IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) C.R. No.1443 of 2002 Krishan Kumar. ....... Petitioner through Shri A.K.Chopra, Senior Advocate with Shri Harminder Singh, Advocate. Versus Shiv Kumar Suri. ....... Respondent through Shri M.L.Sarin, Senior Advocate with Ms.Hemani Sarin, Advocate. (2) C.R. No.3012 of 2006 Shri Krishan Gopal ....... Petitioner through Shri A.K.Chopra, Senior Advocate with Shri Harminder Singh, Advocate. Versus Shri Shiv Kumar Suri. ....... Respondent through Shri M.L.Sarin, Senior Advocate with Ms.Hemani Sarin, Advocate. Date of Decision: 26.8.2010 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... C.R.No.1443 of 2002 -2- .... Mahesh Grover,J. By this judgment, I propose to dispose of the above mentioned two revision petitions, which, although have been preferred against different orders/ judgments passed by the authorities below, but, pertain to one property, i.e., Shop-cum-Flat No.4, Sector 22-D, Chandigarh consisting of three storeys and involve identical questions of law and facts. Respondent-Shiv Kumar Suri filed Rent Application No.127 of 20.8.1996/30.1.1997 against petitioner-Krishan Kumar, whereas Rent Application No.166 of 1.2.1997 was instituted against petitioner-Shri Krishan Gopal (mentioned as Krishan Lal in the rent application) for their ejectment respectively from first floor and ground floor of the abovesaid property. It was pleaded by the respondent that the property was owned by him and his brother-Sat Sarup; that he was serving in the Army and has retired therefrom with effect from 31.7.1990 as a Civilian Telecom Master Craftsman; that they have decided to shift to Chandigarh; that he intends to start the business of electronics and electricals in which he had got enough experience; that his two sons will also join him in the business, although presently the elder son is working in a private company, whereas the younger son is studying; that his wife is not keeping good health and, therefore, they want to get treatment from the P.G.I., Chandigarh; that the building is, thus, required by him for residence as well as for business purposes and that the petitioners were asked to vacate the building, but they did not do so. The petitioners resisted the prayer of the respondent by C.R.No.1443 of 2002 -3- .... pleading that the personal necessity did not exist. It was pleaded by them that the respondent did not have any experience in the trade of electronics and electricals and consequently the need is not bona fide which is also reflected from the fact that his son is engaged in his own business of card- board manufacturing at Jalandhar and that an advertisement was inserted in the newspapers by him for sale of the property in question which also goes to show that he does not require the same for his personal use and occupation. In the case of the petitioner-Krishan Kumar, the Rent Controller accepted the prayer of the respondent, whereas it dismissed proceedings initiated against petitioner-Krishan Gopal. The Appellate Authority dismissed the appeal of petitioner- Krishan Kumar, but accepted the appeal of respondent and thus, in ejectment of both the tenants stand ordered. C.R.No.1443 of 2002 has been filed by petitioner-Krishan Kumar challenging the orders passed by the authorities below, while C.R.No.3012 of 2006 has been directed by petitioner-Krishan Gopal against the judgment of the Appellate Authority. Learned counsel for the petitioners has contended that the need of the respondent-landlord is not bona fide as he could not establish from any material on record that he intended to set up his business along with his son, who was, in any case, already engaged in the business of card-board manufacturing in Jalandhar. He also referred to the record to show that even though, the respondent initially pleaded that one of his sons was C.R.No.1443 of 2002 -4- .... privately employed and the other was a student, yet, in evidence, it has come that the elder son was engaged in his own business which is reflective of the fact that the pleadings have been stretched only to magnify his need. Learned counsel for the petitioners submitted that there is sufficient evidence on record to establish that the respondent had inserted an advertisement for sale of the property which again indicate that the tenanted premises were not required for his own use and occupation, but were meant to be sold by him. That apart, he referred to earlier proceedings initiated by the respondent against petitioner-Krishan Kumar under Section 13-A of the East Punjab Urban Rent Restriction Act,1949 (for short, `the Act') which were finally concluded before this Court in C.R.No.2729 of 1995 wherein a learned Single Judge affirmed the finding recorded by the Rent Controller that the building was non-residential and, therefore, the tenant could not be evicted by the landlord on account of his residential need. Pointed reference was made to the following portion of judgment dated 22.4.1996 passed in the above-mentioned revision petition:- “Respondent's learned counsel valiantly argued that the said judgments PX and PY are not before the Court and further those decisions are prior to the Amendment Act,1942 of 1982, referred to above. By this Amending Act, Section 2(d) of the Act is amended if the building is being used solely for the purpose of business or trade or if the building is let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence, then it is a non-residential C.R.No.1443 of 2002 -5- .... building. He pointed out that in para 13 of the impugned order, the learned Rent Controller has scanned the evidence on record. He has pointed out that Krishan Gopal Manchanda, who is a tenant on the ground floor of this building, has stated on oath before the lower Court that the first floor was rented out to Krishan Kumar for commercial purpose and he is running a type-writing shorthand business in the same. Krishan Kumar has also stated so but this statement is not assailed in cross-examination. On that premises, the Rent Controller concluded that thereby the petitioner has admitted that the demised premises was leased out to the respondent by his father for commercial purpose and he is using the same as such uptil now. This finding is not assailed before me. No rent note was produced in the lower Court. The petitioner could not controvert this evidence of the respondent that the demised premises was leased out to him by the petitioner's father for non residential purpose. Admittedly, he is running a type- writing shorthand school in this premises. Thus, in my considered view, the learned Rent Controller has rightly held that as this is non residential building, the petitioner-landlord cannot evict the tenant- respondent for his residential need. In view of this finding, I hereby affirm the finding recorded by the learned lower Court.” C.R.No.1443 of 2002 -6- .... In view of the aforequoted observations, learned counsel for the petitioners contended that since the building was commercial, the ejectment of petitioner-Krishan Kumar from first floor could not have been ordered by the authorities below on the ground of need of the respondent qua the same for residential purpose. He further contended that the evidence on record cumulatively proved that the need of the landlord was not bona fide and, therefore, the impugned judgments are liable to be set aside. In support of his contentions/ submissions, he placed reliance on Shri Rattan Chand Jain Versus Shri Charan Singh, 1978(1) R.C.R. 265 (P&H); Deena Nath Versus Pooran Lal, 2001(2) Rent Control Reporter 130 (S.C.) and Joginder Pal Versus Naval Kishore Behal, 2002(1) Rent Control Reporter 582 (S.C.). To the contrary, learned counsel for the respondent submitted that the tenant cannot dictate to a landlord whether his need is bona fide or not and the Courts are not required to look suspiciously at such need when expressed by him. He further submitted that the respondent, after retirement, wanted to set up a business along with his sons in order to take care of his financial needs which he desperately required and merely because one of his sons was engaged in some industrial activity, it could not deprive him of the requirement of the building in question to set up a business which was his wish. It was next submitted that the advertisement which has been placed in newspapers, cannot be construed to be fatal to the case of the respondent for the simple reason that a person, who is confronted with a situation where the property is rendered useless for him, will, in all C.R.No.1443 of 2002 -7- .... earnestness, make an endeavour to have some return, even if it amounts to sale, but that per se cannot extinguish the desire of a landlord to set up a business which is intended as first alternate. Lastly, it was contended that the judgment of this Court rendered in C.R.No.2729 of 1995 would not make any difference to the case of the respondent because those proceedings were initiated under Section 13-A of the Act wherein he, by projecting himself as a specified landlord, had sought eviction of petitioner-Krishan Kumar on the ground of personal necessity for residence pertaining to the first floor, but since the provisions of law clearly debarred him from enforcing such a right qua non-residential premises, afore-quoted observations followed and the same cannot be held against him. In support of his contentions/ submissions, he placed reliance on Joginder Singh Versus Nahar Singh, 1989(1) R.L.R. 563 (P&H); Raj Kumar Khaitan and others Versus Bibi Zubaida Khatun and another, AIR 1995 S.C. 576; Harbilas Rai Bansal Versus The State of Punjab, 1996(1) Punjab Law Reporter 227 (S.C.); Dattatraya Laxman Kamble Versus Abdul Rasul Moulali Kotkune, 1999(1) Rent Control Reporter 508 (S.C.); Raghunath G.Panhale (Dead) by LRs. Versus Chaganlal Sundraji and Co., (1999) 8 S.C.C. 1; Ragavendra Kumar Versus Firm Prem Machinary and Co., AIR 2000 S.C.534; Ramjidas & Anr. Versus Rambabu & Ors., 2000(1) R.L.R. 329 (S.C.); The Ferozpur Coop. Printing & Publishing Society Ltd. Versus Rhoshan Lal & Anr., 2000(1) Rent Control Reporter 229 (P&H); Gaya Prasad Versus Pradeep Srivastava, 2001(1) Rent Control Reporter 221 (S.C.); N.R.Narayan Swamy Versus B.Francis Jagan, AIR 2001 S.C. 2469; C.R.No.1443 of 2002 -8- .... Pritam Singh Versus Lakhbir Singh, 2001(2) Rent Control Reporter 289 (P&H); Atma S.Berar Versus Mukhtiar Singh, JT 2002(10) S.C. 224; Shashi Kapila Versus R.P.Ashwin, 2002(1) R.L.R. 1 (S.C.); Joginder Pal Versus Naval Kishore Behal, 2002(1) Rent Control Reporter 582 (S.C.); Shabir Ahmad Versus Sham Lal and another, AIR 2002 S.C. 1036; Kailash Chand and another Versus Dharam Dass, (2005) 5 S.C.C. 375; Rakesh Vij Versus Dr.Raminder Pal Singh Sethi and others, (2005) 8 S.C.C. 504; Sait Nagjee Purushotham & Co.Ltd. Versus Vimalabai Prabhulal and others, (2005) 8 S.C.C. 252; Mohinder Prasad Jain Versus Manohar Lal Jain, 2006 (1) Rent Control Reporter 250 (S.C.); Ashok Narang and Anr. Versus Mrs.Shanta Anand, 2006(1) H.R.R. 249 (P&H) Hariender Kaur Versus Sharan Gurdev Singh, 2008(1) Rent Control Reporter 304; and Ram Lal & another Vesus Santosh Kumar Puri, 2009(2) P.L.R. 552 (P&H). I have thoughtfully considered the rival contentions/ submissions and have gone through the relevant record and other material which was produced before this Court during the course of arguments. There is no denying the fact that the respondent retired from armed forces and set up a plea in his ejectment applications that he required the tenanted premises for residence and for setting up his business of electronics and electricals along with his sons, one of whom was employed privately and was earning Rs.4000/- to Rs.5000/- per month. It has also been pleaded by him that his wife is not enjoying good health and she requires treatment from a specialized hospital which need he could satisfy by visiting the P.G.I., Chandigarh. C.R.No.1443 of 2002 -9- .... As against this, the only material referred to by the petitioners in order to off-set the plea of personal necessity of the respondent is merely a diktat of the tenant that the demised premises are not required by the landlord in view of the fact that an advertisement had been given by him in the newspapers for its sale. Strong emphasis was also sought to be placed on earlier litigation inter se between the landlord and petitioner-Krishan Kumar where the finding of personal necessity was negated and it was contended that this be taken as a bar of res judicata in the present proceedings against the tenant. I am afraid, the aforesaid plea has necessarily to be rejected. The respondent, who has retired from Army and is desirous of setting up of his own business, cannot be prevented from doing so by the tenants, who question his desire on the ground that he neither has the requisite experience nor is his need genuine. In Dattatraya Laxman Kamble Versus Abdul Rasul Moulali Kotkune (supra), the Supreme Court observed as under:- “11. If a person wants to start new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fide is a fallacious and unpragmatic approach. Many a business have flourished in this country by leaps and bounds which were started by novice in the field; and many other business ventures have gone haywire despite vast experience to the C.R.No.1443 of 2002 -10- .... credit of the of the propounders. The opinion of the learned single judge that acquisition of sufficient know-how is a pre- condition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that `no experience no venture'. 12. That apart, appellant is not a total novice in the field of dealings in electrical equipment. The fact that the discipline in his academic specialization was Electrical Engineering is quite indicative of some knowledge he has in the subject, though a business in such commodities may have different phases. Learned single judge seems to have written him off as a person totally unfamiliar with any transaction in electrical goods. Such an angle is not a charitable view towards the landlord. At any rate there may be differing views for different people on how to start a business. The High Court has committed jurisdictional error in upsetting a fact finding merely on the individual view held by the learned judge about a business venture. We have no doubt that reversal of the appellate court order on the above ground is unsupportable in law and hence is liable to be interfered with. We do so.” C.R.No.1443 of 2002 -11- .... In so far as the question that one of the sons of the respondent is engaged in some trade and his pleadings are at variance with the evidence on record, is concerned, that too is meaningless. Even if the son of the respondent is employed or engaged in some trade, it would make no difference to his case because it is for him to decide as to whether his son is to be enjoined in the new venture which he intends to set up or not and for that purpose, his son would give up the business or vocation or would continue with both, would be the matter which is to be taken care of by him and his family, but under no circumstance, can a tenant place himself in such a situation so as to point out the probabilities or improbabilities of the course which the landlord chooses to adopt for himself. The next contention that has been raised relates to the insertion of an advertisement in the newspapers by the respondent for the sale of the property. I am afraid, this too would not make any difference to the case of the respondent as it is up to him to explore any possibility of maximising his benefit from his property, especially when the same seems to be stuck on account of the protection of the statute with the tenant and consequent situation arising therefrom. Although there is a finding recorded in judgment dated 22.4.1996 passed in C.R.No.2729 of 1995 that there is ambiguity regarding the fact as to whether the respondent placed such an advertisement or not, yet, for the aforesaid reasons which are being given by this Court, I need not go into this aspect of the matter whether the said finding has been correctly recorded or not. In Shashi Kapila Versus R.P.Ashwin (supra), the Apex Court C.R.No.1443 of 2002 -12- .... observed as under:- “13.The second limb of the contention is that when the landlord himself had agreed to transfer his rights to others, such a stance is negatory to his claim that he genuinely needs the building for his own occupation. At the first blush, the argument appeared forceful because the bona fides of the landlord's need could possibly get eclipsed when the landlord himself wanted his rights in the building to be alienated to other persons. But when we delved into the matter, we found that genuineness of the landlord's need remains unimpaired despite his earlier inclination to sell the building. .........” Now, coming to the judgment rendered in C.R. No.2729 of 1995 and its impact upon the case of the respondent against petitioner- Krishan Kumar, I am of the opinion that the same cannot bind the respondent in the instant case for the reason that those proceedings were initiated under Section 13-A of the Act which were obviously misconceived because such benefit was not available to the landlords, specified or otherwise, in cases of buildings which were non-residential in character, but after the judgment of the Supreme Court in Harbilas Rai Bansal Versus The State of Punjab and others (supra), the proposition of law has resulted in facilitating the landlord's quest of getting the demised premises vacated which are non-residential as well. In that case, after taking note of the scheme of the Act and various judgments, their Lordships observed in paragraph 17 of the judgment as under:- C.R.No.1443 of 2002 -13- .... “........ The observations of the Constitution Bench that “bona fide need of the landlord will stand very much on the same footing in regard to either class of the premises, residential or commercial, fully support the view, we have taken, that the classification created by the amendment, has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of the amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck down.” In view of the above, the finding which emanated from the proceedings under Section 13-A of the Act would stand restricted only to those proceedings and ought not to be read in the instant proceedings so as to have negative effect on the case of the respondent. Another contention which was raised before this Court by the learned counsel for the petitioners while making a reference to the judgment in Shabir Ahmad Versus Sham Lal and another (supra) is that the property in question being Shop -cum-Flat was a commercial building and,therefore, it was non-residential and could not be got evicted for residential purpose. I am afraid, the aforesaid contention also needs to be repelled for the simple reason that it has been found as a matter of fact that the demised premises are required for commercial as well as for residential purpose and even if the entire building is to be treated as non-residential, even then, the need of the respondent is express enough so as to warrant eviction of the petitioners and if the first floor of the building is held to be C.R.No.1443 of 2002 -14- .... residential, then, in that eventuality also, the need as expressed by the landlord for setting therein also stands adequately established. Looking at it from any angle, I am of the opinion that the impugned judgments do not require any interference and deserve to be upheld. Ordered accordingly. The revision petitions are, thus, dismissed being devoid of any merit. At this stage, Shri A.K.Chopra, Senior Advocate, upon instructions from Shri Harminder Singh, Advocate, has stated that he does not wish to press the present petitions in the eventuality of being granted one year time to vacate demised premises and to hand over physical vacant possession thereof to the respondent-landlord on or before 31.8.2011. He further stated that during this period, the petitioners will continue to pay the rent and the arrears, if any, shall be cleared within one month from today. The above statement is acceptable to the counsel for the respondent. Having regard to the aforesaid, the instant petitions are dismissed as not pressed and the petitioners are granted one year time to hand over physical vacant possession of the demised premises to the respondent on or before 31.8.2011 subject to the following conditions:- 1. The petitioners shall furnish their respective affidavits before the Rent Controller, Chandigarh within a period of four weeks from today undertaking to vacate the demised premises and hand over the physical possession thereof to C.R.No.1443 of 2002 -15- .... the respondent within one year from today. 2. The petitioners shall restore the possession of the demised premises to the respondent without any damage to the property and they shall not make any addition or alteration thereto and also continue to pay the rent at the agreed rate by the 7th day of each month and shall also pay all the arrears, if any, on account of rent or any other terms of the tenancy while furnishing the undertaking,i.e., within three weeks. 3. The petitioners shall also record in the affidavits that they would be bound by the terms of such an undertaking and shall not make any attempt to wriggle out of the same. August 26,2010 ( Mahesh Grover ) “SCM” Judge