IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5802 of 2006 (O&M) Decided on:31.05.2011 **** Raj Kumar . . . . .Petitioner Versus Smt. Rewat Rani . . . .Respondent **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.H.N. Mehtani, Advocate, for the petitioner. Mr.Sushil Jain, Advocate, for the respondent. **** RAKESH KUMAR JAIN, J. The tenant is in revision against the orders of the Courts below by which eviction petition filed by the landlord has been allowed. In brief, the landlord filed petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short ‘the Act’) against the tenant alleging that she is the owner of House No.178, property No.1032/4, situated in Mohalla Kalan, Faiz Bazaar Dairywali Gali, Sonepat out of which she had let out two rooms on the southern side to the tenant on a monthly rent of `1000/- in January, 1996 for a period of six months, who has converted the residential room into godown for storage of bananas where he is using hazardous chemicals for ripening the bananas. The eviction was sought, inter alia, on the grounds of non-payment of arrears of rent from 1.8.1996 to 30.9.2000 for 62 months amounting to `62,000/- and that the demised premises was required for personal use. Earlier her son was living with her in the demised premises but now it is required for her grand-daughter Akanksha Arora, who had taken admission in B.M. Institute of Engineering and Technology, Sonepat and has no accommodation at Sonepat except for the demised premises as she requires the room where she can install a computer. Besides her son Devender Kumar also wanted to accommodate his family in the demised premises. It was also alleged that she requires the accommodation for her own personal use and she is not keeping any other residential house and had not vacated any such premises without any sufficient cause after the commencement of Act, 1949. It was also alleged that the tenant has converted the residential premises into godown and is guilty of change of use and is also causing nuisance by using poisonous chemicals for ripening bananas which are health hazardous and dangerous to her life and persons living in the locality. In reply, it was alleged that the tenant is not in arrears of rent, there is no bona fide necessity of the landlady, the premises was let out from the very beginning for godown and that no nuisance is being caused as alleged. On the pleadings of the parties, learned Rent Controller framed as many as four issues. Landlady examined herself as AW-1, Devender as AW-2 and Raj Kumar as AW-3 and relied upon copy of the letter dated 19.9.2001 Ex.AW3/A, copy of receipt Ex.AW3/B and certificate dated 22.7.2004 Ex.AW3/C. On the other hand, the tenant examined Kasturi Lal as DW-1, Krishan Lal as DW2 and respondent Raj Kumar as DW-3 and tendered rent petition Ex.R1, copy of written statement Ex.R2, copy of statement of Shri Mahabir Tyagi Advocate dated 6.11.2004 Ex.R3, copy of challan form dated 27.12.2000 Ex.R4 and copy of order dated 6.11.2004 Ex.R5. In rebuttal, the landlady examined Om Parkash as AW-4 and tendered the document namely, reporting slip Ex.AW4/1, photocopy of fee receipt-cum-admission letter dated 27.7.2005 Ex.AW4/2 and photocopy of receipt dated 22.8.2005 Ex.AW4/3. The learned Rent Controller allowed the eviction petition on the ground of non-payment of rent, change of user and personal necessity of the landlady vide his order dated 1.3.2006. The learned Appellate Authority, however, maintained the order of eviction on the ground of non-payment of rent and bona fide necessity but did not agree with the order of eviction on the ground of change of user. However, the order of eviction was maintained vide his order dated 14.8.2006. Aggrieved against the orders of the Courts below, present revision petition was preferred by the tenant. Notice of motion was issued in the revision petition on 6.11.2006. Immediately thereafter the tenant filed CM No.23158-CII- 2006 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for leading additional evidence by placing certificate (Annexure A-1) on record. In the said application, notice was issued to the landlady and it was ordered to come up for hearing on 20.11.2006. On the said date, this application was not pressed as no order was passed on it, the revision petition was admitted and eviction was stayed. During the pendency of the revision petition, landlady filed CM No.10399-CII-2007 in order to place on record certified copy of Annexure R-1 which was allowed on 6.7.2007. She also filed CM Nos.10400 & 10401-CII-2007, one for early hearing and fixing the case for actual date and the other under Order 41 Rule 27 of the CPC for additional evidence, respectively. Notice in both the applications was issued. On 28.8.2007, CM No.10400-CII-2007 was allowed and the main case was listed for hearing. Another application filed by the tenant i.e. CM. No.14737-CII-2007 under Order 41 Rule 27 CPC was dismissed as not pressed. The tenant filed another application i.e. CM No.18298-CII-2007 under Order 41 Rule 27 in order to place on record result (Annexure P-1) of Akanksha Arora in which notice was issued on 19.11.2007 and on 8.1.2008, it was ordered to be heard with the main case. The tenant filed another application namely, CM No.28814-CII-2010 in order to place on record additional affidavit of the tenant which was ordered to be heard with the main case on 17.11.2010. The landlady has also filed CM No.11245-CII-2011 under Order 41 Rule 27 of the CPC which has been allowed on 31.5.2011 by this Court. Learned counsel for the tenant has argued that the order of eviction passed by the Courts below on the ground of non-payment of rent and personal necessity are patently illegal. In this regard, while assailing the finding on the personal necessity of the landlady, he has submitted that the need of the grand-daughter Akanksha Arora was set up in the eviction petition as the demised premises was required for her abode while she was studying in B.M. Institute of Engineering and Technology, Sonepat. It is submitted that she had completed her studies in the year 2005 which is evident from Annexure A1 (Certificate of the college) which was sought to be produced by way of CM No.23158-CII-2006 filed under Order 41 Rule 27 of the CPC. He has further submitted that her studies were over in 2005 whereas learned Rent Controller had passed the order of eviction on 1.3.2006 which has been upheld by the Appellate Authority on 14.8.2006. It is also submitted that even if the landlady had filed CM No.10399-CII-2007 in order to place on record certificate (Ex.R1) to show that her grand-daughter has been studying in the MBA degree course at Chottu Ram University of Science and Technology, Murthal but even that has been passed by her as has been shown through CM No.18298-CII-2007 filed under Order 41 Rule 27 of the CPC to place on record Annexure P-1 which is the result card of Akanksha Arora. It is pertinent to mention that the application was ordered to be heard with the main case. Keeping in view the fact that it is a subsequent development and is relevant for the decision of this case, therefore, the application CM No.18298-CII-2007 is hereby allowed. The tenant had also submitted that an affidavit was also filed vide CM No.28814-CII-2010 which was earlier ordered to be heard with the main case. In this affidavit, he has averred that Akanksha Arora has already completed her studies and is doing job in Multinational Company out of India. The application is allowed and affidavit is taken on record. On this premise, it is argued by learned counsel by the tenant that insofar as the need of Akanksha Arora was projected by the landlady is now over with the completion of her studies as she is already settled in her life being gainful employed in a Multinational Company abroad. In respect of the eviction on the ground of non-payment of rent, it is submitted that the tenant had tendered rent from 1.12.2000 to 30.9.2001 but the eviction has been ordered on the ground that he has not paid the rent from March 1999 to June 1999 for a period of four months. He has submitted that in terms of decision of the Supreme Court in the case of “Rakesh Wadhawan and others Vs. M/s Jagdamba Industries and another” 2002(2) PLR 370, the Rent Controller should have assessed the interim rent with interest and cost which is to be tendered by the tenant on the date fixed and in case of any deficiency therein at the time of final adjudication he should have been given another opportunity to tender the same which has not been done. In reply, learned counsel for the landlady has submitted that the eviction petition was filed on 1.10.2001 when the demised premises was required for bona fide necessity of the landlady herself and for use of her grand-daughter, who had started her studies at Sonepat but the eviction petition had continued and in this interregnum she had not only completed her engineering but also the MBA and has ultimately settled in her life after getting an employment but the need of the landlady was not only confined to the need of her grand-daughter but also for herself which she has stated in her CM No.11245-CII-2011 that she is residing with her son Devender Kumar Arora on the 3rd floor of DDA (LIG) flat at Ashok Vihar, New Delhi and she being old aged woman is not capable to climb the stairs up to the 3rd floor and due to the pendency of the revision petition she is forced to live on the 3rd floor despite the fact that she has her own house and wanted to settle there at ground floor keeping in view her age and ailment. It was also averred that her son Devender Kumar is 58 years of age and met with an accident and had undergone a major surgery for the left leg ankle wherein three rods had been inserted to hold the bones and from the date of surgery it is very difficult for him to walk or climb the stairs. It was also averred that there are only three members in her family i.e. herself, her son and daughter-in-law, who are staying in the LIG DDA flat and all decided to shift to Sonepat keeping in view the health of herself and her son. It was also averred that her daughter-in-law is working in State Bank of India at Delhi and has been earlier traveling from Sonepat to Delhi for years together and keeping in view the illness of the landlady and medical necessity of her husband, she decided again to restart traveling from Sonepat to Delhi in the event of vacation of the demised premises. Vide separate order dated 31.5.2011, I have already allowed CM No.11245-CII-2011. I have heard both the learned counsel for the parties and perused the record from which I have broadly found that the demised premises was let out at the time when it was not required but when it was bonafidely required by the landlady, she asked the tenant to vacate because not only she wanted to come back to her roots as she had categorically averred in the eviction petition that she requires demised premises for her own personal use but also it was required for the lodging of her grand-daughter Akanksha Arora, who had taken admission in B.M. Institute of Engineering and Technology, Sonepat and was in need of accommodation. It is really a travesty of justice that for years together, despite the fact that the eviction order was passed, the landlady could not get the demised premises vacated and in the meantime after doing B.Tech and MBA spending about more than seven years from the date of filing of the eviction petition, the grand-daughter of the landlady completed her studies at Sonepat and has now settled in Multinational Company as alleged but the fact remains that the tenant is still in possession and is disputing the bona fide necessity of the landlady, who has projected that she is 78 years of age, infirm and incapable to climb the stairs of 3rd floor of her DDA flat at Delhi which is sans a lift and her son who is 58 years of age has suffered multiple fractures resulting into insertion of rods etc, advised by the Doctor not to climb the stairs, is being denied the demised premises on the ground of bona fide necessity. Keeping in view the facts and circumstances of the case and as well as the bona fide necessity of the landlady which she has duly projected in her case for herself, I am of the view that the orders of the Courts below deserves to be maintained and as such the revision petition is hereby dismissed though without any order as to costs. (RAKESH KUMAR JAIN) 31.05.2011 JUDGE Vivek CM No.11245-CII of 2011 in CR No.5802 of 2006 Present: - Mr.H.N. Mehtani, Advocate, for the non-applicant/petitioner. Mr.Sushil Jain, Advocate, for the applicant/respondent. **** For the reasons mentioned in the application, same is allowed. Subsequent events filed on behalf of the respondent are taken on record. CM stands disposed of. (RAKESH KUMAR JAIN) 31.05.2011 JUDGE Vivek