MOHAMMAD RAFIQ J. - (1.) HEARD learned counsel for the parties
(2.) THIS writ petition has been filed by the petitioner, who is tenant in the shop of which the respondent No.1 is landlord. Respondent filed petition for eviction of petitioner on the ground of default as well as bonafide personal necessity. Rent Tribunal, Tonk and Appellate Rent Tribunal, Tonk both by concurrent findings on the aforesaid two grounds have directed eviction of petitioner. Aggrieved thereby petitioner approached this Court by filing the present writ petition. Shri M. C. Jain, learned counsel for the petitioner argued that notice served by respondent-landlord on petitioner was defective and was not conformity with Section 9 of Rent Control Act, 2001. Learned counsel submitted that requirement of law is that notice should send as per law, demanding arrears of rent and this ground would be available only if the tenant has not made payment of arrears of rent within a period of thirty days from the date of service of notice. This notice was not served as per requirement of second proviso to Section 9. Eviction proceedings initiated on the basis of such notice are wholly incompetent. Learned counsel submitted that both the Courts below have erred in law in deciding the issue of default against petitioner because petitioner had already paid a sum of Rs.10,000/- to respondent-landlord on 16.5.2004 and another sum of Rs.4,000/- on 19.7.2005. The Courts below have failed to appreciate this aspect. Learned counsel submitted that after death of original landlord there were number of legal heirs amongst from taking portion of property. There was confusion to whom the petitioner was acquired to pay rent and, therefore, payment of rent could not be made and arrears were due. In peculiar facts non-payment of rent cannot be described as default. On the issue of bonafide necessity, learned counsel submitted that landlord has no experience for running the kind of business, which was cited as personal necessity. Learned counsel for the respondent opposed the writ petition and submitted that petitioner has not been paid rent since 1996 and in that situation an agreement was executed between the parties as on 31.8.2003, which was duly signed by respondent No.1 as landlord. There should be, therefore, no confusion to whom the petitioner was required to pay the rent. In fact, as per that agreement, petitioner agreed to pay a sum of Rs.12,831/- till 31.8.2003. Even though petitioner paid a sum of Rs.10,000/- belatedly on 16.5.2004 and out of that rent Rs.2831/- was still unpaid and the default in making payment continued for the period from 31.8.2003. Much after the notice, petitioner paid a sum of Rs.2000/- on 19.7.2005. There was thus clearly default on the part of petitioner. Learned counsel submitted that landlord need not always be owner and in this connection cited judgment of Division Bench in Bulaki Das Vs. Banshdhar Parwal & Ors. : WLC (Raj.) 2008 (4), Page 1. Learned counsel also cited judgments of Supreme Court in (i) Bhogadi Kannababu & Ors. Vs. Vuggina Pydamma & Ors. : 2006 (5) SCC, 532, (ii) Pratap Rai Tanwani & Anr. Vs. Uttam Chand & Anr. : 2004 (8) SCC, 490 and (iii) Maganlal Vs. Nanasaheb : 2008 (13) SCC, 758 and submitted that landlord is best judge to decide about his personal bonafide necessity and crucial date should be taken as on the date when the suit for eviction was filed. Having heard learned counsel for the parties and perused the impugned orders, I find that document Exhibit-5, which is on record in this writ petition as Annexure-4, clearly show that an agreement was executed between the parties on 31.8.2003 according to which a total sum of Rs.12,831/- was arrears of rent for the period starting from June 1996 up till that date. That agreement was signed by respondent No.1 and petitioner. As per that agreement petitioner made payment of Rs.10,000/- on 16.5.2004. Even if arrears of rent for the months of December 2004 was also demanded, nothing prevented the petitioner from paying rent upto November 2006. If he has not paid arrears of rent upto November 2004, he cannot be allowed to complain that notice would become invalid on that ground. Moreover, when the agreement which the petitioner as signed as a tenant and respondent as a landlord, to whom petitioner actually paid Rs.10,000/- on 16.5.2004, he is, therefore, not justified in stating that rent could not be paid because there was confusion as to who should receive the same. On the ground of bonafide necessity, both the Courts have concurrently held against the petitioner. It is the landlord who is best judge to decide about his personal bonafide necessity and the petitioner cannot be allowed to say that since the respondent No.1 has no experience for running the kind of business, therefore, his bonafide necessity cannot be justified. For all these reasons, this writ petition is accordingly dismissed.;