MALTI DEVI DIXIT Vs. SATYA NARAIN JHAWAR

JUDGEMENT

(1.) SMT. Malti Devi Dixit (deceased) had two sons namely Ashok Dixit and Alok Dixit. The elder son Ashok Dixit admittedly is carrying on the business of hardware in a shop measuring 5x18 ft plus 4 ft chabutra. The other son Alok Dixit, for the time being after completing his studies, started helping in the business of his elder brother Ashok Dixit. SMT. Malti Devi Dixit, being owner of the shop measuring 10x18 ft. plus 4 ft chabutra situate at 110/180, Ram Krishna Nagar, Kanpur, applied for release of the said shop which is in the tenancy of respondent no. 1 to establish her younger son Alok Dixit on the pleas inter alia that Alok Dixit has obtained experience of hardware business. To settle him in life, the shop in dispute is required bonafide. The said release application was contested by the respondent no. 1 on the ground that the need of Alok Dixit is not bonafide as he is doing business along with his elder brother Ashok Dixit. It was also stated that the said shop was let out to him on 11-1-1983. Had there been any need to settle Alok Dixit, the said shop should not have been let out in the year 1983. Filing of release application within a period of five years from the date of letting itself, according to the tenant, is sufficient to reject the plea of bonafide need. It was further pleaded that a sum of Rs. 30,000/- was given to the landlord (the husband of the petitioner, who has died on 10-6-1986, had let out the shop to the respondent no. 1) towards the expenditure to meet the renovation work and there being no agreement for its return, the landlady has become dishonest. The parties led evidence in support of their respective cases. The release application was dismissed by the Prescribed Authority on the ground that the need of the landlady is not bonafide and genuine. Alok Dixit is assisting his elder brother who is running a hardware shop. The said judgment having been confirmed by the impugned judgment dated 6-2-1996, passed in rent appeal no. 158 of 1990, the present writ petition has been filed. Heard the learned counsel for the parties and perused the record. The contention of the learned counsel for the petitioner is that the courts below have not properly understood the voluminous evidence on record which show that the need of the landlady is bonafide and genuine. Indisputably, she has got two sons and the elder son Ashok Dixit is carrying on the business of hardware in a small shop measuring 5x18 ft wherein Alok Dixit, the another son is helping in the business. Alok Dixit has, in the meantime, got married and he has got issues from the said wedlock. To establish a son in an independent business cannot, by any stretch of imagination, be called need other than 'bonafide need'. On the question of comparative hardship it was submitted that the tenant's son has already got a big shop in Jai Shree Market, being property no. 111A/418, Ashok Nagar, Kanpur wherein he is carrying on the business of plywood at a large scale under the name and style of 'Ajanta Agencies'. Apart from the above, the tenant has not taken any steps to secure an alternative suitable accommodation, the question of comparative hardship is definitely against him. The learned counsel for the contesting respondent , on the other hand, submits that the landlady has no financial capacity to establish her second son in an independent business. She has not disclosed material facts in the release application and as such, the said application is liable to be rejected. The fact that she has not disclosed the rental income received from the godown which was let out in the year 1979 to M/S Jiwan Ram and Sons is sufficient to reject the plea of augmentation of the family's income. Considered the respective submissions of the learned counsel for the parties and perused the record. The first question regarding bonafide need, as set out by the landlady, falls for consideration. Indisputably, the shop in question was let out by the petitioner's husband on 11-1-1983. He died on 10- 6-1986 leaving behind the widow (petitioner) and two sons. The elder son (whose need is not in issue) is carrying on the business in a shop measuring 5x18 ft. To establish second son Alok Dixit, the release application giving rise to the present writ petition, was filed. It has been stated in the release application that the shop in possession of Ashok Dixit is so small that it is not possible to expand the business from there. Further in paragraph-6 it has been stated that the average income from the said shop is about Rs. One thousand per month which along with the rent received from the tenant is not at all sufficient to make the both ends meet. The younger son Alok Dixit was already married by that time and has a school going child. It is not the case of the tenant that either the landlady has got any other shop or accommodation or Alok Dixit, whose need has been set up, is doing any business anywhere. The case of the tenant is that younger son Alok Dixit is doing the business with Ashok Dixit, for the time being. It necessarily follows that Alok Dixit has got no independent business. The case of the landlady is that his second son is assisting and helping his elder brother to gain experience of hardware business. There seems to be nothing wrong in the said plea of the landlady. In this factual background, the contention that the need of the landlady is not bonafide is difficult to upheld. Reading of the release application as a whole would show that the landlady sought the release of the shop in question to settle her younger son Alok Dixit in the hardware business and to augment the income of the family as a whole as well. The courts below have rejected the release application on the ground that the husband of the landlady should have foreseen the future need in the year 1983 when the shop in dispute was let out, that the tenant had given a sum of Rs. 30,000/- to the landlady for renovation of the shop, that her sons are carrying on the business on a small scale and as such, their need in the disputed shop is not genuine and that the rental income of Rs. 575/- received from the godown let out in the year 1979 to M/S Jiwan Ram and Sons was not disclosed in the release application. It has been found by the Prescribed Authority that two sons of the landlady are carrying on their business in a shop measuring 5x18 ft with 4 ft chabutra infront of the shop. They have constructed a Duchhatti in the said shop and as such they can make alterations in the said shop as per their requirement. It is now well settled that a tenant has no right to dictate the terms to the landlord or direct him to make alterations in the accommodation already in his possession for his need. In Sarla Ahuja Vs. United India Insurance Co. Ltd. (1996) 5 SCC 353 it has been held that the rent Controller should not proceed on the assumption that the landlord's requirement is not bona fide. When the landlord shows a prima facie case a presumption that the requirement of the landlord is bonafide is liable to be drawn. It is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without giving possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. Ragavendra Kumar Vs. Firm Prem Machinery and Company (2000) 1 SCC 679 is an authority for the proposition that the landlord is the best judge of his own requirement for residential or commercial purpose and has complete freedom in the matter. In this authority the Apex Court has relied upon its earlier judgment in Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353. In Joginder Pal Vs. Naval Kishore Behal, (2002) 5 SCC 397, the Apex Court with a reference to the provisions of East Punjab Urban Rent Restriction Act, on the question of bonafide need, after surveying its earlier pronouncements, has held that the requirement of a major son and a coparcener in a joint Hindu family intending to start a business is the requirement of the landlord himself as was held in B. Balaiah Vs. Chandoor Lachaiah, AIR 1965 AP 435. The words "for his own use" must receive a wide, liberal and useful meaning rather than a strict or narrow construction. It has been further held that while casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life. The fact remains in the present case that the landlady has two major sons and only one son is engaged in a shop and the other son has to be engaged in an independent business. The need for a shop to settle an adult son and his family by no terms can be held to be 'malafide'. So far as the question that the shop was let out in the recent past in the year 1983 is concerned, it is not very relevant. It may be noticed that shortly thereafter in the year 1986 the husband of the landlady expired. The other son was assisting his elder brother. If subsequently the landlady and the son decided to settle Alok Dixit in an independent business, the tenant has no say in the matter. Past conduct of a landlord is not relevant. Bonafide need cannot be questioned on the ground that some time in the past the landlord wished to settle the tenanted property as held by the Apex Court in Shashi Kapila Vs. R.P. Ashwin, (2002) 1 SCC 583. In this case the landlord had earlier entered into an agreement to sell in favour of the tenant but subsequently he filed release application and a question arose about the conduct of the landlord who entered into agreement of sale of the tenanted premises. In this factual background it was held that earlier conduct of the landlord is not at all germane. The position which existed in the year 1983 has changed in the meantime. The husband of the present petitioner expired and it was decided to settle the second son in an independent business who gained knowledge of hardware business in the meantime. So far as the question of non-disclosure of the rental income worth Rs. 575/- from M/S Jiwan Ram and Sons through Raj Kumar Seth is concerned, the case of the tenant himself was that the landlady is not a person of means. Neither she nor her sons are paying any income tax and the business run by her sons is on a small scale. This aspect of the case finds place in the order of the Prescribed Authority. This being the position, the need to augment the income of the landlady and her family members is evidently bonafide and genuine. Taking into consideration the fact that the tenant is a rich person and is paying income tax and he or his son has taken a big shop on rent at Jai Shree Market, being shop no. 111A/418, Ashok Nagar, Kanpur wherein he is carrying on plywood business under the name and style of M/S Ajanta Agencies, there is no malafide on the part of the landlady to get the shop in question vacated. Almost on parallel facts, the Apex Court in the case of Mst. Bega Begum and others Vs. Abdul Ahad Khan and others, (1979) 1 SCC 275 has held that such a need is a bonafide need of the landlord. It has been held that the words 'reasonable requirement' undoubtedly postulates that there must be an element of need as opposed to mere desire or wish. The distinction between 'desire' and 'need' should be kept in mind but not so as to make the genuine need as a mere desire. The matter has been considered from time to time by this Court and the Apex Court as well. Reference can be made to Gaya Prasad Vs. Pradeep Srivastava 2001 (2) SCC 604, Ram Das Vs Ishwar Chandra, 1988 (3) SCC 131, Gulab Bai Vs. Nalin Narsi Vohra 1991 (3) SCC 483, Shiv Sarup Gupta Vs. Dr. Mahesh Chandra Gupta 1999 (6) SCC 222 and Atma S. Berar Vs. Mukhtiar Singh 2003(2) SCC 3. Reverting to the facts of the case, as has been pointed out above, the tenant himself pleaded that the business of Ashok Dixit is on a small scale and the financial status of the landlady is not good. Also a Duchhatti has been constructed in the shop in possession of Ashok Dixit. All these facts itself are sufficient to reach to the conclusion that the need of the landlady to establish her son Alok Dixit in an independent business to augment the income of the family is bonafide and genuine. It is not a case of mere desire. Non-disclosure of the rental income of Rs. 575/- which she was getting from M/S Jiwan Ram and Sons is not of such a magnitude which may non suit her application. The said non-disclosure may be due to communication gap or for any other reason. The enhancement of rent after three years as per the agreement entered into between the parties will not bar filing of the release application as was rightly held by the Prescribed Authority. The said circumstance is not relevant as the tenant volunteered to enhance the rent periodically. A clause for enhancement of rent periodically is incorporated with a view to set off the inflation and cost price but this will not adversely affect the plea of 'bonafide need' under the changed circumstances. The courts below, while considering the question of bonafide need, misdirected themselves and, therefore, they have reached to a wrong conclusion. The findings recorded by the courts below are thus vitiated and cannot be sustained. Learned counsel for the respondent has placed reliance upon a judgment of this Court in Rajiv Kumar Gupta Vs. Budhimati Devi and others, 1982(2) ARC 542. The said judgment has no application to the facts of the present case. The observations made therein should be understood in the context of the facts as they existed therein, also in the light of various subsequent decisions of this Court and of Apex Court. The next question which falls for consideration in the present case is with regard to comparative hardship likely to be suffered by the parties either by grant or refusal of the release application. As discussed above, there is no shop available to settle Alok Dixit, the second son of the landlady except the disputed one. On the other hand, the case of the landlady is that the tenant has taken a big shop at Jai Shree Market, being shop no. 111A/418, Ashok Nagar Kanpur wherein he is carrying on the business of plywood under the name and style of M/S Ajanta Agencies. The said fact was denied by the tenant. In support of the plea, the landlady relied upon calendar of M/S Ajanta Agencies wherein phone numbers of the tenant finds place. It has been found by the Prescribed Authority, on the basis of Telephone Directory, that the said shop belongs to the tenant, is not proved. Evidence was led by the tenant that the said telephone numbers still exist with reference to the property in question. The landlady has further relied upon two cash memos no. 6119 and 6143 dated 1-5-1990 and 8-5-1990 respectively signed by Manish Jhawar son of the tenant. It has been further stated that in the list of members of '80 feet Road Vyapar Mandal', Sri S.N. Jhawar the tenant has been shown as partner/proprietor of the firm M/S Ajanta Agencies therein with telephone no.248903 (shop) and 243013 (residence). There is absolutely no explanation from the side of the tenant regarding this document. It is not the case of the tenant that he has no concern whatsoever with the said business. Only a vague plea of denial has been put forward by him. The tenant could have filed better evidence in the form of documents relating to partnership/proprietorship of M/S Ajanta Agencies, relating to Income Tax, Sales Tax documents etc. to show that he is not at all related to the said business in any manner. The courts below have lost the sight of the fact that the tenant has withheld the best evidence and, therefore, it was a case of drawing adverse inference. Even otherwise also looking to the fact, as found even by the two courts below, that the younger son who is married son of the landlady has no shop, except the disputed shop and keeping in view the principles of law as noticed hereinabove, it is axiomatic that the petitioner will suffer greater hardship in case the release application is rejected. The finding recorded by the courts below on the question of bonafide need being perverse and against the law is hereby reversed. The need of the landlady for the shop in dispute is held to be bonafide and the fact is that the tenant is carrying on the business on a large scale from another shop while the landlady has no sufficient means, the landlady would suffer greater hardship in case her release application is rejected than the respondent tenant who is a man of means and can get another shop, if he so desires, on rent. Besides the above, since no attempt has been made by the tenant to get alternative shop during these years, the findings of hardship will necessarily go against him. Since the matter is old one and the release application was filed in the year 1986, more than two decades have already passed away, it is not desirable to restore the matter back to the appellate court to consider the matter of comparative hardship. When the matter was heard for final arguments earlier, the Court desired to know as to whether the need, as set up in the release application as far back as in the year 1986, still exists or not. A supplementary affidavit of Ashok Dixit aged about 57 years has been filed stating in clear terms that the circumstances for release of the shop exist even today. Alok Dixit, the younger brother is not gainfully employed independently and is still assisting the deponent of the affidavit in hardware business being carried out from the shop adjacent to the shop in dispute. Alok Dixit is married and has got two children and his need for the shop in dispute for starting his independent hardware business is immediate, imminent, hard pressing, bonafide and genuine. He has got a separate ration card and PAN card issued by the Income tax department. His family survives on meagre income received from the deponent in hardware business, vide paragraphs 4 and 5 of the said affidavit. A reply by way of supplementary counter affidavit has been filed by the respondent no.1. The reply, so far as with regard to gainful employment of Alok Dixit is concerned, is as vague as it could be. Only this much has been stated that "Alok Dixit is gainfully employed and is having independent earnings". But there is total silence as to where and in what manner Alok Dixit is employed or the source of having independent earnings. It has been admitted that two children of Alok Dixit are taking education in a reputed convent school. It has been further stated that a separate ration card and PAN card establish that he is independent and is having independent income. Taking into consideration the said supplementary affidavit and the supplementary counter affidavit, it is established that the need of Alok Dixit still exists. It is not denied any where by the respondent tenant in the supplementary counter affidavit that Alok Dixit is not assisting his elder brother. It is not the case of the tenant respondent that Alok Dixit is carrying on the business some where else. The dimensions of shop with Ashok Dixit does not appear to have been disputed at any stage, except in the present writ proceeding and that too by way of supplementary counter affidavit. A new controversy has been sought to be raised for the first time about the dimensions of the shop in possession of Ashok Dixit. It has been stated that the shop in possession of Ashok Dixit is 10x18 ft. plus 4 ft. chabutra. Learned counsel for the petitioner submits that in paragraph-4 of the release application it has been stated that the said shop has opening of 5 ft. only and depth of 18 ft with 4 ft. chabutra. The said averment was not disputed by the respondent in the written statement (Annexure-2 to the writ petition). The allegation now made in paragraph-4 of the supplementary affidavit that the sons of the petitioner are carrying on hardware business in the premises measuring 10x18 ft. is obviously wrong and has been deliberately made to give a wrong impression to the Court. The aforesaid statement has been made for the first time herein. The respondent no. 1 thus has tried to mislead the Court. Taking into consideration the facts and circumstances of the case, no useful purpose is going to be served by remanding the matter to the court below. Unnecessarily, agony of the parties would be prolonged. More than two decades have already passed and it is desirable that the controversy be set at rest. Time upto 31-8-2009 is granted to the respondent no. 1 to vacate the disputed accommodation, provided he files an undertaking on affidavit within a period of one month before the Prescribed Authority to the effect that he will vacate the disputed accommodation on or before 31-8-2009 and will hand over peaceful possession without inducting any person therein, to the heirs of the petitioner. The tenant will pay or deposit the entire arrears of rent and damages after adjusting the amount, if any, already paid upto 31-8-2009 within a period of one month. In case of default of either of the conditions, stipulated above, it shall be open to the landlord to apply for execution of the release order. In the result, the writ petition succeeds and is allowed. The impugned orders are hereby set aside. The release application filed by the petitioner stands allowed. No order as to costs.