IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.2781 of 2010 Date of decision: 2 .8.2011 Smt.Rajni Arora and others ...Petitioners vs Smt.Krishna Devi ....Respondent CORAM: MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Pawan Kumar, Senior Advocate, with Mr.Anashuman Mandhar, Advocate, for the petitioners. Mr.Ashok Singla, Advocate, for the respondents. Rakesh Kumar Garg,J. This is tenant's revision petition challenging the impugned order dated 19.4.2006 of the Rent Controller, Hisar ordering their eviction from the demised premises holding that the same is required by the respondent landlord for her personal necessity and further order of the Appellate Authority dated 6.1.2010 whereby their appeal against the order of eviction was dismissed by the Appellate Authority Hisar. In the eviction petition the respondent landlady claimed that Harish Chander (predecessor-in-interest of the petitioner) was a tenant in the shop in dispute at a monthly rent of Rs.2000/- and was in arrears of rent with effect from 1.8.1997, and further that the shop in question was required by the son of the landlady for opening a clinic, office and consulting room and that she has no other premises in her possession except the shop in dispute. Harish Chander (predecessor-in-interest) of the petitioner filed written statement, inter alia, pleading that the land lady has failed to furnish all the particulars as required under law. The rate of rent was Rs.300/- per month and not Rs.2000/- as claimed and no rent was due towards him. He pleaded specifically that respondent landlady and her husband were big C.R.No.2781 of 2010 2 landlords who own many properties in urban areas of Hisar and were letting out the same on higher rent and the provisions of the Rent Act were misused to get the rent increased. However, to avoid eviction Harish Chander tendered the rent in Court. It is relevant to mention that during the pendency of the petition Harish Chander tenant died and the present petitioners were brought on record as his legal representatives. From the pleadings of the parties, the following issues were framed:- 1. Whether the respondent is liable to be evicted from the demised premises on the grounds of non payment of rent and personal necessity ?OPP 2. Whether the petition is not maintainable ? OPR 3. Relief. After hearing the parties vide impugned order the Rent Controller held that rate of rent was Rs.300/- and petitioner tenant had paid the rent upto September 1998 further holding that landlady was liable to refund the same for the period w.e.f. 1.8.1997 to 30.9.1998. However, the Rent Controller found that respondent land lady had succeeded in proving the ground of personal necessity and the tenant was liable to be evicted from the demised premises. Issue No.2 was decided against the petitioner- tenant being not pressed. Resultantly, the ejectment application was allowed with no order as to costs. The tenant Harish Chander was held liable to hand over the possession of the shop in question within a period of two months and the landlord was directed to refund the rent as aforesaid. Aggrieved from the aforesaid order dated 19.4.2006 of the Rent Controller, petitioners filed an appeal before the Appellate Authority. Along with this appeal, petitioner has also filed an application for leading C.R.No.2781 of 2010 3 additional evidence to the effect that son of the respondent had joined service after filing of the appeal and was not likely to start practice and, therefore, the subsequent events have necessitated the leading of additional evidence to prove the aforesaid facts. The application was contested by the landlord denying the fact that the son of the petitioner had joined service or that he had furnished any bond to serve the hospital for ten years. After hearing hearing learned counsel for the parties, the aforesaid application for leading additional evidence was rejected observing that there was no record to show that son of the landlady had executed any bond with AIIMS and the application for leading additional evidence was filed just to delay the proceedings, as the documents could have been produced by seeking information under the Right to Information Act, 2005 from the concerned government hospital. The Appellate Authority also observed that the landlady has not pressed the ground of ejectment during the course of argument on the ground of non payment of arrears of rent and the only question for determination was if there is a bona fide necessity of the son of the landlady or not. While dismissing the appeal filed by the petitioners and upholding the order of eviction against them on the ground of personal necessity of the respondent landlady the Appellate Authority observed as under: “ In the instant case landlady has sought eviction of the tenant on the ground that shop is required for her son who was in the last year of MBBS for starting his clinic as a registered practitioner. In the petition it has been mentioned that petitioner landlady and her son are not occupying any such building for office and consulting room and clinic in this urban area and she C.R.No.2781 of 2010 4 has not vacated any such other building.” “ In the written statement of tenant has not taken any specific plea that petitioner-landlady is having any alternative accommodation much less about the adjoining shop of the shop in dispute. It is only mentioned there in that petitioner and her husband are big landlords and they own many properties in Hisar urban area and they have been vacating the properties and letting out the same on higher rent. If there had been an alternative accommodation available on landlady for her son then it could have been specifically pleaded in petition, certainly about the adjoining shop. Much emphasis was laid on the registered sale deed Ex.P7 in favour of landlady. In the later part of Ex.P7 it is mentioned that only “Kabja Malkaan” have been given which would not necessarily indicate with actual and physical possession was handed over and only Kabja Malkan was taken by the vendee. The admission of Arvind Kumar PW1 in his cross exmaination that the adjoining shop is owned by her mother and in her possession only indicates about Kabja Malkan as he was not questioned as to when physical possession of the shop was taken by her mother or with whom this shop was in possession earlier. Even in house tax record of 1999-2000 all the three shops in the ownership of landlady are shown in possession of three tenants, of which one of the shop is under tenancy of Harish appellant. Appellant tenant also stated that he was inducted as tenant by earlier landlord Gobind. The appellant has failed to substantiate that landlady or her son were actual in physical possession of any shop or alternative accommodation at the time of filing of petition or thereafter. The onus was heavy upon the appellant to show alternative accommodation with the landlady and that she had got vacated the adjoining shop from an earlier tenant which he could not be substantiated. The case law relied upon by learned counsel for the tenant is distinguishable. Even if for the sake of arguments it is taken that landlady came in possession of her C.R.No.2781 of 2010 5 shop after filing of petition then it is the choice of landlord for a particular premises under his/her control to use for personal necessity. Earlier vacation of shop from tenant Shiv Kumar in the year 1997-98 would not affect the ground of personal necessity as at that time son of landlady was only a student. The petition is only son of her parents. He was student of MBBS in December 2000 and thereafter he started doing internship as so evident from Mark-B which as per certificate was likely to be ended on 18.1.2002. Ex.P10 is the ration card indicating that petitioner landlady and her husband with her son Arvind are residing jointly. The need of landlady or her family members, who are joint with her, would be need of the landlady. Landlady would have natural desire to have her son with her to start practice at own shop, which cannot be termed as malafide. The suitability of the premises for starting medical profession as registered practitioner are not to be seen from the angle of the tenant and it is subjective satisfaction of the landlady or her son. Even court is not to required to substitute its opinion on the choice of the landlady or her son. The subsequent event that now son of landlady has gained more qualification and has acquired knowledge in specialized field of medical profession, would again of no ground to term the need as mala fide. The son of the petitioner landlady was not supposed to sit idle from the date of filing of petition as more than 9 years have already elapsed since institution of petition. His knowledge of medical field would have been wasted if he had been sitting idle. The argument that petitioner's son Arvind has become a Surgeon and the shop in question is not suitable in view of its size, for a surgeon to carry on business would again be inconsequential as suitability has to be seen by the person who intends to carry on business there and it is not to be seen or dictated by the tenant. As regards the averment that necessary particulars that son has not vacated any premises after commencement of the Rent Act have not been pleaded, it is C.R.No.2781 of 2010 6 observed that it has been specifically pleaded in the petition that petitioner and her son are not occupying any other building for the use as office or consulting room or the clinic except building in question and the petitioner did not vacate any building without any sufficient case after commencement of the 1949 Act. The mention of the words that petitioner has not vacated any such other building would also include mention of her son for whose bonafide necessity, petitioner landlady has sought eviction of the shop in dispute. Petitioner's son Arvind has also stated in his statement that he or his parents have no other portion throughout India. The ratio of case law relied by tenant is distinguishable on facts.” “ The argument that there is no other clinic of medical profession in the same locality would again be irrelevant. It could be good reason to open clinic in the area where there are no other clinics. Some doctors choose to open clinics in Mufassil towns rather than in bog cities, where specialized hospital are in abundance.” “ Non appearance of landlady to substantiate her version would again be not fatal to case of landlady as most material witness PW1 Arvind, for whose personal necessity the shop in question has been sought has been examined. Her power of attorney PW2 Subhash has also been examined, who is none else but husband of landlady. The contention that petition is based on mala fide to get the rent increased is again unsustainable as tenant himself admitted that till date landlady never filed any case against him. No petition or increase fair rent was filed. Tenant himself purchased another shop/godown measuring 9'x22' five years prior to his deposition and stated that he sold the same. Tenant himself owned property and had alternative accommodation available to him. Tenant's own nephew is also a tenant in adjoining shop of shop in dispute with landlady. The failure landlady on the ground of non payment of arrears of rent would not debar her claim on C.R.No.2781 of 2010 7 ground of personal necessity. Landlord can take alternative pleas and his being unsuccessful on one ground would not fatal to the case of landlady”. “ Thus seen from all angles, there is no infirmity in the finding arrived by learned rent Controller, Judgment dated 19.4.06 passed by Ld.Rent Controller is hereby affirmed and upheld. Appeal is dismissed. The parties to bear their own costs. Memo of costs be prepared and thereafter file be consigned to records.” Still not satisfied the petitioners have filed the instant revision petition challenging the impugned orders. Shri Pawan Kumar, learned Senior Counsel appearing on behalf of the petitioner, has submitted that the Courts below failed to appreciate the fact that there was “element of greed” in the guise of personal necessity of the landlady and not that of “need”. It is proved on record that by hook and crook the landlady, in order to let the shop in dispute on higher rent, wanted to get the shop vacated from the petitioners. Even force was used by them, but their attempt was failed due to intervention of police. Even the Courts below failed to appreciate the fact that the landlady claimed the rent of the shop in dispute @ Rs.2000/- per month, but the same was not accepted. It has been amply proved on record that the landlady has not approached the Court with clean hands since she concealed the factum of having other shops, adjoining to the shop in dispute. Her son Arvind Kumar while appearing in the witness box categorically admitted that one another shop adjoining the shop in dispute is owned by his mother and is in her possession. Further sale deed (Ex.P7) was produced on record to show that in total three shops were purchased by the landlady and the same are in her possession. C.R.No.2781 of 2010 8 It was further argued that it is settled law that to prove the essential ingredients of bona fide requirement, the landlady was supposed to plead and prove that she is in bona fide requirement of the premises and is not having any other suitable accommodation. But, in the instant case, it has been proved on record beyond reasonable doubt that the landlady is having adjacent shop of similar dimensions to the shop in dispute, which fact she concealed in her petition. She even prefer to let on rent another shop instead of giving it to her son. Thus, in no way, the ground of personal necessity is sustainable and the eviction of the petitioners on that ground is liable to be set aside. Learned counsel has elaborated that it goes undisputed on record and admitted by Arvind Kumar, the son of landlady for whom the shop in question was sought to be vacated, that he is no more the dependent upon his parents and is earning. But, both the Courts below failed to render any observation in this regard though this argument was raised at the time of hearing of case as well as appeal. Moreover, the Courts below have failed to appreciate that the landlady herself failed to step into the witness box and thereby caused prejudice to the petitioners as they could not cross-examine her with regard to other properties, not only in the same vicinity, but in the urban area of Hisar. Thus, due to her non-appearance an adverse inference should have been drawn against her and the petitioner's case was liable to be dismissed. In support of his argument, learned counsel for the petitioner has also relied upon judgment of this Court in Radhey Shyam Vs. Raj Kumar 2010 (2) R.C.R.(Civil) 697, to contend that for proving ground of personal necessity statement of general power of attorney cannot be C.R.No.2781 of 2010 9 substituted as statement of landlord himself and adverse inference has to be drawn against landlord for non appearing in the witness box and, therefore, the eviction petition is liable to be dismissed. Learned counsel has also relied upon a judgment of the Supreme Court in the case of Smt.Rajinder Dhada v. Jagjit Singh (2002-1)PLR 411, to contend that the relevant provisions of the East Punjab Urban Rent Restriction Act, 1949, permits the tenant being directed to put the landlord in possession of the tenanted premises, if he requires it for his own occupation, and such a requirement has to be bona fide, and the children whose requirement was intended to be satisfied by the landlord by evicting the tenant was dependent and ordinarily living with the landlord. Since in the present case the son has clearly stated he was not dependent upon his mother therefore, the eviction of the petitioners could not have been ordered. By referring to the aforesaid judgment, learned Senior Counsel, has tried to bring home the fact that under the Act “family” means such relations of the landlord as ordinarily live with him/her and are dependent upon him and the intention of the Legislature in the given definition is suggestive to indicate that a landlord cannot ask for eviction of a tenant on the ground that the premises are required for the need of a son who is not dependent. In the end, learned counsel for the petitioner has prayed that the impugned order be set aside and the ejectment application filed by the respondent be dismissed. On the other hand, learned counsel appearing on behalf of the respondent has submitted that it is well settled that the landlord is the best judge of his needs and the tenant cannot dictate terms to the landlord and if C.R.No.2781 of 2010 10 landlord has two shops then it is the choice of landlord to select as to where he or she would like to start his/her business. Learned counsel has also placed reliance on M.Javerilal Vs. N.Achalraj Jain 2005(1) Rent Control Reporter 262, wherein need of landlord was held to be bona fide as he wanted another shop to accommodate his flourishing business, affluence of landlord would not be any hinderance to get a shop vacated. Reliance was also placed on Bhimanagouda Basanagouda Patil Vs. Mohammad Gudusaheb 2003 (1) Rent Control Reporter, 354 and Dwarkaprasad Vs. Niranjan and another 2003 (1) Rent Control Reporter 410, to say that need of other family members would be considered to be the need of the landlord if they are members of Joint Hindu family. Further reliance was placed on Sushila v. IInd Additional District Judge Banda 2003 (1) Rent Control Reporter 89, wherein landlord wanted shop for her son who wanted to start business in electric goods. His need was held to be bona fide, as his son could not join his father in business which was not flourishing and he was held entitled to start business of his own choice independently. Counsel for the respondent has also relied upon in the case T.Sivasubramaniam v. Kasinath Pujari, 1999(2) RCR 236, to contend that in the revisional jurisdiction this Court will not re-appraise the evidence to suggest the opinions of the authorities below by its own opinion, and has argued that both the Courts below have recorded a finding of fact regarding the need of personal necessity of the respondent-landlord and it is not a case of no evidence to hold that the findings as recorded by the authorities below could not have been recorded. C.R.No.2781 of 2010 11 As observed in the impugned order of the Appellate Authority the landlady has sought the eviction on the ground that the same was required for her son to start his clinic as a Doctor. It has been clearly averred that petitioner-landlady and her son are not occupying any such building for the said purpose in the urban area and they have not vacated any such building. In the written statement of the petitioner, no specific plea has been taken that respondent landlady was having any alternate accommodation much less adjoining shop to the demised premises. The only averment made is that the landlady and her husband owns many properties in the urban area of Hisar and give them on higher rent. In fact much emphasis has been laid on the statement of Arvind Kumar son of the landlady wherein he has stated that the adjoining shop is owned by her mother and is in her possession. However, it has also been established on record that she has been given only a symbolic possession of the same. Moreover, no such question was asked to Arvind Kumar as when physical possession of the shop was taken by her mother or with whom the shop was in possession earlier. Moreover, documentary evidence has come on record in the shape of house tax record for the relevant period wherein, all the three shops of the landlord are shown in possession of three tenants of which one of the shop is under tenancy of Harish Chander (the predecessor-in-interest of the petitioners). The petitioners have failed to substantiate that the landlady or her son were in actual possession of the shop at the time of filing of the petition or thereafter. They have also failed to establish that the landlady had got vacated the adjoining shop from an earlier tenant. Not only this, assuming for the sake of argument that landlady came in possession of another shop after filing of the petition even C.R.No.2781 of 2010 12 then it is her choice for a particular premises under her control to use for personal necessity. It is not in dispute that Arvind Kumar is only heir of her parents and was a student of MBBS in December 2000 and was likely to complete his studies on 18.1.2002. Ex.P.10 is ration card indicating that landlady and her husband are residing jointly with their son; the need of landlady or her family members who are joint with her would be need of the landlady. Landlady would have natural desire to have her son with her to start practice at own shop which cannot be termed as mala fide. The suitability of the premises for starting medical profession are to be seen from the angle of the landlady or her son. Another argument of the learned counsel for the petitioner that the necessary particulars as required to be pleaded that her son has not vacated any premises after commencement of the Rent Act have not been pleaded, is of no consequence as the landlady has clearly mentioned that she had not vacated any such building and that would also include mentioning of her son, for whose bona fide necessity the landlady has sought eviction of the petitioners from the shop in dispute. Moreover, it has been specifically pleaded in the petition that the petitioner and her son are not occupying any other such building for clinic, consulting room and office except the building in question and the petitioner did not vacate any such building without any sufficient cause after commencement of the 1949 Act. Even before this Court counsel for the petitioner was unable to demonstrate that the respondent landlady was in possession of the adjoining shop as alleged. It is also well settled that statement of a witness has to be read as a whole and the same cannot be read into piecemeal. If we go through the statement of Arvind Kumar PW1, it is crystal clear that C.R.No.2781 of 2010 13 he has nowhere stated that he has no requirement to start practice in the shop in dispute. What he says is that he is not dependent upon his parents for earning his livelihood. So far as the judgment of the Supreme Court it is suffice to say that the aforesaid judgment was given by the Hon'ble Apex Court while interpreting the provisions of Explanation as incorporated in sub section (2) of section 13 of 1949 Act whereas there is no such explanation in the provisions of the Haryana (Urban Control of Rent and Eviction)Act, 1973. Not only this, even in the aforesaid judgment, the Hon'ble Court has interpreted the word “family” to mean such relation of the landlord as ordinarily living with him and are dependent upon him etc. It does not mean that the Hon'ble Supreme Court has interpreted the words “family” to show that any relation of the landlord who is not dependent upon him may be ordinarily living with him is not to be included in the definition of “family”. Therefore, as discussed above, in the facts and circumstances of the case the judgment is not applicable. The last argument raised