IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6620/2007. Heera Lal Saini Vs. Rent Appellate Tribunal and anr. Date of Order:- 31 January 2008. HON’BLE MR.JUSTICE M.N. BHANDARI Shri R.K. Mathur for the petitioner. Shri Manoj Pareek for the respondents. **** Aggrieved by the order passed by the Rent Tribunal as well as Appellate Rent Tribunal Alwar, the petitioner has preferred this writ petition. The non-petitioner preferred an application under Section 9 of the Rajasthan Rent Control Act for seeking eviction of the petitioner from the premises on the ground of his personal bonafide necessity, subletting and default in making the payment of rent. On the basis of the pleadings of the parties, Rent Tribunal framed six issues out of which, Issues No.1, 2 and 6 were decided in favour of the applicant-landlord whereas Issues No.3 and 4 were decided in favour of the non-applicant tenant. Issue No.5 2 SBCWP NO.6620/2007. was deleted. Aggrieved by the order of the Tribunal, petitioner preferred appeal but same was also dismissed. Learned counsel has vehemently urged that both the Tribunals have recorded perverse finding on the issue of bonafide necessity as well as on the issue of subletting of the shop thus, taking note of the perversity of finding, both the orders deserve to be set-aside. While elaborating the arguments, it was submitted that petitioner did not sublet the shop rather an employee namely; Vijay Singh was asked to occupy the disputed property in the capacity of servant thus, without considering this aspect, perverse conclusions drawn by the court below regarding subletting of the shop are erroneous. Even for bonafide personal necessity, learned counsel for the petitioner urged that the court below ignored the fact that the non-petitioner was having alternative properties which were got vacated by him but instead of utilizing the same for his personal purposes, it was rented out to others. Thus, such an issue of personal bonafide necessity should not have been decided in favour of the non-petitioner. For the purpose of consideration of the argument of the learned counsel for the petitioner, I have perused 3 SBCWP NO.6620/2007. the judgment of the Tribunals below and even gone through the record. Perusal of the record and judgments shows that the issue of subletting was decided by the learned Tribunal after considering all the material and there exist no perversity in the finding inasmuch, material available on record not only shows that the plea taken by the non-petitioner was found to be incorrect inasmuch as, the plea taken by the petitioner that Vijay Singh was kept as a servant on the shop and for that purpose even an agreement Exh.A.23 was also produced but then perusal of the account books could not show any payment of salary to Vijay Singh to prove his employment with the petitioner. Even in the statement made by Ganesh Soni, he had admitted that Vijay Singh is his real uncle therefore, he comes to the shop occasionally to meet his uncle. Apart from above, petitioner could not prove his working on the disputed property inasmuch as, those who undertake the work are necessarily gets registration with the association however, for the period in dispute, petitioner could not produce any membership, slip of the association apart from the fact that in a criminal case, petitioner submitted an application with the contention that petitioner is doing his business at Gurgaon for last three years therefore, he 4 SBCWP NO.6620/2007. is unable to come to Alwar frequently thus, he should be given exemption from personal attendance. The said statement was made by none-else but by the petitioner himself. Therefore, this was the additional fact which was noticed by the court below to show that petitioner was not working in the disputed premises rather he has started working at Gurgaon though to improve the statement, petitioner stated that he used to visit Gurgaon as his son is doing his business there however, the fact again remain that petitioner could not prove his working at Alwar before the court below and even when notice of the application moved by the non-petitioner was ordered to be served on the petitioner, same was served at Gurgaon and not at Alwar. Thus, taking note of all the above referred material apart from, other material discussed in the judgment, it cannot be said that there exist any perversity in the finding recorded by the Tribunals below rather during the course of argument, counsel for petitioner was asked to show and precisely to indicate the perversity, he failed to do so. Now, comes to the second issue i.e. regarding personal and bonafide necessity of the non-petitioner. Again, a detailed discussion has been made by the Tribunal as well as the Appellate Rent Tribunal that non-petitioner 5 SBCWP NO.6620/2007. retired from the government service in the year 2000 and intended to start his own work and this plea of the non- petitioner was accepted by the Tribunals however, the findings which were recorded in that respect has been challenged by the petitioner mainly on the ground that an alternative accommodation was available with the non- petitioner which got vacated by him and subsequently, rented out therefore, in those circumstances, non- petitioner is not having bonafide personal necessity of the suit premises. It was also submitted that non- petitioner is otherwise having sufficient means of livelihood. Both the contentions were considered by the courts below taking note of the fact that the alternative premise was got vacated in the year 1990 whereas non- petitioner retired in the year 2000 therefore, if the property was again rented out in the year 1990 then bonafide personal necessity arose after retirement of the non-petitioner in the year 2000 i.e. after 10 years of renting out of the shop, it cannot be said that case of the non-petitioner is demolished in regard to bonafide personal necessity. The non-petitioner got personal bonafide necessity of the shop only in the year 2000 on his retirement. Therefore, the contention of the 6 SBCWP NO.6620/2007. petitioner was not accepted by the courts below and same is the position in regard to non petitioner’s earnings inasmuch as, the court came to the conclusion that merely for the reason that landlord is having means of livelihood does not mean that he may not come with a case of personal bonafide necessity of the shop to start his business after retirement. The conclusions drawn on the said issue are in my opinion based on material and without any perversity moreso when again the issue of bonafide personal necessity could not be agitated by the learned counsel or the petitioner much during the course of arguments in view of not only concurrent finding of fact but also for the reason that no perversity or illegality exists therein. Even otherwise, the jurisdiction of this court under Article 226 of the Constitution of India is not available looking to the finding of fact which virtually amounts to sitting on the judgment of the Tribunal as appellate court. Thus, not only for the reason that scope in the writ jurisdiction is limited looking to the question of facts but even otherwise the judgment impugned does not show any perversity therein thus, for both the reasons, the writ petition deserves to be dismissed and is accordingly dismissed in limine. 7 SBCWP NO.6620/2007. (M.N. BHANDARI), J. anil