Dr. Vineet Kothari, J.@mdash1. The appellants/defendants/tenants have preferred this second appeal under Section 100 of CPC, 1908, impugning the judgment and decree dated 14.12.2015 passed by learned first appellate court of learned Addl. District Judge No. 4, Jaipur District, Jaipur, in Civil First Appeal No. 1/2014 (15/2009) (Hariram Saini (D) through LR''s & Anr. v. Vimla Sharma & Ors.) whereby the learned first appellate court dismissed the first appeal filed by the defendants and affirmed the judgment and eviction decree dated 24.09.2009 passed by learned Civil Judge (Sr. Division), Kotputli, District: Jaipur, in Civil Original Suit No. 4/2001 - Badri Prasad (D) through LR''s v. Hariram Saini & Anr., whereby the learned trial court decreed the suit filed by the original plaintiff/landlord, Sh. Badri Prasad, for eviction of the defendants from the suit shop, situated at Kotputli Mohalla, Basdi, Bansoor Road, Jaipur, on the ground of reasonable and bonafide necessity of landlord and default in payment of rent and subletting. Both the courts below have concurrently granted eviction decree on the ground of default in payment of rent, bonafide and reasonable necessity of the landlord.
2. The suit for eviction filed by the plaintiffs/respondents was decreed by the learned trial court vide judgment and decree dated 24.09.2009 with the following findings:--
3. The first appeal filed by the defendants/appellants was, dismissed by the learned first appellate court vide judgment and decree dated 14.12.2015 with the following findings:--
4. Mr. Mr. N.K. Maloo, Sr. Advocate assisted by Mr. Vinod kumar Tamoliya, learned counsel for the appellants/defendants urged that neither there was any specific pleading nor evidence adduced by the plaintiff/respondent about the dependency of his grandson, namely, Gopalkrishan, on the grandfather, Sh. Badriprasad nor the grandson was living with his grandfather, therefore, the alleged bonafide need cannot be said to be a real and reasonable necessity. He further submitted that an application under Order 41 Rule 27 CPC was also filed by the appellants/defendants before the first appellate court bringing to the notice of the first appellate court that the landlord has subsequently purchased another premises, in which a shop for carrying the business of readymade garment has been opened and the said grandson, namely, Gopalkrishan, for whose necessity the suit shop was sought to be evicted, his business need could be satisfied by other vacant available shops with the landlord. He, therefore, argued that other shops were also available in the newly constructed building and thus the inspite of availability other alternative shops to the plaintiff/landlord, the eviction sought by the landlord was and is not bonafide.
5. Learned counsel for the appellants/defendants also relied upon the judgment of Hon''ble Apex Court in the case of Smt. Rajinder Dhadha v. Jagdish Singh reported in 2002 (10) SCC 665 and urged that in absence of any averment or evidence that such son was the member of family, and was living ordinarily with his father, the eviction cannot be granted on such grounds.
6. On the other hand, Mr. Anand Bhardwaj, learned counsel appearing on behalf of respondents/plaintiffs urged that not only it was averred in the suit itself that the suit shop was required for the purpose of starting business of cyber caffe for the grandson of the original plaintiff/landlord but also in the affidavit-in-chief and the cross-examination, it was specifically stated and proved that the suit shop was required bonafidely and, therefore, the eviction decree concurrently granted by the courts below, deserve to be upheld. He also submitted that though subsequently certain shops were constructed by the landlord, grandfather, the same were not available for said grandson and that cannot be made basis or ground to deny the eviction decree, as the necessity of the suit shop is to be determined on the date of filing of the suit, and therefore, merely because certain other shops were constructed by the landlord, eviction decree cannot be reversed. He further submitted that the landlord is the best judge to decide his business needs and the tenant cannot dictate terms in this regard. Learned counsel for the plaintiffs relied upon the judgment of this Court in the case of Denzil Nagrath v. LRs. of Balwant Singh reported in 2011(3) DNJ (Raj.) 1217 in which it has been held as 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 bonafide 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 plaintiff''s 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 bonafide 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."
7. Learned counsel for the plaintiffs/landlord also relied upon a judgment of this Court in the case of LR''s of Prakash v. Poornima (SBCSA No. 132/2009, decided on 11.05.2011), in which this Court while emphasizing that landlord is the best judge of his needs, held as under:--
"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 bonafide need of the landlord was fully established before the learned trial court and as per the catenae of judgments of Hon''ble Supreme Court, it is not for the tenant to dictate the landlord as to how and in what manner he should satisfy his bonafide 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.
6. Having heard the learned counsels and upon perusal of the impugned orders passed by learned courts below, this Court is of the opinion that no substantial question of law arises for determination by this Court and the present second appeal is liable to be dismissed and same is accordingly dismissed."
8. In Prativa Devi v. T.V. Krishnan -, (1996) 5 SCC 353, the three Judges Bench of the Hon''ble 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 dictate 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 show 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 bonafide 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."
9. More over, as held by Hon''ble Supreme Court itself in a recent decision of two Judges bench in Satyawati Sharam v. Union of India - , (2008) 5 SCC 287, which has been later on reaffirmed by three Judges bench decision of Hon''ble Apex Court in State of Maharashtra & anr. v. Super Max International Private Ltd. & Ors. - , (2009) 9 SCC 772 in which the Hon''ble 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 court''s 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 emphasize 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 Court''s 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 Rs. 5236.58/-,plus water charges at the rate of Rs. 515.35/- per month more than amply highlights the point)"
10. Having heard the learned counsel for the parties, this Court is satisfied that both the courts below had not committed any error in granting the eviction decree in favour of landlord/plaintiffs/respondents as the courts below have rightly appreciated the correct legal position that the landlord is the best judge of his/her business needs and neither the defendant/tenant can dictate terms in this regard and, thus the Issue No. 2 with regard to bonafide need of the landlord, has rightly been decided in favour of plaintiffs by the courts below. This Court is satisfied that the present second appeal of the appellants/defendants/tenant deserves to be dismissed and no substantial questions of law arises in the present case. The appeal, is liable to be dismissed, the same is accordingly, dismissed.
11. In the circumstances, it is directed that the appellants/defendants/appellants/tenant shall hand over the peaceful and vacant possession of the suit property in question to the respondent-landlord on or before 31.12.2017 and shall pay mesne profit @ Rs. 5,000/- per month commencing from the month of March, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-landlord also and in case there is any default in payment of mesne profit, the period for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendants-tenant shall also clear all the arrears of rent and mesne profits and pay the same to the respondent-landlord within three months from today, otherwise the same will bear interest @9% per annum. The defendants/tenant 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 defendants-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month 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 respondent-landlord within the stipulated time period i.e. on or before 31.12.2017 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-landlord shall also be entitled to invoke the contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.
