Civil Revision No.2001 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2001 of 2007 Date of Decision: March 26, 2008 Shashi Bala ...Petitioner VERSUS Nirmala Rani ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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.Amit Jain, Advocate, for the petitioner. Mr.V.K.Jain, Senior Advocate with Mr.J.L.Malhotra, Advocate, for the respondent. ***** RANJIT SINGH, J. This revision is filed by a tenant, who has been ordered to be evicted from Booth No.135, Sector 37-C, Chandigarh. Landlady Nirmala Devi, respondent herein, filed the petition under Section 13 of the East Punjab Urban Rent Restriction Act for ejectment of the petitioner-tenant from the Booth, referred to above. The said Booth is on a monthly rent with the petitioner and the eviction of the petitioner was sought on the ground that the same is needed for bonafide need by the respondent-landlady and also on the ground that the petitioner had ceased to occupy the said Booth. The allegation of non-payment Civil Revision No.2001 of 2007 : 2 : of rent was also made. In response to notice issued, the petitioner filed reply and alleged that the petition was filed to harass her. Reference is made to the earlier petition filed by the respondent- landlady on the ground of change of user and sub-letting, which had been dismissed. It is further pleaded that respondent is of 75 years of age and there would be no question of doing any business which would show the ground of personal necessity. On the basis of pleadings, various issues were framed. Respondent-landlady examined Rakesh Jain, Inspector, Income Tax as PW-1, Yogeshwar Sharma, Clerk in the office of Excise and Taxation Department, U.T. as PW-2 and Janak Singh, Clerk in the Electricity Department as PW-3. The husband of the respondent also stepped into the witness box as PW-4 in support of the grounds of ejectment as pleaded in the rent petition. The petitioner-tenant herself appeared as a witness and also examined Om Parkash and Mangat Ram, her employees and closed her evidence. The Rent Controller as well as Appellate Court, after appreciation of the evidence, directed eviction of the petitioner and that is how she has filed the present revision petition. Mr.Amit Jain appearing for the petitioner would first refer to a fact that earlier two eviction petitions filed by the landlady were dismissed, against which she had filed revision petitions before this court. The eviction in these petitions was sought on the ground of sub-letting, which was disbelieved. The allegation of change of user was also disbelieved. When the pendency of revision petitions against the said orders was pointed out, the respondent had withdrawn these revision petitions. From this, the learned counsel Civil Revision No.2001 of 2007 : 3 : would build his case to say that in fact there is no bonafide need of the Booth for personal use as alleged in the present petition and this would be indicative from filing of different petitions one after the other. While touching the merit, the learned counsel would urge that three reasons have been taken into consideration by the courts to conclude that respondent had succeeded in proving the allegation of ceasing to occupy the Booth by the petitioner. These relate to electricity consumption recorded, photographs of the shop showing it lying closed and income tax return being filed giving the address of the residential house of the petitioner. Learned counsel would contend that mere non-consumption of electricity or less consumption of electricity alone would not be sufficient to hold that the petitioner had ceased to occupy this Booth. He would further submit that from the photographs it cannot be shown that the shop was lying closed as these could not have been proved to have been taken at different times and may have been taken on Sundays when the shop/Booth was required to be kept closed. Proceeding further, the counsel would urge that mere fact that the number of the Booth is not reflected in the income tax return would not be an indication that petitioner had ceased to occupy the same. Touching the ground of personal necessity, the counsel would make a grievance that even the respondent had not stepped into the witness box, though her husband had appeared as a power of attorney holder, who would not be competent to depose on behalf of the principal. In support of his submission, the learned counsel has placed reliance on the case of Janki Vashdeo Bhojwani Versus Indusind Bank Ltd., 2005(1) RCR Civil Revision No.2001 of 2007 : 4 : (Civil) 240. The counsel for the respondent would, on the contrary, submit that the previous rent petition seeking eviction of the petitioner would not make any difference. According to the counsel, the first petition was filed in the year 1982, whereas subsequently another petition was filed in the year 1983, alleging change of user. The present petition has only been filed on 8.10.2003 on the ground of personal necessity. Plea is that this ground became available to the respondent from the year 1996 onwards. It is pointed out that earlier petitions filed in the years 1982 and 1983 were not on the ground of personal necessity. Elaborating his submission in regard to the allegation of ceasing to occupy, the counsel submits that the respondent was required to prove that the petitioner has ceased to occupy the demised premises four months prior to filing of the petition. In this context, the evidence showing consumption of electricity four months or so prior to filing of the petition would acquire significance and importance. The counsel would then refer to Ex.PW3/1, which is the electric meter reading of Booth No.135 (the demised premises). The counsel has particularly referred to a reading as on 20.3.2003, which is 2098. This reading continues to be so upto 3.2.2004. The details reflected on this exhibit would also show that against two of the entries pertaining to this period word “L” is written, which, according to the counsel means locked. From this, the counsel would contend that the petitioner had ceased to occupy this premises. This evidence coupled with the other evidence led would be sufficient to show that the petitioner had ceased to occupy the premises and, thus, burden Civil Revision No.2001 of 2007 : 5 : shifted on him to establish that indeed he had continuously occupied the demised premises in question. The counsel has highlighted that respondent is an old and handicapped person and as such needed to occupy the premises for her own personal use. The counsel for the parties have made reference to number of judgments in support of their respective submissions. Mr.Jain has referred to Geeta Bhalla and others Versus Krishan Kumar (dead) through Lrs., 2006(2) RCR 379 to say onus to prove the issue that tenant had ceased to occupy the premises in dispute for continuous period of four months without any just and reasonable cause would be on the landlord and therefore, he has to stand on his own legs. It is observed that he cannot take the benefit of the weakness in the case of the tenant in this regard. The counsel would then refer to Kedar Nath (died) through L.Rs. Vs. Rattan Chand, Vol.CXXVI (2000-3) PLR 297 to submit that temporary closure of shop by a tenant will not make a ground for ejectment on account of ceasing to occupy. In this regard, the counsel has also referred to the case of Amar Nath Versus Guru Ramdass Textile Mills, 2002(1) RCR 595, wherein it is held that closing of a business by the tenant for some period would not amount the tenant ceasing to occupy. As per this judgment, so long as tenant had a control over the premises, it cannot be held that tenant had ceased to occupy. Learned counsel for the petitioner has also referred to some judgments to urge that to prove the need to be bonafide, necessary ingredients should be to show that the need is genuine and not a mere wish of the landlord. In this regard, he has relied upon the case of Pratap Rai Tanwani Vs. Uttam Chand, 2005(1) HRR 142 and Harjit Kaur Vs. M.K.Seth and Civil Revision No.2001 of 2007 : 6 : another, Vol.CXXXIX (2005-1) PLR 547. As held in this case, the landlord is required to have the element of need and not that of greed. On the other hand, learned counsel for the respondent would seek support from the case of Nirmal Singh Vs. Mohd.Bashir, 2004(3) PLR 532 to say that the fact that the shop had remained closed can be proved by showing that there was no electricity consumption, especially so when the tenant had not proved any evidence to show that the shop was closed for sufficient reason. The counsel for the respondent has also referred to some judgments to show that age cannot be a ground or held against the landlord to prove his personal need. In this regard, he has relied upon Harvilas Shivhare Versus Jahoor Khan, 1996(2) RCR 265. It is held in this case that relief cannot be denied on the ground of old age or on the ground of no experience in the line. The counsel would also refer to Jagdishchandra Katiyar Versus Smt.Kamlabai, 1996(2) RCR 289 and Sanji Ram Versus Ajit Singh, Vol.CXXXIX (2005-1) PLR 847 in this regard. In regard to expression “for his own use” and the scope and manner, the learned counsel for the respondent has relied upon Joginder Pal Vs. Naval Kishore Behal, (2002) 5 Supreme Court Cases 397. It is held in this case that the expression “for his own use” covers the requirement not only of the landlord but also of his normal “emanations”. The test to determine as to whose requirement would be so covered has also been commented upon by the court in this judgment to say that it would depend upon the laid down obligation of the landlord towards any person(s) closely connected to him as per the social or socio-religious milieu and practices prevalent Civil Revision No.2001 of 2007 : 7 : in a particular section of society or a particular region, to which the landlord belongs to settle such person or to make him economically independent to support himself and/or the landlord. Accordingly, the requirement of a member of a family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. The counsel for the respondent has then referred to the cases of Shiv Lal Versus Sat Parkash and another, AIR 1993 Supreme Court 275 in regard to scope of revisional jurisdiction of the High Court. It is observed that the court cannot act as a Third Appellate Court and thus is not entitled to reverse concurrent finding of fact. To rebut the submission made on behalf of the petitioner that landlord had not herself appeared to depose in this case, the counsel for the respondent refers to the case of Subiada Versus Krishnan, 1986(2) RCR 132. In this case, it is held that it is not necessary that the landlady should appear in the court to give evidence of bonafide requirement and the same can be proved by any manner provided in the Evidence Act. Similarly, in the case of Shri Uttam Chand Versus Shri Ram Murti Gupta, 1983(1) RLR 356, it is held that non-appearance of a landlady as her own witness is no ground to dismiss the petition. In Satnam Channan Versus Darshan Singh, 2006(2) RCR (Civil) 614, it was held that the attorney is competent to depose in respect of all matters except, the matters which are required to be done personally by the principal. In Sh.Tarlochan Singh Vs. Mrs.Usha Dhir, 1993(2) RCR 117, it is held that non-appearance of the landlady would not be fatal where her husband had appeared as a witness and who knew about the facts. Civil Revision No.2001 of 2007 : 8 : Similar view is taken in the case of V.R.Shah and another Versus N.Visalakshi, 1983(2) RLR 272. It is observed in this case that to prove bonafide necessity it is not necessary for the landlord/landlady to enter into the witness box. From the respective submissions made by the learned counsel for the parties, it can be noticed that the stand of the petitioner primarily is that respondent-landlady had not sufficiently established the allegation of ceasing to occupy on the basis of the evidence as has been produced. He would urge that mere non- consumption of electricity would not be enough to show that the petitioner had ceased to occupy the demised premises. It was not seriously disputed before me that the meter reading of the electricity as is pointed out by the respondent from the evidence and the documents on record remained the same upto 3.2.2004. The learned counsel for the respondent is justified in saying that in order to succeed he has to show that the petitioner had ceased to occupy the premises four months prior to the date of filing of the petition. Total non-consumption of electricity of-course would be a strong indication in this regard that the demised premises is not occupied. This when read in the light of evidence that photographs were produced on record to show that the shop had remained closed at different period would lend credence to the allegation of ceasing to occupy. The husband of the petitioner concededly working in the show-room in and around the area. The income tax return filed by the petitioner would yet be another indication that the same is not reflecting the address of the Booth but of the residence of the petitioner. This is further to be seen in the light of a fact that the income tax return of Civil Revision No.2001 of 2007 : 9 : the husband is filed giving address of the Booth where he is having a business. The record made by SDO, Electricity (Exh.PW3/1), reference to which was made earlier, would further show that the premises was found locked on more than one occasion and otherwise the consumption of electricity was almost Nil for a considerable period prior to filing of the petitions and continued to be so even till the year 2007 as can be seen from the documents placed on record during the pendency of the present revision petition. Nothing substantial could be pointed out before me which would go to dent this evidence led by the respondent. The scope of revisional jurisdiction to interfere in the finding of fact as recorded would also require to be taken into consideration while exercising revisional jurisdiction. Nothing could be pointed out before me which may call for interference to disturb this finding of fact as recorded by the court. Ground of personal necessity otherwise has been challenged basically on the ground that the landlady had not appeared in support of her plea. This is co-related with the fact that the petitioner is an old person and may not be able to carry her business at this old and infirm age. The observations made in the case of Janki Vashdeo Bhojwani (supra) would not be of much assistance to the cause of the petitioner. What is held in this case is that attorney cannot be allowed to appear and depose as a witness on behalf of the principal in the matters of his personal knowledge. It is further noticed in this case that he can appear as a witness only in his own capacity to depose with regard to the acts done by him on behalf of the principal. The ratio of this judgment would not apply to the facts of the present Civil Revision No.2001 of 2007 : 10 : case. The need of the landlady would be well within the personal knowledge of her husband, who had appeared to depose as an attorney. Even otherwise, the requirement of a spouse or other closely related family members to appear as a witness in support of the plea of personal necessity in rent cases is required to be viewed in a slightly different context. It may need a notice that a landlord can seek eviction of a tenant from a tenanted premises not only for his or her own need, but even a need for closely related person has been held to be personal need of a landlord/landlady. Reference in this regard can be made to the observations in the case of Joginder Pal (supra), where it is held that the expression “for his own use” would cover the requirement of any person(s) closely connected to the landlord/landlord as per the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region. In short, the requirement of member of a family of a person in whose or who is dependent is also to be considered as an requirement of a landlady/landlord for her/his use. Accordingly, the strict view of law governing the personal appearance of a person concerned, who has deposed about the facts in his/her own knowledge, may not strictly apply to such cases. It would be logical to say that any person, who is closely related to landlord/landlady would have the same knowledge and, thus, competent to depose about it. The need for personal use would well be within the knowledge and that too in the personal knowledge of such closely related person and thus the strict rule of evidence disentitling a person to give derivative evidence through a power of attorney may not apply to such like cases. Number of other judgments have been referred to above Civil Revision No.2001 of 2007 : 11 : where the court found no infirmity in those cases where husband/wife appeared as witness as an attorney on behalf of their respective spouse. Accordingly, I am not inclined to accept this limb of submission raised by the learned counsel for the petitioner as this would not lead to any infirmity at all. The other aspects/submissions on the basis of the age of the respondent-landlady would not also advance the case of the petitioner in any manner. The precedents are available in sufficient number to show that this cannot be advanced as a valid ground to decline the prayer on the ground of personal necessity. The respondent-landlady, as such, succeeded in proving the ground with assurance and the tenant-petitioner has not been able to substantiate her plea on the basis of evidence on record or in terms of the legal position, that may emerge from the judgment referred to and relied upon by her. No case for interference, thus, is made out. The revision is dismissed. March 26, 2008 ( RANJIT SINGH ) ramesh JUDGE