CR No. 6741 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6741 of 2008 Decided on :04-12-2008 Surinder Mohan Puri ....Petitioner VERSUS Sarla Wati and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Ashish Aggarwal, Advocate for the petitioner. MAHESH GROVER, J The revision petition is directed against the order of the Appellate Authority dated 3.10.2008. The respondent-landlady filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act seeking eviction of one M/s Fair Deal Agencies and of the petitioner M/s Puri Drug House shop, a portion of house no. 6195 Nicholson Road, Ambala Cantt/Ambala Sadar through Kishan Chand Puri, its proprietor. The petitioner herein is Surinder Mohan Puri son of Kishan Chand Puri, c/o M/s Puri Drug House. The rent petition was preferred against the aforesaid two entities on the following grounds:- 1) that the tenant has sub-let the shop to M/s Puri Drug House without written consent and has lost the control over the tenanted premises 2) that the premises are required for bona fide use and occupation of the respondent-landlady as in the premises Sanjiv Bansal s/o Usha Bansal, CR No. 6741 of 2008 2 respondent no.2 herein had to set up a business and for this it was pleaded that the landlady has not vacated any such premises after the commencement of the Act within the Urban Area of the Ambala Cantt. 3) That M/s Fair Deal Agencies, respondent no.3 herein has acquired another premises bearing no. 5611 situated in Nicholson Road, Ambala Cantt which is sufficient for running the business of the petitioner. The petitioner contested the proceedings and took up the plea that the shop in question was taken on rent by Sh.Kishan Chand Puri at the rate of Rs.60/- per month which was subsequently increased from time to time. Few years thereafter Sh.K.S.Malhotra was introduced as partner in the Firm. It was categorically denied that M/s Fair Deal Agencies was ever the tenant in the shop in question, rather it was stated that only K.C.Puri was tenant and after his death his widow and two sons had inherited the tenancy rights over the premises in question and have thus become the tenants under the respondent-landlady. The factum of sub-letting in favour of M/s Puri Drug House was denied. It was pleaded that respondent K.C.Puri had taken the shop in question and has started business as Karta of the Hindu Family. His sons reside with him and as the business expanded another shop in front of the tenanted premises bearing no.5611, Nicholson Road was taken on rent by Sh.Puri which was purchased by him after some time. The factum of M/s Fair Deal Agencies having lost control over the tenanted premises was denied. The bona fide need of the respondent landlady was also denied and it was pleaded that Sanjiv Bansal did not reside in Ambala and that he is not unemployed. The parties went to trial before the learned Rent Controller on the following issues:- CR No. 6741 of 2008 3 1. Whether respondents are liable to be ejected from the shop in dispute on the grounds mentioned in the petition? 2. Whether petitioners have no cause of action to file the present petition? 3. Relief. On perusal of the evidence before it, learned Rent Controller dismissed the ejectment petition preferred by the respondent-landlady. In appeal, the findings were reversed. The order of the Appellate Authority has been assailed herein. Learned counsel for the petitioner contended as follows:- 1. M/s Fair Deal Agencies was never the tenant and that Sh. K.C.Puri was inducted as the tenant who was the sole proprietor. 2. That there is evidence on record in the shape of income tax returns and other related documents by which returns were furnished by Sh. K.C.Puri which revealed that K.C.Puri was an individual assessee. That the finding of the Appellate Authority on the basis of the accounts statement of M/s Fair Deal Agencies holding the Firm as a tenant is erroneous as mere payment of rent from the accounts of the Firm will not make the Firm a tenant. In support of this contention, reliance was placed on 'Piare Lal since deceased through Lrs versus Kishori Lal and another' PLR 1997(1) 507, 'Bhushan Drug House, Bathinda through Prem Chand versus Desh Raj' 1980(1) RCR (civil ) 491, 'Bhajan Lal versus Shri Madan Lal' 1983(1) RCR (civil) 33 and 'K.Vijaykumar versus Smt. Nazmunnisa' 1999(1) RCR (civil ) 271 3. Since the Firm was never a tenant, legal heirs of the deceased were never impleaded a party to the ejectment petition and therefore it suffered from an inherent defect and deserves dismissal. CR No. 6741 of 2008 4 4. The bona fide necessity has not been proved as Sanjiv Bansal never resided in Ambala and was not unemployed. 5. That sub-letting has not been proved. Even if it is accepted that Puri Drug House in whose favour the sub-letting is said to have been allowed was set up in the year 1978 which arrangment was accepted by the respondent-landlady and after 24 years they cannot now question the arrangement to say that it amounted to sub-letting as he has acquiesced to it by his conduct. 6. That landlady namely Usha Bansal and Smt. Sarla Wati did not testify before the Rent Controller regarding the bona fide need and therefore an adverse inference has to be drawn on this account against them. Reliance was placed on cases titled as 'Vidhyadhar versus Mankikrao' 1999 AIR SC 1441. I have heard learned counsel for the petitioner. In so far as contentions noted at point 1 to 3 are concerned, a perusal of the impugned order shows that the tenancy was created orally in the year 1953 when the premises in question were let out on rent. Ex. P.4 is the receipt which was acknowledgement of the rent paid by way of cheque and received by the predecessor in interest of the respondent-landlady Sh. Shiv Nath from Sh.K.C.Puri in the capacity of Managing Director of M/s Fair Deal Agencies. The balance-sheet of M/s Fair Deal Agencies for the year 1963-64 and 1962-63 also shows that the rent had been paid to Sh.Shiv Nath, landlord from the account of Firm and not from individual account of Sh.K.C.Puri. All these pieces of evidence reflect that right from the beginning M/s Fair Deal Agencies was paying the rent to the original landlord Sh.Shiv Nath. Merely because there are some income tax returns CR No. 6741 of 2008 5 which have been furnished by K.C.Puri himself woul not change the character of the tenancy from that in favour of a Firm to that of in favour of an individual. That apart it was conceded by the learned counsel for the petitioner before this Court and it is reflected in the pleadings also that Sh.K.C.Puri was joint in his business with his sons and merely because he was floating some Firms and other entities while in pursuit of his expanding business does not mean that the tenancy was not in favour of the Firm. It thus conclusively stands established from the evidence on record that the tenancy was in favour of the M/s Fair Deal Agencies and not in favour of Sh.K.C.Puri as alleged. There is thus no infirmity in the findings recorded by the lower Appellate Authority. Further even if this controversy is to be ignored all together, the respondent-landlady has pleaded bona fide necessity for setting up business for Sh.Sanjiv Bansal, her son. The petitioner has contended that Sanjiv Bansal is not residing at Ambala and therefore, bona fide need is not borne out. It has come in evidence that said Sanjiv Bansal is in fact residing in Shahbad which is barely about 15-20 kms away from Ambala. In any eventuality, the pleas of petitioner have no bearing on the assessment of bona fide need. Landlady who has premises which could be utilised for the business needs of her son is very well within her rights to desire the premises in order to carry out her designs. Hon'ble Supreme Court in case titled as 'Sarla Ahuja versus United India Insurance Company Ltd.' 1998 (2) RCR 533 observed as follows:- “Para 14. The crux of the ground envisaged in clause CR No. 6741 of 2008 6 (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms of the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” The last contention of the learned counsel for the petitioner is that the landlady had not stepped into the witness box to testify and therefore, an adverse inference should be drawn against her is not correct in the given set of circumstances of the case. Son of the landlady Sh.Sanjiv Bansal appeared as her power of attorney. It was on account of the necessity of setting up business for Sh.Sanjiv Bansal that the plea was taken up before the Rent Controller and if in these circumstances, Sanjiv Bansal appears as an attorney and testified in the proceedings before the Rent Controller then it cannot be said that any prejudice has been caused for the reason that the person for whose personal necessity has been pleaded is the best person to testify and prove his need. The contention is therefore rejected. No other point has been urged. CR No. 6741 of 2008 7 In this view of th matter, there is no merit in the revision petition. Dismissed. December 4 , 2008 (Mahesh Grover) rekha Judge