Civil Revision No.2826 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2826 of 2009 Date of Decision:19.08.2011 M/s Parnav Vikas India Ltd. ....petitioner Versus M/s Radhika Woolen & Silk Mills Pvt.Ltd. & anr. .....respondents Civil Revision No.2824 of 2009 Date of Decision:19.08.2011 M/s Vikem Metal Kat Pvt.Ltd. ....petitioner Versus M/s Radhika Woolen & Silk Mills Pvt.Ltd. & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 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 judgement should be reported in the Digest? Present: Mr.Arun Palli, Senior Advocate with Mr.Hemant Bassi, Advocate for the petitioner Mr.Lokesh Sinhal, Advocate for the respondents *** RAKESH KUMAR GARG, J. This judgement shall dispose of two Civil Revisions i.e.Civil Revision No.2826 of 2009 and Civil Revision No.2824 of 2009 as similar questions of law on similar facts have been raised by the tenant-petitioner, in these civil revisions against the same landlords. Respondents filed petition under Section 13 of Haryana Urban(Control of Rent & Eviction) Act, 1973 (in short 'the Act') against the Civil Revision No.2826 of 2009 2 petitioners for their eviction from the demised premises pleading that the respondent was owner of the factory premises bearing Plot No.48, Sector 27-A, Faridabad. Out of the said factory premises, a shed measuring 8575 sq.feet shown in yellow colour was given on licence/lease to M/s Parnav Vikas India Ltd.(i.e.petitioner in Civil Revision No.2826 of 2009) on payment of licence fee/lease money of ` 9240/- per month for a period of 11 months vide lease deed dated 15.07.1996 and another portion measuring 4800 sq.feet shown in green colour was let out to M/s Vikem Metal Kat Pvt.Ltd.(i.e.petitioner in Civil Revision No.2824 of 2009) on payment of licence fee/lease money of ` 3680/- per month vide lease deed dated 15.07.1996. Respondent had earlier filed civil suits against the petitioners claiming them to be licensee in the aforesaid premises but the suits were dismissed and the petitioners were held to be tenants in possession of the demised premises. It was further pleaded that the petitioners in collusion with each other and without permission of the respondent had made alterations in the structure and dismantled a portion of structure and wall and further encroached upon the area of common lawn and later on raised illegal and unauthorised structure in the form of security office and room without prior permission and knowledge of the respondent over an area of 11'x 10' and 22' x 12.8' in front of premises over the common lawn along with the boundary wall. In this regard, a show cause notice dated 17.08.2002 was issued by the Municipal Corporation, Faridabad. Thus, the petitioners had committed such acts which have impaired the material value and utility of tenanted premises. It was further pleaded that on 01.03.2004 petitioners, in collusion with each other, illegally and without consent of the landlord removed the intervening lawn XY and YZ of the two sheds and after removal of the said wall, raised 10 brick pillars P1 to P10 along with partition of wooden ply and thus had made material alterations which has impaired the value and utility of the Civil Revision No.2826 of 2009 3 tenanted premises, as by this act of petitioners two separate and distinct tenanted premises were converted into one premises. It was further alleged that respondent was tenant of a portion under the landlordship and ownership of M/s R.McDill and Company Pvt.Ltd.which was pressing hard to get the premises vacated. Thus, the respondents required the premises in dispute to continue its business and their own occupation to run their business. Respondents were also dumping waste material over the common lawn common passage and vacant premises of the respondent and neighbours and this act of petitioners was effecting the physical heath of neighbours. Petitioners were creating nuisance to the occupants of the buildings and adjoining areas. Thus, on these grounds, respondents sought ejectment of petitioners from the premises in dispute. Petitioner in Civil revision No.2826 of 2009 filed written statement raising various preliminary objections. On merits, it was admitted that the premises in dispute were let out to the petitioners prior to the year 1996 by the respondent and the petitioners were paying rent to the respondent, regularly. Petitioners denied that they had altered the structure and dismantled the portion of structure wall of the tenanted premises or had encroached upon any lawn area and had raised illegal and unauthorised structure in the form of security office and room without permission and knowledge of the respondents. It was further pleaded that petitioner had not committed any act, which is likely to impair the value and utility of the tenanted premises. It was further denied that the wall XY and YZ were removed by the petitioner in collusion with the petitioner in the other civil revision or any pillar along with partition of plywood were raised. It was further denied that petitioner had sub-let the premises to the petitioner in the other revision petition without consent of the respondent. It was further denied that the respondent required the premises for his personal bona fide necessity or that petitioners were creating nuisance Civil Revision No.2826 of 2009 4 over the suit property. Rest of the averments were denied and dismissal of the petition was prayed for. From the pleadings of the parties the following issues were framed: 1. Whether the present petition is filed by a duly authorised person?OPP 2. Whether respondent is liable to be ejected from the demised premises on the grounds as alleged?OPP 3. Whether the petition is not maintainable in the present form?OPR 4. Whether petitioner has no cause of action to file the present petition?OPR 5. Whether the petition is bad for non-joinder and mis-joinder of necessary parties?OPR 6. Relief. Petitioner in Civil Revision No.2824 of 2009 also filed written statement on the similar lines as that of the written statement of petitioner in Civil Revision No.2826 of 2009. In the said case also, similar issues were framed. After hearing learned counsel for the parties and considering the evidence on record, the Rent Controller, Faridabad, vide separate orders of 08.08.2008 passed in both the Rent Petitions accepted the ground of material alterations impairing the value and utility of the premises in dispute and bona fide need of the landlord. However, eviction on the ground of nuisance and sub-letting by the petitioner-tenant was rejected. Resultantly,ejectment petitions filed by the respondent-landlord were allowed and the petitioners were directed to hand over the vacant possession of the demised premises within one month. Petitioners in both Civil Revision No.2826 of 2009 5 the civil revisions filed separate appeal before the Appellate Authority which were dismissed vide separate impugned judgements dated 14.01.2009. The relevant observations of the Appellate Authority, in the case of Parnav Vikas India Ltd. read thus: Now it is to be seen as to whether in present case landlord has succeeded in discharging twin onus casted upon him as regards to third instance of alteration as noted above. Admittedly, there are two tenants in the shed. M/s Vikam (respondent No. 2) has got tenancy over 4800 sq. feet and M/s Parnav (appellant) having 8757 sq. feet under its tenancy. Both the tenancies were executed at different times and both the tenants are separate legal entities. It is also established fact that these two tenanted premises were separated by “L” shaped wall. The said wall is not upto roof height but 10 feet in height and not touching the roof which is at the height of 28 feet. The existence of “L” shaped wall is duly proved by Annexure A-32, which was attached with lease Annexure A-31, by map attached with Ex. D-2 and by admission made by DW-1 & DW-2. Landlord has alleged that said wall was removed by tenant and 10 bricks pillars were constructed in straight line. Existence of “L” shape wall at the time of tenancy is not disputed by either of the parties. Tenant has Civil Revision No.2826 of 2009 6 denied its removal and has stated that wall existed and is still in existence. In order to prove that intervening “L” shaped wall separating two tenanted premises under possession of M/s Vikam and M/s Parnav was removed by them, Landlord has proved complaints made to police by its employee against tenants as Annexure A-1, A-2 and A-4 alongwith statements Ex.A-3 and A-5 made on behalf of tenant by its employee before police. Sh. Rakesh Mangla Manager of tenant has made the statements Ex. A-3 and A-5 before the police. Sh. Rakesh mangla has appeared as DW-1 and has admitted that statements were made by him before the police. He has also admitted that wall was removed but has been restored back. In Ex.A-3 Rakesh Mangla has clearly admitted that the existing wall was removed by the tenant and wooden partition has been made in its place. In view of admission made on behalf of tenant by employee of tenant which has gone unrebutted by tenant the only conclusion which can be drawn is that the “L” shaped wall existing between two tenanted premises at the time of tenancy was removed by the tenant. Landlord has therefore successfully discharged the first part of onus placed upon it., Similarly, construction of 10 bricks pillars by Civil Revision No.2826 of 2009 7 tenant has been duly established. RW-3 in his cross examination has admitted their existence. DW-2 has also admitted bricks pillars. In the maps relied upon by both the parties these pillars have not been shown in either map Ex.A-32 or map attached with Ex. D-2. This clearly proves construction of these pillars after inception of tenancy. Appellant has not placed any evidence that these pillars were constructed with consent of landlord. Now, the issue is whether landlord has succeeded in proving second part of onus placed upon it and has showed that removal of intervening wall has materially impaired value and utility of tenanted premises. In present case, where tenanted premises was in two parts and was under two different tenants the removal of intervening wall by itself would materially impaor the value and utility of tenanted premises. Where intention of landlord is to separate the premises in two parties and let it out to different tenants then act of tenants to make it one single unit would materially effect its value and utility. Similarly, construction of 10 bricks pillars which are permanent in nature clearly proves the case of landlord. Ld. Counsel for appellant has relied upon the evidence of RW-3 building expert to argue that evidence of expert clearly Civil Revision No.2826 of 2009 8 rebuts the case of landlord. RW-3 has placed map prepared by him as RW3/1 and his report as RW 3/2. A perusal of map and report shows that report prepared by RW-3 does not depict correct position of existing state of affairs. The report that no construction has been made by tenant in last 5 years goes against admission made in Ex. A-3, A-5 and by DW-2. Neither in map nor in report pillars have been shown by expert. However, in his cross examination he has admitted existence of 9 pillars. He has admitted that he has not examined pillars from the plinth. This clearly makes his report and testimony totally unreliable. Same is therefore rejected. Ld. Counsel for appellant has relied upon following judgement in support of his case. None of these judgement is applicable in facts and circumstances of the case. * Manjeet Kaur Vs. Punjab Sale Corp. 2008 (4) RCR (Civil) 880; * Bijender Kumar Vs. Kulbushan Kapoor, 2008 (1) PLR 472 * Radhey Shyam Vs. Radhey Shyam, 2008 (1) PLR 217 * Baldev Singh Vs. Waryam Singh, 2001 (1) RCR (Civil) 592; * LRs of Late Jaswant Mal Vs. Kailash Naryan, 2002 (1) CRC 319 Civil Revision No.2826 of 2009 9 * Anil Kumar Vs. Anguri Devi, 2003 (1) RCR 145; * Ravinder Kumar Vs. Sarjeet Singh, 2000 (2) PLR 181; * Premwati Vs. Ramesh, 2003 (2) RCR 302; * Om Parkash Vs. Balwant Rai, 2003 (2) RCR 346; * Lajpat Rai Vs. Smt. Vidya Wati, 1997 (4) RCR (Civil) 130 Ld. Counsel for landlord has also relied on judgements reported as 1987 HRR 331, 1985 HRR 13, 2004 (1) HRR 671, 1996 HRR 1, 2005 (3) PLR 676 and 1999 HRR 96, Landlord has, therefore, succeeded in proving that appellant has made alterations in tenanted premises which has materially impaired the value and utility of tenanted premises. . Ld. Counsel for appellant/tenant has assailed finding of bonafide need by ld. Rent Controller on following grounds:- Landlord has failed to prove that premises is required for its bonafide need. Landlord has also sought eviction of appellant on the ground that tenanted premises is needed for its business. It is averred that landlord company has taken building owned by M/s R. Mcdill & Company Civil Revision No.2826 of 2009 10 Private Limited on rent and its Landlord is pressing hard to get the same vacated and therefore, tenanted premises is required for personal necessity of landlord. Landlord has relied upon letter dated 28.02.2004 by its landlord for vacation of tenanted premises under possession of landlord. It is further stated that premises are required for expansion of business. On the other hand, ld. Counsel for appellant has relied on admission of AW-3, who has stated in his cross- examination that landlord company is not having any business as it has not got may premises in Faridabad. Whether this statement of AW-3 would dis-entitle landlord to seek eviction of appellant on the ground of personal necessity. AW-3 in his affidavit AW- 3/A has categorically stated that landlord company has taken building owned by M/s R. McDill & Company Private Limited on rent and its Landlord is pressing hard to get the same vacated. Letter, dated 28.02.2004 by its landlord for vacation of tenanted premises under possession of landlord was placed on record. These assertions made by AW-3 were not challenged by appellant. No suggestion as regards to these assertion being incorrect were made to AW-3. The statement of AW-3 in cross examination has to be read as a Civil Revision No.2826 of 2009 11 whole and cannot be seen in isolation. The affidavit was filed on 12.09.2005 and his cross was made on 20.11.2005. The context in which this statement was made is not clear. Ld. Counsel for landlord has stated that since landlord is not having premises owned by it and the statement was made in that context. Without going into this controversy as to in what context this statement was made, I am of the view that this stray statement in isolation without any challenge to the case of landlord by appellant would not affect case of landlord adversely. If this statement is taken against landlord than in similar manner there is an admission as regards to fact that landlords is tenant of M/s R. McDill & Company Private Limited. RW-2 has admitted in his cross-examination that landlord is tenant in premises owned by M/s R. McDill & Company Private Limited, though he again said that he do not know about this fact. Therefore, mere single line denial or admissions are now to be taken but entire testimony of parties is to be considered. Moreover, if statement of AW-3 is taken to be correct, it only strength the case of landlord who wants to start its business at Faridabad. Tenant has failed to show that need of landlord is not bonafide. It is not the case that Civil Revision No.2826 of 2009 12 Landlord has got some other premises in its possession. Landlord is a limited Company incorporation to do commercial activities. No fault can be found with case of landlord, if premises on rent is required for its personal need and necessity for expansion or start of its business. Choice of landlord cannot be interfered once bona fide need is established by landlord. The judgements cited by ld. Counsel for landlord/respondent No. 1 i.e. Paras Ram Vs. Suresh Kumar, 2006 (2) PLR 684, Dewan Chand Puri Vs. Gurchet Singh, 2006 (1) HRR 560, Vinod Kumar Vs. Sant Lal 2006 (1) HRR 585 and Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and others, 2006 (1) HRR 503 are fully applicable in facts and circumstances of present case. The principle of law stated therein have been duly applied and choice made by landlord is upheld. The finding of Ld. Trial Court, therefore, cannot be faulted with and therefore, upheld. Issue No. 2 is held to be in favour of landlord and against appellant/tenant. Still not satisfied, the petitioners have filed the instant revision petitions challenging the orders/judgements of the authorities below. Challenging the impugned orders, learned senior counsel representing M/s Parnav Vikas India Ltd.for the petitioners has vehemently Civil Revision No.2826 of 2009 13 argued that in the present case, the landlord has failed to prove that premises in dispute are required for his bona fide need. Elaborating further his argument, learned counsel has further submitted that the respondent sought the ejectment of the petitioner on the ground of personal necessity by alleging in the petition that respondent-landlord had been a tenant under the landlordship of one M/s R.McDill and Company Pvt.Ltd. and that it had been pressing hard to get the demised premises vacated from him and thus the respondents required the premises in dispute to continue their business of M/s Radhika Woolen and Silk Mills Pvt.Ltd., whereas the director of respondent No.1 Mr.Devan Chand Jain, while appearing as AW3, has admitted in his cross-examination that respondent has no business in Faridabad. Thus, the personal bona fide necessity of the landlord was not proved in as much as according to the own admission of the respondent, there was no business of the landlord for which it allegedly required the premises. Mr.Arun Palli, learned senior advocate further argued that the landlord has failed to prove that the petitioner had dismantled/diminished the structure and portion of wall as there is no evidence on record to show existence of the wall alleged to be demolished. The evidence on record is not sufficient to return a finding in favour of the landlord that petitioner had encroached over common lawn and had constructed rooms without consent and written permission of the landlord in contravention of building plans and bye laws. The respondent-landlord has also failed to prove that such a construction had materially impaired the value and utility of the tenanted premises. As per the pleadings of the landlord, the tenanted premises was given on July 09, 1996 and construction was raised thereafter in 1997, whereas from the notice issued by the authorities under the Act clearly proves that construction was in existence prior to 1996. Thus, the landlord was bound to show that these Civil Revision No.2826 of 2009 14 structures were not in existence before start of tenancy. No such evidence has been placed on record to show that these structures were not in existence at the start of tenancy. Thus, the landlord has failed to show that alleged structure was constructed by the tenant-petitioner as alleged and the case of the respondent is falsified from the notices issued by the authorities which are prior to 1996. No separate arguments have been addressed in Civil Revision No.2824 of 2009. On the basis of the aforesaid arguments learned counsel for the petitioners have prayed that impugned orders be set aside and the eviction applications filed by the respondent-landlord be dismissed. On the other hand, Mr.Lokesh Sinhal, advocate, appearing on behalf of the respondent-landlord has supported the impugned orders and has argued that both the courts below have recorded a concurrent finding in favour of the landlord on appreciation of evidence and there is no material on the record on the basis of which the aforesaid findings can be challenged and thus the impugned orders were sustainable in the eye of law and the revision petitions are liable to be dismissed. I have heard learned counsel for the parties and perused the impugned orders/judgements and the other documents placed on record of the case. It is well settled that question of personal necessity of the landlord is essentially a question of fact. Similarly, the question whether the petitioners are guilty of making alterations which are likely to impair the utility and value of premises is again a question of fact. Both the courts below on appreciation of evidence have recorded a concurrent findings of fact in favour of the respondent-landlord. It is not the case of the petitioners that the findings of the courts below are based on no evidence. It is well settled that even if on the basis of appreciation of evidence a second view is not possible, the High Court in its revisional jurisdiction shall not substitute its own opinion with that of the courts Civil Revision No.2826 of 2009 15 below. Moreover, it is well settled that a landlord is the best judge of his needs and the tenant cannot dictate his terms to him. It is a matter of record that Devan Chand Jain, while appearing as AW3 has categorically stated that in his affidavit that landlord-Company has taken building owned by M/s R.McDill & Company Pvt.Ltd.on rent and its landlord is pressing hard to get the same vacated. A letter dated 28.02.2004 by its landlord for vacation of tenanted premises under possession of respondent-landlord is placed on the record. Assertions made by AW3 were not challenged by the petitioners. No suggestion as regards to these assertions being incorrect were made to AW3. The statement of AW3 in cross-examination as relied upon by the petitioner has to be read as a whole and cannot be seen in isolation. Not only this, it is an admitted fact that the respondent- landlord is tenant of M/s R.McDill & Company Pvt.Ltd.. The petitioners have failed to show that need of the landlord is not bona fide. It is not their case that respondent has got some other premises in its possession. No fault can be found with the case of respondent-landlord if the demised premises are required for its personal need and necessity for expansion and start of its business. Choice of the landlord cannot be interfered once bona fide need is established. Thus, no fault can be found with the findings of the Courts below on this issue. So far as findings of the Court below on the question as to whether the petitioners have altered the structure of the demised premises by demolishing the intervening wall as alleged, is concerned, it is suffice to say that admittedly petitioners in both the civil revisions were inducted as tenants at different times and both the tenants are separate legal entities. It is also an established fact that these two tenanted premises were separated by L-shaped wall, which is duly proved by Annexure A-32 which was attached with lease deed Annexure A-31 and Map attached with Ex.D- 2 and the admissions made by DW1 and DW2. Though the tenant has Civil Revision No.2826 of 2009 16 denied the removal of such a wall, Mr.Rakesh Mangla, Manager of the tenant appeared as DW1 and admitted in his statement that statements were made by him before the police. In Ex.A3, Rakesh Mangla clearly admitted that the existing wall was removed by the petitioner and wooden partition has been made in its place. Similarly, constructions of 10 brick pillars by tenant have been duly established from the cross-examination of RW3, who admitted their existence. In the Map, relied upon by both the parties, these pillars have not been shown. Thus, it clearly proves that constructions of these pillars was made after inception of tenancy. There is no evidence on record that these pillars were constructed with the consent of the landlord. It may also be noticed that in the present case, tenanted premises were in two parts and under