Civil Revision No. 6226 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 6226 of 2008 Date of Decision: 20.11.2008 Surjit Singh …Petitioner Versus Tejinder Singh and Another ... Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. V.K.Sandhir, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. (Oral) On the oral request of Mr. Sandhir that in memo of parties, name of father of landlord is wrongly mentioned and it should be corrected as Dr. Anant Singh, it is ordered that the name of father of landlord be read as “Dr. Anant Singh”. Tejinder Singh son of Dr.Anant Singh, who, as per the evidence, is 100% blind and to eek out his livelihood, wanted the demised premises for his personal necessity for running S.T.D./PCO Booth, with aid and help from his wife is running from pillar to post. Mr. Sandhir has stated that the present petition for eviction has been filed in the year 1996. 12 years have passed and the landlord Civil Revision No. 6226 of 2008 2 is still in corridors of the Court. Makhan Singh, father of the petitioner, was inducted as tenant by Gian Kaur, mother of Tejinder Singh, landlord, at a monthly rent of Rs.60/-. Makhan Singh died. Surjit Singh inherited the tenancy. The rate of rent was increased to Rs.125/- per month. By way of Gift Deed Tejinder Singh became owner and after death of Gian Kaur, mother, landlord of the property. Gift Deed was executed on 1.7.1969. As stated earlier, in 1996 eviction petition was filed on the ground that the tenant is in arrears of rent since March 1990 till the filing of the petition. Secondly, Surjit Singh, tenant, had sublet the shop to Davinder Singh alias Goldy, son of another Sujit Singh as sub tenant Davinder Singh alias Goldy was not related to Surjit Singh, petitioner-tenant, and has been running the business of shoe shop. Thirdly, it was further stated that the shop was given on rent for doing the business of photography whereas tenant has changed the use of the property and is now running a shoe shop in the name & style of M/s Delight Boot House. Fourth ground taken was that the landlord being aged and handicapped, required the shop for his own use and occupation as he intends to start business of STD/PCO with the help of his wife and he has no other property in Amritsar. Necessary ingredient has been pleaded that the landlord has not vacated any other property after the commencement of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as “the Act”). Fifth ground taken was that the tenant has done material alterations and has impaired the value and utility of the demised premises. Notice of the petition was issued. Civil Revision No. 6226 of 2008 3 Respondent-tenant appeared and filed written statement. It was denied that after the death of Gian Kaur, Tejinder Singh had become owner of the property and landlord. Execution of the Gift Deed was also denied. However, it was admitted that petitioner herein was tenant under Gian Kaur. Factum of subletting was denied. It was stated that Davinder Singh, respondent No.2, is a partner in the business and the tenancy rights vest in Surjit Singh, tenant, alone. Change of user of demised premises was also denied. However, it was admitted that from the demised premises, shop under the name & stile of M/s Delight Boot House is being run. Ground of personal necessity of the landlord was also denied. Replication was filed. Averments made in the petition were reiterated. Learned Rent Controller framed the following issues: 1. Whether the tender made by the respondent is short and invalid? OPA 2. Whether the respondent No.1 has sublet the demised premises to respondent No.2? OPA 3. Whether the petitioner requires the demised shop bonafidely for his personal use and occupation?OPA. 4. Whether the respondents have materially impaired the value and utility of the demised shop? OPA 4A. Whether the respondent has changed the user of the demised premises/shop from photography to Civil Revision No. 6226 of 2008 4 shoe business? OPA 5. Relief Learned Rent Controller held that amount of rent has been tendered. Therefore, ground of arrears of rent no longer persists. Relying upon the Income-tax Return that there is a partnership to the extent of 50%, it was held that even subletting is not proved. Learned Rent Controller held that since the landlord is not able to see and is 100% blind, therefore, shop is not required for his personal use. Learned Rent Controller also placed reliance upon cross-examination of Tejinder Singh son of Bahadur Singh AW.2 who stated that landlord is permanently residing at Jammu and not at Amritsar. However, evidence of Balbir AW.8 that landlord is residing at Amritsar, was ignored being contradictory to the testimony of Tejinder Singh AW.2. Learned Rent Controller also relied upon evidence of Lekh Raj AW.6, Steno in the office office of Civil Surgeon, Amritsar, who stated that as per summoned record, Tejinder Singh landlord is 100% blind and Concession Certificate had been issued by the office of Civil Surgeon, Amritsar. Taking these pieces of evidence into consideration, learned Rent Controller held that personal necessity is not made out. Learned Rent Controller further noticed that the demised premises was given for running photography business but tenant is doing the business of in the name of M/s Delight Boot House. Learned Rent Controller ignored a condition enumerated in the Rent Note that in case of any change in user, written consent is required. It held that since the brother of landlord had accepted the rent in 1991, therefore, running Civil Revision No. 6226 of 2008 5 of a Boot House was in his knowledge. Therefore, change of user is not made out. It was further held that temporary fixtures have been placed in the shop, therefore, it has not materially impaired the value and utility of the shop. Aggrieved against the same, landlord filed an appeal. Learned Appellate Authority accepted the appeal. It took into consideration that the law does not forbid a blind person to do the business. It relied upon testimony of petitioner who appeared as AW3 that he had closed his dispensary at Jammu and had shifted to Amritsar. It held that running of a business of STD/PCO with the help of his wife to a blind man cannot be denied. Learned Appellate Authority further noticed that Tejinder Singh landlord is residing at 10, Ajit Singh Nagar, Amritsar. He is residing with his wife on the back side of the shop in question. He is at the mercy of his brothers for his livelihood and he has no source of his income. Therefore, ground of personal necessity was accepted and eviction of the tenant was ordered. It further held that since in the rent note it has been specifically stated that purpose of the premises cannot be changed without written consent from the landlord, therefore, fact that rent rent receipts Ex.R1 to Ex.R4 were issued by Balbir Singh, brother of landlord, it would not tantamount to acquiesces. I have heard Mr. V.K.Sandhir, Advocate, appearing for the petitioner-tenant. He has stated that blind man is not capable of running a business. He further stated that the landlord has failed to prove that he was shifted to Amritsar and rather he has urged that landlord will never shift to Amritsar and will not start his business. Mr. Sandhir has further stated that infact the motive of landlord Civil Revision No. 6226 of 2008 6 is to sell the shop. He has further stated that learned Appellate Authority was wrong when it held that the tenant is to be evicted on the ground of change of user. He has relied upon Mohan Lal v. Jai Bhagwan 1988 (1) R.C.R. (Rent) 444 wherein it was stated that the shop was taken on rent for running liquor business but subsequently changed to general merchandise, there is no change of user if another business is carried. I have noticed the contentions and the findings returned by learned Rent Controller. I am of the view that the view taken by learned Appellate Authority is just and proper. It cannot be held that a blind man with the aid of his wife cannot run a business of STD/PCO and actual shifting to Amritsar is a necessary ingredient. The landlord has been exploited in this case. For a meager rent of Rs.125/-, twelve years long drawn litigation has taken place and on some technicalities, landlord has been denied eviction. Learned Rent Controller formulated a wrong opinion that blind man is not capable of running business. It is not necessary that tenant must shift to the place and remain there till the eviction proceedings are concluded, which on one pretext or the other are being delayed by the tenant. Therefore, the contentions raised by Mr. Sandir that landlord should actually shift to Amritsar and remain their cannot be accepted. Mohan Lal's case (supra), judgment relied upon by Mr. Sandhir, is distinguishable qua the ground of change of user in the present case. Admittedly, there is a rent note between the parties. There is a condition in the rent note that change of user is not permitted until written consent is recorded. In view of this, argument of Mr. Sandhir cannot be sustained. Even otherwise, the view formulated by learned Appellate Court is one view which is possible and is based on Civil Revision No. 6226 of 2008 7 the true appreciation of the evidence. While exercising revisional jurisdiction, I shall refrain myself to re-appraise and re-appreciate the evidence. Therefore, there is no merit in the present revision petition and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 20, 2008 “DK”