CIVIL REVISION NO.3365 OF 2001 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 29,2008 Beant Lal .....Petitioner VERSUS Radhey Sham ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. M. L. Sarin, Sr.Advocate with Mr. Hemant Sarin & Mr. Kabir Sarin, Advocates, for the petitioner. None for the respondent. **** RANJIT SINGH, J. The petitioner sought eviction of respondent, Radhey Sham, from the shop in question which is statedly a part of residential house No.B-V-61 and Shop No.B-V-68 (Shop No.388) located in the area West Bhatia Nagar, Yamuna Nagar. The ejectment of the respondent was sought on the ground that he is in arrears of rent with effect from 1.6.1996 to 30.9.1996 and that the premises is needed for bonafide use and occupation by the petitioner. It is pleaded that the petitioner was to retire w.e.f. 31.1.1997 and as such, wanted to do his business of hardware in the said shop. The shop, though part of residential portion, has been converted and as such, shall be considered as a part of residential CIVIL REVISION NO.3365 OF 2001 :{ 2 }: house. The respondent contested the plea raised by the petitioner. As per the respondent, father of the petitioner was the owner of the shop, who had rented it out to him on 30.1.1973. The rate of rent then was Rs.335/- per month inclusive of house tax. Gurdwayamal died in the year 1991-92 and bequeath this property in favour of his two sons, namely, Ravel Singh and Haveli Ram, debarring the other heirs including the petitioner. It is accordingly pleaded that the petitioner is authorised to receive rent but not the owner or landlord of the said property. It is also stated that the shop in question is not a part of the residential house and it is behind the shop in the office-cum-shop occupied by Avinash Bhatia. The case further is that this shop has no link with the residential house and is a part of 7 shops situated on southern side abutting the main road which is a shopping centre. As per the respondent, the rent was tendered in the Court with interest and costs and they are not liable to pay the house tax. The requirement of the petitioner for having this shop for his bonafide need is also denied. The right of the petitioner to seek eviction from the non-residential premises is also disputed. The case of the respondent further is that the petitioner has sufficient accommodation and has already sold four shops situated on the Workshop road and, thus, his need is not genuine or bonafide. It is accordingly prayed that his petition be dismissed. The parties, thus, went to trial on the following issues:- “1. Whether the respondent is liable to be evicted from the shop in question for non-payment of rent? OPA CIVIL REVISION NO.3365 OF 2001 :{ 3 }: 2. Whether the petitioner made the shop for personal use? OPA 3. Whether the petitioner is not the landlord of the shop? If so, its effect? OPR 4. Relief.” The issue regarding non-payment of rent was decided against the petitioner as the rent was tendered by the respondent. While deciding the issue relating to the personal use of the shop by the petitioner, the Rent Controller also went to the question whether the landlord can seek ejectment of a tenant from non-residential building or not. Relying upon the judgment of this Court, the Rent Controller concluded that the ground of bonafide necessity is available to the landlord for seeking ejectment of the tenant from the non-residential building as well. The Rent Controller thereafter found that the petitioner's need for the shop was bonafide as he was retiring on 31.1.1997 but held against him on the ground that condition under Section 13(3)(a) Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, “the Act”) relating to the requirement of law that the landlord was not occupying another building in the Urban Area concerned and had not vacated building without sufficient cause was not satisfied. It was noticed that the petitioner had himself admitted in his cross-examination that he alonwgith one Iqbal had purchased a plot measuring 150 Sq.Yards and constructed 3 shops in the year 1982. One shop out of which was sold in the year 1991 and other two in the year 1995. These shops were situated in the Municipal Area City Yamunanagar and hence, it was found that the CIVIL REVISION NO.3365 OF 2001 :{ 4 }: petitioner did not satisfy the condition imposed by Section 13(3)(a) of the Act. Accordingly, his prayer for eviction of the respondent was declined. The plea of the respondent, whereby he had challenged the ownership of the petitioner, however, was declined. The petitioner as well as respondent both impugned the judgment passed by the Rent Controller by filing appeal and cross appeal but both were dismissed by the Appellate Authority, finding no infirmity, illegality or irregularity in the view taken by the Rent Controller. The petitioner has, thus, filed the present revision petition. The Appellate Authority has up-held the view of the Rent Controller in regard to right of the petitioner to seek eviction of the tenant from non-residential building. The finding returned by the Rent Controller that the personal necessity of the petitioner otherwise stood established has also not been disturbed. The view of the Rent Controller that requirement of Section 13(3)(a) of the Act, relating to having not vacated any other similar building in the urban area etc. has again been approved and up-held. This aspect of the finding has been seriously assailed by Mr.M.L.Sarin, learned Senior counsel appearing for the petitioner. At the time of hearing of the revision petition, no one appeared on behalf of the respondent, though earlier an Advocate, had appeared for him on 22.11.2006. Subsequently, the case was heard on 14.2.2008, 26.2.2008, 4.3.2008 and 31.3.2008 but no one appeared for the respondent. Even today, no one has come to represent the respondent. Mr.Sarin initially submitted that the provisions of Section 13(3)(a) of the Act being applicable to residential building, the CIVIL REVISION NO.3365 OF 2001 :{ 5 }: requirement laid down in the Section regarding the landlord having not vacated any building without sufficient cause in the urban area would not be attracted in the present case. He would refer to the provisions of Section 13(3)(A), which applies to non-residential buildings and does not contain any such requirement. Subsequently, however, he gave up this line of submission and as such, I am not called upon to answer the same. Mr.Sarin would basically contend that the need of the petitioner was found to be bonafide both by the Rent Controller as well as by the Appellate Authority but he was non-suited only on the ground that the remaining requirement of the Section with regard to vacation of any building in the urban area is not justified. He would say that the building which is alleged to have been vacated by the petitioner was not that of the petitioner alone but was jointly owned by him alongwith other co-sharers. He accordingly contends that sale of such a building or vacation thereof can not be held against the petitioner. The counsel would seek support from the view expressed in the case of Lingala Kondala Rao Vs. Vootukuri Narayana Rao, JT 2002 (10) SC 117 in this regard. The question which was considered in this case related to the dis-entitlement of a landlord to seek eviction on the ground that he is member of a joint Hindu family owning commercial property and running family business therefrom. It was considered in this case if the respondent is entitled to seek eviction of his tenant on the ground of bonafide personal requirement when he is in joint ownership of a family property and if it would come in the way to seek eviction of the tenant from his exclusive property. CIVIL REVISION NO.3365 OF 2001 :{ 6 }: It is held that a non-residential building owned by a joint Hindu family and its occupation would not be included within the meaning of expression “which is his own or to the possession of which he is entitled”. It is further held that the judicial possession of the respondent in a joint Family property does not dis-entitle him from seeking recovery of the possession from a tenant of a non-residential building exclusively owned by him. In Boorgu Jagadeshwaraiah & Sons Vs. Pushpa Trading Co., JT 1998 (6) SC 628, the Hon'ble Supreme court has held that the aspect of quality, size and suitability of the building can not be totally put out of consideration else the purpose of the Act would be frustrated. Reference is also made to Julieta Antonieta Tarcato Vs. Suleiman Ismail, 2007 (1) RCR 265. In this case also, the supreme Court was dealing with bonafide requirement of a co-owner landlady who was living with her brother in a house jointly owned by both of them. Landlady wanted to shift to a flat owned by her. In this background, her need was held to be bonafide. In this regard only, Mr.Sarin has referred to the observations made in the case of Charanji Lal Vs. Dalip Singh, 1994 (1) RCR 289. In this case, landlord was seeking ejectment of the tenant on the ground of bonafide requirement of his son. It was contended that son of the landlord had vacated a building in the Urban Area concerned 5/6 years earlier and thus, the landlord was not entitled to eject the tenant. This Hon'ble Court observed that the relevant Section refers to a son meaning thereby a son who is married. Finding that there was no evidence that the son was married when he vacated the accommodation on the earlier occasion, the CIVIL REVISION NO.3365 OF 2001 :{ 7 }: right of the landlord to seek ejectment was upheld. One of the question that would require to be decided in this case is whether the petitioner would be entitled to seek ejectment of the respondent inspite of the fact that he had, being a co-owner of other shops, sold those or had vacated some shops earlier? Mr.Sarin would refer to Exhibits P-10 and P-11 to say that the sale deeds would show that the property was jointly owned by the petitioner with other co-owners. Another fact of significance which the counsel would point out is that the petitioner retired from Railway Workshop, Jagadhri, on 31.1.1997. It is on record that the shops jointly owned by the petitioner were sold in the year 1990-91 and in the year 1995. Thus, the said sale was prior to the retirement of the petitioner. Learned counsel is justified in submitting that the petitioner could very well have thought of selling the shops jointly owned by him as he was unable to do any business or use these shops for his personal occupation as he was then in the employment of the Railway. Reference is also made to the regulations of the Railways to say that an employee working in the Railways can not undertake any business without prior permission from the concerned competent authority. These shops were not exclusively owned by the petitioner for him to use for the purposes as considered essential by him according to his wishes. The petitioner retired in the year 1997 and, thus, had sought ejectment of the respondent with the aim to use the shop for his own occupation. The personal necessity of the petitioner is well recognised by both the Courts i.e. the Rent Controller and the Appellate Authority. The consideration weighed by CIVIL REVISION NO.3365 OF 2001 :{ 8 }: the Courts in non-suiting the petitioner would not sound justified under law. The selling of the 3 shops as alleged can not be held against the petitioner to say that he has not satisfied the requirement of not vacating such building without sufficient cause after the commencement of Act of 1949 in the said Urban Area. The sale of these shops would not lead to any disadvantage on this ground against the petitioner. The view taken by the Rent Controller as well as by the Appellate Authority as such, can not be sustained. I can seek support from the ratio of law laid down in Lingala Kondala Rao's case (supra) to say that a property jointly owned like Joint Hindu Family property if vacated would not stand in the way of a landlord to seek eviction from a building exclusively owned by such landlord. Similar ratio can also be culled out from the case of Julieta Antonieta Tarcato (supra) as the right of the landlady who was living with his brother in a property jointly owned was held entitled to seek eviction of a tenant from a flat which she wanted to occupy exclusively. The present revision petition is accordingly allowed. The respondent is directed to hand over the vacant possession of the demised premises within a period of three months from the date of the order. The respondent shall deposit the arrears of rent as are due till the date he vacates the demised premises. No order as to costs. May 29 ,2008 ( RANJIT SINGH ) khurmi JUDGE