- (1.) THE defendant � tenant has preferred this second appeal under Section 100 of Civil Procedure Code aggrieved by the eviction decree passed by the first appellate court of learned Additional District Judge, Sumerpur in Appeal No.8/2010 � Prakashmal vs. LRs of Late Smt. Rehmat wife of Shri Kasam Ji, who is now represented after her death by Mohd. Salim s/o Shri Kasam Ji � her son.
(2.) THE learned trial court had decreed the suit No.42/1997 filed by the plaintiff � landlord Smt. Rehmat in respect of the suit premises, a shop situated at Sumerpur, which was initially given on rent to the defendant � tenant Prakashmal @ Rs.115/- per month and the eviction suit was filed, inter alia, on the ground of bonafide need of landlady's grand son Mohd. Raffique for opening an electronic equipment repair shop. The first appeal filed by the defendant � tenant Prakashmal also came to be dismissed by the impugned judgment dated 20.12.2011 and thus the concurrent decrees of eviction on the ground of bonafide necessity of landlady's grand son is sought to be challenged in the present appeal of defendant � tenant. By consent of both the learned counsels, the appeal is being disposed of finally at admission stage. The following substantial question of law is framed for consideration by this Court : "Whether an eviction decree can be granted to the landlord / landlady, who is governed by Muslim Law, for the bonafide need of her grand-son and whether such grand-son is a member of "family" as stipulated in Section 13(1)(h) of the Rent Control Act, 1950 ?" Learned counsel for the appellant � defendant (tenant), Mr. J.R. Patel urged that both the courts below have wrongly held that grand-son Mohd. Raffique was the member of the "family" of Mst. Rehmat � the landlady, as in the presence of his father Lal Mohd., the grand-son could not succeed to the property of the plaintiff � Mst. Rehmat under Muslim Law and after her death, during the pendency of the present appeal, since another son Mohd. Salim uncle of Mohd. Raffique for whose need, the suit shop is sought to be vacated, was brought on record on the basis of a Will purportedly executed by Mst. Rehmat in his favour, certainly the said Mohd. Raffique, could not fall within the ambit and scope of the term "family" of said Mohd. Salim, his uncle, since own real father Lal Mohd. Was alive under Section 13(1)(h) of the Act of 1950 and, therefore, no decree of eviction could be passed at the instance of landlord Mohd. Salim for the purported bonafide need of his nephew Mohd. Raffique. While submitting that the word "family", which is not defined in the Rent Control Act, 1950, need not be construed narrowly and it is not necessary that the grand-son has to be dependent on the landlady to become a member of her "family", learned counsel for the appellant � tenant, Mr. J.R. Patel urged that the landlady in the present case, never pleaded and proved that the said grand-son was the member of her "family" and for his bonafide need, she needed the suit shop in question. He relied upon various case laws in support of his contentions with regard to the term "family", which will be discussed hereinafter. On the other hand, Mr. Rajesh Parihar, learned counsel for the respondent � plaintiff � landlady, strongly refuted the contentions of the learned counsel for the defendant � tenant and urged that the word "family" has been construed to be a term of wide import and irrespective of right to succeed to the property of the grant-mother or not, the grand-son Mohd. Raffique being a blood relation, could not be denied the status of being a family member of Mst. Rehmat and even though he was living separately from his father namely Lal Mohd. and his grand mother Mst. Rehmat was living with him, it does not mean that the grand-mother could not claim the eviction on the ground of bonafide need for grand-son to set up his own business in the suit shop and he urged that both the courts below have rightly decreed the eviction suit in favour of the respondent � plaintiff and no substantial question of law in fact arises in the present second appeal and any such question, if at all if arises, the same deserves to be answered in favour of the respondent � plaintiff and the concurrent eviction decrees deserve to be upheld. He also relied upon various case laws in support of his contentions, which will be discussed hereinafter.
(3.) IN Smt. Rajinder Dhada vs. Jagdish Singh reported in 2002(8) Supreme Bound Reports � 422, dealing with a case arising under the East Punjab Urban Rent Restriction Act, 1949, the Hon'ble Supreme Court held that expression "family" would mean such relations of landlord as ordinarily live with him and are dependent upon him. In that case, the need was claimed by the appellant � landlady for two children left behind by her sister-in-law after her death and the father of the children was as ASI in Police. The High Court reversed the eviction order passed by the courts below and found that the two children to be neither dependent on nor were ordinarily living with landlady and in such circumstances, no fault could be found with the decision of the High Court. In another case, under the same Act, the Division Bench of Punjab and Haryana High Court in Ravinder Kumar Pujara vs. Gian Chand reported in 1987 AIR (P&H) � 31, held that the moment an independent business is set up by the son, who till then may have been the member of the family of the landlord, it would not be possible to say that the use of their rented land by the son would be deemed to be by the landlord himself and in such a case in the absence of any averment and evidence that such son was member of the family or dependent upon his father, the requirement of landlord to settle the former in business, would not be covered by the said clause nor can it be reasonably argued that the landlord requires the rented land for his own use. Besides aforesaid two judgments, another judgment relied upon by Mr. J.R. Patel, learned counsel for the appellant � defendant, is that of a learned Single Judge of Punjab and Haryana High Court in the case of Sewa Ram Sethi and others vs. Des Raj reported in 1986(2) Rent Control Reported � 38, in which the landlord sought ejectment of tenant for requirement of his married son living separately for 12/13 years and in such circumstances, the Court did not find the need to be bonafide enough for ordering eviction of the tenant. ;