CR No.1804 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1804 of 2011 (O&M) Date of Decision: 08.04.2011 Smt. Neena Jauhar and others . . .Petitioners Versus Gulshan Kumar . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Amit Jhanji, Advocate, for the petitioners. Mr.Raman Mahajan, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J (ORAL) This revision petition is directed against order dated 12.2.2011 passed by the learned Rent Controller, Chandigarh by which an application filed by the tenant under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for amendment of the written statement has been allowed. In brief, the landlord filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) in order to seek eviction of the tenant from portion of the second floor of SCO No.11, Sector 17E, Chandigarh, inter alia, on the ground of arrears of rent w.e.f. 1.4.2003 and personal necessity. Written statement was filed by the tenant on 27.9.2007 to which rejoinder was filed and after the pleadings were over issues were framed on 7.12.2007. When the case was listed for cross-examination of respondent/tenant witnesses, he filed an application on 20.9.2010 for the purpose of amendment of the written statement in order to add the following “that during the pendency of case especially after 6.9.2010 ground floor portion which was on rent with the tenant i.e. M/s Indian Rayon Industries Limited per registered lease deed Ex.P36 has fallen vacant. Said area is on the ground floor and is much bigger than the demised premises. Petitioners are negotiating with a number of other persons to re-let the same and renovation work is in progress. Petitioners have not taken CR No.1804 of 2011 (O&M) - 2 - steps to occupy the same. Ground so set up regarding insufficiency of accommodation is just illusory and lacks bonafide”. The application was contested by filing reply in which it was alleged that tenancy involved of M/s Indian Rayon Industries Limited is upto the year 2014 and it was denied that the ground floor had fallen vacant. It was alleged that it is undergoing renovation by M/s Indian Rayon Industries Limited, which is doing the business under the name and style of Madhura Garments. The learned Rent Controller allowed the application vide impugned order dated 12.2.2011, which is challenged before this Court by way of present revision petition in which at the time of notice of motion, following order was passed by this Court: “By this revision petition, the landlord has challenged the order dated 12.2.2011 passed by the learned Rent Controller who has allowed an application filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 by the tenant for inserting an averment that the ground floor of the demised premises has been vacated by the earlier occupant M/s Indian Rayon Industries Limited, therefore, the insufficiency of accommodation claimed by the landlord is illusory. Learned counsel for the petitioners submits that in fact the demised premises in occupation of M/s Indian Rayon Industries Limited has not fallen vacant because it is in occupation of Madhura Garments, which is one of the sister concern as per lease deed dated 25.7.2005 Annexure P-8 attached with the paper book. Notice of motion for 23.3.2011. Dasti only. In the meantime, learned Rent Controller is directed to adjourn the case pending before it beyond the date given by this Court.” Thereafter, on 4.4.2011 following order was passed by this Court: - CR No.1804 of 2011 (O&M) - 3 - “This revision petition is directed against the order passed by the learned Rent Controller, Chandigarh dated 12.2.2011 by which an application filed by the tenant for amendment of the written statement has been allowed at the stage of rebuttal and arguments. The landlord has filed eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) in order to evict the tenant from second floor of SCO No.11, Sector 17E, Chandigarh on the ground of personal necessity. The tenant filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) in order to make an additional averment to the effect that during the pendency of case especially after 6.9.2010 ground floor portion which was on rent with the tenant i.e. M/s Indian Rayon Industries Limited per registered lease deed Ex.P36 has fallen vacant. Said area is on the ground floor and is much bigger than the demised premises. Petitioners are negotiating with a number of other persons to re-let the same and renovation work is in progress. Petitioners have not taken steps to occupy the same. Ground so set up regarding insufficiency of accommodation is just illusory and lacks bonafide”. It is argued by learned counsel for the petitioners before the Court below that portion under the tenancy of Madhura Garments/Allen Solly has not been vacated and is in possession of the said tenants but the Court had held that no document has been placed on record in that regard and the learned Rent Controller allowed the application on the ground CR No.1804 of 2011 (O&M) - 4 - that the amendment sought is not going to change the nature of the case as well the relief sought by the petitioners, rather it would help to adjudicate upon the matter smoothly and properly. The application was allowed with costs of Rs.1000/-. Aggrieved against the said order, revision petition has been filed and during the pendency, the counsel for the petitioners again reiterated that ground floor of SCO No.11, Sector 17E, Chandigarh is still in possession of the same tenants namely, M/s Indian Rayon and Industries Ltd., who is running business of readymade garments of the brand Allen Solly, which is being marketed by M/s Madhura Garments Ltd. through its parent company namely, Aditya Birla Nuvo Ltd. Both the learned counsel for the parties are ad idem that this fact can be even verified by the Court by appointing a Local Commissioner at the cost of the petitioner and if it is found to be correct then the cost may be recovered from the respondent. Learned counsel for the respondent has not shown any averseness to this suggestion and in view thereof, I appoint Mr.Jaivir Chandel, Advocate, who is present in Court, as a Local Commissioner to go and verify the fact as to whether ground floor of SCO No.11, Sector 17-E, Chandigarh is in possession of M/s Indian Rayon and Industries Ltd. who are selling readymade garments of the brand “Allen Solly” which is being marketed by M/s Madhura Garments Ltd. manufactured by Aditya Birla Industries. The Local Commissioner would go todayin the evening at about 6.30 PM after obtaining order of CR No.1804 of 2011 (O&M) - 5 - this Court, which shall be provided to him under the signatures of the Bench Secretary of this Court. His fee is being fixed at `11,000/- which would include the expenses as well, which shall be paid in advance by the petitioners to him. Needless to say that both the parties would be there at the time of inspection which shall be carried out today at 6.30 PM. The report of the Local Commissioner be placed on record on or before 7.4.2011. Adjourned to 8.4.2011.” In pursuant to the aforesaid order, the Local Commissioner has submitted his report dated 05.04.2011 along with bill (Annexure LC/2) and few photographs (Annexure LC/3). As per his report, the ground floor of SCO No.11, Sector 17-E, Chandigarh is in occupation and is not vacant where readymade garments of Allen Solly brand are being sold. Keeping in view the facts and circumstances of the case and report of the Local Commissioner, I am of the view that the impugned order passed by the Rent Controller is patently illegal. Hence the revision petition is allowed and the impugned order is hereby set aside. As it was already observed in the order dated 4.4.2011 that in case of success of the revision petition the fee of the Local Commissioner shall be paid by the respondent who is now directed to comply with it. (RAKESH KUMAR JAIN) APRIL 08, 2011 JUDGE Vivek