Civil Revision No.3353 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3353 of 2010 Date of decision 3.10.2011. Sunita Puri and others ...... Petitioners. versus Dr.J.L.Bassi and another ...... Respondents. CORAM :- HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. Naveen Sharma, Advocate and Mr. Vijay Lath, Advocate for the petitioners. Mr. Amit Rawal, Advocate for the respondent. K.C.PURI . J. The petitioners have directed the present revision petition against the order dated 6.1.2010 passed by Mrs. Harveen Bhardwaj, Civil Revision No.3353 of 2010 2 Appellate Authority ( Fast Track Court ), Ludhiana vide which the appeal preferred by the tenants/petitioners against the order dated 4.05.2005 passed by Shri K.K.Singla, PCS, Rent Controller, Ludhiana was dismissed. 2. The facts narrated in the eviction petition are that originally M/S. International Wollen Mills was the owner of the property in question consisting of five shops and the said property was sold through Sh. Shadi Lal son of Sh. Dhani Ram to the petitioners vide two sale deeds dated 1.7.1994 and 4.7.1994 in favour of the petitioners. Said Shadi Lal rented out the property in dispute to the respondent on 1.11.1992 by means of oral tenancy followed by delivery of vacant possession and memorandum was also executed on 11.12.1982. According to the oral terms it was settled that the tenancy shall pay a sum of Rs.275/- p.m. After the purchase of the property by the petitioners, they have become owners/landlords of the property in dispute and the respondent has become tenant. Therefore there is relationship of landlord and tenant between the parties. 3. It is further submitted by the petitioners that the respondent is liable to be ejected from the property in dispute on the grounds of non payment of rent w.e.f. 1.7.1994 and further the property in dispute is unfit and unsafe for human habitation and petitioners want to reconstruct the entire property after demolishing this construction. The property in dispute is also required by the petitioners for their own use as they want to start a nursing home after demolishing the present standing structure on the part of the property as the petitioners have purchased the suit property solely with the motive to construct a Nursing Home. The accommodation of the Civil Revision No.3353 of 2010 3 petitioners in House No.914/5 is extremely insufficient. The petitioner No.1 is using three rooms and open space for his private practice. The petitioners are requiring the demised for her personal use and occupation. 4. On put to notice, respondent appeared and filed written statement and took up preliminary objections that the petition for ejectment on the ground of personal necessity is not maintainable because the premises in dispute are commercial in nature and are being used as such by the respondent from the very inception of the tenancy. On merits, it has been alleged by the respondent that he has tendered the rent of the demised premises, therefore, the ground of non-payment of arrears of rent is not available to the petitioner/landlord. The respondent denied the factum that the demised premises is unfit and unsafe for human habitation and the construction is of third class. The landlords have mala fide intention and are trying to raise construction on the back of the tenancy premises in the basement and they can do any mischief with the tenancy premises by digging the foundations for basement in a manner that the foundation of the tenancy premises may be affected so as to succeed on this ground of unfit and unsafe. The respondent also denied the ground of personal necessity of the landlords and alleged that they are already occupying another building which is sufficient accommodation for their personal use. Denying other averments, respondent-tenant prayed for dismissal of the petition. 5. In the rejoinder, the petitioners have reiterated their version as averred in the petition and controverted the stand taken by the respondent in his written reply. Civil Revision No.3353 of 2010 4 6. From the pleadings of the parties, following issues were framed :- 1. Whether the petitioners require the demised premises bonafide for their own use and occupation ?OPA 3. Whether the demised premises have become unfit and unsafe for human habitation ? OPA 4. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The learned Rent Controller, Ludhaina after hearing the learned counsel for the parties and appraisal of the evidence available on the file, accepted the petition vide order dated 4.5.2004. 8. Feeling dissatisfied with the aforesaid order, the respondent- tenant preferred appeal against the order dated 4.5.2004. The Appellate Authority, Ludhiana after hearing the learned counsel for the parties and re- appraisal of the evidence, dismissed the appeal of the tenant/petitioner vide order dated 6.1.2010. 9. Feeling dissatisfied with the order dated 4.5.2005 passed by the Rent Controller, Ludhiana and order dated 6.1.2010 passed by the Appellate Authority, Ludhiana, the present revision petition has been filed by the tenants-petitioners before this Court. 10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 11. The eviction order in the present case has been passed on the following two grounds :- (i) that the building has become unfit for human habitation ; Civil Revision No.3353 of 2010 5 (ii) the landlord required the premises for bona fide personal necessity. 12. So far as the ground of eviction that building has become unfit for human habitation is concerned, the learned counsel for the respondents- landlords has stated at the Bar that he does not press this ground for eviction. So, the finding recorded by both the Courts below ordering eviction of the tenants from the demised premises on the ground of unfit and unsafe for human habitation, stands set aside. 13. The hotly contested ground for eviction in the present revision petition is in respect of bona fide personal necessity of landlord regarding which the concurrent finding of fact has been recorded in favour of the landlords. 14. Learned counsel for the revisionist has contended that landlords have purchased the plot measuring 280 square yards near the demised premises. Huge building, running into forty rooms, has cropped up in that land. The revisionist-petitioner is merely a tenant in small premises. The bona fide necessity of the landlord stands satisfied. Otherwise also, the landlord is required to plead the fact that the additional accommodation that has cropped up during the course of trial of eviction petition is insufficient for nursing home. The subsequent events which have come into existence during the pendency of the present petition be taken into account. 15. Learned counsel for the revisionist has further submitted that the case of the landlords is that they wanted to reconstruct the building after demolishing the shops in dispute. It is further submitted that one of the Civil Revision No.3353 of 2010 6 shops has been rented out to Roop Chand during the pendency of the present eviction petition. So, the plea of bona fide requirement of the premises stands disproved as the landlords have themselves leased out the said shop in the year 2004. 16. It is further submitted that ground of eviction for bona fide necessity for setting up a Nursing Home. Nursing Home is already in existence in the other building. Otherwise also, the grounds of eviction for setting up Nursing Home is not available to the landlords as the residential building cannot be vacated for the commercial purpose. The building as per Map meant for residential purposes. It is further submitted that the stand taken by the landlords in the petition is that after demolishing the present structure Nursing Home is to be set up. In the sanctioned plan there is no proposal for demolishing the shop in question. So, in these circumstances, the plea of bona fide personal necessity is not available to the petitioners. 17. It is further submitted that landlords have other buildings/lands which could be used for the purpose of setting up Nursing Home. According to the statement of the landlord, a plot is there near Shamsan Bhumi. The Nurshing Home can be set up there. It is only the bona fide necessity and not the desire, which is required to be proved for vacating the premises. 18. It is further submitted that during the pendency of present proceedings a shop has been got vacated. The plea of the landlord that passage is required for the Nursing Home could be fulfilled from that shop. 19. Learned counsel for the revisionist has relied upon the following authorities :- Civil Revision No.3353 of 2010 7 1. Deena Nath vs. Pooran Lal 2001(2) RCR page 130 ; 2. Radhey Shyam Rastogi vs. Ashish Kumar and Anr. 2008(2) RCR 419 ; 3. M.S.Bhatnagar vs. O.N.Aggarwal 1983(2) RCR 618 ; 4. Lekh Raj vs. Muni Lal & Ors 2001(2) RCJ 81 (SC) ; 5. Maqboolunnisa vs. Mohd.Saleha Quaraishi JT 1998 (9) SC 40 ; 6. Gulabbai vs. Nalin Narsi Vohra & Others 1991 HRR 427 ; 7. Hasmat Rai and another vs. Raghunath Prasad AIR 1981 Supreme Court page 1711 ; 8. Prabha Arora & Anr. vs. Brij Mohini Anand & Ors 2007(2) RCR 600 ; 9. Sadhu Ram Verma vs. Pawan Kumar 2006(2) RCR 95 ; 10. Attar Singh vs. Inder Kumar 1967 PLR page 83; 11. Parmeshwari Devi vs. Krishan Chander 2003 HRR 197 ; 12. Seshambal (dead) Through L.Rs. vs. M/s Chelur Corporation Chelur Building & Ors 2010 (1) RCR 230. 20. Learned counsel for the respondents has supported the order and judgment passed by both the Courts below and prayer for dismissal of the revision petition has been made. Learned counsel for the respondents has relied upon the following authorities in support of his contention :- 1. State of Punjab and another vs. Rajinder Jain and another 2010 (3) R.C.R.(Civil) 45 ; 2. Maganlal son of Kishanlal Godha vs. Nanasaheb son of Udhaorao Gadewar 2009(1) R.C.R.(Rent) 16 ; Civil Revision No.3353 of 2010 8 3. Atma S.Berar vs. Mukhtiar Singh 2003(1) R.C.R. (Rent) 42; 4. Uday Shankar Upadhyay and Ors vs. Naveen Maheshwari 2010(1) R.C.R. (Rent) 554 ; 5. Gaya Prasad vs. Pradeep Srivastava 2001(1) R.C.R. (Rent ) 221 ; 6. Ramesh Kumar vs. Kesho Ram 1992(1) RCR (Rent) 370 ; 7. South Eastern Roadways vs. Surender Mohan Ahuja and others 2010(1) R.C.R.(Rent) 436 ; 8. M/s Satpal Vijay Kumar vs. Sushil Kumar 2011(2) RCR (Civil) 82 ; 9. Kunhamma alias Lakshmi Ammas Children and another vs Akkali Purushothaman and others (2007) 11 Supreme Court Cases 181 ; 10. Shri Balbir Singhvs. Shri Adarsh Kumar 1989 P.L.R.S page 559 ; 11. Mahant Mela Ram Chela Mahant Inder Dass vs. Shiromani Gurudwara Parbandhak Committee, Amritsar, AIR 1992 Punjab and Haryana page 252 21. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case with their able assistance. 22. It is settled principles of law that landlord is the best judge in respect of his personal bona fide necessity of the demised premises. The tenant cannot dictate the terms. In the present case, there is concurrent finding of fact recorded by both the Courts below that demised premises is required for the landlords for their personal necessity and that the accommodation already in the possession of the landlord is not sufficient for setting up a Nursing Home. That being a finding of fact cannot be Civil Revision No.3353 of 2010 9 lightly interferred unless a strong circumstance is made out. 23. The main stress of the counsel for the petitioner is that in the adjoining plot measuring 280 square yards, the Nursing Home has come into existence and as such the necessity of the landlords have fulfilled. That argument looks attractive but is without any legal force. It is not disputed during the course of arguments that landlords are carrying on Nursing Home in the building where the demised shop is situated. It is also not disputed during the course of arguments that shop of the petitioner opens on main Ludhiana- Rajpura road whereas the building which has been cropped up during the pendency of the case is situated in the side street. It has also been admitted by the petitioner himself that so many Nursing Homes have cropped up on the Ludhiana-Rajpura road towards which his shop is situated. In this petition landlords want that their Nursing Home should be on the main road and not in the side street. Learned counsel for the petitioner has submitted that subsequent events which cropped up during the course of eviction petition should be considered. So all the facts which have cropped up during the pendency of the petition has to be considered, those may be in favour of the landlord or tenant. The case of the tenant is that five storied building has cropped up on the back side of the premises in dispute. The Court has to take into account the fact that during the pendency of the present proceedings Dr.J.L.Bassi has got retirement and has started Nursing Home in the portion of the demised premises. Two of his sons and a daughter have acquired the MBBS degree and his son has also acquired the post graduation. So, the need of the landlord has raised many fold during the pendency of the petition and that has to be considered. Civil Revision No.3353 of 2010 10 24. The submission made by the learned counsel for the revisionist that one shop has been rented out to Roop Lal is not borne out from the evidence available on the record. So, that being a concurrent finding of fact cannot be interferred in the revision petition. In one of the petition photographs of that shop has been shown in which BNH meaning thereby Bassi Nursing Home has been mentioned. So, even if one shop has been utilized as medical store that does not mean letting out the premises during the pendency of the revision petition. 25. The other limb of argument of the learned counsel for the revisionist is that in the area where the demised premises is situated is a residential area and as such the shop in dispute which cannot be got vacated on the ground of personal necessity for setting up Bassi Nursing Home. That argument looks attractive but is without any legal force. The shop in dispute was admittedly taken for commercial purpose and that fact is clear from the pleadings of the parties. Setting up of a Nursing Home is also a commercial purpose. The tenant during the course of his examination has not disputed that landlords are carrying on business of Nursing Home in the remaining portion of the building. Mere fact that one shop has been vacated during the course of present case does not make out a case that there is no bona fide necessity of the landlord. In the petition itself the landlord has pleaded that they wanted to demolish these three shops let out to three different tenants and wanted to open the Nursing Home towards main road Ludhiana-Rajpura road where these three shops are situated. By opening the doors towards main road would be beneficial for the business of nursing home of the landlords. Admittedly, the present opening is from the side Civil Revision No.3353 of 2010 11 street towards the remaining portion of the Bassi Nursing Home. 26. In case the landlord is using the residential portion for a commercial purposes the matter is between the Municipal Corporation and the landlords. Otherwise also from Annexure R-3 in petition No.3611 of 2009, it is clear that Municipal Corporation have the knowledge that the premises are being used for Nursing Home as the tax has been imposed on the operation threatre rooms, doors, Duty rooms, waiting rooms, nurse duty rooms etc. 27. The arguments submitted by the learned counsel for the petitioner that another plot owned by landlords situated near Shamshan Bhumi can be used for the purpose of setting up of Nursing Home. The stand of the landlords is that said plot is low lying area and is near the cremation ground and is not fit for setting up Nursing Home. The landlord is the best judge, to choose a place of the choice for setting up a Nursing Home. There are other Nursing Homes near the Nursing Home of the respondents. So, that locality has been rightly chosen by the landlords for setting up of Nursing Home. So far as the submission made by the learned counsel for the petitioner his bona fide personal necessity for setting up Nursing Home stands satisfied by raising construction in adjoining land is concerned that submission is without any substance. As discussed above, there are five independent doctors in the family and all of them would like to work independently. 28. A question was put to the tenant that landlord required the demised premises urgently as the building in his possession is extremely insufficient ? The reply to that question is that he does not know. Meaning Civil Revision No.3353 of 2010 12 thereby the bona fide personal necessity of the landlords has not been specifically denied and as such the same would be deemed to have been admitted. In the cross-examination, the tenant has admitted the fact that Dr.J.L.Bassi is running a clinic. He has further admitted that he is an Orthopaedics surgeon. Now he has retired from the job. The tenant has also admitted the fact that Dr.Sudarshan Bassi is M.D. Gynecologist and she was senior medical officer in PCMS and got retirement from that service. He has admitted in his cross-examination that Sobti Nursing Home and Tagore Hospital are on the main Ludhiana-Rajpura road where the demised premises is situated. So, in these circumstances, the landlords have been able to make out a case for bona fide personal necessity and that the accommodation in their possession is insufficient. The concurrent finding of fact recorded by both the Courts below regarding bona fide personal necessity cannot be interfered in the revision petition, more so when no ground is made out. 29. In authority Deena Nath's case (supra) it has been held by Hon'ble Apex Court that the High Court can interfere in the concurrent finding of fact if the statutory provisions are not complied by the Courts below. There is nothing on the file that statutory provisions have not been complied with by the both the Courts below. So, that authority does not come for the rescue of the petitioner-tenant. 30. In authority Radhey Shyam Rastogi's case (supra) the grounds of eviction was that the building has become unsafe and unfit for human habitation and in those circumstances, the Hon'ble Apex Court came to the conclusion that additional evidence can be allowed. Similar view was Civil Revision No.3353 of 2010 13 taken by this Court in authority M.S.Bhatnagar's case (supra) and by Hon'ble Apex Court in authority Lekh Raj's case (supra). However, in the present case, learned counsel for the petitioner/tenant does not press the ground of eviction that the demised premises is unsafe and unfit for human habitation. So, facts of the aforesaid cases are distinguishable. 31. The facts of authority Maqboolunnisa's case (supra) are distinguishable to the facts of the present case. The shop in that case was required for bona fide personal necessity but during the pendency of the case, adjoining shop 10' x 15' was vacated. The eviction was sought in that case from a shop measuring 4'x4'. The necessity was for setting up a shop and not for a Nursing Home. For a Nursing Home, large sufficient accommodation is required and as such the above said authority is also distinguishable. 32. In authority Gulabbai's case (supra), the Hon'ble Apex Court has held that subsequent event has to be taken into account. In the said case possession of spacious bungalow was obtained by the landlord. So, the facts of that case are distinguishable from the facts of the present case. 33. In authority Hasmat Rai and another's case (supra), it has been held that requirement pleaded by the landlord must not exist on the day of cause of action but must subsist till the final decree or order of eviction is made. In the present case during the pendency of the eviction, the need of bona fide of personal necessity has increased many times. So, the above said authority is also distinguishable. Similar view was taken in Civil Revision No.3353 of 2010 14 authority Prabha Arora & Anr.'s case (supra) by Hon'ble the Apex Court. 34. Authority Sadhu Ram Verma's case (supra) is also distinguishable as the adjoining plot was purchased after the filing of the petition. The subsequent construction raised by the landlord is insufficient as the appellant wanted to set up multiple specialty Hospital. So, the petitioner cannot have benefit of that authority. 35. Authority Attar Singh's case (supra) relates to increase of rent. There is no dispute regarding increase of rent in the present case. 36. In authority Parmeshwari Devi's case (supra) it has been held by this Court that commercial premises cannot be got vacated for residential purpose. There is no such dispute in the present case. The demised premises is commercial one and is required for commercial purpose. 37. In authority Seshambal (dead) Through L.Rs.' (supra), Hon'ble Apex Court has held that subsequent event should be taken into account and if the need does not exist the eviction on the ground of bona fide necessity cannot be made out. In the present case, the bona fide personal necessity has increased many times with the passage of time as discussed above. 38. In authority State of Punjab and another vs. Rajinder Jain and another's case (supra) the tenant contended that landlords had already second and third floor of the building in their possession and this Court held that all floors are bona fide required by the landlord for running his business. So, the facts of that case are distinguishable from the facts of the Civil Revision No.3353 of 2010 15 present case. 39. In authority Maganlal son of Kishanlal Godha's case (supra) it has been held that bona fide requirement has to be seen on the date of petition. Subsequent events can be taken into consideration for moulding the relief which has material impact on those rights and obligations. 40. In authority Atma S.Berar's case (supra) the bona fide necessity of the landlord was upheld. It has been further held in this ruling that subsequent events in favour of the landlord has also to be considered. 41. Hon'ble the Apex Court in authority Uday Shankar Upadhyay and Ors' case (supra), it has been further held that Court cannot dictate to the landlord to shift business on upper floor. Shop and business are usually conducted on the ground-floor because customers can reach there easily. So, in these circumstances, subsequent construction on some portion of the adjoining land, does not debar the landlord to claim the possession on the basis of the bona fide personal necessity. 42. In authority Gaya Prasad's case (supra) Hon'ble Apex Court has held that subsequent events in respect of need of landlord, should be considered. 43. In authority Ramesh Kumar's case (supra) it has been held where there is addition in the family in that case bona fide personal necessity of the additional member can be looked into. 44. In authority South Eastern Roadways, the bona fide requirement of the landlord was upheld. 45. In authority M/s Satpal Vijay Kumar's case (supra), this Civil Revision No.3353 of 2010 16 Court in recent authority held that if the landlord required the premises to expand his business, his need must be presumed as bona fide and no contrary conclusion can be drawn. 46. In authority Kunhamma alias