CR No.4780 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4780 of 2011 (O&M) Date of decision: 12.10.2011 Vinod Gulati ......Petitioner(s) Versus Mrs. Gurdeep Kaur and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Akshay Bhan, Advocate for the petitioner. Mr. H.S. Bhullar, Advocate for the caveator-respondent. Rakesh Kumar Garg, J. This is tenant's revision petition challenging the impugned judgment dated 21.5.2011 of the Appellate Authority, Chandigarh whereby the appeal filed by the landlord-respondents has been accepted against the order dated 21.1.2010 of the Rent Controller, Chandigarh dismissing their application for ejectment of the petitioners from the demised premises. In brief, the landlord-respondents' case is that they are owners/landlords of Booth No.102, Sector 28-D (hereinafter referred to as the 'demised premises') and the petitioner is tenant in the said demised premises at a monthly rent of ` 2300/- excluding electricity charges. Respondent No.1 is the mother of respondents No.2 and 3. Previously demised premises was in the name of Sh. Gurpratap Singh and respondent No.1 in equal shares and after his death, his 50% share was transferred in the name of the respondents. It is the further case of the respondents that respondent No.2 requires demised premises for his personal bonafide use and occupation i.e for setting up Medical Practise. To elaborate his need, it is stated that he is a Specialist in Public Health, CR No.4780 of 2011 (O&M) 2 Nutrition and Communicable Diseases and has served in Army Medical corps w.e.f. August, 1973 to June, 2000 at various places in India. Thereafter, he worked as Consultant/Advisor with National AIDS Control Organisation, Ministry of Health and Family Welfare, Government of India, New Delhi w.e.f. 2001 to September, 2004. It is the further case of the respondents that respondent No.1 is 79 years old and suffering from several ailments and she requires to be looked after by respondent No.2. It is the further case of the respondents that since October, 2004, he is doing ad hoc medical practice and occasional consultation from his residence i.e. House No.258, Sector 10-A, Chandigarh as after his retirement he has settled in his home town Chandigarh. It is the pleaded case of the respondents that House No.258, Sector 10, Chandigarh is a single storey one kanal house comprising of three bedrooms, one drawing- cum-dining room with garage and front and back courtyards which is occupied by respondent No.1, respondent No.2 and his wife and married son along with his family. One bedroom is occupied by respondent No.1. Another one by respondent No.2 whereas third one is occupied by married son of respondent No.2. Even the married daughter oftenly visits them and space is also needed for her. Thus, he finds it extremely difficult to do his medical practice at his residence as there is no proper and adequate space in the above said house to attend the patients and for the staff and he has to examine his patients in the drawing room of the house which causes great inconvenience to the family. Despite several requests, the petitioner failed to vacate the premises in dispute. Respondent No.2 has not occupied any other building in the urban area of Chandigarh for the purpose of medical practice nor any such building was vacated by him without any sufficient cause after the commencement of the Act. Hence, this petition. CR No.4780 of 2011 (O&M) 3 Upon notice, the petitioner appeared and filed written statement admitting the relationship of landlord and tenant between the parties. It was further pleaded that the petitioner took the demised premises on rent in the year 1990 at a monthly rent of `1,000/- and thereafter, rent has been increased from time to time and now the rent was ` 2300/- per month. It was further contended that in the year 2007, the respondents had requested the petitioner to enhance the rent @ Rs.4,000/- per month but later had offered to increase the same @ Rs.3000/- per month and this had led to institution of the instant revision petition. It was denied that respondent No.2 required the demised premises for his personal use and occupation. Though respondent No.2 was ex- serviceman but he never engaged himself in the medical practice and never functioned from his house as alleged. It was further denied that respondent No.1 was suffering from severe ailments. It was further pleaded that there was adequate space for setting up clinic in House No.258 Sector 10-A, Chandigarh. Even respondent No.2 could easily set up his clinic in the garage of the above said house. It was contended that since 2004, respondent No.2 had been requesting for enhancement of rent but had never disclosed his personal requirement. It was further denied that married son of respondent No.2 was staying with him and thus, the petition was filed with mala fide intention as the petitioner had refused to increase the rent and thus, the prayer for dismissal of the petition was made. In the replication, the respondents controverted the contentions of the petitioner and reiterating their pleadings as mentioned in the ejectment petition. On the pleadings of the parties, the following issues were framed by the Rent Controller: “1. Whether the petitioners are entitled for the CR No.4780 of 2011 (O&M) 4 eviction of the respondent from the Booth in question on the grounds taken in petition? OPP 2. Whether the petitioners do not require the premises in question for their own use and occupation? OPR 3. Whether the petition is liable to be dismissed.? OPR 4. Relief.” After appreciating the evidence as well as pleadings and hearing learned counsel for the parties, the Rent Controller dismissed the petition of the landlord-respondents with no order as to costs. Feeling aggrieved from the findings recorded by the Rent Controller, the landlord-respondents filed an appeal before the Appellate Authority which was accepted vide impugned judgment dated 21.5.2011. It is relevant to refer to the observations of the Appellate Authority which reads thus: “Keeping in view ratio decidendi of above said rulings and in a given set of facts, it is observed that in the instant case petitioners landlords have led sufficient evidence on the record to prove that petitioner No.2 being doctor and retired from Army Medical Corps requires demised premises for his personal use and occupation as he sincerely wants to commence his medical profession from the booth in question. To substantiate the said findings, reasons are enumerated as under:- (i) Petitioner No.2 (landlord) stood retired from Army Medical Corps in the year 2000 as the same is evident from Pension Payment Order (Ex.P-3) issued by the Office of Chief CDA (Pensions) Allahabad. Immediately after his retirement petitioner No.2 was appointed for the post of CR No.4780 of 2011 (O&M) 5 Consultant (Epidemiology) on contractual basis by Ministry of Health and Family Welfare (National AIDS Control Organization) New Delhi as the same is evident from appointment letter dated 12.02.2001 (Ex.P-4). As per version of petitioner No.2, said assignment continued up to September, 2004 and thereafter, since October, 2004 he has been doing ad-hoc medical practice and occasional consultation from his residence i.e. House No.258, Sector 10-A, Chandigarh. In this view of the matter, it is quite apparent on the record that petitioner No.2 (landlord) is a well qualified doctor and he has already been enrolled in the medical profession by Medical Council of India and to that effect Registration Certificate dated 28.10.1977 (Ex.P-2) has been proved on record. After retirement from Army Medical Corps as well as completing assignment with National AIDS Control Organization, New Delhi, above said petitioner wants to set up his own clinic. (ii) As per version of petitioner No.2 (landlord), at present he is doing ad-hoc medical practice and occasional consultation from his residence and since his mother (petitioner No.1) is quite aged about 79 years and suffering from various ailments, the fact that his married son and daughter also visit their parental home off and on, thus, residential accommodation of House No.258, Sector 10-A, Chandigarh is not adequate to attend the patients. Above said petitioner has specifically stated that as he has to examine the patients in the drawing room of the house, thus, he is facing acute inconvenience and that too at the cost of his other family members. No doubt, petitioner no.2 has got sufficient residential accommodation but a fact cannot be lost the sight CR No.4780 of 2011 (O&M) 6 that in the instant case, the need projected by petitioner No.2 is for non-residential premises and no non-residential premises has been vacated by the petitioners-landlords nor any nonresidential premises except demised premises is available with them. Availability of residential premises cannot be a ground for denying eviction from a non-residential premises. It is pertinent to mention here that petitioners-landlords and especially petitioner No.2 cannot be compelled to convert a residential accommodation into a non- residential. Availability of alternate accommodation alone is not sufficient to deny eviction unless the Court is of the opinion that the alternate accommodation can be utilized for purpose for which eviction sought. The question is one of suitability of accommodation and not mere availability of accommodation. Admittedly, petitioners landlords are possessed of residential accommodation bearing House No.258, Sector 10-A, Chandigarh. Once it has come on the record that petitioner No.2 wants to set-up clinic to promote his medical profession, in this scenario, he cannot be compelled to promote his medical profession in the residential house. At this juncture, it is relevant to point out here that demised premises which is booth and situated in Sector 28-A, Chandigarh, said booth is appropriate building for petitioner No.2 to run his clinic. As to how and in what manner, petitioner No.2, runs his clinic in the demised premises is best left to his sole discretion. Even though, respondent tenant has taken the stand that entire area surrounding the demised premises is being used for commercial activities of sale of car accessories, thus, demised premises is not conducive for medical profession, the said CR No.4780 of 2011 (O&M) 7 argument raised at the instance of respondent- tenant is devoid of merits as respondent-tenant Vinod Gulati while appearing in the witness box as RW-1 has categorically stated that previously he was dealing in the business of car accessories but now he has changed his business to Chemist shop since the year 2006. Even otherwise, in a given set of facts, the accommodation in question (demised premises) having basement as well is quite spacious wherein medical profession can be started conveniently by petitioner No.2 (landlord). Merely by the fact that area in question is used for sale of car accessories etc., there is no legal bar for the petitioner No.2 (landlord) to start the medical profession in the said premises. To that effect reliance can be placed on ruling Ram Chandra Dixit and others Vs. Arvind Kumar, 2008(1) Rent Control Reporter, 411 (Madhya Pradesh High Court). (iii) Regarding aspect of controversy that it is mere wish or desire of petitioners-landlords to get the rent of demised premises enhanced and, thus, denial on the part of respondent-tenant has led to institution of instant petition, it is observed that admittedly, demised premises was let out to respondent-tenant in the year 1990 at the monthly rent of Rs.1000/- and admittedly with the concurrence of parties rent of demised premises has increased gradually to Rs.2300/- per month and the last increase took place in the year 2001. At this juncture, it is relevant to point out here that even though petitioners landlords have categorically denied the averments of respondent- tenant that on account of refusal of respondent- tenant to increase the rent, instant eviction petition was instituted but even for the sake of arguments said demand for increased rent by itself is not a CR No.4780 of 2011 (O&M) 8 ground to reject a claim for eviction on the ground of bonafide need. As in terms of prevailing market conditions, escalation in prices and prevailing rates of rent, the Courts cannot shut its eyes to the practical realities in life. As petitioners landlords may legitimately expect a reasonable return of their investment, thus, in this scenario even demand for periodical increase in rent cannot be said to be unjust so as to deny the claim of petitioners landlords on the ground of bonafide personal requirement and necessity. (iv) Even though, respondent tenant has raised a plea that petitioners landlords have not come to the Court with clean hands and suppressed material facts from the Court especially in respect of their residential accommodation and its occupation by family members, it is observed that petitioners-landlords in their petition, replication as well as petitioner No.2 (landlord) while examining himself as PW-1 has categorically stated that his married son and daughter are living in Goa and Gurgaon respectively whereas, residential accommodation is not adequate to promote his profession of medical practice. It is pertinent to mention here that in the instant case as petitioner No.1 (landlord) is seeking accommodation of commercial one (demised premises) as he wants to commence his medical profession, in this scenario residential accommodation possessed by petitioners- landlords pales into insignificance. Thus, in this view of the matter there is no question of suppression of material facts from the Court at the instance of petitioners-landlords. Thus, in this scenario there is presumption in law that need of petitioners-landlords especially of petitioner No.2 for the demised CR No.4780 of 2011 (O&M) 9 premises to commence his medical profession is to be treated as bona fide personal requirement of said petitioner. In the facts of the present case, it can be conveniently held that the petitioners- landlords have successfully established the bona fides of their plea of personal necessity, whereas respondent-tenant has miserably failed in establishing the malafides thereof, the petitioners- landlords being the best judge of their needs cannot be said to have filed the present petition with some ulterior motive to seek ejectment of the respondent-tenant. Since, in a given set of facts need of petitioners-landlords especially of petitioner No.2 is bona fide and quite genuine to occupy the demised premises, thus, learned Rent Controller has wrongly dismissed the claim of petitioners-landlords for ejectment of respondent tenant on the ground of bona fide personal requirement and necessity.” Feeling aggrieved from the aforesaid judgment of the Appellate Authority, the tenant has filed the instant revision petition challenging the same. Learned counsel appearing on behalf of the petitioner has vehemently argued that from the facts established on record, it is clearly made out that alleged need of the landlord-respondents is not based on bona fide necessity and it is merely a ploy of the landlord-respondents to get the demised premises vacated. Elaborating his argument further, learned counsel for the petitioner has vehemently argued that the landlord- respondents are residing in one kanal house in Sector 10-A, Chandigarh which consists of three bedrooms, one drawing dining with garage and front and backcourtyard and it is an admitted position on record that one room is lying vacant with them whereas it has been pleaded that there is no adequate space to attend the patients and respondent No.2 has to CR No.4780 of 2011 (O&M) 10 examine his patients in the drawing room of his house causing inconvenience to the family members. Not only this, the landlord- respondent (respondent No.2) has sought eviction of the petitioner by making averments that his married son is residing with him whereas in the cross-examination he has admitted that now his son along with his family is staying at Goa where he is working and thus, the bona fides of the landlord-respondents were doubtful. Learned counsel for the petitioner has further argued that the Appellate Authority has failed to appreciate the fact that as per the pleadings, mother of respondents No.2 and 3 is suffering from several disabilities and she requires to be looked after by her son and thus, it is more convenient for respondent No.2 to continue with his practice from his home which will allow him much more time to look after his mother as well as to continue with his practice and therefore, by no stretch of imagination, the need of the landlord-respondents was bona fide. Moreover, there is nothing on record to show that respondent No.2 was practicing from his residence and thus, the findings of the Appellate Authority are totally perverse on the face of the record. It is the further case of the petitioner that the respondents have not approached the Court with clean hands as from the evidence on record, their pleaded case has been found to be false and thus, the landlord-respondents are not entitled to any relief. By referring to the evidence of RW-3 to RW-5 counsel for the petitioner has also argued that the landlord-respondents wants to increase the rent and the present petition was nothing but an abuse of process of law in fulfilling their illegal design and therefore, the impugned order is liable to be set aside. In support of his case learned counsel has relied upon paragraphs No.12,13,14 of the judgment of the Apex Court in Shiv Sarup Gupta versus Dr. Mahesh Chand Gupta (1999) 6 SC 222 which read thus: CR No.4780 of 2011 (O&M) 11 “12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession of any premises by a landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified grounds. One such ground is the premises let for residential purposes being required bona fide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bona fide requirement is not defined in the Act. The words 'need' and "require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjective - is an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord 'genuinely requires' or "requires bona fide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning. 13. Chambers 20th Century Dictionary defines bonafide to mean “in good faith : genuine”. The word “genuine” means “natural : not spurious : real : pure: sincere”. In Law Dictionary, Mozley and Whitley define bona fide to mean “good faith, without fraud or deceit”. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by “requires” is much more higher than in mere desire. The phrase “required bona fide” is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest CR No.4780 of 2011 (O&M) 12 desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the armchair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. An CR No.4780 of 2011 (O&M) 13 approach either too liberal or too conservative or pedantic must be guarded against. 14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of clause (e) of sub-section (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available then the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the CR No.4780 of 2011 (O&M) 14 landlord and his family members, their style of living, their habits and the background wherefrom they come. On the other hand, learned counsel appearing on behalf of the caveator-respondents has supported the impugned judgment and has argued that the Appellate Authority on appreciation of evidence has recorded a finding of fact regarding the bona fide need of the respondent- landlords and the same cannot be interfered with. Learned counsel appearing on behalf of the respondent has further argued that it is well settled that landlord is the best judge of his needs and the tenant cannot dictate his terms with regard to his requirement and suitability of accommodation. Sh. Bhullar has further argued that the sufficiency of residential accommodation with the respondent cannot be made a ground to non-suit him for his personal necessity of the commercial premises . He has argued that the respondents have come to the Court placing all the facts before the