C.R. No. 2648 of 2007 -1- ****** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 2648 of 2007 (O&M) Date of Decision : 26.07.2010 Shankar Lal .......... Petitioner Versus Madan Lal & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Jain, Sr. Advocate with Mr. J.S. Chandail, Advocate for the petitioner. Mr. Arun Palli, Sr. Advocate with Mr. K.V.S. Kang, Advocate for the respondent(s). **** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? Yes. 3. Whether the judgment should be reported in Digest? Yes. ***** VINOD K. SHARMA, J. This is tenants' revision petition against the order dated 28.4.2007, passed by the learned Appellate Authority, Sirsa, allowing a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as “the Act”). The respondent / landlord filed a petition against the petitioner and respondents No. 2 to 6 being the tenant by inheritance from late Sh. Suraj Bhan and Mahabir Parshad. Sh. Suraj Bhan and C.R. No. 2648 of 2007 -2- ****** Mahabir Parshad, tenants were said to be in possession of the ground floor of shop shown in the heading of the petition, whereas the respondent was landlord, who was in possession of the first floor. The rate of rent of the tenanted premises was Rs. 1615/- (Rupees one thousand six hundred and fifteen only) per annum. The case of the landlord was, that the tenants had not paid the rent since 11.6.1996, therefore, were liable to be evicted for non-payment of rent. The second ground of eviction pleaded was, that the shop in question was required by the landlord / respondent for business of his son Sanjeev Kumar, who had already passed his matriculation examination. The case set up by the landlord was, that he has no other shop, except the shop in question, for business of his younger son Sanjeev Kumar. The third ground, on which the eviction sought, was that the shop was unfit and unsafe for human habitation, as its structure was old one, and it could collapse at any time having outlived its age. The ceiling of the shop was made of wooden batons which had many bends, besides there being cracks in the walls. The ground of impairing the value and utility of the shop by misuse was also taken. The petition was contested by the tenants by filing joint written statement, wherein factum of tenancy was admitted. The stand taken by tenants was, that the petitioner, C.R. No. 2648 of 2007 -3- ****** Shankar Lal alone was doing business in the capacity of tenant in the shop in question. It was also denied, that the tenancy of the tenants was only on the ground floor portion rather, it was pleaded, that roof was also part of the tenancy, and was in possession of the tenants. It was the stand of the tenants, that respondent No.6 Hari Krishan son of Mahabir Parshad never occupied the shop, in any capacity, and was doing his business separately. The tenant tendered the rent upto 10.1.2000, along with interest and costs, which was accepted by the landlord. The tenants denied, that the shop in question was required by the landlord for his personal necessity, as his son Sanjeev Kumar had other suitable premises to start business. It was further the case of the tenants, that both the sons of the landlord were doing optical business in the premises owned by them, therefore, the requirement of the landlord was not genuine or need based. A specific plea was taken, that the petition lacked necessary particulars, as required under Section 13 of the Act. The plea of building being unfit and unsafe was also denied, and it was also denied, that the tenant had impaired the value and utility of the building. In view of the stand taken in the written statement, it was asserted, that the petition deserved to be dismissed with costs. Respondent No.6-Hari Krishan despite service did not appear and was proceeded ex parte. In the replication, the stand taken in the petition was reiterated, and the averments made in the written statement were C.R. No. 2648 of 2007 -4- ****** denied. On the pleadings of the parties, the learned Rent Controller, framed the following issues :- “1. Whether the respondent is liable to be evicted under Section 13 of the Haryana Urban (Control of Rent and Eviction ) Act, 1973 from the ground floor shop bearing House Tax No. 5/586 (old No. 8550 as mentioned in the petition? OPP 2. Whether the petitioner has no cause of action to file the present petition ?OPR 3. Relief.” The landlord in support of his case examined Sh. O.P. Madaan as AW-1, Sanjeev Kumar as AW-2, Ram Kishan Goyal as AW-3 (General Attorney of the petitioner). Report of the Architect / Surveyor was placed on record as Ex. P-1 site plan Ex. P-2, photographs Ex. P-3 to P-9 and certified copy of the General Power of Attorney as Ex. PW3/1. The tenant / petitioner examined Bishamber Dayal Singh as RW1, Sanjay Kumar as RW-2, Kamlesh alias Pappu as RW-3, who besides his deposition proved Ex. R1 report of the Administrator, site plan Ex. R-2, Photographs Ex. R-3 to Ex. R-7, negatives Ex. R-8 to Ex. R-12, cash receipt Ex. R-13, special power of attorney Ex. R- 14, and extract from the House Tax Assessment Register Ex. P-15. At the time of arguments, the landlord pressed the C.R. No. 2648 of 2007 -5- ****** petition only on two grounds i.e. the shop in dispute was required for bona fide personal need to set up business of his son Sanjeev Kumar; and that the shop had become unfit and unsafe for human habitation. In support of the plea, that the building had become unfit and unsafe for human habitation, Sh. O.P. Madaan, Licensed Surveyor and Assessor, Architect was examined as AW-1, who deposed, that he had inspected the shop on 22.3.2003, prepared the report Ex. P-1, and site plan Ex. P-2. He also proved photographs along with the negatives Ex. P-3 to Ex. P-9. In the report it was mentioned, that the building was about 90 years old, at lower level than surrounding buildings, and in a un- maintained condition. Walls were weak, curved, cracks patch filled, roof in poor and leaking condition, leaking / holed at various points, shop floor 10” under the road level and 2'4” below the foot path, roof of poor quality, old moth eaten, wooden balas/ karris in cracked cut condition. He opined the building to be in dilapidated and very poor condition, therefore, unfit and unsafe for human habitation. The photographs were also pressed into service, in view of the opinion referred to above, the statement of AW-2 Sanjeev Kumar was pressed into service. In support of this pleas, he deposed, that the shop in question was 100 years old, there were cracks in the walls. He further deposed, that roof during the rainy season leaked, and there was possibility of the shop crumbling down at any time. C.R. No. 2648 of 2007 -6- ****** AW-3 Ram Kishan Goyal, Attorney of the landlord appeared and deposed, that as the landlord was an old man, therefore, was unable to move around. He also deposed regarding the building being unfit and unsafe, as per the evidence of Sanjeev Kumar. In view of the evidence, referred to above, and by placing reliance on the judgment of this Court in the cases of Krishan Lal Vs. Madan Gopal 1990(2) P.L.R. 464, Bal Kishan Vs. Raj Kumar 1997(2) P.L.R. 613, it was contended that the issue of building being unsafe and unfit deserved to be decided in favour of the landlord. In support of the contention, that the building being 100 years old would be deemed to have out lived its life, reliance was placed on the judgment of this Court in the case of Puram Chand Vs. Kailash Chand and others 2000 HRR 225 (P&H). Besides this, reliance was also placed on the judgment of this Court in the case of Sita Ram Bansal Vs. Niranjan Dass and another 2003 HRR 277. In support of the contention, that the building was required for personal necessity of the petitioner to settle his own son Sanjeev Kumar, in separate business, in the demised premises, reference was made to the statements of the witnesses, who had deposed, that besides the shop in question the landlord did not own any other shop. The petitioner himself was said to be an agriculturist, whereas other son Ram Kishan Goyal, attorney, was having his own business in Hissaria Bazar. C.R. No. 2648 of 2007 -7- ****** The contention on the basis of the evidence, referred to above, was that the landlord being the best judge of his need and requirement, was entitled to order of eviction. The learned counsel for the landlord in support of the contention, that in absence of pleading of necessary ingredients of the Act in the petition, eviction could still be ordered, placed reliance on the judgment of this Court in the case of Joginder Pal Vs. Naval Kishore Behal 2002(2) P.L.R. 625. Thereafter, by placing reliance on the judgment of this Court in the case of P.L. Chopra Vs. Arun Aggarwal 2002(3) P.L.R. 642, it was contended, that the bona fide requirement of the landlord could not be doubted. Reference was also made to the judgment in the case of Kedar Nath Bhatnagar Vs. Dharam Paul 1978(1) All India Rent Control Journal 1159 to contend, that the landlord was the final judge about his need, and the Court could not question this unless the landlord's claim was very much exaggerated and prompted by extraneous consideration. As already observed above, in addition the judgments referred above in support of the contention, that the landlord was the best judge of his personal necessity, reliance was also placed on the judgment in the case of Triloki Nath Vs. Vinod Kumar 2001 HRR 513. Reliance was also placed on the judgment in the case of Dev Raj Mittal Vs. Vidya Sagar 1994(2) P.L.R. 451 to contend, that C.R. No. 2648 of 2007 -8- ****** owning of other properties was not a bar to seek ejectment from residential building. The contentions referred to above, were rebutted by the tenant by contending, that AW-1 Sh. O.P. Madaan, could not be treated to be expert, as he did not possess the requisite qualification. The contention was, that Sh. O.P. Madaan, was not an Architect as he did not possess any qualification i.e. the Diploma or Degree in Architecture. It was also the contention of the tenant, that AW-1 was unable to support the view of the building being unfit and unsafe, in the cross-examination, for want of any chemical and mechanical test. The plea was also raised, that it was admitted fact, that the building on the three sides of the shop in question was newly constructed, and the walls, which were common with the shop in question, had also been reconstructed, meaning thereby, that the walls have become more strong and its load bearing capacity increased. In support of the plea, that the building was fit and safe for human habitation reliance was placed on the evidence of RW-1 Bishamber Dayal, retired S.D.E. who had opined, that the disputed shop was fit for human habitation at least for another 30/40 years. The contention was, that the report given by RW-1 inspires more confidence, as it was based on scientific proof. The reliance was placed on the photographs Ex. R-3 to R-7 to prove, that the shop in question was perfectly safe and fit for human habitation. C.R. No. 2648 of 2007 -9- ****** Reliance was placed on the statement of Sanjay Kumar, who appeared as Special Power of Attorney on behalf of Shankar Lal, wherein he had deposed, that shop was in perfect condition, and there were no cracks and holes in the roof. Reliance was placed on the statement of RW-3 Kamlesh alias Pappu, in support of the plea, that the shop was in good condition. The reliance was also placed by the tenant on the judgment of this Court in the case of Surinder Singh Babra Vs. Bhushan Kumar Sharma 2003 HRR 515, wherein it was held, that existence of cracks by themselves do not per se prove, that the building in question has become unfit and unsafe for human habitation. Finally, reliance was placed on the following judgments to contend, that even if part of the roof had fallen, the tenant was not liable to be evicted from the premises i.e. Trilok Chand Vs. Smt. Dropati Devi and Ors. 1990(1) R.L.R. 31, Ram Avtar Vs. Murari lal and Anr. 2000 HRR 262, Daulat Ram Vs. Laxmi Narain 2003(2) RCR (Rent)353 and Pritam Singh Vs. Om Parkash Adya 1999(2) RCR (Rent) 282. Finally, the contention raised was, that as the landlord had failed to allege and prove that he wanted to reconstruct the building, the ground of unfit and unsafe was not maintainable, in view of the law laid down by this Court in the case of Smt. Raj Kumari Vs. Shadi Lal 1969 P.L.R. 245. It was contended before the learned Rent Controller, that C.R. No. 2648 of 2007 -10- ****** when there were two contradictory opinions, the finding can not be based on the photographs alone. the main plank of argument was, that the similar petition for ejectment earlier filed by the landlord was dismissed, therefore, the subsequent petition on the same ground was not maintainable, for not disclosing this fact. In support of this contention, reliance was placed on the judgments of this Court in the cases of Banwari Lal Vs. Smt. Tulsan Devi 2003 HRR 661 and Ram Sarup Bhalla Vs. Barkat Singh 1990(2) P.L.R. 547. Finally, it was pleaded that for want of the landlord stepping into the witness box, no reliance could be placed on the evidence led by the attorney. On the plea of personal necessity, the stand of tenant was, that the eviction petition was liable to be rejected for want of the pleadings, that the landlord had not vacated any other building without just cause after the commencement of the Act as envisaged under Section 13(3)(a) of the Act. The contention was that in order to seek eviction on the ground of personal necessity, these averments are essential to be pleaded, and proved as given in Section 13(3)(a) (i)(b) and (c) of the Act. In support of this contention, reliance was placed on the judgment of this Court in the case of Joginder Singh Vs. Harbans Lal 2003 HRR 291. The contention was also raised, that these averments were not deliberately made by the landlord in the petition, as he had other premises, where he could easily adjust his second son. The reference was also made to the cross-examination of C.R. No. 2648 of 2007 -11- ****** AW-2 Sanjeev Kumar, who admitted that adjacent to the shop of Rama Opticals there were two more shops, where in one of the shops Generator set was placed and the other shop is being used for car parking. It was also pointed out, that AW-3 Ram Kishan Goyal also admitted, that there were two vacant premises, out of which one is being used as garage and other for generator set. It was admitted in cross-examination, that the premises being used as a garage is 8 ½ x 17' and the premises used for generator is 8 x 3'. Thus, it was pleaded, that sufficient accommodation was available with the landlord to adjust his son. The plea, that the second petition, on the same ground was not competent, was not accepted, for want of objection of res judicata, which is a plea of facts and law. After considering the arguments, referred to above, the learned Rent Controller, came to the conclusion, that the landlord failed to prove, that the building was unfit and unsafe for human habitation. On the question of bona fide requirement, the learned Rent Controller, held that it was not for tenant to dictate, qua the personal need of the landlord. In view of the settled law, that the landlord was the best judge of his requirement and also that it was for landlord to decide where he wants to start a business, of his son in a shop. The learned Rent Controller also did not accept the C.R. No. 2648 of 2007 -12- ****** contention, that the eviction petition was liable to be dismissed for want of fulfilling of the mandatory provisions of Section 13(a)(ii) of the Act, as there was no concealment of facts which could be attributed to the landlord, as it was mentioned in the petition, that his son Ram Kishan was doing his business in his shop situated at Hissaria Bazar, and that the present shop was required by the second son Sanjeev Kumar for setting up his business. It was also proved, that other shops were being used for generator set and parking of car. The learned Rent Controller accepted the plea, that the landlord was to set up the business of his second son. The learned Rent Controller also took note of the fact, that the family of the tenants was occupying at least five shops in the city as admitted by RW-2, in his cross-examination, which were rented out to different tenants. The learned Rent Controller also came to the conclusion, that Sanjeev Kumar had appeared in the witness box, and deposed in proof of his personal necessity, and his stand was further supported by the attorney of the landlord. The learned Rent Controller did not accept the plea, that the evidence of the attorney was required to be rejected for the reason, that attorney in this case had personal knowledge, to depose being brother of Sanjeev Kumar and son of the landlord. The learned Rent Controller, thereafter took note of the provisions of the Rent Act to hold, that there was a procedure to check the frivolous applications of eviction on the ground of bona fide C.R. No. 2648 of 2007 -13- ****** requirement. The issue of personal necessity was decided in favour of the landlord and consequently, the petition was allowed. The petitioner preferred an appeal, wherein the landlord filed cross-objections. The learned Appellate Authority did not accept the plea raised by the petitioner, that the petition framed was liable to be rejected for want of ingredients of sub-clause (b) and (c) of paragraph (i) of Section 13(3)(a) of the Rent Act, for the reason that the learned Appellate Authority came to the conclusion, that in para 3 (b) of the petition the landlord had pleaded, that the shop in question was required by him for the business of his son Sanjeev Kumar who had already passed his matriculation examination; and that the petitioner has no other shop except the shop in dispute, for starting the business of his younger son namely Sanjeev Kumkar, who was recently married, and further in the replication, the landlord had pleaded that his younger son namely Sanjeev Kumar had no business, and did not own any other shop except the shop in question. The learned Appellate Authority, in view of the averments made in para 3(b) of the petition, and replication came to the conclusion, that the landlord had substantially pleaded the facts required as per the provisions of the Rent Act. The learned Appellate Authority held, that the landlord had examined two witnesses to prove his need, and came to the conclusion, that the learned Rent Controller was right in coming to the conclusion, that the premises was required bona fide by the C.R. No. 2648 of 2007 -14- ****** landlord, specially, in view of the fact, that on failure of landlord to occupy the building, it was open to regain the possession under Section 13(6) of the Rent Act. The learned Appellate Authority affirmed the finding of the learned Rent Controller holding, that the landlord had failed to prove, that building was unfit and unsafe for human habitation for the reason, that Sh. O.P.Madaan, RW-1 could not be considered to be expert witness. The learned Appellate Authority, however, affirmed the finding of the learned Rent Controller, on the ground of personal necessity and dismissed the appeal. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner challenged the finding of the learned Rent Controller and learned Appellate Authority, on the ground of personal bona fide requirement, by referring to the provisions of Section 13(3) (a)(ii)(b) and (c) of the Act, which read as under :- “13. Eviction of tenant - (3)(a) A landlord may apply to the controller for an order directing the tenant to put the landlord in possession; (i)................................... (ii) in the case of non-residential building or rented land, if (a) he requires it for his own use; (b) he is not occupying in the urban area concerned for the purpose of his business any other such building or rented land as the case may be; and C.R. No. 2648 of 2007 -15- ****** (c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Act,in the urban area concerned;” The contention of the learned senior counsel was, that in order to succeed in a plea of personal necessity, it was necessary for the landlord to plead and prove, that he was not occupying any other building in the urban area concerned, and that he had not vacated such a building without sufficient cause after the commencement of this Act in the said urban area. The learned senior counsel for the petitioner referred to the pleading in the petition under Section 13 of the Act in this regard, wherein the only pleading regarding personal necessity was as under :- “b) That the shop in question is required by the petitioner for the business of his son- Sanjeev Kumar who had already passed his matriculation examination. The elder son Ram Krishan is already doing his own business in his shop situated at Hissaria Bazar, Sirsa and the petitioner has no other shop except the shop in dispute for the business of his younger son namely Sanjeev Kumar who has recently been married.” Even in the replication, the ground with regard to personal need reads as under :- “3(b) That this sub para of the written statement is wrong and incorrect; hence denied and that of the petition is correct and C.R. No. 2648 of 2007 -16- ****** reiterated. It is wrong to allege that the requirement of the petitioner is not genuine. Though it has been admitted in this para by the respondents that both sons of the petitioners are doing opticals business in the premises but infact the younger son of the petitioner namely Sanjiv Kumar has no business and does not own any other shop except the shop in dispute, which is required by the petitioner for settling his son Sanjiv Kumar in some other business. Sanjiv Kumar is sitting with his elder brother Ram Kishan temporarily because he is in the dire need of the shop in dispute for his own separate business. The opticals business is being run by Ram Kishan elder son of the petitioner under the name and style Rama Opticals, Sirsa who is the sole proprietor of the same. Sanjiv Kumar has no concern with the said shop.” The contention of the learned senior counsel for the petitioner, therefore, was that this was a case of total lack of pleading of ingredients, therefore, the learned Rent Controller, as well as the learned Appellate Authority committed an error in law in coming to the conclusion, that though the pleadings as required under Section 13(3)(a)(i)(b) and (c) were not specifically pleaded, but there were substantially pleaded in the replication. The contention of the learned senior counsel for the petitioner, therefore, was