C.R.No.2320 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.2320 of 2011 Date of decision:26.7.2011 Dr.N.K.Singla ...Petitioner vs Dharam Pal Uppal ....Respondent CORAM: MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Arun Jain, SeniorAdvocate, with Mr.Amit Jain, Advocate, for the petitioner. Mr.Kanwaljit Singh, Senior Advocate, with Mr.Sidharth Gupta, Advocate, for the respondent. -- Rakesh Kumar Garg,J. By way of instant revision petition, the petitioner-tenant has challenged the impugned order dated 31.5.2010 whereby his eviction has been ordered from the demised premises on the ground of personal necessity of the landlord and the order dated 8.2.2011 whereby his appeal against the aforesaid eviction order has been dismissed by the Appellate Authority, Chandigarh. Brief facts out of which the instant revision petition has arisen are that the respondent who is the landlord inducted the petitioner as tenant in the premises at a monthly rent of Rs.3100/- excluding water and electricity charges. The respondent landlord filed ejectment application seeking eviction of the petitioner from the demised premises on the ground of non payment of rent and that the premises in question are required by the landlord for his personal use and occupation. Eviction was also sought on the ground that petitioner has changed the user of the premises. It is relevant to note that while pleading the need of the C.R.No.2320 of 2011 2 respondent it was also averred that the respondent was living in Ludhiana with his son, daughter-in-law and their family but relations between him and his daughter-in-law and son have deteriorated. The respondent was unable to live in such hostile environment in an atmosphere where his living has become suffocating with frequent insults and humiliations. Thus, the petitioner was living under great tension and restlessness which factors have disturbed his peace of mind and tranquility in his old age and in such circumstances, he does not want to live at Ludhiana and wants to shift to Chandigarh in his own house which was in occupation of the petitioner. Upon notice petitioner filed written statement, raised various preliminary objections such as ; the present petition was not maintainable as the respondent has not approached the Court with clean hands,;uptodate rent stood paid. Landlord had earlier filed a rent petition which stood disposed of and thus the present petition amounts to res judicata. It was also averred that the respondent landlord was estopped by his own act and conduct to file the present petition by raising a new ground of deterioration of relationship between him, his son and daughter-in-law as the alleged ground was already in existence at the time of filing of earlier petition for ejectment. It was averred that the petitioner was a statutory tenant after his retirement on 31.8.2005 as thereafter he started imparting consultancy at the house in question. Hence, the said building has become a scheduled building as provided under the East Punjab Urban Rent Restriction Act, and the respondent cannot take benefit of the present petition and the same deserves to be dismissed. A counter-claim was also set up by the petitioner claiming that he was entitled to a sum of Rs.200/- per month which he had paid towards C.R.No.2320 of 2011 3 the expenses borne by the society on account of maintenance of area and deployment of security personnel, which the respondent landlord was liable to pay. It was denied that the relationship between the landlord and his daughter in law and son have deteriorated. It was further averred that the respondent was leading a happy life and enjoying the company of his son, daughter in law and grand children. It was only a wish of the petitioner to stay in Chandigarh and he does not need the demised premises. Thus, dismissal of the petition was prayed for. From the pleadings of the parties, the following issues were framed:- 1. Whether the respondent is in arrears of rent ?OPP 2. Whether the premises in question is required to the petitioner for personal use and occupation ?OPA 3. Whether the present petition is barred by the principle of res judicata ?OPR 4. Relief. Vide order dated 3.11.2009 the following additional issues were also framed:- 3(a). Whether the respondent has changed the user of the premises ?OPP 3(b). Whether the petitioner is estopped from his own act and conduct to file the present petition by raising a new ground of his deteriorated relations between him and his son and daughter in law ?OPR 3(c). Whether the respondent has become a statutory tenant in the absence of any written agreement ?OPR 3(d). Whether the building in question has become a scheduled building as provided under the Act ? OPR Parties led evidence in support of their respective case. After hearing the learned counsel for the parties and considering C.R.No.2320 of 2011 4 the evidence on record, the Rent Controller decided the issue of non payment of rent against the respondent-landlord further holding that petitioner-tenant was not entitled to any counter claim. Under issue No.2, it was held that respondent-landlord required the premises in question for his personal use and occupation and his need was sincere, honest and bona fide. It was further held that petition was not barred by the principles of res judicata. Issues No. 3(b),3(c) and 3(d) were also decided against the tenant. Issue No.3(a) although stood deleted but was wrongly decided in favour of the petitioner. Thus, in view of the findings recorded on issue No.2 the petition for ejectment was allowed. Feeling aggrieved from the aforesaid order of the Rent Controller dated 31.5.2010, tenant petitioner approached the Appellate Authority by filing an appeal which was also dismissed vide impugned order dated 8.2.2011 and petitioner was granted two month's time to hand over the vacant possession of the premises in dispute to the respondent-landlord. At the outset it may also be noticed that the findings on issue No.1 were not challenged by the parties before the Appellate Authority. Appellate Authority also noticed that the decision of the Rent Controller on issue No.3(a) against the landlord was of no consequence as the same stood already deleted in pursuance of the orders passed by this Court in a revision petition and the only issue challenged before the Appellate Authority was whether the demised premises are required by the landlord for his personal necessity and bona fide need. Even before this Court the findings of the Courts below have been challenged only on issue No.2, and no other point has been argued by the counsel for the petitioner. Shri Arun Jain, learned Senior Counsel appearing on behalf of C.R.No.2320 of 2011 5 the tenant petitioner has vehemently argued that the Courts below have completely misled the averments made by the respondent in the ejectment petition and also the evidence on record which has resulted into material irregularity causing great injustice and hardship to the petitioner. According to the learned counsel for the petitioner the alleged need as projected by the respondent is false and baseless. The facts clearly establish that the landlord had filed the petition with a mala fide intention only to get the premises vacated and the respondent has failed to prove that the need as set up in the petition was bona fide and genuine. Learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case of T.Sivasubramaniam v. Kasinath Pujari, 1999(2) RCR 236, and has argued that where the landlord is not showing compelling reasons to live separately it cannot be said that the need of the landlord was bona fide. Learned counsel for the petitioner has argued that desire is not substitute of need and the landlord was not entitled to evict a tenant on mere desire and in the present case landlord has failed to set out his need and establish that such a need was bona fide. Elaborating further his argument, learned counsel for the petitioner has referred to the cross examination of the respondent-landlord extensively wherein the respondent landlord has admitted that his son was the exclusive owner of a three storeyed house at Ludhiana and the said house was in their occupation and enough accommodation was available there. Shri Arun Jain, learned Senior counsel has further referred to the statement of the respondent in the cross examination which reads as under:- “....... I have never told about the behaviour of my daughter in law to any of my relative at any point of time. There is no C.R.No.2320 of 2011 6 dispute otherwise with me (volunteered). We are not fighting with sticks.....” xx xx xx “ I and my son had gone to Australia together as son of my daughter was unwell and was to be operated (later part volunteered). The relations have been deteriorated for last ¾ years. Prior to that we have good relations with each other. My daughter in law goes to hospital from 8.30 to 5.00 p.m. My son runs private practice also as a consultant. It is a three storey house at Ludhiana. The entire house is in our occupation. On the ground floor there is a clinic and on the Ist and Iind floor we live together. There are three bed rooms on the Ist floor and two on the top floor. We all live on the Ist floor and the second floor is kept for guest as well as for the children to study....” On the basis of the aforesaid evidence, it has been argued that the respondent-landlord who is aged about 80 years is residing comfortably with his son and daughter in law at Ludhiana in a three storeyed house which has more than enough accommodation and that there was no dispute and that there was no dispute of the respondent with his daughter in law and the respondent has cordial relations with his daughter in law and son as they had gone together at Australia. The need to set up by the respondent is a cooked up story to get the house vacated. Learned counsel also referred to the fact that earlier in the year 2003 the respondent-landlord has filed ejectment suit against the petitioner in which ground of personal necessity was not set up. It was further argued that admittedly relationship of the respondent with his son and daughter in law were good. Learned counsel has also referred to the statements of RW2 and RW3 and the suggestions put to the respondent landlord in his cross examination to submit that in fact the respondent landlord wanted to sell the house in question keeping in C.R.No.2320 of 2011 7 view the high rates and the need of the respondent was not bona fide and therefore, the impugned judgments are liable to be set aside. Learned counsel for the petitioner has further argued that no reliance can be placed on the statement of PW2 to support the case of the respondent as from his statement it is clearly established that he has been introduced by the respondent landlord as even he was not knowing the name of the school and the age of the children of the son of the respondent landlord. On the other hand, Shri Kanwaljit Singh, learned Senior Counsel appearing on behalf of the respondent landlord has vehemently argued that the question “whether respondent landlord needs the demised premises for his bona fide need” is essentially a question of fact. Both the Courts below have recorded a finding of fact in favour of the respondent- landlord on the basis of appreciation of evidence and the revisional jurisdiction of this Court is not like that of a Appellate Court to re-appraise the evidence for coming to a different finding recorded by the Courts below and thus the present revision petition is liable to be dismissed. Not only this, he has also argued that the argument raised by the learned counsel for the petitioner is misconceived as the statement of the respondent landlord is to be read as a whole and not in piecemeal as relied upon by the learned counsel for the petitioner. Counsel for the respondent has referred to the other parts of the statement of the respondent wherein he has clearly stated that he was not getting proper respect from his daughter in law and she does not care for him, her behaviour is hostile and her non showing of respect was quite disgusting. Learned counsel for the respondent has further referred to a part of the statement of the respondent wherein he has explained the reasons for going to Australia together with his son i.e. C.R.No.2320 of 2011 8 because son of his daughter was to be operated upon. Lastly, it has prayed for dismissal of the present revision petition. I have heard the learned counsel for the parties and perused the impugned orders and the other documents placed on record of the case. From the perusal of the averments made in the rent petition, as culled out in the impugned orders, the respondent landlord has set up his personal need submitting that he is a pensioner and is in a good health. He is the owner and landlord of the demised premises. At present he is residing with his son and daughter in law and his relations with his son and daughter in law have deteriorated in the last 3-4 years and he was unable to live in such type of environment where the atmosphere of the house has become suffocating because of frequent humiliations and that he was living under a great tension which had disturbed his peace of mind and tranquility and in these circumstances he does not want to live at Ludhiana with his son and daughter in law and has decided to shift in his own house at Chandigarh. The aforesaid averments, as made out in the rent petition, have been denied by the petitioner saying that the relations between the respondent and his daughter in law are cordial and he is leading a happy and peaceful life and enjoying the company of his son, daughter in law and grand children and there was no personal necessity of the respondent. To prove the aforesaid issue, respondent-landlord has stepped into witness box and in his statement, he has clearly and extensively stated that his relations with his son and daughter in law have deteriorated for the last 3-4 years and prior to that he was having good relations. It is not a case where the respondent landlord is seeking eviction of the petitioner on the ground that C.R.No.2320 of 2011 9 accommodation with his son at Ludhiana is insufficient but it is a case where the respondent-landlord has come out clearly that he is not getting proper respect from his daughter in law who does not care for him and her behaviour is hostile and and not showing of respect by her was quite disgusting. To my mind a person of 80 years of age who has led a peaceful and good life throughout as a teacher cannot state more about his deteriorated relationship with his daughter in law then stated. Simply because he has not told about the behaviour of his daughter in law to any of his relations at any point of time or that while making statement he has stated that there is no dispute otherwise with her is not enough to challenge the testimony of the respondent landlord. Every respectable man would not like to wash his dirty linen in public. When put to suggestions he has clearly stated that we are not fighting with sticks and there is no dispute otherwise with him but non showing of respect is quite disgusting. The respondent has further explained his visit to Australia in the company of his son as the same was required because of surgery of his daughter's son. It is a matter of common knowledge that in this part of the country in case of any such calamity people forget such disputes for the time being and join hands to face together such danger to the life and limb of their dear ones. Not only this, the respondent was serving as Lecturer throughout his life and he is having a good health and if he wants to live in peace and away from suffocating atmosphere, it cannot be said that it is a mere wish and not the need. Even PW2 has clearly stated in his statement that the respondent-landlord quarrels with his son and daughter in law and he was servant in the said house and he used to play with the children. Simply C.R.No.2320 of 2011 10 because the servant who is an illiterate person could not tell the age or the class where they were studying in the school will not label him as an untrustworthy witness. There is no evidence on record to suggest that the respondent even wanted to sell the house after getting it vacated There is nothing wrong if at any point of time he had thought of disposing of his property but could not succeed keeping in view the suffocating atmosphere in the house of his son and daughter in law, he has every right to make up his mind to stay in Chandigarh. This is not a case where it can be said that the findings of the Courts below are based upon no evidence and therefore the interference is warranted by this Court. It is well settled that under its revisional power High Court is not required to interfere with the findings merely because on the basis of the evidence on record the other view is possible. There is no dispute with the proposition of law as canvassed by the petitioner on the basis of the judgment in T.Sivasubramaniam's case (supra) but in the present case from the evidence on record, as discussed the need of the respondent landlord is clearly demonstrated and it is not his mere wish. For the reasons recorded above, I find no merit in this petition and the same is dismissed. (Rakesh Kumar Garg) Judge July 26, 2011 rk