C.R. No.5146 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5146 of 2006 (O&M) Date of decision:- 18.04.2011 Mohmad Hanif ...Petitioner Versus Amit Mahajan ...Respondent CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. M.L. Sarin, Sr. Advocate with Ms.Hemani Sarin, Advocate for the petitioner. Mr. Kasturi Lal, Advocate for the respondent. RAKESH KUMAR JAIN J.(Oral) The question involved in this revision petition is “whether a person merely assisting/helping his father in his business in the tenanted premises would be deemed to have occupied the said premises even though it is vacated by his father on account of closer of his business and is thus precluded from seeking eviction of his own tenant on account of his personal need on the ground that he had vacated the earlier premises in his possession.” The brief facts of the case are that the landlord filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 against the tenant for getting Booth No.22, Sector-47D, Chandigarh vacated on the ground of personal necessity. The demised premises was let out by Kanta Devi Mahajan to the tenant at a monthly rent of ` 400/- excluding electricity and water charges by executing a rent note for 11 months on 15.07.1979 for the purpose of running hair cutting saloon. C.R. No.5146 of 2006 (O&M) -2- Gradually with the passage of time, due to yearly increase, the rent of the demised premises came to be ` 850/- per month excluding electricity and water charges. Kanta Devi Mahajan transferred her ownership rights of demised premises by way of registered gift deed dated 14.11.2002 in favour of the landlord. The landlord filed the eviction petition on 09.12.2002 alleging that he is 26 years of age, unemployed graduate, wanted to start his business of wholesale and retail of stationery in the demised premises and categorically alleged in paragraph 6 of the eviction petition that he does not occupy any other commercial building in the urban area of Chandigarh and has not vacated such a building without sufficient cause, after the commencement of the Act, in the urban area of Chandigarh. In reply, the tenant disputed the relationship of landlord and tenant with the present landlord and para 6 of the eviction petition was simply replied as “wrong and hence denied.” On the pleadings of the parties, the learned Rent Controller framed the following issues:- 1. Whether there exists relationship of landlord and tenant between the parties?OPP 2. Whether the petitioner is entitled to a decree for ejectment of the respondent from the demised premises?OPP 3. Whether the petition is not maintainable?OPR 4. Relief. Both the parties led their respective oral as well as documentary evidence, in which landlord examined Rajinder Kumar as PW-1 and himself as PW-2, besides, tendering rent note as Ex.P-1, gift deed Ex.P-2, postal envelope Ex.P-3, letter regarding the change of landlord/owner of the demised premises Ex.P-3/A, notice regarding change of ownership Ex.P-4 and copy of transfer of the disputed premises by the Estate Officer C.R. No.5146 of 2006 (O&M) -3- in his favour as Ex.P-5. The respondent himself appeared as RW-1 and examined Raghbir Singh as RW-2 and tendered in evidence the rent receipt Ex.RW-1/A before closing his evidence. The learned Rent Controller decided issue No.1 in favour of the landlord holding their relationship of landlord and tenant. Issue No.3 was also decided in favour of the landlord but issue No.2 was decided against him, inter alia, on the ground that the landlord has admitted that they had vacated shop in Sector-29C, Chandigarh when his father stopped working, therefore, he could have easily started his business in the said shop and secondly that it is merely a desire of the landlord of starting business in the demised premises though he had admitted that he does not have any experience of wholesale business of stationery. While deciding issue No.4, the eviction petition was dismissed. The learned Appellate Authority was only concerned with the finding of the learned Rent Controller on the issue of personal necessity which was decided in his favour observing that the landlord cannot be forced for doing the business with his father in the tenanted premises. The learned Appellate Court also relied upon a decision of the Supreme Court in Dhannalal versus Kalawatibai and others (2002) 6 Supreme Court Cases 16. It was also observed that the petitioner has completed his graduation and is still without any work and in that circumstances requirement to start his own business cannot be a mere wish or desire but a bona fide necessity. In the present revision petition learned counsel for the petitioner has submitted that the need of the landlord is not bona fide as he himself admitted to have graduated in the year 1996 but he never looked for a job. The rent of the demised premises was increased from ` 400/- to ` 850/-. The eviction petition was filed on 09.12.2002, just after the registered gift deed executed in his favour on 14.11.2002 (Ex.P-2) without even waiting C.R. No.5146 of 2006 (O&M) -4- for formal transfer of title in his name by Estate Officer and there is no evidence that he himself or his father was the tenant in booth No.59, Sector-29C, Chandigarh and if he had vacated demised premises occupied in Sector-29C, Chandigarh then in terms of Section 13(3)(a)(i)(c) of the Act eviction petition was not maintainable. In support of his submission, he has referred to a decision in the case of Banke Ram versus Shrimati Sarasti Devi 1977 (1) All India Rent Control Journal page 332 to contend that landlord has to plead all the three ingredients in his eviction petition. He has also relied upon decisions of Supreme Court in the cases of Phiroze Bamanji Desai versus Chandrakant M. Patel and others (1974) Supreme Court 1059 and Deena Nath versus Pooran Lal 2001 (2) RCR page 130 to contend that the bona fide requirement should not be a mere whim or fanciful desire of the landlord. He has also referred to the cross- examination of the landlord where he has stated that “I use to assist my father in his shop at booth No.59, Sector-29C, Chandigarh. I continued helping him till 2002.” It is thus submitted that since the landlord was also occupying booth No.59, Sector-29C, Chandigarh along with his father, therefore, he could not have maintained the eviction petition in terms of the provisions of Section 13(3)(a)(i)(c) of the Act. In respect of the judgment of the Supreme Court in case DhannaLal (Supra), he has submitted that the said judgment is not applicable as it deals with specific provision of Section 23(A)(b) of the M.P. Accommodation Control Act, 1961 in which it is provided that the landlord or such person should not have any other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned whereas word "of his own” is conspicuously absent in Section 13(3)(a)(i)(c) of the Act which only provides for vacation of building without sufficient cause after the commencement of the Act. C.R. No.5146 of 2006 (O&M) -5- In reply, learned counsel for the respondent has submitted that the question of maintainability of the eviction petition was never raised by the tenant in his reply and when the learned Rent Controller framed issue No.3 in this regard, it was decided against the tenant as he failed to prove as to how the eviction petition was not maintainable. He further submits that the landlord has categorically mentioned in para 6 of eviction petition that he is neither occupying any other commercial building in the urban area of Chandigarh nor has vacated any such building without sufficient cause after the commencement of the Act. This paragraph has even been simply denied by the tenant and there is no reference in the written statement that the landlord was a tenant in booth No.59, Sector-29C, Chandigarh or had been occupying it as a matter of his right and has vacated without any sufficient cause. He further submitted that the landlord had specifically urged in his examination-in-chief tendered by way of affidavit Ex.PA about his not occupying any other commercial building and not vacating any such building without sufficient cause but he was not even cross-examined on the issue that he was occupying the shop in possession of his father in his own right, rather the landlord had categorically stated that he was merely assisting his father in his shop as he was an old man and since he stopped working and vacated the said shop, he had a sufficient reason to stop working as well. But as soon as he got title of the demised premises by virtue of Ex.P-2, he being an unmarried 26 years old graduate having some experience of stationery business with his father, opted for opening his own outlet in his own accommodation. In this regard, he has relied upon a decision of Supreme Court in the case of Yadvendra Arya and another versus Mukesh Kumar Gupta (2008) SCCR 239 to contend that simply because the petitioner was provisionally assisting his father in his business does not mean that he should never start his own independent business. Besides this, he has also submitted that a tenant is C.R. No.5146 of 2006 (O&M) -6- no body to dictate the landlord as how to he is going to use the demised premises after its vacation nor the lack of bona fide can be inferred on the ground that the landlord has no prior experience of the business which is sought to be carried out. Heard both the counsel for the parties and perused the record. It is not disputed that the landlord had become the owner-cum- landlord of the demised premises by virtue of Ex.P-2 in the month of November 2002 and that the earlier business being carried out in booth No.59, Sector-29C, Chandigarh was also closed somewhere in November 2002 itself. The landlord being unemployed youth of 26 years of age, whose father was old and who could not carry on the business himself then he himself decided to carry on his own business in the demised premises and had categorically alleged in para 6 of the eviction petition that he is not occupying any commercial building nor has vacated any building without sufficient cause in the urban area of Chandigarh. Para 6 of the eviction petition was not categorically denied. Nothing was mentioned by the tenant that the landlord himself is a tenant in the Booth No.59, Sector- 29C, Chandigarh, which was got vacated nor any such issue was framed so that parties could have led their evidence. The landlord had categorically stated this fact in his affidavit Ex.PA and was not even cross- examined on this account by the tenant who had only asked about his status in the shop which was being run by his father regarding which the landlord had stated that he has been assisting and helping his old father in his business. The judgment relied upon by the learned counsel for the tenant in the case of Phiroze Bamanji Desai (supra) and Deena Nath (supra) is not at all applicable because it is not the mere wish or fanciful desire of the landlord rather it is his bona fide necessity to start his own business because his father had closed down his business rendering him unemployed. The other judgment in the case Banke Ram (supra) only C.R. No.5146 of 2006 (O&M) -7- deals with the issue that landlord is required to plead all the ingredients of Section 13(3)(i)(a)(b)(c) of the Act which have been pleaded by the landlord as is evident from his eviction petition, therefore, this judgment is not applicable. On the other hand, the judgment relied upon in the case of Dhannalal (supra) is also not applicable because that pertains to specific provision of M.P. Accommodation Control Act, 1961 which talks of the non- residential accommodation "of his own" in his occupation in the city, whereas the word "of his own" is not available in the Act as it only deals with accommodation and vacation without sufficient cause. In this case, the landlord has not vacated the earlier premises in the accommodation of his father without sufficient cause because father had closed the business in which he has no right of his own. It is required to be established by the tenant in order to non-suit the landlord but neither there was any pleading nor any evidence and not even the landlord was cross-examined in this regard. The judgment relied upon by the landlord in the case Yadvendra Arya (supra) helps him to the extent where it has been held that if a person provisionally assist his father in his family business it could not mean that he could never start his own independent business. After taking into consideration various aspect of the matter, the question posed in the beginning of the judgment is answered in favour of the landlord and it is held that if a person who is provisionally assisting/helping his father in the business which is closed by his father and vacates the premises occupied by him then it would not mean that the said person has also vacated the said premises, which could preclude him from seeking eviction of a tenant sitting over his own premises, on the ground that he had vacated a similar accommodation after coming into force of the Act. It would also be pertinent to refer to another argument of the C.R. No.5146 of 2006 (O&M) -8- tenant that since rent has been increased from ` 400/- to ` 850/- therefore, there was no question of any bona fide requirement. In this regard, reliance has been placed on the case of Sant Lal versus M/s. Kanshi Ram Dewat Ram 1989 (1) RCR 375 but this judgment is not applicable because in the said case the tenant had filed a suit for permanent injunction against the landlord which was disposed of as the tenant had enhanced the rent from ` 300/- per annum to ` 1200/- per annum. This was done on 02.06.1975, whereas the application for ejectment was filed on 06.10.1975. In the present case, however, the premises was let out in 1979 by Kanta Devi Mahajan at the rate of ` 400/- per month excluding water and electricity charges, which gradually rose up to ` 850/- per month excluding water and electricity charges in which no part has been played by the present landlord who became the owner only in November 2002 i.e. a month prior to the filing of the eviction petition. In view of the above discussion, the present eviction petition is found to be without any merit and hence it is hereby dismissed but without any order as to cost. Since the tenant is sitting in the demised premises since 1979 and would require sometime to search for alternate accommodation, therefore, three months time is granted to him from the date of passing of this order to vacate the demised premises subject to his paying the arrears of rent, if any due and also monthly rent of the ensuing months. April 18, 2011 (RAKESH KUMAR JAIN) Jyoti 1 JUDGE