CR No.2157 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No. 2157 of 2008 Date of Decision: 13 - 9 - 2010 M/s Guru & Company ....Petitioner v. Malkiat Singh ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Amarjit Markan, Advocate for the petitioner. Mr.Harinder Aurora, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) M/s Guru & Company through its partners Ashok Kumar and Arvind Kumar has filed the present revision petition to assail the order dated 29.1.2008 passed by the Rent Controller, Phagwara, whereby the petition instituted under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred as, `the Act') has been accepted and eviction of the petitioner has been ordered. Briefly stated, Malkiat Singh through his legally wedded wife and attorney Smt.Gian Kaur filed a petition under Section 13-B of the Act for eviction of the petitioner-tenant from the shop on ground floor and a room at the first floor which is a portion of the property known as Dhandwar Market, situated opposite UCO Bank, Phagwara, Tehsil and District Kapurthala. It was stated in the eviction petition that Malkiat Singh CR No.2157 of 2008 [2] was owner of the property. He purchased the same vide sale deed dated 31.12.1997 for a sale consideration of Rs.4,75,000/- from his brother Sohan Singh. The petitioners were tenants in the property at the rate of Rs.1,500/- p.m. The rent was paid upto 31.12.2004. It was further pleaded that Malkiat Singh was a Non Resident Indian having passport No. L-9807582 and was a permanent resident of Melbourne (Australia). A photo copy of the passport issued by the Australian Government has been exhibited as Ex.A17. It was stated that son of the respondent-landlord, Rachhpal Singh died on 8.1.2002. Thereafter, the respondent-landlord never wanted to reside in Australia. The second floor of the demised premises is in possession of the respondent-landlord where they are residing and they intend to open a Showroom on the ground floor and, therefore, the demised premises was required for personal use and occupation for doing the business. In the present case, leave to contest was granted in favour of the petitioner-tenant. Thereafter, the respondent-landlord examined AW1 Surinderpal, Registration Clerk to prove the sale deed dated 31.12.1997 bearing No.2626. Raj Kumar, Court Clerk, Municipality, Phagwara was examined as AW2. He proved assessment register where ownership of Malkiat Singh is recorded. Sital Singh, Computer Terminal Operator, UCO Bank, Phagwara was examined as AW3. He proved Saving Bank statement of Gian Kaur. He also produced various documents of the Bank which contained signatures of Gian Kaur. AW4 Harbans Lal, Daftri from Bank of Baroda, Phagwara was examined to say that 14 cheques were issued by the petitioner. Gian Kaur wife of the respondent-landlord appeared as AW5. CR No.2157 of 2008 [3] She tendered her affidavit wherein she reiterated the contents of the eviction petition. She was thoroughly cross-examined. She stated that entire ground floor was required for personal use and occupation and eviction petitions have been instituted against other tenants in the property. In cross- examination, she stated that they were having 13/14 shops and they have instituted eviction petitions against all the tenants. She further stated that on the first floor of the property during the pendency of the case, a shop was rented out to Indu Property Dealer. However, she denied that in the demised premises they had rented out the shops to new tenants. Arvind Kumar tenant appeared as RW1. Deepak Gupta appeared as RW2 and Bharat Saroya as RW3. Mr.Amarjit Markan, learned counsel appearing for the petitioner has raised the following arguments to challenge the findings recorded by the Rent Controller:- a) That the Khasra numbers given in the sale deed do not tally with the property in dispute, therefore, the landlord has failed to prove his ownership qua the demised premises. b) That only a photo copy of the passport was attached and no original or attested copy has been produced. c) That need of the landlord is not bona fide, as the photographs have been produced to prove the fact that on the first floor the shops vacated were put up for letting out the premises. d) That vide Ex.R3, during the pendency of the eviction petition, one shop on the first floor was rented out to Bharat Saroya. CR No.2157 of 2008 [4] e) That Gian Kaur was not competent to depose regarding need of the landlord, as she as an attorney, cannot comprehend need of the landlord. To fortify this argument, Mr.Markan has placed reliance on the following judgments; Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd., and others, AIR 2005 SC 439; Raj Kumar Vij v. Hem Raj Singla and others, 2007(2) RCR (Rent) 597; Manmohan Singh v. Smt.Narinder Kaur, 2008(4) RCR (Rent) 210; Sant Baba Labh Singh v. Santto, 2008(3) RCR (Civil) 210. To controvert the arguments raised by counsel for the petitioner, Mr.Harinder Aurora, counsel appearing for the respondent has contended that on the passport Ex.A17, date of birth of the respondent- landlord recorded is 10.9.1937. He is aged about 73 years now. The son of the respondent-landlord has died. It is submitted that attorney of the respondent-landlord is none else but wife of the owner. Therefore, she is the best person who can depose regarding need of the family. To controvert the contention raised that attorney cannot depose, reliance has been placed on a judgment of this Court in Satnam Channan v. Darshan Singh, 2006 (1) RCR (Rent) 427 and Meena Rani v. Sham Lal, 2008(1) RCR (Rent) 345. I have given my thoughtful consideration to the rival submissions made by counsel for the parties. In the eviction petition itself, it has been stated in a categoric term that family of the landlord is residing on the second floor and they require the ground floor for running the business of Shop-cum-office, as it was specifically stated that after the death of his son Rachhpal Singh, the respondent-landlord intended to migrate to CR No.2157 of 2008 [5] his native place. Petitioner-tenant has not disputed the relationship of landlord and tenant. Once that is not disputed and sale deed is proved by the witness, the petitioner-tenant cannot say that respondent-landlord is not owner of the property. It was stated in the eviction petition that this property was purchased by the respondent-landlord in the year 1997 from his brother Sohan Singh. It is not an assertion of the petitioner-tenant that some body else is the owner of the property. A perusal of sale deed Ex.A1 shows that it was specifically stated that on the spot shops have been constructed and rest of the space is lying vacant. Gian Kaur appearing as AW5 tendered into evidence Ex.PA wherein it was specifically stated that she had brought attested copy of passport which is Ex.A17. She also deposed that her husband Malkiat Singh is residing abroad for more than three decades. Once the affidavit and copy of the passport were produced in the Court, it does not lie in the mouth of the tenant to state that the landlord has failed to prove that he is a Non Resident Indian. Regarding other argument that the shop on the first floor was let out, during the pendency of petition and the photographs depict that notice has also been put for letting out the shop on the first floor, the Court cannot ignore the fact that right from the inception of the eviction petition, it is the case of the landlord that he requires the ground floor for setting up a show room. The landlord had never stated that first floor is required for his personal necessity. Thus, letting out of the shop on the first floor, in no way, shall affect the need of the landlord to have the ground floor evicted. The Rent Controller had rejected this argument by observing as under:- “......13. I have considered this contention of learned counsel for the respondent and find no force in it because the petitioner is seeking eviction of the CR No.2157 of 2008 [6] respondent from the ground floor and demised shops consist of chaubara also, which is an integral part of the tenanted premises, as such, the bonafide need of the petitioner cannot be doubted, inasmuch as, it is case of the petitioner that he intends to start a business at the ground floor of the building owned by him and for that purpose, he has already constructed two rooms on the second floor for residential purposes....” Lastly, the present is not a case where some distant relation or other person has stepped in the witness box to depose. It is none else, but the attorney is the wife of the respondent-landlord. Eviction was sought on the ground that the landlord alongwith his family intended to migrate to India. Ardhangini has a special knowledge of the circumstances for which the demised premises is required. If not the wife who else can depose about the family needs. Better half has always the better knowledge. Thus, wife being attorney was well conversant with the facts and need of the landlord and, therefore, being attorney she was a competent witness. In the eviction petition itself, it has been specifically stated that ground floor is required for running the business. If the shops have been let out on the first floor, it cannot be said that the demised premises are not required. Hence, I find no merit in the present revision petition and the same is hereby dismissed. However, the petitioner-tenant is granted two months' time to vacate and hand over actual physical vacant possession of the demised premises to the respondent-landlord, subject to filing an undertaking to that effect before the Rent Controller within 10 days from the date of receipt of a certified copy of this order. ( KANWALJIT SINGH AHLUWALIA ) September 13, 2010. JUDGE RC