C.R. No.2686 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 03.08.2009 M/s Bata India Limited and another .....Petitioners versus Gurdas Ram Sharma .....Respondent CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.Chetan Mittal, Senior Advocate, with Mr.Vishal Garg, Advocate, for the petitioners. Mr.Amit Jain, Advocate, for the respondent. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) This revision petition has been filed by the tenants against the eviction order dated 4.5.2006, passed by the Rent Controller, Hoshiarpur, as well as the order dated 10.3.2007, passed by the Appellate Authority, Hoshiarpur, dismissing their appeal against the said eviction order. The facts may be noticed briefly. The demised premises is a shop situated in Kashmiri Bazar, Hoshiarpur which was purchased by Smt.Vidya Wati in the year 1961. The petitioner No.1-M/s Bata India Limited, was already a tenant in the premises at that time. After the death of Smt.Vidya Wati, the respondent-landlord inherited the said property. The rent of the premises was enhanced from C.R. No.2686 of 2007 2 time to time and at the time of filing of the eviction petition in the year 2001, it was Rs.1875/- per month. The respondent-landlord sought ejectment of the petitioners-tenants, inter-alia, on the grounds that: (i) the demised premises is more than 120 years old and has outlived its life and utility; there are cracks in the walls, floors, the foundations have been depressed and the same has become unfit and unsafe for human habitation and he wants to reconstruct the same; (ii) the premises is required by the respondent-landlord for his own bonafide use and occupation; the respondent’s son was serving in railway as Accounts Officer and he unfortunately died in harness in the year 1999 leaving behind his three young unmarried daughters, a minor son and widow; the landlord himself is also a retiree and sitting idle and there is no no other effective source of income to pull on his family’s responsibility as his grand-daughters are of marriageable age, therefore, he wants to start the business of selling readymade garments in the shop in dispute after reconstructing the same, to maintain his family, and that (iii) the petitioner-tenant is in arrears of rent from July, 2001 onwards. The petitioner-tenant contested the eviction petition and denied the allegation that the premises has become unfit and unsafe for human habitation or that the landlord has any personal necessity of it. According to the petitioner, the respondent-landlord is a very old person and is incapable to start any business on account of poor health as well. The petitioner also alleged that the respondent-landlord has been harassing the tenant by filing one or the other ejectment petitions and his only intention is to increase the rent. The preliminary objection of res-judicata was also taken. C.R. No.2686 of 2007 3 The parties went on trial on the following issues:- “1. Whether the demised premises are in dilapidated condition and has become unfit and unsafe for human habitation? OPA 2. Whether the demised premises are required by the petitioner for his bonafide use and occupation? OPA 3. Whether the applicant has no cause of action for filing the present ejectment petition? OPR 4. Relief.” In order to prove Issue No.1, the respondent-landlord examined Mr.Bakhshish Singh, Civil Engineer-cum-Architect (AW2); Sandeep Sharma, Photographer (AW1); Sagar Sharma (AW3), and himself stepped into the witness box (AW4). The petitioner-tenant also examined one Building Expert Vijay Bagga (RW1); Accounts Assistant of Northern Railways, Jalandhar (RW2); Cashier of the Punjab National Bank, Hoshiarpur (RW3); Record Keeper of the Sessions Courts, Hoshiarpur (RW4); Amrik Singh (RW5); Bal Kishan Chopra (RW6) and also tendered in evidence a copy of the judgment (Ex.R46) and one application (Ex.R47). The Rent Controller, after referring to the entire evidence in extenso, including; (i) the photographs Ex.A-1 to A-20 and its negatives Ex.A-29 to Ex.A-56; (ii) Building Expert Report Ex.A-57, Site Plans Ex.A- 58 and Ex.A-59; (iii) the correspondence between the landlord and the tenants, Ex.A-60 to A-77, wherein requirements of repair of the shop were C.R. No.2686 of 2007 4 time and again mentioned; (iv) Building Expert Report Ex.R-3 and the site plan Ex.R-4; (v) Photographs Ex.R-5 to R-21, its negatives Ex.R-22 to Rs.38 and the oral evidence of the parties, concluded that the demised premises is in a dilapidated condition; the cracks in the walls of the first floor are visible; some of the wooden battens of the roof are damaged; the building is an old one and being located in a busy market, can cause extensive damage in the neighbourhood also if falls down, and is unfit and unsafe for human habitation. The Rent Controller further observed that the widow of the land-lord’s son is getting family pension of Rs.5250/-, whereas the landlord himself is getting pension of Rs.4566/- per month and the total income is not sufficient to meet the personal and social needs of the family consisting of three young marriageable daughters of the deceased son, namely, B.K.Sharma, or the grand son of the respondent who is pursuing his studies. The Rent Controller has observed that the respondent-landlord is hail and hearty and possesses modest health and there is nothing on the record to doubt his testimony that he wants to open a shop of readymade garments which he can run with the assistance of his daughter-in-law or the grand- daughters. The learned Rent Controller, accordingly, passed the order of eviction on both counts. Since the petitioner-tenant had already paid the arrears of rent by way of a demand draft, the third ground of eviction no longer survived. The tenant(s) preferred an appeal which has also been dismissed by the Appellate Authority vide the impugned judgment dated 10.3.2007. After re-appraising the entire evidence led against Issue No.1 C.R. No.2686 of 2007 5 and disbelieving the Building Expert produced by the petitioner, the learned Appellate Authority has observed as follows:- “.....This Court is of the considered view that the learned Rent Controller has rightly relied upon the report of AW-2 Bakhshish Singh to arrive at a conclusion that the condition of the building is deteriorated and dilapidated one and the same is not fit for human habitation. So, no fault could be found by this Court as far as the findings on issue No.1 are concerned. As such, the same are affirmed.” As regards the bonafide personal necessity of the landlord, it was vehemently urged on behalf of the petitioner(s) that the respondent- landlord is a 85 years old senior citizen and is incapable to run any business and that his only intention is to increase the rent which he has been demanding vide letters Ex.R-2 to R-7 even few months before the filing of the eviction petition. The Appellate Authority has, however, turned down the said contention after observing that ordinarily the landlord is the best judge of his requirement and the Court will not impose its own standards and that:- “..... it is an admitted fact that B.K.Sharma, son of the landlord has unfortunately expired leaving behind his widow and four children. The mere fact that a widow has got gratuity and other benefits accrued to B.K.Sharma, on account of his untimely death, does not mean that they are debarred from seeking eviction of the tenant from the premises in dispute for running their own business. It may be there that during his service B.K.Sharma since deceased did not reside with the present respondent-landlord, but it has come on record that after his demise, they are putting up their residence with the C.R. No.2686 of 2007 6 present landlord and landlord has intended to run garment’s shop. Even if he is more than 80 years of age or is a senior citizen, it does not mean that he cannot run any business. He can avail assistance of an employee or attendant to run the business. Moreover, he has faced searching and probed cross- examination, from which, it can be inferred or concluded that he is physically and mentally alert. Age factor does not disentitle him to get eviction on the ground of bonafide necessity of the premises in dispute for running his own business to provide necessities of life to the widow and children of his deceased son…..” Still aggrieved, the petitioner-tenant(s) have approached this Court. I have heard learned counsel for the parties at some length and perused the impugned orders as well as some of the documents referred to by the counsel during the course of hearing. Relying upon certain photographs of the shop in occupation, learned counsel for the petitioner-tenant(s) urged that the building cannot be said to be unfit or unsafe for human habitation by any stretch of imagination. He also questioned the competence and credibility of the Building Expert produced by the landlord. In support of his contention, the learned counsel relies upon a few decisions of this Court in: (i) Daulat Ram versus Sadhu Ram and another (1990 (1) Rent Control Reporter 34); (ii) Jita Ram and another versus Sham Lal and another (1992 (2) Rent Control Reporter 687); (iii) Hari Narain Mittal versus Darshan Lal and others (1992 (2) Rent Control Reporter 694); (iv) Maman Chand Gupta versus Lakhpat Rai (2002 (2) RCR 38), and (v) Sohan Lal and others versus Amar Nath and others (1992 (1) Rent Control Reporter 543) to contend that even if C.R. No.2686 of 2007 7 there are minor holes in the roof or it is a 60 years old building, it cannot be said to be unfit and unsafe for human habitation unless it is proved that the entire building is damaged and in weak condition. Learned counsel also refers to a decision of the Hon’ble Supreme Court in Adil Jamshed Frenchman (D) by LRs. versus Sardar Dastur Schools Trust & Ors (2005 (1) RCR 284), and urges that the bonafide requirement of the landlord must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant. He relies upon yet another decision of the Hon’ble Supreme Court of India in Gulabbai versus Nalin Narsi Vohra and others, (1991 (2) Rent Control Reporter 453), to discard the plea of personal necessity taken by the respondent-landlord. Having given my thoughtful consideration to the contention, I do not find any merit in this revision petition. Firstly, the photographs referred to by the petitioner-tenant(s) pertain to only a part of the premises, which is in occupation of the tenant. Mere painting or the wooden battens shouldering the roof or plastering of the walls inside the shop, giving deceptive impression as if the building is fit and fine, does not mean that the entire building is well maintained or fit for human habitation. The Appellate Authority has taken notice of the fact that the petitioners’ Building Expert did produce certain photographs, but failed to co-relate with the demised premises. Be that as it may, the evidence on record clearly shows that there are cracks in the walls, roofs have been damaged and the foundations of the building have depressed. The premises is admittedly an old building and mere maintenance of a miniscule part thereof by the C.R. No.2686 of 2007 8 tenant(s) to run the business activities cannot improve the life condition or future stability of the demised premises. The petitioner has no grievance like misreading of evidence or over-looking of any material piece of evidence by the courts below. No interference in the concurrent finding of fact returned against Issue No.1 is, therefore, called for by this Court. Adverting to the second plea, the counsel for the petitioner- tenant(s) argues that one of the grand-daughter of the landlord has already got married and keeping his age in view, it is nothing but an imagination that he can still start some business in the demised premises. There is, however, no substance in the contention. The business of selling readymade garments perse does not require any skilled knowledge or experience nor involves extensive physical activities. Even if one of the grand-daughter of the respondent-landlord has got married, yet the widowed daughter-in-law and two other grand daughters of the respondent-landlord are there to help and assist him in running the said business. It is apparent from the plea taken by the landlord that he wants his daughter-in-law to run the shop, who is without any job. The petitioner-tenant(s) has not been able to dispute the family responsibilities fastened on the respondent-landlord on account of untimely demise of his son. The genuineness of his necessity to increase the family income is beyond any doubt, which can possibly be generated through some business activities only for which the respondent-landlord requires the demised premises. No case for interference by a revisional Court is made out. For the reasons aforestated, the revision petition is dismissed. However, keeping in view the fact that the petitioner-tenant(s) is required to C.R. No.2686 of 2007 9 make some alternative arrangement to shift its business, the petitioner- tenant is permitted to vacate the premises on or before November 30, 2009, subject to payment of arrears of rent, if any, and the future rent before 7th day of every calendar month. 03-08-2009 (SURYA KANT) Mohinder JUDGE