C.R. No.6463 of 2001 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.6463 of 2001 (O&M) Date of Decision: 21.05.2009 Surinder Kumar .......Petitioner Versus Rattan Lal ....Respondent Present: Mr. Amarjit Markan, Advocate for the petitioner. Mr. Ashok Aggarwal, Sr. Advocate with Mr. Alok Jain, Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K. KANNAN J. I. Scope: 1. The tenant, who was directed to be evicted on proof of the landlord of his personal requirement in respect of a Shop-cum-Flat No.84, Sector 26, Grain Market, Chandigarh, is the revision petitioner before this Court. II. Additional reasons as ground for personal requirement in appeal: 2. Before the Rent Controller, the landlord had complained that the tenant was guilty of unauthorized change of user of the building and that the tenant was guilty of non-payment of rent. He also had referred to the requirement of his son Sh. Rajesh Bindal for setting up his office. The petition had been dismissed and in appeal, the landlord sought to amend the petition by including additional reasons for the relief of the requirement of the premises for the personal need of the landlord. This amendment was introduced along C.R. No.6463 of 2001 (O&M) -2- with the appeal, stating that the petition had been prepared and sought to be filed before the Rent Controller but it was omitted to be done by oversight and therefore, the application for amendment should be considered. The tenant filed his counter but the Appellate Authority passed a detailed order permitting the amendment to be made by its order dated 05.12.1997. In his order, the Appellate Court had observed as follows:- “It is well established law that the party cannot be made to suffer for the negligence on the part of the counsel. Even if, this application would not have been there, it was a fit case to allow the appellant-landlord to lead his evidence. However, in my view the amendment sought being necessary to decide the controversy between the parties for all times to come and payment of cost being panacea for all ills, it is just and essential to allow the amendment sought for. However, the amendment is allowed subject to payment of Rs.2000/- as cost.” III. Mode of disposition by Appellate Authority: 3. It is a matter of record that cost had been paid by the petitioner as directed and the tenant received the cost with demur. Amendment was accordingly carried out and an additional counter was also filed. On the observation made by the Appellate Authority that it had no power to remit it to Rent Controller, allowed the parties to let in evidence on the additional ground, which was introduced by the amendment. Substantial evidence was placed before the Court by both parties letting in evidence both oral and documentary. The C.R. No.6463 of 2001 (O&M) -3- attempt of the landlord was to show that the property where a business was being run by the tenant was required for establishing the landlord's own business, which he was carrying on under the name and style of M/s Bindal Enterprises and that the residential portion that was attached to the shop was being required for the residential needs of the son of the landlord, Sh. Parmesh Bindal. The Appellate Authority found the bona fides of the need of the landlord as having been established and ordered eviction. IV. Principal contentions of tenant in revision: 4. Learned counsel, Sh. Amarjit Markan challenges the order passed by the Appellate Authority on the following grounds:- (i) The landlord's need was not bona fide and he had attempted earlier through a suit and other petitions for eviction and having failed in them, he has again resorted to present action for eviction. (ii) The property had been allotted for a commercial purpose and the landlord was barred from seeking for eviction that included a residential purpose also. (iii) One of the needs as previously set out in the petition was that the shop portion was required for establishing an office for his son, who was a practising lawyer and that need has also lost, as his son had become a Judge. (iv) The Appellate Authority ought not to have allowed the amendment and the evidence that was permitted to be given was introducing a wholly a new case, which ought not to have been permitted. C.R. No.6463 of 2001 (O&M) -4- V. Appraisal of relative merits of the case of landlord and tenant: 5. To each one of the lines of reasoning that he has adopted, there are predictably points and counter points raised by both counsel with reference to documentary evidence and propositions of law. Now to examination of the case in all its facets: (a) Effect of landlord's earlier attempts to secure eviction 6. In the tenant's perception, the bona fides of the landlord is tested by the fact that the landlord had been persistent in his endeavour to secure eviction on various grounds and each time meeting with failure, he did not feel daunted but came with new grounds. Learned counsel for the petitioner would state that initially landlord had filed a suit for eviction and there was also a decree passed in favour of the landlord. However, before the decree was put in execution, the East Punjab Urban Rent Restriction Act, 1949 was extended to Chandigarh and the Civil Court decree became inexecutable. The second round of litigation was when the landlord had filed a petition for eviction after the Act came into force and the petition had been allowed in favour of the landlord. The ground of eviction that was sought was again a plea of landlord's need for his son, who was a practising lawyer to establish his office and for the residence. The matter came up to revision to this Court in C.R. No.2451 of 1981 but the landlord withdrew the petition at the High Court and the civil revision was accordingly disposed of on 02.09.1981 in terms of the withdrawal of the petition by the landlord. The third attempt of the landlord was to apply for eviction on the C.R. No.6463 of 2001 (O&M) -5- ground of change of user by the tenant, who had obtained the property for sale of grains but he had started using the property for a different business of selling tea leaves. The petition was dismissed after contest on 01.11.1998 and the order had become final. The fourth round of litigation was when the landlord was sought for eviction on the same ground of change of user, non-payment of rent and the requirement of the premises for establishing the business of his son, who was a practising advocate and who was at the time of filing of the petition was residing in a rented premise and consequently, the property was necessary for using the shop for his office and the residential portion for his son's residential need. This personal need was subsequently modified as a need of the landlord's yet another son Parmesh Bindal at the Appellate Court. 7. Learned Senior Counsel appearing for the respondent, Sh. Ashok Aggarwal, Sr. Advocate explained that each round of litigation had its own justification and none of the litigations was ever an expression of mala fide attempt. On the other hand, according to him, the results of the litigations in all but one vindicated the landlord's stand. The first suit for eviction was decreed but it could not be executed by the change of law. The second petition for eviction was also allowed but at the revision stage, the petition had to be withdrawn by change of circumstances, since the eviction had been sought on the ground of the personal requirement of the father of the present landlord, who was then the landlord and he had died. There was a change in law by amendment to the East Punjab Urban Rent Restriction Act as applied to Chandigarh that the personal need of the C.R. No.6463 of 2001 (O&M) -6- landlord was not available in respect of non-residential premises. The grounds alleged at the time of filing of the petition were absolutely tenable and held to be so by the lower authorities. The third petition complaining of change of user was also true and even the Estate Officer, Chandigarh Administration took resumption proceedings but when the Rent Controller did not find it to be actionable, the landlord did not persist in challenging the order in further judicial tiers of the authorities. In the fourth petition that was filed on 30.04.1994, the issue whether a landlord could obtain eviction in respect of non- residential building also was held by the Hon'ble Supreme Court in Harbilas Rai Bansal Vs. State of Punjab AIR 1996 SC 857 that the amendment to the Rent Control Act excluding the non-residential premises for an action of the landlord for personal need by Amendment Act of 1956 to be ultra vires and violative of Article 14 and when the ground became available by a clear judgment rendered on 05.12.1995, the amendment to the pleadings also became possible. It was the repeal of the specific amendment made in the statute by the judicial pronouncement of the Hon'ble Supreme Court in Harbilas Rai Bansal Vs. State of Punjab (supra) that made possible for the landlord to seek eviction on a categorical premise pressing for the ground of personal requirement of a property that had been let for a commercial purpose. 8. Viewed in the above light, the institution of the petition after several rounds of litigation between the parties, by the landlord cannot be said to be mala fide and I would proceed to consider the case in its own merits without allowing the earlier institution of cases C.R. No.6463 of 2001 (O&M) -7- to colour the perception. (b) The need on behalf of the son for residential purpose as well as for business, considered 9. As regards the bona fides of the need as expressed by the landlord, learned counsel appearing for the petitioner would state that the plea was that the property was necessary for establishing their own business, which they were running in a rented premises and for the residential need of the son, Parmesh Bindal. Learned counsel for the tenant pointed out to the evidence of the landlord himself, who admitted in his evidence as PW-1 that the wife and son of his son, Parmesh Bindal were still living at Ambala. The wife was a teacher and the son was studying in a school. He pointed out to the fact that the family had not really shifted and it was only his son, who was alleged to have shifted to Chandigarh. He also referred to the evidence of PW-2, Parmesh Bindal, who had admitted that his other family members namely his wife and son had not shifted to Chandigarh. He was, however, fair to refer to the evidence of PW-2, a doctor, who had deposed to the effect that Sh. Parmesh Bindal, was suffering from some cervical problem and he was taking treatment at Chandigarh and that he required the specialized attention that was particularly available at Chandigarh. The evidence that the wife and son of Sh. Parmesh Bindal had not shifted from Ambala cannot, in my view, be held against the landlord's contention, since it was also in evidence that they would shift soon to Chandigarh, if eviction order is passed and the house become available. 10. Even apart from the evidence of the doctor about the medical attention that Sh. Parmesh Bindal needed, there was a whole C.R. No.6463 of 2001 (O&M) -8- wealth of evidence that had been placed by the landlord to bring home the imminent need for occupation of the premises. PW-1 was the landlord, who had rented out his own property to another son. PW-3 was the clerk of the Estate Office, who would produce the allotment letter in the name of Mukandi Lal and the subsequent transfer made under Ex.P4 in favour of his widow Bholi Devi. PW-4 was the Assistant in the Office of Excise and Taxation Department, who produced the summons of sales tax assessments issued in the name of firm M/s Bindal Enterprises. PW-5, Inspector, Food & Supplies proved that a ration card Ex.P7 had been issued in the name of Sh. Parmesh Bindal to show that the son had actually shifted to Chandigarh. PW-6, who was Inspector, Food & Supplies produced record Ex.P-8 to show that the ration card at Ambala had deleted his name. PW-7 proved that the telephone number had been installed in the name of Sh. Parmesh Bindal in his place of residence. PW-8, Inspector, Food & Supplies spoke that without having business premises, food licences would not be given to any such persons desiring to start business. This was just in case to prove that if he had no licence, it was only because he had no property of his own occupation. PW-9, a clerk at the office of the Estate Officer, HUDA proved that the property in the occupation of the landlord's son was a tenanted premises and that the property belonged to a person by name Smt. Sunita Kumari Chandan. PW-10 produced the building plan that the demised premises had been let for foodgrains business only. PW- 14 was the landlord in SCO No.78-79, Sector 17-C, Chandigarh where the business of M/s Bindal Enterprises was being carried on in Cabin C.R. No.6463 of 2001 (O&M) -9- No.8 at the top floor of the building. PW-11 to PW-13 were the father and sons, who spoke about their own personal needs. 11. Against this evidence, the respondent produced three witnesses. RW-1 was a person, who was doing a rice business in Shop No.83, Grain Market, Sector 26, Chandigarh and his evidence was to the effect that the premises were not fit for residential purpose or to establish a clinic or office for an advocate. RW-2 was the respondent himself, who stated his own case in defence and RW-3 was an advocate to say that one of the landlord's son, Sh. Rajesh Bindal had been allotted a house in a cooperative society to suggest that the need of one of the sons no longer subsisted. (c) Unimpeachable facts brought through evidence: 12. The conspectus of all the evidence, brought through witnesses bring out the following facts:- (i) That the shop-cum-flat premises is so used that a portion of the property is for a non-residential purpose while yet another portion is permittd to be for a residential purpose. (ii) That the son of the landlord, Sh. Parmesh Bindal had shifted to Chandigarh from Ambala while his family members have not, owing to non-availability to their own property at Chandigarh. (iii) That the son was carrying on business along with his father. The business and sales tax assessments had also been made. The business was being run in rented premises as also the residential premises, which the C.R. No.6463 of 2001 (O&M) -10- son was in occupation of. (iv) Yet another son, whose need was stated as existing at the time of filing of the petition no longer existed since he had been allotted his own house and still later by his ceasing to be an advocate and becoming a judge. 13. The son's need was not only for running of business but also for medical needs of obtaining treatment for a chronic ailment that he had. The demised property was for a commercial purpose and it was not exclusively a residential area. If the respondent's evidence had made any dent in the petitioner's requirement, it was only to the extent that it was even admitted on the side of the landlord that one of the sons, whose need was also set forth in the petition was no longer available by virtue of the change in his status and his own acquisition of another property. The evidence brought through RW-2 that the entire family of Sh. Parmesh Bindal had not shifted was also a matter, which had been admitted by the landlord hismelf and he had explained that he could shift his whole family only after the property was vacated. RW-1's evidence that the property was not fit for residential purpose was perhaps intended to state that the landlord was not entitled to seek the requirement of the premises for the residential requirements of his son. The last portion of the evidence referred to must be again seen in the context of how the landlord states that the property was necessary not merely for residential accommodation but also for running their own business, which they were presently running in rented premises. C.R. No.6463 of 2001 (O&M) -11- (d) The business needs of the landlord examined 14. The attempt of learned counsel for the petitioner to state that the business M/s Bindal Enterprises was itself sham and created for the purpose of the case was stoutly contested by Sh. Ashok Aggarwal, Senior Counsel for the respondent by pointing out that the requirement of a landlord to obtain eviction for a non- residential building was not available till the Hon'ble Supreme Court decided on 05.12.1995 striking down the amendment restricting the applicability of the landlord's requirement only for residential purposes but even before the date of judgment, which was rendered in December, 1995, the landlord had already commenced his business and obtained a certificate w.e.f. 31.07.1995. The fact that the landlord had obtained a certificate for commencement of business even when he knew, it might not be possible by the then existing law to obtain eviction of a non-residential building, only showed that the bona fides of the commencement of the business itself could not be challenged for, he could not have anticipated how the Hon'ble Supreme Court was going to decide or that the law was soon going to make it possible for a landlord to obtain eviction for the non-residential need of the landlord also. If the business, which is being run by the landlord cannot itself be said to be illusory but proved on documentary evidence that there was also a tax assessment for the same, it would only re-inforce the landlord's genuine need of the premises. (e) Non-residential building includes residential portion also, in a single tenancy/occupancy 15. The objection was also that the property was allotted only C.R. No.6463 of 2001 (O&M) -12- for a commercial purpose and the property could not be sought for any residential need of the landlord. So saying the learned counsel for the petitioner places his reliance on the order of allotment itself, which shows that the demised property was granted for a commercial purpose. The East Punjab Urban Rent Restriction Act as amended by Act 42 of 1982 defines a "non-residential building" under Section 2 (d) to mean: "(i) a building being used solely for the purpose of business or trade; (ii) a building let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence.........." The latter part of the definition makes it clear that the building, which is let out, if under single tenancy, the fact that the property is used both for non-residential purpose and also for the residential need shall be treated only as a non-residential building. 16. So viewed, if the demised property is used at the ground floor only for the business and the other floors of the building are used for residential purpose under a single tenancy, as in this case, the landlord could obtain it for a non-residential purpose, which would include not merely for the purpose of his business in one portion but also for the residential need for the portion that is used for residential purpose. The fact that the allotment was for a commercial purpose does not detract from the fact that such a purpose would include also the residential use of either the landlord or a tenant, so long as the shop premises are used only for the non-residential purpose. Learned counsel for the petitioner places reliance on the judgement of the C.R. No.6463 of 2001 (O&M) -13- Hon'ble Supreme Court in Shabir Ahmed Vs. Sham Lal AIR 2002 SC 1036 to bring home that an allotment of the property for a commercial purpose would only show that shop-cum-flat is only a non-residential building and a landlord cannot obtain eviction only for his residential needs. In this case, the landlord has sought eviction for running business which he was presently running in rented premises and also required it for residential need of his son. The landlord is, under the circumstrances, entitled to obtain eviction on the nature of user declared by him in the petition as stood amended at the Appellate Court. (f) Effect of acceptance of cost, while allowing amendment petition 17. The challenge to the amendment of the petition itself may not detain us longer for, although it is permissible for a person aggrieved about the interim order in an appeal to challenge in the very grounds of revision that the order passed in an interlocutory application was wrongly passed and also challenge the correctness of such order, in this case, the tenant has disentitled himself to make such a contention, in view of the fact that he had unreservedly received the cost as determined by the Court for allowing the amendment, participated in evidence and also adduced evidence on the amended pleading on his side. It was held in Ram Naresh Kanoo Vs. Sardar Harijashbir Singh AIR 1990 Cran 12 that a party who accepts costs awarded in a conditional order is precluded from attacking any portion of the order. Similar was the effect of the judgment in Akrura Bekra Vs. State of Orissa 2003 AIHC 2626: AIR 2003 NOC 523 which held that restoration costs if received by a C.R. No.6463 of 2001 (O&M) -14- party in a lower Court, the High Court shall not interfere with the correctness of the decision in revision. The tenant will, therefore, be estopped from contending that the application for amendment ought not to have been allowed. Even otherwise, the amendment itself became possible only by virute of a change in law by the decision of Hon'ble Supreme Court in Harbilas Rai Bansal's case and therefore, no exception could be taken by the Court allowing the petition. It had abundantly given reasons for such amendment which have been extracted elsewhere in this judgment. 18. Under the circumstances, the eviction order by the Appellate Court conforms to law and there is no scope for interference in revision. The revision is dismissed with costs assessed at Rs.5000/-. Time for eviction two months. (K. KANNAN) JUDGE May 21, 2009 Pankaj*