Civil Revision No.4225 of 2010 1 & Civil Revision No.4385 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4225 of 2011(O & M) Date of Decision:21.07.2011 Ram Kanwar ....petitioner Versus Rajesh Kumar .....respondents Civil Revision No.4385 of 2011(O & M) Date of Decision:21.07.2011 Ram Niwas ....petitioner Versus Rajesh Kumar & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Amit Rawal,Advocate for the petitioner in Civil Revision No.4225 of 2011 Mr.Lokesh Sinhal, Advocate for the petitioner in Civil Revision No.4385 of 2011 **** RAKESH KUMAR GARG, J. This judgment shall dispose of two civil revisions i.e.Civil Revision No.4225 of 2011 and Civil Revision No.4385 of 2011 as similar grounds have been raised to challenge the impugned order on similar facts and in fact the respondent-landlord in both the cases has filed these eviction petitions against the petitioner on the ground of personal Civil Revision No.4225 of 2010 2 & Civil Revision No.4385 of 2011 necessity. However, for convenience sake, the facts are taken from Civil Revision No.4225 of 2011. Briefly stated, necessary facts out of which these revisions have arisen, are as under: Respondent Rajesh filed Rent Petition No.7 of 2005 against the petitioner in Civil Revision No. 4225 of 2011 and Rent Petition No.8 of 2005 against the petitioner in Civil Revision No.4385 of 2011 stating that he was the owner of the premises which are in occupation of the petitioner as tenant on a monthly rent of ` 400/- and ` 280/-, respectively. It has been further stated that building is a non-residential one and is let out for non-residential purpose and is required bonafidely by him for his own occupation and he would construct a showroom/shop in the demised premises after getting both the premises vacated, wherein he would start his business and at present he is working in the firm M/s Shimbhu Ram Banarsi Dass on salary, whose proprietor is his mother Smt.Kesar Devi. His younger brother is also working in the firm on salary. Upon notice,petitioner filed written statement raising various objections stating that M/s Shimbhu Ram Banarsi Dass is a Joint Hindu Family Firm and is in existence for more than 50 years.In the said firm, respondent,being son of Pola Ram and grandson of Banarsi Dass has a right by birth.The respondent was handling the business and having control over the same and managing the affairs of the firm and signing the cheque as member of the firm and also filing returns in the office of Sales Tax and Income Tax authorities.Thus, the respondent was owner/partner of the firm and Kesar Devi never signed any returns/cheques/any other documents on behalf of the firm.The story of the employment has been coined by the respondent who is maintaining a car and is living a luxurious life.It was also stated that the landlord has purchased a plot and is constructing his house. Civil Revision No.4225 of 2010 3 & Civil Revision No.4385 of 2011 These premises are not required for personal necessity of the respondent- landlord and in fact the need, as projected, is not bona fide. Replication was filed to the written statement of the petitioner, wherein contents of the written statement were controverted and that of petitioner were reiterated. From the pleadings of the parties, the following issues were framed: 1. Whether the respondent is liable to be evicted from the demised premises on the grounds stated in the petition?OPP 2. Whether the petition is not maintainable in the present form?OPR 3. Whether the petitioner has no cause of action to file the present petition?OPR 4. Whether the petitioner is estopped from filing the petition by his own act, conduct?OPR 5. Relief. The Rent Controller, Gurgaon, vide impugned judgement dated 20.09.2010 dismissed the petition holding that the landlord has not been able to prove that he required the shop for his bona fide own requirement. Aggrieved from the aforesaid order of the Rent Controller, Gurgaon, respondent-landlord filed an appeal before the Appellate Authority, Gurgaon. The appeal filed by the respondent-landlord was accepted by the Appellate Authority, Gurgaon vide impugned judgement dated 21.05.2011. While setting aside the order of the Rent Controller, Gurgaon, the Appellate Authority, Gurgaon held that the demised premises were required by the respondent-landlord for his bona fide needs. Civil Revision No.4225 of 2010 4 & Civil Revision No.4385 of 2011 Aggrieved from the aforesaid judgement of the Appellate Authority, Gurgaon, the tenants of the demised premises are before this Court challenging the impugned orders. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the demised premises belong to the firm and were also rented out by the firm and thus respondent-Rajesh Kumar, who was neither owner nor landlord of the demised premises was not entitled to seek ejectment of the petitioner from the demised premises. To elaborate the argument, learned counsel for the petitioner has further argued that respondent, while appearing as PW4 has admitted that the firm M/s Shimbhu Ram Banarsi Dass is a joint Hindu family firm for more than 50 years and there was a partition with the brother of his father and after the death of his father, the firm came to the share of Kesar Devi. Learned counsel has also referred to the statement of Kesar Devi PW3, wherein she has admitted in her statement Ex.R-2 filed in the case of Ram Niwas vs.Rajesh Kumar(Civil Revision No.4385 of 2011) that after the death of her husband she along with her son became owner of the firm. However, the aforesaid argument raised by learned counsel for the petitioner is liable to be rejected solely on the ground that no such argument was raised by the petitioner before the courts below, in this regard. Rather, in his pleadings, the petitioner has averred that Rajesh Kumar, landlord is partner of the firm and the story of employment of the respondent-Ram Kanwar has been coined. In view of the aforesaid, the pleadings of the petitioner in the written statement, now, it does not lie in their mouth to argue before this Court that respondent was neither owner nor landlord of the petitioner. Faced with this situation, learned counsel for the petitioner has submitted before this Court that the need of the respondent-landlord Civil Revision No.4225 of 2010 5 & Civil Revision No.4385 of 2011 was not bona fide and he has concealed the material facts from the knowledge of the Court as he has concealed the fact that he owned another plot in Haily Mandi which he had purchased in the year 1988-89 for a sum of ` 4 lacs. Not only this, the petitioner has also referred to photographs attached with this petition, which have been placed on record, by way of civil misc.filed under Order 41 Rule 27 CPC allowing him to lead additional evidence to establish the fact that the landlord has a big showroom which he has constructed and is lying vacant and thus the respondent-landlord could start his business from the said showroom and there was no necessity to vacate the demised premises by the petitioner. The prayer of the learned counsel for the petitioner to place on record these documents by way of additional evidence, at this stage, is devoid of any merit, as admittedly, this evidence was not before the courts below and in fact showroom has come into existence after the decision of the Rent Controller, Gurgaon. Even the submission of the learned counsel for the petitioner that the said fact of coming into existence of the showroom be taken as a subsequent event for consideration by this Court, at this stage, as to the need of the respondent-landlord, is liable to be rejected as except the photographs and the site plan as placed on record of the case do not help the petitioner's case in any manner because from the perusal of the photographs and the site plan, it is crystal clear that the alleged showroom as shown in the photographs is a part of the main residential building of the respondent-landlord and the said part cannot be considered to be a non-residential building. Moreover, there is nothing on record to suggest that the said construction has been made after sanction of the competent authority. Even, there is no evidence to suggest that the area where the said showroom is shown is a covered area. In the end, learned counsel for the petitioner has half-heartedly attempted to raise an Civil Revision No.4225 of 2010 6 & Civil Revision No.4385 of 2011 argument to the effect that the respondent along with his brother Naresh Kumar and mother Kesar Devi are already running the business of firm M/s Shimbhu Ram Banarsi Dass and they do not require the demised premises. However, it is settled law that the landlord is the best judge of his requirement ad even if he owned other shops and plots but none is vacant and the premises in question were considered suitable for his business by the landlord, his need is bona fide. It is useful to refer to the observations of the Hon'ble Supreme Court in the case of Raghavendra Kumar vs.Firm Prem Machindery and Co.2002(1)RCR 135 and this Court in Kewal Krishan Vs.Amrik Singh 2001(2)Civil & Rent Judicial Reports, 293 (P & H) held that a landlord has a right to claim eviction in respect of as many building/shops as he desires, though his claim is to be evaluated on the basis of evidence and if found tenable/justified his claim may be upheld in respect of one or more buildings/shops. In Vijay Kumar vs. Sushil Kumar 2005(2) Civil Court Cases 21(P & H), it was held that if a landlord is carrying out small and unestablished business to earn his livelihood then nothing stops him from expanding his business or carrying out some permanent business of his requirement. In Anil Kumar vs.Harpal Singh Banwait & anr.2008(1) RCR 638(P & H), it was observed that a landlord who establishes prima facie existence of his necessity, is entitled to raise a presumption in law that his need is bona fide and onus thereafter shift to the tenant to prove that the plea of landlord was mala fide. There is no such evidence placed on record by the petitioners to hold that the plea of the landlord was mala fide, in the instant case. It may also be noticed, at this stage, that Mr.Lokesh Sinhal, learned counsel appearing on behalf of the petitioner in Civil Revision No.4385 of 2011 has contended that the Appellate Authority committed a Civil Revision No.4225 of 2010 7 & Civil Revision No.4385 of 2011 grave error while ignoring the fact that the respondent in his cross- examination has admitted that there is a showroom in his name at Pataudi Road. The argument of the learned counsel for the petitioner is without any merit. Nothing has come on record to corroborate the admission of the respondent-landlord. May be he is referring to the showroom as referred to in Civil Revision 4225 of 2011 which has been constructed in the residential house and which is a part and parcel of the said residential house. No other point has been raised. I find no merit in these petitions. Dismissed. (RAKESH KUMAR GARG) JUDGE 21.07.2011 neenu