Civil Revision No.2947 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2947 of 2011(O & M) Date of Decision:10.08.2011 Jagdish Kaur ....petitioner Versus Sat Pal Madan .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Puneet Jindal, Advocate for the petitioner Mr.Sarwan Singh, Senior Advocate with Mr.N.S.Rapri, Advocate for the respondent *** RAKESH KUMAR GARG, J.(ORAL): This is tenant’s revision petition challenging the order dated 30.11.2010 passed by Rent Controller, Jalandhar, ordering eviction of the petitioner from the premises in dispute on the ground of bona fide need of the respondent-landlord and further order dated 13.04.2011 of the Appellate Authority, Jalandhar, whereby her appeal was dismissed against the aforesaid order of eviction. Briefly stated, respondent-landlord filed an ejectment application against the petitioner from the demised premises averring that he is the owner/landlord of the demised premises, which was on rent at ` 700/- per month originally with Surjit Singh husband of the petitioner. A rent agreement was also executed. Petitioner, who is the widow of Surjit Singh has inherited the tenancy rights in respect of demised premises. Civil Revision No.2947 of 2011 2 She was liable to be evicted on the ground that she has not paid the arrears of rent since 01.01.2004 and the demised premises were required for the need of the respondent-landlord for doing business and to set up his own business of electronic goods. The adjoining shop which was on rent with one Kamal Mahajan and was owned by the respondent-landlord and for that the litigation was pending before the Rent Controller, Jalandhar, on the ground of personal bona fide necessity of the respondent-landlord and his requirement was for both the shops. It was further stated that respondent-landlord does not own any property in his name after the commencement of the Rent Act and has not vacated any such property without any reasonable cause after the commencement of the Rent Act. In written statement, petitioner raised preliminary objection that there was no relationship of landlord and tenant between the parties. The property in dispute was taken on rent from one Kaushlayawanti by Surjit Singh, her husband. Kaushalayawanti had already expired. The respondent has filed another petition against Kamal Mahajan and in that case, in his cross-examination, he has admitted that his mother Smt.Kaushalayawanti executed a Will in favour of her grand daughter Nandni. It was further averred that petition was filed malafidely in order to enhance the rent. It was further stated that the site plan attached with the petition was wrong and effective decree cannot be passed. There were number of shops and rooms in the property bearing No.EH171/174 which was recently demolished by the owner and was under his use and occupation. The respondent has sufficient accommodation under his possession which is more than his requirement. It was further stated that respondent was ready to tender rent in the Court along with costs and interest. Remaining averments on the ground of personal necessity were denied. From the pleadings of the parties, the following issues were Civil Revision No.2947 of 2011 3 framed by the Rent Controller: 1. Whether there exists relationship of landlord and tenant between the parties? 1-A Whether respondent is liable to be evicted from the premises in dispute on the ground of arrears of rent?OPA 2 Whether the premises in dispute is required by the applicant for his own use and occupation?OPA 3 Whether the site plan filed with application is incorrect?OPR 4 Whether applicant is already in possession of sufficient accommodation to need his requirements, if so, its effect? 5 Relief. After appreciating the evidence produced on record and hearing the learned counsel for the parties, the Rent Controller, Jalandhar, held that there existed the relationship of landlord and tenant between the parties and allowed the ejectment petition on the ground of personal necessity of the respondent-landlord. However, the grounds of non- payment of rent for ejectment of the petitioner was not accepted and issue No.3 was held against the petitioner-tenant. Feeling aggrieved from the order of eviction of the Rent Controller,Jalandhar, petitioner filed an appeal challenging the same before the Appellate Authority, Jalandhar. The Appellate Authority,Jalandhar vide its judgement dated 13.04.2011 upheld the findings of the Rent Controller, Jalandhar, and dismissed the appeal. While affirming the findings, the Appellate Authority, Jalandhar, observed that no arguments were addressed by the petitioner against the findings of the Rent Controller to the effect that there existed a relationship of landlord and tenant between Civil Revision No.2947 of 2011 4 the parties. It was also found by the Appellate Authority that there was no dispute regarding description of property regarding which ejectment petition was filed. The learned Appellate Authority also noticed the fact that petitioner while appearing as RW1 herself admitted in the cross- examination that a portion of the residential building was in dilapidated condition and was demolished by the respondents themselves. The Appellate Authority also recorded the finding that there was nothing on record to show that the respondent had any other commercial property in his possession or he has vacated the same and only two shops i.e. with the petitioner as well as in possession of Kamal Mahajan were of his ownership. The Courts below also found that there nothing on record to show that respondent has any other suitable building to run the business of electronic goods and that there is no dispute that the respondent was residing in Master Tara Singh Nagar in a residential building which was not owned by him and also was not suitable for business. The Appellate Authority also found that there is no concealment on the part of the respondent who has clearly averred regarding the litigation pending between him and Kamal Mahajan regarding the other shop and the need of the respondent was genuine and bona fide. Challenging the impugned orders, learned counsel for the petitioner has vehemently argued that in the present case, the personal necessity of the respondent was not accepted by the Rent Controller in the litigation pending between the landlord and Mr.Kamal Mahajan and the said petition for ejectment of Kamal Mahajan was dismissed on 20.10.2008 and in view thereof, Rent Controller could not have returned the findings against the petitioner with regard to the bona fide need of the respondent- landlord. According to the learned counsel for the petitioner, in fact a categorical finding was recorded in the aforesaid litigation in respect of the demised shop and also the shop under the occupation of Kamal Mahajan Civil Revision No.2947 of 2011 5 to the effect that respondent-landlord has not approached the Court with clean hands. According to the learned counsel for the petitioner despite the fact that the Appellate Authority had also taken note of the findings of the Rent Controller in the other petition pending between the landlord and Mr.Kamal Mahajan i.e.the other tenant and in fact the Appellate Authority ought to have heard the two matters together i.e.the present appeal filed by the petitioner against the order of eviction passed by the Rent Controller and the appeal filed by the landlord against Kamal Mahajan against the order dated 20.10.2008 of the Rent Controller but the Appellate Authority had dismissed the appeal of the petitioner hurriedly and thus the authorities below have failed to appreciate the overwhelming evidence on record showing that the need of the landlord was not bona fide and sufficient accommodation was available with him having better commercial prospectus than the demised shop. It is also the argument of the learned counsel for the petitioner that it has come on record that the respondent- landlord has let out premises to one M/s Anil Associates during the pendency of the ejectment petition and the respondent was also negotiating with the State Bank of India for letting out them a huge commercial area lying vacant with the landlord and in view of the aforesaid evidence, the findings of personal bona fide need of the landlord could not have been recorded in his favour. Thus, the courts below have brushed aside these facts illegally resulting in gross miscarriage of justice and therefore the impugned orders are liable to be set aside and the eviction petition on behalf of the respondent is liable to be dismissed. On the other hand, learned counsel appearing on behalf of the respondent has supported the impugned orders and has submitted that both the courts below on appreciation of evidence have recorded a concurrent finding of the fact regarding the need of the respondent, it does not warrant any interference by this Court and the present revision is liable Civil Revision No.2947 of 2011 6 to be dismissed. I have heard learned counsel for the parties and perused the impugned orders/ judgements and have gone through the pleadings and evidence with the help of the learned counsel for the parties. It is useful to refer to the observations of the Rent Controller which read thus: Indubitably, petitioner pleaded that demised premises was situated in commercial in area and was suitable to the needs of the petitioner. Petitioner required the shop in dispute to set up his own business of electronic goods along with all other allied items such as refrigerators, air conditions and all types of TV sets including DVD, VCD etc. He pleaded that adjoining shop on rent with Kamal Mahajan was owned by petitioner and litigation was pending before Rent Controller, Jalandhar on the ground of bona fide necessity of petitioner. In written reply to petition, respondent averred that ten rooms were demolished by owner were not shown in the site plan and were under use and occupation of the owner. Respondent denied that need of the petitioner was bona fide. In cross- examination Sat Pal Madaan petitioner conceded that he could not tell the number of the shops in the entire unit of property No.171/174 and there were number of rooms in the property No.171/174, but they were unfit and unsafe for human habitation, as such, same were demolished. He stated that there were three shops in the portion which fell to his share and all three shops were abutting the Civil Revision No.2947 of 2011 7 metaled road which led to the courts. He stated that he did not remember the number of tenants which were inducted in the property bearing No.171/174. Jagdish Kaur respondent admitted that portion fell to the share of Sat Pal Madaan in property No.EH-174 was only having shops under her and Kamal Mahajan's possession. She also admitted that back portion of the shop was residential which was demolished by the owner as same was in dilapidated condition. Petitioner to corroborate his version that he was owner of three shops proved on record corporation assessment record as Ex.P3 reflecting him to be owner of three shops namely Nakodar Photo State, Hindustan Photo State and R.S.Sangha, Advocate. Even, certified copy of decree in partition suit as Ex.AW3/1, site plan as Ex.AW3/2 and sale deed Ex.R3 reflect 1/3 share of petitioner in property in dispute. Even, Jagdish Kaur in cross-examination admitted that portion shown mark X in Ex.AW3/2 was the ownership of petitioner. Hence, there is no denial that only portion mark X reflected in Ex.AW3/2 is owned by petitioner and it also goes without saying that portion on the back side of the shops has not been specifically pleaded by petitioner in petition to describe as to how same was not suitable for him to run his business. There is also categoric admission by petitioner that in Civil Revision No.2947 of 2011 8 petition against Kamal Mahajan in cross- examination he admitted that property No.EH/171 Civil Lines, Jalandhar was offered to the bank for the purpose of banking after dismantling and constructing new building after getting loan. During arguments learned counsel for the respondent placed reliance upon ration of judicial pronouncement reported as 2010(2)RCR page 319 wherein it was held that:- “B.M.P Accommodation Control (41 of 1961) Section 23-A(h)-Alternate Accommodation-Bona fide requirement-Landlord seeking eviction of tenant on ground of bona fide requirement-Landlord was in possession of accommodation, but he did not state this fact in eviction petition-Landlord not entitled to evict tenant-Held:- (i) Landlord is obliged under the law of put forth the account of available alternate accommodation of his own and regarding unsuitability of the same for the alleged need in his pleadings-in the absence of such pleadings in view of availability of such alternate accommodation with the landlord the alleged need of the landlord regarding disputed premises could not be held to be bona fide. He also placed reliance upon the ratio of judicial pronouncement reported as 444 Local Acts Reporter 2004 LAR holding that “A. East Punjab Urban Rent Restriction Act,1949(III of 1949), Section 13(3)(i)-Bona fide need- Civil Revision No.2947 of 2011 9 Personal necessity-Landlord concealing the material facts with regard to other accommodation in his possession-petition is silent about the present address of the landlord- in the absence of significant details it could not be held that accommodation in possession of the landlord is insufficient for his need-Ground of personal necessity not made out.” This fact cannot be ignored that respondent herself admitted that back portion was demolished by Sat Pal Madaan as same was in dilapidated condition. Back portion is lying vacant as same was demolished by the petitioner and none disclosure of this fact in the petition by the petitioner is not sufficient to assume the need of petitioner being motivated by greed. Petitioner cannot be forced to construct a shop on the back side of the shop abutting main road. No doubt non-disclosure of alternative accommodation with the petitioner is material factor but such accommodation must be alike the accommodation sought to be got vacated. A vacant plot on rear side of the shop in dispute cannot be said to be alternate to shop on the main road and non-disclosure of place which is not suitable for running of business is not ipso facto sufficient to hold the need of landlord sheer a greed. Reliance is placed upon ratio of judicial pronouncement reported as 2004 Civil Revision No.2947 of 2011 10 (1)RCR(Rent) page 177 wherein it was held that “-Suppression of material fact-eviction sought on ground of bona fide requirement-landlord not disclosing some vacant accommodation which was not suitable for him-such omission cannot be termed as suppression of material fact”. Also on ratio of judicial pronouncement reported as 1996(2)RCR(Rent) wherein same analogy was reiterated and was held that “Bona fide requirement- suppression of facts-landlady's husband had a flat on rent which he had vacated-this fact not disclosed in application for eviction of tenant-this does not amount of suppression of fact”. Significantly, landlord is best judge of his need and landlord cannot be forced to start business on the portion which is on the back side of main /metalled road. Reliance is placed upon ratio of judicial pronouncement reported as 2000(1)RCR(Rent) page 135 wherein it was held that “ M.P. Accommodation Control Act, 1961, Section 12(1) (e)and 12(1)(f) -bona fide requirement-landlord is best judge of his requirement for residential or business purpose-Landlord has complete freedom in the matter”. Also on the ratio of judicial pronouncement reported as 2007(1)RCR (Rent) page 83 wherein it was held that “East Punjab Urban Rent Restriction Act, Section 13(3) (a)(i) Bona fide requirement-alternative Civil Revision No.2947 of 2011 11 accommodation-landlord seeking eviction of tenant from shop on ground of bona fide requirement to start business-mere fact that wife of landlord purchased a plot could not be a ground to reject the claim of landlord as it was for landlord to see as to where he was supposed to run his business-it is settled law that the landlord is the best judge of his need and choice and cannot be dictated by the tenant as to where he should run his business. Also on ratio of judicial pronouncement reported as 2006(2) RCR page 646 wherein it was held that Haryana Urban (Control of Rent and Eviction) Act, 1973, Section 13(3)(a)(i)-bona fide requirement-landlord, a qualified technologist, wanted to start his own consultancy service-premises suitable for starting consultancy service-Once the landlord has explained the suitability of the premises, neither the tenant nor the Courts can substitute the requirement of the landlord. Significantly, Sat Pal Madaan, admitted that there were 50 rooms in the property bearing No. 171/174 and he did not remember the number of tenants which were inducted in the property bearing No. 171/174. This concession when with juxtaposed with the concession of Jagdish Kaur that Sat Pal Madaan was having shops only being under her possession and in possession of Kamal Mahajan Civil Revision No.2947 of 2011 12 leads to one irresistible conclusion that there was no other tenant in the entire premises under the petitioner. Petitioner intending to start his business in the shop in dispute falling to his share certainly is to be assumed a bona fide need and also need of land is not to be seen with surgeon's eye. Jagdish Kaur in consonance with pleadings of her written reply stated that Sat Pal was having sufficient shops but also admitted in cross-examination that same were not owned by Sat Pal Madaan and also admitted Sat Pal Madaan had not got vacated any shops from any tenants. Tarlochan Singh RW2 in cross- examination stated that petitioner was having 13 marlas of land falling to his share and two shops were having three marlas only. He stated that petitioner could run business in 10 marlas in open space. He admitted that site plan Ex.AW3/A having portion mark X was owned by Sat Pal Madaan wherein there was shop of Kamal Mahajan and shop in dispute. He admitted that property at Master Tara Singh Nagar, Jalandhar was residential property of petitioner and his wife. In case shops in dispute and other shops are in three marlas of land and portion falling on the back side of the shop in dispute is in an area of 10 marlas being an open space as conceded by Tarlochan Singh in cross- examination, petitioner as discussed here-in- Civil Revision No.2947 of 2011 13 before cannot be forced to start his business by constructing the shop there on open space. No doubt, there is admission on the part of petitioner that there was planning to let out the premises on the back of property in dispute after raising construction, but as discussed supaa, that part being on the back side of premises in dispute and being open, petitioner cannot be forced to use same and his need as greed cannot be assumed on this sole ground. Even, planning to let out that premises to bank is not be stretched to assume need of petitioner being greed. If bank had appetite to start business at place away from road, petitioner cannot be forced to follow the suit. Therefore, issue No.2 is decided in favour of the petitioner and issue No.4 is decided against the respondent.” It may also be relevant to peruse the observations of the Appellate Authority, Jalandhar, which read thus: There is nothing on the record to show that the petitioner has any other commercial property in his possession or he has vacated the same. As per family partition and as admitted by the respondent in the cross examination, there are only these shops which are in possession of Kamal Mahajan and the present respondent. The cross examination of the petitioner also shows that his mother has executed will in favour of Nandni Madan which means that the property or Civil Revision No.2947 of 2011 14 shops are not owned by the petitioner. There is nothing on the record to show that the petitioner has any other suitable building to run the business of electronic goods. The petitioner is residing in Master Tara Singh Nagar, but again that is residential building and it is stated by the petitioner that the building is not owned by him. Even in the cross examination, a question was asked to the respondent, if the shop is offered in the side street, whether she is ready to do the business but the respondent replied that she is not ready to do the business there.. It is for the landlord to see what business he wants to run and in which property. Even the respondent in the cross examination has stated that if the wall of stairs case on the back side is demolished then shop of Kamal Mahajan and the shop in question will become one unit. She has also stated that this is that proper place to run the business of electronic goods. Petitioner Sat Pal Madan is retired employee and he is diploma holder. He can run the business and has the capacity to run the same. As such the shop in question is required bonafide by the petitioner. From the reading of the aforesaid observations of the authorities below, it is clearly made out that both the courts below have recorded a concurrent finding of the fact that there exists the personal need of the respondent. From the record, it is clear that there is ample evidence to support the findings of the courts below. In view of the evidence on Civil Revision No.2947 of 2011 15 record, it cannot be argued that it is a case of no evidence and therefore findings are perverse. Not only this, no material evidence has been pointed out before this Court on the basis of which the findings recorded by the courts below could be challenged. It is well settled that landlord is the best judge of his needs and the tenant cannot dictate him regarding his suitability of the premises. Simply because, at one point of time, the respondent was planning to let out his residential portion to some bank will not dis-entitle him to seek ejectment on the ground of personal necessity. So far as alleged tenancy of Anil Kumar is concerned, it has come on record that Anil Kumar was in possession of the room 4-5 years ago as a tenant and it was only the lease deed executed during the pendency of the present litigation. It is also well settled that the question “whether demised premises are required by the landlord for his personal need” is essentially a question of fact. Both the courts have recorded a concurrent finding against the petitioner. It is well settled that this court in its revisional jurisdiction will not substitute its opinion with the findings of the courts below only because another view is possible. Thus, I find no merit in this petition. Dismissed. (RAKESH KUMAR GARG) JUDGE 10.08.2011 neenu