CR No.5768 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5768 of 2008 (O&M) Date of Decision: 20.09.2010 Kulwant Singh & Anr. ....Petitioners Vs. Sarabjit Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.M.L.Saggar, Sr. Advocate, with Mr.Sunny Saggar, Advocate, for the petitioners. Mr.Kanwaljit Singh, Sr.Advocate, with Mr.Harmanjit Singla, Advocate, for the respondent. --- 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 Digest? --- Vinod K.Sharma,J. (Oral) CM No.20728-CII of 2008 Dismissed as withdrawn. CR No.5768 of 2008 2 CR No.5768 of 2008 This is landlords' revision petition against the order passed by the learned Appellate Authority dismissing the petition filed under section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act). The petitioners filed a petition by pleading therein, that they were owners and landlords of SCF No.4, Sector 21-C, Chandigarh and respondent Sarabjit Singh was tenant on payment of monthly rent of ` 425/- (Rupees four hundred and twenty five only), excluding electricity charges. The tenant was said to be in arrears of rent w.e.f. 1.12.1993 and had also caused damage to the floor and walls due to use of acid batteries. The tenant also broke the window panes and advertising penal in front of the shop intentionally, to cause harm to the building. Petitioner No.1, Kulwant Singh was running business of dairy products on the back portion of the shop and partly in SCF No.8 Sector 21- C, Chandigarh. The petitioners claimed that they had no premises for their business. The petitioners wanted SCF for running their business but due to non-vacation, the business was being run at the back side of the premises. Petitioner No.1 claimed, that he required the shop for his personal use and occupation. The petition was filed as the respondent/tenant failed to vacate the premises in spite of requests made. The respondent/tenant filed written statement which was subsequently amended. Preliminary objection was taken that the rent petition was not maintainable as the petitioners were in possession of non- residential premises i.e. shop No.199 sector 37, Chandigarh, Shop No.392 CR No.5768 of 2008 3 Sector 44, Chandigarh and back court yard of SCF No.8 Sector 21-C, Chandigarh, where they were carrying on their business. The respondent claimed to be a protected tenant under the Act. Eviction was said to be bad for partial tenanted premises. On merit, it was admitted that after purchase of the building, the petitioners/landlords were the owners and landlords of the demised premises. The respondent was inducted as a tenant on the entire ground floor by the previous owners/landlords at a monthly rent of ` 425/- (Rupees four hundred and twenty five only), excluding electricity charges. Landlord was paid a rent of ` 6446/- (Rupees six thousand four hundred and forty six only) vide cheque No.0068859 dated 15.11.1985 drawn on Union Bank of India, Sector 21, Chandigarh on account of arrears of rent of ground floor of the demised premises w.e.f. 25.8.1987 to 21.11.1988. A civil suit seeking permanent injunction was pending in the court of learned Civil Judge, Chandigarh and the petitioner/landlord was restrained from dispossessing the tenant unlawfully. The case set up was, that the landlord on the basis of forged agreement dated 15.11.1988, filed a civil suit and got a status quo order in respect of rear court yard. The tenant claimed, that he was unlawfully dispossessed from the rear court yard, by the landlord Kulwant Singh by bolting the door on the intervening shop portion and rear court yard, by fabricating a cheque of ` 20,000/- (Rupees twenty thousand only). FIR No.430 was registered at Police Station Central, which was pending adjudication, in the court of learned Chief Judicial Magistrate, Chandigarh. However, proceeding in the case stands stayed by CR No.5768 of 2008 4 the High Court. Decision of the civil suit was challenged under appeal. That the respondent was paying rent at the rate of ` 425/- (Rupees four hundred and twenty five only) per month in order to avoid eviction. Civil suit filed by the tenant was decreed by the learned District Judge directing the landlord to vacate real court yard of SCF No4. Sector 21-C, Chandigarh. Suit filed by the petitioners/landlords for permanent injunction was dismissed. Respondent/tenant tendered the rent along with interest and costs and the ground of non-payment of rent was given up by the landlord. The respondent/tenant also denied having caused any damage to the floor and walls, as alleged. The case of the respondent/tenant was, that the petition under section 12 of the Act was filed, for carrying on necessary repairs. The petition was allowed, and the repairs were carried out in the disputed portion. It was the case of the tenant, that the petitioners were carrying on their business in the rear courtyard of SCF No.8, Sector 21-C, Chandigarh and also business of dairy in shop No.199 Sector 37, Chandigarh and also in shop No.392, Sector 44 Chandigarh, since long. The case of the tenant was, that the petitioners/landlords had not come to the court with clean hands. That landlords did not require the demised premises for their business, as alleged. The object was to increase the rent of the building, and it was only on refusal, that the petition was filed. Replication was filed. On the pleadings of the parties, the learned trial court framed the following issues:- CR No.5768 of 2008 5 1. Whether the tender made by the respondent is invalid, insufficient and short? OPP 2. Whether the respondent is liable to be evicted from the demises premises on the ground of material additions and alterations? OPP 3. Whether the respondent is liable to be evicted from the demised premises on the ground of personal necessity? OPP 4. Whether the Petitioner is not maintainable? OPR 5. Relief. Learned trial court on issue No.1 held, that as the tender made was valid, therefore, issue was not pressed by the petitioners/landlords. Issues Nos. 2 and 3 were taken up together. In support of these issues, the landlord/petitioner himself appeared in the witness box as PW 1 and deposed in terms of the stand taken in the application, in addition, he placed on record photo copy of Power of Attorney Ex.P.1, certified copy of petition Ex.P.2, and photo copies of receipts for deposit of licence fee, with the Health Officer, Chandigarh as Ex.P.3 to Ex.P.8. The petitioner also examined PW 2 Gurpej Singh, who deposed that his father was co-owner of the demised premises. In his deposition he also stated that he was not doing any work and was presently residing at the village. That he wanted to join his uncle Kulwant Singh in dairy business in SCF 4, Sector 21, Chandigarh. He also deposed that he CR No.5768 of 2008 6 did not have any property in Chandigarh for running his business. The respondent/tenant examined RW 1 Paras Ram Verma, Superintendent, Telephones, Sector 8, with record relating to Telephone Nos. 698459, 605996 and 776934. Telephone No. 698459 was installed in Shop No.199, Sector-37-C, Chandigarh in the name of Kulwant Singh. Telephone No.605996 was installed in bay Shop No.392 Sector 44-D, Chandigarh in the name of Swaran Singh. RW 2 Ravi Sharma, Clerk, in office of Medical Officer of Health, Union territory, Chandigarh placed on record the licence under the Prevention of Food Adulteration Act. It was proved by him that Kulwant Singh was issued licence under the Prevention of Food Adulteration Act in respect of shop situated in SCF 8, Sector 21-C Chandigarh (half portion), and Bay Shop No.392, Sector 44-D, Chandigarh. He also produced on record application filed by Kulwant Singh for issuing licence. Photo copy of the application form were placed on record as Ex.RW 2/1 to 12 and photo copy of the application form applied by Ashwani Kumar was placed on record as Ex.RW 2/1. RW 3 Mrs.Kusham Gupta, deposed that respondent Sarabjit Singh was tenant during her ownership, and that she was owner of the SCF No.8. She also deposed to have received the rent from him regarding whole of the ground portion. She further deposed that Mrs. Saroj Gupta was co- owner with her. RW 3 Surjit Singh, STA, from the Income Tax Department Sector 17, Chandigarh produced income tax returns for the assessment years CR No.5768 of 2008 7 1996-2000 and the returns were proved on record as Ex.R.3 to R.6. RW 5 Prem Suri, deposed that he was running his business in SCF No.5, Side Portion Sector 21, Chandigarh since 1972. He also deposed that the respondent/tenant was in possession over whole of the ground portion of SCF 4 Sector 21-C, Chandigarh and that he was dealing with tyres and tubes in the name and style of M/s United Auto Centre. He was also dealing with sale of mobile oil and other lubricants and exide batteries. First floor of the premises was occupied by Radhey Sham, and that he was having passage from the back portion through a small room. Both room and latrine were said to be situated in the back court yard and were used by him. He further deposed that shop was sold by previous owner to an Engineer, who subsequently sold it to present petitioners. He also deposed that the petitioners run business of dairy in the back court yard of SCF No.8, Sector 21-C, Chandigarh. The front side shop was being run under the name of Kalia Stores and half portion was occupied by National Automobiles. First and 2nd floor of SCF 4 Sector 21-C, Chandigarh was occupied by the petitioner, whereas the whole ground floor of SCF 4 was under the tenancy of respondent/tenant. Back court yard was said to be in possession of the petitioner/landlord and the shop portion with the respondent/tenant. PW 6 K.N. Parshad, Document Expert was examined to disprove the documents relied upon by the petitioner. RW 7 Rajiv Gulati, Junior Assistant, Estate Office, Union Territory Chandigarh brought the summoned record relating to Semi CR No.5768 of 2008 8 Industrial Site No.292, Sector 44-C, Chandigarh. Site was leased hold which stood cancelled. Site was auctioned on 25.2.1990 and the letter of allotment was issue don 24.4.1990. RW 8 Mr.Shanti Swaroop deposed that he was running spare parts business in SCF 9, Sector 21-C, Chandigarh for the last 10 years. Earlier he was running his business in Both No.5 Sector 21-C, Chandigarh. He also deposed that he had seen respondent/tenant Sarabjit Singh occupying the shop, where he was running his business of tyres, tubes and batteries, whereas petitioner was running dairy business in shop No.8, Sector 21-C, Chandigarh. Landlord was retaining back portion of ground floor of shop with him, whereas on the ground portion the tenant was running his business. However, he denied having visited back portion of the shop. The tenant Sarabjit Singh, appeared in the witness box as RW 9 and deposed that he was tenant of the entire ground floor which was taken on rent at the rate of ` 350/- (Rupees three hundred and fifty only) per month. It was subsequently increased to ` 425/- (Rupees four hundred and twenty five only). Demised premises were sold to the petitioners i.e. Kulwant Singh and Bant Singh in July, 1998 and that he was paying rent at the rate of ` 425/- (Rupees four hundred and twenty five only) per month. He further deposed that he was running business under the name and Style of United Auto Centre, whereas the first and second floor of building were lying vacant, when the building was sold to the petitioner/landlord by S.S. Grewal. He also deposed regarding the suits filed by the respective parties CR No.5768 of 2008 9 and also the receipts showing payment of rent to Kulwant Singh through cheque. He further deposed that he was asked to increase the rent and it was on his refusal to accept the requests, that the present petition was filed. Handwriting expert was also examined. Learned Rent Controller found the allegations of material impairment to be vague and evasive and recorded a finding that the averments made were not sufficient to come to the conclusion that the value and utility of the premises was impaired. This finding was recorded in view of the positive stand by the respondent/tenant that he was doing business of new batteries and not old batteries. The learned Rent Controller accepted the plea of personal necessity. Learned Rent Controller held, that it was established that landlord had no other shop except the tenanted premises for requirement of son of Bant Singh. The learned Rent Controller held, that though it was proved that the petitioner/landlord was running business of dairy product in SCF 8, Sector 21-C, Chandigarh but it could not be said that the premises were not required for use of his brother's son Gurbej Singh, specially when the tenanted premises were joint property of petitioner and Bant Singh. The learned Rent Controller held, that the petitioner/ landlord had every right to use it for personal use and for use of son of Bant Singh, as at present he was looking after agricultural land in village and wanted to settle at Chandigarh. In view of the findings referred to above issue of personal necessity was decided in favour of the landlords and against the tenant. Issue No.4 was not pressed and consequently eviction of the CR No.5768 of 2008 10 respondent/tenant was ordered. The respondent/tenant preferred an appeal. Learned Appellate Authority by considering documentary and oral evidence led on record reversed the findings of the learned Rent Controller by recording as under. “30. All these facts have established that Kulwant Singh and is brother Bant Singh have sufficient accommodation to run business of dairy products in SCF No.4, Sector 21-C, SCF No.8, Sector 21-C, SCF No.392, Sector 44 and SCF No.199, Sector 37. The plea taken in the rent eviction application to the effect that Sh.Kulwant Singh requires the shop portion under the occupation of tenant for his own use and occupation urgently as he has o premises for running the business is not established, rather, it has been falsified. Similarly, the additional plea taken in the replication that son of Bant Singh resides and engaged in business with Sh.Kulwant Singh and further that premises are also required for him is not established. 31. Learned Rent Controller failed to appreciate that the plaintiff has withheld his occupation over shop No.392, Sector 44, Chandigarh and SCO No.199, Sector 37, Chandigarh; learned Rent Controller failed to appreciate that above said premises are sufficient for the working of the landlord. Thus, the observations of learned Rent Controller under Issue No.3 CR No.5768 of 2008 11 are not based upon proper appreciation of evidence and as such are not sustainable, consequently, those are hereby set aside and reversed. Under Issue No.3, it is held that the demised premises is neither required by the landlord or by son of Bant Singh. 32. It is not a case where the landlord requires the demised premises. The landlord neither requires the demised premises nor their need is bona fide. It is mere wishful desire. The facts in the case law cited on behalf of the landlord re entirely distinguishable and it provide no help to their case.” Mr.M.L.Saggar, learned senior counsel appearing on behalf of the petitioners challenged the finding of the learned appellate authority by contending, that the learned appellate authority misread the case set up by the petitioners to hold, that personal requirement of son of Bant Singh was not pleaded in the rent petition but was taken for the first time in the replication. It was also the contention of the learned senior counsel, that merely because the name of son of Bant Singh was not mentioned, it could not be a ground to hold that personal necessity was not proved. In order to appreciate the contention raised, it would be necessary to reproduce the pleaded case of personal necessity by the petitioners in the petition under section 13 of the Act, which reads as under: “iii) That the petitioner No.1 is running business of Dairy products on the back portion of the shop and also partly in SCF CR No.5768 of 2008 12 No.8 Sector 21-C, Chandigarh. The petitioners have no other premises of their own for running their business. The petitioners had purchased the SCF in question for running their business but due to non-vacating the shop portion by the respondent, the business was being run on the backside. The petitioner No.1 requires the shop portion under the occupation of the respondent for his own personal use and occupation urgently as he has no premises for running the business. The petitioners have not vacated any commercial buildings in the union territory of the Chandigarh and the petitioner No.1 is not in occupation of any such commercial building in his own right for running the business.” whereas, in the replication, additional plea was taken, which reads as sunder:- “ That the son of the petitioner No.2 who is about 20 years is residing with the petitioner No.1 and he is also to engage himself in the business along with the petitioner No.1, therefore, the premises are also required for him as well.” Reading of the averments made above shows, that the pleaded case of the petitioners was, that the premises were required for own use and occupation and that son of Bant Singh was also to join in business. Learned Rent Controller, therefore, committed an error in holding, that personal necessity was proved as the premises were required for the son of Bant CR No.5768 of 2008 13 Singh, as it was not the pleaded case that Bant Singh was to carry on any independent business as the case set up by the landlords was that they wanted to expand their business and the premises were reuired for effectively running of the business. Finding of the learned appellate authority, therefore, deserves to be upheld for the reason that the evidence led and the case pleaded was totally different. Specially, when the statement of Gurbej Singh did not inspire confidence to hold that the premises were actually required to induct him in the business. Other ground, on which the petitioners/landlords were nonsuited was, that in order to succeed on the ground of personal necessity the landlord was required to prove his bona fide requirement, that he is not occupying another building in the urban area concerned, and that he has not vacated any such building without sufficient cause after the commencement of the Act. Pleading in the rent petition, the petitioners/landlords made these averments, but were found to be incorrect, as it was proved that besides the premises in dispute, the petitioners were running similar business in Shop No.199 Sector 37, Chandigarh and Shop No.392 Sector 44-C, Chandigarh. The respondent/tenant in the written statement specifically averred that the petitioners/landlords were in possession of Shop No.199 Sector 37, Chandigarh as well Shop No.392 Sector 44 Chandigarh. The learned appellate authority, therefore, held that withholding of specific knowledge about the above said facts were sufficient to draw adverse inference against the landlords. Factum of concealment was proved from the CR No.5768 of 2008 14 statement of Kulwant Singh, when he appeared as PW 1 and admitted that he has deposited the licence fee with the Health Officer, Chandigarh for running his business for the period 1992 to 1998, but he did not have any shop in Sector 44. In cross-examination the landlord admitted that there are two licences in his name under the Prevention of Food Adulteration Act which relate to SCF No.8 and Bay No.392 by the Health Authorities. Relevant portion of his cross-examination reads as under:- “ I did not open any shop on 8.9.1999 at Mohali in SCF No.44, Phase X, Mohali under the name if Guru Nanak Sweets. I am not telephone holder of No.605996. My father Shingara Singh might have opened the shop on its opening but I have not opened therein. It is correct that M/s Guru Nanak Sweets Milk & Dairy Products, Sector 44 and Sector 37 were RSVP. It is correct that the invitation card was issued Ex.D.2. There are 2 PFA licences issued in my name which relate to SCF No.8 and bay shop No.392 by the Health Authorities. There is a PFA licence only in my name as licences are not issued in the name of business firm. It is correct that Ex,.P.3 to P.5 are n my name of SCF No.8, Sector 21-C, Chandigarh. I can produce the other licence which issued in my name of bay shop No.392, Sector 44, Chandigarh.” Factum of the licence was also proved by the respondent by leading cogent evidence by examining the official witnesses. It is not even CR No.5768 of 2008 15 disputed, that the premises referred to above were in occupation of the petitioners/landlords. Learned senior counsel appearing on behalf of the petitioner contended, that occupation of shop No.199 Sector 37-C, Chandigarh, could not be pleaded, as it was taken on rent after the filing of the eviction petition. This was proved to be wrong, as the tenant in the written statement made specific reference to the premises to be in occupation of the landlords, however, in the replication no such explanation was given. Learned senior counsel also justified the non-mentioning of Bay Shop No.392 Sector 44-D by pleading therein, that the shop was resumed due to misuse, by the Chandigarh Administration but it was in view of injunction granted by the learned court that the possession of the premises was retained. It is not in dispute that order of resumption has been finally set aside. Words used in Section 13 of the Rent Act is not ownership, but occupation. Bay Shop No.392 sector 44, therefore, was in occupation of the landlords and he had even applied for licence to run his business, which was also granted to him on 27.8.1995. The contentions of the learned senior counsel, therefore, deserved to be noticed, to be rejected. The petitioner also made an attempt to correct the pleadings by filing an application under Order 6 Rule 17 of the Code but the application was withdrawn at the time of arguments. The view that a landlord is not entitled to eviction in case he has other suitable accommodation in the urban area concerned, finds support from the judgment of Hon'ble Division Bench of this court in the CR No.5768 of 2008 16 case of Karnail Singh Vs. Vidya Devi wife of Gaggan Ram 1980 PLR 613, wherein it was held, that if landlord is in possession of another residential building in the same urban area, whether as owner, landlord, tenant, mortgagee with possession, or in any other recognized mode having right in the property, he cannot claim eviction of his tenant from other premises in the same urban area without proving that the accommodation in his possession is not sufficient. Mr.Kanwaljit Singh, learned senior counsel for the respondent in support of the findings of the learned appellate authority placed reliance on the Full Bench judgment of this court in the case of Banke Ram Vs. Shrimati Sarasvati Devi 1977 (1) RCR (Rent) 595, wherein the Hon'ble Full Bench had laid down, that in order to succeed on the ground of personal necessity, the landlord is to plead and prove that he was not occupying another building and that he has not vacated such building without sufficient cause. The contention of the learned senior counsel for the respondent was, that the findings of the learned appellate authority, in view of the decision of Full Bench, does not call for any interference, in exercise of revisional jurisdiction. Learned senior counsel for the respondent also placed reliance on the judgment of Hon'ble Supreme Court in the case of Shiv Sarup Gupta Vs. Dr.Mahesh Chand Gupta 1999 (2) RCR (Rent) 141, to contend that revisional power