C.R.No.4906 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNAB AND HARYANA, CHANDIGARH C.R. No.4906 of 2011 (O&M) Date of decision:8.9.2011 Vinod Kumar .......Petitioner. Vs. Prem Bhalla and others .......Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG, Present: Mr.Nilesh Bhardwaj, Advocate, for the petitioner. Mr.Piyush Bansal, Advocate, for respondent No.4. -- RAKESH KUMAR GARG,J. This is tenant's revision petition challenging the order of the Rent Controller dated 8.2.2011 whereby his eviction has been ordered from the demised premises and the order dated 24.5.2011 of the Appellate Authority dismissing the appeal against the aforesaid order of eviction. Brief facts of the case are that respondents No. 1 to 3 filed an ejectment application against the petitioner and respondent No.4 from the demised premises on the averments that they had purchased the demised premises from its earlier owner Shri Lachman Dass son of Baseshar Dass vide registered sale deed 1.2.2007. The said premises were rented out to the petitioner by Shri Lachhman Dass on a monthly rent of Rs.325/- vide rent note dated 7.1.1989. The rate of rent was to be increased by 10% after every two years. Petitioner made the payment of rent to Lachhman Dass upto 31.8.2000 at the rate of Rs.520/- per month and thereafter stopped the payment. It is further case of respondents No. 1 to 3 that petitioner without C.R.No.4906 of 2011 (O&M) 2 consent of Lachhman Dass sublet the demised premises to respondent No.4 and parted with the possession exclusively in favour of the aforesaid respondent. It was also the case of the respondent landlord that at the time of execution of the sale deed of the demised premises the original owner Shri Lachhman Dass also gave rights of recovery of the rent from the tenant and to seek his ejectment from the demised premises. The said Lachhman Dass before executing the sale deed received the rent due against the petitioner from the landlords and executed two affidavits dated 1.2.2007 in this regard. Now the ejectment of the petitioner as well as respondent No.4 was sought on the ground of non payment of arrears of rent, subletting and without permission of the owner/landlord and that demised premises were required for personal necessity of the landlord as respondent No.2 wanted to start his business. Upon notice petitioner filed written statement stating that respondent No.4 was working as a partner and was not a sub tenant in the demised premises. It was also stated that respondent was in possession of the demised premises as a tenant. It was also stated that respondent No.1 had already paid the entire amount of rent, however, no receipt in this regard was issued by the landlord. The ground of personal necessity of the demised premises has been put forward just to seek ejectment of the petitioner and the landlord was not in need of the demised premises. Respondent No.4 filed separate written statement stating that he was working as a partner and was in actual possession of the demised premises as a tenant. Rest of the contents of the petition were denied and dismissal of the ejectment application was prayed for. Rejoinder was filed by the landlord reiterating the averments C.R.No.4906 of 2011 (O&M) 3 made in the petition and those of the reply were denied. On the pleadings of the parties, the following issues were framed:- 1. Whether the respondents are liable to be ejected from the premises in dispute ? OPP 2. Whether the petitioners are estopped from filing the present petition by their own act and conduct ?OPR 3. Whether the present petition is bad for mis joinder and non joinder of necessary parties ?OPR 4. Whether the petitioner has got no cause of action to file and maintain the present petition ?OPR 5. Relief. The respondent landlord examined Ram Kumar Kamboj, Architect as PW-1, who proved the site plan Ex.P1 of the demised premises, Vinod Kumar as PW2 who tendered his affidavit in evidence as Ex.PW2/A and proved on record rent receipts Ex.P.W2/B to Ex.PW2/D. Respondent No.1 Prem Bhalla appeared himself as PW3 and proved on record copy of sale deed Ex.PW3/B. Respondent No.2 stepped into the witness box as PW4 and proved his personal necessity. Parveen Kumar PW5 proved on record copy of the order dated 1.5.2007 Ex.PW5/A, certified copy of the plaint as Ex.PW5/B, certified copy of the written statement as Ex.PW5/C, certified copy of vakalatnama as Ex.PW5/D. Lachman Dass was examined as PW6 to prove on record agreement as Ex.X-1, rent note as Ex.X2, rent receipts Ex.X3 to Ex.X.6 and affidavits as Ex.X7 and Ex.X.8. On the other hand petitioner himself stepped into the witness box as RW1 and tendered his affidavit as Ex.RW1/A, Kuldeep Gupta and Sandeep were examined as RW2 and RW3 who also tendered their affidavits in evidence as Ex.RW2/A and Ex.RW3/A respectively. Thereafter, the evidence of the petitioner and respondent No.4 was closed by order of C.R.No.4906 of 2011 (O&M) 4 the Court as they failed to conclude their evidence despite numerous opportunities. No evidence was led in rebuttal by the landlord. After considering the evidence on record and hearing the learned counsel for the parties, the Rent Controller held that the rent tendered by the petitioner tenant on 1.5.2007 at the rate of Rs.325/- per month was a short tender and the tenants were liable to pay rent at the rate of Rs.520/- per month for the entire period from April 2004 till March 2007. However, the tenants were given one month's time from the date of the order to make good the short tendered rent along with interest at the rate of 6% per annum from the date of accrual till its actual payment. Vide impugned order the Rent Controller also held that the tenants were liable to be ejected from the demised premises on the ground of sub tenancy as well as personal necessity. Issues No.2 to 4 were decided against the tenants holding that they have failed to prove the aforesaid issues. The relevant portion of the findings of the Rent Controller reads thus:- “ After considering the rival contentions of the parties, this Court is of the considered view that it is not disputed between the parties that the demised premises were taken on rent by the respondents from Laxman Dass vide rent note Ex.X2 on a monthly rent of Rs.325/-. A perusal of the rent note reveals that there was no clause of increase of 10% rent every two years. Thus, the contention of the petitioners in this regard is without any basis. It is further revealed from rent receipt Ex.X-6 that respondents tendered rent at the rate of Rs.520/- per month for the period from 1.5.2009 to 31.8.2009. Thus, the rent tendered by the respondents on 1.5.2007 at the rate of Rs.325/- is short tender to that extent and this Court is of the view that respondents are liable to pay rent at the rate of Rs.520/- per month for the entire period from April 2004 till March 2007. C.R.No.4906 of 2011 (O&M) 5 However, the respondents cannot be ejected from the demised premises without giving the opportunity to make good the short tender. Thus, the respondents are given one month time from the date of order of the present petition to make good the short tendered rent along with interest at the rate of 6% per annum from the date of accrual till actual payment. After considering the rival contentions of the parties, this Court is of the considered view that the respondents have not disputed the fact that respondent no.2 was also possession of demised premises. It is the plea of the respondents that they were carrying on a partnership business, wherein they were sharing the profit in the ratio of 25:75 percent respectively. However, the respondents have failed to bring on record any evidence to prove that they ever conducted partnership business in the demised premises. Although, respondent No.1 while appearing as RW1 stated that the partnership deed was got written, he stated that he does not remember the date on which the same was written. The respondents further failed to bring on record the partnership deed itself. It is stated by respondent No.1 while appearing as RW-1 that they never prepared any account of the firm while they continued the partnership business nor they kept the bill book pertaining to sale and purchase of articles. It is also admitted by RW-1 during his cross examination that he repairs the locks and does the work of repair of almirahs in the court premises. It is not disputed between the parties that the demised premises have been in use for running the business of goldsmith. This court is of the considered view that once the respondents had taken the plea of partnership business being carried on in the demised premises, it was their onus to bring on record some positive evidence to prove the same. Although, the affidavit Ex.X-B allegedly executed by Laxman dass is of no value as any admission made by Laxman Dass himself denied the knowledge of contents of Ex.X-B, yet considering the fact C.R.No.4906 of 2011 (O&M) 6 that respondent no.2 claimed himself to be in exclusive possession of the demised premises while filing plaint Ex.PW5/B against petitioner No.1, a presumption is raised regarding the sub tenancy of the demised premises in favour of respondent no.2 in absence of any evidence qua partnership of the respondents on record. It is also highly for a person, who is a partner to the extent of 25% in a business of goldsmith, to run a business of repairing locks and almirah and of making keys. Thus, this court is of the considered view that the petitioners have proved by preponderance of probability that the demised premises has been sublet by respondent no.1 to respondent no.2. As such, the respondents are liable to be ejected from the demised premises on the ground of subletting. After considering the rival contention of the parties, this Court is of the considered view that it is not disputed between the parties that one of the adjoining shops is in use by uncle of petitioner no.2 and that he is running the business of goldsmith on the first floor of the structure and that the second floor of the same has been rented out by the petitioners. However, this court is of the considered view that the respondents cannot dictate to petitioner no.2, who is owner of the demised premises to run the business on second floor of the same and not to seek their ejectment from the ground floor. It is now settled law that the tenant cannot dictate the landlord to adjust his requirements in other accommodations which are less suitable to him. The fact that the petitioners purchased the demised premises on 1.2.2007 and filed the present petition on 28.03.2007 does not bar them from filing the present ejectment petition on the ground of personal necessity as there is no such bar in the Act itself. Petitioner no.2 cannot either be compelled to join his father in his business as he has every right to start his independent business. Considering the fact that family of petitioners is already in the same business which the petitioner no.2 wants to start independently3, it cannot also C.R.No.4906 of 2011 (O&M) 7 be said that the desire of petitioner no.2 is mere wishful thinking. Thus, this court is of the considered view that there is no reason to doubt the genuineness of the intention of the petitioners and there is no reason to doubt the bona fide personal necessity of petitioner no.2. As such, the respondents are liable to be ejected from the demised premises on the personal necessity also. In the light of above discussion, issue no.1 is decided in favour of the petitioners and it is held that the respondents are liable to be ejected from the demised premises on the ground of sub tenancy as well as personal necessity. The respondents shall be liable to be ejected on the ground of arrears of rent only on their failure to make good the short tender along with interest within a period of 30 days of the order.” Aggrieved from the aforesaid eviction order of the Rent Controller the petitioner tenant filed an appeal before the Appellate Authority. Respondent No.4 who has been found to be in exclusive possession of the demised premises as sub-lessee of the petitioner has not challenged the impugned order of eviction passed by the Rent Controller. While dismissing the appeal of the petitioner tenant, the Appellate Authority found that the ground of ejectment for non payment of rent had become infructuous as petitioner tenant had deposited the arrears on 24.2.2011. In fact, the findings of the Appellate Authority in this regard are not in dispute. After considering the arguments of learned counsel for the parties and the case law cited, the Appellate Authority while upholding the ejectment of the petitioner on the ground of personal necessity observed as under:- “ Needless to say, it is also settled proposition of law that C.R.No.4906 of 2011 (O&M) 8 a landlord's perception of his personal necessity as to the premises to be occupied including the nature and the extend thereof, are generally, in the absence of any evidence to the contrary, are accepted as bonafide unless the tenant established otherwise and the onus lies upon the tenant to prove so that to by leading cogent evidence or material to raise potential doubt about the bona fide of the landlord, otherwise, the statement of the landlord has to be accepted without imposing its own perception by the court as to the state of affairs and the parameters of the necessity so pleaded. Keeping in view the above proposition, when the evidence of the landlord was scrutinized coupled with the admissions made by the tenant, it comes out that the respondent-landlord has successfully proved the plea of bonafide necessity justifying eviction of the appellant tenant from the demise premises as the entire building is required by the landlords to start new business of jewellery by landlord, Sanjiv Bhalla and it is also proved that to start that business, the landlord has to demolish all the shops to raise construction of a new building suitable for the business. Show room of Jewellery and lastly, since the shops in dispute are abutting the main road and are on the ground floor and part of the commercial area only this part of his building is suitable for the business to be started by the respondent-landlords and thus, there is nothing on record to say that the respondent- landlord has put forward a false plea of personal necessity. The main plea put forward by counsel for the appellant tenant in this regard is that as is clear from the site plan, Ex.PW1/A there is already a three storeys shop towards the Western side of the shop in dispute which is already in possession of the landlord and this is sufficient accommodation with them and as such the plea of necessity is not well founded and similarly it is also argued that there is another small shop on the Eastern side of the demised shop C.R.No.4906 of 2011 (O&M) 9 which is also part of the building purchased by the landlord and that is also with them and that can be used for starting new business. However, there is no substance in this plea because as argued by learned counsel for the landlords the necessity put forward in this petition was of respondent no.2, Sanjiv Bhalla, who is without any business and who wants to start his business of Jewellery after raising the new construction on the shop in dispute as well as the adjoining shop as the building is very old and not fit for the business of diamond jewellery. As far as the building on the Western side is concerned it is admitted fact that building is owned by appellant Prem Bhatia independently and not jointly with the other landlords and he is already running his business in the same. As far as the fact that the second floor of that building is vacant is concerned, admittedly as stated by the landlord's that is not fit for the business of jewellery which requires a good show room on the ground accessible to all and sundry easily having a good front and opening. Similarly, as far as the shop on the first floor of that building is concerned it is also in possession of the landlord Vikramjit Bhalla independently as such the appellant Sanjiv Bhalla, who is without any business, cannot start any business in those shops. No doubt, it is admitted that there is another small shop on the Eastern side but as it is clear from the site plan that shop is very small and not fit for the business of jewellery and then it is also stated that the landlord Sanjiv Bhalla intends to make one showroom of both the shops i.e. the shop in dispute and that shop, to start his business. Needless to say the appellant tenant cannot dictate his terms to his landlord and to say how the landlord should start his business and in what manner. Similarly, it is the landlord who has to see his requirement, on the contrary, the C.R.No.4906 of 2011 (O&M) 10 only requirement which is concern of the court is that the personal necessity and requirement must be bona fide and well founded Accordingly, in this case, once it is proved that the landlord Sanjiv Bhalla is not doing any business and thus his plea that he requires the shop in dispute to start his own business independent from his other brothers is well founded and rightly accepted by the Rent Controller and as such this plea also proved in vain to justify the defence of appellant tenant. Resultantly, there is nothing on record to interfere with this as such the findings of the learned Rent controller on this ground is well founded”. While discussing the question of sub-letting by petitioner in favour of respondent No.4, the Appellate Authority observed as under:- “ In the light of law enunciated above let us consider the evidence of the parties to see as to whether the findings of rent controller on this aspect are well founded or not. Accordingly after scanning the evidence of the parties, it comes out that there is sufficient evidence on the file which proves that the appellant tenant is no more tenant in possession of demised premises and he has sub-letted the demised premises to respondent no.4. The most material evidence on this aspect is the admission of the appellant tenant himself as RW-1. It is admitted by the appellant tenant that at present he is running a shop of repairs of locks and keys in the Committee Chow near the shop of Kharbanda in a small shop. Although he tried to wriggle out all this admission alleging that he did not sit at that shop throughout the day but he could not succeed as he had not stated that he also works in the demised shop but he alleged that rest of the time he went out to repairs the locks and keys of almirah etc.including the almirahs of the offices in the court premises and even some time in the courts. As such, C.R.No.4906 of 2011 (O&M) 11 this admission is sufficient to say that the appellant tenant is no more in possession of the demised shop. Not even this, the appellant tenant has projected a story that he along with respondent no.4 entered into a partnership to start joint business. However, for the reasons best known a copy of the partnership deed has not been placed on record despite the fact that it is alleged that it was in writing and respondent no.4 was a share holder of 75% of the share. This fact further shows that the story of partnership deed is also afterthought. Above all, once he admitted that respondent no.4 is having 75% share in the business which itself proves that the appellant tenant has no concern with the business and the possession and 25% share is alleged only as a rent and the plea of partnership is nothing but to camouflage the sub-tenancy. Then the respondent no.4 has not stepped in the witness box to deny his possession and connection with the demised premises. If it is so as per the law laid down by the Hon'ble Apex Court an adverse inference is required to be drawn against the appellant that there is a sub-tenancy in favour of respondent No.4. In a case of similar facts and circumstances Tek Chand Vs. Keshay Dayal,1994(2),PLR 124, the Hon'ble Punjab and Haryana High Court has held that in the case of subletting the plea of the tenant that occupant was his brother and running the shop in partnership with him and tenant producing partnership deed, no accounts produced although it was provided in the deed that accounts would be maintained, and it was held a case of subletting. Last but not the least, there is documentary evidence on the record in the form of the litigation initiated by the respondent no.4 against the landlords and as is clear from the documents, Ex.PW.5/A to Ex.PW5/D, the respondent No.4 filed a suit for permanent injunction against the landlords inter alia alleging that he is in possession of the demised shop as a tenant under the original owners from whom the demised C.R.No.4906 of 2011 (O&M) 12 premises is now purchased by the landlords and thus the landlord be restrained from interfering in his possession, thus there is an admission on the part of the respondent no.4 that he is in possession of the demised premises. No doubt later on that suit was dismissed but it was after filing of the written statement by landlords wherein they have put forward the plea of subletting the demised shop to said Yogesh Kumar. After all, if the appellant tenant is in possession of the demised premises, he must have been paying the electricity charges and other charges but for the reasons best known no such record has been placed on record rather it comes out that the electricity connection restored in the demised premises was disconnected and the appellant tenant approached the Consumer Court for restoration of the electricity connection but there is no record to prove that the connection was ever restored. This fact further shows that the appellant tenant is no more in possession of the demised shop and has relinquished the possession, as such, the material ingredient of subletting are also duly proved”. Still not satisfied the petitioner tenant has filed the instant revision petition challenging the impugned orders of his eviction from the demised premises by way of this revision petition. It is relevant to note that along with the revision petition the petitioner has also filed an application i.e. C.M.No.19586-CII of 2011 seeking permission of the Court to place on record the documents Annexure P1 to P4 attached with the revision petition as additional evidence. Petitioner has also filed another application i.e. C.M.No.21857-CII of 2011 under Order 41 Rule 27 read with section 151 CPC for allowing him to lead additional evidence of documents as Annexure P1 to P5. Though in this application petitioner has mentioned that he be allowed to lead additional C.R.No.4906 of 2011 (O&M) 13 evidence of Annexures P1 to P5 but no document has been attached as Annexure P1 to P5 along with this application and the documents placed on record of the revision petition along with the earlier application i.e.C.M.No.19586-CII of 2011, are Annexures P1 to P4. By placing on record Annexures P1 complaint and P2 order of the Consumer Disputes Redressal Forum Karnal, Annexure P3 the statement of PW6 Lachman Dass which is already a part of the record, Annexure P4 copy of a fresh petition filed by the respondent landlord against the petitioner on the