Civil Revision No. 2884 of 2005 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 2884 of 2005 Date of Decision: 1.12.2008 Banwari Lal Taneja …Petitioner Versus Rakesh Kumar ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Arun Jain, Senior Advocate with Mr. Vishal Goel, Advocate for the petitioner. Mr. J.R.Mittal, Senior Advocate with Mr. Kashmira Singh, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The premises in the present case is 250 sq. yards house built in three storeys. The ground floor consists of five rooms and two bathrooms. First floor is also consist of similar accommodation and the top floor is also partly built. On the ground floor, two rooms, kitchen, latrine and bathroom had been let out to the petitioner-tenant. Petitioner-tenant failed in two Courts below and filed the present revision petition in the year 2005. Civil Misc. No. 5950-CII of 2008 was filed before this Court that after eviction has been ordered, this Court should fix the mesne profits. In that application, notice was issued and in the presence of the Civil Revision No. 2884 of 2005 2 parties, it was ordered that the Civil Misc. Application would be taken up for hearing along with the Civil Revision No. 2884 of 2005 on 27.11.2008. The present revision petition is already on the regular board of this Court. Today, Civil Misc. No. 5950 of 2008 along with Civil Revision No. 2884 of 2005 have been taken up together for arguments. Mr. Arun Jain, Senior Advocate, assisted by Mr. Vishal Goel, Advocate, appearing for the petitioner-tenant, has read the eviction petition. In the said petition, it has been stated that father of Rakesh Kumar, landlord, had let out the premises to Banwari Lal Taneja. At the time of filing of petition, the rate of rent was Rs.1,100/- per month excluding water and electricity charges. It was stated in the eviction petition that the tenant is bachelor and living alone in the demised premises since the creation of tenancy. It was stated therein that landlord has got five married sisters. Four sisters are settled at Chandigarh and one at Ambala. They often visit the landlord, therefore, the accommodation which is with the tenant is required as two bed rooms, latrine on the ground floor is not sufficient . It was further stated that since the landlord and his wife are living in the house alone, therefore, they need privacy. The petition was filed on 10.2.1999. A written reply was filed by the tenant in which it was stated that he was inducted as tenant by the father of the landlord in the year 1985. Initially, the rent was Rs.600/- excluding water and electricity charges. Thereafter, it was increased to Rs.625/- in the year in the month of November 1987 and then in March 1992, the rent was increased to Rs.750/- per month. Then in January 1993 rent was increased to Rs.900/- and in July 1993 it was increased to Rs.1,100/-. It Civil Revision No. 2884 of 2005 3 was stated that the sisters of landlord are not dependent and they are well settled at their houses, therefore, they seldom visit the landlord. It was further pleaded that landlord made a request to increase the rent from Rs.1,100/- to Rs.1,500/-, on refusal, the eviction petition was filed. The landlord himself appeared as PW.1. Mr. Jain has extensively read his examination-in-chief and cross-examination. In examination-in-chief, it has been stated that the accommodation on the first floor is almost same to the accommodation on ground floor. It was admitted by the landlord that three rooms, kitchen, bathroom and latrine on the first floor was rented out to K.K.Gupta, who was working as Sub Divisional Officer in the Electricity Department. It was further stated that after the above said K.K.Gupta had vacated the premises in 1994, the accommodation was rented out to one Lekh Raj. Thereafter, Lekh Raj vacated the premises in February/March 2000. Then it was rented out to one Avneesh and Amrish in the year 2001 as they were taking the treatment in the P.G.I. The accommodation on the first floor was rented out at the rate of Rs.4,000/- per month. Thereafter, it was rented out to four girls students who were studying at Panjab University, Chandigarh, at a monthly rent of Rs.4,000/-. The landlord also admitted that one month back he had let out two rooms, kitchen, bathroom and a latrine to one law student. This was month before his deposition in the Court. He was examined in the Court on 7.9.2001. He admitted that his family consist of wife and two minor sons. He also admitted that before 10 days to his deposition, he had placed a board of To-let. This has been stated in relation to the first floor. Learned Rent Controller examined the evidence and noticed Civil Revision No. 2884 of 2005 4 that on 23.7.2002 an additional issue was framed as the landlord had deposed that a portion on the first floor had fallen vacant and he has offered the same to the tenant but he had refused to occupy the same. Learned Rent Controller held that the testimony of RW.1 Anil Kumar and RW.3 Rajan Kapoor is not credible and concluded that the ground of personal necessity is made out. Regarding additional issue, learned Rent Controller held that since the first floor was let out, therefore, issue was decided against the landlord. Learned Rent Controller concluded as under:- “16. It has been admitted by the respondent that the petitioner's family consists of petitioner, his wife, two children and that is having five sisters who are married, four are at Chandigarh and one at Ambala. It has also been admitted by the respondent that the petitioner and his parents never resided on the first floor of the house in question. The demised premises was taken on rent from the father of the petitioner. The petitioner was having three rooms, latrine, bathroom, kitchen and store on the ground floor, whereas, the respondent is having two rooms, kitchen, latrine and bathroom which are also on the ground floor. There is nothing on record to show or suggestion that the married sisters of the petitioner are not visiting the petitioner. It has also come on record that the respondent is living all alone, he is a bachelor. It has been admitted by the Civil Revision No. 2884 of 2005 5 petitioner that the tenants on the first floor vacated the premises and the said premises were being let out to different persons. In the cross examination of RW1 a specific question had been put to the respondent and the respondent has stated that he is not ready to shift to the first floor in case the accommodation is given to him in exchange of the demised premises. When the first floor is already in occupation of the tenants and certain portion of the ground floor is in occupation of the respondent, it cannot therefore be said that the premises i.e. one drawing room, one dinning room and one kitchen in occupation of the petitioner are sufficient, though it was alleged by the learned counsel for the respondent that the present petition is malafide and has been filed just to enhance the rent and it was also argued that the premises on the first floor fell vacant during the pendency of the petition and were let out to other tenants. It is settled position of law that the landlord is the best judge of his requirement and that the tenant cannot dictate the landlord as to how he should use his premises”. Learned Appellate Authority concluded that from the evidence of PW.1 Rakesh Kumar and PW.2 Sushma Kapoor, it is categorically established that personal necessity of the landlord is genuine and bonafide. It also concluded that there was a genuine intention of the Civil Revision No. 2884 of 2005 6 petitioner for his need of ground floor as he has offered first floor accommodation to the tenant. Learned Appellate Authority examined the issue and gave following findings:- “15. So far as letting out of three-room set on first floor is concerned, this fact stands admitted by the petitioner and accordingly the trial Court has decided issue No.2 in favour of the respondent. Now the question arises that whether by this sole act of the petitioner can an inference be drawn that his requirement for the demised premises is not bonafide. This Court is of the considered view that since the present petition has been filed qua a portion at the ground floor, therefore, the three room set if fallen vacant on the first floor and the same accommodation does not meet with the requirement of the petitioner. Needless to say the ground floor accommodation has its own charm and comfort. In view of the authority titled as Hans Raj Vs. Shrimati Ram Piari, 1973, RCR, 256 it is held that merely on this ground the eviction petition of the landlord for ground floor accommodation cannot be refused especially so when the petitioner in the present case has categorically been able to show that he requires the demised premises to adjust his family comprising of himself, his wife and two children. Apart from them the five married sisters of the Civil Revision No. 2884 of 2005 7 petitioner out of whom four are settled at Chandigarh and one at Ambala and they keep visiting him from time to time and accommodation is also required to adjust them”. Mr. Jain has assailed the findings of two Courts below on the following grounds: Relying upon ejectment petition, he has stated that it was not pleaded as to why accommodation on first floor is not sufficient. He has stated that from the cross-examination of landlord, it is evident that first floor was repeatedly rented out, therefore, the ground of personal necessity given in the ejectment petition is not borne out in the ejectment petition. It was only stated therein that from the five sisters visit the landlord. Mr. Jain has stated that this part of the averments made in the ejectment petition stand belied from the cross-examination as the sisters being there yet first floor was rented out to the various tenants from time to time. The ground of personal necessity for the reason that “privacy of the landlord is to be maintained” has been assailed on the ground that the construction being on 250 sq. yards plot, it is one unit and stairs go through the ground floor. Therefore, once the same was rented out to various tenants, the privacy was not taken into consideration. He has further stated that additional ground that accommodation of first floor was offered has not been accepted by learned Rent Controller. He has read the examination-in-chief in rebuttal and the cross-examination to this effect to state that it has been admitted by the landlord that no written notice was given to the tenant. He was never offered Civil Revision No. 2884 of 2005 8 accommodation on the first floor. It has been further stated that the very fact that the rent from 1985 till December 1997 was increased periodically. Therefore, the need of personal necessity was also existing on the ground floor, for which now the ejectment has been sought. To controvert this argument, Mr. J.R.Mittal, Senior Advocate, assisted by Mr. Kashmira Singh, Advocate, appearing for the respondent-landlord, has stated that the rent from time to time was increased by the mother of the landlord till 1997. After the death of mother of the landlord, rent was not increased and the petition was filed in the year 1999. He has stated that landlord was married in 1994. It has been wrongly stated in the cross-examination that there are two minor sons of the petitioner. In fact, he has got one son and one daughter and the daughter now is aged 13 years and the son is aged about 11 years. It has been stated that growing needs of family demand that a separate room ought to be provided to both daughter and son. Mr. Mittal has further stated that right from filing of the ejectment petition, case of the landlord is that he require the ground floor for his personal necessity and, therefore, very fairly in cross-examination he has admitted renting out of first floor from time to time. He has stated that when the first floor became vacant it was offered to the landlord but the same was refused. In reply, Mr. Jain has relied upon Adil Jamshed Frenchman (D) by LRs v. Sardar Dastur Schools Trust & Others 2005(2) Supreme Court Cases 476 to contend that needs of the landlord must be an outcome of sincere and honest desire and it should not be on the mere pretext for evicting the tenant. He has further stated that the test is that one should place himself in the place of landlord and determine Civil Revision No. 2884 of 2005 9 whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. I have given my thoughtful considerations to the rival submissions made. It is not disputed that the landlord has been renting out the first floor from time to time. In the present case, on the ground floor, two rooms are on rent with the tenant. Family of the landlord consists of himself, wife and two children who have stated to be 13 years and 11 years old. It is also admitted that five sisters are married, out of whom four are residing at Chandigarh and one at Ambala and they often visit the landlord. Learned Appellate Authority has relied upon the fact that the offer was made to the tenant to occupy the first floor. In the rent petition, itself it was stated that the premises on the ground floor are required for maintenance of privacy. The eviction petition was filed in the year 1999, about nine years are going to lapse. Within these nine years, the family of landlord has grown, his children are studying in School. For their better education, landlord require the ground floor. Thus, there is no justification for the tenant to continue in the demised premises. Therefore, there is no merit in the present revision petition and the same is dismissed. Concurrent findings of fact recorded by two Courts below are affirmed. At this stage, Mr. Jain has stated that sufficient time be granted to the tenant to vacate the demised premises. Two months time is granted to the tenant to vacate the demised premises subject to filing an undertaking to the Court of learned Rent Controller, Chandigarh, that Civil Revision No. 2884 of 2005 10 the entire arrears of rent shall be paid and rent for two months shall also be paid in advance. (Kanwaljit Singh Ahluwalia) Judge December 1, 2008 “DK”