CR No. 6012 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CR No. 6012 of 2006 (O&M) Date of decision : 8.9.2011 ... Anil Kumar and another ................Petitioners vs. Jai Pal Puri through LRs .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Gorakh Nath, Advocate for the petitioners Sh. Rakesh Nehra, Advocate for the respondent. ... K.C. Puri, J. This is a revision petition against the judgment dated 25.8.2006 passed by Sh. Kuldeep Jain, Appellate Authority, Kurukshetra, vide which the appeal preferred by the tenants against the judgment dated 6.12.2005 passed by Mrs. Vivek Bharti, Rent Controller, Kurukshetra, was dismissed. The landlord filed eviction petition with the averments that earlier Om Parkash father of respondents, was tenant and after his death, present petitioners are in possession of the shop as tenants. The petitioners have not paid the rent since 1.8.2000 at the rate of Rs.100/- per month plus house tax and they are liable to be ejected on CR No. 6012 of 2006 -2- the ground of non-payment of rent. The landlord has also pleaded that there is bona fide personal requirement of the premises for the use of his three un-employed sons, namely, Devender Puri, Ravinder Puri and Raman Puri, who are matriculate and intend to do business. They intend to start the vegetable shop for which they have sufficient money. The landlord and his sons are not occupying any other shop in the urban area and have not vacated the building without sufficient cause after the commencement of 1949 Act. The landlord has further pleaded that earlier on the ground of bona fide necessity eviction petition was filed which was dismissed on technical grounds, against which the revision petition is pending in the High Court. Now, the personal necessity has increased as his other two sons are also un- employed. The petitioner alongwith his three sons intends to start joint business of vegetable shop. Petitioner requested the tenants to hand over the vacant possession of the shop in question to him, but they refused. Hence the petition. Notice of the petition was given to the respondents, who filed the joint written statement raising number of preliminary objections with regard to maintainability, locus standi, abuse of process of Court, concealment of material facts. It is also pleaded that the present petition operates as res judicata as earlier petition on the ground of personal necessity has been dismissed. Replication was not filed. From the pleadings of the parties, following issues were framed:- 1. Whether the tender is short and invalid and respondent is CR No. 6012 of 2006 -3- liable to be evicted from the demised premises on this ground? OPP. 2. Whether the petitioner requires the demised premises for his personal use for use of his sons and respondent is liable to be evicted from the same on this ground? OPD 3. Whether petition is not maintainable in the present form?OPP 4. Whether petition has no locus standi to file and maintain the petition? OPD 5. Whether petitioner has concealed true and material facts from the Court, if so its effect? OPD 6. Whether the petition is barred under the provisions of res judicata? OPD 7. Relief. The landlord appeared himself as PW-1 and also examined PW-2 Ravinder Puri and tendered certain documents. In rebuttal, the respondents examined Anil Kumar as RW-1 and closed their evidence. Learned Rent Controller after appraisal of the evidence held issue No.1 against the petitioner. The Rent Controller returned the finding that rent has been duly tendered. Issue No.2 regarding personal necessity was decided in favour of the landlord and it was held that landlord required the premises for his personal use and use of his sons. Regarding previous litigation – rent petition, it was held that the same was decided on technical grounds and moreover the subsequent event has been taken into consideration that bona fide CR No. 6012 of 2006 -4- personal necessity of two other sons has also arisen and consequently, the eviction petition was accepted on the ground of personal necessity of the landlord and his sons. Dissatisfied with the order dated 6.12.2005 passed by Mr. Vivek Bharti, Rent Controller, Kurukshetra, the tenants filed appeal before the Appellate Authority under the Rent Act. The Appellate Authority dismissed the appeal holding that premises are required for bona fide personal necessity by the landlord and his sons and dismissed the appeal vide judgment dated 25.8.2006. Still feeling dissatisfied with the order dated 25.8.2006 passed by Sh. Kuldeep Jain, Appellate Authority, Kurukshetra and the order dated 6.12.2005 passed by Mr. Vivek Bharti, Rent Controller, Kurukshetra, the present revision petition has been filed. Learned counsel for the revisionists has contended that the eviction petition on the ground of bona fide personal necessity has already been dismissed by the Rent Controller. The landlord preferred the appeal against that judgment, which was also dismissed. The revision petition is pending before this Court. So, the present petition is hit by principle of res judicata. It is further submitted that findings of both the Courts below that previous judgment does not operate as res judicata are wrong and the present revision petition is liable to be accepted on the ground of res judicata, also. Learned counsel for the respondent has supported the judgment/order of both the Courts below. I have carefully considered the submissions made by counsel for both the sides and have also gone through the record of the case. CR No. 6012 of 2006 -5- There are two crucial points for determination in the present lis:- 1. Whether the previous eviction petition operates as res judicata? 2. Whether the concurrent finding of fact recorded by both the Courts below that premises are required for the purpose of bona fide necessity of the petitioner and his sons, is perverse? So far as the submission made by learned counsel for the revisionists to the effect that previous judgment operates as res judicata, is concerned, that submission is without any substance. From the perusal of the file, it is revealed that in the earlier eviction petition, the landlord has pleaded that premises are required for bona fide personal necessity of the petitioner and his son Devender Puri. Now, the ground of bona fide personal necessity is in respect of the petitioner, his son Devinder Puri and other two sons Ravinder Puri and Raman Puri. From the perusal of the earlier judgment of the Appellate Authority, it is revealed that the Appellate Authority has given a categoric finding that there is a bona fide necessity of the petitioner and his son Devender Puri in respect of shop in question, but the eviction petition was dismissed on technical ground that two basic ingredients of bona fide necessity have not been pleaded. It was held that the landlord has not pleaded that he has no other accommodation nor has vacated any other premises without any sufficient cause after the enforcement of the Rent Act. Both the Courts below have rightly held that with the passage of time, since CR No. 6012 of 2006 -6- the other two sons Ravinder Puri and Raman Puri also require premises for running a vegetable shop and as such the previous order does not operate as res judicata. The revision petition against the said order is pending for today. So, in these circumstances, the finding of both the Courts below that present petition does not operate as res judicata does not call for any interference. Now, reverting to the point whether any case is made out for interference in the finding of both the Courts below that petitioner needs the premises for his bona fide necessity and necessity of his sons, is concerned, in my view, that concurrent finding of fact calls for no interference. In the earlier petition, the bona fide necessity of the petitioner and his son Devender Puri was pleaded. Both the Courts below returned the finding that the premises in dispute are required by the petitioner and his son Devender Puri for running the business of vegetable shop. Now, the necessity has become more grave as the other two un-employed sons have also joined the list of the contender for running the business of vegetable shop. The Hon'ble Apex Court in the authority reported as Kedar Nath Agrawal (Dead) vs. Dhanraji Devi (Dead) by LRs 2004 (9) JT 113, has held that subsequent events during the pendency of the petition should be considered by the Court. So, in view of the above discussion, the revision petition is without any merit and the same stands dismissed. The petitioner-tenants are directed to hand over the vacant possession of the demised premises to the landlord within three months from today. They shall pay the arrears of rent within 15 days CR No. 6012 of 2006 -7- from today and shall also continue to pay the rent for the subsequent months before 10th of every month. A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 8.9.2011 Judge chugh