CR No.5408 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5408 of 2011 (O&M) Date of decision: 15.11.2011 M/s/ Bata India Ltd. & Anr. ......Petitioner(s) Versus Smt. Satya Devi ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain , Advocate for the petitioners. Rakesh Kumar Garg, J. This is tenants' revision petition challenging the order dated 18.1.2008 of the Rent Controller, Amritsar ordering their eviction and the judgment dated 9.6.2010 of the Appellate Authority whereby their appeal against the aforesaid order of eviction was dismissed. Shorn of unnecessary details, it is suffice to say that eviction of the petitioners has been ordered on the ground of personal necessity of the landlord. The ground of personal need of the respondent as pleaded reads thus:- “That the applicant for business purpose requires the demised premises for her own use and occupation and for the use and occupation of her sons. The applicant and her sons are not occupying any other non residential building in the urban area concerned at Amritsar. The applicant and her sons have also not vacated any such non residential building in the urban area concerned after the commencement of the Rent Act without any sufficient cause.” CR No.5408 of 2011 (O&M) 2 The petitioners filed written statement raising preliminary objections. On merits, the petitioners controverted all the material averments as contained in the ejectment application. However, it was submitted that the demised premises were taken on rent w.e.f. 1.9.1967. It was also submitted that there existed a relationship of landlord and tenant between the parties. The petitioners further tendered the arrears of rent for the period w.e.f. 1.4.1981 to 31.5.1997 at the rate of ` 400/- per month along with interest and costs as assessed by the Court. The fact of subletting the demised premises to petitioner No.2 was denied and it was submitted that both the petitioners were same and only the name was changed and therefore, question of subletting does not arise at all. It was denied that the demised premises were required by the respondent for her bona fide need, use and occupation or for the use and occupation of her sons. It was further averred that the instant application was filed with an intention to put pressure upon the petitioners to enhance the rate of rent and thus, dismissal of the ejectment petition was sought. After considering the evidence on record and hearing learned counsel for the parties, the Rent Controller found that there was overwhelming evidence on record to establish that there existed a bona fide need of the landlady to occupy the demised premises for her personal use as well as use of her son as all of them were doing their business of selling clothes while sitting on the footpath and resultantly, the eviction of the petitioners was ordered from the demised premises. The relevant observations of the Rent Controller read as follows: “I have given my thoughtful consideration to the submission of both the sides and gone through the authorities relied upon by the learned counsel for the parties. The petitioner has sought the ejectment on the ground of personal necessity. It CR No.5408 of 2011 (O&M) 3 is undisputed that ejectment on this ground can be ordered only if the requirement of landlord is held to be bonafide and reasonable. Now it is to be seen whether the requirement of the petitioner is bonafide or not. It is the case of the applicant that applicant for business requires the disputed tenancy premises for her own use and occupation and for the use and occupation of her sons. The attorney of the applicant Shri Ram Saran Dass while appearing into the witness box as RW5 stated that the applicant and her sons are selling underwear and banyans as well as readymade garments by sitting on the footpath near Post Office Durgiana Mandir, Amritsar for the last about 6/7 years. The applicant and her sons namely Jagmohan, Manmohan and Brij Mohan for the aforesaid business purpose, bonafide requires the disputed tenancy premises. This version of the applicant finds full corroboration from the testimonies of AW3 Mahant Vijay Kumar Dass and AW4 Shri Sushil Kumar. Both of the witnesses have deposed in one voice that they know the applicant and her sons. The applicant and her sons are selling underwears, banayans as well as readymade garments while sitting on the footpath near Post Office Durgiana Mandir, Amritsar and they have been seeing the applicant and her sons while selling the articles/goods on footpath for the last 4/5 years and they have also purchased the aforesaid articles or goods from them. Mahant Vijay Kumar AW3 has further deposed that applicant and her sons are not owning or occupying any other premises for their business in the urban area concerned in Amritsar. Moreover, no evidence has been led by the applicant to rebut this fact that the applicant and her sons have been selling the goods/articles CR No.5408 of 2011 (O&M) 4 while sitting on the footpath near Post Office Durgiana Mandir, Amritsar. Further it was held in Sarla Ahuja vs. United Insurance Company Limited 1998(2) RCR Rent Control Reporter page 533 that when landlord asserts that he requires his building for his own occupation, the Rent Controller should not proceed with presumption that requirement is not bonafide. When other conditions of the clause is satisfied and whenever landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that requirement of landlord is bonafide and further it is held in various rulings 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 the tenanted premises.” Appeal filed by the petitioners against the aforesaid order of eviction of the Rent Controller was also dismissed by the Appellate Authority vide impugned judgment dated 9.6.2010. While dismissing the appeal, the Appellate Authority observed as under: “In this case, the respondent has led overwhelming oral as well as documentary evidence to prove the bona fide need of demised premises by the respondent/applicant and the will dated 15.5.1975 executed by Mahant Sarup Dass in her favour. AW2 Narotam Singh Bawa and AW2 Pritam Dass have been examined by applicant Satya Devi to prove the Will executed by Mahant Ram Sarup in favour of the applicant. Further AW3 Mahant Vijay Kumar Dass has been examined by the applicant who deposed that he knows the applicant and her sons who are selling underwears, Banyans, shirts and some other articles while sitting on the footpath near Post Office, Durgiana Mandir, Amritsar and he has been seeing the applicant and her sons selling the aforesaid goods/articles for the last 4/5 years and he also purchases above said articles from them. He also CR No.5408 of 2011 (O&M) 5 deposed that the applicant and her sons are not occupying any other premises for their business in the urban area concerned Amritsar. Even in the cross examination he deposed that Satya Devi and her sons are doing the aforesaid business by selling the aforesaid articles while sitting on the foot path. Further AW4 Sushil Kumar also stated the same version that the applicant and her sons are selling underwears, Banyanas, shirts, caps and some other articles while sitting on the foot path. Further AW4 Sushil Kumar also stated the same version that the applicant and her sons are selling underwears, Banyans, shirts, caps and some other articles while sitting on the foot path near Post Office, Durgiana Mandir, Amritsar and he has been seeing them doing the aforesaid business for the last about four years and he also purchases goods from them. In the cross examination of these two witnesses nothing could be extracted which could shatter their version. Further AW5 Ram Saran Dass has been examined who deposed that respondent No.1 took on lease the disputed premises from Mahant Sarup Dass Chela Mahant Rewat Dass and the lease deed was duly registered on 18.4.1968 and said Ram Sarup Dass was landlord qua respondent No.1, who expired on 23.5.1975 and during his life time, in a sound disposing mind Mahant Sarup Dass executed a valid Will dated 15.5.1975 which was duly registered in the office of Sub Registrar Amritsar and that the applicant became the landlady of respondent No.1 by operation of law and he deposed that the applicant requires the demised premises for her use and occupation and for the use and occupation of her sons namely Jagmohan, Manmohan and Brij Mohan and that she and her aforesaid sons are not having any other non residential building in the urban area concerned, Amritsar and they have also not vacated any such non residential building in the urban area concerned Amritsar and that he is the CR No.5408 of 2011 (O&M) 6 attorney of his wife and is conversant with the facts of the case. He also deposed that the applicant and her sons are selling underwear, banyan and ready made garments by sitting on the foot path near post office, Durgiana Mandir, Amritsar for the last about 6/7 years and that the applicant and her aforesaid sons require the demised premises for the aforesaid business. Learned counsel for the appellant Mr. P.M. Sharma, Advocate pointed out that AW1 has admitted in his cross examination that the applicant can not do the household work being an old lady. Therefore according to him the applicant being an old lady is unable to do any business. At this stage, Mr.N.K. Chawla, Advocate intervened to submit that the applicant being an old lady can not do laborious house hold chores and she is certainly able to perform the work while simply sitting on the foot path requiring no labour and energy which is required in household chores. Learned counsel for the appellant Mr. P.M. Sharma pointed out that Satya Devi earlier sought enhancement of the rent from the respondent vide letter Ex.AX which has been placed in evidence by the applicant herself and when the respondent did not agree to the same vide letter dated 14.12.1989 Ex.RW14 then the applicant resorted to the correspondence with the respondent, persuading the respondent to vacate the premises. Further Mr. P.M. Sharma has drawn attention of this Court to the cross examination of AW5 where he could not answer some of the questions regarding the area in which the tenancy were renewed and date of enhancement of the rent made by the tenant regarding the other property. In my opinion, even if AW5 could not tell about such details of other property, but it has certainly come in the evidence of AW5 that the sons of the applicant are carrying on business on the foot path near post office Durgiana Mandir Amritsar for the last about 8/10 years and he stated that applicant has got one disputed shop in Katra CR No.5408 of 2011 (O&M) 7 Jaimal Singh and has other shops in Katra Jaimal Singh and the applicant has got only two shops stated above including the disputed premises. According to him, there is another tenant namely B.K. Tailor under the applicant who is tenant in the staircase of another shop. One tenant who is respondent is a tenant in the disputed shop. There are three tenants in all in the other shops owned by the applicant situated in Katra Jaimal Singh and according to him, there are three shops in plot No.15 and there are three tenants in the same. There are two shops and one stair case in Plot No.15 and there is one Bata Shoe Company tenant in the same, second shop is under the tenancy of M/s Balaas and in the staircase one B.K. Tailor is tenant. If this witness could not tell about the date of tenancy about the other case, that is not material fact. More material is the fact that remaining three shops built in plot No.15 are already in occupation of three tenants and also there is a tenant in one staircase in Plot No.15. As far as the evidence of the respondent is concerned RW1 Surinder Mohan Sidhana has been examined and he stated in the affidavit that adjoining to the shop there are other two shops owned by the applicant and adjoining the shop is in occupation of M/s Libaas and other shop in occupation of B.K. Tailor. These shops have already been disclosed/explained by AW5 as stated above. RW1 has admitted in his cross examination that B.K. Tailor is working in the staircase and the shop built on plot No.15 is occupied by M/s Libaas. He further stated that he did not know if the sons of applicant have got any property in their respective names at Amritsar. Further RW2 Ajay Tiwari has been examined by the respondent who also stated in the cross examination at page 7 that he does not know whether the applicant and her children have got any other shop or building. Therefore, it has come up in evidence of the appellant clearly that there are three shops owned by the CR No.5408 of 2011 (O&M) 8 applicant and the same are in occupation of the tenants as stated above, the facts which being admitted by the respondent by way of examination of independent witnesses, the applicant has proved that she and her sons are performing the business of selling underwears, banyans and other ready made garments on the foot path near post office, Durgiana Mandir, Amritsar and they do not own any other property. The authorities 2010 (1) Civil Court Cases page 610 (P&H), 2009(4) Civil Court Cases page 528 (S.C.), AIR 2003 Supreme Court page 532, 2007(1) Rent Control Reporter page 417 and 2008(1) Rent Control Reporter page 2 are fully applicable to the facts of the present case. As far as authorities quote by learned counsel for the appellants are concerned, I have gone through the same and find that the same are distinguishable on facts and circumstances and are not applicable to the present case.” Challenging the aforesaid order of the Authorities below, learned counsel for the petitioners has vehemently argued that there is sufficient evidence/material on record to show that the alleged need of the respondent-landlady was non-existent and mala fide and in fact, the ejectment petition was filed on account of greed to increase the rent and there was no element of need. However, the Authorities below have ignored the material evidence on record. Learned counsel for the petitioners has referred to a letter Ex.AX in support of his case that prior to the filing of the ejectment petition, the petitioners had asked for increase in the rent and the said letter was duly admitted by her attorney in his cross- examination and thus, the Authorities below have misread, interpreted and misconstrued the material documentary as well as oral evidence on record to pass the impugned orders and thus, the same are liable to be set aside. CR No.5408 of 2011 (O&M) 9 I have heard learned counsel for the petitioners and have perused the impugned orders/judgments of the Authorities below. The question of personal necessity of the respondent is essentially a question of fact. Both the Authorities below on appreciation of evidence have recorded a concurrent finding in favour of the respondent- landlady with regard to her personal bona fide need. A perusal of the impugned orders would show that the respondent and her sons are doing their business of selling clothes while sitting on the footpath. The said finding of fact could not be disputed before this Court. Learned counsel for the petitioners could not point out any material evidence on record to rebut the aforesaid fact. Moreover, it is well settled that landlord is the best judge of his needs and 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 fact the only argument as raised by the learned Senior counsel is that the respondent wanted to increase the rent and when the petitioners did not agree, the petition for ejectment had been filed, is without any force. The letter Ex.AX relied on by the petitioners and as reproduced in grounds of revision reads as follows: “The V.P. Retail (north) M/s Bata India Ltd. Faridabad. Sub: Settlement of Katra Jaimal Sigh Amritsar shop. Dear Sir, Attached please find letter dated 18.12.95 we still abide by all the terms of the said letter only increase the time period of point B&C (?) that from 1st Sept.1987 to August 1992 the sent(?) will be paid by the company Rs.3500/- per month. That from 1st Sept.1992, 31st August 1999 CR No.5408 of 2011 (O&M) 10 rent will be paid by the company Rs.5000/- per month from 1st Sept.1999, the new rent will be Rs.7000/- per month. This rent is inclusive of income tax and exclusive of all other municipal tax. The period of the lease will be 10 years. 3 years in option, with 10% increase in rent every 3 years. We shall provide you the N.O.C from out side for lowering of the floor to build a mazzenine floor thus making the existing shop a two floor structure for seiling/stock the lowering of floor will be 2.5 ft. The company shall provide us a 6ft. space from the left hand side till the end of the shop which is about 42 ft. deep. Please note we are constructing two storey building above your store. Yours faithfully, Sd/- (Smt. Satya Devi) s/o Sh. Ram Sharan Dass Landlady Kt. Jaimal Singh shops Amritsar” A perusal of the aforesaid letter shows that the said letter has been written by the respondent-landlady only in reply to the correspondence of the petitioners seeking to make alterations in the structure of the shop in dispute. Not only this, it is not coming out as to when this letter was written, what is the date of the aforesaid letter. However, learned counsel for the petitioners has stated that the same is after the filing of the petition. Even in the aforesaid letter, respondent- landlady has clearly asked the petitioners to provide her a space measuring 6 ft. wide from the left hand side till the end of the shop length of which is 42' deep. Thus, from this letter also, the need of respondent for the demised shop for doing the business by her sons has established. In this view of the matter, simply because while replying a letter of the petitioners, the respondent-landlady has offered to allow the petitioners to CR No.5408 of 2011 (O&M) 11 change the structure of demised shop on the condition of higher rent and providing her space for her own use, it cannot be said that there was an element of greed and the respondent-landlady want to evict the petitioners only to get enhanced rent and there was no personal bona fide necessity of the landlady. As stated above, even before this Court, counsel for the petitioners was at loss to controvert the findings of the Authorities below to the effect that the respondent-landlady and her son are doing the business of selling clothes from a footpath. No other point has been argued. In this view of the matter, I find no merit in the instant petition. Dismissed. November 15, 2011 (RAKESH KUMAR GARG) ps JUDGE