CR No.2399 of 2011 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.2399 of 2011 (O&M) Date of decision:04.07.2011. Darshan Kumar and others ...Petitioners Versus Hira Lal ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. M.L.Sarin, Senior Advocate, with Ms. Hemani Sarin, Advocate, for the petitioners. Mr. Mukesh Mittal, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The tenants are in revision against order of the learned Appellate Authority dated 16.12.2010 by which order of the learned Rent Controller dated 22.12.2009 has been reversed. In short, the landlord filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short “the Act”] against the tenants for their eviction, inter alia, on the grounds of non-payment of arrears of rent, building having become unfit and unsafe for human habitation and personal necessity. Admittedly, father of petitioner Nos.1 to 3 and grandfather of petitioner Nos.4 & 5 was the tenant in shop No.1078, Old Anaj Mandi, Rewari [for short “the demised premises”] which allegedly fell to the share of the landlord on account of a Will dated 09.06.1973 purported to have been executed by Dhani Devi, who has been receiving rent from the tenants against receipts since thereafter. It was alleged in the written statement that the demised premises is jointly owned, the eviction petition is bad for non- joinder of necessary parties as Santosh Kumari and Asha Rani, daughters of Devi Ditta Ram, were not impleaded. Insofar as the arrears of rent from 01.12.1997 to 06.02.2001 claimed @ `150/- per month along with interest and CR No.2399 of 2011 (O&M) -2- ****** costs is concerned, that was tendered on 28.03.2001, therefore, the ground of eviction on account of non-payment of arrears of rent became redundant. It was alleged that the landlord is having several shops in Rewari city and having no personal necessity. It was also alleged that the shop is not unfit and unsafe for human habitation. On the pleadings of the parties, following issues were framed on 15.10.2003: - “1. Whether the respondents are liable to be ejected from the premises in dispute on the grounds mentioned in the petition?OPA. 2. Whether the petition is bad for want of necessary parties?OPR. 3. Relief.” In support of his case, the landlord examined Udai Bhan (AW1), Rajinder Parsad (AW2), Subash Chand Gupta, Draftsman (AW3), Suman Lata, Record Keeper (AW4), Ram Avtar, Addl. Ahlmad to the Civil Judge (Junior Division), Rewari (AW5), N.K.Lakhera, Advocate (AW6), Nand Kumar Nagpal, Building Expert (AW8), Balu Ram (AW9), Monika, Civil Ahlmad (AW10), Mange Lal son of Kedar Nath (AW11) and the landlord himself stepped into the witness box as AW7. Thereafter, the landlord tendered documents Ex.P1 to Ex.P4 and closed his evidence, whereas the tenants examined Nand Kishore (RW1), Satya Pal (RW2), Mukesh Kumar Yadav, Advocate (RW3), Mohan Lal, Photographer (RW4), Sunil Kumar (RW5), Ved Parkash, Head Clerk, LIC (RW6), Shiv Shanker (RW7) and Darshan (RW8). No evidence in rebuttal was adduced. The learned Rent Controller discussed all the three grounds of eviction separately. As already observed, the ground of non-payment of rent had already become redundant, but while deciding the ground of personal necessity, it was observed by the learned Rent Controller that the landlord himself has admitted that his father and brother are having ancestral properties which have still not been partitioned, therefore, he is having a share in the joint properties for running his business with his father and brother and he has no bona fide necessity which is a mere desire and wish to evict the tenants from CR No.2399 of 2011 (O&M) -3- ****** the demised premises. It was further observed that the family of the landlord is consisting of two brothers who are having several shops in the Rewari city, therefore, the need of the landlord for accommodation available with the tenants is not justified. The landlord can run his business of cloths in another shop owned by his father who is having ancestral properties. Hence, the ground of personal necessity was rejected. With regard to the third ground of building having become unfit and unsafe for human habitation it was observed by the learned Rent Controller that the shop in question was renovated in the year 1984, there was no danger to it and merely the building being quite old would not provide the ground to hold that it had become unfit and unsafe for human habitation. Insofar as the issue No.2 is concerned, it was observed that the petition was bad for non-joinder of the necessary parties as Santosh Kumari and Asha Rani, daughters of Devi Ditta Ram, were not impleaded as parties. In appeal, the learned Appellate Authority, while dealing with the issue of non-impleadment of necessary parties, has held that in para No.3 of the written statement, only respondent No.1 along with respondent No.5 has been alleged to be carrying on business in the demised premises and RW8 Darshan Kumar himself had admitted that his sister Santosh Kumari was married about 30 years ago and is settled at Meerut and his another sister Asha Rani was married 24 years ago and is settled at Karnal. Both of them are not having any voter card or ration card in Rewari and are residing in their in-laws' house. The learned Appellate Authority had relied upon a decision of the Supreme Court in the case of Pushparani and others v. Bhagwanti Devi and another, 1994 Suppl.(3) SCC 76. While reversing the finding on the issue of personal necessity, the learned Appellate Authority has observed that the landlord, while appearing as AW7, had stated that he does not own and possess any shop in Rewari city nor had vacated. The learned Appellate Authority had discussed status of all the shops which have been mentioned by the tenants in the written statement. In this regard, the relevant observations of the learned Appellate Authority are reproduced hereunder: - “At this stage, it has been, however, contended by the learned counsel for the respondents that the appellant CR No.2399 of 2011 (O&M) -4- ****** constitutes a joint family along with his father and other brothers and his family owns other shops at city Rewari, details of which have been given in para No.6-B of the written statement and as such the need of the appellant cannot be termed as bona fide one. On the contrary, the learned counsel for the appellant-landlord Mr. D.N.Gupta, Advocate, while making a reference to the averments made in the replication, refuted the aforesaid submissions of the learned counsel for the respondents and submitted that neither of the shops as detailed by the respondents belongs to the appellant nor available at the moment for carrying out any business therein because all the shops are already on rent with other tenants except the shop bearing No.2185-86 which is lying vacant in a dilapidated condition after its vacation from the tenant by the father of the appellant on the ground of having become unfit and unsafe for human habitation. It has also been clarified by the appellant-landlord both in his replication and also in his own statement that all other shops belong either to his father or his brothers and he has got no concern whatsoever with the said shops. There is no evidence of the respondents in rebuttal. Rather respondent No.1 Darshan Kumar RW8 has himself substantiated the stand so taken on behalf of the appellant during his cross-examination. He has clearly stated that appellant does not own any other shop in Rewari city except the shop in question. Regarding the shop No.971 in Old Anaj Mandi, Rewari, the respondent No.1 has clearly admitted that the same is on rent with Moti Ram. He also admitted that shops bearing CR No.2399 of 2011 (O&M) -5- ****** No.1639-1640 at Gokal Gate, Rewari are on rent with one tenant Sapra for the last several years. He has also not denied that the shops bearing No.988-A and 988-B were earlier a single shop which were being occupied by tenant Topan Dass, who was ejected therefrom, but later on a compromise was effected in appeal, according to which, two new shops were constructed, out of which shop No.988-A is presently being occupied by the brother of the appellant namely Mohan Lal and shop No.988-B is in occupation of tenant Topan Dass. The respondent No.1 has also admitted that other two shops No.2672 situated in Jiwali Bazar, Rewari and bearing No.1126 located in Satta Bazar, Rewari are also in possession of the tenants. He also admitted that shop bearing No.2185- 86 situated at Moti Chowk, Rewari was got vacated by the father of the appellant on the ground of having become unfit and unsafe for human habitation and the same is lying vacant at the moment in a dilapidated condition.” The learned Appellate Authority had also referred to the statement of AW11 who had clearly stated in her affidavit Ex.AW11/A that the landlord and his sons have no concern with the shops which belong to him. On this score, it was held that the only shop available with the landlord is the demised premises which he wanted to be vacated by the tenants. In respect of the ground of building having become unfit and unsafe for human habitation, the learned Appellate Authority has observed that the shop has been found to be in dilapidated condition being 150 years old as per copy of the sale deed dated 05.07.1879 Ex.PW11/1. The learned Appellate Authority also relied upon report of Nand Kumar Nagpal, Building Expert (AW8), who had inspected the demised premises in the presence of the parties, under instructions of the learned Rent Controller dated 24.04.2005, who had given his report that the CR No.2399 of 2011 (O&M) -6- ****** demised premises has outlived its life and is structurally unsafe. Insofar as the report of Satya Pal (RW2) is concerned, it was rejected on the ground that he did not inspect the building in the presence of the landlord and has wrongly mentioned the age of the building as 50 years during his cross-examination which fact is otherwise incorrect in view of the sale deed Ex.PW11/1. Aggrieved against the order of eviction, the present revision petition has been filed in which at the time of notice of motion, the record of the Courts below was also summoned as counsel for the parties were referring to the oral evidence available on record. Learned counsel for the petitioners has vehemently argued that there has been only one partition between Ganga Prasad and Shri Gopal sons of Ram Narayan, but there is no partition of the property in the line of descent of Shri Gopal who is the ancestor of the landlord. Thus, it is submitted that the landlord has a share in the ancestral property of Mange Lal who could not allege that he does not own any other property in the concerned urban area. It is further submitted that the learned Appellate Authority has committed a patent error in reversing the issue of personal necessity decided by the learned Rent Controller in favour of the tenants. In this regard, learned counsel for the landlord has submitted that the demised premises is the only property which is owned by the landlord. He has drawn the attention of this Court to a decree dated 08.12.1972 passed in Civil Suit No.339 of 1972 titled as 'Mange Lal v. Kidar Nath and another' (Ex.P1). This decree was drawn on the basis of a report (Ex.P2) of the Referee by which the demised premises was allotted to Dhani Devi as per (Ex.P3). Dhani Devi (grandmother of the landlord) had executed a registered Will (Ex.A1) of the demised premises in favour of the landlord who had become its exclusive owner after her death. Insofar as the other ancestral property of the father of the landlord is concerned, it is submitted that those have been discussed thread-barely by the learned Appellate Authority and RW8 Darshan Kumar has himself admitted that the landlord does not own any other shop in Rewari city except for the demised premises. In view thereof, I do not agree with the contention of the learned CR No.2399 of 2011 (O&M) -7- ****** counsel for the tenants that the finding of the learned Appellate Authority with regard to the issue of personal necessity is not in accordance with law. Insofar as the issue of non-impleadment of Santosh Kumari and Asha Rani, daughters of Devi Ditta Ram, is concerned, it would be suffice to observe that after the death of Devi Ditta Ram, they had also inherited the tenancy rights and had become the statutory tenants, but their non-impleadment would not make any effect until and unless it is proved or it shown from the record that the other tenants had not taken keen interest in the litigation and have acted adverse to their interests. The last question is with regard to building having become unfit and unsafe for human habitation. The learned Rent Controller has only observed that the property is renovated in the year 1984, but the finding recorded by the learned Appellate Authority on the basis of the report of Nand Kumar Nagpal, Building Expert (AW8) that it has outlived its life and is structurally unsafe cannot be interfered with because the demised premises is 150 years old which is evident from the sale deed dated 05.07.1879. The learned Appellate Authority has observed that from the careful perusal of the report Ex.AW8/1, it has been found to be well reasoned, whereas the learned Rent Controller did not give any reason for relying upon the report dated 17.07.2006 (Ex.RW2/1) of Satya Pal, Building Expert (RW2) who had not even inspected the building in the presence of the landlord and has wrongly given its age to be 50 years though the demised premises was mortgaged with possession to Ram Narayan in the year 1855 and purchased by two sons of Ram Narayan in the year 1879 vide sale deed Ex.PW11/1. In these circumstances, I do not find any error in the order of eviction of the learned Appellate Authority passed against the tenants and as such, the present revision petition is hereby dismissed though without any orders as to costs. July 04, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE