CR No.2420 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.2420 of 2011 (O&M) Date of decision: 7.7.2011 Smt. Durga Devi ......Petitioner(s) Versus Meenu Sanghi and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. P.K. Gupta, Advocate for the petitioner. Rakesh Kumar Garg, J. The petitioner-tenant has filed the instant revision petition challenging the impugned orders dated 30.4.2010 passed by the Rent Controller, Narnaul whereby his eviction has been ordered from the demised premises and judgment dated 28.1.2011 passed by the Appellate Authority, Narnaul dismissing his appeal against the aforesaid order. The brief facts out of which this revision petition has arisen are that respondent No.1 claiming herself to be the landlady of the demised shop filed an eviction petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “the Rent Act”) pleading that one Hari Singh (predecessor-in-interest of petitioner and respondents No.2 and 3) was a tenant under her in the demised shop at ` 500/- per month plus taxes vide rent note dated 15.4.2001. Said Hari Singh had expired on 1.7.2002 and petitioner and respondents No.2 and 3 being his legal heirs, succeeded to the tenancy of the demised premises. The possession of the demised premises was sought by respondent No.1-landlady on the ground that the petitioner as well as respondents No.2 and 3 have failed to pay arrears of rent w.e.f. 1.7.2002 CR No.2420 of 2011 (O&M) 2 and she requires the demised shop for her personal necessity as she wants to start her own business. It was also stated that heirs of Hari Singh had sublet and transferred the possession of the shop in dispute to respondents No.4 and 5 after the death of Hari Singh and have created a false and fictitious partnership to defeat her rights. The petitioner as well as respondents No.2 to 5 contested the eviction petition by filing written statement admitting that Hari Singh (since deceased) was tenant in the demised shop under respondent No.1 since 1974. It was further pleaded that respondent No.2-Banwer Singh was employed as a doctor with the Haryana Government while Rajni Devi- respondent No.3 was an employee of Health Department of Rajasthan Government. It was stated that Durga Devi-petitioner was running her business of hair cutting saloon and beauty parlour, in the shop in dispute and in order to get assistance in running of business, the petitioner formed a partnership with respondents No.4 and 5 who were assisting her in running the business in the demised shop after the death of her husband. The petitioner had repeatedly visited respondent No.1 for execution of fresh rent note in the name of the firm “M/s Student Hair Dressers and Saloon” but she refused to execute the fresh rent note. It was further pleaded that arrears of rent of ` 17,500/- and house tax etc. along interest and cost of petition, in total, an amount of ` 22,400/- was paid to respondent No.1 and thus, the ground of non-payment of arrears of rent was not available to her. Regarding the fact that the demised shop was required by respondent No.1 for her personal necessity, it was pleaded that husband and son of respondent No.1 were practicing as Advocates at Narnaul. The husband of respondent No.1 owns “Saket Market” adjoining the demised shop at a prime location in the town. The respondent-landlady had no intention to work or start her own business. Rather a false story CR No.2420 of 2011 (O&M) 3 was put up to get the shop in dispute vacated. Petitioner and respondents No.2 to 5 further denied that the shop in dispute was sublet or possession thereof was transferred to respondents No.4 and 5 for consideration or that the petitioner as well as respondents No.2 and 3 have parted with the possession of the shop in favour of respondents No.4 and 5. It was further alleged that after the death of Hari Singh, the petitioner constituted a firm titled as “M/s Student Hair Dressers and Saloon” in which respondents No.4 and 5 were made partners but the partnership was executed on 13.7.2002 and since then respondents No.4 and 5 were continuing as partners of the petitioner. Respondents No.4 and 5 were the real brothers of Hari Singh-original tenant. Regular account books of the firm for its income and expenses were being maintained. Thus, dismissal of the eviction petition was sought. No rejoinder was filed. On the basis of the pleadings of the parties, the following issues were framed by the Rent Controller on 12.2.2007: “1. Whether the respondents are liable to be ejected on the ground of personal necessity as alleged? OPP 2. Whether the respondents/tenant have sublet the shop in dispute to respondents No.4 and 5 as alleged? OPP 3. Whether the respondents/tenant have parted with possession as alleged?OPP 4. Whether the respondents are entitled to special costs? OPR 5. Whether the respondents No.4 and 5 are partners of respondent No.3 as alleged? OPR 6. Relief.” CR No.2420 of 2011 (O&M) 4 After hearing the counsel for the parties and going through the evidence adduced, the Rent Controller decided issues No.1 to 3 in favour of respondent No.1-Landlady. Issues No.4 and 5 were not pressed. The Rent Controller found that the rent was tendered by the petitioner-tenant in accordance with law and she was not liable to be ejected on this ground. However, it was found by the Rent Controller that respondent No.1 requires the shop in question for her personal need and further that the petitioner had sublet the shop in question and respondents No.4 and 5 were in exclusive possession of the shop in dispute. Resultantly, the eviction application was allowed directing the petitioner as well as respondents No.2 to 5 to vacate the demised shop and hand over the possession thereof to respondent No.1 within a period of one month from the date of judgment i.e. 30.4.2010. Feeling aggrieved, the petitioner filed an appeal before the Appellate Authority challenging the judgment of the Rent Controller. It may also be noticed that respondent No.1-landlady had also preferred cross- objections challenging the findings of the Rent Controller, submitting that tender of arrears of rent made by the petitioner-tenant was valid. The Appellate Authority on appreciation of evidence reversed the findings of the Rent Controller on the issue of tender of arrears of rent holding that tender made by the petitioner on 2.6.2005 was not valid. The findings of the Rent Controller on other two grounds i.e. bona fide need of the respondent-landlady and subletting of the shop in dispute by the petitioner in favour of respondents No.4 and 5, were affirmed. Resultantly, the appeal filed by the petitioner was dismissed holding the same without any merit. Still aggrieved, the petitioner-tenant has approached this Court by way of instant revision petition challenging the judgments of the Courts CR No.2420 of 2011 (O&M) 5 below. Learned counsel appearing on behalf of the petitioner has vehemently argued that from the evidence on record, it has been clearly made out that personal necessity of the respondent-landlady is not bona fide. It is her mere wish to get the demised shop vacated and in fact, she does not need it as it has been established on record that her husband owns big commercial area under the name and style of “Saket Market” in which ample space/shops are lying vacant, wherein the respondent- landlady can start her business if she wishes and thus, the findings of the Courts below were erroneous. It was further argued by Sh. P.K. Gupta, learned counsel appearing on behalf of the petitioner that the findings of the Courts below to the effect that the petitioner has sublet the shop in dispute are wrong as it has been established on record that respondents No.4 and 5 are only helping the petitioner in her business who is in possession of the demised shop and has not parted with her possession. It has been further argued by the learned counsel for the petitioner that the findings recorded by the Appellate Authority on the issue of tender were illegal as no such issue was framed by the Rent Controller regarding validity of tender meaning thereby that respondent-landlady had no grievance regarding the tender made by the petitioner and thus, the impugned orders cannot be sustained and are liable to be set aside. I have heard learned counsel for the parties and have perused the paper book of this petition. From the perusal of the pleadings, it is clear that respondent No.1 had sought eviction of the petitioner and other respondents on three grounds i.e. non-payment of arrears of rent, subleting of the demised shop in favour of respondents No.4 and 5 and bona fide personal necessity of respondent No.1-landlady. No doubt, no issue has been framed regarding CR No.2420 of 2011 (O&M) 6 the non-payment of arrears of rent but both the parties were aware of their pleadings and have adduced evidence to meet out the same. Not only the issue regarding validity of tender made by the petitioner was raised before both the Courts below but a finding to this effect was also recorded. In this view of the matter, simply because no issue was framed regarding non- payment of arrears of rent, it cannot be said that the petitioner cannot be evicted on the basis of the aforesaid findings of the appellate authority on the ground of invalid tender. It is a matter of record that respondent-landlord also preferred cross-objections in the appeal before the Appellate Authority for reversal of the findings of the Rent Controller on the legality of tender made by the petitioner-tenant. Admittedly, the shop in dispute was on rent with Hari Singh (since deceased). After his death, petitioner and respondents No.2 & 3 being his heirs, became tenants in the demised shop. Since respondents No.2 & 3 are government servants, they were not concerned with the tenancy rights in the shop and it was the petitioner who became tenant in the demised shop after her husband's death and she being tenant in her individual capacity was required to tender arrears of rent in the proceedings. However, while tendering an amount of ` 22,400/- in the court on 2.6.2005, a statement was made by her that the tender was being made on behalf of the partnership firm “M/s Student Hair Dressers and Saloon, Narnaul”. Thus, the question before the Courts below was as to whether the tender made on behalf of the firm “M/s Student Hair Dressers and Saloon, Narnaul”, was valid under the law. The said firm was never a tenant in the shop under the respondent-landlord and therefore, the arrears of rent could be tendered by the petitioner in her personal capacity and not on behalf of the partnership firm. Thus, the tender was invalid and no infirmity can be found in the findings of the Lower Appellate Court to the CR No.2420 of 2011 (O&M) 7 effect that the tender was invalid. It is the petitioner's own case that after the death of her husband, she entered into a partnership with respondents No.4 & 5 i.e, brothers of her husband, through partnership deed dated 13.7.2002 and since then she was running her business as partner under the name and style of “M/s Student Hair Dressers and Saloon” in the demised shop. A finding has been recorded by the Courts below that the said partnership deed dated 13.7.2002 (Ex.D1) is not a genuine document and the same had been brought into existence to keep the possession of the shop by respondents No.4 and 5 after the death of Hari Singh, who died on 1.7.2002. In her cross-examination, the petitioner stated that respondents No.4 and 5 were working in the shop as partners for the last about 35 years. The aforesaid fact is contrary to the pleadings and record. Even the documents Ex.D2 to Ex.D-13 (copies of entries made in Bahi) purporting to be accounts of the firm were discarded by the Courts below holding that there were serious irregularities in the entries and the same were created afterwards. Even as per the report of Local Commissioner dated 21.5.2005, the demised premises were found to be in possession of respondents No.4 and 5. Contention of the counsel that working of other partners in the demised premises can not be held to be parting with of possession so long as tenant continues to retain the legal possession with her, is liable to be rejected as it is well settled law that generally, subletting is a secret arrangement between the tenant and a sub tenant and the aforesaid question can only be determined by the Court from the circumstances coming on record. The authorities below have recorded a finding that in view of the oral and documentary evidence coming on record, partnership deed (Ex.D1) is nothing but a camouflage to conceal the real transaction of subletting. While recording the aforesaid findings, the Courts below have CR No.2420 of 2011 (O&M) 8 also noticed that no corroborative evidence, (such as income tax return, loss and profit in business, account books, bank account, contribution of the share capital and distribution of profit), was produced by the petitioner to substantiate the plea of partnership firm. Not only this, the Court has also taken into consideration a statement made by respondent No.5 (Ex.A9) in another Rent Petition No.5 of 2005 titled as “Meenu Sanghi versus Daya Ram and ors.” that petitioner was a house wife and domestic lady. Nothing has been shown to this court as to how the aforesaid findings are incorrect. Faced with this situation, learned counsel for the petitioner has attempted to challenge the findings of the Courts below on the issue of personal necessity of respondent-landlady for her bonafide requirement of the shop to run a business. Ample evidence has come on record to establish that the respondent-landlady had taken distributorship from “Amway Company” in March, 2007 and had also registered herself with sales tax authorities to carry on the business of sale of gifts and decoration items. She had also filed an eviction petition for the adjoining shop, so as to have sufficient place to carry on her business. It is settled law that landlord is the best judge of his/her requirement and the Court can not substitute its own opinion regarding the need of the landlord. The tenant can not dictate the terms to landlord regarding his bonafde requirement. It is for the landlord to decide in what manner her requirement of personal necessity is to be executed. Reference can be made to the judgment of the Hon'ble Supreme Court in Sarla Ahuja versus United India Insurance Company Limited 1998 (2) Rent Control Reporter 533. Simply because husband of the respondent-landlady is a leading Advocate and owns a big market namely “Saket Market”, it cannot be argued that since the petitioner can easily occupy any of the shops located in the market owned by her CR No.2420 of 2011 (O&M) 9 husband, she does not have a bonafide need to occupy her own shop. It is for the landlady to see how and in which shop she is to run the business. There is no material on record pointed out before this court on the basis of which the finding of fact recorded by the Courts below can be held to be perverse. No other point has been urged. In view of the aforesaid discussion, this revision petition is devoid of any merit and the same is hereby dismissed. July 7, 2011 (RAKESH KUMAR GARG) ps JUDGE