C.R. No. 6662 of 2008 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 6662 of 2008 (O&M) Date of Decision : 22.07.2010 Baldev Raj .......... Petitioner Versus Rita Thapar & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. N.S. Bawa, Advocate for the petitioner. Mr. Lokesh Sinhal, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This is tenant's revision petition against the order dated 20.10.2008, passed by the learned Appellate Authority, Ludhiana under the East Punjab Urban Rent Restriction Act (hereinafter referred to as “the Act”) ordering the eviction of the petitioner from the demised premises. The respondents are owner and landlord of shop in possession of the petitioner, where the petitioner is running a Karyana shop under the name and style of M/s Preety General Store , as a tenant on a monthly rent of Rs. 300/- (Rupees three hundred only). The respondents inherited the property from the previous owner i.e. Smt. Nirmla Devi being son and widow of pre-deceased C.R. No. 6662 of 2008 -2- ***** son. The eviction of the petitioner was sought on the ground, that the tenant neither paid nor tendered the arrears of rent @ Rs. 300/- (Rupees three hundred only) w.e.f. 1.7.2000, and further that he failed to pay the house tax @ 15% P.A. on the annual rental value. The second ground on which the eviction was sought was, that the shop in dispute was required by Jiwan Lal Thapar for his personal necessity, by pleading, that the shop in dispute had fallen to his share. He was earlier doing private service, and due to the old age had quit the job. It was also pleaded case of the landlord, that he wanted to run his own business of Karyana, in the demised premises along with his son, who was also not doing any work. In the petition a stand was taken, that there is no other suitable building within the urban limits of Ludhiana, nor they vacated any such building after the commencement of the Act. The petition was contested by the petitioner by raising a preliminary objection, that the petition filed was without any reason, as it was not bona fide. The petition was said to have been filed with mala fide intention to harass the petitioner with an ulterior motive to increase the rent from Rs. 150/- to Rs. 1,000/- per month. It was also the case of the tenant, that earlier petitions filed by the respondents / landlord were dismissed by the various Courts. The tenant / petitioner also denied his liability to pay house tax @ 15%. On merits, stand of the petitioner / tenant was that since the inception of the tenancy petitioner was paying rent @ Rs. 150/- per month, not Rs. 300/-, as demanded by the landlords. The stand C.R. No. 6662 of 2008 -3- ***** was taken, that it was the landlord who was not accepting the rent @ Rs. 150/- per month. It was also denied, that Sh. Jiwan Lal Thapar was to run his Karyana shop. The ground of personal necessity was thus denied. In the replication filed, the averments made in the petition were reiterated and those in the written statement were denied. On the pleadings of the parties, the learned Rent Controller framed the following issues :- “1. Whether the respondent is liable to be evicted from the demised premises as he has not paid arrears of rent w.e.f. 1.7.2000?OPP 1A. Whether the petitioner requires the above noted suit property for the personal use and necessity ?OPP 2. Whether the petitioner has no reason to file the present suit in the present fora?OPR 2A. Whether the rate of rent is Rs. 150/- per month included house tax ? OPR 3. Relief.” Issues No. 1 & 2-A were not pressed on behalf of the respondents / landlord, so both these issues were decided against the respondents / landlord. On issue No.1-A, the respondent / landlord examined PW1 Jiwan Lal, who reiterated the contents of the petition in his examination-in-chief. Whereas, on the other hand, the petitioner / tenant stepped into the witness box and supported the averments C.R. No. 6662 of 2008 -4- ***** made in the written statement. The stand taken was that the premises were not required by the respondents / landlord as son of the respondent / landlord was a skilled person having knowledge of embroidery and that the landlord himself was working in some dyeing factory. It was also pleaded that the landlord was in possession of other non-residential / commercial building adjoining to his shop in dispute. By way of documentary evidence Ex. R-1 i.e. judgment of the learned Rent Controller, Ludhiana was placed on record. The learned Rent Controller, on appreciation of evidence recorded a finding, that the stand of the landlord that the shop in dispute having fallen to his share in partition was not proved for the reason, that both the landlords had claimed themselves to be the joint owner of the adjoining shops, which falsified their pleadings. The reason for coming to this conclusion was, that in case the shop had fallen to the share of Jiwan Lal Thapar, then there was no occasion for Rita Thapar to have joined with him in filing the present petition. It was alleged, that the adjacent property was also jointly owned. Therefore, the claim of bona fide requirement was not proved. The learned Rent Controller also took note of the fact, that on earlier occasion rent petitions filed on the ground of non- payment of rent, and also building being in dilapidated condition, were not accepted. The learned Rent Controller came to the conclusion, that failure of Sh. Jiwan Lal Thapar to prove that he was C.R. No. 6662 of 2008 -5- ***** exclusive owner of the property was sufficient to negate his claim of personal necessity, being contrary to the pleadings. The learned Rent Controller, on appreciation of pleading and evidence came to the conclusion, that though the landlord is sole judge of his need, but reasonableness and necessity is required to be proved in terms of Section 13 of the Act. The learned Rent Controller, recorded a finding, that the evidence being not in consonance with their pleadings was sufficient to rejected the plea of personal necessity, and decided issue No. 1-A against the respondent / landlord. Issue No.2 was decided against the petitioner / tenant being not pressed. In view of the findings, referred to above, the rent petition was dismissed. The petitioner / tenant preferred an appeal before the learned Appellate Authority, where finding on issue No.1-A was only challenged. The learned Appellate Authority recorded a finding, that both the landlords filed a joint petition by stating therein, that they had partitioned the property by way of oral partition, and even if the partition was not given effect in the revenue record, the tenant had no right to challenge it, in view of the law laid down by this Court in the case of Ashwani Kumar Rana Vs. Balsharan Gautham and another 2005(1) PLR 389, and Roshan Lal Vs. Ved Parkash 2003 (2) PLR 97. C.R. No. 6662 of 2008 -6- ***** The learned Appellate Authority, therefore, came to the conclusion, that the petitioner tenant had no right to challenge the partition, which was admitted by both the landlords. In view of the fact, that the property in dispute had fallen to the share of Jiwan Lal Thapar, the learned Appellate Authority considered the bona fide need as pleaded and proved. The learned Appellate Authority recorded a finding, that if the landlord established, that he wanted to start a new business, and the premises was required for his personal use. His intention could not be held to be mere wish for the only reason, that he has no practical experience for doing a particular type of business. This finding was recorded by the learned appellate authority, in view of the law laid down by this Court, in the case of M/s Gonda Mal Kulwant Rai Vs. Satish Kumar 2007(2) PLR 240. The learned Appellate Authority also held by placing reliance on the judgment of this Court in the case of Charanjit Singh Vs. Shri Guru Ravi Dass High School 2007(2) PLR 554 , that it is for the landlord to choose one of the shop out of the two available to him for running his business. The learned Appellate Authority, in view of the law laid down, referred to above, reversed the finding of the learned Rent Controller on issue No.1-A. Mr. N.S. Bawa, learned counsel appearing on behalf of the petitioner / tenant challenged the findings of the learned Rent Controller, primarily on the ground, that as the respondent / landlord had not examined his son, therefore, the petition seeking eviction on C.R. No. 6662 of 2008 -7- ***** the ground of bona fide requirement, in view of the pleading, that the landlord was to associate his son in business, was liable to be dismissed. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of this Court in C.R. No. 1662 of 2007 titled Raghunandan Vs. Sukanya Sharma decided on 24.4.2008. In the judgment, on which reliance was placed, the landlord had sought eviction of the tenant for setting up business for his son, who had chosen not to appear in the witness box. It was in those circumstances, that this Court came to the conclusion, that non-examination of son for whom the property was sought, would lead to a conclusion, that the need for son was not properly established. This contention of the learned counsel for the petitioner deserves to be rejected straightway. The landlord in this case had sought eviction for his personal need, and not for the need of his son, who was merely to assist the landlord in running his business. It is not in dispute, that the landlord appeared in the witness box, and was subjected to cross-examination. The landlord was able to establish his bona fide need. The other contention raised by the learned counsel for the petitioner was, that there was other shop available with the landlord where a liquor vend was running. The contention of the learned counsel for the petitioner was, that during the pendency of this petition the said liquor vend was vacated, and thereafter the said C.R. No. 6662 of 2008 -8- ***** shop has been rented out to the new licencee, therefore, the judgment of the learned Appellate Authority can not be sustained. This plea of the learned counsel for the petitioner again can not be accepted. It was proved by the tenant, that under the family settlement the shop in dispute had come to his share in which he wanted to start the business. The tenant / petitioner failed to prove that the shop where the liquor vend is running was under the ownership or possession of Jiwan Lal Thapar, therefore, this contention being based on no evidence or pleading, can not be taken note of in the revision. Even if, for the sake of arguments, it is taken, that the shop where the liquor vend was being run had fallen vacant, still it could not be a ground to reject the plea of bona fide necessity, in view of the findings recorded by the learned Appellate Authority, that it is for the landlord to choose the premises to run his business, and it is not for the tenant to dictate as to from where the landlord should run his business. Needless further to mention that the running of liquor vend is in notified premises by the Excise Department, therefore, the shop is rented out to the licencee only. It is for this reason, that after the closure of the vend on expiry of excise year, new licencee has taken over the shop for running liquor vend. As stated above, the learned Appellate Authority has rightly held that it was not for the tenant to dictate the landlord as to from which premises he should run his business. C.R. No. 6662 of 2008 -9- ***** For the reasons stated, finding no merit, this revision is ordered to be dismissed. However, keeping in view the fact, that the petitioner is running his commercial business in the demised premises, he is granted three months' time to vacate the premises and hand over the vacant possession to the landlord. However, this shall be subject to payment of arrears of rent, and petitioner continuing to pay the rent in advance by 7th day of each month, during this period of three months. No merit. Dismissed. 22.07.2010 (VINOD K. SHARMA) 'sp' JUDGE