Civil Revision No.3251 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3251 of 2009 (O&M) Date of decision: July 13, 2009. Ram Gopal ...Petitioner(s) v. Babu Singh ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Arun Jain, Senior Advocate, with Shri Amit Jain, Advocate for the petitioner. ORDER Surya Kant, J. - (Oral): This revision petition is directed by the tenant against the ejectment order dated 9.12.2005 passed by the Rent Controller, Barnala, as well as the judgment dated 6.5.2009 of the Appellate Authority, Barnala, dismissing his appeal against the above stated eviction order. The eviction petition was filed by Sher Singh ( who died during the pendency of the eviction petition and is represented by his legal representative – Babu Singh s/o Sher Singh), alleging that the demised shop was rented out to the petitioner with effect from 15.5.1997 at the annual rent of Rs.3200/- and that the petitioner was liable to be evicted, inter-alia, on Civil Revision No.3251 of 2009 -: 2 :- the grounds that the:- (i) he has not paid the rent from 31.12.1997 onwards; and (ii) the shop in dispute is required by Surender Singh, grandson of the landlord, for his personal use and occupation in order to start business of readymade garments. The landlord asserted that he or his grandson are not in possession of any other shop within the limits of Municipal Committee, Barnala nor they have vacated such shop after enforcement of the East Punjab Urban Rent Restriction Act, 1949. The landlord further averred that his grandson has passed BA-II and was sitting idle from last about three years. The petitioner-tenant contested the eviction petition accusing the landlord of being habitual in filing ejectment petitions and that he had already paid the rent upto 30.12.1999 in the court of Rent Controller, Barnala. The petitioner also denied that Surender Singh is the grandson of the petitioner or that the disputed shop is required for the use and occupation of that grandson. It was further averred that there was another vacant shop available with the landlord in which his grandson could start business. The landlord appears to have died even before his statement could be recorded, therefore, his son, namely, Babu Singh appeared as PW3. The landlord's grandson, namely, son of Babu Singh, for whose necessity the shop was sought to be evicted, also appeared as PW2, besides Rajesh Kumar, Draftsman (PW1). The landlord also produced one Bhagat Singh (PW4) in rebuttal who tendered his affidavit Ex.AW4/A. The petitioner- tenant stepped into the witness box as RW1 and tendered his affidavit Ex.RW1/A as well as the certified copy of a judgment of this Court between Civil Revision No.3251 of 2009 -: 3 :- the parties (Ex.R3) and closed the evidence. The evidence on record reveals that there were two shops in the same building out of which shop measuring 11'x17' was occupied by the petitioner-tenant whereas another shop measuring 8'x17' was in possession of Babu Singh and his another son who are running the business of electrical appliances. In between the two shops, there is an 8 feet wide passage for going upstairs where the family of the landlord is living. It appears that before the Rent Controller the real contentious issue was as to whether or not there is a third vacant shop with the landlord where his grandson (Surender Singh s/o Babu Singh) could start his business. To resolve this controversy, the Rent Controller referred to the cross examination of the petitioner-tenant in extenso and observed as follows:- “... Respondent Ram Gopal when subjected to cross examination admitted as correct that Ex.P1 map on the file is correct of the total building of which this shop is part. He also admitted as correct that he is tenant of shop 17x11 shown red in colour in Ex.P1 and also admitted as correct that adjoining two shops of which he is tenant, there is other shop of 8x17 shown in blue colour which is shown in the map in possession of Sukhwinder Singh but added that all the sons of Babu Singh work and sit in the shop, but he added that he has seen the map. There is another shop adjoining to the shop which is shown in blue colour and that shop is shown in white colour. However, on this part a gate is shown installed and upstairs are Civil Revision No.3251 of 2009 -: 4 :- shown. Respondent Ram Gopal further subjected to cross examination admitted as correct that there is a gate of the shop which opens towards Bansawala Bazar. He also admitted as correct that there is a staircase in the shop shown in white colour which goes upstairs residence of the petitioner and width of staircase is 1-1/2 feet. He also admitted as correct that building is three storeyed. He further admitted as correct that door shown in shop in white colour goes to stair case and this goes to chaubara on this building in which applicant is residing. He also admitted as correct that there is no other passage except the door shown in shop which is being used for coming and going to the above chaubara in which they are residing. He also stated that Babu Singh has 3 sons namely Satwinder singh, Parminder Singh and Surinder Singh...” (emphasis applied) The Rent Controller thereafter concluded as follows:- “... Thus, correctness of site plan referred in the affidavit Ex.PA of PW1 Rajesh Kumar as Ex.P1 and in the cross examination of respondent as Ex.PA is not disputed by the respondent and the ground floor area of the building is divided into three portion i.e., one shop which is in possession of Sukhwinder Singh, grandson of deceased petitioner, another which is shown red in colour, which is in possession of respondent Ram Gopal and is demised shop and the third one shown in white colour which is Civil Revision No.3251 of 2009 -: 5 :- alleged as a shop, but it has common record in the cross examination of RW1 Ram Gopal as discussed above that same is passage for going upstairs portion of the building and there is a door at point D which goes to the staircase and there is no other passage except door D shown in white colour which is used by the applicant for going and coming to the upstairs portion of the building... “. The Rent Controller further held that the grandson of the landlord (since deceased) is not even graduate and it is proved that he is sitting idle and only one out of three grandsons was carrying on the business of sale of electrical goods, etc. The Rent Controller accordingly found that the need of the landlord is bona fide. The petitioner-tenant preferred an appeal, questioning the bona fide necessity of the landlord and placed heavy reliance upon the judgment (Ex.R1) passed by the Rent Controller, Barnala dismissing the landlord's eviction petition in one of the previous rounds of litigation. The Appellate Authority has elaborately dealt with the said contention and has repelled the same while dismissing the appeal. Three-fold contentions are raised on behalf of the petitioner. Firstly, it is urged that the order dated 22.4.2000 (Ex.R1) (a copy of which has been appended as Annexure P-1) dismissing the previous eviction petition, wherein one of the grounds of eviction was the personal necessity of the landlord, has not been correctly appreciated by the Appellate Authority. Reliance has also been placed upon inter se party judgment dated 4.1.1995 delivered by this court in Civil Revision No.14 of 1992 (placed on record as Annexure P-2) to contend that the landlord is a habitual Civil Revision No.3251 of 2009 -: 6 :- litigant and his plea of bona fide personal necessity has already been turned down by the courts. Secondly, it is contended that the Act permits a landlord to seek eviction of the tenant if the premises is required for his “own use and occupation” and that the need of a grandson does not fall within that ambit. Thirdly, the learned counsel contended that there is another shop available with the landlord where his grandson can start his business. Having heard learned counsel for the petitioner at some length and on perusal of the impugned judgments and the orders (Annexures P-1 and P-2), I do not find any merit in this revision petition. In order to test the third plea taken on behalf of the petitioner, namely, availability of another vacant shop to accommodate the landlord's grandson, the petitioner-tenant was directed on July 6, 2009 to file “a specific affidavit to the effect that the vacant shop is still available with the respondent-landlord”. In purported compliance thereto, the petitioner has filed an affidavit in which besides pleading res judicata in respect of the finding of fact recorded in the previous judgments, he has averred that:- “3. That it may be submitted that as per the site plan Ex.PA the frontage of the shop of the tenant petitioner is shown as 11 feet and that of the shop in possession of Babu Singh 8 feet. Besides the above two shops there is another area with an opening of 8 feet was available with the respondent-landlord. However, the landlord instead of putting a shutter, has put double door intentionally. Even if the allegation of the respondent-landlord that he is using this portion as passage is taken into consideration, even Civil Revision No.3251 of 2009 -: 7 :- then the area of this portion is substantial and was in use by then landlord and now by Babu Singh as Carpentry work.” (emphasis applied) It may, thus, be seen that the petitioner has impliedly admitted that the opening of 8 feet between the two shops is used as a passage. There is a concurrent finding of fact by the courts below that the subject passage is the only approach to enter the house or to go upstairs on first and second floors. It is obvious that the subject passage cannot be converted into a shop, as suggested by the petitioner, to carry on the business of sale of readymade garments. Adverting to the first plea that the landlord is a chronic litigant who has already lost eviction on the ground of personal necessity, suffice it to observe that per se, the principles of res-judicata is not attracted while seeking eviction of a tenant on the ground of personal bona fide need when such need is based upon changed circumstances which were non-existent and were not pleaded previous. Admittedly, the landlord never sought the petitioner's eviction for the personal necessity of his grandson Surender Singh nor there is any finding by any court that the said necessity lacked bona fide. The previous eviction petition was filed by the landlord on the ground that he required the premises for his own use and occupation and the same was dismissed after holding that as per the site-plan produced in that case, there were three shops and one of the shops was lying vacant which could be utilized by the landlord. Contrary to it, the evidence on record including the site plan which has been elaborately discussed by the Rent Controller, conclusively proves that there are two shops only out of which one is presently occupied by one of the son/grandson of the landlord, Civil Revision No.3251 of 2009 -: 8 :- whereas the other shop is in occupation of the petitioner-tenant. There is no third shop. It is, in fact, a passage. The order Annexure R-1 has, thus, no material bearing on the merits of the present case. Similarly, the previous decision dated 4.1.1995 passed by this court in CR No.14 of 1992 does not come to the rescue of the petitioner-tenant as the landlord's eviction petition was dismissed by this court on the basis of the then prevailing law, i.e., that eviction from a 'commercial premises' could not be sought on the ground of personal necessity. The Supreme Court has later on settled the controversy and it is not disputed by learned counsel for the petitioner also that a landlord is entitled to seek eviction of the tenant even from a commercial premises if the same is required by him for his personal use and occupation. The third plea taken by the petitioner that the landlord can seek eviction of a tenant from the premises only for his “own occupation”, as provided under Section 13(3)(a)(i) of the Act, is also wholly misconceived. In a catena of judgments, it has been held that the bona fide need of the 'family' of the landlord is also his own necessity and he is entitled to seek eviction of the tenant on that count. Sher Singh, original landlord, had died during the pendency of the eviction petition. His son, namely, Babu Singh was brought on record as his legal representative. Surender Singh for whose necessity the eviction of the petitioner-tenant has been sought, is grandson of Sher Singh and son of Babu Singh. It is well settled that events subsequent to the filing of the eviction petition can be brought on record and taken into consideration by the court. [Ref: Kedar Nath Agrawal (dead) & Anr. v. Dhanraji Devi (Dead) by LRs., (2004)8 SCC 76]. The evidence on record further suggests that the deceased Sher Singh and his family, including his son Babu Singh and grandson Surender Singh have Civil Revision No.3251 of 2009 -: 9 :- been living jointly on the first and second floors of the same premises. If the landlord along with his son and grandson is living together, the requirement of his family, including the grandsons, amounts bona fide need of the landlord on the basis of which he is entitled to seek eviction of the tenant. After the death of Sher Singh, his son Babu Singh has been pursuing the eviction petition on the same plea that the demised premises is required to start the business of readymade garments for his son Surender Singh. Since the petitioner-tenant has failed to prove that the family of the landlord has any other vacant premises in their possession and/or Surender Singh does not require the premises to start his business of readymade garments, the bona fide requirement, as pleaded and proved by the landlord, cannot be said to be a mere desire or pretext to seek the petitioner's eviction. No ground to interfere with the concurrent findings of fact returned by the courts below, is, therefore, made out. Dismissed. July 13, 2009. [ Surya Kant ] kadyan Judge