CR No.3315 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3315 of 2011 (O&M) Date of decision: 25.11.2011 A.K. Malohotra son of Shri R.S. Dass Malhotra ......Petitioner(s) Versus Mrs. Ruby Singh alias Malvinder Kaur and anr. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.K. Chopra, Sr. Advocate with Mr. Rajneesh Chauhan, Advocate for the petitioner. Mr. Arun Palli, Sr. Advocate with Mr. Divanshu Jain, Advocate for the respondents. Rakesh Kumar Garg, J. This is tenant's revision petition challenging the order of eviction dated 19.1.2010 of Rent Controller, Chandigarh and the judgment dated 25.3.2011 of the Appellate Authority dismissing his appeal against the aforesaid order of eviction. The respondent-landlords filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the 'Act') making averments that House No.47, Sector 19-A, Chandigarh was originally owned by Smt. Bhagwant Kaur w/o Attar Singh who bequeathed it in favour of her husband-Attar Singh during her life time vide Will dated 2.7.1986 creating the life interest in him and upon his demise in favour of her younger son namely late Major Arbinder Singh, Smt. Ruby Singh @ Malvinder Kaur w/o of Arbinder Singh and grandson Sameer Singh son of Major Arbinder Singh. Bhagwant Kaur died on 16.10.1990. After her CR No.3315 of 2011 (O&M) 2 death, Attar Singh her husband became owner of the said house and virtually petitioner No.1 and petitioner No.3 became owner of the house in question as Arbinder Singh had died during the life time of Bhagwant Kaur. The petitioner took on rent first floor of the house in question comprising of two bed rooms, drawing and dining, study room, kitchen, toilet, front and back verandah by executing rent agreement dated 18.12.1989. Initially the rate of rent was Rs.2500/- per month excluding water and electricity charges and taxes etc. payable in advance in cash by 7th of each British Calender month. The petitioner continued making payment of rent with an yearly increase @ 10% as agreed and he lastly paid rent with the increased rate of rent @ Rs.6500/- per month but he did not pay the rent since the month of December, 1998. The petitioner used to deal in the business of sale and purchase of cars under the name & style of “Car Palace” in Sector-7, Chandigarh. For the last four years, the said business of the petitioner had failed and he came under financial crisis and has not been able to pay and clear arrears of rent w.e.f. 1.1.2001 @ Rs.6500/- per month. The landlord was having good status in their respective lives. Attar Singh was of 94 years of age and is a writer and has several books at his credit. The ground of personal necessity was also set up by the landlords which reads thus: “That petitioner No.1 who is trained teacher and has done Training Course from famous St. Beeds School, Shimla (HP). After the said training, she remained employed in well known Saint Kabir School Sector-26, Chandigarh from 1981 to 1995. Her husband was Major in Army who after seeking pre-mature retirement was serving at Milkfood at Patiala. He died in the year 1989 in the Motor Vehicle Accident. She had to leave her job due to problem of her daughter. However, even after she has left the job. Petitioner No.1 is regularly engaged in coaching of students and there is great CR No.3315 of 2011 (O&M) 3 demand for her, thus one room is required by petitioner for coaching/tuition for the children/students. Petitioner No.1 has one son, who is petitioner No.3 and one daughter. Petitioner No.3, is an MBA and aged 31 years. He is in service in Bank of Punjab, Sector-9, Chandigarh, as Manager. He is married with Mrs. Kamaldeep Kaur who is aged 28 years, she has done her M.Phil and presently is doing Ph.D. and is in service on ad hoc basis as teacher in Panjab University, Chandigarh. She being in teaching profession, she also requires one separate room for study. The daughter of the petitioner No.1 namely Mrs. Sunaina aged 27 years, is now married with S. Amarjit Singh Minhas and is resident of Canada. She has got one daughter aged about 18 months. The daughter of the petitioner No.1 alongwith her husband and child visit the petitioners frequently. Hence, petitioners require one separate room for them. That petitioner No.2 had two sons namely late Sh. Arbinder Singh, husband of the petitioner No.1 and S. Tej Bahadur Singh who also died in the year 1986 leaving behind his widow Mrs. Pawan Kaur and one son Dr. Jai Karan Singh alias Banni and daughter-in-law Dr. Neeru. They have 3 children, namely Ms. Saiba aged 14 years, Ms. Simar aged 6 years and Master Sumeer aged 4 years. Thoug wife of S. Tejbahadur Singh as well as her son, daughter-in-law and grand children are settled in Srinagar, However, they also visit the petitioners regularly in every winter season and stay with petitioners for about 3 to 4 months regularly. Two rooms are required for them to live in the house in question. Xxxx xxxx xxxx xxxx xxxx That accommodation with the petitioners comprises of 2 bed rooms, drawing-cum-dining room, study room, Annexee having one room, kitchen bath and latrine situated in the ground floor of the house in question. CR No.3315 of 2011 (O&M) 4 The dining table as a matter of fact has been kept in the gallery/passage due to shortage of space in the said area. That the tenanted premises was given on rent to the respondent in the year 1989, when the children were of young age. But with the passage of time of sixteen years, they have grown up and the above accommodation, as given in para No.10 above, has become insufficient, inadequate and does not meet the needs and requirements of the petitioners, their children and relatives and friends. Many friends visit the petitioners. The accommodation has become very inadequate and insufficient. That keeping in view the status of the petitioners, their family, as well as of other members of family, the petitioners need and require, the whole of the first floor for the bona fide use and occupation, as present accommodation is totally insufficient and inadequate for proper living and leading comfortable life.” Upon notice, the petitioner contested the petition and filed written statement raising preliminary objections. The alleged agreement set up by the landlord was stated to be forged and fabricated document. Rate of rent was stated to be Rs.2500/- per month excluding water and electricity charges. It was further averred that the rent was paid to respondent No.1 upto 2005 but she did not issue any receipt intentionally. However, it was admitted that Bhagwant Kaur died on 16.10.1990. It was further stated that the alleged rent agreement dated 18.12.1989 was never acted upon and the same was fabricated one. It was denied that the petitioner was in arrears of rent since December 1998 and the rent was paid in the presence of brother and some times in the presence of wife of the petitioner. It was further stated that respondents did not require the premises for their personal use and occupation. Ultimately, prayer for CR No.3315 of 2011 (O&M) 5 dismissal of the petition was made. From the pleading of the parties, the following issues were framed: 1. What is the rate of rent? OPP 2. Whether the respondent is in arrears of rent, if so, its effect? OPP 3. Whether the petitioner requires the demised premises for bonafide personal necessity? OPP 4. Whether the petitioner is entitled to ejectment as prayed for?OPP 5. Relief.” After hearing learned counsel for the parties, the Rent Controller decided issue No.1 against the landlord and held that rate of rent was Rs.2500/- per month. Issue No.2 was held against the landlords holding that the tenant was not in arrears of rent. However, issues No.3 and 4 were decided in favour of the landlord holding that need of the landlord was bona fide and were entitled to evict the petitioner on the said ground. Thus, the ejectment petition was allowed and the petitioner was granted three months' time to hand over the vacant possession of the demised premises to the respondent-landlord. The relevant part of the order reads thus: “A perusal of the oral testimony on record reveals that the petitioner has submitted that he requires the demised premises bonafide for his personal use and occupation. It is deposed by her that S. Attar Singh, her father-in-law requires one room for writing purposes. He has deposed that there are only two bed rooms on the ground floor of the house and one drawing room alongwith bathroom and kitchen. There is no other room on the backside except the servant room. There is another servant room by the side of the back courtyard besides the room. It was earlier a store, CR No.3315 of 2011 (O&M) 6 but now it is being used by the servant due to compulsion. He deposed that he had written 5-6 books. Further, he is writing the book titled as “Panj Partani”. He admitted that he used to live in the living room on the backside and cannot walk due to his ill health. Learned counsel for the respondent vehemently argued that S. Attar Singh has admitted that he is sick and infirm and cannot write. However, PW-4 has admitted that he has already several books to his credit and is in the process of writing. Further, he is unable to walk and use to reside in the living room of the house, meaning thereby that one room in the demised premises is required for his personal use & occupation. Learned counsel for the petitioner further submitted that petitioner No.1 Ruby Singh is a trained teacher and has done training course from Shimla She remained employed in St. Kabir School from 1981 to 1995 and engaged herself in coaching. Learned counsel for the respondent has submitted that taking of tuitions and coaching in the residential premises is not permitted, as also admitted by RW-3. Learned counsel for the respondent further submitted that PW-4 has admitted in his cross-examination that her daughter-in-law is not taking any tuitions, rather she remains busy in managing the household work. Learned counsel for the petitioners, however, argued that Chandigarh is the centre for educational excellence and there is shortage of trained teachers. Learned counsel for petitioners further submitted that respondent has not denied that petitioner is not a trained teacher. Insufficiency of accommodation has constrained herself not to take tuitions or coaching classes in her premises. Further, petitioner can take the CR No.3315 of 2011 (O&M) 7 necessary permission from the concerned/competent authority for taking coaching/tuitions in case she is having adequate accommodation at her place. The said plea of learned counsel for the petitioner carries weight. If the landlady wishes to start a tuition centre, law does not command or compel him to squeeze himself and dwell into lesser premises so as to protect the tenant's continued occupation in tenancy premises. Further, it is also admitted by the respondent that the son, her daughter-in-law and grandson is residing with her in the demised premises. Further, daughter-in-law is also teaching in the college and she requires a separate room for study purpose. Learned counsel for the petitioners has further submitted that son of the petitioner No.1 Tej Bahadur Singh has died leaving behind his wife, son and daughter-in-law who are residing in Sri Nagar and used to visit her in winter season due to cold season prevailing at Sri Nagar. This fact has been denied by the respondent, but he has not rebutted the same by cogent & convincing evidence. The requirement of petitioners is not a mere desire but it is sense of felt need. In the given facts substantiated by the petitioners, the need to occupy the demised premises can be said to be real, natural, sincere and honest. The positive material brought on record by the petitioners had made their need as 'bonafide'. Much arguments were advanced contending that petitioners/landlord have more space than required by them. The petitioners are five in number and admittedly occupying the entire ground floor. However, when bonafide requirement is proved, the landlord is the best CR No.3315 of 2011 (O&M) 8 judge of his requirement for residential or business purposes. The tenant cannot dictate terms to this effect. Landlord is the best judge and has complete freedom in the matter (AIR 2000 SC 534). Keeping in view the facts of each case, the status of family, the requirement pleaded and proved by petitioners is bonafide and accordingly, the said issues are decided in favour of the petitioners.” Aggrieved against the said order of ejectment, the petitioner filed an appeal before the Appellate Authority which was also dismissed. While dismissing the said appeal, the Appellate Authority observed as under: “After considering the submissions of learned counsel for the parties, I am of the view that it is well settled that the landlord is the best judge of his requirement for his residential or business purpose. Landlord has complete freedom of the matter. The bonafide is to be seen from the landlords' point of view and not from the tenants' point of view. The suitability has to be seen from the convenience of the landlords and his family members. The landlords with a view to succeed on the ground of bonafide and reasonable requirement need not establish compelling or absolute or dire necessity but the requirement of the landlord should not be fanciful or unreasonable. In the case in hand the landlord No.2 himself stepped into the witness box and proved the necessity that he requires one bedroom and another room for writing and studying. He is more than 96 years old. He also proved the books Exhibit 'P9' to 'P17' already written by him. He stated that he was writing a book under the title 'Panch Partani'. Although he admitted that he cannot move out and his memory was getting weak but that is not a ground that he cannot do any writing work. It is well known that tuition to student is being given in residential premises. There is nothing CR No.3315 of 2011 (O&M) 9 on the file that Chandigarh Administration even stopped anybody from giving tuition to students in the residential premises. PW1 was earlier teacher and now she wants to take tuitions and require some room in the house for the same. Her need is just and reasonable. She requires one room for study of her daughter in law who is working as lecturer. Although no document is placed on file about educational qualifications of her daughter in law but in absence of any rebuttal the statement of PW1 can be accepted that her daughter in law is M.Phil and is doing Ph.D. There is no dispute that the family of deceased son of PW4 is permanently settled in Sri Nagar. They are visiting the landlords. They might be visiting landlords for few days in a year but landlords require some room for them for their stay so need of the landlords can be considered just and reasonable. The landlords are not having any other accommodation in Chandigarh. There is nothing on the file that landlords have concealed any fact from the Court. The entire statement of the witnesses is to be read as a whole. The case Ram Avtar Versus Sushma Kumari & another (supra) is on the question of subletting. In case Deena Nath versus Pooran Lal (supra) suit premises was one of the five shop rooms on the ground floor of the building owned by the plaintiff. One vacant shop room was in occupation of the landlord and in course of the proceedings one more shop room vacated by the tenant came into the possession of the landlord. During the course of hearing a suggestion was made to the counsel for the landlord if he was willing to permit the tenant to occupy the shop room presently in the possession of the landlord but learned counsel for the landlord declined to accept the suggestion. The said authority is distinguishable on the facts ratio of the said authority cannot be applied to the instant case. In case V.P Saxena Versus Avinash Chander Bhasin (supra) the family was having limited income and was CR No.3315 of 2011 (O&M) 10 accustomed to live in one room set. There was no evidence that income of the family had increased. The said authority is also distinguishable on facts and ratio of said authority cannot be applied to the facts of the instant case. Other authorities cited by the learned counsel for the appellant-tenant are not attracted to the facts of the instant case. The learned Trial Court are rightly held that the need of the landlords is real, natural, sincere and honest. The positive material brought on record by the landlords had made their needs as bona fide. Thus there is no ground to interfere the finding recorded by the learned Rent Controller on issue No.3 and 4. Finding recorded by the learned Rent Controller on issue No.3 and 4 is hereby affirmed.” Still not satisfied, the tenant has filed the instant petition challenging the orders of the Authorities below. Noticing the contentions raised by the learned counsel for the petitioner, this Court passed the following order on 20.5.2011: “Learned counsel for the petitioner, inter alia, contends that the requirement of two rooms was projected by Mr. Attar Singh, who has since expired after the filing of the petition. Therefore, he submits that whether there still subsists the requirement much less bona fide necessity of the demised premises as there are already three rooms in possession of the landlady. He relies upon a decision of the Supreme Court in the case of “Prabha Arora & Anr. Versus Brij Mohini Anand & Ors.” 2007 (2) Rent Control Reporter 600. Notice of motion. At this stage, Mr.H.S. Grewal, Advocate accepts notice on behalf of the respondent and prays for time to argue the matter. Now to come up for arguments on 1.6.2011. Till then, learned counsel for the respondent has CR No.3315 of 2011 (O&M) 11 assured the Court that they will not execute the order of eviction.” Thus, according to the petitioner, the need of Sardar Attar Singh did not subsist on the date of final order as he had died after filing of the instant revision petition and the case set up by the respondents on the ground of personal necessity has come to an end. In addition to the aforesaid argument, counsel for the petitioner has further argued that personal need of the respondents as projected is not bona fide as they have concealed material facts with regard to the accommodation in their possession and had approached the Court with false pleas with regard to rate of rent, as the same was not accepted by the Authorities below and therefore, their need was not bona fide and the application for ejectment on the said ground was liable to be rejected. It was further argued that in fact the projection of personal need of Attar Singh was totally on false premises as admittedly the ejectment has been sought on the ground that accommodation in their favour was insufficient as Attar Singh required two rooms for himself whereas he was unable to move. It was also argued that the need of Ruby Singh, landlord/respondent No.1 that she requires the room for taking tuitions was also based on wrong premises as Chandigarh Administration does not permit holding of commercial activity of tuitions etc. in the residential premises. It was also pleaded that the Appellate Authority has made out a new case for the respondent-landlord while observing that the respondent-landlord after getting the premises vacated can seek permission of the Chandigarh Administration for holding tuitions etc. in the residential area and thus, has exceeded its jurisdiction. Moreover, admittedly the family of the pre-deceased son of Attar Singh is residing in Srinagar and has not come to Chandigarh and thus, there was no bona CR No.3315 of 2011 (O&M) 12 fide requirement of the landlord. In the end, learned counsel for the petitioner-tenant has argued that in view of the aforesaid argument as raised which are supported by the evidence on record, the findings of the Courts below cannot be sustained with regard to the personal bona fide need of the respondent and therefore, the impugned orders are liable to be set aside. Sh. Chopra has placed his reliance on a judgment of the Hon'ble Supreme Court to argue that a person who does not come to Court with clean hands is not entitled to be heard on the merits of his grievance. On the basis of the aforesaid judgment, learned counsel for the petitioner has argued that in the instant case the bona fide need set up by the respondent-landlady as well as her averments with regard to the rate of rent and the accommodation in her possession have been found to be false and thus, she is not entitled to any relief. Learned counsel has also relied upon a judgment of the Hon'ble Supreme Court in Prabha Arora and another versus Brij Mohini Anand and others 2007(2) (RCR) 600 to contend that where possession is sought for personal requirement, the said requirement must not only exist on the date of the filing of the petition but must also subsist till the final decree for an order for eviction is made and if in the meantime, events crop up which would show that the landlord's requirement no longer subsists then the action must fail. According to the learned counsel for the petitioner, since Attar Singh has died therefore, the requirement of two rooms for him has been extinguished and thus, the landlady having sufficient accommodation at her command does not require the demised premises now. On the basis of the judgment of the Hon'ble Supreme Court in Deena Nath versus Pooran Lal 2001 (2) RCR 130, it was further argued that it is not mere a whim or a fanciful desire by the landlord but such requirement must be bona fide and manifested in CR No.3315 of 2011 (O&M) 13 actual need and not a whimsical desire. On the other hand, Mr. Arun Palli, Senior learned counsel appearing on behalf of the respondents has vehemently argued that the tenancy in this case had started in the year 1989 and at that time, the children of respondent No.1 were of very young age. The husband of the respondent No.1 had died and in these circumstances, the demised premises were let out to the petitioner. However, the present petition was filed in the year 2005 i.e. after 16 years of the start of tenancy, keeping in view the changed circumstances of the petitioner i.e. her need had grown because of her children had also grown up and admittedly son of respondent No.1 has now been married and he also need separate accommodation in the house along with his wife who is also a working lady. Not only this, the daughter of respondent No.1 is also married, who at the time of filing of the petition was living abroad but is now settled in Chandigarh and she keeps on visiting the house of the respondent and stays with her. Not only this, counsel for the respondents has further argued that the respondent-landlady has every right to lead a quality life and is the best judge of her need and as per the settled law, the tenant cannot dictate her terms with regard to the use and occupation of the premises in her possession. Learned counsel for the respondent has further refuted the argument of Sh. Ashwani Kumar Chopra, Senior Advocate by arguing that there was no necessity of taking permission from the Chandigarh Administration for taking the tuitions of one or two students and such a work