CR No.3022 of 2006 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh. *** CR No.3022 of 2006 (O&M) Decided on February 08,2011. M/s Banarsi Dass Varinder Kumar --Petitioner vs. Smt.Pritam Kaur --Respondent AND CR No.1235 of 2008 (O&M) Decided on February 08,2011. M/s Balwant Rai Surinder Kumar --Petitioner vs. Smt.Pritam Kaur --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.M.L.Sarin,Sr.Advocate,with Ms.Himani Sarin, Advocate,for the petitioner in C.R.No.3022 of 2006 and Mr.Arun Palli,Sr.Advocate,with Mr.Divanshu Jain,Advocate, also for the petitioner in CR No.1235 of 2008. Mr.Arun Jain,Sr.Advocate,with Mr.Ankur Soni,Advocate, for the respondent in both the cases. Rakesh Kumar Jain, J, This order shall dispose of two petitions bearing Civil Revision No.3022 of 2006 titled as M/s Banarsi Dass Varinder Kumar vs. Smt.Pritam Kaur and Civil revision No.1235 of 2008 titled as M/s CR No.3022 of 2006 (O&M) 2 Balwant Rai Surinder Kumar vs. Smt.Pritam Kaur, filed against the order of ejectment from a shop in which both are the tenants of the same landlady but are occupying different portions of the same building from which the landlady has sought their ejectment, inter- alia, on the ground of her personal necessity which has been allowed by both the learned Courts below. Civil Revision No.3022 of 2006 was filed earlier and Civil Revision No.1235 of 2008 was later on but was ordered to be heard along-with it. Hence, both the petitions have been heard together and are being disposed of by a common order. Brief facts of Civil Revision No.3022 of 2006 (O&M) are that the landlady (Pritam Kaur) filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act,1949 (extended to Union Territory, Chandigarh vide Act No.54 of 1974) (for short, 'the Act'), seeking eviction of M/s. Banarsi Dass Varinder Kumar (tenants) from a portion on the ground floor under the stair case and the half main hall leading from front side towards staircase and from one room/godown just adjacent to the stair case (i.e. Second room/godown) behind the half main hall and first godown/room) one store on the ground floor in the back court-yard alongwith courtyard and complete Ist and 2nd floor of the shop-cum- flat No. 86, Grain Market, Sector 26,Chandigarh. In Civil Revision No.1235 of 2008, (out of Rent Petition No.90 of 2004) landlady (Pritam Kaur) sought ejectment of M/s Balwant Rai Surinder Kumar (tenants) from a portion of half main CR No.3022 of 2006 (O&M) 3 hall of the size 12x10 and from half of the size 12'x10' adjacent to the portion of the ground floor, which is in occupation of other tenant M/s Banarsi Dass Varinder Kumar on the ground floor of the shop-cum-flat No.86, Grain Market, Sector 26, Chandigarh. In both the cases, ejectment was sought on the ground of non-payment of rent and personal necessity. In both the cases, the tenants have been ordered to be ejected from the demised premises on the ground of personal necessity. In the eviction petition pertaining to Civil Revision No.3022 of 2006, the landlady had alleged that she is married to S.Kirpal Singh from whom, she is having one son namely, Sant Singh and two daughters, namely Smt.Jitender Kaur and Gurmeet Kaur. Sant Singh is married having wife and children and is living separately from her and is doing his own business in SCO No.74, Phase 3-B/1,S.A.S. Nagar Mohali after separating from her family. Both the daughters were married, but Smt. Gurmeet Kaur became widow because her husband died four years back in an accident and has returned with her son. It is alleged that after separation from her son Sant Singh, firm in the name of M/s. Kirpal Singh was dissolved and is now taken over by her son alone, as a result of which she alongwith her husband and daughter Gurmeet Kaur decided to start separate business in the demised premises. It was also alleged that they have no other commercial or residential accommodation in Chandigarh (urban area) and are living in the two rooms on the top CR No.3022 of 2006 (O&M) 4 floor of SCO No.74 Phase 3-B/2, SAS Nagar, Mohali, at the mercy of her son. Mr. M.L.Sarin, learned Senior Counsel appearing for the petitioner/tenant in Civil Revision No.3022 of 2006 (O&M) has submitted that need projected by the landlady is not bonafide as family partition (Ex.P1) is not proved and her husband S.Kirpal Singh is no more available being unheard of. Therefore, she being an illiterate old lady would not be able to start business without her husband and it is only a ploy to get the premises vacated. Similar argument has been raised by Mr.Divanshu Jain, learned counsel for the respondent appearing in Civil Revision No.1235 of 2008. Learned counsel for the petitioners/tenants have also relied upon decisions of this Court in the cases of Vijay Kumar & anr. Vs. Shanti Devi alias Shanti and anr. 1983 (2) R.C.R.573; Smt. Hira Devi Vs. Dewan Singh and anr. 1990 (1) R.C.R.67; Lakshmi Devi and ors Vs. Dr.Mela Ram 1982 (1) R.C.R 259 and a decision of the Supreme Court in the case of Devi Das Vs. Mohan Lal AIR 1982 Supreme Court 1213. On the other hand, Mr.Arun Jain, learned Senior Counsel appearing for the respondents/landlady in both the cases has submitted that even if husband of the landlady namely, Kirpal Singh is not available, it does not close her case of bonafide necessity. She wanted the demised premises not only for herself but also for her widowed daughter and her son who was born in 1988 and is 22 years of age. It CR No.3022 of 2006 (O&M) 5 is submitted that all that has to be proved by the landlady are the conditions of Section 13 (3) (a) (i) of the Act that she requires the demised premises for her own use and occupation, is not in occupation of any other similar building in the urban area concerned and has not vacated similar building without sufficient cause after commencement of the Act in the said urban area. It is submitted that urban area is Chandigarh in which the respondent/landlady has neither any such building nor she has vacated. Her personal necessity is writ large dehors the partition deed ( Ex.P-1) as she wanted to settle alongwith his widowed daughter and son who is now grown up. In support of his contention, learned counsel has relied upon a decision of the Supreme Court in the case of Sarla Ahuja Vs. United Indian Insurance Company Ltd.1998 (2) R.C.R. 533 and two judgments of this Court in the cases of Som Nath vs. Pankaj 2009 (1) R.C.R.422 and Kanta Rani Vs. Ashok Kumar 2010 (1) R.C.R.163. I have heard learned counsel for both the parties and have perused the available record with their able assistance. There is no evidence brought on record by the tenants that the landlady had any other accommodation or has vacated similar building after the commencement of the Act in the same urban area. The question is only as to whether her need is bonafide or not. The tenants have raised two issues, firsly that the landlady wanted to start her business with her husband Kirpal Singh, who is not available and secondly, being an old illiterate lady, she would not be able to run the CR No.3022 of 2006 (O&M) 6 business alone. In the judgment cited in Vijay Kumar's Case (Supra), this Court has held that the landlady is living in Hoshiarpur but owned a house at Nawanshahr, her son wanted to start business at Nawanshahr, but no reason was given as to why he wanted to start business at Nawanshahr in preference to Hoshiarpur. Need of landlady of the premises for her son was not found bonafide. This judgment would not be applicable because reason has been given by the landlady that after the separation of her son Sant Singh, the premises occupied by her had fallen to his share whereas she is living in two rooms at the top floor despite the fact that she has the demised premises which could cater to all her needs which includes settlement of her widowed daughter and her grown up son. In the case of Smt.Hira Devi (Supra), it was held that the landlady was 82 years old who wanted separate accommodation on the ground that she had differences with her son and daughter-in-law. Her need was repelled on the ground that old persons would like to spend last years of their lives in company of their children despite differences with daughter-in-law. This judgment is not applicable in the present case because here is a case in which the landlady wanted to shift from Mohali to Chandigarh alongwith her widowed daughter and her grown up son. There is no case of differences with her son because she is in possession of two properties in Chandigarh and Mohali and in order to create harmony in the family, one of the properties was given to the son and the other property was kept for herself as both the daughters CR No.3022 of 2006 (O&M) 7 were married. It was only after the death of the husband of her daughter Gurmeet Kaur, the need arose to the landlady for shifting to Chandigarh to start business with her husband, daughter and her son. The judgment in Lakshmi Devi's Case (Supra) is also on the same lines as in the case of Hira Devi (Supra) because in that case, the landlady was 77 years of age having differences with her daughter-in- law. Insofar as the judgment in Devi Dass's Case (Supra) is concerned, the order was passed without giving a definite finding with regard to the nature of sale. The case was remanded to record finding on that question. In the present case, it is not the position because even if the Partition Deed Ex.P-1 is not taken into consideration, the landlady had to show only three things i.e. she requires the demised premises for her own use and occupation, that she does not have any similar accommodation in the same urban area and has not vacated any such accommodation in the same urban area after the commencement of the Act and that she wanted to start business in her own premises in order to settle her widowed daughter and her grown up son. The tenant cannot dictate terms to the landlady and the judgments cited by learned counsel for the respondent/landlady are fully applicable because in the case of Som Nath (Supra), two brothers were running Karyana shop. The younger brother wanted to separate and start independent business in the shop in possession of the tenant. This Court held that growth of families and transformation of joint families CR No.3022 of 2006 (O&M) 8 into nuclear families is a recent phenomena. Therefore, if two brothers want to part gracefully and start independent business, tenant cannot urge that they are barred from doing so on account of his hardship. Hence their need was found to be bonafide. Similarly, in the case of Kanta Devi (Supra), the landlady had sought eviction on the ground that she required the demised premises for her and her married daughters' use, which was opposed on the ground that married daughter is not a family member, but it was held that need of landlady was bonafide as there was no evidence that the landlady had any other family member to support or to look-after her. In the present case, need has been shown to be of widowed daughter and her grown up son and in the absence of her husband Kirpal Singh, who is allegedly unheard of, the landlady has the only support of her widowed daughter and her grown up son. In the case of Sarla Ahuja (Supra), it was held by the Supreme Court that the High Court should not re-assess the entire evidence to reach to a different conclusion in case of concurrent finding recorded with regard to bonafide necessity. In that case, the landlady was living at Calcutta and was having good relations with her daughter-in-law but she wanted to shift to Delhi in a more commodious accommodation. It was held that the landlady could be nearer to her daughter who lived at Noida and the need was thus found to be bonafide. Hence, the sum and substance of the entire discussion leads to only one conclusion that there is no merit in these revision CR No.3022 of 2006 (O&M) 9 petitions filed by the tenants and as such they are hereby dismissed with no order as to costs. February 08,2011 (Rakesh Kumar Jain) RR Judge