Case: KALPANA VYAS Vs. RAJ KUMAR RANGWANI

Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 02.01.2018 passed by the High Court of Rajasthan Bench at Jaipur in S.B. Civil Writ Petition No. 5403/2015 whereby the High Court has allowed the writ petition filed by the respondent herein. 3. The issue involved in the appeal is short, as also the facts of the case lie in a narrow compass, which would be clear from the narration infra. 4. The appellant is the applicant, whereas the respondent is the non¬applicant in the eviction petition filed by the appellant against the respondent before the Rent Control Tribunal, Rajasthan out of which this appeal arises. 5. The appellant ¬ a landlady of the suit premises filed the eviction petition against the respondent¬ tenant of the suit premises under Section 9 of the Rajasthan Rent Control Act (for short called The Act) before the Rent Tribunal Kota (R¬84/2005) praying therein for respondents eviction from the tenanted suit premises. 6. The appellant claimed respondents eviction from the suit premises on the ground of her personal bona fide need for raising construction in the existing suit premises to be used for her children and for stay of appellants guest in the suit premises. 7. The respondent denied the appellants need and, inter alia, contended that the appellant is in possession of an alternative accommodation in the city and hence her alleged need set up in the eviction petition can be accomplished by using the alternative accommodation available in the city. 8. By order dated 8.2.2011, the Rent Tribunal dismissed the appellants eviction petition holding that appellants need can be accomplished with an alternative space available with her in the city. 9. The appellant (landlady) felt aggrieved and filed an appeal (144/2014) before the Appellate Tribunal. The Appellate Tribunal by order dated 12.2.2015 allowed the appeal, set aside the order of the Rent Tribunal, decreed the appellants eviction petition and passed the eviction decree against the respondent, in relation to the suit premises. 10. The respondent (tenant) felt aggrieved and filed writ petition before the High Court of Rajasthan (Jaipur). By impugned order, the learned Single Judge allowed the respondents writ petition and set aside the order of the Appellate Tribunal and restored the order of the Rent Tribunal which gives rise to filing of the special leave to appeal in this Court by the landlady. 11. So the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the respondents (tenants) writ petition thereby justified in setting aside the appellate order of the Rent Appellate Tribunal and restoring that of the Rent Tribunal. 12. Heard Dr. Manish Singhvi, learned counsel for the appellant and Mr. Purvish Jitendra Malkan, learned counsel for the respondent. 13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, modify the impugned order and remand the case to the Rent Appellate Tribunal for deciding the appeal (144/2014) afresh on merits. 14. In our opinion, the need to remand the case to the Rent Appellant Tribunal has occasioned because the High Court, while allowing the respondents writ petition, came to a conclusion and accordingly held that the Rent Appellate Tribunal allowed the appellants (landladys) appeal with a casual approach and failed to record any categorical finding on the plea of bona fide need. The operative part of the High Court order reads as under:¬ Taking into consideration the fact aforesaid, I do not find any reason for Rent Appellate Tribunal for setting aside the order of the Rent Tribunal. The perusal of the impugned order shows a casual approach of the Rent Appellate Tribunal in reversing the finding of the Rent Tribunal, that too, without going into the issue of personal bonafide necessity. The Rent Appellate Tribunal was expected to first decide the issue as to whether respondent is having personal bonafide necessity or not. Accordingly, impugned order passed by the Rent Appellate Tribunal is set aside. (emphasis supplied) 15. Having held that, the High Court had two options: first either to remand the case to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law and second, to decide the matter itself on merits in accordance with law. 16. Since the High Court heard the matter in its writ jurisdiction under Article 227 of the Constitution, it was not possible to examine the issue on facts in detail like an Appellate Court. It is for this reason, in our view, the High Court ought to have resorted to first option and remanded the case back to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law. 17. The High Court, therefore, committed an error in not taking recourse to any option and without deciding the issue arising in the case on its merit, simply restored the order of the Rent Tribunal. 18. This approach of the High Court caused prejudice to the appellant (landlady) because there was no factual finding recorded either by the first appellate Court or the High Court on the question of bona fide need.

Decision reasoning: 1[ds]13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, modify the impugned order and remand the case to the Rent Appellate Tribunal for deciding the appeal (144/2014) afresh on merits.14. In our opinion, the need to remand the case to the Rent Appellant Tribunal has occasioned because the High Court, while allowing the respondents writ petition, came to a conclusion and accordingly held that the Rent Appellate Tribunal allowed the appellants (landladys) appeal with a casual approach and failed to record any categorical finding on the plea of bona fide need.15. Having held that, the High Court had two options: first either to remand the case to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law and second, to decide the matter itself on merits in accordance with law.16. Since the High Court heard the matter in its writ jurisdiction under Article 227 of the Constitution, it was not possible to examine the issue on facts in detail like an Appellate Court. It is for this reason, in our view, the High Court ought to have resorted to first option and remanded the case back to the Rent Appellate Tribunal for deciding the appeal afresh on merits in accordance with law.17. The High Court, therefore, committed an error in not taking recourse to any option and without deciding the issue arising in the case on its merit, simply restored the order of the Rent Tribunal.18. This approach of the High Court caused prejudice to the appellant (landlady) because there was no factual finding recorded either by the first appellate Court or the High Court on the question of bona fide need.