipse such need and make it lose significance altogether and the process of litigation cannot be made the basis for denying the landlord relief when litigation at last reaches the final stage.
In Prativa Devi Vs. T.V. Krishnan, , the three Judges Bench of the Hon''ble Supreme Court while holding that the landlord is the best judge of his residential requirement observed as under:--
"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to indicate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court was rather solicitous about the age of the appellant and thought that because of her age she needed to be looked after. That was a lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for. There is nothing to show that she had any kind of right whatever to stay in the house of the family friend. On the other hand, she was there merely by sufferance. There is no law which deprives the landlord of the beneficial enjoyment of his property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bonafides of the claim of the landlord under Section 14(1)(e) of the Act. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bonafide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances."
Moreover, as held by Hon''ble Supreme Court itself in a recent decision of two Judges bench in Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Another, , which has been later on reaffirmed by three Judges bench decision of Hon''ble Apex Court in The State of Maharashtra and Another Vs. Super Max International Pvt. Ltd. and Others, in which the Hon''ble Apex Court has clearly noticed that even the trend of Apex Court has shifted from pro-tenant from 1950s to 1990s to pro-landlord from 1990s onwards. The relevant extracts from the judgments in case of Satyawati Sharma (supra) & Super Max International Pvt. Ltd. are quoted below for ready reference:
"12. There has been a definite shift in the court''s approach while interpreting the rent control legislations. An analysis of the judgments of 1950s to early 1990s would indicate that in majority of cases the courts heavily leaned in favour of an interpretation which would benefit the tenant. In these cases the Court consistently held that the paramount object of every rent control legislation is to provide safeguard for tenants against exploitation by landlords who seek to take undue advantage of the pressing need for accommodation of a large number of people looking for a house on rent for residence or business in the background of acute scarcity thereof. However, a different trend is clearly discernible in the later judgments."
The relevant para 71 of the judgment of Apex Court in S upper Max International (P) Ltd. (supra) is quoted below for ready reference:
"71. We reaffirm the views expressed in Satyawati Sharma and emphasize the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Court''s protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq. ft. in a building, situate at Fort, Mumbai on a rental of Rs. 5236.58/-,plus water charges at the rate of Rs. 515.35/- per month more than amply highlights the point)"
This Court in the case of LR''s of Prakash v. Poornima (SBCSA No. 132/2009, decided on 11.05.2011) also emphasized that landlord was the best judge of his needs in the following terms: -
"5. Learned counsel for the respondent-plaintiffs, Mr. S.N. Pungalia 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 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."
In the case of Denzil Najrath v. LR''s of Balwant Singh & Ors. reported in 2011 (3) DNJ (Raj.) 1217 this Court has held under:
"Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bonafide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff''s family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross-examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bonafide need of the landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit."
On the other hand, the main thrust of the case of the defendant-tenant is based on the subsequent events namely, the construction of an alternative hostel by the plaintiff-respondent Mali Samaj-Society, Jodhpur at Rambagh on the land of graveyard. The reliance placed by the learned counsel for the defendant-tenant on Kedar Nath Agarwal (supra) is of little help to the defendant, as the need of the respondent-Society to establish hostel on the disputed premises/land cannot be said to have been fulfilled. Even if it is assumed on the basis of the averments made in the application under Order 41 Rule 27 CPC that such an accommodation has been constructed. It was rightly contended by the learned counsel for the plaintiff-respondent, Mr. M.D. Boob that such need keeps on ever increasing and the need to establish a boys and girls hostel at this site on the main Mandore Road, Jodhpur cannot be said to have been fulfilled, even if such second hostel, which was claimed to be actually a community meetings place has been constructed by them. Therefore the said subsequent events will not vanish the bona fide need of the landlord-Society. Actually, their need is more overriding in the interest of community rather than the institutional requirements of running School by the defendant-Ms. Priti Parihar, who also undisputedly has opened another School Branch in the City at different place. Without going into the rival contentions that the present School premises are also occasionally used for commercial purposes, such as, for sale of books, shoes, school bags etc., the need of setting up of the hostel at the vacant land and old construction of the suit premises, which are presently used for School purposes is much more overriding and compelling rather than allowing the School to run in the disputed premises. Therefore, even if such subsequent events are taken into account, that does not, in the considered opinion of this Court, fulfill completely the requirements of the respondent-landlord-Society, Mali Sansthan.
It also cannot be said here that the bona fide need of the respondent-Society of setting up of the hostel is not in consonance with the terms of the Trust Deed, namely, that the premises shall be used for educational purposes only. The hostel is an integral part of the educational requirements, and therefore, this Court finds no violation of the conditions of the Trust Deed, in view of the requirement of establishing a hostel for boys and girls by the landlord-Society. Therefore, this Court find no ground to take a different view of the matter than the one taken by the learned court below, as there is no contra evidence available before this Court to take a different view and the present appeal filed by the defendant-tenant deserves to be dismissed.
Accordingly, the present first appeal of the defendant/tenant is dismissed and upholding the judgment and eviction decree of the learned court below dated 23.09.2003, it is directed that the appellant-defendant/tenant shall handover the peaceful and vacant possession of the suit property in question to the respondent-plaintiff, Mali Sansthan, within a period of twenty months on or before 30.06.2017, to facilitate the winding up of the School activities and not to disturb the running session of the children studying in the said School. The mesne profit would stand increased from Rs. 5,000/- to Rs. 20,000/- per month (Rupees Twenty Thousand Only) commencing from November 2015, and the tenant will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent/plaintiff also and in case there is any default in payment of mesne profit, the period for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit, if any, and pay the same to the respondent/plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-plaintiff within a period of twenty months as aforesaid, on or before 30/06/2017 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.