Reserved On:- 27.08.2021 Delivered On:- 21.09.2021 Case :- MATTERS UNDER ARTICLE 227 No. - 4103 of 2021 Petitioner :- Ashok Kumar Agarwal Respondent :- Deshbandhu Gupta Counsel for Petitioner :- Udayan Nandan Counsel for Respondent :- Shreya Gupta
Hon'ble Siddharth, J.
1. Heard Shri Udayan Nadan, learned counsel for the petitioner and Ms. Shreya Gupta, learned counsel for the respondent.
2. The brief fact is that the petitioner is a tenant of a shop situated at Brij Market, Shivaji Marg (Alamgiriganj), Bareilly and is paying rent in respect of the said shop and there are no arrears of rent against the petitioner tenant. The landlord-respondent filed an application u/s 21(1)(a) of Act No. 13 of 1972 on the ground that he is absolutely unemployed and carries no business anywhere and therefore, the said shop is bonafidely required by him to set up his own business of artificial jewellery and Girvi Ghata. It was further stated in the release application that the daughter-in- law of the landlord-respondent, Smt. Rakhi Agarwal, will assist him in the running of the said business. Thus, the premise on which the release application was filed that the landlord-respondent is unemployed and therefore, the shop in possession of the tenant may be released in his favour.
3. The tenant-petitioner filed his written statement and submitted that in terms of the compromise dated 27.01.1994 and 28.01.1994 entered into between the landlord-respondent and tenant-petitioner in SCC Suit No.
323 of 1983, the tenancy in question is perpetual in nature and therefore, the release application is misconceived. It was further submitted by the tenant that the landlord-respondent is a senior citizen and has no bonafide need to carry out any new business.
4. It was categorically stated in paragraph 18 of the written statement that the landlord-respondent is carrying out business along with his son, Sri Ashish Agarwal and his daughter-in-law, Smt. Rakhi Agarwal, under the name and style of “Om Jewellers” in the same premises i.e., Brij Market and therefore the release application filed on the ground that the landlord-respondent is unemployed, is incorrect and in based on material concealment of fact. It was further submitted by the tenant-petitioner that various shops have been vacated by other tenants in the same premises and such shops can easily be used by the landlord-respondent for his alleged need.
5. The tenant-petitioner also filed additional written statement on 28.01.2019 and annexed various photographs of the shop namely "Om Jewellers" to show that the landlord-respondent is already running a business in two shops, in the same premises. The Prescribed Authority allowed the release application of the landlord by passing the judgment and order dated 11.12.2019.
6. Against the aforesaid judgment and order dated 11.12.2019 of Prescribed Authority the tenant-petitioner preferred Rent Control Appeal No. 01 of 2020 before District Judge which was heard by Additional District Judge, Court No.1, Bareilly. During the pendency of the appeal, the petitioner filed an amendment application to the effect that the shopping complex i.e., Brij Market, has two floors, which are full of shops and the landlord-respondent is in occupation of the third floor, which he uses for residential purposes. It was further prayed through the amendment, that paragraph 29-A may be permitted to be added in the written statement, which was to the effect that in P.A. Case No. 6 of 2000, the landlord had set up his own need along with his son to get another shop vacated in the same premises, however, the said release application was rejected by the Prescribed Authority, which was then affirmed by the Appellate Court and both these judgments and orders were confirmed by the Hon'ble High Court by dismissing the Writ Petition No. 71782 of 2009 filed by the landlord-respondent on 10.02.2014.
7. The aforesaid amendment application was rejected by the Appellate Court on 22.02.2021, however, permission was granted to the tenant to file relevant evidence in this regard. Subsequently, the tenant filed additional evidence under Order 41, Rule 27 of C.P.C consisting of the judgment of the Prescribed Authority in P.A. Case No. 6 of 2000, dated 06.08.2008, the judgment of the Appellate Authority in Rent Control Appeal No. 16 of 2008 dated 08.10.2009 and the judgment of this Court in Writ-A No. 71782 of 2009 dated 10.02.2008.
8. By the judgment and order dated 09.08.2021 the Appellate Court has dismissed the Rent Control Appeal No. 01 of 2020 of the tenant- petitioner, hence, this petition has been filed u/s 227 of Constitution of India.
9. Learned counsel for the tenant-petitioner has submitted that the age of the landlord-respondent at the time of filing of the release application was 78 years and as of today, his age is about 81 years. It is not believable that at this stage of his life, the landlord would be interested in setting up his own business, particularly when his son is already running a jewellery business in two shops in the same shopping complex. There was material concealment on the part of the landlord in filing the release application. The application was filed on the ground that the landlord-respondent was absolutely unemployed and was not carrying out any business. However, in P.A. Case No. 6 of 2000 filed by the landlord it was clearly held that the landlord is already running the business under the name and style of "Om Jewellers" along with his son. The said judgment was also approved in Rent Control Appeal No. 16 of 2008, wherein it was clearly held in paragraph nos. 11 & 13 that the landlord along with his son is carrying on Sarafa business in the name of "Om Jewellers". This judgment of the Appellate Court was confirmed by this Hon'ble Court vide judgment and order dated 10.02.2014 passed in Writ-A No. 71782 of 2009.
10. The judgment passed by the Prescribed Authority in P.A. Case No. 6 of 2000, the judgment of the Appellate Court passed in R.C.A. No. 16 of 2008 were filed as additional evidence under Order 41, Rule 27 of C.P.C. The said judgments were rejected by the Appellate Court by relying upon Section 145 of the Indian Evidence Act. Learned counsel for the tenant- petitioner has submitted that the provisions of Section 145 of the Evidence Act do not apply to judgments of competent courts and thus, the rejection of the additional evidence filed by the petitioner by the Appellate Court is illegal.
11. The Appellate Court ought to have considered the impact of the aforesaid judgments in view of the fact, that the said judgments clearly record a finding that the landlord is already carrying on business in two shops by the name of "Om Jewellers" and thus, the release application filed by the landlord, in which he states that he is unemployed, is based on material concealment of fact and was liable to be rejected.
12. Both the Courts below have recorded findings with regard to the bonafide need of the daughter-in-law of the landlord-respondent, when in fact, no such need of the daughter-in-law was set up in the release application. Nor any affidavit to such effect was filed either by the landlord-respondent himself or the daughter-in-law in question.
13. In view of the facts and circumstances stated above, it is clear that the landlord was previously employed and was carrying our Sarafa business in the shop known as “Om Jewellers” along with his son and therefore, the release application, which was filed on the ground that the landlord-respondent was employed, was liable to be rejected by the Courts below on the ground of material concealment of fact.
14. Learned counsel for the landlord-respondent has submitted that there are concurrent findings of fact of both the Courts below that need of landlord-respondent, Deshbandhu Gupta and Rekha Agrawal is genuine, pressing and bonafide and it is not required to be interfered with in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
15. On the basis of evidences and pleadings adduced before it, both the Courts below categorically concluded that all the other shops in the building are occupied by different tenants, since before the filing of release application and landlord-respondent was not found in possession of any alternative accommodation wherefrom he and his daughter-in-law, Rekha Agrawal, could profitably carry on the girvi ghanta business.
16. The argument of the tenant-petitioner that the landlord-respondent is already carrying on business with his son was found incorrect and unsustainable, inasmuch as, the tenant-petitioner failed to prove this assertion by way of any cogent evidence.
17. The judgements of Prescribed Authority in P.A. Case No. 6 of 2000 and that of the Appellate Court and High Court, filed by tenant- petitioner by way of additional evidence, were rightly not taken into consideration by the Appellate Court, inasmuch as, evidence beyond pleadings is impermissible in law. Even otherwise, judgments of Prescribed Authority in P.A. Case No. 6 of 2000 and that of the Appellate Court and High Court were of no consequence to the dispute, inasmuch as, judgments passed in those proceedings are judgments in personam and they would not operate as res judicata in release proceedings initiated against tenant-petitioner.
18. Even otherwise, need is to be seen on the date of filing of release application. The observations made by Prescribed Authority in P.A. Case No. 6 of 2000 and the Appellate Court and High Court does not negates the fact that on the date of filing of release application, the landlord- respondent and his daughter-in-law were unemployed and in bona fide need of the shop in question.
19. Further, perusal of paragraph no. 12 of the Appellate Court's judgement in Rent Appeal no. 16 of 2008 [page 258 of the paper book] makes it abundantly clear that evidence led before it in the shape of marriage card, M/s. Om Jewellers' was described as business establishment of son Ashish. Its telephone and electricity connections were also admittedly in the name of son of landlord-respondent, Ashish.
20. It is well settled that every adult member of the landlord's family is entitled to separate and independent business of his own choice and no member can be compelled by the tenant to participate in the business carried out by another family member.
21. Appellate Court not only concurred with the findings of the Prescribed Authority on the issue of bonafide need but also returned a categorical finding of fact that the daughter-in-law of tenant-petitioner is not carrying on any business and is in bona fide need of the shop in question.
22. The Appellate Court rightly rejected the amendment application (paper no. 16Ka) filed by the tenant-petitioner inasmuch as it was purely a delaying tactics adopted with the view to thwart the progress of the release proceedings. The amendments sought were not only factually incorrect and inaccurate but also rightly held to have been within the knowledge of the tenant-petitioner since he was decades-old tenant in that building.
23. Both the courts below returned a finding of fact that the tenant- petitioner made no attempt whatsoever to search for a alternative accommodation and hence, comparative hardship is in the favour of landlord-respondent.
24. The Appellate Court rightly concluded that documentary evidence filed by landlord-respondent along with the rejoinder affidavit did not result in any prejudice to the tenant-petitioner inasmuch as all those documents were either already on record since before or were admitted to the tenant-petitioner.
25. It has been submitted that the aforementioned concurrent findings of fact are based on appreciation of evidence by the Courts below and are therefore, not liable to be interfered with by this Court in exercise of supervisory jurisdiction of this Court.
26. After hearing the counsels for the parties, this court finds that landlord-respondent filed the release application on the ground that he is absolutely unemployed and carries no business anywhere and stated that shop in the occupation of tenant-petitioner is required by him to set up his own business of artificial jewellery and Girvi Ghata. It was further stated in the release application that, Smt. Rakhi Agarwal, daughter-in-law of landlord-respondent, will assist him for doing the aforesaid business. In the impugned orders passed by prescribed authority and the appellate authority they have recorded the finding that the son of the landlord respondent is doing the business in the name and style of “Om Jewellers” and the landlord respondent was only assisting him. Therefore, it cannot be said that the landlord-respondent was doing business with his son, Ashish, in the shop i.e., “Om Jewellers”. The prescribed authority has recorded the finding that the disputed shop is better alternative for the landlord respondent and his daughter in law and the landlord respondent has every right to choose the same for his business. In the P.A Case No. 6 of 2000 and Rent Appeal No. 16 of 2008 clear finding was recorded that the landlord-respondent was working with his son in the shop of Om Jewellers. The finding in the aforesaid case cannot be ignored in the subsequent proceedings of release initiated by the landlord respondent against the tenant petitioner on the ground that he is unemployed and needs the shop in dispute for the business of artificial of jewellery and Girvi Ghata with the help of his daughter-in-law, Smt. Rakhi Agarwal. The finding in earlier proceedings in this regard was relevant for deciding the issue of bonafide need of landlord-respondent.
27. The additional evidence regarding the earlier litigation of the landlord-respondent with other tenants, namely, Girish Kumar and Gopal Kapoor, by way of P.A Case No. 6 of 2000, Rent Control Appeal No. 16 of 2008 and judgment dated 10.02.2014 of this Court in Writ -A No. 71782 of 2009 was brought on record as additional evidence before the appellate court in the present proceedings but it was rejected on the ground that the requirements of Section 145 of the Indian Evidence Act were not complied by the tenant-petitioner.
28. In the present case there were three judgments of the Competent Courts which were filed in additional evidence and a witness cannot be cross examined regarding the findings recorded in the judgments of the Competent Courts. The acceptance or denial of findings recorded in the judgments of the Competent Court will not change the finding. Such findings can only be set aside by the court higher than the courts of which the judgments were relied in subsequent proceedings by way of additional evidence. The appellate court by impugned order dated 22.02.2001 wrongly rejected the application of tenant-petitioner for bringing on record as additional evidence the judgments of prescribed authority, appellate court and this court. However, it permitted the tenant-petitioner to raise argument on the basis of the same. Therefore, the finding that as per Section 145 of the Indian Evidence Act, the landlord-respondent was not cross-examined before the prescribed authority regarding the aforesaid judgments and orders is not in accordance with law. Since before the prescribed authority the judgments passed in P.A. Case No. 6 of 2000, Rent Control Appeal No. 16 of 2008 and judgment of this Court in Writ -A No. 71782 of 2009 were not filed and while rejecting the application of the tenant-petitioner he was permitted to raise arguments in appeal on the basis of the aforesaid documents. It is clear from the record that before the prescribed authority the aforesaid judgments were not on record and they were filed as additional evidence only before the appellate court.
29. Learned counsel for the tenant-petitioner has rightly pointed that the provisions of Section 145 of the Indian Evidence Act do not apply to the judgments. It applies only to cross-examination of a witness regarding his previous statement made in writing.
30. Section 145 is to deal with one of the methods of impeaching the credit of witness. Under Exception 2 of Section 153 of the Evidence Act a witness may be asked any question tending to impeach his impartiality. It permits oral statement to be used for contradiction. But the present section deals with the method of contradicting previous statements of witness in writing by cross- examination. The rule will apply where a witness is not a party to the suit and would not apply when a party to the suit is examining himself as a witness. Section 145 consists of two parts. According to the first part a witness may be cross-examined as to previous statement made by him in writing or is reduced into writing without showing the writing to him or proving the same. Second part is intended to contradict him through cross-examination where the previous statement is in writing. The object of the section is either to test the memory of witness or to contradict him by previous statements in writing. This section applies to both civil and criminal cases. The section has no application where the witness is sought to be contradicted not by his own statement but by the statement of another witness. In the first part there is only cross- -examination. There is no rule of law that an earlier statement shall be treated as correct and the subsequent contrary statement shall be discarded. Under the section if the witness is sought to be impeached by way of contradiction between his present statement with previous statement his attention must be called to it. The object of this procedure is to give the witness a chance of explaining or reconciling his statements before contradiction can be used in evidence.
31. Hence, it is clear that the finding of the appellate court regarding violation of Section 145 of the Evidence Act by the landlord-respondent was perverse.
32. The appellate court was required to consider the findings regarding working of the landlord-respondent in the shop “Om Jewellers” along with his son, Ashish, after considering the same and testing the bonafide need of landlord-respondent only the present release application could have been allowed on the basis of the reasonings recorded by the appellate court.
33. The argument of the learned counsel for the landlord-respondent that the judgment in the earlier P.A Case No. 6 of 2000, Rent Control Appeal No. 16 of 2008 and Writ – A No. 71782 of 2009 were judgments in personam and will not operate as res judicata in the release proceedings against the present tenant-petitioner deserves consideration. Question of application of principle of res judicata is not involved in this case only the bonafide need of the landlord set up in this case vis-a-vis the earlier case is to be tested.
34. There is no dispute that the ground of bonafide need is a recurring cause of action as such landlord is not precluded from filing fresh proceedings for eviction, if on the date of fresh suit his requirement is bonafide as held by the Apex Court in the case of N. R. Narayan Swamy vs B. Francis Jagan, 2001 (6) SCC 473.
35. In the present case both the proceedings are of rent court and therefore there is no dispute about the proposition. However, the need of the landlord-respondent does not appears to be bonafide in view of the earlier judgments and orders of the Courts aforesaid.
36. In view of the above consideration, it is clear that the explanation given by the learned counsel for the landlord-respondent that the shop of M/s. Om Jewellers was being run by the son of the landlord-respondent only and he had no concern with the same cannot be accepted unless the findings of P.A. Case No. 6 of 2000 affirmed by the appellate court and this court is explained before the appellate court and is legally considered by it.
37. Therefore, the judgment and order dated 22.02.2021 and 09.08.2021 passed by the Additional District Judge, Court No. 1, Bareilly, in Rent Control Appeal No. 01 of 2020 are set aside and the case is rendered to the appellate court for fresh decision in the light of observations made in the judgment.
38. The amendment application of the tenant-petitioner, paper no. 16Ka, is allowed the tenant-petitioner will be permitted to incorporate the amendments in his written statement as per the aforesaid application and thereafter the appellate court will decide the Rent Control Appeal No. 01 of 2020 again after considering the additional evidence filed by the tenant- petitioner in the form of the judgment and orders passed in P.A. Case No. 6 of 2000, Rent Control Appeal No. 16 of 2008 and Writ A No. 71782 of 2009.
39. This exercise shall be completed within a period of four months from the date of presentation of the copy of this order duly downloaded from the official website of this Court.
40. The petition is partly allowed.
Order Date :- 21.09.2021 Rohit