CR No.8488 of 2010 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.8488 of 2010 (O&M) Date of decision:22.03.2011. M/s Metro Tyres Limited ...Petitioner Versus Sushil Kumar and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Pankaj Jain, Advocate, for the petitioner. Mr. Chetan Mittal, Senior Advocate, with Mr. Kunal Mulwani, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The tenant is in revision against the order of the Courts below by which it has been ordered to vacate an area of 800 Sq. Ft. of the ground floor of SCO No.135, Sector 24D, Chandigarh on the ground of personal necessity of the landlords who happened to be the husband and wife. In brief, case set up by the landlords is that Renu Dogra purchased SCO No.135, Sector 24D, Chandigarh (demised premises) with Aruna Dogra who later on transferred her 50% share to Sushil Kumar (respondent No.1) by way of registered gift deed. After the purchase, the landlords constructed first and second floors. The tenant was already in occupation of 800 Sq. Ft. area on the ground floor since the year 1984 with whom a lease deed was also executed in the year 1997. The landlords filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] only on the ground of personal necessity alleging that Sushil Kumar (respondent No.1) is a Chartered Accountant since 1984 and is operating from his residence and Renu CR No.8488 of 2010 (O&M) -2- ***** Dogra (respondent No.2) has started the business of share brokerage from 4th floor of SCO Nos.58-59, Sector 17D, Chandigarh which was not found to be suitable as no customer comes to the 4th floor. The share brokerage business being a commercial activity is not permissible from a residential accommodation and as per the Bye-laws of Chandigarh Administration, a professional can use the area maximum up to 450 Sq. Ft. from residential house. Since respondent No.1 has been using 450 Sq. Ft. area of his house No.205, Sector 15A, Chandigarh, therefore, additional area was required for the expansion of business of respondent No.2 which could not have been started from the residential house. Thus, it was decided to start business in the demised premises by respondent No.2 with the help of respondent No.1 and for that purposes the ground floor portion of the demised premises was found to be most suitable which is in occupation of the petitioner/tenant as the remaining portion on the backside of the ground floor is in possession of the landlords. It was also alleged that respondent No.1 had suffered disc problem, therefore, he cannot climb stairs who would also require the entire ground floor of the demised premises for his profession of Chartered Accountant. In reply, the averments made in the eviction petition were denied. On the pleadings of both the parties, two issues were framed. Issue No.1 was to be proved by the landlords who had examined Sushil Kumar as PW1 and Rajiv Gulati as PW2 besides tendering documentary evidence, whereas the petitioner/tenant examined Harshpati S. Rawat as RW1 and led documentary evidence but no evidence in rebuttal was led at the instance of the landlords. Both the Courts below, on appreciation of evidence, had found the need of the landlords of the demised premises to be bona fide and hence, eviction petition was allowed. In the present revision petition, learned counsel for the petitioner has submitted that the eviction petition has been filed by the landlords projecting the bona fide necessity of both of them but since respondent No.2 (Renu Dogra) did not enter the witness box, therefore, her bona fide necessity has not been established. In this regard, he has placed reliance upon a decision of the Division Bench of the Kerala High Court in the case of Thomas John Vs. P. Kochamini Amma, 1995(1) Rent Control Reporter 243. CR No.8488 of 2010 (O&M) -3- ***** On the other hand, learned counsel for the respondents has submitted that the need of both the landlords has been adequately pleaded in the eviction petition wherein respondent No.1 has alleged that he is a Chartered Accountant by profession since 1984 and has been operating from his residential house since then and now wanted to shift his office to the ground floor of the demised premises where his wife (respondent No.2), who is operating from a rented accommodation of 4th floor of SCO Nos.58-59, Sector 17D, Chandigarh, would also start her business of share brokerage in which he would help her with his professional expertise as a Chartered Accountant and since the demised premises is most suitable to their needs, the ejectment of the petitioner/tenant was sought in the eviction petition. When respondent No.1 appeared as PW1, he had categorically stated in his examination-in-chief tendered by way of an affidavit about his bona fide necessity but no suggestion was put to him that he alongwith his wife do not want to commence any type of business or their requirement is not bona fide. He has also submitted that since respondent No.1 is managing the affairs of the business of his wife as well as he had pleaded and alleged that he would help her in her business, his examination before the Court as a witness was sufficient and for that purposes no adverse inference can be drawn in case of non-examination of respondent No.2. In support of his submission, he has relied upon the decisions in the cases of Gulraj Singh Grewal Vs. Dr. Harbans Singh and another, 1993(1) Rent Control Reporter 270, Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha, (2010) 10 Supreme Court Cases 512, Civil Revision No.3844 of 2010 titled as `Gulshan Kumar Pahwa Vs. Smt. Usha Garg and others, decided on 13.08.2010, Darshan Singh Sethi Vs. Chander Prabha, 2005(2) PLR 126, S.P.Sethi Vs. R.R.Gulati and others, 2006(2) Rent Control Reporter 205, Vairam and others Vs. M.S.R. Nageswaran, 2007(2) Rent Control Reporter 130 and Smt. Sushila Devi Vs. Raghunandan Pershad, 1996(1) Rent Control Reporter 359. In support of his submission that if a witness is not cross- examined on a point of fact, then the statement made in his examination-in- chief has to be accepted as correct, he has relied upon a Division Bench decision of this Court in the case of Smt. Harnam Kaur Vs. Shiromani Gurdwara Parbhandak Committee, Amritsar, 1992(1) R.R.R. 135, a Single CR No.8488 of 2010 (O&M) -4- ***** Bench judgment of this Court in the case of Jaswinder Singh and others Vs. Kartar Singh and others, 2005 AIR – P&H 19 and a judgment of the Delhi High Court in the case of Shadi Lal Kapoor Vs. Santosh Kumar Gupta, AIR 1989 Delhi 39. I have heard both the learned counsel for the parties and perused the available record with their able assistance. The question that has been raised by learned counsel for the petitioner, “whether in absence of the landlady from the witness box, who has also projected her bona fide necessity in the pleadings, the ejectment application on the ground of her bona fide necessity could not have been allowed if her co-landlord, i.e. her husband, has been examined”? Learned counsel for the petitioner has primarily placed reliance upon the decision of the Division Bench in Thomas John's case (supra) in which tenanted building was sought to be vacated on the ground of bona fide necessity of the four landlords, out of whom except for one, the others did not choose to speak about their need which was found to be a circumstance against them, but on a thorough perusal of the said judgment it is found that the Court had observed that if the husband is speaking on behalf of his wife and the requirement was for occupation of both of them, then the husband was competent to speak. It was also observed that the question regarding the non-examination of one of the landlord has to be determined on the facts and circumstances of each case. In Gulraj Singh Grewal's case (supra), father and son were the landlords of the demised premises. Both filed the ejectment petition. The son did not appear in the witness box, but father proved his bona fide necessity as well. It was held that non-appearance of his son as a witness was immaterial. In Darshan Singh Sethi's case (supra), it was held that no adverse inference can be raised against the landlady who had not examined herself personally but appeared through her attorney. In S.P.Sethi's case (supra), the landlord wanted shop for his grandsons who were not examined in the witness box but it was held that it would not weaken the case of the landlord. In the case of Vairam and others (supra), the landlord did not CR No.8488 of 2010 (O&M) -5- ***** enter the witness box but the facts with regard to his personal necessity were proved by his Manager. It was held that non-examination of landlord will not give tenant any advantage. In Smt. Sushila Devi's case (supra), the eviction petition was filed for the requirement of one brother, whereas the other brother appeared in the witness box to depose. It was held that non-examination of the brother, for whose requirement the demised premises was sought to be vacated, is of no consequence. In Gulshan Kumar Pahwa's case (supra), one of the landlords did not step into the witness box who was one of the brothers amongst the three landlords. It was held that no adverse inference can be drawn because if a person is totally stranger to the facts of the case and he testifies about the need of the landlord then the matter could have been different, but where the relationship of the landlords is so intricate, then no adverse inference can be derived for merely a non-deposition. The question of non-examination of a witness and adverse inference has now been settled by the Supreme Court in the case of Man Kaur (Dead) by LRs (supra) in which it has been summarized as under: - “18. We may now summarize for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and CR No.8488 of 2010 (O&M) -6- ***** not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or persons residing abroad managing their affairs through their attorney- holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney- holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his CR No.8488 of 2010 (O&M) -7- ***** “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.” From the resume of the aforesaid and specially the law laid down by the Supreme Court in the case of Man Kaur (Dead) by LRs (supra), it is evident that even an attorney in the case of husband and wife can depose on behalf of the other. In this regard, there is a Single Bench judgment of the Andhra Pradesh High Court in the case of Satyanarayan, Spun Pipe Company Vs. N. Padmavathi, 2003(3) R.C.R.(Civil) 388 in which it has been held that as per Section 120 of the Indian Evidence Act, 1872, in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In case of non-appearance of landlady, her husband who had knowledge of the facts can depose in the Court and the non-appearance of his wife cannot be faulted with. Insofar as the question of non cross- examination on the issue of bona fide necessity of the landlords, the Division Bench of this Court in Smt. Harnam Kaur's case (supra) has held that the CR No.8488 of 2010 (O&M) -8- ***** purpose of evidence is to put to a witness the case of the other party so that he may accept or deny the truth of the matter and in case no cross question is put to a witness, his statement is deemed to be accepted as correct. In the case of Jaswinder Singh and others (supra), it was held that in case of non cross- examination of a witness of facts stated by him in his examination, the inference has to be drawn that this statement was not contested. Similarly, in the case of Shadi Lal Kapoor (supra), it has been held that if no suggestion is put in cross-examination, then the statement made in examination-in-chief has to be accepted. Thus, looking from any angle, the orders of eviction passed by the Courts below are found to be perfectly justified and as such, the present revision petition is hereby dismissed, however, without any order as to costs. March 22, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE