CR No.6390 of 2008 1 In the High Court of Punjab and Haryana, Chandigarh. CR No.6390 of 2008 (O&M) Date of Decision: 14.10.2010 Ram Saroop ....Petitioner Versus Desh Bandhu Bhalla ....Respondent. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. R.S. Kundu, Advocate for the petitioner. Mr. M.L. Sarin, Sr. Advocate with Ms. Hemani Sarin, Advocate for the respondent. ... Alok Singh, J. Tenant has invoked revisional jurisdiction of this Court Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 1949 Act), challenging the order dated 20.1.2007 passed by the Rent Controller, Jalandhar, as well as the judgement dated 19.9.2008 passed by the Appellate Authority, Jalandhar, whereby eviction petition filed by the landlord was allowed, directing the tenant - revisionist herein to be evicted on the ground of bonafide requirement of the landlord. CR No.6390 of 2008 2 In nutshell, facts of the case are that the landlord - respondent has filed eviction petition seeking eviction of the tenant - revisionist saying that consequent upon a family settlement, the tenanted premises in question has fallen into the share of the landlord -respondent herein. It has further been averred that the family settlement was reduced in writing on 21.8.1995 and the same stands duly acted upon. Further contention of the landlord is that the landlord is a practicing lawyer in Nawanshahar for the last 22 years years and before family partition, he was maintaining office-cum-library abutting railway road, which he has to vacate as the share which has fallen to him is on the Geeta Bhawan Road. The landlord further asserted that he requires the premises in question for his personal bonafide need for his professional obligations as he does not have office/library on Geeta Bhawan Road; landlord and his family members does not have any garage to park their vehicle and the landlord need the premises in question bonafidely for his personal use and occupation. It has further been contended by the landlord that no building has been got vacated by him after the commencement of the Rent Act. Claim of the landlord was refuted by the tenant - revisionist by way of filing written statement. It has been contended by the tenant that the room, which is claimed to be in the ownership of the landlord is 14’ X 10’ and is situated on the main road and is convenient for the landlord’s office. Relationship of landlord - tenant between the parties is admitted, however, it is asserted that there was no family partition amongst the co-owners and besides the original petitioner, his sisters are also co-owners, who are not parties in the alleged family settlement. It has further been averred by the tenant that during the pendency of the case, Raj Kumar has handed over CR No.6390 of 2008 3 possession of a shop to the landlord and hence, the landlord has no need of the demised premises. The Rent Controller vide impugned judgement dated 20.1.2007 allowed the eviction petition. Appeal filed against the judgement of the Rent Controller also came to be dismissed by the Appellate Authority vide impugned judgement dated 19.9.2008. I have heard learned counsel for the parties and perused the record. Learned counsel for the tenant - revisionist has vehemently argued that the alleged family settlement, which was reduced in writing on 21.8.1995 is not trustworthy since it has not been signed by the sisters of the landlord. It has further been stated by the learned counsel for the revisionist that the petitioner is happily residing in the portion, which is alleged to have fallen in the share of co-owners. He further asserted that Raj Kumar has vacated the shop and has handed over possession thereof to the landlord and hence, the landlord has absolutely no need of the demised premises. Learned counsel for the revisionist further argued that the landlord has not pleaded the ingredients of sub-section (c) of Section 13(3)(a)(i) of the Act to the effect that he has not got vacated any premises after the enforcement of the Act and hence, in view of the dictum of the Full Bench of this Court in the matter of Banke Ram Vs. Smt. Sarasti Devi, reported in 1977 All India Rent Control Journal, 332, eviction petition is liable to be dismissed. This Court in the matter of Raj Kumar Vs. Budha Mal (C.R. No.7665 of 2009, decided on 4.8.2010) has observed as under: - “In the matter of Banke Ram (supra), the Full Bench of this Court, while over-ruling the judgement of a Division Bench of CR No.6390 of 2008 4 this Court in the matter of Krishan Lal Seth Vs. Smt. Pritam Kumari, 1961 PLR 865, has held that ingredients of sub- section (b) and (c) of Section 13(3)(a)(i) of the 1949 Act are essentially to be pleaded by the landlord and there is no escape from the proposition of law that these ingredients have to be pleaded before any evidence is led on the same. However, in paragraph 12 of the judgement rendered in the case of Banke Ram (supra), the Full Bench has held as under: - “The Court would be required to give full consideration to the contentions raised by the respective parties and the facts and circumstances of each case before giving its decision in favour of the landlord or the tenant, tout the decisions of the High Courts or the Supreme Court, in this regard, cannot be of any avail to detract from the validity of the proposition that it is necessary for the landlord to make averments regarding the ingredients of Sub-clauses (b) and (c). However, it may be made clear that when it is held that it is essential to plead the ingredients of Sub- clauses (b) and (c) in the eviction application by the landlord, it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged in Sub-clauses, (b) and (c) can be looked into. This is not peculiar to the eviction applications. Similar considerations come into operation even in the case of suits which are governed by the specific and detailed provisions of the Code of Civil CR No.6390 of 2008 5 Procedure regarding pleadings.” Having perused the judgement in Banke Ram’s case (supra), this Court is of the opinion that of course ingredients of sub- section (b) and (c) of Section 13(3)(a)(i) of the 1949 Act are to be necessarily pleaded in the eviction petition, however, as held by the Full Bench in paragraph 12 of the judgement, this Court is of the opinion that it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged under sub-section (b) and (c) can be looked into. Hence, in the opinion of this Court, if parties were fully aware about the ingredients of sub-section (b) and (c) at the time of leading evidence and both the parties have led evidence on these issues, then petition cannot be thrown out merely because the landlord has failed to plead ingredients of sub-section (b) and (c) in the eviction petition.” In the present case landlord has stated on oath that Raj Kumar has handed over possession of a room/shop after the filing of the eviction petition and the same is being used as a kitchen, hence in the opinion of this Court, both the parties knowing well the ingredients of Section 13(3)(a)(i) have stated on oath and have been cross-examined, hence, tenant cannot take benefit of the fact that the landlord has not specifically pleaded the ingredients of Section 13(3)(a)(i) (b) and (c) of the Act. Learned counsel for the landlord - respondent herein has stated that the landlord is the best judge of his need and the tenant cannot dictate to the landlord to adjust himself in the accommodation already available with the landlord. It has further been averred by the landlord - respondent CR No.6390 of 2008 6 that the family settlement amongst the family members of the landlord cannot be challenged by the tenant and it can only be challenged by the other co-owners. It has further been argued that in view of the family settlement arrived at amongst the family members of the landlord, the portion in occupation of the landlord had to be vacated and hence, need of the landlord is genuine and bonafide. He further asserted that of course Raj Kumar, one of the tenants, has handed over possession of one room/shop, which is being used as a kitchen by the landlord, the averment pertaining to the eviction of Raj Kumar has not been taken into consideration because Raj Kumar has handed over the shop in question after the filing of the eviction petition. Undisputedly, landlord has got vacated one room from Raj Kumar, tenant, which is in possession of the landlord as of now. Landlord has specifically stated on oath during the course of cross-examination that Raj Kumar vacated the tenanted portion, which was given in his possession after the filing of the eviction petition, which is being used by the landlord as a kitchen. In the opinion of this Court, question of family settlement amongst the family members of the landlord cannot be challenged by the tenant. If the landlord is asserting that because of the family settlement arrived at amongst the family members of the landlord, portion in his possession has fallen into the share of another co-owner, which he is bound to vacate, should be accepted, unless proved otherwise by the tenant. In the opinion of this Court, there is nothing on record to suggest that version taken by the landlord is incorrect and false. The Apex Court in the matter of Meenal Eknath Kshirsagar Vs. Traders and Agencies, reported in 1996(5) SCC 344 and Raghuvendra CR No.6390 of 2008 7 Kumar Vs. Firm Prem Machinery Co., 2000(1) SCC 679 has held that the landlord is the best judge of his requirement, who cannot be deprived of the benefit and enjoyment of his own property. The Apex Court in the matter of Sarla Ahuja Vs. United India Insurance Co., 1998(2) RCR 533 has held that the Rent Controller should proceed with the presumption that requirement is bonafide 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 the tenanted portion. If the landlord is coming to the Court with the assertion that he is to establish his office/library for his personal obligations in the demised premises and has to make provision for garage to park his vehicle, then need of the landlord should be deemed to be genuine, unless and until proved otherwise. In view of the above, landlord has proved his bonafide need. Learned counsel for the respondent - tenant has asserted that after getting the accommodation vacated, landlord has every intention not to settle in the demised premises and to transfer it. Apprehension of the tenant is misconceived. To appreciate the argument of learned counsel for the respondent, this Court would like to reproduce Section 13(4) of the Act, which reads as under: - “13(4) Where a landlord who has obtained possession of a building or rented land in pursuance of an order under sub- paragraph (i) or subparagraph (ii) of paragraph (a) of sub- section (3) does not himself occupy it or, if possession was obtained by him for his family in pursuance of an order under sub-paragraph (i-a) of paragraph (a) of sub-section (3), his family does not occupy the residential building, or, if CR No.6390 of 2008 8 possession was obtained by him on behalf of his son in pursuance of an order under subparagraph (iv) of paragraph (a) of sub-section (3), his son does not occupy it for the purpose for which possession was obtained, for a continuous period of twelve months from the date of obtaining possession or where a landlord who has obtained possession of a building under sub-paragraph (iii) of the aforesaid paragraph (a) puts that building to any use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly.” From the perusal of sub-section (4) of Section 13 of the Act, it is clear that safeguard is provided by the legislature, if landlord or his family for whose benefit eviction was obtained, fails to occupy the premises for a continuous period of 12 months from the date of obtaining possession or where he puts that building to any use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order and direction that he shall be restored to possession of such building. In the opinion of this Court, tenant has legal remedy available with him under Section 13(4) of the Act, in case landlords do not occupy the building for the purpose for which it was got vacated or alienate it or lease it out as apprehended by learned counsel for the respondent. In view of Section 13(4) of the Act, need alleged by the landlord must be presumed to be correct and genuine, unless of course, proved CR No.6390 of 2008 9 otherwise. In the present case, tenant could not prove that the need of the landlord is not genuine. Rather, on the basis of the apprehension, tenant is denying need of the landlord and that apprehension is baseless as discussed hereinabove. In view of the above, petition is dismissed. However, two months’ time is granted to the tenant to vacate the premises and to hand over vacant, peaceful physical possession of the demised premises to the landlord. ( Alok Singh ) Judge 14.10.2010 sk.