CR No.4954 of 2008 - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH `**** CR No.4954 of 2008 (O&M) DATE OF DECISION: 23.10.2009 **** Devki Rani and others . . . . Petitioners VS. Nirmal Singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Arun Jain, Senior Advocate with Mr. Chetan Salathia, Advocate for the petitioners Mr. J.R. Mittal, Senior Advocate with Mr. Kashmira Singh, Advocate for the respondent **** SURYA KANT J.(ORAL) (1). This revision petition is directed by the tenants who have been ordered to be ejected from the tenanted shop by the Rent Controller, Khanna vide order dated 23rd September, 2006 passed under the East Punjab Urban Rent Restriction Act, 1949 and which has been further upheld by the Appellate Authority, Ludhiana vide the impugned judgement dated 16.8.2008. (2). The respondent-landlord sought the petitioner-tenants’ eviction from the demised premises comprising a shop situated in Ward No.11, Mohalla Dhaipai, GT Road, Khanna, District Ludhiana, inter alia, on the grounds that:- CR No.4954 of 2008 - 2 - i. the petitioner-tenants are in arrears of rent since 13.05.1996; ii. the demised premises is required by the respondent- landlord for the personal use and occupation of his daughter (Ms. Manjit Kaur) who is B.A., M.Ed. and intends to start a Coaching Academy for the students in the demised premises. (3). The respondent specifically averred that “Ms. Manjit Kaur is unmarried and she has got experience of teaching of 8 years to different classes of students; she is also unemployed”. The respondent-landlord further averred that he is not occupying any other shop for the use and occupation of his daughter nor has vacated any such shop previously in the urban area of Khanna. (4). The petitioners contested the eviction petition questioning the bona fide of the respondent-landlord and averred that after the demised shop was let out by the father of the respondent about 17 to 19 years back, concerted efforts have been made by the respondent to get the same vacated and for that purpose the respondent-landlord even got executed a sham and fictitious sale deed on 10.10.1995 from his father, based upon which, he sought petitioners’ ejectment vide eviction petition dated 15.10.1996 on the ground of his own ‘personal necessity’ but the said eviction petition was dismissed in default on 23.09.1993 followed by the present eviction petition filed on 6th June, 2003 with the changed plea that the demised premises is now CR No.4954 of 2008 - 3 - required for the alleged used of his daughter. The petitioners further averred that the respondent-landlord does not reside at Khanna or even of Ludhiana and is settled at Chandigarh. The alleged need, as pleaded by him, is totally artificial, fake and a mere device to seek their eviction from the shop in dispute. (5). On consideration of the evidence led by the parties and while deciding Issue No.2, which pertained to the bona fide of the personal necessity of the respondent-landlord, the Rent Controller, Khanna held that Ms. Manjit Kaur (daughter of the respondent-landlord) herself has entered the witness box (PW1) and deposed on oath that “she is B.A., M.Ed.; intends to start coaching academy for teaching students in the demised premises; she is unmarried and has got teaching experience of 9 years; she is unemployed and has no other shop or any commercial space in her occupation nor she or her father have vacated any premises after the commencement of the Act, 1949. (6). The Rent Controller also referred to the Site Plan (Ex.P6) and concluded that the respondent-landlord has clearly made out a case of bona fide personal necessity of his daughter, namely, Ms. Manjit Kaur. (7). As regards the contentions raised on behalf of the petitioner-tenants that earlier also the respondent had filed an eviction petition, which was dismissed in default or that Ms. Manjit Kaur, in her cross-examination, has admitted that she has been residing at Chandigarh and has no CR No.4954 of 2008 - 4 - residential house at Khanna and thus is not in a position to shift or start any teaching academy at Khanna, the Rent Controller observed that the ejectment petition filed in the year 1996 on the plea of the respondent-landlord’s own personal necessity or its dismissal in default has no bearing on the need pleaded on behalf of the daughter of the respondent-landlord. It was further observed that Ms. Manjit Kaur is fully qualified and possess the requisite experience to start the teaching academy; she has remained unmarried and does not have any known source of income, therefore, her need is totally bona fide. (8). The appeal preferred by the petitioners has also been turned down by the Appellate Authority, Ludhiana after observing that the tenants have no authority in law to dictate their terms to the landlord as to how he/she should use his/her property nor even the Courts can advise the landlord in this regard and once it is proved on record that the daughter of the respondent-landlord is qualified, this is no ground to refuse ejectment on the plea that she could have better opportunities for running an Academy in Chandigarh. (9). Aggrieved, the tenants have preferred this revision petition. (10). I have heard learned counsel for the parties and perused the records which have been summoned. (11). Three-fold contentions have been raised on behalf of the petitioner-tenants. Firstly, it is urged that the sale deed CR No.4954 of 2008 - 5 - dated 10.10.1995 is a sham and fictitious transaction which was executed in order to get the demised premises vacated. It is argued that the said sale deed has been got executed by none else than from the father of the respondent-landlord, namely, Nirmal Singh. It is pointed out that soon after the execution of the sale deed, the respondent-landlord filed an eviction petition on 15.10.1996, inter alia, seeking the petitioner-tenants’ eviction on the ground of his own personal necessity alleging that the demised premises was required by him to start the business of sale of hardware items after his retirement as he is a qualified Civil Engineer and has full experience in the hardware articles/items. The said eviction petition, however, was dismissed in default on 24th September, 1999 which clearly establishes that the respondent never required the demised premises for his personal use and occupation. (12). Secondly, the learned counsel argued that the personal necessity pleaded by the daughter of the respondent- landlord also lacks bona fide who in her cross- examination, has candidly admitted that throughout, she has been living in Chandigarh only. In the absence of any residential house at Khanna, it is argued, would be almost impossible for her to come all the way from Chandigarh to Khanna to open a teaching/coaching academy. It is contended that the eviction petition has been filed by the respondent through his son-in-law (husband of another daughter) in whose favour the Power of Attorney has been executed, which clearly suggests about the transfer of CR No.4954 of 2008 - 6 - property in favour of his daughters. Thirdly, according to the learned counsel, adverse inference ought to have been drawn against the respondent-landlord as he himself has not entered into the witness box. (13). After giving thoughtful consideration to the contentions noticed above, I do not find any merit in this revision petition. (14). Assuming that the eviction petition filed by the respondent on 15.10.1996 was dismissed on merits on 24th September 1999, after holding that the demised premises was not required by him for the start of business of hardware articles, that by itself could be no ground for defeating the subsequent eviction petition based on the plea that the demised premises is required by the landlord for the start of teaching academy by his daughter Ms. Manjit Kaur. It is well-settled that the principle of res judicata is not attracted to the eviction proceedings based upon the ground of personal necessity, provided that the need pleaded in the subsequent eviction petition is founded upon changed circumstances. (15). Adverting to the plea of lack of bona fide, it has to be kept in view that the daughter of the respondent is unmarried and was 34 years old when she entered the witness box. Her counsel states that she is still unmarried and presently over 40 years old. In these circumstances, when for whatever reasons, the daughter of the respondent did not get marry. It is but natural for a father to settle her in CR No.4954 of 2008 - 7 - some independent business to let her earn her livelihood without being dependent on other family members. (16). Having regard to the undisputed qualification of the daughter of the respondent, namely, B.A., M.Ed., there is no reason to doubt that she can comfortably start the vocation of teaching academy. As regards the petitioners’ contention that had there been any intention, the daughter of the respondent would have started the Academy in Chandigarh itself, I do not find any substance in the same. In a bigger city like Chandigarh, where high-profile Institutes and Coaching Academies are already running, it is very difficult for a small player like her to survive in the highly competitive market, as compared to the viability in a smaller town like Khanna. (17). Similarly, the plea that the eviction petition has been filed by the respondent through his son-in-law in whose favour he has executed the Power of Attorney, does not cut much ice. The fact remains that the demised premises is required by the respondent for personal use of his daughter, namely, Manjit Kaur, for running a teaching academy. The age of the respondent or the handship which Manjit Kaur would have faced in attending Courts at Khanna might be the factors that led the respondent- landlord to execute a Power of Attorney in favour of his son-in-law to pursue the litigation. Similarly, the allegation that the sale deed dated 10.10.1995 is a sham or fictitious transaction, in the context of the nature of the present eviction proceedings, is wholly irrelevant. Even the CR No.4954 of 2008 - 8 - grandfather of Manjit Kaur could seek eviction of the petitioners from the demised premises on the ground of need of his granddaughter for the start of teaching academy. Be that as it may, the tenant has no locus standi to question the title or right of his landlord. (18). Both the Courts below have correctly appreciated the evidence on record and no case of any perversity or misreading of the evidence having been made out or argued, no ground to interfere with the impugned orders by this Court, in exercise of its Revisional jurisdiction, made out. Dismissed. (19). However, keeping in view the fact that the petitioner- tenants have to make alternative arrangements to shift their business, they are permitted to retain the demised premises only uptil 31st December, 2009 subject to payment of rent by every 10th day of the calendar month. (20). Records be sent back. (SURYA KANT) JUDGE 23.10.2009 vishal shonkar