Civil Revision No. 3315 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 3315 of 2007 Date of Decision: 12.11.2010 Naresh Paul …Petitioner Versus Smt. Usha Rani and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Ms. Gaganpreet Kaur, Advocate for Mr. Baldev Raj Mahajan, Advocate for the petitioner. Ms. Shiwani Sehgal, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) Ganesh Dass had filed an eviction petition against Raj Pal, Naresh Pal and Janak Raj, all sons of Chunni Lal. During the pendency of the petition, Ganesh Dass died and the amended eviction petition was filed on behalf of his legal representatives. It was stated in the head note of the eviction petition that Raj Pal, Naresh Pal and Janak Raj, all sons of Chunni Lal, were the tenant in the demised shop and room on the ground floor, chaubara, bramda and terrace on the first floor, shown in the site plan, so attached, in red colour. It was stated that the respondents/tenants were in possession of the tenanted premises at the rate of ` 7/- per month. Thus, there exists the relationship of landlord and tenant. The eviction of the tenants/respondents was sought on the following grounds:- Civil Revision No. 3315 of 2007 2 A) That the tenants had neither tendered nor paid the rent of the demised premises w.e.f. 14.2.1979 and thus, they were in arrears of rent, without any sufficient cause. B) Furthermore, the tenants, by their acts of omission and commission, have materially impaired the value and utility of the demised premises. C) The demised premises are required by the landlords for their own personal use and occupation. It was stated that Varinder Kumar and Surinder Kumar, sons of late Ganesh Dass were doing their business in the rented shops in the urban area of Municipal Council, Dasuya. Hence, they require the demised premises for their own use and occupation. D) The demised premises has become unfit and unsafe for human habitation. The roof of first floor has fallen down. The tenants had given the support of ballies under the wooden shehteers of the room on the first floor. The walls of the demised premises have developed cracks and have lost their plumb line. Notice of the rent petition was issued. The tenants appeared and filed their response, wherein they denied all the averments made in the eviction petition. After conclusion of the pleadings, the Rent Controller, Dasuya, had formulated the following issues on 17.1.1998:- “1) Whether the respondents are liable to be Civil Revision No. 3315 of 2007 3 ejected from the suit property on the following grounds:- i) Whether respondents are in arrears of rent since 14.2.1979 without sufficient cause? OPA. ii) Whether the respondents have committed such acts which has impaired the value and utility of the suit property? OPA. iii) Whether the suit premises requires by the petitioner for his own use and occupation? OPA. iv) Whether the suit premises have become unfit and unsafe for human habitation? OPA. 2) Whether the present petition is not maintainable? OPR. 3) Relief..” The landlords examined Harvinder Singh as PW.1 who proved the photographs Ex. P1 to Ex.P3 of the spot along with the negatives Ex.P4 to Ex.P6. He also proved the receipt, issued by the landlord, regarding payment made for photographs. Gopal Dass son of Khan Chand appeared as PW.2 and stated that he knew Gopal Dass, father of the landlords, who died during the pendency of the petition. This witness further stated that he had seen the demised shop and the chaubara, verandah in front of the chaubara, had completely fallen down and roof of the chaubara was also in bad condition. The ballies of the Civil Revision No. 3315 of 2007 4 roof have fallen down. At three or four places, support of ballies have been given to the roof and the walls have developed major cracks. In cross-examination, this witness admitted that late Ganesh Dass had three sons, namely Varinder Kumar, Surinder Kumar and Ashok Kumar. They all have separate business, having separate houses and mess. Narinder Kumar, Draftsman, appeared as PW.3 and proved the site plan Ex.P8. Varinder Kumar, legal heir of Ganesh Dass, appeared as PW.4, who stated that the site plan of the demised premises was got prepared by his father Ganesh Dass. He further stated that the demised premises, in possession of the tenants, was in dilapidated condition. Roof of the verandah has fallen, which has been given temporary support of ballies. The roof and walls have developed major cracks and the demised premises is not fit for residential purposes as it can fall down at any time. He further stated that all the three brothers are having rented shops in their possession. Therefore, the demised premises are required for their personal use and occupation. In cross-examination, this witness stated that three or four years, before his death, his father was having active life style. In the demised shops, Narinder Kumar and his sons are working and Raj Pal was having a separate shop. He further stated that all the three brothers, from the last 25-30 years, have been living separately. Ajit Walia, Clerk, Judicial Record Room, Hoshiarpur, stated that the records pertaining to earlier rent petitions has been destroyed in the fire. Thereafter, the tenants led their evidence and examined Raj Pal as RW.1. He deposed that he was having a separate shop and has no concern with the other family members. He denied the suggestion as Civil Revision No. 3315 of 2007 5 to whether the Local Commissioner visited his shop in his presence or not. He further stated that since 1952, the demised shop is on the rent with the tenants. In his cross-examination, he admitted that the demised shop was in existence prior to the partition of the Country. He has further stated that he had not gone to the first floor of the demised premises and not able to depose regarding this condition. Devinder Kumar, Photographer, appeared as RW.2, and proved the photographs Ex.R1 to Ex.R5 and all the negatives Ex.R6 to Ex.R10. He further stated that the photographs were taken at the instance of Naresh Pal, tenant. Naresh Pal, tenant, himself appeared as RW.3. The Rent Controller, Dasuya, after conclusion of the evidence, vide his order dated 12.9.2003, held that the rent was provisionally assessed and the same was deposited by the tenants. Thus, the ground of non payment of rent was not available to the landlords. The Rent Controller further held that the landlord has failed to prove that the tenants had materially impaired the value and utility of the demised premises. The Rent Controller, having noticed the fact that the landlords have been carrying on the business in the tenanted premises, returned the following finding:- “...When all the LRs of the deceased petitioner have been doing their business in the rented shops and their own premises/shops are situated in the same town their bonafide necessity/requirement fully stands made out and established. As per further settled legal position that the landlord is the best judge of his own need. The respondent cannot Civil Revision No. 3315 of 2007 6 impose his advice that landlord can adjust in other way. As such when the respondents failed to controvert the evidence of the petitioners that they are doing their business in the rented shops, so bonafide requirement of the petitioner fully stands established. Moreover, rent fetched by the petitioners of the premises in dispute is very much nominal. So necessity and requirement of the petitioners/LRs of the deceased petitioner stands fully proved as discussed above. Accordingly, this issue/grounds stands proved and this issue is decided in favour of the petitioners and against the respondents...” The Rent Controller further held that when the building has become unfit and unsafe for human habitation, it may continue intact for sometime but it is not the intention of the law that the tenants cannot be evicted from the same till it has fallen down. The Rent Controller further took into consideration the plea raised by the tenants that in the rainy season, somebody had tried to cause damage to the property. The tenants relied upon the photographs Ex.R1 to Ex.R5 to state that the demised premises was fit for human habitation. In the present case, the Local Commissioner was also appointed, who had submitted his report but he could not step into the witness box as he had gone abroad. Relying upon various photographs, site plan and the report of the Local Commissioner, the Rent Controller concluded that the building had become unsafe and unfit for human habitation. The Rent Controller had Civil Revision No. 3315 of 2007 7 returned the finding in favour of the landlords and ordered eviction of the tenant. Aggrieved against the eviction order, passed by the Rent Controller, tenant Naresh Pal filed the appeal before the Appellate Authority, Hoshiarpur. The Appellate Authority, Hoshiarpur, vide order dated 9.4.2007, affirmed the findings, recorded by the Rent Controller. Ms. Gaganpreet Kaur, Advocate, appearing for the petitioner has vehemently assailed the findings, returned by the Rent Controller, affirmed by the Appellate Authority that the building has become unfit and unsafe for human habitation. She stated that the Local Commissioner has not stepped into the witness box and no opportunity to cross-examine him was given to the tenants. Hence, the report of the Local Commissioner Ex.P9 is not admissible in the evidence and no reliance can be placed upon the same. It is submitted that the Rent Controller had committed the grave error by placing unnecessary emphasis on the report of the Local Commissioner. Ms. Shiwani Sehgal, Advocate, appearing for the respondents, has submitted that even if the report of Local Commissioner is excluded, photographs Ex.P1 to Ex.P3 are sufficient to prove that the building had almost fallen and in the dilapidated condition. Having heard learned counsel for the parties, I am of the view that the report of Local Commissioner Ex.P9 was not per se admissible. No Building Expert has been examined by the landlords. Mere the photographs may not be sufficient to hold that the demised premises is unfit and unsafe for human habitation. Civil Revision No. 3315 of 2007 8 However, the eviction petition was initially filed by late Ganesh Dass. After his death, the amended petition was filed by his legal heirs in which it was specifically pleaded by his two sons namely Varinder Kumar and Surinder Kumar that they are doing their business in the tenanted shops, thus, the demised premises are required for their personal use and occupation. This fact has been duly considered by the Appellate Authority, by observing as under:- “...22. Reverting back to the facts of the case in hand, it is an admitted fact that all the three sons of Ganesh Dass are running their business in the tenanted premises. Two are running at Dasuya and one of his sons namely Ashok Kumar is running his business at Tanda. The contention of the learned counsel for the appellant that Ashok Kumar has not appeared in the witness box to state that he intends to shift at Dasuya, it is not requirement of law. Filing of eviction petition is itself suggestive of the fact that they intend to run their business in the premises in question. So when petitioners are themselves doing their business in the rented premises their intention to shift their business in the premises in question of which they are the landlords the bonafide requirement element of need is fully established. Since, it is established that the premises in question are bonafide required by the landlord/respondents, this Appellate Authority does not see any irregularity Civil Revision No. 3315 of 2007 9 or illegality in the findings arrived are by the learned Rent Controller on this issue and as such, the findings on this issue are also affirmed...”. Learned counsel for the petitioner has submitted that even Varinder Kumar and Surinder Kumar have not stated that their landlord are pressing them to evict the premises. Therefore, the mere fact that they are running their business in the tenanted premises vest no right in them to claim eviction of the tenant/petitioner from the demised premises. I am unable to subscribe to this argument as the landlord is well within his rights to get the tenanted premises vacated and start his business in his own premises. The tenant cannot prescribe and insist that the landlord should continue to do business in the premises, which on rent with him. Learned counsel for the petitioner has submitted that in the earlier rent petition, late Ganesh Dass has specifically stated that the property in dispute belonged to Hindu Undivided Family and being a Karta thereof, he is entitled to seek eviction of the tenants. Be that as it may, after the death of Ganesh Dass, his two sons being legal heirs have pleaded and proved their personal necessity. I find no infirmity in the findings, returned by the Appellate Authority. Hence, no interference is warranted in the present revision petition and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge November 12, 2010 “DK”