Civil Revision No.3350 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3350 of 2010 Date of decision 03.10.2011. Harmail Singh Pannu ...... Petitioner. 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. N.K.Banka, Advocate for the petitioner. Mr. Amit Rawal, Advocate for the respondent. K.C.PURI . J. The petitioner has directed the present revision petition against the order dated 6.1.2010 passed by Mrs. Harveen Bhardwaj, Appellate Authority ( Fast Track Court ), Ludhiana vide which the appeal preferred Civil Revision No.3350 of 2010 2 by the petitioners/landlords against the order dated 10.09.2004 vide which the eviction petition was allowed by Shri G.C.Garg, PCS, Rent Controller, Ludhiana and the respondent-tenant was directed to hand over the vacant and physical possession of his tenanted premises to the landlords/respondents within a period of two months from 6.1.2009. 2. The facts narrated in the eviction petition are that M/s International Woollen Mills was owner of property consisting of five shops etc and the said property through Shri Shadi Lal son of Dhani Ram has been sold to the petitioners vide two sale deeds dated 1.7.1994 and 4.7.1994 in favour of the petitioners and by virtue of said sale deeds the present petitioners have become owner, landlord of property measuring mentioned above. It has been further averred that Shadi Lal of M/s International Woollen Mills rented out the property in dispute to the respondent on 1.11.1992. According to oral terms it was settled that the tenant shall pay a sum of Rs.275/- per month. After purchase of the property by the petitioners, they have become owners landlord of the property in dispute and the respondent has become a tenant. The factum of purchase of the property was duly conveyed to the respondent. Hence there is a relationship of landlord and tenant between the parties. It has been further pleaded that respondent is liable to be ejected from the property in dispute on the following grounds:- a) The respondent has neither paid nor tendered rent w.e.f. 1.7.1994; b) The property in dispute is unfit and unsafe for human habitation and the petitioners want to reconstruct the Civil Revision No.3350 of 2010 3 entire property after demolishing this construction which stands on a small portion of the whole-plot purchased by the petitioners. The construction in question is a third class construction and is raised with mud and mortar and kacha pacca bricks. The walls and roof bear big cracks and the property which is a very old, has long back outlived its age and is in a dilapidated condition. The roof of the shops is also in a very dangerous condition and it is likely that the whole structure may collapse resulting in loss to the life and property of the occupies and passerby. c) The property, in dispute, is required by the petitioners for their own use. The petitioners want to start a nursing home here, after demolishing the present standing structure on the part of the property. The petitioners have purchased the property solely with the purpose to construct a Nursing Home. The accommodation with the petitioners in the house number 914/5 is extremely insufficient. The petitioner no.1 is using three rooms and open space for his private practice and is left with only four rooms for residential purposes which are most insufficient. The petitioner number 2 is posted as Senior Medical Officer in ESI Dispensary number at Samrala road, Ludhiana, inside the premises of Vardhwam Spinning Mills, Ludhiana. She has already completed a Civil Revision No.3350 of 2010 4 period of 20 years in this service and she can opt for voluntary retirement, which she intends taking the moment the property in dispute, vacated by the respondent and is available for running clinic. The petitioners have three children i.e. two sons and a daughter. The eldest son aged 15 years and is studying in 10th class while the younger one is a daughter studying in 8th class in KVM. The eldest one is studying in R.S.Model School. There is no separate study room or sleeping room for the children. There is no separate guest room, drawing room and dining room in the house and therefore, the petitioners want that the portion being used as clinic by the petitioner No.1 should be used for residential purpose. The petitioners are not occupying in the urban area concerned for the purpose of their business in any other such rented land and non residential building, they have not vacated any such rented land and any other non-residential building without any sufficient cause after the commencement of this Act. The petitioners owned possessed a vacant piece of land on Shamshan Ghat road and is near Shamshan Ghat and is not fit for the purpose of constructing a nursing home as the level of the road of plot is slating towards cast and there is no place of parking etc. Moreover, that plot is surrounded by hosieries and there is not conducive to be a nursing home. The petitioners are in possession of sufficient funds to construct Nursing Home for Civil Revision No.3350 of 2010 5 which purpose primarily the present property i.e. rented land is purchased. The petitioner number 2 is also going to retire. Hence this ejectment petition has been filed by petitioners for ejecting the respondent from the demised premises. 3. On notice, respondent appeared and contested the instant ejectment petition and filed written reply in which some preliminary objections have been taken that petition for ejectment on the ground of personal necessity is not maintainable because the premises in dispute are commercial and are being used as such by the respondent from the very inception of the tenancy. 4. On merits, it has been denied for want of knowledge if M/s International woollen Mills was owner of property measuring 516/1-2 sq yards. However, it has been admitted that Shadi Lal was owner of the premises in dispute. The petitioners claim to have purchased the premises in dispute from the previous owner Shadi Lal. However, no notice was served upon the respondent by the present petitioners to this effect. It has further been admitted that Shadi Lal had rented out the tenanted premises to the respondent w.e.f. 1.1.1988 at the rate of Rs.800/- per month. It has been denied that the fact of purchase of the property was conveyed to the respondent as alleged by the petitioners. It has further been denied that respondent is liable to be ejected from the property in dispute as already alleged by the petitioners. Denying other averments, respondent prayed for dismissal of the petition. 5. Petitioners filed rejoinder and they controverted the averments of written reply and reiterated the contents as they made in their ejectment Civil Revision No.3350 of 2010 6 petition. From the pleadings of the parties, following issues were framed on 1.4.1995:- 1. Whether the petitioners require the demised premises bonafide for their own use and occupation?OPA 2. Whether the demised premises have become unfit and unsafe for human habitation?OPA 3. Relief 6. 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, dismissed the petition vide order dated 10.9.2004. 7. Feeling dis-satisfied with the aforesaid order, the landlords preferred appeal against the order dated 10.9.2004. The Appellate Authority, Ludhiana after hearing the learned counsel for the parties and re- appraisal of the evidence, accepted the appeal of the landlords/petitioners vide order dated 6.1.2009 and directed the respondent/tenant to hand over the vacant possession of the demised premises within three months from the date of order. 8. Feeling dissatisfied with the order dated 6.1.2009 passed by the Appellate Authority, Ludhiana, the present revision petition has been filed by the tenant-petitioner before this Court. 9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 10. The eviction order in the present case has been passed on the following two grounds :- Civil Revision No.3350 of 2010 7 (i) that the building has become unfit for human habitation ; (ii) the landlord required the premises for bona fide personal necessity. 11. 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. 12. The hotly contested ground for eviction in the present revision petition is in respect of bona fide personal necessity of landlord regarding which the finding of fact has been recorded in favour of the landlords. 13. 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 cropped up during the course of trial of eviction petition is insufficient by amending the petition. The subsequent events which occurred during the pendency of the present petition have to be taken into account. 14. 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.3350 of 2010 8 shop 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. 15. 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. 16. 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. 17. 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. 18. Learned counsel for the revisionist has relied upon the following authorities :- Civil Revision No.3350 of 2010 9 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. 19. 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 ; 3. Atma S.Berar vs. Mukhtiar Singh 2003(1) R.C.R. Civil Revision No.3350 of 2010 10 (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 20. 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. 21. 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 lightly interferred unless a strong circumstance is made out. Civil Revision No.3350 of 2010 11 22. 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 degree. So, the need of the landlord has increased many fold during the pendency of the petition and that fact has to be considered. 23. The submission made by the learned counsel for the revisionist Civil Revision No.3350 of 2010 12 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 finding of fact cannot be interferred in the revision petition. 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. 24. 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 nursing home business of landlords. Admittedly, the present opening is from the side street towards the remaining portion of the Bassi Nursing Home. 25. In case the landlord is using the residential portion for a commercial purposes the matter is between the Municipal Corporation and Civil Revision No.3350 of 2010 13 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. 26. The learned counsel for the petitioner has submitted that landlord is owner of another plot situated near Shamshan Bhumi and that can be utilized 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 seems to be idle for setting up of a 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 fulfilled by raising construction in adjoining building 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. 27. 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 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 in his house. He has further admitted that he Civil Revision No.3350 of 2010 14 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 finding of fact recorded by Appellate Authority regarding bona fide personal necessity cannot be interfered in the revision petition, more so when no ground is made out. 28. 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. 29. 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 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 Civil Revision No.3350 of 2010 15 habitation. So, facts of the aforesaid cases are distinguishable. 30. 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. 31. 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. 32. 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 authority Prabha Arora & Anr.'s case (supra) by Hon'ble the Apex Court. 33. 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 Civil Revision No.3350 of 2010 16 as the appellant wanted to set up multiple specialty Hospital. So, the petitioner cannot have benefit of that authority. 34. Authority Attar Singh's case (supra) relates to restraining regarding increase of rent. There is no dispute regarding increase of rent in the present case. 35. In authority Parmeshwari Devi's case (supra)