Civil Revision No.3611 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3611 of 2009 Date of decision 3 .10.2011. Deepak Kumar ...... Petitioner. versus Dr.J.L.Bassi and another ...... Respondents. CORAM :- HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. M.L.Sarin, Senior Advocate with Ms. Hemani Sarin, Advocate for the petitioner. Mr. Amit Rawal, Advocate for the respondents. K.C.PURI . J. The petitioner has directed the present revision petition against the order dated 4.5.2009 passed by Shri M.S.Virdi, Appellate Authority (under the East Punjab Urban Rent Restriction Act), Ludhiana vide which Civil Revision No.3611 of 2009 2 the appeal preferred by the tenant-respondent against the order dated 6.11.2006 passed by Ms. Ravi Inder Kaur, PCS, Rent Controller, Ludhiana was dismissed. 2. The facts narrated in the eviction petition are that originally M/S. International Wollen Mills was the owner of the property No.B-1-970, measuring 516-1/2 sq.yards consisting of five shops, one maini, stair case, four walls, open land, electric and water fitted and the said property through Sh.Shadi Lal son of Sh. Dhani Ram has been sold to the petitioners vide two sale deeds dated 1.7.1994 and 4.7.1994 in favour of the petitioners. 3. It has been further pleaded that Shadi Lal of international Wollen Mills rented out the property in dispute to the respondent on 1.1.1988 by means of oral tenancy followed by delivery of vacant possession and memorandum was also executed on 3.1.1988. According to the oral terms it was settled that the tenant shall pay a sum of Rs.550/- p.m. After the purchase of the property by the petitioners, they have become owners/landlords of the property in dispute and they respondent has become owners/landlords of the property in dispute and they respondent has become tenant. Therefore there is relationship of landlord and tenant between the parties. 4. It is further pleaded by the petitioners that the respondent is liable to be ejected from the property in dispute on the grounds of non payment of rent w.e.f. 1.7.1994 and further the property in dispute is unfit and unsafe for human habitation and petitioners want to reconstruct the entire property after demolishing this construction which stands on a small portion of the whole plot purchased by the petitioners. The construction in Civil Revision No.3611 of 2009 3 question is a third class construction and is raised with mud mortar and kacha pacca bricks. The walls and roof bear big cracks and the property which is very old, has long back outlived its age and is in a dilapidated condition. The roof of the shops is also in a very dangerous condition and it is likely that the whole structure may collapse resulting in loss to the life and property of occupiers and passers by. The property in dispute is required by the petitioners for their own use as they want to start a nursing home after demolishing the present standing structure on the part of the property as the petitioners have purchased the suit property solely with the motive to construct a Nursing Home. The accommodation of the petitioners in House No.914/5 is extremely insufficient. The petitioner No.1 is using three rooms and open space for his private practice and is therefore, left with only four rooms for residential purposes which are most insufficient. Petitioner No.2 is posted as S.M.O. in ESI Dispensary at Samrala Road, Ludhiana in side the premises of Vardhaman Spinning Mills, Ludhiana. She has already completed a period of 20 years in this service and she can opt for voluntary retirement, which she intends taking the moment the property in dispute is vacated by the respondent and is available for running clinic. The petitioner is requiring the demised for her personal use and occupation. 5. On put to notice, respondent appeared and filed written statement and took up preliminary objections that the petition for ejectment on the ground of personal necessity is not maintainable because the premises in dispute are commercial in nature and are being used as such by the respondent from the very inception of the tenancy and on merits respondent admitted that Shadi Lal was the owner of the premises in dispute Civil Revision No.3611 of 2009 4 and he rented out the same to him w.e.f. 1.1.1988 at the rate of Rs.550/- per month including house tax. It has been alleged by the respondent that he has tendered the rent of the demised premises, therefore, the ground of non- payment of arrears of rent is not available to the petitioner/landlord. The respondent denied the factum that the demised premises is unfit and unsafe for human habitation and the construction is of third class and raised with mud mortar and kacha pacca bricks He denied that the walls or roof bear any cracks as alleged by petitioners and property in dispute also outlived its age or that property is in a dilapidated condition. The landlords have mala fide intention and are trying to raise construction on the back of the tenancy premises in the basement and they can do any mischief with the tenancy premises by digging the foundations for basement in a manner that the foundation of the tenancy premises may be affected so as to succeed on this ground of unfit and unsafe. The respondent also denied the ground of personal necessity of the landlords and alleged that they are already occupying another building which is sufficient accommodation for their personal use. Denying other averments, respondent-tenant prayed for dismissal of the petition. 6. In the replication, the petitioners have reiterated their version as averred in the petition and controverted the stand taken by the respondent in his written reply. 6. From the pleadings of the parties, following issues were framed :- 1. Whether the tender made on the first date of hearing is short and invalid ?OPP 2. Whether the demised premises has become unfit and Civil Revision No.3611 of 2009 5 unsafe for human habitation ?OPP 3. Whether the petitioners require the demised premises for their personal bona fide necessity ? 4. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The learned Rent Controller, Ludhaina after hearing the learned counsel for the parties and appraisal of the evidence available on the file, allowed the petition vide order dated 6.11.2006. 8. Feeling dis-satisfied with the aforesaid order, the respondent- tenant preferred appeal against the order dated 6.11.2006. The Appellate Authority, Ludhiana after hearing the learned counsel for the parties and re- appraisal of the evidence, dismissed the appeal vide order dated 4.5.2009. 9. Feeling dissatisfied with the order dated 6.11.2006 passed by the Rent Controller, Ludhiana and order dated 4.5.2009 passed by the Appellate Authority, Ludhiana, the present revision petition has been filed before this Court. 10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 11. Shri M.L.Sarin, learned senior counsel for the revisionist- petitioner has submitted that vide order dated 3.7.2009 this Court has directed the respondents-landlords to place on record the sanctioned plan for re-construction of the plot to show that the demised premises also required and included in the sanction plan for the purpose of building the Nursing Home. That order has not been complied with. Map Annexure R-1 and Annexure R-2 have been placed on the file so far. These maps relate to Civil Revision No.3611 of 2009 6 the residential portion and not the Nursing Home. So, as the order dated 3.7.2009 has not been complied with, so it be presumed that finding of both the Courts below regarding bona fide personal necessity of the landlords is not proved. 12. The eviction order in the present case has been passed on the following two grounds :- (i) that the building has become unfit for human habitation ; (ii) the landlord required the premises for bona fide personal necessity. 13. So far as the ground of eviction that building has become unfit for human habitation is concerned, the learned senior counsel for the respondents-landlords has stated at the Bar that he does not press this ground for eviction. So, the finding recorded by both the Courts below ordering eviction of the tenants from the demised premises on the ground of unfit and unsafe for human habitation, stands set aside. 14. The hotly contested ground for eviction in the present revision petition is in respect of bona fide personal necessity of landlord regarding which the concurrent finding of fact has been recorded in favour of the landlords. 15. Learned senior counsel for the revisionist-petitioner has further submitted that when the present revision was filed other two rent appeals on the ground of personal necessity were pending in respect of two adjoining shops. The Rent Controller has dismissed one of those two eviction petitions whereas second petition was accepted. Two appeals against those orders of Rent Controller were pending. This Court directed Civil Revision No.3611 of 2009 7 the Appellate Authority under the East Punjab Urban Rent Restriction Act to decide those appeals and both these appeals were decided in favour of the landlords. Tenants preferred two revision petitions bearing No.3350 of 2010 and 3353 of 2010. Although in Civil Revision No.3350 of 2010, the application for additional evidence was allowed but the evidence led in that case cannot be read in the present case. 16. Learned counsel for the revisionist has further contended that landlords have purchased the plot measuring 280 square yards near the demised premises. Huge building, running into forty rooms, has cropped up in that land. The revisionist-petitioner is merely a tenant in small premises. The bona fide necessity of the landlord stands satisfied. Otherwise also, the landlord is required to plead the fact that the additional accommodation that cropped up during the course of trial of eviction petition should be pleaded by amending the petition. The subsequent event which cropped up during the pendency of the present petition have to be taken into account. 17. Learned counsel for the revisionist has further submitted that the case of the landlords is that they wanted to reconstruct the building after demolishing the shops in dispute. It is further submitted that one of the shops has been rented out to Roop Chand during the pendency of the present eviction petition. So, the plea of bona fide requirement of the premises stands disproved as the landlords have themselves leased out the said shop in the year 2004. Civil Revision No.3611 of 2009 8 19. Learned counsel for the revisionist has submitted that before the Appellate Authority, applications for appointment of Local Commissioner and for amendment of the petition were made. The said applications were dismissed on flimsy grounds. 20. Another application for additional evidence was also dismissed by the Appellate Authority on flimsy grounds. The petitioner has challenged all these issues in the present revision petition. The Appellate Authority should have allowed the applications for amendment of written statement as well as appointment of Local Commissioner. The Local Commissioner would have pointed out how many rooms have been constructed and how these rooms are being utilized. The appointment of Local Commissioner would have demolished the grounds of bona fide personal necessity altogether. 21. It is further submitted that ground of eviction for bona fide necessity for setting up a Nursing Home. Nursing Home is already in existence in the other building. Otherwise also, the grounds of eviction for setting up Nursing Home is not available to the landlords as the residential building cannot be vacated for the commercial purpose. The building as per Map Annexure R-1 and Annexure R-2 meant for residential purposes. It is further submitted that the stand taken by the landlords in the petition is that after demolishing the present structure Nursing Home is to be set up. In the sanctioned plan Annexure R-1 and Annexure R-2, there is no proposal for demolishing the shop in question. So, in these circumstances, the plea of bona fide personal necessity is not available to the petitioners. 22. It is further submitted that landlords have other buildings/lands Civil Revision No.3611 of 2009 9 which could be used for the purpose of setting up Nursing Home. According to the statement of the landlord, a plot is there near Shamsan Bhumi. The Nurshing Home can be set up there. It is only the bona fide necessity and not the desire, which is required to be proved for vacating the premises. 23. It is further submitted that during the pendency of present proceedings a shop has been got vacated. The plea of the landlord that passage is required for the Nursing Home could be fulfilled from that shop. 24. Learned counsel for the revisionist has relied upon the following authorities :- 1. Deena Nath vs. Pooran Lal 2001(2) RCR page 130 ; 2. Radhey Shyam Rastogi vs. Ashish Kumar and Anr. 2008(2) RCR 419 ; 3. M.S.Bhatnagar vs. O.N.Aggarwal 1983(2) RCR 618 ; 4. Lekh Raj vs. Muni Lal & Ors 2001(2) RCJ 81 (SC) ; 5. Maqboolunnisa vs. Mohd.Saleha Quaraishi JT 1998 (9) SC 40 ; 6. Gulabbai vs. Nalin Narsi Vohra & Others 1991 HRR 427 ; 7. Hasmat Rai and another vs. Raghunath Prasad AIR 1981 Supreme Court page 1711 ; 8. Prabha Arora & Anr. vs. Brij Mohini Anand & Ors 2007(2) RCR 600 ; 9. Sadhu Ram Verma vs. Pawan Kumar 2006(2) RCR 95 ; 10. Attar Singh vs. Inder Kumar 1967 PLR page 83; 11. Parmeshwari Devi vs. Krishan Chander 2003 HRR Civil Revision No.3611 of 2009 10 197 ; 12. Seshambal (dead) Through L.Rs. vs. M/s Chelur Corporation Chelur Building & Ors 2010 (1) RCR 230. 25. Learned counsel for the respondents has supported the order and judgment passed by both the Courts below and prayer for dismissal of the revision petition has been made. Learned counsel for the respondents has relied upon the following authorities in support of his contention :- 1. State of Punjab and another vs. Rajinder Jain and another 2010 (3) R.C.R.(Civil) 45 ; 2. Maganlal son of Kishanlal Godha vs. Nanasaheb son of Udhaorao Gadewar 2009(1) R.C.R.(Rent) 16 ; 3. Atma S.Berar vs. Mukhtiar Singh 2003(1) R.C.R. (Rent) 42; 4. Uday Shankar Upadhyay and Ors vs. Naveen Maheshwari 2010(1) R.C.R. (Rent) 554 ; 5. Gaya Prasad vs. Pradeep Srivastava 2001(1) R.C.R. (Rent ) 221 ; 6. Ramesh Kumar vs. Kesho Ram 1992(1) RCR (Rent) 370 ; 7. South Eastern Roadways vs. Surender Mohan Ahuja and others 2010(1) R.C.R.(Rent) 436 ; 8. M/s Satpal Vijay Kumar vs. Sushil Kumar 2011(2) RCR (Civil) 82 ; 9. Kunhamma alias Lakshmi Ammas Children and another vs Akkali Purushothaman and others (2007) 11 Supreme Court Cases 181 ; 10. Shri Balbir Singhvs. Shri Adarsh Kumar 1989 P.L.R.S page 559 ; 11. Mahant Mela Ram Chela Mahant Inder Dass vs. Civil Revision No.3611 of 2009 11 Shiromani Gurudwara Parbandhak Committee, Amritsar, AIR 1992 Punjab and Haryana page 252 26. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case with their able assistance. 27. It is settled principles of law that landlord is the best judge in respect of his personal bona fide necessity in respect of the demised premises. The tenant cannot dictate the terms. In the present case, there is concurrent finding of fact recorded by both the Courts below that demised premises is required by the landlords for their bonafide personal necessity and that the accommodation already in the possession of the landlord is not sufficient for setting up a Nursing Home. That being a finding of fact cannot be lightly interferred unless a strong circumstance is made out. 28. The main stress of the counsel for the petitioner is that in the adjoining plot measuring 280 square yards, the Nursing Home has come into existence and as such the necessity of the landlords have fulfilled. That argument looks attractive but is without any legal force. It is not disputed during the course of arguments that landlords are carrying on Nursing Home in the building where the demised shop is situated. It is also not disputed during the course of arguments that shop of the petitioner opens on main Ludhiana- Rajpura road whereas the building which has been cropped up during the pendency of the case is situated in the side street. It has also been admitted by the petitioner himself that so many Nursing Homes have cropped up on the Ludhiana-Rajpura road towards which his shop is situated. In this petition landlords want that opening of their Nursing Home should be towards the main road and not in the side street. Learned Civil Revision No.3611 of 2009 12 counsel for the petitioner has submitted that subsequent events which cropped up during the course of eviction petition should be considered. So all the facts which have cropped up during the pendency of the petition has to be considered, those may be in favour of the landlord or tenant. The case of the tenant is that five storied building has cropped up on the back side of the premises in dispute. The landlord has placed on record the site plan Annexure R-1 and Annexure R-2. The Court has to take into account the fact that during the pendency of the present proceedings Dr.J.L.Bassi has got retirement and has started Nursing Home in the portion of the demised premises. Two of his sons and a daughter have acquired the MBBS degree and his sons have also acquired the degrees of post graduation in medical science. So, the need of the landlord has increased many fold during the pendency of the petition and that has to be considered. 29. The submission made by the learned counsel for the revisionist that one shop has been rented out to Roop Lal is not borne out from the evidence available on the record. So, that being a concurrent finding of fact cannot be interferred in the revision petition. In one of the petition photographs of that shop has been shown in which BNH meaning thereby Bassi Nursing Home has been mentioned. So, even if one shop has been utilized as medical store that does not mean letting out the premises during the pendency of the revision petition. 30. Learned counsel for the revisionist has submitted that order dated 3.7.2009 vide which the landlord has been ordered to place on record sanctioned plan for re-construction of the plot have not been placed on record is concerned that submission is not acceptable. Admittedly Annexure Civil Revision No.3611 of 2009 13 R-1 and Annexure R-2 have been placed on the file. There is no order of this Court to supply any other map. So, that arguments are meritless. 31. The other limb of argument of the learned counsel for the revisionist is that as per Map Annexure R-1 and Annexure R-2 residential premises are to be constructed and as such the shop in dispute which cannot be got vacated on the ground of personal necessity of setting up Bassi Nursing Home. That argument looks attractive but is without any legal force. The shop in dispute was admittedly taken for commercial purpose and that fact is clear from the pleadings of the parties. Setting up of a Nursing Home is also a commercial purpose. The tenant during the course of his examination has not disputed that landlords are carrying on business of Nursing Home in the remaining portion of the building. Mere fact that one shop has been vacated during the course of present case does not make out a case that there is no bona fide necessity of the landlord. In the petition itself the landlord has pleaded that they wanted to demolish these three shops let out to three different tenants and wanted to open the gate of Nursing Home towards main road Ludhiana-Rajpura road where these three shops are situated. It is not the whim of the landlord but by opening the doors towards main road would flourish business of the landlords. Admittedly, the present opening is from the side street towards the remaining portion of the Bassi Nursing Home. 32. In case the landlord is using the residential portion for a commercial purposes the matter is between the Municipal Corporation and the landlords. Otherwise also from Annexure R-3, it is clear that Municipal Corporation have the knowledge that the premises are being used for Nursing Home as the tax has been imposed on the operation threatre Civil Revision No.3611 of 2009 14 rooms, doors, Duty rooms, waiting rooms, nurse duty rooms etc. 33. The eviction order was passed against the present petitioner- tenant. The appeal preferred by the petitioner/tenant was dismissed and, therefore, the present revision petition was filed. In the meantime, two other eviction petitions, which were pending against two other tenants were decided. One of the petitions against tenant Harmail Singh was dismissed whereas the other rent petition against tenant Sudarshan Puri was accepted by the Rent Controller and appeal against those two judgments were pending. The revisionist in the present case at the initial stage prayed that present revision petition be kept pending till the decision of those two rent appeals pending before the Appellate Authority, Ludhiana. A direction was issued by this Court for deciding those two appeals and ultimately those two appeals were decided in favour of the landlords and eviction orders were passed against the remaining two tenants. The tenants therein preferred revision petition No.3350 of 2010 and revision petition No.3353 of 2010. 34. The counsel for the petitioner has submitted that evidence led in those cases be not read in the present revision petition. However, at one stage, the tenant of the present case wanted to have the benefit of dismissal of earlier rent petition. 35. On 11.8.2010, this Court ordered as under :- “On consensual basis, the matter is ordered to be listed along with Civil Revision petition Nos.3350 of 2010 3353 of 2010, on 11.08.2010.” 36. Any how even if this petition is taken independently from the other two eviction petitions, in that case also no case is made out for Civil Revision No.3611 of 2009 15 interference in the concurrent finding of fact recorded by both the Courts below regarding personal necessity of the landlords. 37. Learned counsel for the petitioner has challenged the order vide which the application for amendment and for appointment of local commissioner was dismissed. The present revisionist filed revision against that order but later on withdrew that revision petition. The appointment of Local Commissioner may be necessary to find out whether the building has become unfit for human habitation. However, since the landlord has not pressed that issue, so, in these circumstances, no ground is available to the tenant to challenge that order. In case, the tenant was sure enough, that he has a good case for allowing the application for additional evidence and for amendment of written reply in that case he would not have withdrawn the revision petition filed in this Court. The Appellate Authority has dismissed that application on merits, giving detailed reasoning and that reasoning are correct and no fault lies in those findings. The other application for additional evidence was also dismissed by the Appellate Authority, while giving detailed reasoning. Normally the tenant is interested in delaying the proceedings of the case. The facts of the present case are not exceptions to that general rules. The present petition has been filed in the year 1994 and is still sub-judice for the last about 17 years. The Appellate Authority has rightly held that those two applications are without any merit and have been rightly dismissed those applications. 38. The arguments raised by the learned counsel for the petitioner that another plot is with the landlords situated near Shamshan