Civil Revision No. 5758 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5758 of 2011(O&M) Date of Decision: 14.10.2011 *** Suresh Kumar .. Petitioner VS. Ramesh Kumar & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the petitioner. Mr. Tushant Deep Garg, Advocate for the caveator-respondents. *** ARVIND KUMAR, J. Notice of motion. Mr. Tushant Deep Garg, Advocate accepts notice on behalf of respondents. Both the Courts below, pursuant to a petition filed under Section 13 of the East Punjab Urban Rent Restriction Act, by the respondents, have ordered the eviction of the petitioner-tenant from the shop in question, on the ground of their personal necessity thereof. It is apparent from the records that Birbal Dass was the land- lord of the shop in dispute and Ramesh Kumar, his son, jointly filed the petition. A plea regarding non-maintainability of the eviction petition was raised on the ground that Birbal Dass was of unsound mind and Ramesh Kumar never filed the petition in the capacity of his guardian and hence, the petitioner on his behalf was not maintainable. The learned appellate Court below dealt with this aspect of the matter and observed as under:- “19. Now, coming to the argument with regard to Civil Revision No. 5758 of 2011 2 non appointment of the guardian of Sh. Birbal Dass. In the written statement filed on 13.2.2001, the tenant had taken the plea that Birbal Dass is insane and of unsound mind but no plea was taken if he was not properly represented or the rent petition is bad for non appointment of his guardian. However, in the replication which was submitted on 20.2.2001, the landlord has denied if Sh. Birbal Dass is insane or is of unsound mind. However, it is admitted that he is of weak mind. Thus, initially no plea was taken that application is bad for non joining of Birbal Dass. 20. On 17.11.2000, tenant moved an application that Birbal Dass is of unsound mind and as such application filed on his behalf without his guardian is not maintainable. However, on 19.12.2000, Sh. ID Khanna, counsel for applicant suffered statement that respondent No.1 Ramesh Kumar be appointed as guardian of respondent no.2. In pursuance thereof, learned Rent Controller, passed following order on 19.12.2000: Present:- Counsel for the parties. Vide separate statement Sh. ID Khanna, Advocate, counsel for the applicant stated that he may be allowed to array the applicant No.1 as guardian of the applicant No.2 who is stated to be un-sounded mind. In view of the statement application dated 7.11.2000 stands disposed of accordingly. For filing of amended head note to come up for 23.12.2000. Thus, Ramesh Kumar was appointed as next friend of Birbal Das, said application dated 7.11.2000 was disposed of and Rent Controller has sought amended head note of the petition and in pursuance thereof Civil Revision No. 5758 of 2011 3 amended head note of the petition was filed. Thereafter, written statement was filed on 13.2.2001 wherein no objection was taken that Birbal Dass is not properly represented by next friend. The Hon'ble Delhi High Court in case GL Kapoor V. Ramesh Chander AIR 1973 Delhi 129 has held that where proceedings for eviction has been initiated in the name of a person with an unsound mind without any next friend and the opposite party does not raise any objection about it under this rule, he would not be allowed to raise the contention about it in appeal. In the case in hand the tenant continued in the proceedings, they led evidence and thereafter did not agitate the matter. Apart from it, their application for dismissal of the rent application for non impleading proper person/ next friend stands disposed of by learned Rent Controller, Patiala vide order dated 19.12.2000 and no revision was filed. Thus, respondent No.1 Ramesh Kumar was appointed as guardian of respondent No.2. 21. Apart from it, vide order dated 19.11.2000 Ramesh Kumar was appointed next friend of respondent No.2 Birbal Dass and the irregularity if any stands removed.” That apart, it is apparent that though the petitioner denied the existence of landlord-tenant relationship between them and Ramesh Kumar, but the rent deed (Ex.P1) produced on record was found bearing the signatures of the original tenants Tarsem Chand, Jagdish Chand (predecessor-in-interest of the petitioner) and Devi Dayal and not only this Tarsem Chand, aforesaid while appearing into witness box admitted the execution of the rent deed as also the payment of rent to respondent Ramesh Kumar. The landlord Ramesh Kumar, by leading cogent and convincing evidence, proved that he is in bonafide need of the shop in dispute for starting the business. No doubt, it has come on record that the landlord Civil Revision No. 5758 of 2011 4 Ramesh was having one another shop, but at the same time it cannot be forgotten that a tenant cannot dictate to the landlord as to in which shop he has to run his business, rather it is the sweet will of the landlord to make a choice between the nature of the business to be carried out and where. The findings arrived at by the Courts below are neither illegal nor perverse and it cannot be said that the same are based on no evidence. The instant petition, being without any merit, is accordingly dismissed. (ARVIND KUMAR) October 14,2011 JUDGE Jiten