C.R.No.7483 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.7483 of 2011 (O&M) Date of decision: 5.12.2011 Rakesh Kumar ...Petitioner vs Darshan Singh ....Respondent CORAM: MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.V.M.Gupta, Advocate, for the petitioner. -- Rakesh Kumar Garg,J. This is tenant's revision petition challenging the order dated 21.2.2011 of the Rent Controller, Khanna, ordering his eviction as well as the judgment dated 1.10.2011 of the Appellate Authority whereby his appeal against the aforesaid order of eviction, has been dismissed. The respondent landlord filed an ejectment application against the petitioner on the averments that he was owner of the demised premises which were taken on rent by the petitioner in the year 1990 from his father for running a tailoring shop at a monthly rent of Rs.1000/- besides house tax. The rent was enhanced later on to Rs.1100/- per month. After some time petitioner changed user of the tenanted premises and upon being objected to he filed a suit for permanent injunction against the respondent. Eviction of the petitioner was sought from the demised premises on the following ground:- 1. That the petitioner has neither paid nor tendered house tax and rent w.e.f.1.4.2006 @ Rs.1100/- per month. 2. That the petitioner has made material additions and alterations in the property and impaired the value of utility of the property. He has made permanent fittings and fixtures. C.R.No.7483 of 2011 2 3. That the demised premises are bona-fide required by respondent for his own use and occupation. Respondent has two sons (one married and one unmarried) and he wants to start business for himself and for his sons in the demised premises. He has also three daughters, out of which two are married and one is unmarried. 4. That the petitioner has changed the user of the demised premises from tailoring business to manufacture Punjabi Jutti and thereafter started business of PCO/STD/Photostat etc. without prior permission of the petitioner. Upon notice petitioner filed written statement contesting the averments made by the respondent landlord. However, relationship of landlord and tenant between the parties was admitted. It was further averred that petitioner never started the business of tailoring in the demised premises rather with permission of father, of the petitioner, he started business of PCO, STD and photostat etc. in the year 2000. He was paying rent at the rate of Rs.1100/- per month to the respondent and house tax was being paid to the Municipal Council directly. In fact, the respondent wanted to enhance the rent and has also tried to disconnect the amenities provided in the premises. It was denied that petitioner has made additions and alterations in the demised premises. It was further denied that he was in arrears of rent etc. It was also averred that there was no change of user of the premises. Bona fide requirement was also denied stating that sons of respondent were already doing service. Denying other averments, dismissal of the petition was prayed for. Respondent-landlord filed replication reiterating the averments of petition and controverting those of the written statement. From the pleadings of the parties, following issues were framed:- C.R.No.7483 of 2011 3 1. Whether respondent has made material additions and alterations in the property in question, thereby impairing the value and utility of the shop ?OPA 2. Whether the demised premises are bona fide required by the petitioner for his personal necessity ?OPA 3. Whether respondent has changed the user of the demised premises without consent of the petitioner, if so its effect ? 4. Whether the respondent is liable to be ejected from the shop in question ?OPP 5. Relief. After considering the evidence on record and hearing learned counsel for the parties, the Rent Controller allowed the petition filed by the respondent for ejectment of the petitioner holding that the demised premises were required by the respondent landlord for his personal necessity and that the petitioner has changed the user of the demised premises without consent of the respondent. However, it was held by the Rent Controller that there was no sufficient evidence to infer any material additions or alterations in the demised premises. Feeling aggrieved from the aforesaid finding of the Rent Controller, the petitioner filed an appeal before the Appellate Authority which was also dismissed. While dismissing the appeal, the Appellate Authority, observed as under:- “ After hearing the rival contentions of the learned counsel for the parties and gone through the file, perusal of the file reveals that while deciding the ejectment petition the learned trial court has given issuewise findings but inadvertently while deciding the issues No.2 and 3 the learned trial court has given the findings of issue no.3 at issue no.2 and in place of issue no.3 findings of issue no.2 were given which does not cause any prejudice to the respondent/appellant because thedetailed C.R.No.7483 of 2011 4 discussion on these two points has been given i.e. change of user and bona fide necessity by the learned trial court. It has also been established on the file that the appellant has changed the user of the demised shop without the consent of the landlord. According to the judgment of our own Punjab and Haryana High Court in Dhanpati Vs. Satish Kumar 1188 (1) Rent Controller Reporter 163 (P&H), wherein it has been held that in case of change of user, written consent oflandlord is required. The tenant cannot change the user on the ground that the landlord acquiesced. Similarly in Ram Chand Vs. Rattan Lal 2006 (11) CCC 617 (P&H), it is held that long user of changed business does not amount to written consent of landlord to avoid eviction under East Punjab Urban Rent Restriction Act. It has also been held by our own Punjab and Haryana High Court in judgment K.R.Verma Vs. RamSarup 2009 (2) Local Acts and Reports 04 that even the knowledge of the landlord of the change of user, may be even from the very inception of the tenancy, would not absolve the tenant for liability for eviction on that ground. Accordingly the respondent is held liable to eviction for change of user without written consent of the landlord. It has also been established on the file that the petitioner requires the demised shop for his own use as well as for his sons. It has also been proved on the file that his son getting training regarding sale of readymade as to open his business. The petitioner is to settle his son in his business and it has also been proved on the file that he has got no other such shop available to him. Moreover, it is held by our Hon'ble Punjab and Haryana High Court in the judgment Surinder Singh Vs. Dr.Davinder Mohan 2008 (4) CCC 178 (P&H) that the tenant is nobody to dictate his terms tot he landlord in the matter of bona fide requirement and only relevant factor showing bonafide requirement should be deciding factor. Even the financial capacity of a landlord to start business is irrelevant. It is also held by our own Punjab C.R.No.7483 of 2011 5 and Haryana High Court in Smt. Kiran Bala Vs. Smt.Amarjit Kaur and another 1991 (2)RCR 91 (P&H) that if landlord does not own any other premises, in such a case, question of bonafide requirement need not be gone into unless there are compelling reasons to disbelieve the landlord. Further in Krishan Lal & another Vs. Harvinder Singh and another 2005 (1) CCC 214 (P&H), it is held that there are sufficient provisions in the Act providing for re-occupation of the premises if landlord fails to utilize the shop if it is not occupied for his personal necessity. Accordingly, the bonafide necessity in this cas has been fully established that the petitioner/ respondent requires the demised shop for hisown use as well as for his sons for running the business of readymade”. Challenging the aforesaid orders of the authorities below, learned counsel for the petitioner has vehemently argued that both the Courts have erred in recording a finding that the petitioner has changed the user of the shop. Elaborating his argument further, learned counsel for the petitioner has argued that the evidence produced on record would reveal that change of user was done with the express consent and permission of the landlord and no objection was raised by Shri Amar Singh Rathore, father of the petitioner till his death which amounts to acquiescence and waiver on the part of the respondent landlord, and thus, findings on this issue are liable to be reversed in favour of the petitioner. Learned counsel for the petitioner has further submitted that the shop was never let out for tailoring business which was later on converted and named as “Punjabi Jutti Shop” and thereafter converted for running a PCO as alleged. It is submitted that there was no written rent note/documentary evidence in the instant case to show that the shop was let out for running a tailoring shop and in fact the petitioner had specifically denied the averments in this C.R.No.7483 of 2011 6 regard. It has been further argued by Shri Vikas Mohan Gupta, learned counsel appearing on behalf of the petitioner that both the authorities below have erred while returning a finding about the personal necessity of the landlord and his sons. According to him, the landlord had sought ejectment on the ground of personal necessity, alleging that his both sons were idle and same has been proved to be wrong. The petitioner/respondent and his sons have got established business and they have got many commercial properties within the municipal limits of khanna,whereas, the evidence adduced by the landlord reveals that there no necessity of the landlord and his sons but is a mere wish of the landlord to get the premises vacated, as all the witnesses produced by the landlord categorically stated that the respondent was running a business since the year 1970. Even both the sons of the respondent are running the same business and are well settled. The evidence in this regard has been totally ignored by the authorities below and thus the finding on the issue of personal necessity were also liable to be set aside. On the basis of the aforesaid averments, it has been argued that the impugned orders of eviction against the petitioner be set aside and the application filed by the respondent be dismissed. I have heard the learned counsel for the petitioner, perused the record as well as the averments made in the petition. Admittedly, in his pleadings the petitioner has taken a specific stand that for about four years he used the shop in question for the sale of shoes under the name and style of “Punjabi Jutti Shop” and thereafter he started the business of PCO/STD/Photostat and sale of mobile sims etc in the year 2000 with the consent and permission of Shri Amar Singh Rathore C.R.No.7483 of 2011 7 the father of the respondent. Thus, while admitting the change of user the petitioner had taken a categoric defence that the same had been done with the consent and permission of the landlord. Despite taking such a defence petitioner has failed to adduce any evidence on record to prove his aforesaid assertion. There is not an iota of evidence on record to prove such consent and permission of Amar Singh Rathore the father of the petitioner. In Dhanpati Vs. Satish Kumar 1188 (1) Rent Controler Reporter 163 (P&H), it has been held that in case of change of user, written consent of landlord is required and the tenant cannot change the user on the ground that the landlord acquiesced. In K.R.Verma Vs. Ram Sarup 2009 (2) Local Acts and Reports,04, it has been held that even the knowledge of the landlord of the change of user, may be even from the very inception of the tenancy, would not absolve the tenant for liability for eviction on that ground. Even long user of the changed business does not amount to consent of the landlord to avoid eviction under the East Punjab Urban Rent Restriction Act, 1949. In view of the aforesaid settled proposition of law and the fact that despite taking a defence petitioner has failed to prove the same, I find no merit in the argument raised and thus no fault can be found in the findings of the authorities below with regard to the change of user of the premises in dispute. There could not be any dispute with the proposition of law as settled by various judgments of the Hon'ble Supreme Court wherein it has been held that in a case of bona fide requirement the statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him, further such requirement C.R.No.7483 of 2011 8 must be bona fide which is intended to avoid the mere wish or desire. The bona fide requirement must be in praesenti and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire. However, it may be noticed that the petitioner has failed to adduce any evidence to show that the need of the respondent was not genuine or bona fide. Rather, there is ample evidence on record to show that the respondent required the demised shop for his own use as well as for use of his sons. It has come in the evidence that the petitioner is to settle his sons in business and has also been proved on file that he has got no other such shop available to him. Simply because they were doing tempo business does not mean that they were precluded from starting their own independent business. Law does not expect from the landlord to remain idle and to face starvation during the pendency of the petition. Further it is well settled that the tenant is no one to dictate his terms to the landlord in the matter of bona fide requirement with regard to suitability of the accommodation. Learned counsel for the petitioner has further submitted that the findings with regard to personal necessity are erroneous as the evidence on record is contrary to the pleaded case of the respondent. The argument raised is without any merit and is liable to be rejected. The respondent has pleaded in the ejectment application that shop in dispute is required for starting business of his sons. It has also come in evidence that they want to run their own business in the demised shop. Thus, the fact that the sons of the respondent were taking training in some other business or were doing some business will not disentitle them from doing their own business of any nature in the shop in dispute. C.R.No.7483 of 2011 9 Moreover, both the Courts below on appreciation of evidence have recorded a concurrent finding of fact with regard to the necessity of the respondent landlord. Thus, I find no merit in this petition and the same is dismissed. (Rakesh Kumar Garg) Judge December 5, 2011 rk