Civil Revision No.637 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.637 of 2011 Date of Decision:16.08.2011 Krishan Kumar Gandotra & Ors. ....petitioners Versus Vineet Garg & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Ajay Jain, Advocate for the petitioners Mr.Arun Palli, Senior Advocate with Mr.Kanwalvir Singh Kang, Advocate for the respondents *** RAKESH KUMAR GARG, J. Petitioners, who are legal heirs of tenant-Chaman Lal(since deceased), have filed the instant revision petition challenging the judgement of the Appellate Authority, Ambala, whereby while accepting the appeal filed by the respondents-landlords against the order of Rent Controller, Ambala Cantt, eviction of the petitioner-Chaman Lal has been ordered from the demised premises on the ground of personal necessity of the landlords. In brief, respondents-landlords filed ejectment application on 21.04.2005 against Chaman Lal i.e. predecessor-in-interest of the petitioners, from demised premises i.e.Shop No.171/15, House No.171/8 and Godown No.171/5-F being part of Rama Building situated near Vijay Rattan Chowk, Ambala Cantt(hereinafter referred to as 'the demised Civil Revision No.637 of 2011 2 premises') on the ground that the tenant has not paid the rent w.e.f.01.09.2003 for shop and godown and w.e.f.01.02.2001 for house, till date and also the respondents require the tenanted premises for their personal bona fide use, need and occupation. It was the case of the respondents-landlords that Mr.Chaman Lal, predecessor-in-interest of the petitioners was occupying the aforesaid three portions i.e.shop, house and godown, being part of Rama Building, situated near Vijay Rattan Chowk as tenant under Smt.Magan Pushpa @ ` 2500/-per month for the shop, @ ` 300 per month for residential house and @ ` 100/- per month for godown. Smt.Magan Pushpa, during her life time filed three ejectment applications in respect of the aforesaid three premises claiming the rent as mentioned above. In those proceedings, the petitioner-tenant appeared and took the plea that the tenancy of all the three premises was one and the rent was ` 1000/- per month for all the three premises. However, the petitioner- tenant tendered ` 1000/- per month for shop, ` 300/- per month for house and ` 100/- per month for godown. Smt.Magan Pushpa expired on 09.09.2001. She had executed a registered Will dated 21.06.1991, bequeathing her properties in favour of the respondents. Shop No.171/15, Rama Building, Ambala Cantt was given to Vineet Garg, respondent No.1, while the House No.171/8 and Godown No.171/5-F, Rama Building was given to respondent No.2. Regarding the personal and bona fide necessity of the respondents, the averments made in the ejectment petition read as under: It is further averred that petitioner No.1 Vineet Garg is a qualified MBA who completed his degree of Master of Business Administration in June, 2004 from Kurukshetra University, Kurukshetra and is unemployed. The petitioner No.2 is running a retail Civil Revision No.637 of 2011 3 outlet of spectacles and goggles in a rented shop of Ambala City and is paying ` 1365/- per month to landlord Ved Parkash Luthra. The petitioners require the shop No. 171/15 being part of Rama Building situated at Vijay Rattan Chowk, Ambala Cantt for their personal bonafide, use, need and occupation. The petitioner No.1 wanted to settle himself in his own independent business. The petitioners also require House No.171/8 being part of Rama Building situated at Vijay Rattan Chowk, Ambala Cantt and Godown No. 171/5-F being part of Rama Building at Vijay Rattan Chowk, Ambala Cantt for their personal bona fide necessity. The petitioner No.1 is of marriageable age and requires separate residence. The petitioners are residing in House NO. 465, Sector 9, Urban Estate, Ambala City which is owned by the petitioner No.2 and his wife Smt.Sunita Garg. The petitioner No.2 also inherited property No.5119/20, Kabari Bazar, Ambala Cantt consisting of Shop on the ground floor occupied by tenant at the rate of ` 125/-per month, with two rooms on first floor and one room on the second floor. It is also averred that the petitioners are not occupying any other commercial or residential accommodation in the urban area Ambala Cantt or Ambala City in their own right nor they have vacated any such residential or commercial accommodation in the urban area of Ambala Cantt/Ambala City without any sufficient/reasonable cause after the commencement of 1949 Act. It is further averred that Civil Revision No.637 of 2011 4 the petitioners are filing the present petition in respect of the three tenancies because of the fact that in the earlier ejectment applications respondent took the plea that the tenancy for three portions is one and composite and the landlord has no right to split up the tenancy.” Upon notice, tenant-Chaman Lal, filed written statement admitting that Smt.Magan Pushpa was the landlady of the premises in question from whom he had taken the premises in question @ ` 1000/- per month. Smt.Magan Pushpa, had filed various cases against him with regard to above mentioned properties claiming rent @ ` 2500/-, @ ` 300/- and @ ` 100/- per month, respectively, but he was paying ` 1000/- per month in respect of the properties in question. It was further stated that the description of the properties as given in the heading of the petition was incorrect and there was no specific purpose for which the above said properties were let out to him. Execution of Will dated 21.06.1991 by Smt.Magan Pushpa in favour of the respondents was denied. It was also averred that the petitioner had tendered rent @ ` 1000/-, @ ` 300/- and @ ` 100/- under protest. Counter-claim for refund of ` 300/- and ` 100/- was filed as the tenant had claimed that he was a tenant in all the properties @ ` 1000 per month and he was not liable to pay rent @ ` 300/- per month for the house and @ ` 100/-per month for the godown. It was denied that respondent No.1 was a qualified MBA and was unemployed. It was further stated that respondent No.2 was running a spectacles and Goggles shop in a flourishing market in Ambala City and was well settled in the shop. It was further stated that the said shop was not on rent with respondent No.2 and in fact he was the owner of the shop in which he was doing his business along with respondent No.1 and Sh.Ved Parkash Luthra was only benami owner of the shop. It was denied that respondents Civil Revision No.637 of 2011 5 required the demised shop for their personal bona fide use and occupation. It was further averred that respondents have got vacated one shop which is situated adjoining to the premises in question from Malhotras and again let out the same after accepting huge amount and rate of rent. Had the petitioner required the shop for his personal use and occupation, respondent No.1 would have occupied the same and start his business. The present application had been brought just to get the premises in question vacated from the petitioner, so that the same may be let out at a huge premium and exorbitant rate of rent. It was further stated that the respondents did not require the premises for their personal bona fide necessity as they have more than sufficient space in house situated in Kabari Bazar Ambala Cantt which is a three storeyed building and lying vacant. Even the respondents have got a house bearing No.465, Sector 9, Urban Estate, Ambala City owned by respondent No.2 and thus they do not require the tenanted premises for their personal use and occupation. Other averments made in the petition were denied and prayer for dismissal of the petition and for allowing the counter claim was made. Replication controverting the contents of written statement and reiterating the stand taken in the petition was filed. From the pleadings of the parties the following issues were framed on 13.02.2007: 1. Whether the respondent is liable to be evicted from the premises in dispute on the grounds mentioned in the petition?OPP 2. Whether the petition has been filed with mala fide intention?OPR 3. Whether the description of the properties as given in the heading of the petition is incorrect, if so, its effect?OPR 4. Whether the petition has been filed just to create a Civil Revision No.637 of 2011 6 ground for eviction against the respondent?OPR 5. Relief. After hearing learned counsel for the parties and going through the record of the case, Rent Controller dismissed the eviction petition. On the ground of non-payment of rent, the Rent Controller held that the rate of rent was ` 1000/- per month for all the three premises and not ` 2500/- for the shop, ` 300/- for the house and ` 100/- for the godown as had been claimed by the appellants/landlords. On the ground of personal necessity, Rent Controller held that the appellants/landlords had not been able to prove as to which portion of the property in dispute had fallen to the share of which appellant. Rent Controller also held that there were sufficient commercial and residential properties with the appellants/landlords and therefore, they did not require the property in dispute for their bona fide use and occupation. It was in fact held that it was only a wish or desire of the appellants/landlords to occupy the property in dispute. With regard to the ground that the tenant having ceased to occupy the property in dispute, Rent Controller held that the landlord had not been able to prove the same. Aggrieved from the order passed by the Rent Controller, Ambala Cantt, the respondents filed an appeal before the Appellate Authority, Ambala which was accepted vide impugned judgement dated 26.11.2010. Relevant part of the aforesaid judgement reads thus: Coming back to the eviction petition, it was further averred in the grounds that the petitioner No.1(appellant No.1 herein)Vineet Garg was qualified who had completed his degree of MBA in June 2004 and was unemployed. It was averred that petitioner No.2(appellant No.2 herein) was running his Civil Revision No.637 of 2011 7 Spectacles and Goggles Business in a rented shop at Ambala City. It was averred that Shop No.171/15 was required for the bona fide use of the petitioner No.1 as he wanted to settle in his own shop and wanted to start his own independent business. It was also averred that the house was also required since petitioner No.1 was of marriageable age and required a separate residence. The ingredients of personal necessity were also duly pleaded. The grounds were proved by leading cogent evidence. Petitioner No.1 Vineet Garg appeared in the witness box as AW1 and petitioner No.2 Adesh Kumar appeared as AW2. Documentary evidence was also led. In so far as the other properties are concerned, one shop is said to have been leased out to Bata Shoe Company in the year 2004. It is the positive stand of the appellants/landlords that the shop was on lease with Bata Shoe Company for the last more than 50 years and the lease had recently been renewed. In so far as the shop given on rent to Mr.Malhotra is concerned, the same is stated to be in the name of appellant/landlord No.2. The appellants are stated to have been residing in a house in Sector 9, Ambala City. It would not be unnatural for appellant No.1 to require a separate house for him and his family after marriage. It has been stated during the course of arguments that now appellant No.1 is duly married and is also having a child. In the opinion of this Court,merely because the appellants had some other Civil Revision No.637 of 2011 8 properties, it cannot be said that their need is not bona fide and is a mere wish and desire. It has also come on record that the shop from which business of spectacles and goggles is being run by the appellant No.2 is a rented premises. The rent receipts are on record as Ex.A4 to Ex.A7. In these circumstances also,it would be most natural for the petitioners/appellants to seek possession of their shop for running their business. It may also be relevant to mention here, at this stage that the findings of the Rent Controller, Ambala Cantt, on the ground of non- payment of rent and that the tenant had ceased to occupy the property in dispute were affirmed by the Appellate Authority, Ambala. Thus, the eviction of Chaman Lal, predecessor-in-interest of the petitioners was ordered only on the ground that the demised premises were required by the respondents for their personal bona fide necessity. Aggrieved from the aforesaid judgement of the Appellate Authority, Ambala, the petitioners, who are successors-in-interest of Chaman Lal-tenant(since deceased) who died on 03.11.2010 during the pendency of the appeal before the Appellate Authority, Ambala, have filed the instant revision petition with the leave of the court. Learned counsel appearing on behalf of the petitioners has vehemently argued that the Appellate Authority, Ambala, while reversing the findings of the Rent Controller, Ambala City has erred at law and has ignored the voluminous evidence on record from which it has been established that there was no personal necessity/need of the landlords in the present case and the eviction petition had been filed by them with mala fide intentions to get a huge premium on the property and also to receive exorbitant rent and thus, in fact, it was a case of greed and not of need of Civil Revision No.637 of 2011 9 the landlords. Learned counsel for the petitioners has referred to the evidence on record to establish that the shop adjoining to the demised property and having same dimensions which was under the tenancy of Bata Shoes Company was leased out by the respondents just prior to the filing of the instant ejectment petition by increasing the rent and renewing the lease deed. He also submitted that during the pendency of the present ejectment proceedings a shop was vacated which was earlier in possession of Malhotras and the same was given on rent to the new tenants by increasing the rent and thus argued that it has been proved on record that there was no genuine need of the respondents to occupy the shop in question for their personal use. Counsel for the petitioners further argued that it has come on record that first and second floor of the building in the Kabari Bazar which was lying vacant was in possession of respondent No.2 and in case after marriage respondent No.1 wanted to live separately, he was having enough accommodation at his disposal and the house in question was not required. Moreover, Appellate Authority, Ambala, has not given any finding regarding the need of the respondent- landlords for the godown in question and thus the personal bona fide necessity of the respondents in this case was not proved and therefore the impugned order of eviction passed by the Appellate Authority, Ambala, was liable to be set aside. On the other hand, learned counsel appearing on behalf of the respondents has repelled the arguments raised by the counsel for the tenant-petitioners. Learned counsel appearing on behalf of the respondent- landlords has vehemently argued that the so-called building at Kabari Bazar which is alleged to be in their possession is not worth living as first and second floor of the said building are in a dilapidated condition and need wholesale renovation. Not only this, the need to set up a separate house is of respondent No.1, who wants to set up his business in the Civil Revision No.637 of 2011 10 demised shop and wants to live separately in the demised house as that will be very convenient for him being adjoining to each other. It was further argued by the learned counsel for the respondents that the building under the tenancy of Bata Shoes Company was never vacated by the said tenant who was continuing in the said shop for the last more than 50 years and it was only that the lease deed was renewed in their favour in the year 2004 and thus it cannot be said the petitioners have not occupied the said building without any sufficient reasons. Not only this, counsel for the respondents further argued that the shop alleged to be in possession of Malhotras was also not available as it has been established on record that Satish Malhotra had inducted Yudhvir Sethi etc.his partners in the firm who continued to be in possession of the said building as tenants after Satish Malhotra retired from the said partnership and thus for all practical purposes, the said shop remained under the same tenants and was not vacated. Counsel for the respondents further argued that admittedly the tenancy with regard to all the three premises i.e.shop, house and godown was one composite tenancy and therefore it will not make any difference if the Appellate Authority has not given a specific findings with regard to godown. Even otherwise, the respondents have clearly set out their bona fide need to set up business in the shop and therefore it cannot be said that there was no need for the godown and thus no fault can be found with the impugned order and the revision petition is liable to be rejected. I have heard learned counsel for the parties and perused the impugned judgement. From the arguments raised and the facts established on record, it is not in dispute that respondent No.1 who had completed his degree of MBA and was unemployed, wanted to set up his own business in the demised shop and godown. It is also not in dispute that respondent No.2 was running his spectacles and Goggles business in a rented shop in Civil Revision No.637 of 2011 11 Ambala City. It is also not in dispute that after filing of the ejectment petition, respondent No.1 has married and is also blessed with one son. Counsel for the petitioners could not dispute the fact that respondent No.1 required a separate residence. Thus, ingredients of personal necessity of the respondents are fully established. However, what is disputed by the petitioners is that the respondents were having sufficient accommodation at their disposal for setting up business as well as residence of respondent No.1 and thus there was no need for the petitioners to vacate the demised premises. The case of the petitioners is that the respondents have not occupied the shops of same dimensions and in the same vicinity twice having such an opportunity i.e.firstly in the year 2004 prior to the inception of tenancy in question when the respondents renewed the lease deed in favour of Bata Shoes Company and secondly when Malhotras vacated the another shop which was owned by respondent No.2 and respondent No.1 can set up his separate residence in the building in Kabari Bazar. Thus the aforesaid facts were enough to disentitle the respondents to claim eviction of the petitioners. Learned counsel appearing on behalf of the petitioners has relied upon judgements of the Hon'ble Supreme Court in the case of Deena Nath versus Pooran Lal 2001(2)RCR(Rent) 130 and Adil Jamshed Frenchman(D) by LRs.versus Sardar Dastur Schools Trust & Ors.2005(2)SCC 476 in support of his case and has argued that the authorities below have failed to consider the fact that alternative accommodation was available with the landlord and therefore his need cannot be held to be genuine and actual but is merely a fanciful and whimsical desire to get the premises vacated. On the basis of the aforesaid judgement, learned counsel for the petitioners has argued that the instant case is not of a genuine need of the respondent-landlords but is a case of a mere wish/desire of the landlords to get the demises premises vacated under the garb of personal Civil Revision No.637 of 2011 12 necessity. The arguments raised by learned counsel for the petitioners is without any force. It is not in dispute that Bata Shoes Company had never vacated the alleged shop and they are continuing for the last more than 50 years. It is only that, after the death of Magan Pushpa, they had renewed the tenancy by executing the lease deed in favour of the respondents and therefore it cannot be said that despite availability of the said shop, the respondents have failed to occupy the same. Similarly, alleged shop with Malhotras was never available with the respondents to be occupied as the same remained under possession of the tenant or his partner. It is further established on record that building in Kabari Bazar belongs to respondent No.2 and is in dilapidated condition. Not only this, it is well settled that the tenant cannot dictate the landlord about his need and it is for the landlord who is the best judge of his needs, to find out as to which premises are required for him and are suitable for his occupation. In the present case, it is the specific case of the respondents that respondent No.1 has completed his education and is unemployed and of marriageable age who wants to set up his own independent business and requires a separate residence, obviously the demised premises which consists of shop, godown and residence are ideally situated for such a requirement of respondent No.1 and therefore it cannot be argued that there was no bona fide need of the respondents and it was a mere wish and desire of the respondents. Rather, in the circumstances as established, it would be most natural for the respondent No.1 to seek possession of the demised premises for running his business and separate residence at one place i.e.the demised premises. The argument that no finding has been recorded regarding the need for godown, suffice to say that petitioners have themselves taken a stand that tenancy for all the three premises is one, therefore, on proving the need of Civil Revision No.637 of 2011 13 respondents for running business, the bona fide need of godown along with shop cannot be disputed. There is no dispute with the judgement cited by the learned counsel for the petitioner. However, the said judgements are distinguishable on facts and not applicable in the instant case as the need of landlord has been found to be genuine. For the reasons aforesaid, I find no merit in this petition. Dismissed. (RAKESH KUMAR GARG) JUDGE 16.08.2011 neenu