C.R No. 58 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 58 of 2008 Date of decision : February 29, 2008 Ashok Gupta & others, ...... Petitioners through Mr.Amarjit Markan, Advocate v. Avinash Chander Anand & others, ...... Respondents through Mr.M.L Sarin, Sr.Advocate with Mr.Vivek Sood, Advocate CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA *** 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 ? *** RAJIVE BHALLA,J Prayer in this revision petition is to set aside the order, dated 29.9.2007, passed by the Rent Controller, Jalandhar, allowing a petition, filed under Section 13-A of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 (for short herein after referred to as “the Act”) for the petitioners' ejectment. The landlady sought the petitioners' ejectment from House No.EJ-241, Chahar Bagh, Jalandhar on the ground that she is a specified landlord as defined in Section 2(hh) of the Act. She retired as a Lecturer from the Senior Secondary School, Civil Lines, Ludhiana and, therefore, requires the demised premises for her personal necessity. The Rent Controller, vide the impugned order, held that as the C.R No. 58 of 2008 ::2:: landlady has established the ingredients of Section 13-A of the Act, namely, that she retired from government service and requires the demised premises for her personal need, directed the petitioners' ejectment. On 25.1.2008, counsel for the petitioners made the following statement :- “ Counsel for the petitioner states that he gives up challenge to the order of ejectment and prays that sufficient time be granted to vacate the residential premises in his occupation.” It is, therefore, apparent that counsel for the petitioners gave up challenge to the order of ejectment and confined his prayer to the grant of sufficient time to vacate the demised premises in his occupation. On 11.2.2008, the petitioners prayed for time to file an appropriate affidavit/statement, in terms of the aforementioned statement. The order, dated 11.2.2008 reads as follows :- “ Counsel for the petitioner prays for time to file an appropriate affidavit/statement in terms of the order dated 25.1.2008. Adjourned to 22.2.2008.” On 22.2.2008, as the affidavit was not filed, the case was adjourned, at the request of counsel for the petitioners, to 29.2.2008. Counsel for the petitioners states that though petitioner No.1 is present in person, he expresses his inability to file an affidavit or make a statement, in terms of the order, dated 25.1.2008 and prays that the matter be decided on merits. As referred to herein above, counsel for the petitioners had C.R No. 58 of 2008 ::3:: apparently, on instructions from the petitioners, made a statement giving up challenge to the order of ejectment and prayed that sufficient time be granted to vacate the demised premises. The petitioners, therefore, cannot be permitted to retract from the statement/order, dated 25.1.2008, as also the order, dated 11.2.2008, and in the aforementioned circumstances, the present petition should be dismissed. However, at the request of counsel for the petitioners, I have heard arguments on merits. Admittedly, Ramesh Rani Anand, who unfortunately passed away during the pendency of the ejectment petition, retired from service on 28.2.1997 as Lecturer from the Government Girls Senior Secondary School, Civil Lines, Ludhiana. On 19.9.1996 i.e prior to her retirement, she filed an ejectment petition by invoking the provisions of Section 13-A of the Act and pleaded that as she had retired from government service and required the tenanted premises for her personal use and occupation, the petitioners be ejected from the tenanted premises. The petitioners, legal heirs of the original tenant Shri Mohan Lal Gupta, opposed the prayer for ejectment, inter alia on the ground that Ramesh Rani had not produced a certificate, as required under Section 13A of the Act and, therefore, was not entitled to any relief. It was further asserted that she had filed petitions for ejectment on several grounds including the ground of personal necessity, which were rejected. It was also averred in the written statement that the landlady had already taken surreptitious possession of the upper portion of the house by a request for temporary possession of the house to celebrate a `mundan' ceremony but failed to return the upper portion. Another ground, asserted in opposition to the prayer for ejectment, was that Ramesh Rani and her husband were C.R No. 58 of 2008 ::4:: residing in Ludhiana with their children and the alleged necessity to shift to Jalandhar, therefore, was a mere ruse to seek the petitioners' ejectment. Another ground, pressed into service, by the petitioners that as Ramesh Rani had passed away and as the respondents had not asserted their personal necessity, the ejectment petition is not maintainable. On the basis of the pleadings, the learned Rent Controller framed the following issues :- “1. Whether Ramesh Rani was specified land lady ? OPP 2. Whether the petitioner is entitled to ejectment of respondent for her personal requirement ? OPP 3. Whether the petitioner has concealed material facts, if so its effect ? OPR 4. Whether the petitioner has become infructuous after the death of petitioner ? OPR 5. Relief.” The learned Rent Controller has held that Ramesh Rani is a specified landlady. The plea of personal requirement was accepted and consequently ejectment of the petitioners was ordered. Counsel for the petitioners submits that Section 13A of the Act requires a landlord praying for ejectment on the plea of retirement from government service, to append a certificate from the authority competent indicating the date of retirement. The certificate, appended with the ejectment petition, has been signed by the Principal of the School, and not by the authority concerned. The other documents, namely, Ex.P12, Ex.P14 and Ex.P15 suffer from the same defect. It is, therefore, asserted that in the absence of a certificate, as referred to in Section 13A of the Act, the petition C.R No. 58 of 2008 ::5:: for ejectment is not maintainable. Another ground, urged by counsel for the petitioners, is that Ramesh Rani passed away on 8.7.2004. Her legal heirs, namely, respondents No.1 to 4 were brought on record but have failed to independently plead their personal necessity by amending the original ejectment petition. The learned Rent Controller should have, therefore, dismissed the ejectment petition. It is asserted that the respondents have miserably failed to establish, by cogent material or evidence, their personal necessity. It is, therefore, prayed that the present petition be allowed. Counsel for the respondents, however, asserts that the petitioners-tenants have not denied that Ramesh Rani was in government service or that she retired as a Lecturer from Government Senior Secondary School, Ludhiana on 28.2.1997. The documents, Ex.P2, Ex.P12, Ex.P14 and Ex.P15 clearly disclose her age of retirement and all necessary particulars as to her service. Thus, as the ingredients of Section 13-A(a) of the Act have been fulfilled, the learned Rent Controller rightly negatived the contentions, raised by the petitioners. It is further argued that the passing away of Ramesh Rani would not affect the pending case as the cause of action survives to her legal heirs and as rightly held by the learned Rent Controller, the proviso to Section 13A of the Act entitles the legal heirs of a person, who is passed away, but has filed an application claiming the benefit of Section 13A of the Act well in time to pursue the ejectment petition. As regards the personal necessity, it is asserted that the learned Rent Controller has recorded firm findings of fact that neither Ramesh Rani nor the respondents own any other property in Jalandhar and as the C.R No. 58 of 2008 ::6:: personal necessity has been successfully established, the present petition be dismissed with costs. I have heard counsel for the parties and perused the impugned order. The petitioners' contention regarding documents, Ex.P2, Ex.P12, Ex.P14 and Ex.P15, being insufficient to establish the ingredients of Section 13A(a) of the Act, merits rejection. The petitioners did not, at any stage of the proceedings, raise any objection, asserting that Ramesh Rani was not a government servant or had not retired from government service. The aforementioned documents, issued by the Principal of the School, the Education Department of the Punjab Government, and the Accountant General, Punjab, clearly establish the ingredients of Section 13A(a) of the Act. The contention that as Ramesh Rani had passed away, the right to seek ejectment, under Section 13A of the Act would, therefore, perish, disregards the proviso to Section 13A of the Act. Section 13A of the Act reads as follows :- “13-A Right to recover immediate possession of residential or scheduled building to accrue to certain persons.- Where a specified landlord at any time, with in one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller alongwith a certificate from the authority competent to remove him from service C.R No. 58 of 2008 ::7:: indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding any thing contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary, a right to recover immediately the possession of such residential building or scheduled building or any part or part of such building if it is let out in part or parts. Provided that in case of death of the specified landlord, the widow or widower of such specified landlord and in the case of death of such widow or widower, a child or a grand-child or a widowed daughter- in-law who was dependent upon such specified landlord at the time of his death shall be entitled to make an application under this Section to the Controller- a) In the case of death of such specified landlord, before the commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, within one year of such commencement ; b) In the case of death of such specified landlord, C.R No. 58 of 2008 ::8:: after such commencement, but before the date of his retirement, within one year of the date of his death; c) In the case of death of such specified landlord, after such commencement and the date of his retirement, with one year of the date of such retirement; and on the date of such application the right to recover the possession of the residential building or scheduled building, as the case may be, which belonged to such specified landlord at the time of his death shall accrue to the applicant; Provided further that nothing in this section shall be so construed as conferring a right, on any person to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof if it is let out in part or parts.” It is, therefore, apparent that Avinash Chander Anand, respondent No.1 was entitled to continue the ejectment petition under Section 13A of the Act, being the widower of Ramesh Rani. As regards the arguments, addressed against the personal necessity, the respondents have placed sufficient evidence on record to prove that the necessity pleaded is bona fide. Ramesh Rani and her husband were residing in Ludhiana and after her retirement, they wanted to settle down in Jalandhar, their home town. Respondent No.1, while deposing before the learned Rent Controller, clearly stated that he wanted to reside in Jalandhar as his family and friends were settled there. He also established that the portion, in possession, on the first floor was not habitable and even C.R No. 58 of 2008 ::9:: otherwise he could not climb upstairs on account of ill health. Avinash Chander Anand also deposed that he could not reside with his son at Ludhiana, as both his son and daughter-in-law were working and had no time for him. The landlord is the best judge of his requirement and till such time as the requirement pleaded is not mala fide or discloses a mere desire as distinguished from an element of a need, the necessity of the landlord and the bona fides thereof are required to be accepted. Before parting with the judgment and as noticed herein above, the conduct of the petitioners in first giving up challenge to the order of ejectment and thereafter refusing to file an affidavit is deprecated. The voluntary statement, made by counsel for the petitioners, on instructions, should have been honoured by the petitioners. As the respondents have successfully established the ingredients of personal necessity, as also the provisions of Section 13A of the Act, the present petition is dismissed with no order as to costs. ( RAJIVE BHALLA ) February 29, 2008. JUDGE `kk'