Civil Revision No. 1245 of 2007. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 1245 of 2007. [O&M] Date of Decision: 23rd September, 2009. Nand Kishor Petitioner through Mr. O.P.Goel, Sr. Advocate with Ms. Anjana Advocate. Versus Ashok Kumar Joshi Respondent through Mr. B.R.Gupta, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 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? SURYA KANT, J. This Revision Petition is directed by the tenant, who has been ordered to be evicted from the demised premises comprising a Shop constructed in the front portion of the residential house situated in Rajbir Market, Charkhi Dadri, District Bhiwani, by the Appellate Authority, Bhiwani vide the impugned judgment dated 9.2.2007, on the ground of bona-fide personal necessity of the respondent – landlord. [2]. The facts may be noticed briefly. [3]. The respondent – landlord is a practicing Advocate in the Sub Divisional Courts at Charkhi Dadri since August, 1975 and is a Member of the Local Bar Association since then. It appears from the Site Plans produced by the parties that while a shop and a covered passage-cum-garage are constructed on the front portion, a Civil Revision No. 1245 of 2007. ::-2-:: residential house has been constructed on its rear side of the plot. The front side of the plot is abutting the market road, whereas the back side abuts a street. The respondent – landlord filed the eviction petition on two grounds, namely, [i] the petitioner – tenant is in arrears of rent w.e.f. 1.7.2001 and [ii] the demised premises is required by him for his office. [4]. The petitioner contested the eviction petition questioning the bona-fide of the respondent – landlord and took a preliminary objection that previously also the respondent had filed two eviction petitions bearing No. 48-R of 31.8.1982 and 37-R of 28.4.1984 but were withdrawn after the petitioner – tenant enhanced rent. Thereafter also the rent has been increased in the year 1995 followed by further enhancement from Rs.400/- to Rs.500/- per month in the year 2001 and that the present eviction petition has also been filed to pressurize the tenant to increase the rent. The personal necessity was also disputed alleging that the respondent is not having enough practice which may require an office to be maintained. The petitioner also contended that there is a 2nd shop in the premises [which the respondent – landlord claims to be a covered passage-cum-garage] where the Lawyer's office can be established. It was also alleged that the respondent – landlord has one more vacant shop in his possession in the adjoining plot owned by his mother. [5]. The respondent filed a rejoinder explaining that his mother has been living separately since the death of his father in the year 1982 and before her death, she bequeathed her house including Civil Revision No. 1245 of 2007. ::-3-:: the shop in favour of one of her grand son – Anshuman Joshi and that the said shop is also occupied by a tenant against whom an eviction petition has been filed by Anshuman Joshi. It was also explained that the respondent wants his office though to be segregated from the residential portion as every type of client visits him but should be close to the house as his parents are not alive, his only son resides away from Dadri and there being no one else, his wife remains all alone while he is busy with his professional work. [6]. The Rent Controller, vide his order dated 29.3.2004 came to the conclusion that in the eviction petitions filed in the year 1982 and 1984, the respondent – landlord had pleaded his 'bona-fide personal need' as one of the ground for eviction but he withdrew those eviction petitions after the tenant enhanced the rent which clearly suggests that he had no intention to use the shop for his personal use and occupation, rather used the eviction petition as a device to increase the rent. The Rent Controller further held that the respondent – landlord has stopped 'maintaining legal diary' and is unable to produce the certified copies of the Power of Attorneys or the briefs of his professional engagements and has withheld the material information, justifying the inference that he is a 'brief-less lawyer' who merely 'wishes' or 'desires' to get the shop vacated. The Rent Controller also held that since the residential house of the respondent opens in a street, the respondent can utilize one of the rooms abutting the street as his office. The eviction petition was accordingly dismissed. [7]. The respondent went in an appeal which, as noticed Civil Revision No. 1245 of 2007. ::-4-:: earlier, has been allowed by the Appellate Authority vide judgment dated 9.2.2007 and the eviction order has been passed. The Appellate Authority has observed that the petitions filed in the year 1982 and 1984 were almost 17 years before filing of the instant eviction petition in the year 2001 and as per the law prevalent at that time, a landlord was not entitled to seek eviction of his tenant from a 'non-residential premises' on the ground of his bona-fide personal necessity. Those eviction petitions were actually meant for recovery of arrears of rent and were withdrawn as soon as the rent was tendered. The Appellate Authority has taken notice of the fact that the respondent is a practicing lawyer since the year 1975 [Certificate Ex.P2] and no adverse inference could be drawn by the Rent Controller for the respondent's failure in not producing the records/ copies of the Vakalatnamas/diary at the time of his cross- examination. As regards the Rent Controller's observations that the covered passage/garage where the respondent – landlord parks his car can be used as office or that the car can be parked at the back side of the house, the appellate Authority observed that the car can not be parked on the back side of the house unless the Verandah is demolished as was apparent from the Site Plan [Ex.RW1/A] produced by the tenant himself. The Appellate Authority has also explained as to how the respondent – landlord will have to reach the back side of the house for the purposes of parking his car as against the convenient parking now available to him. [8]. The Appellate Authority after scanning the entire evidence and referring to the photographs [Ex.P4 and P5] coupled with the site Civil Revision No. 1245 of 2007. ::-5-:: plan [Ex.RW1/A] observed as follows:- “The said photographs Ex.P4 and P5 as also the site plan Ex.RW1/A show that doors open to the two shops situated on both sides of the said gate which gate bears the name plate of the petitioner describing him as Ashok Joshi, Advocate and which doors thus open into the said gate area and if the petitioner is able to have the premises in question vacated, it would be quite convenient for him to run his office therein as is normally done by the advocates, instead of running his office at a distant place as expected by the Rent Controller. It may also be pointed out in this context that in petition No. 50R/12.11.1983 titled as Ashok Joshi vs Nand Kishore decided on 6.6.1984 the shop in question under possession of the respondent – tenant Nand Kishore was described to be bounded in the south with 'gate' of the house of Ashok, and Sumitra which description was admitted in the corresponding para of the written statement, Ex.P27 to be correct meaning thereby that the portion shown in the photographs Ex. P4 and P5 has been used as gate since prior to the year 1983 and yet the learned Rent Controller in para no. 19 [at page 11] of the impugned judgment chose to ignore this aspect and ventured to suggest that the petitioner can run his office in this portion being used as gate since prior to 1983 and instead park his car by traversing all the way across several properties upto the back side of Kathmandi in his Verandah portion”. [9]. The Appellate Authority also brushed aside the plea of contradictory stand taken by the respondent – landlord and has explained that the site plan [Ex.RW1/A] produced by the tenant pertains to two plots measuring 180 square yards, i.e., 360 square yards whereas the respondent – landlord is owner of 180 square Civil Revision No. 1245 of 2007. ::-6-:: yards only and that the 'second shop' shown in the said site plan [occupied by another tenant] is owned by Anshuman Joshi and not by the respondent – landlord who is owner of the shop in dispute only. The Appellate Authority has held that the need of the respondent – landlord is genuine and his claim that he needs the premises to run his office is fully justified. Consequently, the eviction petition has been accepted. [10]. Aggrieved, the petitioner – tenant has approached this Court. [11]. The counsel for the parties have been heard at some length and the records including of the courts below perused. [12]. Learned counsel for the petitioner – tenant reiterated that the personal necessity shown by the respondent – landlord is neither genuine nor bona-fide and is only a pretext to increase the rent. He argued that the 'covered passage/garage' where the respondent – landlord parks his car, is in fact a shop and is equally suitable for a lawyer's office as the car can be parked on the rear side of the house. The counsel referred to the statement made by the respondent – landlord while compromise was effected and the eviction petition in the year 1984 was withdrawn. It was urged that the paragraph 4[b] of the eviction petition does not satisfy the statutory requirements as the respondent – landlord has no where averred that he does not own or possess any other vacant shop in the urban area of Charkhi Dadri. It was highlighted that the petitioner is a tenant since the year 1963-64 and the eviction, if allowed to sustain, would take away his source of livelihood. Learned counsel Civil Revision No. 1245 of 2007. ::-7-:: also argued that the respondent has led no evidence to prove that he is actually a practicing lawyer and needs the demised premises for the projected necessity of his office. [13]. The counsel for the respondent – landlord, on the other hand, defended the eviction order and highlighted that the earlier eviction petitions were filed by the landlord in the years 1982 and 1984 and it is baseless to allege that he has been filing eviction petitions to increase the rent. The counsel explained that the ground of personal necessity in respect of a non-residential building was not available to a landlord in the years 1982-84 and such a right in the State of Haryana accrued only by dint of a judgment of this Court in Ved Parkash Gupta v State of Haryana, 1997 HRR, 461. The counsel referred to the site plan [Ex.RW1/A] and the photographs on record and urged that if the respondent converts the passage/garage into office, the very entry to his house from the side of Rajbir Market, i.e., main road stands closed, besides leaving no space whatsoever for parking of the car which he admittedly owns from last several years. [14]. Having heard learned counsel for the parties at some length and on perusal of the record, I do not find any merit in this revision petition. Since the Rent Controller heavily relied upon the factum of filing of the previous eviction petitions by the respondent – landlord in the years 1982 and 1984, it would be apposite to make a reference to the statements [Ex.P14 and P14-A] made by the petitioner and the respondent, respectively in the 1984 proceedings. While the petitioner had tendered the arrears of rent up to 31.5.1984 Civil Revision No. 1245 of 2007. ::-8-:: and volunteered to increase the rent to Rs.300/- per month w.e.f. 1.6.1984 and further agreed to pay at that rate for five years, with liberty to the landlord to take appropriate action for the increase thereafter. The respondent – landlord had also made a statement, accepting that compromise. He further and categorically deposed that “I have taken a separate room on rent for my office”, therefore, I do not want to continue with this eviction petition” [translated version]. In my considered view, the withdrawal of the eviction petition in the year 1984 does not at all come in the way of the respondent – landlord, rather it strengthens his case. [15] There is indeed no controversy that prior to 1st May, 1997 and until the judgment in Ved Parkash Gupta's case [supra] was pronounced, whereby the expression “residential” in sub-clause [a] of clause [3] of Section 13 of the Act was held to be highly discriminatory in the light of the judgment of the Hon'ble Supreme Court in Harbilas Rai Bansal v State of Punjab, 1996 HRR, 1, a landlord in Haryana had no right to seek eviction of his tenant on the ground of personal necessity from a 'non-residential premises'. The respondent yet agitated the said ground in his 1984 eviction petition which was compromised as the tenant agreed to increase the rent and the respondent decided to take some premises on rent for the purposes of his office. It clearly establishes that even in the year 1984 the respondent was in need of the said premises for his office. [16]. It is well settled that principles like res-judicata do not apply to an eviction petition based upon the ground of 'personal necessity' and a landlord can always seek eviction of his tenant if his Civil Revision No. 1245 of 2007. ::-9-:: claim is based upon subsequent and changed circumstances. The hard-hitting observations made by the Rent Controller against the respondent – landlord on the basis of withdrawal of the eviction petitions filed in the year 1982 and 1984 were, therefore, totally uncalled for. [17]. The real controversy hinges around the question as to whether or not the respondent requires the demised premises for his bona-fide personal use and occupation? It is well known that whenever a landlord asserts that he requires the building for his own use and occupation, the court can not proceed on the assumption that the requirement is not bona-fide. Contrary to it, if the landlord establishes his requirement, the tenant has no locus to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. In other words, the landlord is the best judge of his needs and interests and unless the Court comes to a positive conclusion that the alleged necessity shown by the landlord is laced with motive or his a mere 'wish' or 'desire', the landlord is entitled to the eviction of his tenant. [18]. It is not in dispute in the case in hand, that the respondent – landlord is a practising lawyer at a Sub Divisional Head-quarter and owns a Car from last several years. His standard of living does suggest that he is doing fairly well in the legal profession or else he has no other substantial source of income to maintain a car etc. The Rent Controller ought not to have drawn any adverse inference and that too with the harsh expressions like “brief- less lawyer” against the respondent, who is a senior member of the Civil Revision No. 1245 of 2007. ::-10-:: bar and is in legal profession since the year 1975. [19]. Though, the petitioner – tenant has placed on record a site plan [Ex.RW1/A] pertaining to two adjoining houses, i.e., the one owned by the respondent and the other owned by his mother, who was living separately, nevertheless the respondent is admittedly owner of the plot measuring 180 square yards only. In the front portion of that house, there exists only one, i.e., the shop in dispute and a garage-cum-covered passage where the respondent parks his car. Every landlord including a lawyer is undoubtedly entitled to maintain his professional/business office in his own premises instead of incurring the burden of a rented accommodation. It requires no discussion that a lawyer is more comfortable with his office in the premises where he resides. On a perusal of the photographs [Ex.P4 and P5] coupled with the site plan [Ex.RW1/A], I am of the considered view that the respondent is fully justified in asserting that the demised premises is the most suitable space for him to use as his office. It is not controverted that the respondent and his wife are the only two family members living in Charkhi Dadri. The respondent has no other family member to stay with him. In these circumstances, it appears reasonable that the respondent wants his office in the same premises, though separated from the residential portion so that he can have comforts of the personal and professional life both. Suffice it to say that the petitioner – tenant can not dictate his landlord as to how should he park his car on the rear side of the house or have his office in the garage portion. It is for the respondent, being the best judge of his requirement, to decide as to Civil Revision No. 1245 of 2007. ::-11-:: how and in what manner he wants to utilize the available accommodation. [20]. For the reasons afore-stated, I do not find any merit in the revision petition which is accordingly dismissed without any costs. However, keeping in view the fact that the petitioner requires some time to make alternative arrangements, it is directed that he shall be entitled to retain the possession of the demised premises till 31.10.2009, subject to payment of arrears of rent and future rent by the 10th day of each calendar month. [21]. Dasti. September 23, 2009. ( SURYA KANT ) dinesh JUDGE