IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.387 of 2008 Date of decision : 28.7.2010 Dr.Kamal Kumar Jain … Petitioner Versus Smt.Krishana Rani and others …Respondent Coram: Hon’ble Mr.Justice Vinod K.Sharma Present: Mrs.Sushma Chopra, Advocate for the petitioner. Mr.V.G.Dogra, Advocate for respondents No.2 to 4. Vinod K.Sharma, J. Petitioner-landlord, by this revision petition has challenged the order of the appellate authority under the East Punjab Urban Rent Restriction Act, dismissing the petition filed by the petitioner-landlord. The petitioner sought eviction of the respondent-tenant, on the ground of arrears of rent, and a bona fide requirement for himself and his son. The case set up in the petition was that on 23.4.1973, the demised shop in dispute was rented out at the monthly rent of Rs.50/- which was gradually increased to Rs.100/-. It was the case of the petitioner-landlord, that the tenant had not paid rent since April, 1997 besides the house tax at the rate of Rs.180 per annum, therefore, he was liable to be evicted. The second ground of eviction, was that the shop in dispute, was required for bonafide need and occupation by the petitioner-landlord and his son. It was pleaded in the rent petition that landlord was not in occupation of any other non-residential building, in the area of Shahkot nor he had vacated any other building after commencement of the Act. Civil Revision No.387 of 2008 The main building shown in the site plan (Annexure A), was constructed in the year 1972, which belonged to the joint Hindu family. The portion shown in the green colour was constructed for the residential purpose, and was in use as such on the date of filing of the petition, where the petitioner-landlord along with family and Dr.Kamal Kumar Jain and grand children were jointly residing. Petitioner-landlord is a medical practitioner and constructed the portion shown in blue colour in the site plan, for use as a clinic under the name of “Jain Hospital”. The petitioner started his practice, about 55 years ago in Shahkot. The portion shown in yellow colour, was constructed as shop, to get rental income to meet the family expenses as his son Dr.Kamal Kumar Jain, was a student in the year 1972. The case of the petitioner was, that at that time the building was not required by the petitioner-landlord. His son Dr.Kamal Kumar Jain got MMBS Degree in the year 1981, and diploma in Child Health in the year 1984 and joined the petitioner in medical practice in the year 1985. The case of the landlord was that now he intended to expand his medical practice by opening a hospital alongwith his son, therefore, the shop in dispute was bona fide required for this purpose. Dr.Kamal Kumar Jain was a Child Specialist, and for providing modern treatment, the hospital was required to be expanded for modernization by installing machines i.e. for X-ray plan, Ultra Sound, Scanning, Clinic Laboratory, E.C.G., Nebulizer Unit, Humidifying Chambers, Operation Theaters, New natal Ward, Children ward etc. 2 Civil Revision No.387 of 2008 The accommodation in possession of the petitioner was said to be insufficient. Dr.Kamal Kumar Jain being member of the H.U.F. and being the son of the petitioner-landlord, had the right to use the shop and the building for medical practice. The case of the petitioner was that he was to look after the petitioner in his old age. Shop No.7 was vacated by Shri Des Raj, about 10 years ago and the petitioner was using the same for storing the medicines etc. As noticed above, the petitioner sought eviction of the respondent-tenant, on the ground of personal necessity on the facts pleaded hereinabove. The petition was contested by the respondent-tenant, by raising preliminary objections, that shop was situated in the dense locality, on the main road leading from Moga to Jalandhar. As the rent of premises had increased, the petition was filed to enhance the rent with mala fide intention. The plea of bona fide requirement was denied. It was also pleaded, that petitioner was estopped by his own act and conduct, in seeking eviction, as the petitioner originally constructed two shops including the disputed shop. Thereafter, four shops were converted into hospital, and two more shops were under the lock and key of the landlord. Out of these, two shops, one was being used as garage for parking the car, and on the eastern side of these shops, there was a vacant plot of one kanal adjoining the shop, in addition to one hall. In addition to property mentioned, the petitioner also owns five marla plot near the property where his son had constructed four 3 Civil Revision No.387 of 2008 shops. Some portion of the land was still lying vacant. Four shops constructed by the son of the petitioner were also vacant. It was the case of the tenant, that in addition, petitioner owns seven acres of land in the revenue estate of Saidpur Jhiri, which was now part of Shahkot. It is at a distance of ½ Km. only from this shop. Plea of equity was also raised. On merit, the stand taken was that the rent along with interest and house tax and interest was tendered, the averments with regard to building being joint Hindu Family property, were denied. Similarly, the respondent denied as to whether petitioner had three daughters. The case of the respondent was that petitioner was, running a hospital in the portion in blue colour of the site plan. Dr.Kamal Kumar Jain was said to be neither radiologist, pathologist, cardiologist, nor specialist in ultra scan, therefore, question of installation of any such machine did not arise. It was pleaded that even otherwise, there was sufficient accommodation with the petitioner to install all these machines. It was prayed that petition be dismissed. In the rejoinder, the averments made in the written statement were denied and those in the petition were reiterated. On the pleadings of the parties, the learned Rent Controller framed the following issues:- “1. Whether the rent tendered in the court is illegal and short? (OPA) 2. Whether the applicant requires the shop in dispute bonafide for his own use? (OPA) 3. Whether the petition has no locus standi to file the present application? (OPR) 4. Whether the petitioner is estopped to file the present application by his act and conduct? (OPR) 5. Relief.” 4 Civil Revision No.387 of 2008 In support of the case, the petitioner examined Dr.Kamal Kumar Jain, AW1, Tarlok Singh Roopra-AW2 and closed his evidence. The respondent in evidence examined Shri Vinod Kumar and tendered documents by way of documentary evidence and closed his evidence. During the pendency of the petition, the petitioner-Manohar Lal died and his legal representative Dr.Kamal Kumar Jain, was impleaded as his legal representative. The respondent-Hans Raj also died, and his LRs i.e. Vinod Kumar Uppal, Parmodh Kumar Uppal and Sunil Kumar Uppal and Smt. Krishana Rani were brought on record. In view of the tender made by the respondent, on the first date of hearing, Issue No.1 was decided against the petitioner, and in favour of the respondent-defendant. Issues No.2, 3 and 4 were taken up together. The learned Rent Controller, on appreciation of evidence and also keeping in view the fact that the landlord was the best judge of his requirement and suggestions of alternative accommodation by the tenant could not affect the right of the landlord to evict the tenant, decided the issue in favour of the petitioner and ordered eviction of the respondent from the shop in dispute. Respondent-tenant preferred appeal against the judgment of the learned Rent Controller. The learned appellate authority after discussing the law with regard to eviction on the ground of personal necessity reversed the finding of the learned Rent Controller by recording as under:- “The first question which arises is why he has not completed four shops which are situated just 30 to 35” from the main structure, where his Hospital is situated alongwith his residence as well as 8-10 shops including 3 5 Civil Revision No.387 of 2008 shops which he has converted into a Hall. Why he cannot install the above mentioned Machine in all these shops. There is no any explanation. He has not even disclosed those four shops in his site plan, where as the respondent has shown four shops in the site plan Ex.R2. The correctness of the sit plan Ex.R2 has not been challenged. These four shops alongwith the open space are just near to his shops on the main street where his main building is situated. Tarlok Singh (AW2) who has come to support him also admits that these four shops have not been completed, although linter has been placed there. He also does not know whether the floor of the shops has been done or not. He also admits as correct that Dr.K.K.Jain has never admitted any indoor patient in the Hospital and whenever serious patent visits, Dr.K.K. Jain after first aid refers the patient to a big institution. Dr.K.K.Jain is doing practice since when he started practice at Shahkot and this practice is in vogue from the very inception. There is Hall behind the medical Hall as per version of this witness and at present in the Hospital, there are two big halls and adjoining these Halls, vacant area is lying. That vacant area if of the width of 3 shops. He also does not deny the suggestion put to him that Dr.K.K.Jain parks his care in one of the shops in his possession. The shops of Hans Raj, respodnent Baldev Singh, Gurcharan Singh are separated by the path from the Hospital building. So on what analogy, he says that he requires the demised premises for expending his Hospital. Over and above the Hospital, three shops are in possession of Kamal Jain and in one of the shop he throws waste medical store. From the statement of this witness, it has come out that one shop is being used for parking car of the petitioner and in the other shop, waste medical material is being throw. If Dr.Kamal Jain was really interest in the installation of so many machines about which he ahs got no knowledge and have separate three shops as well as four incomplete shops, which can be completed at any time, he likes, can be installed there. This witness also goes not deny that the rate of rent of the shop in dispute as well as other shops is not less than Rs.1000/- per month, which goes to prove the assertion of the respondent that actually Dr.Kamal Jain is interested in enhancing the rent, otherwise, demised shops is not bonafide required by him. 10. As stated above, there is no dispute that the requirement of the premises is to be looked from the point of views of the landlord. He cannot be dictated the terms of constructing the building at point ‘A’ or at point ‘B’ but at the same time, he has to convince the court that his requirement is bonafide. From the evidence which has come on record, it is an admitted fact that out of the total 11 shops which were constructed alongwith the building, three have been attached with the Hall, which is being used as Hospital. 6 Civil Revision No.387 of 2008 Other four shops are located across the passage. A plot of 7 marlas is situated alongwith the main line where three shops are located, just 35’ from the main building. These four incomplete shops behind which there is vacant space which is equal to the width of the shops Doctor K.K.Jain himself is only M.B.B.S. He wants to install so many machines about which he has got not knowledge. From the very beginning of 1985, he has been referring the patients to the specialist Hospitals. Civil Hospital at Shahkot is three storey building as per his own admission. We can safely say that there must be a specialist in the Hospital. 11. Looking from any angle, it cannot be said that Dr.K.K.Jain requires the demised shop for his bona fide requirement. He has not explained as to what type of Hospital he is going to construct. If a person wants to expand his business, he is required to give the details as to how the construction is going to be made. Some site plan is required to be prepared and further it has got, to be sanctioned from the Municipal Committee. Simply by saying that he wants the demised premises along with other shops for expending his Hospital is not enough. It is just mere desire not based on any convincing documentary evidence on the record. Accordingly, I hold that the petitioner does not require the demised premises for his bonafide requirement and reverse the findings on the issue and decided the same in favour of the respondent and against the petitioner.” Ms.Sushma Chopra, counsel appearing on behalf of the petitioner has challenged the judgment of the appellate authority by contending that it was not open to the appellate authority to reverse the finding for personal necessity for want of pleading qua four shops which were situated near the site in dispute, and for the reason that the landlord had converted three shops into the hall. Contention of learned counsel for the petitioner, was that it was not for the appellate authority, to direct the landlord as to how he was to deal with the property owned by him, nor it was for learned appellate authority to see as to how the practice was to run by the petitioner, as it is for the landlord to see his requirement. In case, the landlord is able to prove, that the building was required for his own use 7 Civil Revision No.387 of 2008 and occupation then it is not for the tenant to dictate as how he was to use his remaining property. Learned counsel for the petitioner also contended that it was not for the appellate authority to reject the bona fide requirement on the ground that a specialist was required to run the hospital. The contention of learned counsel for the petitioner was that it was landlord to see, as to how he was to run his hospital. It was further the contention of learned counsel for the petitioner, that it was not for the appellate authority, to reject the plea of bona fide need, merely for want details of the hospital and the site plan required for hospital. There is force in the contentions raised by the learned counsel for the petitioner. It is a well settled law, that it is for the landlord to decide, as to how to use his property. The only ground to be proved for personal necessity is that, the need is bona fide and not a mere desire. It was not for the Rent Controller or the appellate authority to dictate as to how the landlord should use his remaining property. On consideration, I find no ground to differ with the judgment passed by the learned appellate authority for the reason, that in order to succeed on the ground of eviction for personal use and occupation, it was necessary for the landlord to plead and prove that the landlord required the premises for his own use and, that he was not occupying any other building in the urban area concerned for the purpose of his business, and that he has not vacated such a building or vacant land without sufficient cause after the commencement of the Act, in the 8 Civil Revision No.387 of 2008 Urban area concerned. The pleadings, in this regard by the petitioner read as under:- “(ii) That the applicant requires the shop in question bona fide for his own used. He has not occupying in the urban area of Shahkot for the purpose of his business any other such non-residential building and has not vacated such non-residential building without sufficient cause after the commencement of the Act of 1949 in the urban area of Shahkot. The main building shown in the site plan attached as Annexure ‘A’ was constructed by the applicant in the year 1972. The said building is Joint Hindu Family building. The portion shown in green colour in the said plan was constructed for residential purpose. Dr.M.L.Jain (since deceased) and now represented by his son, Dr.Kamal Jain was medical practitioner. He constructed the portion shown in the blue colour in the plan Annexure-‘A’ for using as medical clinic. Now known as Jain Hospital Dr.M.L.Jain is a medical petitioner in Shahkot. The portion shown in yellow colour in the site plan was constructed for residential purpose. The said shops were constructed with a view to achieve the rented income further to run his family expenses smoothly. The rental income from the said shops was a great financial help to Dr.M.L.Jain to meet his family expenses. Dr.Kamal Kumar Jain son of the late applicant was student in the year 1972 when the main building was constructed such the portion shown yellow was not needed by the applicant or his son.” The reading of the pleadings would show that the petitioner did plead the ingredients of Section 12(3) (a) & (b) of the Act. However, in the defence, the respondents were able to prove that the petitioner originally constructed two shops including disputed shop. Thereafter, four shops were converted into the hospital and there were two more shops under lock and key of the landlord. Out of these two shops, one was used as garage for parking the car, whereas the other one was not in use, and further on the eastern side of the site, there was a vacant plot of one kanal, and one hall. 9 Civil Revision No.387 of 2008 In addition thereto, petitioner also owned five marlas plot near the property, where his son had constructed four shops leaving behind some more land which were lying vacant. Four shops constructed by the son of the petitioner, were also lying vacant. The other property disclosed by the tenant to be owned by the petitioner-landlord is not relevant for decision of this revision. It would be seen that a deliberate attempt was made by the petitioner to conceal the property in his occupation. In the cross-examination, the petitioner admitted that he was owner of four shops before the institution of the present petition, and was unable to show as to why these four shops were kept incomplete, though the case set up by the petitioner, was that he wanted to demolish the shop for the purpose of construction of a hospital. It stands proved that petitioner was guilty of concealment of necessary and relevant facts in the petition, which disentitle the petitioner to seek eviction on the ground of personal necessity. This view finds support from the judgment of Hon’ble Delhi High Court in case of OP.Gupta Vs. R.K.Sharma, 2001(2) R.C.R.(Rent) 240, wherein the Hon’ble Delhi High Court pleased to lay down as under:- “The petitioner never disclosed that he is one of the co-owners of the Karol Bagh property. According to him, his father was the owner and after his death his mother became the owner. The petitioner did not disclose that his mother had passed away before he had filed the eviction petition and, therefore, the petitioner was one of the co-owners of the Karol Bagh property. Under these circumstances, the petitioner was recalled for further cross- examination. 10 Civil Revision No.387 of 2008 For the first time on 3rd August, 1994, the petitioner admitted that he is a co-owner of the Karol Bagh property. In view of the serious concealment of necessary and relevant facts mentioned above, the learned Additional Rent Controller was right in dismissing the eviction petition.” As the petitioner is guilty of concealment of material facts, his petition for eviction is liable to be dismissed on this ground alone. No ground is therefore, made out to interfere with the judgment passed by the learned appellate authority. Dismissed. No costs. ( Vinod K.Sharma ) Judge 28.07.2010 sd 11