Dr. Vineet Kothari, J.(Oral)

1. The present second appeal has been filed by the appellant-plaintiff-landlord-LRs of Narsingh Mal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 31.01.1995 passed by the learned District Judge, Balotra in Civil Appeal Decree No.7/1992 "Suman Kumar v. Narsingh Mal" by which, the learned First Appellate Court has allowed the appeal of the defendant-tenant and reversed the judgment and decree dated 21.02.1992 passed by the learned Munsif & Judicial Magistrate, Balotra in Civil Original Suit No.31/1985 "Narsingh Mal v. Suman Kumar" by which, the learned Trial Court had decreed the suit of the plaintiff for possession of the suit premises and for arrears of rent.

2. The appellants-plaintiff-legal representatives of the Narsingh Mal have filed the present second appeal under Section 100 of the Code of Civil Procedure aggrieved by the reversal of the eviction decree by the First Appellate Court of the learned District Judge, Balotra vide order dated 31.01.1995.

3. The suit (No. 31/1985 "Narsingh Mal v. Suman Kumar) was decreed by the learned Trial Court of Munsif & Judicial Magistrate, Balotra on 21.02.1992 on two grounds, namely, bona fide and reasonable necessity of the landlord and default in payment of rent, in favour of the plaintiff.

4. The relevant portion of the findings of the learned Trial Court in the impugned judgment and decree dated 21.02.1992 on Issue No. 3 about bona fide and personal necessity of the plaintiff is quoted herein below for ready reference:-

"LANGUAGE

5. The learned District Judge, Balotra in the appeal of the defendant-Suman Kumar, namely, Civil Appeal Decree No.7/1992 "Suman Kumar v. Narsingh Mal", however, reversed the aforesaid findings of the learned Trial Court on the issue of bona fide and personal need of the plaintiff in the following manner:-

"LANGUAGE

6. Being aggrieved by the same, the appellants-plaintiffs-landlord have filed the present second appeal in this Court on 03.05.1995 which was admitted on 07.08.1995 and the coordinate Bench of this Court had framed the following substantial questions of law which read as under:-

"(1) Whether at the time of deciding the reasonable and bona fide need of the landlord and his family members, learned lower appellate court can take into account the commercial construction raised by the daughter-in-law of the landlord 34 x 50

(2) Whether under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 while deciding the question about reasonable and bona fide necessity of the landlord and family members, the commercial construction can also be taken into account, if so its effect

(3) Whether if the finding recorded by learned lower appellate court about reasonable and bona fide necessity of the landlord and his family members is based on relevant and irrelevant material both then at this state it would difficult to ascertain how much the mind of learned lower appellate court was influenced with irrelevant consideration hence such finding of fact recorded by learned lower appellate court has no binding effect u/S. 100 CPC

(4) Whether the finding recorded by the learned lower appellate court about reasonable and bona fide necessity of the landlord and his family members is so perverse that no reasonable man can arrive at such finding as has been arrived at by learned lower appellate court on the material available on record "

7. The learned counsel, Mr. Rakesh Arora, appearing for the appellants-plaintiffs-landlord submitted that about the reasonable and bona fide necessity of the plaintiffs and his family members, the landlord is the best judge and the tenant cannot dictate the terms of the need of the landlord. In support of his contention, the learned counsel relied upon the following judgments:-

(1) Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252 [LQ/SC/2005/1009]

(2) Prativa Devi v. T.V.Krishnan, (1996) 5 SCC 353 [LQ/SC/1987/300]

(3) Satyawati Sharma v. Union of India, (2008) 5 SCC 287 [LQ/SC/2008/924]

(4) LRs of Prakash v. Poornima (SBCSA No.132/2009, decided on 11.05.2011)

(5) Denzil Najrath v. LRs of Balwant Singh & Ors. reported in 2011 (3) DNJ (Raj.) 1217.

8. On the other hand, the learned counsel, Mr. Rameshwar Hedau, appearing for the respondent-defendant-tenant-Suman Kumar relied upon the decision of the Honble Supreme Court in the case of Deena Nath v. Pooran Lal reported in (2001) 5 SCC 705 [LQ/SC/2001/1366] and urged that the landlord had constructed an alternative accommodation in the same town or city which could satisfy his need and instead of this, he let out the same premises in favour of other persons and, therefore, the need alleged by the plaintiffs cannot be said to be bona fide and reasonable and for this reason, the learned appellate court was justified in reversing the findings of the learned Trial Court on the issue of bona fide and reasonable necessity. The learned counsel also submitted that the defendant-respondent-tenant has also filed cross-objections in the present second appeal of the plaintiffs-appellants in this Court seeking to raise the issue of default in payment of rent, as there was no default in payment of rent on transfer of the property in question by Shri Budh Lal in favour of the plaintiff-Narsingh Mal. The learned counsel also submitted that the rent for the premises in question could not be deposited by the defendant-tenant earlier in time, which was deposited in the Court and even now, the same is being deposited in the Court by the defendant-tenant. The learned counsel supported the impugned judgment and decree of the learned lower first appellate court and prayed for dismissal of the present second appeal of the plaintiffs.

9. Having heard the learned counsels for the parties and upon perusal of the record of the case, including the judgments and decrees of the Courts below and the judgments cited by the learned counsels for the parties at bar, this Court is of the view that it is well settled proposition of law that the landlord is the best judge of his need and the tenant cannot dictate the terms of his need.

10. In Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal & Ors. - (2005) 8 SCC 252 [LQ/SC/2005/1009] , the Honble Supreme Court held that where the eviction is sought for bona fide 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 bona fide 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.

11. In Prativa Devi v. T.V.Krishnan, (1996) 5 SCC 353 [LQ/SC/1987/300] , the three Judges Bench of the Honble 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 dicate 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 sh ow 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 bona fide 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."

12. More over, as held by Honble Supreme Court itself in a recent decision of two Judges bench in Satyawati Sharma v. Union of India - (2008) 5 SCC 287 [LQ/SC/2008/924] , which has been later on reaffirmed by three Judges bench decision of Honble Apex Court in State of Maharashtra & anr. v. Super Max International Private Ltd. & Ors., (2009) 9 SCC 772 [LQ/SC/2009/1748] in which the Honble 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 courts 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 Super Max International (P) Ltd. (supra) is quoted below for ready reference:

"71.We reaffirm the views expressed in Satyawati Sharma and emphasise 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 Courts 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 L 5236.58/-,plus water charges at the rate of L 515.35/- per month more than amply highlights the point)"

13. This Court in the case of LRs of Prakash v. Poornima (SBCSA No.132/2009, decided on 11.05.2011) also emphasised 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 bona fide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Honble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bona fide 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".

14. In the case of Denzil Najrath v. LRs 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 bona fide 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 plaintiffs 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 bona fide 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."

15. On the other hand, the judgment relied upon by the learned counsel for the respondent-defendant-tenant-Suman Kumar in the case of Deena Nath (supra) to the effect that the need of the plaintiff must exists in presenti and the landlord must not be in possession of any other premises and the submission that the landlord has constructed an alternative accommodation and, therefore, he cannot claim bona fide need of the suit premises for himself and for his family members, as the other premises could satisfy his need. It is noticed in the present case that the landlord, in fact, his daughter-in-law, had of course constructed an alternative accommodation, but the same is commercial property in nature and, therefore, the commercial property cannot be said to be useful for residential purposes.

16. Therefore, this Court is of the opinion that the learned lower appellate court has erred in reversing the decree of the learned Trial Court and, therefore, this Court is inclined to uphold the decree of eviction on the ground of personal and bona fide necessity of the plaintiff. This Court is further of the view that if the eviction decree can be upheld on any of the one ground specific in Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the other grounds need not be gone into. As regards, the other ground alleged by the plaintiff regarding default in payment of rent, it is noticed that the learned first appellate court has given the benefit of first default to the defendant-tenant. No substantial question of law has also been framed in this regard.

17. In view of the aforesaid discussion, this Court is of the opinion that the present second appeal of the plaintiffs deserves to be allowed and the substantial question, as quoted herein above, are liable to be answered in favour of the appellants-landlord and against the respondent-tenant and the eviction decree is also liable to be upheld on the ground of personal and bona fide necessity of the plaintiffs-appellants.

18. Accordingly and in view of the above, the present second appeal filed on behalf of the appellants-plaintiffs-LRs of Narsingh Mal stands allowed and the substantial question of law are answered in favour of the appellants-plaintiffs and against the respondent-defendant. The impugned judgment and decree dated 31.01.1995 passed by the learned First Appellate Court is set aside and that of the learned Trial Court dated 21.02.1992 is restored. No costs. A copy of this order be sent to the learned Courts below and to the parties concerned forthwith.

19. In the circumstances of the case, it is directed that the respondent-defendant-tenant-Suman Kumar shall now hand over the peaceful and vacant possession of the suit property in question, i.e, a house, to the appellants-plaintiffs-landlord within a period of Seven Months, i.e., on or before 31.05.2016 and shall pay mesne profit/rent @ L 1,000/- per month ( L One Thousand only per month) commencing from the month of November, 2015 and will further continue to pay the same mesne profit each month by 15th day of the next succeeding month or in advance to the appellants/plaintiffs also and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-defendant-tenant-Suman Kumar shall also clear all the arrears of rent and mesne profit and pay the same to the respondent/plaintiff within three months from today after adjustment of the amount already deposited and paid to the landlord, otherwise the same will bear interest @ 6% per annum. The respondent-defendant-tenant-Suman Kumar 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 respondent-defendant-tenant-Suman Kumar shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within three months 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 appellants-plaintiffs within a period of Seven Months, i.e., on or before 31.05.2016 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.

Appeal dismissed.