CR No.1016 of 2011 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1016 of 2011 (O&M) Date of decision:28.02.2011. Surinder Singh ...Petitioner Versus Jaswinder Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Parveen Kumar, Advocate, for the petitioner. ***** RAKESH KUMAR JAIN, J. The tenant is in revision against the order of reversal passed by the learned Appellate Authority by which he has been ordered to vacate the demised premises on the ground of personal necessity of the landlord who had filed a petition under 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”]. In brief, the tenanted premises is a double storied shop with `miani' inside the shop, which was let out @ `30/- per month vide rent note dated 12.01.1962. Initially, the ejectment was sought on the grounds of arrears of rent, material alterations without permission and bona fide necessity. The ejectment petition was amended and additional plea of ejectment was taken that it has become unfit and unsafe for human habitation. During the pendency of the ejectment petition, Onkar Singh died on 15.06.2006 and was replaced by his legal representative Jaswinder Singh. However, the learned Rent Controller, vide its order dated 11.10.2006, impleaded all the legal heirs of deceased Onkar Singh including Jaswinder Singh who had filed an application for amendment of the ejectment petition on 11.04.2008, which was allowed on 01.08.2008. After amendment, it was pleaded by Jaswinder Singh that the demised premises is required for his own business and he had no other shop in his possession in the CR No.1016 of 2011 (O&M) -2- ***** urban area of Hoshiarpur nor had vacated any such premises in the said urban area after commencement of the Act. In reply, on merits it was admitted that the shop was taken on rent from Mela Singh @ `50/- per month but it was denied that after his death, Onkar Singh was his only legal heir. The material alteration or impairment of value and utility of the demised premises was denied. As regards the bona fide necessity, it was alleged that the landlord does not require the demised premises for his own use and occupation who is a big landlord and is not to do any work. He denied that he requires it for the purpose of starting a shop for the sale of seeds. It was further stated that the landlord got another shop at Jalandhar road. After filling of rejoinder, issues were framed by the learned Rent Controller on 25.09.2000 and after amendment of the ejectment application, issues were re-casted on 06.12.2001. One more issue was struck on 27.08.2008 to the effect that “whether the shop in question is bona fidely required by Jaswinder Singh (son of deceased Onkar Singh) for his bona fide requirement?” The learned Rent Controller dismissed the ejectment application, against which appeal was filed by the landlord. It was noticed by the Appellate Authority that the learned Rent Controller has not recorded any finding on issue No.1CA, therefore, vide order dated 02.11.2010, the Rent Controller was asked to record finding on issue No.1CA and send the report. The report was received on 15.11.2010 by which the said issue No.1CA was decided against the landlord. On receipt of the report, the landlord filed objections to the report, to which tenant filed reply. As a matter of fact, issue No.1CA is the one which was struck on 27.08.2008 by the learned Rent Controller with regard to the bona fide necessity of Jaswinder Singh S/o Onkar Singh. The learned Appellate Authority, after taking into consideration the entire evidence on record, observed that decision on issue No.1CA of the learned Rent Controller is perverse and, thus, reversed the same and in this regard the finding recorded by the Appellate Authority is as under: - “31. The learned Rent Controller appreciated the evidence of AW7 Jaswinder Singh, not in a proper manner and mistook the answers given by AW7 in cross- examination to form an opinion that he was telling a lie and concealing truth from the Court. If deceased Onkar Singh was running a coal depot and he did not disclose CR No.1016 of 2011 (O&M) -3- ***** about the said fact in the ejectment application, that cannot be said to be fatal to the case of the applicant Jaswinder Singh. That shop has fallen to the share of Rajinder Singh, who is brother of Jaswinder Singh. If AW7 has stated that his brother Rajinder Singh is running coal depot in that shop, where his father was earlier doing the business of sale of coal and he has also stated that his brother is running coal depot in the shop, which was got vacated from Joginder Singh, it was for the learned counsel for respondent to seek clarification from the witness, as to where coal depot is being run i.e. whether in the shop got vacated from Joginder Singh or in some other premises, which was earlier in occupation of deceased Onkar Singh. If the learned counsel for respondent did not get it clarified, no mala fide can be attributed to the present applicant Jaswinder Singh that he is either telling a lie or concealing some facts. If Onkar Singh was a big landlord, it does not mean that he or his son is debarred from doing business. The land must have been divided amongst the legal heirs of deceased as per law. 32. It is well settled that landlord is the best judge of his need and it is for him to see as to which premises are most suitable for him for his business. It is not that applicant Jaswinder Singh all of a sudden set up a new plea that he is to do business of sale of vegetables' seeds in the shop in dispute. His father had also come to the Court with similar plea. Admittedly, Onkar Singh owned agricultural land. He was doing agriculture. His sons were also doing agriculture. If Onkar Singh consulted his son Jaswinder Singh before filing the ejectment application and did not plead the necessity of his son in the ejectment application, does it mean that CR No.1016 of 2011 (O&M) -4- ***** present applicant Jaswinder Singh cannot put forward his own personal necessity and seek ejectment of the respondent. Had the father succeeded in getting ejectment order on the ground of his bona fide personal necessity and come in possession of the demised shop, his son Jaswinder Singh could also sit with him and do business. Could anybody raise objection that Jaswinder Singh could not sit in the demised shop as the shop was not got vacated for his bona fide necessity.” “34. In a case reported as Sarla Ahuja versus United India Insurance Company Ltd. 1998(2) Apex Court Journal 704, the Hon'ble Supreme Court held that when landlord asserts that he requires building for his own occupation, Rent Controller shall not proceed on presumption that requirement is not bona fide. It was also held that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of tenanted premises. In the present case, the learned Rent Controller appears to have proceeded on the assumption that requirement of landlord is not bona fide. The landlord may be a big landlord. He may be owner of agriculture land. Does it mean that he cannot get the shop vacated for doing his business or for expanding his business. It is specific case of the applicant that he wants to run the business of sale of seeds. The applicant is an agriculturist. The business of sale of seeds shall be ancillary business. The applicant has also specifically stated that keeping in view his age, he is unable to do agriculture work and wants to do business. In these circumstances, it cannot be said that need of the applicant is not bona fide or it is a mere wish on the part of the applicant to get the shop in dispute vacated. In another case reported as CR No.1016 of 2011 (O&M) -5- ***** Mohinder Parshad Jain vs Manohar lal Jain 2006(2) Civil Court Case 01, the Hon'ble Supreme Court held that to have experience in the business is not a pre- condition to seek eviction of a tenant. It was also held that one of the co-owners can initiate eviction proceedings without the consent of the other co-owners. In another case reported as Dattaraya Laxman Kamble Vs Abdul Rasul Moulali Kotkune and another 1999(1) Apex Court Journal 717, the Hon'ble Supreme Court held that genuineness of requirement is not to be tested on part with dire need of a landlord. There is no warrant for presuming landlord's need is not bona fide.” After hearing learned counsel for the petitioner in detail, I could not persuade myself to take a different view from the view taken by the Appellate Authority to set aside its findings on issue No.1CA which clinches the dispute between the parties as the ejectment has been sought also on the ground of personal necessity of Jaswinder Singh. In view of the above, I do not find any merit in the present revision petition and as such, the same is hereby dismissed in limine, however, without any order as to costs. February 28, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE