CR No.4184 of 2007 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4184 of 2007 Date of Decision: 21.07.2010 Smt. Ranjana ..Petitioner Vs. Smt.Santosh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Vivek Singla, Advocate, for the petitioner. Mr.R.S.Bajaj, Advocate, for the respondents. --- 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 Digest? --- Vinod K.Sharma,J. (Oral) This is landlord's revision petition against the order dated 19.03.2007, passed by the learned Appellate Authority, Gurdaspur, dismissing the application moved by the petitioner/landlady, under section CR No.4184 of 2007 2 13 of the East Punjab Urban Rent Restriction Act (for short the Act), for ejectment of the respondents from the first floor of residential building consisting of 2 rooms, shown in red colour in the site plan, in a portion of the big building shown by letters 'EFGH'. The case set up by the petitioner in the rent petition was, that the building shown by letters 'ABCDEFGH' in the site plan was owned by Mohinder Pal Aggarwal, son of Chuni Lal. The petitioner purchased one half share in the said building, whereas remaining half share was purchased by Smt.Sunita wife of Devinder Kumar. The respondent No.1 was a tenant at a monthly rent of Rs.50/- (Rupees fifty only) under the original owner Mohinder Pal Aggarwal in the portion shown as EFGH. The case of the petitioner was, that as the whole of the property was purchased vide sale deed dated 11.4.2002, by the respondent/landlady and Smt. Sunita. The petitioner, thus, became co-owner/landlady of the portion in which respondent No.1 was inducted as a tenant. Ejectment was sought on the ground, that the premises were required by the petitioner for her personal use and occupation. The landlady was residing with her in-laws, and that her relations with her mother-in-law were not good. She wanted to shift to the portion in dispute, which was in occupation of petitioner/tenant. Eviction on the ground of subletting was claimed, by pleading, that the respondent/tenant had shifted to village Dhira, Post Office at Pathankot along with his son about 6-7 years back, and had handed over possession of premises to other respondent, without the consent of the landlady. CR No.4184 of 2007 3 The third ground for eviction was, that the building was unfit and unsafe for human habitation, as the roof on which the door of the room having dimensions 20; x 12 ½ ' opens, had fallen down, therefore, it was too dangerous to live in the building. It was the case of the petitioner, that the petitioner was not in occupation of any other residential building in the urban area of Gurdaspur, nor she had vacated any building since the enforcement of the Rent Act. The petition was contested by the respondents by filing a joint written statement, by raising preliminary objections that petition was bad for non-joinder of necessary parties as Smt.Santosh wife of respondent No.1 who was in occupation of the premises was not made a party. Site plan was stated to be incorrect. The case of the respondent-tenant was, that there were four shops/godowns at the first floor, whereas, only 2 shops/go-downs were shown in the site plan. Similarly, the area of two shops/go-downs on the first floor was not mentioned in the site plan, although respondent No.1 was the tenant of the entire area including four shops/godowns. Pleaded case of the tenant/petitioner was, that there exists one tin shed and latrine on the first floor, in addition to, two rooms and courtyard, as mentioned in the site plan attached with the application. The respondents claimed that, correct site plan is the one which was attached with the written statement. It was further pleaded, that the tenant along with his wife Smt. Santosh, and her daughter Neelam, were residing on the first floor and the entire first floor was in the possession of the tenants. It was denied, that the respondents were tenants in portion marked 'EFGH' only. It was asserted, that the respondent/tenant was in possession of portion marked by letters CR No.4184 of 2007 4 'AWYZ' in the site plan submitted by the respondents. The tenants admitted that the property was ownership of Mohinder Pal Aggarwal but a plea raised was, that Tara Chand was tenant at premises in dispute since 1965. Earlier the rate of rent was Rs.15/- (Rupees fifteen only) per month which was enhanced to Rs.50/- (Rupees fifty only) per month. Purchase by the petitioner of ½ share from Mohinder Pal Aggarwal was denied. On merit, it was denied, that the premises were required for bona fide necessity of the applicant. The stand taken was, that the landlady along with her husband and children was residing in the house owned by his father-in-law Raghu Nath, where Devinder Kumar, brother of the husband of the landlady along with his family was also residing. Stand taken was, that the joint family was residing together in their parental house, which had 10 rooms, which was a double storeyed building. It was denied, that the landlady was not having healthy relationship with her mother-in-law. Rather it was said, that they were living peaceful family life in her in-laws house. Respondent No.1 denied having shifted to Dhira Post Office Pathankot to live with his son for the last 6 years. It was denied, that the possession of the property was handed over to Respondent No.2. Respondent No.2 also denied complete control of the demised premises. Stand taken was, that because of his old age respondent No.2, was residing with them to look after them during their old age and that respondent No.1 used to visit his son only twice a year. The ration cards and the vote of respondent No.1 was at the demised premises. Building being unfit and unsafe was also denied. Stand was that CR No.4184 of 2007 5 some portion of the roof of second shop/go-down had fallen down due to wrongful act of the owner, which did not affect the rights of the respondents, in any manner. The portion in possession of the respondents was said to be fit and safe for human habitation. In the replication, averments made in the written statement were denied and that of the petition were reiterated. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the respondents are liable to be evicted from the demised premises as the applicant requires the suit property for the personal use and occupation? OPP 2. Whether the respondent No.1 has sublet the premises in dispute to respondent No.2 without the written consent of the landlord and as such he has illegally transferred tis possession in favour of respondent No.2? OPP 3. Whether the application is bad for non-joinder of necessary parties? OPR 4. Relief. Learned Rent Controller on appreciation of evidence, decided issue No.2, against the petitioner and held, that respondent No.1 had not sublet the premises, nor he had illegally transferred the possession to respondent No.2, without the consent of the landlady. The landlady, however, succeeded on the ground of personal necessity. Issue No.1 was decided in favour of the landlady, whereas issue CR No.4184 of 2007 6 No.3 was decided against the respondent/tenant. In view of finding on issue No.1, respondents were ordered to be evicted from the premises in dispute, and were given 2 months' time to vacate the premises. Learned Rent Controller on the pleading of personal necessity and evidence led observed, that brief controversy, between the parties was, as to whether the landlady really wanted to shift to the premises in dispute or she had only a desire to shift to the demised premises, and the, plea of personal necessity was merely a ground for eviction of the respondents. Learned Rent Controller held, that the landlady along with her husband, two children, brother-in-law Devinder Kumar, his wife and his three children, and parents-in-law, were living in six rooms. She had deposed that she had strained relations with her mother-in-law, therefore, to avoid bickering in the family she wanted to live in the premises in dispute. The learned Rent Controller, in view of the evidence of the husband admitting, that all the brothers have a joint family held that all the bothers along with wives and kids were living along with their father Raghunath and mother jointly held that in the house, where the landlady was living had six rooms including one store. The house was on the first floor, whereas three shops were on the ground floor. The learned Rent Controller, therefore, held that the evidence and the pleadings showed that need of the landlady was bona fide, and that the tenant could not dictate the terms, that the landlady should stay with her in-laws. The learned Rent Controller, also held, that though the stand taken by the respondents was, that there were 10 rooms in the house of in-laws of the landlady, but the tenant failed to lead evidence to prove the stand, that the petitioner/landlady CR No.4184 of 2007 7 had sufficient accommodation. The learned Rent Controller placed reliance on the judgment of Hon'ble Supreme Court in the case of Atma S.Berar Vs. Mukhtiar Singh 2003 (1) RCR 42, wherein Hon'ble Supreme Court laid down as under:- “(1) Need of the landlord should be genuine and concerned in good faith and that, further the court must also consider it reasonable to gratify that need; (2) Landlord's desire for possession, however, honest it might otherwise be, has inevitably a subjective element in it and that, that desire, to become a “requirement” in law must have the object element of a “need”. It must also be such that the court considers it reasonable and, therefore, eligible to be gratified, 1988 (1) RCR (Rent) 625 (SC) relief; (3) Words 'reasonable requirement' undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire, 1991 (2) RCR (Runt) 453 (SC); (4) Landlord is the best Judge of his residential requirement. He has complete freedom in the matter. It is no concern of the courts to dictate to the landlord house and in what manner, he should live or to proscribe for him a residential standard of their own; (5) Court need not be solicitous and venture in suggesting CR No.4184 of 2007 8 what would be more appropriate for the landlord to do; (6) Gratuitous advice given by Court was uncalled for.” Learned Rent Controller, therefore, came to the conclusion, that essentials as per the judgment of Hon'ble Supreme Court were fulfilled in this case to hold that plea of personal bona fide requirement was proved. The Learned Rent Controller also placed reliance on the judgment of this court in the cases of Ganpat Rai Vs. Parotam Singh 2003 (1) RCR 408, Kewal Krishan Vs. Kulwant Rai 2003 (2) RCR 320 and Surinder Kumar Jain & Anr. Vs. Ravinder Kalra alias Bhushan Kalra 2004 (2) RCR 563, in support of the case set up by the landlady. Respondents/tenants preferred an appeal against the judgment passed by the learned Rent Controller. The learned Appellate Authority reversed the finding of the learned Rent Controller by recording as under:- “ I am of the view that in a given set of circumstances and in each case it is for the landlord to plead and prove that her necessity is bona fide and genuine, but in the instant case the respondent has failed to lead cogent and convincing evidence with regard to her bona fide requirement. Contrary to it, appears a mere device of landlord to occupy the tenanted premises which fact in itself cannot be held sufficient to order ejectment of the appellants.” Mr.Vivek Singla, learned counsel for the petitioner contended, that the finding recorded by the learned appellate authority on the face of it CR No.4184 of 2007 9 perverse, for the reason that the learned appellate authority failed to notice that the evidence was led to prove bona fide requirement by showing that there were only six rooms in the house of in-laws where six families were staying and the premises were not sufficient, to accommodate all family members. The learned appellate authority did not even bother to refer to the findings recorded by the learned Rent Controller in reversing the findings, that the premises where the petitioner was staying, was not sufficient for 3 families. In support of the contention, learned counsel for the petitioner placed reliance on the judgment of this court in the case of Ganpat Rai Vs. Parsotam Singh 2003 (1) RCR (Rent) 408, wherein this court was pleased to lay down as under:- “6. It is not disputed that the family of the landlord consisted of himself, his two sons and five daughters, three of whom were married. The total accommodation in the entire house consists of five rooms. The landlord's claim that he required the entire accommodation for his personal use can not be described as fanciful or a mere desire. Even if the son who was to be married were not be live separately but with the family,he would certainly require extra accommodation. In this view of the matter, I am satisfied that the petitioner's application under Section 13 of the Act deserves to be allowed.” Mr.R.S.Bajaj, learned counsel for the respondents, on the other CR No.4184 of 2007 10 hand, supported the findings of the learned appellate authority, by contending that no evidence was led by the petitioner to prove the strained relations of the landlady with her in-laws and therefore, no reliance could be placed on the stand taken by the landlady in coming to the conclusion, that the premises were bona fide required for her. It was also the contention of the learned counsel for the respondents that even six rooms were sufficient for the petitioner to live in in-laws house, where they were living in joint family and therefore, the need projected was not a genuine need but a mere desire. On consideration, I find force in the contention raised by the learned counsel for the petitioner. Learned Rent Controller recorded a positive finding, that accommodation with the landlady was not sufficient at her in-laws house as it consists of six rooms, where three families were staying along with their children. It was not open to the learned appellate authority to reverse the findings of learned Rent Controller, without meeting any reasoning given by the learned Rent Controller in ordering the eviction, as it is well settled law, that the appellate court in order to reverse the finding is under obligation to meet with the reasoning given by the court below. There is another angle to the case. In order to assess the bona fide requirement, the authorities under the Act are required to take into consideration the premises which are in possession of the landlord/landlady in his/her own right, that is to say that the building in possession of the tenant should either be under the ownership of the landlord/landlady or should be under the tenancy giving him/her a legal CR No.4184 of 2007 11 right to retain the possession under law. If the landlord/landlady living at mercy of other or merely as a licencee said accommodation cannot be a ground to reject the claim of the landlord/landlady to seek eviction for personal use and occupation. The petitioner/landlady in the present case did not have any legal right to continue to live in her in-laws house and therefore, the accommodation with in-laws could not be a ground to reject the plea of bona fide requirement, once it was proved that the property was purchased by the landlady for her personal use and occupation, where she wanted to live with her husband and children in her own right. For the reasons stated above, revision is allowed. Order passed by the learned appellate authority is set aside and that of the learned Rent Controller is restored but with no order as to costs. The respondent/tenants are given two months' time from today to vacate the premises and hand over vacant possession to the petitioner. No costs. 21.07.2010 (Vinod K.Sharma) rp Judge