IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3819 of 2007 Date of decision: 10th November, 2008 Ashok Vashist … Petitioner Versus Smt. Prem Kataria … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vipul Jindal, Advocate for the petitioner. Mr. V.K. Kataria, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Ashok Vashist tenant, who after having remained unsuccessful in the two courts below, has invoked the revisional jurisdiction of this Court. The landlord instituted an eviction petition on 15th November, 1999. A period of nine years of turmoil in the courts and the ground of personal necessity has persuaded this Court to decide the case in the motion hearing. A Coordinate Bench, on 23rd September, 2008, had taken on record the rent petition, written statement and replication to determine the controversy between the parties. In the rent petition, Mr.Amrit Kataria has stated that he is 75 years of age. He is the patriarchal head of the family and his family is dealing in the supply and repair of optical goods. He further states that his wife is in the late 60s and is having pelvic injury. Therefore, for their upkeep and care, they are dependant upon their two sons. As it emerges from the reading of the eviction petition, petitioner therein has two sons. His one son Rajinder Kataria, who at the time of filing of the petition was 43 years old, along with his wife and two children is living with the landlord. From the Civil Revision No. 3819 of 2007 discussion of the Rent Controller, it emerges that at that time, two grandsons were of 9th and 10th standard. Another son Rajesh Kataria, who has done Masters Degree in Computer Engineering, at that time was settled in New Zealand and now, according to Mr.Jindal, he is settled in Australia. At the time of filing of the petition, it is stated that his wife was a Lecturer at a distance of 10 kilometers and was also staying with the landlord and she was also having a son. From the perusal of the judgments of two courts below, it is also revealed that the two daughters of the landlord are married and on visiting terms with the landlord. The house consists of 7 ½ marlas (187 square yards) plot. The accommodation, as per the plan approved by the Chandigarh Administration, consists of drawing dining room, two bed rooms on the first floor and according to the counsel, a room has been constructed in the courtyard. On the first floor, there is drawing dining and two bed rooms; and the top floor, which is called Barsaati having height of 7 feet consists of three rooms according to Mr.Jindal. The tenant herein is occupying drawing dining, kitchen and a bedroom on the first floor and according to the rent petition, rent was increased from time to time and at the last time, rent was Rs.2375/- per month, which according to the counsel for the respondent, is disputed and rate of rent is Rs.350/- per month. Eviction petition was filed on three grounds. Firstly, there is non-payment of rent. Secondly, the premises are required for personal necessity and thirdly, there is a nuisance caused by the tenant as the tenant in an inebriated condition, due to his behaviour, has caused mental agony, physical pain and sociological embarrassment. The grounds raised in the eviction petition were vehemently denied by the tenant. It was stated that there are two bed rooms on the ground floor and another room built in the courtyard can also be used as bed room. Therefore, there are three 2 Civil Revision No. 3819 of 2007 bed rooms on the ground floor, two bed rooms on the first floor and three rooms on the top floor i.e. Barsaati. Hence, the landlord is occupying eight bed rooms along with one drawing dining. This plea was not accepted by the Rent Controller. This plea has been countered by Mr.Kataria stating that the room built in the courtyard can only be used for store purposes and there are two bed rooms on the ground floor and two bed rooms on the first floor, and the Barsaati portion having height of 7 feet cannot be converted to bedrooms. Be that as it may, the evidence was led by the parties before the Rent Controller. Rent Controller took into consideration the evidence of Smt.Prem Kataria, who appeared in the witness box as PW-1. Her affirmation was noticed as under: “16. … … She affirmed that the house is built on 7 ½ Marla Plot comprising of three room set on the ground floor and the same accommodation on the first floor. At present her family consists of herself, her one son having two children studying in 11th and 9th class respectively. Both the children are grown up and require an independent room for their studies and for the visits of their friends. One room is required by her and one big room is required for drawing-cum-dining. Further affirmed that her one son is settled at Australia but his wife is a Lecturer in a School situated about 10 kms., from Chandigarh and is living with her, along with her minor son. His son also visits India to join his family, therefore, she requires the entire ground floor and first floor for her own use and for the use of her family members. She further affirmed that she is old lady and not keeping good health and due to illness she cannot move properly nor can she go upstairs easily. She cannot live alone and she needs the assistance of her children. She used to live with her grand children. Further affirmed that she has two daughters who also visits occasionally and stay with her with their families and at that time there is shortage of accommodation and it becomes difficult to live properly. Further affirmed that second floor of the house i.e. barsati floor is having three small rooms but 3 Civil Revision No. 3819 of 2007 height is about 7 ft. and same are not for comfortable living, therefore, the said accommodation is not suitable to her or her family members. About six months back the tenant of barsati floor vacated the premises, which she offered to the respondent on the same rent being paid by him.” The Rent Controller concluded that the petitioner required the premises in question, i.e. one big room i.e. drawing dinning hall, one attached kitchen, toilet and a washroom and balcony on the first floor for his own use and occupation. Non payment of rent and nuisance, these two grounds were not accepted by the Rent Controller. The appellate authority did the appraisal and appreciation of the evidence and concurred with the findings of the Rent Controller. A new plea was raised before the appellate authority that necessary ingredients of Section 13(3)(a)(i) of the Act that the landlord is not occupying any other residential building in the urban area of Chandigarh nor he has vacated any such building after the commencement of the Act, have not been impleaded by the landlord in the petition and for want of these ingredients, the petition filed by the landlord is liable to be dismissed. Appellate authority held that no prejudice has been caused to the tenant by non pleading of these essential ingredients as it was known to the parties that the petitioner landlord is residing in the same premises. Reference has been made to Mst. Sadiqan and others v. Mst. Jubedian and others, 1980 PLR 305. During course of arguments, it is not disputed that in cross- examination, it was not put to the landlady that she is occupying any specific property or she is possessed of no other property in the urban area of Chandigarh. It was the case of the landlord in the rent petition itself that the top floor has been vacated and is lying vacant. I have heard Mr.Vipul Jindal, who with all his eloquence, has taken me through all the averments made in the eviction petition (Annexure P-1) and reply filed thereto (Annexure P-2). I have also heard Mr.V.K. 4 Civil Revision No. 3819 of 2007 Kataria, counsel appearing for the landlord. The evidence of the landlord is not only to be seen on the date when petition is filed, but the subsequent events can also be taken into consideration. Admittedly, the landlord has died during the pendency of the present petition and his wife is suffering from Palvic injuries. Therefore, first floor rooms are not to be occupied by her for her own use, but by her elder son, Rajinder Kataria, who is having two sons and his wife is living with Smt.Prem Kataria, landlady as she is dependant upon them for her day to day needs and routine care. Two sons of Rajinder Kataria are school going students and for their education, they require separate rooms. At the time of filing of petition, grandsons of landlady were students of 9th and 10th class, by now they must be college going and independent room is their necessity. It has come in evidence that the other son, who is settled in Australia, is on visiting terms with them. Two daughters are also on visiting terms with them. Therefore, expansion of the family and their growing needs justify personal necessity of the landlord. Landlady, her son, daughter-in-law, two grandsons, visiting son and two married daughters, a joint family need sufficient accommodation. It cannot be said that the landlord is only desirous of getting his house evicted but his needs are justifiable. Mr. Jindal has placed reliance upon a Full Bench of this Court rendered in Shri Banke Ram v. Smt. Sarasu Devi, 1977 (LXXIX) 112, to contend that lack of specific pleading in itself is sufficient to dismiss the ejectment petition. He has also placed reliance on Order VI Rule 2 of CPC to say so. There can be no quarrel with this proposition. Rules of the Code of Civil Procedure are not applicable with all vigour and strength in the Court of Rent Controller. A further reliance has been placed upon Ajit Singh and another v. Jit Ram and another, 2008(2) RCR 328, where for 5 Civil Revision No. 3819 of 2007 a commercial building when necessary ingredients were not pleaded, it was held to be fatal. In the present case, landlord has been residing on the ground floor. He is owner of only this property and there is no other property in his name. To dislodge this, no searching cross-examination was carried out. No prejudice has been caused to the petitioner. Accordingly, it is held that concurrent findings of two Courts below that personal necessity and bonafide requirement of landlord is made out, cannot be said to suffer from infirmity, therefore, same is affirmed and no interference is warranted in the present revision petition. Hence, present revision petition is liable to be dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 10, 2008 rps 6