CR No.3137 of 2011 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3137 of 2011 (O&M) Date of decision:16.05.2011. Dashrath Kumar ...Petitioner Versus Notan Dass and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Ashish Aggarwal, Advocate, for the petitioner. ***** RAKESH KUMAR JAIN, J. This revision petition is directed against orders of the Courts below, passed on a petition for eviction filed under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short “the Act”] against the petitioner in respect of Shop No.12, situated at Bari Market, Model Town, Karnal, which was in his possession @ `1,100/- per month with house tax, inter alia, on the grounds of ceased to occupy and personal necessity as the landlord wanted to start tailoring institute in the demised premises. The tenant had alleged that he is running a Bakery and Confectionary shop in the demised premises. Earlier petition filed by the landlord on other grounds of eviction has already been dismissed, his son is doing the business of electronics, therefore, he is not in need of the demised premises. After the pleadings were over and the issues framed, the learned Rent Controller, after taking into account both oral as well as documentary evidence led by the parties, allowed the eviction petition only on the ground of ceased to occupy as the personal necessity projected by the landlord was not found to be genuine. Aggrieved against the order of eviction, the tenant filed statutory appeal and the landlord filed cross-objections in respect of the ground of bona CR No.3137 of 2011 (O&M) -2- ****** fide necessity. During the pendency of appeal, the tenant filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 [for short “CPC”] in order to bring on record proof regarding the payment of electricity bills for the period December, 2005 to December, 2006 on the plea that the electricity bills were not traceable earlier when he was leading his evidence. However, the said application was dismissed by the learned Appellate Authority vide its order dated 09.03.2011 and while dismissing the appeal filed by the tenant, allowed the cross-objections filed by the landlord. The findings recorded by the learned Appellate Authority in this regard are reproduced as under: - “All the examined witnesses PW-1 Notan Dass, PW-2 Raj Pal License Clerk, PW-3 Sahib and PW-4 Lalit Kumar, PW-5 Ram Singh Bill Delivery Clerk, they all have specifically deposed that from 01.04.2006 to 01.12.2006, the shop was found to be closed and the Bill Delivery Clerk has visited continuously in order to deliver the bills and the same was found closed up to December, 2006 and this very fact has been duly corroborated in ocular as well as documentary evidence. Once it is proved that no electricity was found consumed like the business which was being run by the appellant in itself is evidence against the appellant that if the shop would have been open for working, then certainly the electricity bill would have come as per the use but this fact goes against the appellant. The cross-objections made by the respondents to prove that respondent No.1 is in requirement of the shop in question to start his own occupation/business of cutting and tailoring in the concerned urban area and the respondent has duly proved the cross-objections of basic necessity or requirement of the shop in question have been proved CR No.3137 of 2011 (O&M) -3- ****** at the instance of the respondents by adducing cogent and convincing evidence. Having heard the rival contentions made by the counsel for the parties and after going through oral as well as documentary record placed on the record, this Court is of the view that the appeal of the appellant fails for want of evidence at the instance of the appellant, rather the respondent has fully proved his case including cross-objections and all the above circumstances have established that the lower Court has not erred or committed any mistake while passing the order of ejectment against the appellant from the shop in question on the basis of cease to occupy and at the same time there is also evidence on the file to prove the cross-objections of the respondents regarding personal necessity and requirement of the shop in question in addition to the cease to occupy.” Learned counsel for the petitioner has argued that the petitioner had not closed his business four months prior to the filing of the eviction petition which could have been easily proved from the electricity bills and receipts which have not been allowed to be brought on record by the learned Appellate Authority while dismissing the application filed for leading additional evidence. He further submitted that the learned Appellate Authority has erred in reversing the order of the learned Rent Controller on the question of bona fide requirement of the landlord. I have heard learned counsel for the petitioner and perused the record with his assistance from which I have found that the finding recorded by the learned Courts below on the issue of ceased to occupy is based upon the evidence led by the parties and the application for additional evidence has been rightly dismissed by the learned Appellate Authority because nothing has been disclosed by the tenant as to how and when he had misplaced the alleged electricity bills and receipts and how they were retrieved by him. Had the CR No.3137 of 2011 (O&M) -4- ****** documents been in his possession, it was his duty to produce them on record in time but he cannot be permitted to fill up the lacuna at the stage of appeal. Insofar as the ground of personal necessity is concerned, that has been duly established by the landlord that he wants to start tailoring institute in the demised premises for which the tenant cannot dictate or advise the landlord as to how he would use the demised premises. In view of the above discussion, 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. May 16, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE