CR No.1400 of 2010 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1400 of 2010 Date of Decision: 3.08.2010 Vinod Kumari ..Petitioner Vs. Ramesh Kumar ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Ms.Vanita Sapra Kataria, Advocate, for the petitioner. Mr.Kanwaljit Singh Sr.Advocate, Advocate, with Ms.Shivani Bargav, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in Digest? Yes --- Vinod K.Sharma,J. This is landlady's revision petition against the order dated 19.11.2008 passed by the learned Rent Controller, Ambala Cantt. as affirmed by the learned Appellate Authority vide which the petition filed by CR No.1400 of 2010 2 the petitioner/landlady for eviction of the respondent/tenant from the demised premises was dismissed. The petitioner/landlady filed a petition under section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act), on the pleadings that the respondent was tenant under the petitioner in the tenanted premises at a monthly rent of Rs.600/- (Rupees six hundred only) which was payable in advance. The case of the landlady was, that the tenant had not paid rent since 1.2.2002 to 31.7.2002 amounting to Rs.3600/- (Rupees three thousand and six hundred only) in spite of repeated requests and demands. Eviction was, therefore, sought on the ground of non-payment of rent as also that the landlady required the tenanted premises for her own use and occupation and for use and occupation of her husband. The case of the petitioner was, that the only son of the petitioner had died about 2 years back by committing suicide and since then the petitioner had closed the room on the first floor. On account of death of her only son due to sentimental feelings she was totally disturbed and did not want to reside in house No.834, Housing Board Colony, Ambala Cantt. She required the premises in question for her own use and occupation. It was also pleaded that the premises in question had become totally unfit and unsafe for human habitation and therefore, were required for reconstruction and thereafter the petitioner was to keep her residence for herself and for her husband. The ground of unfit and unsafe was pleaded on the plea, that in the rainy season roof leaks badly and has become uneven and was likely to fall at any moment. Walls of he building had developed CR No.1400 of 2010 3 serious cracks which were beyond repairs. The case of the landlady was, that the tenant was asked to vacate the house by terminating the tenancy which was initially for a period of 11 months only, but the respondent refused to accede to her request, therefore, the petition. On notice, respondent resisted the petition by filing written statement, wherein the factum of tenancy and the rate of rent was admitted but it was pleaded that the rent up to 31.7.2002 stood paid. The plea of personal necessity was denied by pleading therein, that the landlady was residing in her own house which has more than sufficient accommodation. The case set up by the tenant was, that the petitioner and her husband wanted to forcibly eject the respondent which had forced the petitioner to file a civil suit against his dispossession by use of force. It was after the decision of the suit filed by the respondent, that the present petition was filed. It was denied that the building was unfit and unsafe for human habitation. The respondent/tenant also denied that there were cracks in the walls or that it required any repairs. The motive for filing the petition was said to be an attempt to increase the rent. Therefore, it was prayed that the petition be dismissed. In the rejoinder, pleas taken in the written statement were denied and those made in the petition were reiterated. On the pleadings of the parties, learned Rent Controller famed the following issues:- 1. Whether respondent is liable to be ejected from the CR No.1400 of 2010 4 tenanted premises on the alleged grounds mentioned in the petition? OPP 2. Whether petition is false and frivolous? OPR 3. Relief. The petitioner in support of her case examined, her attorney Suresh Chander Pathak as PW 3, Puran Chand as PW 1, Heera Lal Yadav as PW 2 and Anil Kumar Malik as PW4. The respondent/tenant, on the other hand, appeared in the witness box as RW 1 and closed his evidence. The respondent thereafter by way of additional evidence examined Amit Mittal, Building Expert as RW 2. No rebuttal evidence was led. Learned Rent Controller rejected the plea of non-payment of rent as the ground of non-payment of rent was given up by the petitioner. The ground of building having been unfit and unsafe was decided against the petitioner. This court is not concerned with the issue of building being unfit and unsafe as this ground was not pressed by the petitioner before this court. The only ground on which eviction sought, is the ground of personal necessity. Learned Rent Controller decided the issue of personal necessity against the petitioner by rejecting the evidence led by general power of attorney of the petitioner, who had appeared as PW 3 and has CR No.1400 of 2010 5 deposed in terms of the averments made in the petition. That the petitioner along with her husband i.e. her attorney was residing in house No.834, Housing Board Colony, Ambala Cantt. which consists of two rooms on the ground floor and one room on the first floor besides, bath room and latrine. Her only son who was residing on the first floor of house No.834 died and since then the room was lying locked. That due to sentimental feelings the petitioner did not want to reside in house No.834. The stand of the respondent/tenant, on the other hand, was that the accommodation in occupation of the petitioner was consisting of 2 rooms, besides latrine and bath room, excluding the room on the first floor which according to the petitioner was locked. The case set up was, that the accommodation in occupation of the petitioner was more than the tenanted premises which consists of one room, besides latrine and bath room. It was said that it was mere desire and not need. In support of the stand, that the need was mere desire and not need, reliance was placed on the judgment of this court in the case of Surjan Singh Vs. Krishan Lal Garg 1996 HRR 360 and Jagjit Singh Vs. Vaneet Jain 1999 HRR 583. Plea was also taken, that the petitioner had not stepped into the witness box and therefore, the statement of the attorney was not sufficient to prove the bona fide requirement. In support of this plea reliance was placed on the judgment of this court in the case of Raj Kumar Vs. Hem Raj Singla and Ors. 2008 (1) RCR (Civil) 44, wherein this court held that the statement of attorney was not sufficient to accept the plea of bona fide requirement. CR No.1400 of 2010 6 Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Ishwar Bhai C.Patel Bachu Bhai Patel Vs. Hariher Behera &Anr. 1999 (2) CCC 1, wherein it was held, that if the party does not appear in support of the pleading then adverse inference is to be drawn. Learned Rent Controller accepted the stand of the respondent and decided issue of bona fide necessity against the petitioner, and dismissed the petition. The petitioner preferred an appeal against the judgment of learned Rent Controller. Before the learned appellate authority, subsequent even was sought to prove on record, that due to emotional set back the petitioner could not reconcile with the situation to live in the house in their occupation and that it was sold to Mrs. Anju Bansal wife of Ranju Bansal, and thereafter the petitioner along with her husband had shifted to rented accommodation, where they were paying rent at the rate of Rs.2000/- (Rupees two thousand only) per month. Application for taking note of subsequent even was also opposed by contending, that the sale deed was dated 12.09.2008, therefore, could not be treated to be subsequent event as the sale made was during the pendency of the rent petition before the learned Rent Controller. The learned Appellate Authority dismissed the application, to take note of subsequent event by accepting the stand taken by the tenant that the sale of the house was made during the pendency of the rent petition in the court of learned Rent Controller. CR No.1400 of 2010 7 Learned appellate authority affirmed the findings, that the premises were not unfit and unsafe for human habitation. As already observed, this court is not concerned with this ground, as the finding of the learned rent Controller and learned appellate authority with regard to building being unfit and unsafe was not challenged in this court. In support of the ground of personal necessity, petitioner besides referring to the pleaded and proved facts placed reliance on the judgment in the case of Meena Rani Vs. Sham Lal 2008 (2) RCR (Civil) 254, to contend, that if the petitioner/landlady does not appear in the witness box but examine her special power of attorney who deposed in terms of authority given to him by the landlady, such witness is a competent witness and his statement is admissible in evidence. Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Ramkubai since deceased by LRs. Vs. Hajarimal Dhokalchand Chandak 1999 (2) RCR (Rent) 213, wherein Hon'ble Supreme court was pleased to lay down, that where landlady seeks ejectment of tenanted premises on the ground of bona fide need and necessity but does not appear in the witness box and examined her son, who is general power of attorney, it is no ground to conclude, that there was no bona fide need of landlady. The stand of the respondent/tenant before the learned appellate authority, therefore, was that the premises in occupation of the petitioner were not less than the tenanted premises and therefore, the need projected was not bona fide but a mere desire. In order to press the point, that the CR No.1400 of 2010 8 evidence of the attorney was not to be read in evidence, reliance was placed on the judgments relied upon by the learned Rent Controller to reject the statement of the general attorney. Learned Appellate Authority did not agree with the finding of the learned rent Controller or the respondent that an adverse inference was required to be drawn against the petitioner/landlady for not appearing in the witness box. Reason for coming to this conclusion was, that general power of attorney was not any other person but the husband of the petitioner, who was in know of the facts and was otherwise, to live with the petitioner. The learned Appellate Authority, thus, held that the attorney of the petitioner i.e. her husband had the personal knowledge about the facts of the case and had withstood the rigorous cross-examination by answering all the questions put to him. The learned Appellate Authority did not find the need of the petitioner to be bona fide for the reasons, that the premises where the petitioner along with her husband was living, was having more accommodation than the one under dispute. The learned Appellate Authority held, that even if the son had committed suicide on the first floor, even then the petitioner and her husband and two rooms for their occupation which were sufficient to meet their requirement. The learned Appellate Authority also held the need to be mere desire and not bona fide need. Ms.Vanita Sapra Kataria, learned counsel appearing on behalf of the petitioner challenged the finding of the learned Rent Controller as well as that of learned appellate authority on the ground of personal CR No.1400 of 2010 9 necessity by contending, that the learned authorities below misinterpreted the need projected in the petition. The contention of the learned counsel for the petitioner was, that the bona fide need projected was not on account of insufficient accommodation with the petitioner but for the reason, that on account of suicide by their only son, she was sentimentally disturbed and could not peacefully live in the same house where her only son had committed suicide. The contention of the learned counsel for the petitioner further was, that the petitioner was forced sentimentally to such an extent that she could not continue to stay in the premises in her occupation and had to sell it to shift in the rented premises where she was paying rent of Rs.2000/- (Rupees two thousand only) per month. Mr.Kanwaljit Singh, learned senior counsel appearing on behalf of the respondent, on the other hand, contended that the learned Rent Controller had rightly held, that adverse inference was required to be drawn against the petitioner for not appearing in the witness box, as it was not possible to accept the statement of attorney in proof of bona fide requirement. Reliance was placed on the judgment of this court in support of this contention in the case of Raj Kumar Vij Vs. Hem Raj Singla and Ors. (supra). Learned senior counsel for the respondent also contended, that the learned Rent Controller as well as learned Appellate Authority has recorded a concurrent finding of fact rejecting the plea of bona fide requirement as admittedly accommodation in occupation of petitioner was CR No.1400 of 2010 10 more than the one with the tenant and therefore, it was rightly held, that it was a mere desire and not the need. The contention was also raised, that the plea of personal necessity as raised is not covered under section 13 of the Act. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. It is now well settled law, that the landlord is best judge of his residential requirement. Whether an alternative accommodation actually available was sufficient, to deny the plea of bona fide requirement has to be decided on the facts and circumstances of each case. Learned counsel for the petitioner was right in contending, that the learned Rent Controller as well as the learned Appellate Authority did not decide the matter strictly in terms of the pleadings and the case set up by the petitioner but proceeded on the presumption that the petitioner wanted rented premises for occupation because the premises in her occupation were insufficient. It is not uncommon for parents of only son, who committed suicide to be emotionally disturbed. It is also not irrational that the parties whose only son is lost by committing suicide would not like to live in that accommodation as his memory would haunt them every moment, as they had seen their son grow up and live with them, in the house, when he committed suicide. Once this aspect of emotional disturbance is taken into consideration, and also taking into account that emotional disturbance was not pleaded merely to seek eviction, it is proved that the petitioner did CR No.1400 of 2010 11 sell the house where the only son had committed suicide and had shifted to rented premises. The accommodation, therefore, in occupation of the petitioner could not be a ground to reject the bona fide requirement which was duly proved by the attorney who was none other than her own husband, who was equally emotionally disturbed because of the death of his only son. The question whether the statement of attorney was to be read in evidence or not was, in fact, stands decided by the learned Appellate Authority in favour of the petitioner. The respondent without challenging the finding cannot be permitted to raise the plea that evidence led by attorney was not admissible in evidence. Once the accommodation which was in occupation of the petitioner is taken out of consideration for the reasons stated the bona fide need projected could not be rejected, as it stood proved that the premises were required by the petitioner for her own bona fide need. The contention that the plea is not covered under section 13 of the Act, also deserves to be rejected, as the ground of ejectment is bona fide need which is a ground for eviction. In view of the findings recorded above, the findings of the learned Rent Controller and that of the learned Appellate Authority on the ground of personal necessity are reversed, and it is held, that the petitioner has been successful in proving that the premises in dispute were bona fide required for her use and occupation. Consequently, the revision petition is allowed. The judgment CR No.1400 of 2010 12 passed by the learned Rent Controller, as affirmed by the learned Appellate Authority is set aside. The petition filed by the petitioner under section 13 of the Act is allowed. However, the tenant is given two months' time to hand over the vacant possession of the tenanted premises to the petitioner landlady. 3.08.2010 (Vinod K.Sharma) rp Judge