Civil Revision No.2177 of 2008 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2177 of 2008 Date of Decision:-November 27,2009 Mohinder Kaur ...Petitioner Versus Balwinder Kumar ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Argued by: S/Shri Sanjeev Sharma & Hoshiar Singh, Advocates for the petitioner. Mr.Naresh Kaushik, Advocate for the respondent. Mehinder Singh Sullar, J. (Oral) The matrix of the facts culminating in the commencement, relevant for disposal, of instant revision petition and emanating from the record, is that originally, petitioner-Mohinder Kaur widow of Joginder Singh-landlady (hereinafter to be referred as “the landlady”) filed a petition, invoking the provisions of section 13 of the East Punjab Rent Restriction Act, 1949) (for short “the Act”) for the ejectment of respondent Balwinder Kumar son of Bihari Lal-tenant (for brevity “the tenant”) from the demised premises on the grounds of non payment of rent and bonafide necessity. The case set up by the landlady was that the tenant is in arrears of rent of the premises in dispute since 1.6.2002 at the rate of rent of Rs.1100/- per month without any sufficient cause. It was claimed that she is residing in her house situated on the back side of the demised premises and there is stair case which is on the western Civil Revision No.2177 of 2008 2 side of the disputed premises to go to the first floor of her residential house. She is an old lady, suffering from various diseases and she has also suffered attack of paralysis. It is difficult for her to up and down the stairs to go to the residential house. The three feet street which is on the northern side of her house is very narrow one. The landlady wants to use the premises in dispute for ingress and outgress to her house. There is a door on the northern wall of the premises in dispute which opens in her residential portion. She wants to add the premises in dispute in the residential portion, so that the main gate of her house be opened in Bazar Khurd. The need of landlady for premises in dispute is stated to be her basic need. The case of the landlady further proceeds that on the eastern side of the premises in dispute there is her other premises/shop which was on rent and the other tenant vacated it recently. Baljinderpal Singh one of her son is residing with her. The marriage of her grandson Manmit Singh was going to take place within 1/2 month. The fiancee would be wife of Manmit Singh is an architect. Manmit Singh has to do the work of Construction Contractor and he has to open his office in the premises which is on the eastern side of the premises in dispute alongwith his wife who has to run the work of architect. The residential house of the landlady is on the back side of the premises in dispute. It was also claimed that from the street of back side the car owned by the family of the landlady cannot enter. The premises in dispute can also be used for the purpose of parking of car owned by her family. The width of Bazar Khurd is 13 feet. There is no other property and accommodation in her possession except the premises Civil Revision No.2177 of 2008 3 in dispute from where she can make arrangement for ingress and outgress to her house more effectively. The landlady can use the premises in dispute for ingress and out-gress to her by installing a main gate towards Bazar Khurd and joined the same with her residential accommodation. The tenant has not been doing any commercial activity in the premises in dispute, rather he is using the same as godown for store purpose. Thus, the premises in dispute is bonafidely required by her for her own use and occupation. According to the landlady, she repeatedly asked the tenant to pay the arrears of rent and vacate the premises, but in vain despite legal notice, which necessitated her to file the ejectment petition against him. On the basis of aforesaid grounds of non- payment of rent and personal necessity, the landlady sought to eject the tenant, in the manner indicated here-in-above. The tenant contested the petition and filed the written statement, inter-alia pleading certain preliminary objections of, maintainability of petition, estoppel and conduct of the landlady. However, the relationship of landlady and tenant between the parties was admitted. The case pleaded by the tenant, in brief, in so far as relevant, was that the shop in dispute was taken on rent by his father late Bihari Lal in the year 1988 from late Joginder Singh, husband of the landlady, on a monthly rent of Rs.40/- and Joginder Singh had taken Rs.20,000/- as security amount, which was refundable. Neither there was any written rent note, nor late Joginder Singh ever issued any receipt for the amount of rent and security money of Rs.20,000/-. Ultimately, the rent was stated to have been increased from Rs.40/- to Rs.50/-, Rs.50/- to Rs.60/- and lastly Rs.60/- to Rs.70/- per month Civil Revision No.2177 of 2008 4 in the year 2003 and the landlady had been receiving the rent regularly at the rate of Rs.70/- per month from the tenant without issuing any receipt. He has denied the rate of rent of Rs.1100/- per month, as claimed by the landlady. As regards the bonafide need of the landlady, it was claimed by the tenant that she does not require the disputed shop for her personal use, rather this ground has been taken malafidely in order to evict him. The grounds of ejectment now pleaded were not stated to have been mentioned in the legal notice dated 12.4.2005. It was also admitted that another shop of landlady on eastern side of the disputed shop was vacated by the tenant and she had occupied the same. The tenant denied (for want of knowledge) that Baljinder Pal Singh her son and Manmit Singh her grandson, are residing with her. However, it was specifically admitted by the tenant that residential house of the landlady, is on the back side of the shop in dispute and there is a stair case on the eastern side to go to first floor of the house from the side of Bazar Khurd. There is also a street on the back side of Bazar Khurd and there is a stair case to go to the house of landlady through the stairs in that street. The need of the landlady was stated to be not bonafide and the tenant termed it as malafide. It will not be out of place to mention here that the tenant has stoutly denied all other allegations contained in the ejectment petition and prayed for its dismissal. In the wake of pleadings of the parties, the Rent Controller framed the following issues vide order dated 10.4.2006:- 1. Whether the respondent is in arrears of rent since 1.6.2002 at the rate of Rs.1100/- per Civil Revision No.2177 of 2008 5 month ?OPA 2. Whether the petitioner requires the premises in dispute for her own occupation?OPA 3. Relief. The landlady in order to substantiate her grounds of eviction, examined her son AW1 Baljinderpal Singh, AW2 Arjun Khanna, Draftsman, AW3 Harjit Singh, AW4 Balraj Kumar, AW5 Harpreet Singh, AW6 Balwant Rai and AW7 Manmeet Singh in oral evidence, who have filed their affidavits Ex.AW1/A to Ex.AW7/A respectively. The landlady has also brought on record copy of special power of attorney Ex.A1, site plan Ex.A2, copy of rent note Ex.A3 and copy of register Ex.A4, in documentary evidence. The tenant Balwinder Kumar, in order to rebut the oral as well as documentary evidence brought on record by the landlady, appeared himself as his own witness as RW1. He has also examined RW2 Surjit Singh, RW3 Rajinder Kumar, RW4 Kabal Singh and RW5 Kala Ram in oral evidence, who have filed their affidavits Ex.RW2/A to Ex.RW5/A respectively. He has also produced on record copy of legal notice Ex.R1, copy of reply to legal notice Ex.R2, copy of order of Rent Controller Ex.R3, electricity bills Ex.R4 to R48 and copy of assessment register Ex.R49, in documentary evidence. The Rent Controller while deciding issue No.1 in favour of tenant held that the rate of rent of the shop in dispute was Rs.70/- and not Rs.1100/- per month as claimed by the landlady and as he has already tendered the rent, therefore, the ground of non-payment of rent, was not available to the landlady. However, issue No.2 pertaining to personal necessity was decided in favour of the Civil Revision No.2177 of 2008 6 landlady. On ultimate analysis of evidence on record, the Rent Controller accepted the ejectment petition on the ground of bonafide requirement and directed the tenant to hand over vacant possession of the shop in dispute to the landlady within three months, vide order dated 12.2.2007. Aggrieved by the order of the Rent Controller, the tenant has filed an appeal, while the landlady has also filed cross-objections with regard to the rate of rent determined by the Rent Controller. However, Appellate Authority allowed the appeal of the tenant, whereas the cross objections filed by the landlady were dismissed, vide impugned order dated 17.12.2007. The landlady did not feel satisfied with the impugned order of the Appellate Authority and filed the present petition. That is how I am seized of the matter. At the very outset, it may be mentioned here that during the course of argument, learned counsel for the landlady did not challenge the finding on issue No.1 pertaining to rate of rent and has only challenged the finding of Appellate Authority in regard to personal necessity. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable help and after bestowal of thoughts over the entire matter, to my mind, as the impugned order of the appellate authority cannot legally be sustained, therefore, the instant revision petition deserves to be accepted, for the reasons mentioned here-in-below. As indicated earlier, the Rent Controller held that the need/requirement of the landlady was bonafide and accepted the Civil Revision No.2177 of 2008 7 ejectment petition on that count vide order dated 12.2.2007, the operative part of which is as under:- “In view of above discussion, it is proved on record that the landlady is more than 80 years old and remained ill due to her old age as well as due to paralysis attack she is not in a position to up and down the stairs and further at the fag end of her life she wants to convert the commercial shop into residential portion for parking her car and since it is settled proposition of law that the landlord can use his property in a way he likes and since she wants to convert it for parking of the car by converting the same into residential portion which is otherwise about on the Bazar having a width of 13 feet, hence this court constrained to hold that the need of the petitioner is certainly bonafide. Consequently, findings of this issue are rendered in favour of the petitioner against the respondent.” But the Appellate Authority has reversed the order of the Rent Controller, vide impugned order dated 17.12.2007 on the following grounds:- I. First of all there is no evidence if the landlady/petitioner is in fact permanently residing in the said house. II. Even assuming for the sake of argument that her contention of her residence on the northern side of the demised premises, is taken to be true, she has Civil Revision No.2177 of 2008 8 not adduced even an iota of evidence with regard to her age, her illness or the inability to climb the stairs The landlord/petitioner has placed on record copies of the medical certificates issued by some doctors of Ludhiana, Sunder Nagar (Himachal Pradesh) and some slips of diagnostic centers but all these documents have not been legally proved rather these are simply marked documents and as per settled principle of law these marked documents are not to be considered. The doctors who have issued these slips have not been examined. There is no evidence in the shape of any document if the landlord/petitioner is 80 years old and is suffering from various diseases. There is no documentary evidence with regard to inability of the landlord/petitioner to climb the stairs. III. Again assuming for the sake of arguments that the landlord/petitioner is residing on the northern part of the demised premises there is no evidence if she does not have any residential accommodation on the ground floor and she has to go upstairs for her residence. The site plan of the house on the northern part of the demised premises is not proved on record. Moreover, in case she has accommodation on the ground floor of the house of the northern part of the demised premises, she has no occasion or necessity to climb up stairs and in Civil Revision No.2177 of 2008 9 that eventuality also the necessity so alleged by the landlord/petitioner cannot be termed as genuine.” Having regard to the rival contentions of learned counsel for the parties, here to me, the Appellate Authority has fell in grave error and overlooked the evidence on record. In this context, it may be added here that the landlady has, inter-alia, specifically pleaded in the ejectment petition that the premises in dispute is required by her bonafidely. Her son Baljinder Pal Singh is residing with her. Her residential house is situated on the back side of the premises in dispute. There is a stair case on the western side of her house and on account of her old age and illness, it is difficult for her to up and down the stairs to go to her residential house. This fact has been specifically admitted by the tenant, in his written statement, wherein he has pleaded that the residential house of the landlady is situated on the back side of the shop in dispute and there is a stair case on the western side to go to first floor of the house from the side of Bazar Khurd. There are stairs to go to first floor of the house of the landlady. Not only that, the landlady has specifically pleaded and tenant admitted in his written statement, the factum of her residence situated on the back side of the premises in dispute, even the tenant has categorically admitted the same in the evidence as well. In his cross-examination dated 16.11.2006, the tenant has also admitted that there are stairs towards the western side of the premises in dispute which go towards the residential portion of the landlady. Baljinderpal Singh, son of the landlady, is also residing with her and Civil Revision No.2177 of 2008 10 there is a door inside the premises in dispute, which is lying locked towards her residential portion. There is no way to go to her residential portion from the other shop, which was earlier on rent with the tailor. Moreover, the tenant has neither pleaded, nor there is any whisper in evidence that the landlady is residing some where else, except in the house in question. It means, there is a clear admission in pleadings and evidence of the tenant with regard to the residence of the landlady. In that eventuality, neither there was any occasion nor the landlady was legally required to produce any document in the shape of ration card and identity card of Election Commission, as observed by the Appellate Authority, in view of categoric admission of the tenant. Now adverting to the second ground on which the Appellate Authority has non-suited the landlady that there is no evidence on record to show that she is 80 years of age and suffering from various diseases. In this regard, sequelly, Rajinder Kumar RW3 and Kabal Singh RW4 have admitted the age of the landlady as 80 years. The landlady has produced sufficient evidence in this respect. Reference may be made to the affidavits Ex.AW1/A of Baljinderpal Singh AW1, Ex.AW3/A of Harjit Singh AW3 and Ex.AW5/A of Harprit Singh AW5, wherein it has been depicted that residential house of the landlady is situated on the back side of the premises in dispute. The landlady is an old lady and suffering from various diseases including the attack of paralysis. Even no specific suggestion has been put on behalf of the tenant to any of the witnesses produced on behalf of the landlady that either she is not residing in the house in question, which is situated on the backside of the premises in Civil Revision No.2177 of 2008 11 dispute or that she is residing else where or she was not 80 years of age and that not suffering from illness. Meaning thereby, the tenant has admitted the statements of these witnesses in that regard. Moreover, the landlady has produced on record the medical prescriptions including OPD slips (mark A to D) from the Government Dispensary, but the same have been outrightly ignored by the Appellate Authority by taking a very hyper technical view of the matter that the doctors, who issued those slips, have not been examined. It has been specifically mentioned in the Special Power of Attorney Ex.A1 that her son was 55 years of age at the time of its execution, which also corroborates that landlady is an old in age. Above all, Rajinder Singh RW3, who is none else but real elder brother of the tenant, has clearly admitted that the landlady is more than 80 years of age. Likewise, other witness RW4 Kabal Singh produced by the tenant has also so admitted that the landlady is aged about 75/80 years. Thus, it would be seen, even it is admitted in the evidence of the tenant that the landlady was more than 80 years of age. It is no body's case either in pleadings or emanating from evidence that there is residential accommodation on the ground floor as observed by the Appellate Authority. The Appellate Authority just ignored the position/location of the house depicted in the site plan Ex.A2 proved by AW2 Arjun Khanna draftsman. Thus, to my mind, if the entire oral as well as documentary evidence brought on record by the parties coupled with the admission in pleadings and evidence of the tenant and his witnesses, as discussed here-in-above, are put together, then to me, no one can escape in recording an irresistible conclusion that it Civil Revision No.2177 of 2008 12 stands proved on the record that the landlady is residing in the house in question which is situated on the backside of the disputed shop alongwith her son, that she was more than 80 years of age and is suffering from variety of ailments. I fail to understand as to from where the Appellate Authority has made out a new case of its own which is no body's case in this respect. Hence, the contrary findings recorded by the Appellate Authority, are against the record, deserve to be and are hereby reversed. Consequently, it is held that the landlady is aged 80 years, suffering from various diseases and is residing with her son in her residential house situated at the back side of the demised premises and she requires the demised premises to ingress and outgress her residential house in this miserable old age of her life. Faced with the situation, the vehement argument of learned counsel for the tenant that it is not proved on record that Manmit Singh, grand son of the landlady is married and residing with her and thus the need of the landlady is not bonafide, therefore, her ejectment petition was liable to be and rightly dismissed by the Appellate Authority, is again not only devoid of merit, but misplaced as well, because the bare perusal of the evidence on record would reveal, rather, admitted by the tenant that residential house of the landlady is situated on the back side of the premises in dispute. There is a stair case which is on the eastern side of the disputed property to go to the first floor of her house. The exact position and location of the house of the landlady and the premises in dispute, corroborating her bonafide requirement, is depicted in the site plan Ex.A2 prepared and proved by Arjun Khanna AW2. Civil Revision No.2177 of 2008 13 Likewise, the mere fact that Manmit Singh her grandson or his wife have not started the business of construction/architect, that registration certificate of car No.PB-07M-1717 has not been produced on record and that Baljinderpal Singh, son of landlady, has started his business in another shop vacated by another tenant, therefore, her bonafide requirement vanished, as urged on behalf of the tenant, cannot possibly be accepted, because the main ground emerging out of the pleadings and evidence on record of the landlady is that as she is an old lady of 80 years and suffering from many diseases, therefore, it is not possible for her to climb up and down the stair case through first floor to reach her residential house. It has come in evidence that there is a door in between the residential house and demised premises, which is lying locked. The marriage of her grand son or start of business by her grand daughter-in-law are ancillary and has got on direct bearing on the personal requirement of the landlady. Her main ground for personal necessity is her own bonafide need. It does not remain a matter of dispute, rather established on record that the landlady is 80 years of age and suffering from many diseases. Therefore, it would not be possible for her in this miserable part of her old age (which itself is a disease) to first climb up stair case to reach first floor then to climb down the stair case to reach her residential house. Thus, she bonafidely requires the demised premises for ingress and outgress to her residential house rest things are ancillary in this regard. Above all, it is now well settled proposition of law that the landlord is best judge in regard to his bonafide need.If she considers that the existing accommodation is insufficient and she required Civil Revision No.2177 of 2008 14 better and more accommodation, such need has to be seen from the angle of the landlady and not from the view point of the tenant. The opinion of the tenant cannot be imported in it. Reliance in this connection can be placed on the judgments of this Court in Dr.Hukam Chand Dhawan Vs. State of Punjab 1997 (1) RCR 652 and M/s Bajaj Associates and others Vs. Vinod Kumar and others (2009-1) PLR 443. Likewise, such a need of landlord was held to be bonafide by this Court in Sarjivan Kumar Vs. Raj Rani 2005 (1) RLR 609 and M/s Bhandari General Store and another Vs. Makhan Singh Grewal 2006 (1) RLR 532. The observations in these judgments are the complete answer to the problem in hand. Otherwise also, learned counsel for the tenant has utterly failed to urge as to how and in what manner, the requirement of an old landlady is not genuine. To me, the Rent Controller has appreciated the evidence on record in a right perspective by adopting a pragmatic approach in accepting the ejectment petition and ordered the ejectment of the tenant vide well reasoned order dated 12.2.2007, but the Appellate Authority has set aside the same without any basis, just ignored the evidence on record, and made out a new case in favour of the tenant, as discussed here-in-above, which is neither here nor there. The findings of Appellate Authority are totally against the evidence on record and the admission of the tenant. The Appellate Authority has jumped into its own speculative conclusions which cannot legally be maintained. Therefore, the impugned order of Appellate Authority suffers from legal infirmity, grave irregularity and patent illegality, which