Satish Kumar v. Dhani Ram

S.B. Civil Writ Petition No.4598/2015 (Satish Kumar v. Dhani Ram) Date of Order: 07/10/2015 PRESENT HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Mr. Sudesh Bansal, for the petitioner.

Mr. P.S. Sharma, for the respondent.

Whether need of landlord is to be taken in isolation or family is to be taken as a unit is a strange question posed in the present petition by the petitioner-tenant whose eviction has been ordered by the Rent Tribunal, Jaipur Metropolitan, Jaipur vide judgment dated 4.3.2010.The tenant has been evicted on the ground of personal necessity.

This finding has also been affirmed by the Appellate Rent Tribunal vide impugned judgment dated 3.3.2015.

However, while acknowledging the personal necessity of the landlord, the Appellate Rent Tribunal has modified the reasons spelt out by the Rent Tribunal.

The Rent Tribunal gave a finding that the shop in question is required by the landlord for setting up business for himself and unemployed son. The Appellate Rent Tribunal while affirming the finding that the shop in question was required by the landlord for personal necessity, dissected the claim of landlord and held that the shop in question is required only for personal necessity of the landlord and not for his son. Hence, the present writ petition has been filed by the tenant.

Before this court examine the question posed, it will be necessary to notice brief facts.

Dhani Ram Sharma landlord retired as a Principal. He filed an eviction petition that he alongwith his son Pradeep Kumar in Shop No.145 situated at Gol Market, Jawahar Nagar, Jaipur intend to start a general store and a chemist shop. It was further pleaded that his son Pradeep Kumar is well versed in medical line. It was averred that Pradeep Kumar is married having children and is unemployed.

Parties to the lis led their evidence. The Rent Tribunal considered the evidence of Dhani Ram landlord (P.W.1), his son Pradeep Kumar Sharma (P.W.2) and further relied upon evidence of D.W.1 Satish Kumar that for running a general store, no specific experience is required. The lower Appellate Rent Tribunal held that since son of the petitioner had obtained no education in medical line and is not having a degree of B.Pharma or D.Pharma, therefore he is not eligible to pursue medical line and run a chemist store. On the strength of above reasoning, the Appellate Rent Tribunal held that personal necessity of son is not made out, however, shop is required by the landlord for his personal necessity.

Above finding has led Shri Sudesh Bansal, learned counsel for the petitioner, to vehemently attack the need of personal necessity projected by the landlord by making following submissions: It is contended that in 1993 landlord filed a suit under the old Act and in the said suit personal necessity of the son was impleaded. However, the suit was not followed up. However, due to non follow up, the suit was dismissed for default on 18.2.1998.

Six years later in 2004, the present eviction petition was filed and in the eviction petition, no change of circumstances was pleaded. Therefore, the court was deprived of the necessary averments to assess and evaluate bonafide necessity of the landlord. Learned counsel for the petitioner has further submitted that the landlord retired in 1986 and now is aged 88 years. Therefore, his personal necessity is not made out. Shri Bansal has submitted that in case personal necessity of the son is overruled, as it has been rightly done by the lower Appellate Rent Tribunal, the lower appellate court committed a grave error to grant personal necessity of the landlord who is aged 88 years. To fortify this submission, Shri Bansal has relied upon Ansuyaben Kantilal Bhatt v. Rashiklal Manilal Shah & Anr. [(1997) 5 SCC 457].

With the assistance rendered by Shri Sudesh Bansal learned counsel appearing for the petitioner and Shri P.S. Sharma learned counsel appearing for the respondent, I have perused the judgments and the law cited by the learned counsel for the petitioner.

The lower appellate court while determining the personal necessity became oblivious of the fact that it was specifically pleaded in the eviction petition that the shop in question was required for running general store and sale of medicines. The Rent Tribunal rightly relied upon the cross-examination of Satish Kumar (D.W.1) who admitted that for running a general store no specific experience is required. In the present day, the stores carry multiple activities. A general store also sell 'OCT DRUGS' over the counter medicines which are required, due to self prescription by the consumers who visit the general store. Specialized stores after advent of malls are not in vogue. The lower appellate court ignored that it was specifically pleaded in the evidence led by the landlord that the shop in question was required for running a general store and sale of medicines too. Emphasis was on general store whereas sale of medicine was an ancillary business. It is a travesty of justice that since 1993 an old man for settling his unemployed son is in the corridors of the court. The present eviction petition was filed in 2004. If delay in conclusion of the litigation has led to the aging of the landlord it cannot be construed to his detriment. Tenant has led no evidence to counter the fact that son of the landlord is employed. Once it remain unchallenged that the son is unemployed, a father before his journey to grave is entitled to hope and wish that in his lifetime his son is settled.

Shri Sudesh Bansal further submits that from perusal of the letters received by the tenant from landlord, it is proved that landlord wanted to sell the shop in question to the tenant. It is again a failure of the system that a landlord is frustrated and left with no hope except to sell his asset: a shop at a throwaway price to the tenant.

For the reasons stated above, I find no merit in the present petition and the same is dismissed by holding that in Indian mileau and socio-economic conditions son is integral part of the family, and need of landlord is indeed need of the family too.

Stay application also stands dismissed.

(KANWALJIT SINGH AHLUWALIA),J.

Govind/- All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

Govind Sharma, Sr.PA