Civil Revision No.4113 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4113 of 2004 (O&M) Date of decision: 03.02.2009 Sunil Dhawan .............. Petitioner Vs. Satwant Kaur & Ors. .............Respondents Present: Mr. Chetan Mittal, Sr. Advocate with Mr. Reshav Kataria, Advocate for the petitioner. Mr. O.P. Goyal, Sr. Advocate with Mr. Varun Sharma, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ? Yes -.- K.KANNAN, J. 1. The application before the Rent Controller for eviction was made on the ground of the personal requirement of the landlord. It was an admitted case that there were seven co-owners in relation to the property and four of them joined together to file a petition. The first petitioner had died pending the petition and his wife had been impleaded as a legal representative. Significantly the requirement of the landlord had been spelt out for distinct purposes. The first petitioner claimed that he required the property for setting up a boutique and the third petitioner claimed that his wife was a Dental Surgeon and that the property was necessary for establishing a dental clinic. The third petitioner and fourth petitioner who claimed to be sons of one Avtar Singh also claimed that they intended to shift their residence to Chandigarh to educate their respective children, when they themselves had been serving in several places in the Army and they Civil Revision No.4113 of 2004 (O&M) -2- wanted to set up a permanent place for their children. 2. The Rent Controller dismissed the petition finding that there was no bona fide necessity for the landlords. In appeal, the Appellate Court found on factual evidence that the requirement of setting up of automobile business was not permissible in the location as per the development regulations at Chandigarh and therefore, the need of first petitioner had not been established. It also pointed out that the first petitioner himself had died during the pendency of the proceedings and the second petitioner who was the sister of the deceased-first petitioner was more than 60 years old and they also would not have any experience in automobile business. It did not appear that either the second petitioner or the two sons of the deceased-first petitioner could ever be said to be interested to start a business of automobile spare parts but at the same time observed that the prayer of the landlord could not be declined on the ground of the old age of the second petitioner or that none of the members had any past experience in the said business. Adverting to the contention that the location of the property admitted of only carrying on general trade as per Chandigarh Administration notification No. 56/10/63-UTFI(5)-2002/5232 dated 05.06.2002 that dealing in motor spare parts did not come within general trade category but all the same observed that it was not necessary to examine whether the landlord wanted to start a business which was legal or not. This observation was made on the perception of the Appellate Authority that the landlord was the best judge of his own requirement and he could not be given any advice or direction by the Court about type of business that a person must start. The Appellate Authority, however, also observed that the findings of the Rent Controller, regarding the requirements of the first petitioner was not shown to be bona fide, and hence no ejectment order could be passed on this ground. The plea made by the second petitioner that she was willing to open Civil Revision No.4113 of 2004 (O&M) -3- a boutique shop was also not proved by the fact that that when she appeared as a witness, she had not uttered even a word about the so-called requirement as mentioned in the petition. The Appellate Authority also specifically adverted to her admission in the cross-examination that there was nothing to show that she had any income through her alleged activity of doing business in readymade garments. It therefore rejected the contention of the landlord with reference to the mode of user as set out in the petition filed by second petitioner. Adverting to the need of the third petitioner for setting up a dental clinic for his wife, the Court found that there was no reason to doubt the requirement of the landlord on this ground as legally and technically a dental clinic is a commercial activity. It consequently set aside the findings of the Rent Controller and found the requirement of the third petitioner was properly made out. 3. The Appellate Authority also considered the petition that there had been no valid pleadings by petitioner Nos.3 and 4. Actually only a signature of Satwant Kaur was found in the pleadings and so-called deed of power of attorney that empowered Satwant Kaur signed on behalf of petitioners No.3 and 4 had not been filed along with the petition. It was subsequently produced at the time of trial and the Court, therefore, found that the document itself had been executed prior to the filing of the petition and rejected the contention that the verification was not done properly. It reasoned that it made no difference on which date the power of attorney was adduced in evidence so long as such an instrument was in existence when the ejectment petition was filed. 4. The case requires to be examined on the only ground that a property had a large space, ground floor, basement, second, third and fourth floor and the landlords claimed a fractional share of 13.75%. In the half portion of the ground-floor on the front side and each one of the landlords Civil Revision No.4113 of 2004 (O&M) -4- had distinct needs and it was the conjoint needs of the respective landlords that gave a ground for eviction. If the needs of all the landlords having fractional shares in the property was found to be genuine and it was not possible to predicate the exact area necessary for the requirement of only one of the co-owners, the Court could not have passed a valid order of eviction. If the landlords had already decided any specific areas for carrying out the needs and if there was any such evidence regarding the same, it should have been possible for the Court to order eviction of the property which is particularly in the hands of any one tenant but if the tenancy was in respect of such portion, the integrity of the tenancy itself cannot be decimated and eviction could not be ordered only to the specified requirement of one of the landlords. Either all the landlords would establish their need and if any one of them failed, all would also fail. This is the inevitable result of a case where the property in the occupation of the tenant was larger than the respective needs of each one of the landlords. So long as all the landlords' needs put together had not established their respective needs, the court could not have granted the order of eviction. 5. Consistent with the finding that the needs of the first and the second petitioner did not stand satisfied, the requirement of third petitioner for setting up clinic in a portion cannot allow all the landlords to secure eviction of the entire premise. The Appellate Authority ought not to have granted eviction on the finding of requirement of only one of the landlords. No evidence had been placed that any one landlord was in requirement of only one portion of the whole property. The order of eviction already passed, therefore, suffers from a legal infirmity of upholding conjointly the landlords' needs, although it found, as a matter of fact, that the needs of two of them had not been established. 6. Under these circumstances, the order of eviction which is ordered Civil Revision No.4113 of 2004 (O&M) -5- by the lower Appellate Authority is vitiated and order of the Appellate Authority is set aside and the dismissal of the petition as rendered by the Rent Controller is restored. The civil revision petition is consequently allowed* but in the circumstances, there shall be no order as to costs. *Suo motu correction effected as per order pronounced in Court. (K. KANNAN) JUDGE February 03, 2009 Pankaj*