CR No.2021 of 2010 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CR No.2021 of 2010 (O&M) Date of decision: 20.4.2011 ***** Vishal Garg . . . . .Petitioner Vs. Kanwaljit Kaur and others . . . . Respondents ***** CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN ***** Present: - Mr.M.L. Sarin, Sr. Advocate, with Ms.Hemani Sarin, Advocate, for the petitioner. Mr.Anuj Raura, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. One of the tenants Vishal Garg is in revision against the orders of eviction passed by the Courts below in respect of SCF No.12, Sector 20D, Chandigarh on the ground of personal need of the landlords. In brief, landlord Pavittar Singh filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) in order to seek eviction of his tenants from the demised premises on the ground of personal necessity and non-payment of rent. It was alleged that Sunder Singh father of Pavittar Singh had purchased the demised premises from one Jagat Ram under whom he was the tenant. Earlier Sunder Singh had filed Civil Suit No.324 of 1969 against late Sham Sunder (tenant) in which the proceedings were stayed on 6.5.1971 on account of an application filed by Sham Sunder that there is an Arbitration clause in the agreement, however, the said order was set aside in appeal on 14.7.1972 and the proceedings continued for eviction in which Sham Sunder tendered the rent w.e.f. 1.1.1985 to 30.6.1987 @ `275/- per month. Unfortunately Sunder Singh expired on 14.5.1993 and it is alleged that since June 1993 the rent was not paid by Sham Sunder. It is also alleged that from the year 1992 CR No.2021 of 2010 - 2 - Pavittar Singh along with his family had settled at Manipur where he was carrying on business but due to disturbed law and order condition and terrorism, he was threatened repeatedly by outlaw outfits for ransom and even caused bomb blast at his showroom, therefore, he shifted with his family to Delhi but now in order to earn his livelihood, he wanted to shift his business to Chandigarh for which he required the demised premises. Pavittar Singh also alleged that he is a heart patient and having his regular treatment from Escort Heart Institute and Research Centre, New Delhi and since his heart is only functioning to the extent of 15% and is unable to undergo bye-pass surgery, therefore, it was alleged that he cannot live in Delhi, which is a highly polluted city. With these assertions, eviction was sought alleging that they have a house at Chandigarh, which is sought to be got evicted and he wanted to shift his business to the demised premises. He also alleged that he has a son, who is ultimately to be supported by him as he is dependent upon him for the purpose of accommodation. In the written statement, it was alleged by the tenants that need of the landlord is not bona fide as he wanted to dispose of the demised premises after it is got vacated. The landlord possessing good heath and is having business at both the places in Manipur and Delhi. It was denied that Manipur is disturbed area and they are getting constant threats to their lives. After pleadings were over, the learned Rent Controller framed the following issues: “1. Whether the tender made by the respondent is short and invalid? If so its effect? OPP 2. Whether the ejectment petition is not maintainable? OPR 3. Whether this Court has no jurisdiction to entertain any try and present ejectment petition? OPR 4. Whether the petitioner is estopped by his own act and conduct to file the present petition? OPR CR No.2021 of 2010 - 3 - 4A. Whether the respondents are liable to be ejected on the ground of personal necessity? OPP 5. Relief.” Thereafter, landlord Pavittar Singh started his evidence and in pursuance thereof he tendered his affidavit Ex.PW1/A in his examination- in-chief on 14.10.03 in which he alleged “that the deponent states that he has a son who ultimately to be supported by him. Son too is dependent upon him for the purpose of his settlement in the life. The son too is to run the business. The SCF in question would be the most appropriate building for the deponent to start his business after shifting the same to Chandigarh. Thus, besides there being honest need to occupy the premises, the same would be useful and beneficial to the deponent as well in order to run a good business”. Landlord Pavittar Singh was cross-examined on 6.4.2004 thereafter, he died on 2.10.2004. After his death, present respondents filed an application under Order 22 Rule 3 of Code of Civil Procedure, 1908 (for short ‘CPC’) which was allowed. Thereafter, an application was filed by the tenants for dismissal of the eviction petition on the ground that after the death of Pavittar Singh cause of action to file the eviction petition ceased to exist and right to sue does not survive to his legal heirs but the said application was dismissed on 25.7.2006. In order to prove their case, widow of Pavittar Singh namely, Kanwaljit Kaur had also appeared as PW3, who had stated that she wanted to settle her son Navneet Singh. She also alleged that besides the demised premises they do not have any commercial property and have not vacated any such building in the urban area of Chandigarh. It was alleged that the demised premises is required for their personal use and occupation even after the death of Pavittar Singh as she and her son would manage all affairs of the business to maintain the family. Both the Courts below allowed the application for eviction. The learned Appellate Court recorded the following findings: “In the instant case, it is the case of landlord that earlier he started his business at Manipur somewhere in the CR No.2021 of 2010 - 4 - year 1967 but due to disturbed conditions of law and order in Manipur, spread of terrorism in that State, a bomb was blasted on the showroom of landlords running in the name and style M/s Bh.Sunder Singh & Sons at Manipur where the landlord was carrying on business of electronics goods; three being a threat to his life, therefore, he was forced to close the business at Manipur and shifted to Delhi but conditions of Manipur have not been normalized even at the time of filing rent eviction application and in order to earn livelihood landlord Sh. Pavittar Singh wanted to shift to Chandigarh, however, he had died during the pendency of the eviction application. After death of Sh. Pavittar Singh his LRs have been impleaded by learned Rent Controller and they had continued the rent eviction application and asserted that they themselves require the demise premises for their own needs. His widow Smt. Kanwaljit Kaur stepped into the witness box as PW- 3. She has categorically stated that due to terrorism in Manipur they were forced to close their business and they shifted to Delhi. She has categorically stated that after the death of her husband neither she nor her children want to return to Manipur and she is unable to maintain the business at Manipur due to terrorism. The landlord placed on record Ex.P-13 first Information report dated 9.9.1992 under Section 307, 326, 427 IPC read with Section 2 of the Explosive Substances Act and under Terrorists and Disruptive Activities. This application was lodged by Smt. Kanwaljit Kaur with regard to placing & blasting of bomb in the ship injuring various persons. She also produced Ex.P-14 copy of the letter received by M/s Bh. Sunder Singh and sons from the terrorist outfit namely Revolutionary CR No.2021 of 2010 - 5 - People Front vide which `2.00 lacs has been demanded from M/s Bhai Sunder Singh & Sons and Ex.P-15 is another letter written by Peoples Republic of Nagaland on 15.4.96 vide which `30,000/- were illegally and forcibly demanded from the landlord. She also produced the newspaper item Ex.P-16 with regard to time bomb series blasts. This further supports here case. Ex.P-17 is the letter for Government of Manipur issued to Director General of Police Manipur, Imphal for providing security to life and property of Sh. Pavittar Singh partner of M/s Bhai Sunder Singh & Sons from terrorists organizations. Ex.P-18 is the letter dated 25.1.2001 written by Pavittar Singh to the Minister of State for Home Affairs, Govt. of India, New Delhi for providing him security at Manipur. Ex.P-19 to Ex.P-20 are the confidential letters written by Sh. Pavittar Singh to Commissioner Home, Government of Manipur, Imphal wherein it is specifically mentioned that a powerful bomb blast in his shop on 9.9.1992 and is is constrained to stay away from Manipur by the terrorists. Ex.P-20 is also a confidential letter written by Sh.Pavittar Singh on 17.4.2000 to Commissioner (Home) Govt. of Manipur, Imphal with regard to immediate threat to his life and property. All these facts have established that Pavittar Singh and his family members were given threats by terrorist in Manipur, Imphal and due to these circumstances he was forced to close his business. Now coming to the argument of appellant that after the death of Sh. Pavittar Singh the personal necessity as set out in the eviction application comes to an end. This Court has considered this contention but it is without foundation. IN the rent eviction application it is CR No.2021 of 2010 - 6 - specifically mentioned that landlord Pavittar Singh requires the demised premises to start business being experienced in that business and has the financial sources. It is also asserted that he has a son, who is ultimately to be supported by the landlord, being his son dependent upon him for the purpose of accommodation. He submitted his affidavit Ex.PW1/A wherein it is categorically stated that his son is dependent upon him for the purpose of his settlement in his business and his son had to run the business also. PW-3 Smt. Kanwaljit Kaur has also asserted this fact and has asserted that her son Navneet Singh will run the business along with her. Thus after the death of Pavittar Singh the necessity of the landlady and her son has been existed and it continued till date. Thus, it is held that need of Smt. Kanwaljit Kaur and her son is genuine, immediate and bonafide. “ In order to assail the order of eviction passed by the Courts below, learned counsel for the petitioner has submitted that the subsequent events are to be seen by the Rent Controller and if there is any changed circumstances with the death of Pavittar Singh then his Legal Representatives should have sought amendment of the eviction petition to incorporate their own requirement and for that matter it is argued that the judgment of the Appellate Court may be set aside and matter may be remanded back for the purpose of amendment so that the legal heirs of landlord Pavittar Singh may set up their own case which may be decided ultimately in accordance with law. In support of his submissions, he has relied upon decision in the cases of “Raj Kumar Vij Vs. Hem Raj Singla” 2008(1) PLR 618, “Kedar Nath Agrawal (Dead) and Anr. Vs. Dhanraji Devi (dead) by LRs. and Anr.” 2004(9) SC 113, “Mohd. Ismail Vs. Dinkar Vinayakrao Dorlikar” 2009(2) Rent Control Reporter 481, “Gurdev Singh Vs. Surjit Kumar @ Jit & Anr.” 1996 (4) Supreme 316, “Chander Shekhar Vs. Bishan Devi through LRs” 2009(1) Rent Control Reporter CR No.2021 of 2010 - 7 - 386, “Seshambal (dead) through LRs Vs. M/s Chelur Corporation Chelur Building & Ors.” 2010(1) Rent Control Reporter 230. In reply, learned counsel for the respondents has submitted that it is not a case where the landlord himself had not set up a case for the requirement of his son at the time when eviction petition was filed, therefore, after the death of Pavittar Singh, this case is not required to be remanded back for the purpose of seeking amendment of the eviction petition as according to him the crucial date for deciding the bona fide requirement is the date on which the eviction petition is filed. In support of his submission, he has relied upon decisions of this Court in the case of “K.R. Chopra Vs. Smt. Manjit Inder Kaur” 2003(3) PLR 37, “Hari Ram Vs. Madho Ram” 2002(1) PLR 152 and “Gaya Prasad Vs. Pradeep Srivastava” AIR 2001 Supreme Court 803. He also submitted that even if all the ingredients are not pleaded by the landlord but the evidence has been led then the eviction petition cannot be termed to be defective for the purpose of its dismissal for which he has relied upon “Daulat Ram son of Harnam Mal Aggarwal Vs. Girdhari Lal son of Kira Mal Aggarwal”, 1980 PLR 182 “Ramesh Vs. Mukand Lal” 1982(2) RCR (Rent) 66, “M/s British Motor Car Company Pvt. Ltd. Vs. Sewak Sabha Charitable Trust (Regd.)” 2003(3) PLR 195, “Baldev Raj Vs. Ram Lal” 2006(3) PLR 91, “M/s Bhatia Cloth House Vs. Dr. Raj Kumar Gupta and another” 2008 (3) PLR 796. I have heard both the learned counsel for the parties and perused the record. The only question which is to be decided in this case is about the personal necessity of the landlord on the basis of which eviction has been sought. Deceased – Pavittar Singh wanted to shift to Chandigarh in order to start business in the demised premises. During the course of hearing, Mr.Anuj Raura, learned counsel appearing on behalf of the landlord had argued that the Legal Representatives of Pavittar Singh had also filed an application under Section 13 of the Act in order to seek eviction from first and second floor of residential House No.1001, Sector 18C, Chandigarh on the ground of bona fide necessity by way of Rent CR No.2021 of 2010 - 8 - Application No.300 which has already been decided by the Court of Ms. Anshul Berry, Rent Controller, Chandigarh on 29.1.2011. A certified copy of the order was also supplied to the Court. From the overwhelming evidence, which has been discussed by the Appellate Court in para No.27 of the Judgment, there is no dispute that the family of Pavittar Singh was extremely terrorised at Manipur where even a bomb was exploded at his business premises for want of money which was sought to be extorted by the terrorists. From the medical treatment papers available on record pertaining to Pavittar Singh, I have also found that he was suffering from heart disease and had ultimately expired on 2.10.2004 but after having been examined and cross-examined in support of his case. In these circumstances, the question arises as to whether the Legal Representatives of Pavittar Singh are required to seek amendment of the eviction petition in order to set up their own case for the purpose of eviction of the tenants on the ground of personal necessity. Pavittar Singh had already taken a plea in the eviction petition that he wanted to settle his son and had categorically stated on oath in his affidavit PW-1/A which has already been reproduced in the earlier para of the judgment. Thus, all the requirements of law were complied with by Pavittar Singh even before his death and rest has been complied by his widow who had stated in her examination that they do not possess any other commercial building in Chandigarh nor had vacated. Insofar as the judgments which have been relied upon by the learned counsel for the petitioner are concerned, in the case of Raj Kumar Vij (Supra) the facts were that Smt. Shanti Devi landlord of the premises, for whom premises was sought, died and the question arose whether subsequent events have to be seen or not? It was held in that case that legal heirs of Shanti Devi had settled at Chandigarh and Ludhiana and had not shown any intention to shift to Sirhind. In this background, it was held that with her death, her need was over as the case was set up for her need and not for the need of other family members. On that account, decision of the Supreme Court was followed that it is not necessary that in all cases cause of action has to be seen at the time of filing of the eviction petition but subsequent event can also to be taken as consideration. In the present case, CR No.2021 of 2010 - 9 - position is altogether different because the demised premises was sought to be vacated by Pavittar Singh not only for himself but also to accommodate his son, who is very much in existence and after the death of Pavittar Singh his widow had appeared and had alleged that they wanted to settle in Chandigarh in the demised premises to run their business. In the case of Kedar Nath Agrawal (Dead) and Anr. (Supra), Supreme Court was dealing with Section 21(7) of the Uttar Pradesh Urban Buildings “(Regulation of Letting, Rent and Eviction) Act, 1972 which specifically provides that “Where during the pendency of an application under clause (a) of Sub-Section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased.” In this background, it was held that the legal heirs of the deceased/landlord have to set up their own case. In the case of “Mohd. Ismail (Supra) landlord had sought eviction of tenant from the shops on the ground of starting Karyana shop along with his two sons but during the pendency of the case one son died and the other son absconded for 8/9 years. Landlord also got possession of another shop. In these circumstances, case was remanded back for afresh decision in the light of subsequent facts and parties were allowed to amend the pleadings. In the present case this is not the position because need projected at the time of filing of eviction petition continues to subsist as even after the death of Pavittar Singh requirement of the demised premises by his son still continued. In the case of Gurdev Singh (Supra) eviction petition was filed by the landlord on various grounds including personal necessity who died after filing the Special Leave Petition before the Supreme Court. His application for substitution was allowed and the widow of the deceased/landlord stated that she wanted the house in question for her personal residence which was seriously challenged by the tenants alleging that after performing the last rights of her husband his widow had gone back. In this background, it was held that the ends of justice will be met if the case is remanded back to the Appellate Authority to enable the Legal Representatives of the landlord to establish their claim for ejectment. This judgment is not applicable because the requirement of the son has already CR No.2021 of 2010 - 10 - been shown by Pavittar Singh at the time of filing of the petition and has been constantly pressed. In the case of Chander Shekhar (Supra), landlady filed eviction petition against tenant for business premises requirement for her son but at the appellate stage landlady and her son both died. The Legal Representatives of landlady brought on record but it was held that the Legal Representatives have to prove their requirement and for that matter the case was remanded back. In the last judgment i.e. in the case of Seshambal (dead) through LRs (Supra), the eviction petition was totally silent about the requirements of any member of the family of the owners leave alone any member of their family who was depended upon them, whereas in the present case the requirement was not only of the landlord but also for his son. In view of the aforesaid discussion, I do not agree with all the judgments relied upon by the learned counsel for the petitioner in support of his case that the matter requires a remand for the legal heirs of Pavittar Singh to set up their own case. Reverting back to the judgments relied upon by learned counsel for the landlord, suffice it to say that in the case of K.R. Chopra (Supra) view taken by this Court that crucial date for deciding the bona fide requirement is the date of application for eviction but those subsequent events could also be taken into consideration which completely eclipse the requirement of landlord. In the case of Hari Ram (Supra) it has been held that need of the landlord has to be seen on the date of ejectment of the application and in the case of Gaya Prasad (Supra) it was held that crucial date for deciding bona fide requirement is the date of his application. All these judgments are prior to the decision of the Supreme Court in the case of Kedar Nath Agrawal (Dead) and Anr. (Supra, which is reported in 2004 in which it has been held that subsequent event can be taken into consideration. It is now well settled that Court at any stage of proceedings can take into consideration subsequent events and mould the relief. In the other judgments on the issue of non-pleadings of ingredients of Section 13(3)(a)(i) of the Act, it has been held that if the landlord had failed to plead the ingredients but led evidence to that effect then the non- pleadings of ingredients is not fatal. Thus, sum and substance of the above CR No.2021 of 2010 - 11 - discussion is that the landlords/respondents have now got residential house No.1001, Sector 18-C, Chandigarh vacated and are held to be having a bona fide necessity of the demised premises, which has been duly established on the basis of evidence led especially the finding recorded by the Appellate Authority in para No.27 of its judgment and in view thereof, I do not find any error in the order of eviction passed by both the Courts below. Hence, the present revision petition is found to be devoid of any merit and as such the same is hereby dismissed thought without any order as to costs. At the time of pronouncement of the order, Ms.Hemani Sarin, learned counsel for the petitioner has submitted that the tenant is in possession of the demised premises since long and would require time to find out an alternative accommodation, therefore, some time may be granted to vacate the demised premises. After hearing learned counsel for the petitioner and taking into consideration the facts and circumstances of the case, the petitioner/tenant is granted three months time from the date of passing of this order to vacate the demised premises which shall be subject to the filing of an undertaking before the Rent Controller within 15 days from the date of receipt of certified copy of this order that the demised premises will be vacated within three months subject to payment of entire arrears of rent, if any due, upto date. (RAKESH KUMAR JAIN) April 20, 2011 JUDGE Vivek