IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1311 of 2011 (O&M) Date of decision:15.9.2011 Sant Kumar and another ......Petitioner(s) Versus R.S. Virk and others ......Respondent(s) CR No.1329 of 2011 (O&M) Smt. Preeti Jain ......Petitioner(s) Versus R.S. Virk and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Jai Singh Yadav, Advocate for Mr. Sachin Mittal, Advocate for the petitioner(s). Mr. G.S .Punia, Advocate for the respondents. Rakesh Kumar Garg, J.(Oral) This judgment shall dispose of two revision petitions i.e. CR Nos.1311 and 1329 of 2011 as the same have arisen out of similar facts and common questions of law on similar grounds have been raised in both these petitions. However, for convenience sake, facts are being taken from CR No.1311 of 2011. It may also be relevant to mention that in both these petitions, the eviction of the petitioners have been ordered from the demised premises on the ground of personal necessity of the respondent-landlord by the Authorities below. Brief facts of the case are that respondent No.1 filed the ejectment applications against the petitioners making averments that the petitioner along with one Darshan Lal son of Shri Mehar Chand were jointly inducted as tenants in the shop in question for a period of 11 months w.e.f. 1.7.1984 to 31.5.1985, at the rate of ` 1300/- per month vide unregistered rent deed dated 3.6.1984. Subsequently, Darshan Lal retired from the said partnership and Sant Kumar-petitioner No.1 is continuing to occupy the shop in question and is running his business by describing the same as Vandana Saree Emporium (petitioner No.2). The respondent- landlord further averred that he being co-owner/landlord has filed the ejectment petition in his individual capacity having bona fide requirement of the shop in question for his own business of running a coaching institute for aspiring law students besides his own office to give legal advice to the clients on any matter pertaining to their legal problems in the field of law in the demised premises after his retirement from service, which is situated in a prominent commercial locality. It was further averred that after retirement, he wants to settle at Yamuna Nagar, as his native village Chhachhrauli is situated at a distance of 16 kilometers from Yamuna Nagar. He has also practiced as an Advocate in the Courts at Jagadhri before joining the service. He has neither occupied any commercial building in the urban area of Jagadhri or Yamuna Nagar nor has ever vacated any such building without sufficient cause after commencement of the Act. It was pleaded that though he would have right to seek such eviction by resorting to section 13-A (1-A) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Rent Act') , one year prior to his superannuation, yet this petition has been filed as he is entitled to anticipate his requirement in a reasonably foreseeable future. Thus, a prayer for eviction of petitioner from the shop in question was made with a direction to hand over its vacant possession to him by 31.3.2011 so that he may make necessary arrangements in time to start his business immediately upon his superannuation on 31.8.2011. It may be relevant to notice that in the application out of which CR No.1329 of 2011 has arisen, the respondent-landlord has averred that the petitioner was inducted as tenant in the premises in question (i.e. first floor of the shop) for a period of 11 months w.e.f 15.10.2000 to 14.9.2001 at the rate of ` 2000/- per month vide unregistered rent deed dated 30.10.2000. The other averments with regard to personal necessity are the same as pleaded in the ejectment petition out of which CR No.1311 of 2011 has arisen. In response to the notice, the petitioner-tenant appeared and filed his written statement. In his written statement, petitioner No.1-Sant Kumar had raised a preliminary objection that respondent No.1 had no locus standi to file the present petition as there exists no relationship of landlord and tenant between them because property in question was rented out by Z.S. Virk and Tajinder Singh (respondents No.2 and 3) vide rent deed dated 3.6.1984 @ ` 1300/- per month which was later on increased from time to time and at present, he is regularly making the payment of rent at the rate of ` 2,750/- to the landlord. It was stated that respondent No.1 was estopped from filing the present petition by his own act and conduct. The respondent has no cause of action to file the instant petition as he does not require the property for his personal necessity and his father as well as other respondents have various residential and non-residential properties in the area of District Yamuna Nagar, apart from the property in question and they have already sold many commercial properties adjoining to disputed property. On merits, the averments made by the landlord were denied. It was further stated that the respondent was a big landlord and has a large number of commercial, non-commercial and agriculture property and has sufficient means even for running a law college what to talk of institution and he can establish a college at Chhachhrauli i.e his native village and can also settled there, which is not far away from Yamuna Nagar. Prayer for dismissal of the petition was made. Respondents No.2 to 4, who were arrayed as proforma respondents, filed their joint written statement admitting the claim of respondent No.1 in toto. Respondent No.1 did not opt to file rejoinder. From the pleadings of the parties, the following issues were framed: “1. Whether respondent No.1 is liable to be ejected from the demised premises, as petitioner bonafide requires the same for personal necessity? OPA 2. Whether the petitioner has no locus standi to file the present petition? OPR 3. Whether the petition is not maintainable? OPR 4. Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPR 5. Relief.” After considering the the evidence/documents on record and hearing learned counsel for the parties, the Rent Controller, Jagadhri came to the conclusion that there exists a relationship of landlord and tenant between the parties. The relevant observations of the Rent Controller in this regard read as follows: “The factual position regarding existence of premises in question; its letting out to respondent No.1 Sant Kumar and one Darshan Lal being partners of M/s Bandana Emporium, vide rent deed dated 3.6.1984 Ex.A2 @ Rs.1,300/- per month; retirement of said Darshan Lal from the said business; its occupation by respondent Sant Kumar as well as running of his business in it under the name and style of M/s Vandana Saree Emporium; ownership of the petitioner over the premises in question along with respondents No.2 to 4; employment of the petitioner with Government of Haryana, as depicted in the employer's certificate Ex.A3, are admitted one. Though in the pleadings, respondent No.1 has denied the relationship of landlord and tenant between the parties, however, while leading evidence, RW4 Sant Kumar, respondent No.1, as well as his witnesses i.e. His son RW1 Sudharshan Jain; RW2 Sanjay Jain; and his daughter-in-law RW3 Preeti Jain, all have specifically stated in their respective statements that respondent No.1 Sant Kumar, who is tenant over the shop in question on ground floor and RW3 Preeti Jain, being tenant in possession over the premises existed on the first floor of it, have been regularly paying the rent of it to the petitioner. Accordingly, it can be safely stated that since respondent No.1 himself and his witnesses have specifically stated in their statement in examination-in-chief itself that he has been regularly paying rent of the shop in question to the petitioner, there is clear cut admission on the part of respondent No.1 regarding relationship of landlord and tenant between them. Moreover, perusal of rent deed Ex.A2, execution of which has been duly admitted by the respondent No.1, would clearly show that it has been executed by Z.S. Virk, father of the petitioner, on the basis of Power of Attorney executed in his favour and not in individual capacity. Resultantly, it is concluded that relationship of landlord and tenant between the petitioner and respondents No.1 and 1-A has been established and duly proved on the case file and the plea taken by respondent No.1 in his written statement that there exists no relationship of landlord and tenant between them, is not tenable.” It may also be noticed at this stage that the petitioner-tenant had also raised a plea before the Rent Controller to the effect that respondent No.1 being co-owner of the premises in question was not competent to seek eviction from the entire property. However, the said plea of the petitioner was rejected noticing the fact that respondents No.2 to 4, who have been arrayed as proforma respondents and are co-owners of the suit property along with respondent No.1, have never objected to the petition filed by respondent No.1 rather they have fully supported his case. The said plea of the petitioner was also negatived by the trial Court by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Mohinder Prasad Jain v. Manohar Lal Jain 2006(2) CCC 1 (SC)=2006 (2) SCC 724 The Rent Controller further held that personal necessity of respondent No.1 stands fully proved from the evidence on record. The relevant observations of the Rent Controller, Jagadhri in this regard read as follows: “Now coming to the sole ground taken by the petitioner for eviction of respondents No.1 & 1-A from the premises in question i.e. 'personal necessity', it is not disputed and also as depicted in the employer's certificate Ex.A3, the petitioner had joined the Haryana Civil Service (Judicial Branch) on 11.5.1981; he had been working as Additional District & Sessions Judge as on 27.9.2007 and the date of his superannuation is 31.8.2011. There is nothing on the case file to show that the petitioner is not eligible to run a coaching institute for law students or to give legal advice to the clients on any manner pertaining to their legal problems in the field of law, after his retirement from service. Petitioner has specifically pleaded that he requires the premises in question for running a coaching institute for aspiring law students and also to pen his own office in it for giving legal advice to the clients on any matter pertaining to their legal problems in the field of law after retirement from service. This fact has also been established on record by the petitioner by leading cogent evidence on the case file in the form oral testimonies of himself and that of his father AW2 Z.S. Virk, whereas on the other hand, though respondent No.1 in his written statement, has denied the requirement of premises in question by the petitioner for his personal necessity, however, neither respondent No.1 Sant Kumar, when appeared into witness box as RW4, nor the witnesses examined by him, have deposed a single word to the effect that petitioner does not require the premises in question for his personal use and occupation or he has any other properties to meet out of necessity as mentioned in the petition. Though respondent No.1 Sant Kumar as well as his witnesses have deposed in their testimonies that the shop in question is situated in a crowded area and there is no space for parking in front of it, but this evidence does not disprove the claim of the petitioner regarding personal necessity. Moreover, RW4 Sant Kumar, respondent No.1, has clearly admitted in his cross- examination that it is correct that platform has been constructed in front of the shops on both sides of the road. This admission on the part of respondent No.1 clearly falsify the stand taken by him that there is no parking space in front of the shop in question. Also, it has been held time and again that once landlord has proved his need for accommodation, tenant is no body to regulate the need of landlord because he (landlord) is the best judge of his requirement. It is always open to the landlord to seek eviction of the tenant from the rented premises for his own use and bona fide need. Once it is the specific plea of petitioner that he requires the premises in question for personal necessity and no malafide intention has been proved on the part of landlord/petitioner by the tenant-respondent by leading cogent evidence in this regard, then there is nothing to disbelieve his plea. Resultantly, it is concluded that the petitioner has successfully established and proved on record that he requires the premises in question for his own use and occupation, after his retirement from service and thus, respondent No.1 and 1-A are liable to be evicted from it. Accordingly, the citations referred to above, relied upon by learned counsel for respondent No.1, are not applicable to the present case being based on different facts.” It may also be necessary to point out that tenant-petitioner had also raised an argument to the effect that the eviction application filed by respondent No.1 under Section 13-A(1-A)of the Rent Act which has been filed much prior to one year from the date of his superannuation i.e. 31.8.2011 is premature and not maintainable. However, the said plea of the petitioner was rejected by the Rent Controller, Jagadhri in the following manner: “Now the question for determination is as to whether present petition for seeking eviction of tenant/respondents No.1 and 1-A, filed by the petitioner under Section 13-A(1-A) of the Rent Act, much prior to one year from the date of his superannuation i.e. 31.8.2011, is premature or not? It is not disputed that as provided under clause (1-A) of Section 13-A of the Rent Act, where an application is made by a landlord who is or was an employee of Government of India or of Government of Haryana or of any State owned Board or Corporation of Haryana, within one year prior to or after the date of his retirement or within one year from the date of commencement of Haryana Urban (Control of Rent and Eviction) Amendment Act, 1990, whichever is later, on the ground mentioned in Sub-clause (i) of clause(a) of sub-section (3) of Section 13, the same shall be dealt with in accordance with the procedure specified in this Section. However, in the present case in hand, as stated above, petitioner has specifically averred in the petition that he requires the premises in question for his own use and occupation as he wants to start his own business in it after his retirement from service on 31.8.2011 and accordingly, prayed for eviction of the respondents No.1 and 1-A from it with the direction to hand over its vacant possession by 31.3.2011 so that he may make necessary arrangement to run his business in it immediate after his retirement from service on 31.8.2011. As observed by our own Hon'ble High Court in J.G. Kohli Vs. The Financial Commissioner, Haryana, Chandigarh and another (supra) relied upon by learned counsel for the petitioner, it is not the requirement of the law that in order to succeed under Section 13(3) of the Rent Act, the landlord's need must be immediate and an existing one on the very date of the application for ejectment. Indeed, he is entitled to anticipate his requirement in a reasonably foreseeable future. Further, the Controller and the appellate authority thereto can legitimately take into consideration any change in the circumstances regarding the requirement of the landlord on the date when the order of ejectment may have to be passed or affirmed. Moreover, the fact that the petitioner/landlord needed accommodation for his personal use and occupation after his retirement, has been specifically disclosed in the petition and the date of his retirement has also been disclosed as 31.8.2011. Though this petition has been instituted on 18.1.2008, but merely because this petition has been filed much prior to the date of retirement, it cannot be said that the cause of action for eviction on the ground of bona fide and personal requirement did not accrue to the petitioner/landlord. In these days, when such type of litigations continue for decades, if the petitioner/landlord showed his intention to settle at Yamuna Nagar after his retirement, it cannot be said that his desire is fanciful and not bonafide and reasonable. Even if it is accepted technically that on the date of institution of present petition, the petitioner was in service it cannot be said that subsequent even cannot be taken into consideration by the trial Court or by appellate/revisional court as consideration of subsequent events by the court is a settled proposition of law and the court can mould and grant the relief keeping in view these subsequent events. Accordingly, the plea taken by the learned counsel for respondents No.1 & 1-A that present petition is premature and no cause of action had arisen at the time of institution of the present petition, is not tenable. Reliance on this point can be placed on the observation made in the authority Karsandas Gordhandas Parmar Vs. Bahadur Singh Madhur Singh Dodia (supra), relied upon by learned counsel for the petitioner.” Resultantly, the eviction petition was allowed and the petitioners were directed to handover the vacant possession of the premises in question by the Rent Controller vide his order dated 4.6.2010. Feeling aggrieved from the aforesaid order of eviction, the petitioner filed an appeal before the Appellate Authority which was also dismissed vide impugned judgment dated 2.12.2010. The relevant part of the judgment of the Appellate Authority reads as follows: “The petitioner appeared as AW1 and in his affidavit Ex.AW1/A reiterated the version as contained in the petition. He stated that the demised premises as depicted in site plan Ex.A1 was rented out to the respondent Sant Kumar vide rent deed dated 3.6.1984 Ex.A2. He is one of the co-owner of the demised premises, to the extent of 1/6th share, having purchased the same vide sale deeds dated 4.12.74, 18.11.1974, (Ex.A6 and Ex.A8), respectively and other co-owners respondents No.2 to 4 have no objection to the petition filed by him in individual capacity being a co-landlord and co-owner of the same. His father is holding general power of attorney dt. 3.10.1977 in his favour. He further deposed that he joined the HCS (Judicial) on 11.5.1981 and is to superannuate on 31.8.2011. He plans to run a coaching Institute besides his own office to practice legal professional after his retirement from service, in the premises in question along with the building which is under the tenancy of Preeti Jain, daughter in law of respondent No.1 on the first floor of the premises in dispute, regarding which he has filed separate ejectment petition. He also testified that after retirement he wants to settle at Yamuna Nagar as his native place is at a distance of 16 KM from Yamuna Nagar. He also stated that he had practiced as an Advocate at Jagadhri courts. He stated that demised premises is situated in a prominent commercial place and is suitable to him for running his business and as such he bonafidely requires the premises in question. He further testified that he is not occupying any commercial building or shop in the State of Haryana and he has not vacated any such building without sufficient cause after the commencement of the Act and he has filed the present petition in anticipation of his retirement as it would take long time to decide the matter. He prayed for ejectment of respondent No.1 from the premises in dispute. In support of his version he also placed on record the documents namely Ex.A3 attested copy of employer's certificate, Ex.A4 application for issuance of said certificate, Ex.A5 forwarding letter of employer's certificate, Ex.A6 sale deed dated 4/12/1974, Ex.A7 site plan, Ex.A8 another sale deed dated 18.11.1974, Ex.A9 site plan and copies of General Power of Attorneys executed by respondent No.3 and 4 in favour of respondent No.2 Ex.A10 and Ex.A11, respectively. Under his cross-examination, he stated that rent deed Ex.A2 does not bear his signature but has been executed by his father on his behalf as his power of attorney, which he has already given to him on 1.10.1977 (Ex.A10). He also stated that her mother, sister, father are also the co-sharers in the demised premises. He stated that the family settlement of the demised premises has not been taken place between the co-sharers so far. He stated that he has his ancestral house at Chhachhrauli and residential plot of 850 square yard at Yamuna Nagar. He also stated that his father sold two shops adjoining to the disputed shop in the year 1977. He also stated that they had filed a petition against the State Bank of Patiala and finally they compromised the matter with the bank. He again reiterated the fact that after retirement he wants to open up a law training centre in the demised premises and also stated that he wants to settle at Yamuna Nagar and not in Chhachhrauli which is a village. The oral account of petitioner is corroborated by Z.S. Virk AW2, father of petitioner, who in his affidavit Ex.AW2/A stated that the petitioner is a co-sharer in the demised premises to the extent of 1/6th share alongwith the respondents No.3 to 4 having purchased the same vide two registered sale deeds. He stated that petitioner needs the premises for running a coaching institute for law students and wants to open his office for giving legal advice to his clients after his retirement from service, which is due in the year 2011. He further testified that he had inducted respondent No.1 as a tenant vide rent deed dated 3.6.1984 and had signed the said rent deed on behalf of his son (petitioner) and wife for whom he was holding a power of attorney. He stated that petitioner is a co-owner as well as co-landlord in the demised premises. Under his cross-examination he stated that he had executed the rent deed for himself as well as on behalf of the petitioner on the basis of power of attorney. He admitted that he has sold the other shops adjoining to the demised premises. On the other hand, the respondent Sant Kumar appeared as RW4 and in his affidavit Ex.RW4/A testified that he is in possession of the premises in question as a tenant and is running the business therein under the name and style of M/s Vandana Emporium since long and his son Sudarshan Jain assists him in the business. His daughter in law Preeti Jain is tenant in possession of the shop situated on first floor and she is running her business in the name and style of M/s Jain Boutique and Tailors. He further deposed that petitioner never gave any notice to them for vacating the premises in question and they have been regularly paying rent to the landlord and shop in dispute is situated on the main road. There is no parking facility on the road. The version of respondent is corroborated by his son Sudarshan Jain RW1, Sanjay Jain RW2, Preeti Jain RW3 on all the counts. They deposed that respondent No.1 has been paying the rent to the petitioner regularly. They also deposed that the petitioner has never issued any notice for vacation of premises in question. From the evidence referred above, it stands established that petitioner is a co-owner to the extent of 1/6th share in the demised shop and the other respondents are also co-owners in the same. On this aspect the version of petitioner has remained unrebutted. Therefore, the plea taken by the respondents that petitioner is not a co-owner in the shop in dispute is not maintainable. It is settled preposition of law that a co-owner can file an ejectment petition without the consent of the other co-owners. In this regard reference can be made to authority titled as Mohinder Prasad Jain's case (supra). Petitioner when appeared as AW1