RAJESH KUMAR Vs. SHASHI AGARWAL

JUDGEMENT

(1.) This petition has been filed against the order dated 17th May, 2012 whereby the Appellant Rent Tribunal, Alwar has upheld the order dated 13th October, 2008 passed by the Rent Tribunal, Alwar, which allowed the eviction petition under Section 9 of the Rajasthan Rent Control Act, 2001 ('the Act of 2001' for brevity) filed by the respondents-landlord Smt. Shashi Agarwal and Smt. Priti Agarwal and issued a certificate of possession under Section 15(7) of the Act of 2001 against the petitioners-tenants Rajesh Kumar and Surendra Kumar. Heard the learned counsel for the petitioners-tenants and respondents-landlords caveator as also perused the impugned orders.

(2.) The Rent Tribunal and the Appellate Rent Tribunal have come to a finding that the respondents-landlords had been able to prove their bona fide and reasonable need in respect of tenanted shop in issue for use of their husbands Inder Lal and Pawan Kumar Agarwal, as Inderlal was engaged in business from a tenanted shop and Pawan Kumar was unemployed. The courts below have also come to a finding of fact that the respondents-landlords were also able to make out a case of sub-Jetting under Section 9(e) of the Act of 2001 inasmuch as while the tenancy was entered into by the erstwhile landlord Vimal Chand in favour of Gyan Chand, the petitioners herein as partners of firm Ajay Kumar Manoj Kumar were in unauthorized possession. The Tribunals have also concurrently held that the landlords were also entitled to eviction of the petitioners herein under Section 9(f) of the Act of 2001 for reason of denial of the landlords' title.

(3.) Mr. N.K. Goyal counsel appearing for the petitioner has submitted that the ground based on Section 9(e) of the Act of 2001 could not have been agitated by the respondents-landlords Smt. Shashi Agarwal and Smt. Priti Agarwal in view of the fact that Vimal Chand the erstwhile owner of the premises had earlier filed a suit for eviction against Gyan Chand as also the petitioners Rajesh Kumar and Surendra Kumar inter alia on the ground of subletting but withdrawn it on 3rd July, 2003 as evident from the order passed by the Additional Civil Judge (Jr. Division) No. 1, Alwar. It is submitted that suit having been withdrawn without liberty to file afresh, in terms of the Order 23 Rule 1(4) of Code of Civil Procedure, 1908, a fresh suit by the successor of the original landlord i.e. the respondent landlords Smt. Shashi Agarwal and Priti Agarwal on the very same ground of sub-letting could not have been laid. Counsel for the petitioner has submitted that only recurring cause of action such as bona fide and reasonable necessity, default, etc. can supply a fresh cause of action to facilitate filing of a fresh suit even where the earlier one had failed. It is submitted that the Hon'ble Supreme Court in the case of N.R. Narayan Swamy vs. B. Francis Jagan, 2001 AIR(SC) 2469 has held so. The argument is that the ground of sub-letting could not have been allowed to be agitated in the present case by the Tribunal at the instance of the respondents-landlords in view of earlier withdrawal of the suit by the erstwhile landlord. It is submitted that eviction and issue of a certificate of possession on ground of sub-letting cannot stick and is thus, liable to be set aside. Counsel for the petitioner has further submitted that even the finding of the Rent Tribunal as also the Appellate Rent Tribunal on the ground of bona fide and reasonable need of the respondents-landlords for the user of the shop in issue for their respective husbands was a perverse finding inasmuch as it was not established from the evidence on record that the need was indeed bona fide and reasonable as the husband of the respondent-landlord Smt. Shashi Agarwal was at the relevant time admittedly doing business out of a rented shop and Pawan Kumar the husband of Priti Agarwal had income generated from the business of Inder Lal. It is further submitted that no finding on the ground of denial of title by the petitioners herein as non-applicants before the Rent Tribunal could have been arrived at because no such issue was framed.