KALPANA VYAS versus RAJ KUMAR RANGWANI on 29 October 2018

572

SUPREME COURT REPORTS

[2018] 13 S.C.R.

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KALPANA VYAS

v.

RAJ KUMAR RANGWANI

(Civil Appeal No.10811 of 2018)

BOCTOBER 29, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Constitution of India – Art.227 – Jurisdiction of High Court– Scope of – Eviction petition filed by the appellant-landlady againstthe respondent-tenant on ground of bona fide need – PetitionCdismissed by Rent Tribunal – Appellate Tribunal set aside the orderof the Rent Tribunal – High Court restored the order of the RentTribunal – Held: High Court while allowing the respondent’s writpetition held that the Appellate Tribunal allowed the appellant’sappeal with casual approach and failed to record any categoricalDfinding on the plea of bona fide need – Having held that, the HighCourt had two options, either to remand the case to the AppellateTribunal for deciding the appeal afresh on merits or to decide thematter itself on merits – High Court ought to have resorted to thefirst option and remanded the case back to the Appellate Tribunal,since it was hearing the matter in its writ jurisdiction u/Art.227 andEit was not possible to examine the issue on facts in detail like anAppellate Court – High Court committed error in not taking recourseto any option and without deciding the issue arising in the case onits merit, simply restored the order of the Rent Tribunal – There wasno factual finding recorded on the question of bona fide need –FCase remanded to the Appellate Tribunal to be decided afresh onmerits – Rent Control and Eviction.

Allowing the appeal, the Court

HELD: 1.1 The need to remand the case to the RentAppellant Tribunal occasioned because the High Court, whileGallowing the respondent’s writ petition, came to a conclusion andaccordingly held that the Rent Appellate Tribunal allowed theappellant’s appeal with a casual approach and failed to record anycategorical finding on the plea of bona fide need. Having heldthat, the High Court had two options: first either to remand the H

case to the Rent Appellate Tribunal for deciding the appeal afreshon merits in accordance with law and second, to decide the matteritself on merits in accordance with law. Since the High Court heardthe matter in its writ jurisdiction under Article 227 of theConstitution, it was not possible to examine the issue on facts indetail like an Appellate Court. It is for this reason, the HighCourt ought to have resorted to first option and remanded thecase back to the Rent Appellate Tribunal for deciding the appealafresh on merits in accordance with law. [Paras 15, 16] [576-A-B]

1.2 The High Court committed error in not taking recourseto any option and without deciding the issue arising in the caseon its merit, simply restored the order of the Rent Tribunal. Thisapproach of the High Court caused prejudice to the appellantbecause there was no factual finding recorded either by the firstappellate Court or the High Court on the question of bona fideneed. [Paras 17, 18] [576-C-D]

1.3 It is for this reason that the finding of the High Court isupheld in relation to the approach and the manner in which theRent Appellate Tribunal decided the appellant’s appeal but itwould be just and proper to remand the case to the Rent AppellateTribunal for its decision on merits afresh in accordance with law.Impugned order is modified to the extent that the case isremanded to the Rent Appellate Tribunal for deciding the appealafresh on merits in accordance with law. [Paras 19, 20] [576-E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10811of 2018.

From the Judgment and Order dated 02.01.2018 of the HighCourt of Judicature for Rajasthan Bench at Jaipur in S.B. Civil WritPetition No. 5403 of 2015.

Dr. Manish Singhvi, Satyendra Kumar, Irshad Ahmad, Advs. forthe Appellant.

Purvish Jitendra Malkan, Utkarsh Tiwari, Ms. Khushboo VinodrayMalkan, Bhaskar Singh, Ms. Dharita P.Malkan, Advs. forthe Respondent.

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AThe Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 02.01.2018 passed by the High Court of Rajasthan Bench at Jaipurin S.B. Civil Writ Petition No. 5403/2015 whereby the High Court hasBallowed the writ petition filed by the respondent herein.

3. The issue involved in the appeal is short, as also the facts of thecase lie in a narrow compass, which would be clear from the narrationinfra.

C4. The appellant is the applicant, whereas the respondent is thenon-applicant in the eviction petition filed by the appellant against therespondent before the Rent Control Tribunal, Rajasthan out of whichthis appeal arises.

5. The appellant - a landlady of the suit premises filed the evictionDpetition against the respondent-tenant of the suit premises under Section9 of the Rajasthan Rent Control Act (for short called “The Act”) beforethe Rent Tribunal Kota (R-84/2005) praying therein for respondent’seviction from the tenanted suit premises.

6. The appellant claimed respondent’s eviction from the suitpremises on the ground of her personal bona fide need for raisingEconstruction in the existing suit premises to be used for her children andfor stay of appellant’s guest in the suit premises.

7. The respondent denied the appellant’s need and, inter alia,contended that the appellant is in possession of an alternativeaccommodation in the city and hence her alleged need set up in theFeviction petition can be accomplished by using the alternativeaccommodation available in the city.

8. By order dated 8.2.2011, the Rent Tribunal dismissed theappellant’s eviction petition holding that appellant’s need can beaccomplished with an alternative space available with her in the city.G

9. The appellant (landlady) felt aggrieved and filed an appeal(144/2014) before the Appellate Tribunal. The Appellate Tribunal by orderdated 12.2.2015 allowed the appeal, set aside the order of the RentTribunal, decreed the appellant’s eviction petition and passed the evictiondecree against the respondent, in relation to the suit premises.H

10. The respondent (tenant) felt aggrieved and filed writ petitionbefore the High Court of Rajasthan (Jaipur). By impugned order, thelearned Single Judge allowed the respondent’s writ petition and set asidethe order of the Appellate Tribunal and restored the order of the RentTribunal which gives rise to filing of the special leave to appeal in thisCourt by the landlady.

11. So the short question, which arises for consideration in thisappeal, is whether the High Court was justified in allowing therespondent’s (tenant’s) writ petition thereby justified in setting aside theappellate order of the Rent Appellate Tribunal and restoring that of theRent Tribunal.

12. Heard Dr. Manish Singhvi, learned counsel for the appellantand Mr. Purvish Jitendra Malkan, learned counsel for the respondent.

13. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal, modify theimpugned order and remand the case to the Rent Appellate Tribunal fordeciding the appeal (144/2014) afresh on merits.

14. In our opinion, the need to remand the case to the Rent AppellantTribunal has occasioned because the High Court, while allowing therespondent’s writ petition, came to a conclusion and accordingly heldthat the Rent Appellate Tribunal allowed the appellant’s (landlady’s) appealwith a casual approach and failed to record any categorical finding onthe plea of bona fide need. The operative part of the High Court orderreads as under:-

“Taking into consideration the fact aforesaid, I do notfind any reason for Rent Appellate Tribunal for setting asidethe order of the Rent Tribunal. The perusal of the impugnedorder shows a casual approach of the Rent AppellateTribunal in reversing the finding of the Rent Tribunal, thattoo, without going into the issue of personal bonafidenecessity. The Rent Appellate Tribunal was expected tofirst decide the issue as to whether respondent is havingpersonal bonafide necessity or not. Accordingly, impugnedorder passed by the Rent Appellate Tribunal is set aside.”

(emphasis supplied)

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A15. Having held that, the High Court had two options: first eitherto remand the case to the Rent Appellate Tribunal for deciding the appealafresh on merits in accordance with law and second, to decide the matteritself on merits in accordance with law.

16. Since the High Court heard the matter in its writ jurisdictionBunder Article 227 of the Constitution, it was not possible to examine theissue on facts in detail like an Appellate Court. It is for this reason, inour view, the High Court ought to have resorted to first option andremanded the case back to the Rent Appellate Tribunal for deciding theappeal afresh on merits in accordance with law.

C17. The High Court, therefore, committed an error in not takingrecourse to any option and without deciding the issue arising in the caseon its merit, simply restored the order of the Rent Tribunal.

18. This approach of the High Court caused prejudice to theappellant (landlady) because there was no factual finding recorded eitherDby the first appellate Court or the High Court on the question of bonafide need.

19. It is for this reason that we uphold the finding of the HighCourt in relation to the approach and the manner in which the RentAppellate Tribunal decided the appellant’s appeal but consider it just andEproper to remand the case to the Rent Appellate Tribunal for its decisionon merits afresh in accordance with law.

20. In view of foregoing discussion, the appeal succeeds and isallowed. Impugned order is modified to the extent that the case isremanded to the Rent Appellate Tribunal for deciding the appeal(No. 144/2014)(Old No. 41/11) afresh on merits in accordance withFlaw.

21. Since the matter pertains to bona fide need and eviction, theRent Appellate Tribunal will decide the appeal within six months as anouter limit strictly in accordance with law without being influenced byany observations made by this Court and the High Court.G

22. Pending application(s), if any, stand disposed of.

Divya Pandey

Appeal allowed.

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