Punjab-Haryana High Court
Bhagwan Dass vs Naresh Kumar And Anr. on 19 May, 2004
Equivalent citations: (2004)138PLR245
Author: H.S. Bedi
Bench: H.S. Bedi
JUDGMENT H.S. Bedi, J.
1. This appeal is directed against the order of the Appellate Authority dated 10.9.1998 by which the appeal filed by the landlord against the order of the Rent Controller dated 10.8.1996 dismissing the eviction application of the landlord too has been dismissed.
2. The facts of the case are that the landlord-Bhagwan Dass filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Act') for eviction of respondent Nos. 1 and 2 from a room measuring 12' x 10' and court yard measuring 15' x 11' situated on the ground floor abutting shop bearing M.C. No. 4617 Dhobi Bazar, Bathinda. The application was filed on the ground that there had been a change of user; that though the premises had been let out for residential purposes, they were being used for commercial purposes; that the premises had been sub let by respondent No. 1 to his father, respondent No. 2, without the consent of the landlord and by making some structural changes in the premises, the value of the property had been impaired and that the demised premises was required for personal use and occupation of the landlord.
3. On notice, the respondents filed their respective replies controverting the grounds taken therein. Ved Parkash (respondent No. 2) took the stand that he had no connection or concern with the demised premises and that the same had not been let to him by Naresh Kumar, Naresh Kumar, respondent No. 1 also denied the allegations and took the plea that the property in question had been let out to him for use as a shop or a godown and the same was being used for this purpose; that the claim of sub-tenancy was frivolous and the changes, if any made in the building in question were with the permission of the landlord and that no ground for personal necessity had been spelt out as the landlord was occupying a building in Bhatinda itself.
4. On the pleadings of the parties, the following issues were framed;-
1. Whether the demised premises are residential in nature as alleged? OPA
2. Whether respondent No. 1 has sublet the demised premises to respondent No. 2 without the consent of the applicant as alleged? OPA
3. Whether the respondents have impaired the value and utility of the demised premises through acts fully mentioned in para No. 3 Sub-clause B of the eviction application? OPA
4. Whether the respondents are using the demised premises in a reckless manner as alleged. If so, its effect? OPA
5. Whether the demised premises are required by the applicant for his own use and occupation? OPA
6. Whether the applicant is estopped by his act and conduct from filing the eviction application? OPR
7. Whether the landlord has waived off his rights to file the eviction application as alleged? OPR
8. Whether the application is bad for mis-joinder of respondent No. 2? OPR
9. Whether the address of respondent No. 2 has been wrongly mentioned deliberately by the applicant as alleged, if so, its effect? OPR.
10. Whether the demised premises have not been correctly and properly described in the eviction application, if so, its effect? OPR.
11. Relief.
5. The Rent Controller decided all issues in favour of the tenants and dismissed the application of the landlord. As already mentioned above, the appeal filed against the order of the Rent Controller too had been dismissed leading to the filing of the present petition.
6. Mr. Ashok Jindal, the learned counsel appearing for the petitioner-landlord has reiterated the pleas raised before the Courts below. He has urged that the demised premises were residential in nature but were being used for commercial purposes and as such there was a change of User.
7. There is no merit in this plea. Admittedly, the premises in dispute had been rented out to Naresh Kumar, respondent No. 1 vide rent note dated 1.10.1986, Ex.R-1, the execution whereof has not been denied by the landlord. A perusal of this document would show that the premises had been rented out to Naresh Kumar for the purpose of carrying on business or for use as a Godown. Moreover, there is no evidence to show that the demised premises were a part of a residential building and could be used for that purpose only. This plea is accordingly without merit.
8. I also find that there is no material on record to show that the demised premises were required for the personal use and occupation of the landlord. It is the case of the landlord that he was a heart patient and was being treated by Dr. Mohan Lal Garg and that the doctor had advised that he should reside on the ground floor and to avoid the use of a stair case. It is also the case of the landlord that he had a large family, which frequently visited him and that the premises were required for that purpose as well.
9. I find, however, that the landlord has not pleaded the ingredients required in a ease of personal necessity and has concealed material facts with regard to the other accommodation in his possession. It is the case of the tenant that the landlord was residing in Chug Niwas, Gali No. 4, Malwia Nagar, New Basti, Bathinda and this fact had not been disclosed in the ejectment application. It is also significant that Dr. M.L. Garg did not step into the witness box to support the case of the landlord that he was a heart patient. However, Dr. H.S. Chahal, who appeared as AW-2 deposed that he had been posted in the Civil Hospital, Bathinda in the ICU on March, 1992 and that Bhagwan Dass had remained admitted therein from 2.3.1992 to 13.3.1992 with Hametenesis and malena with a history of blood loss which as per the doctor was not related to a heart ailment. To my mind, the evidence of Dr. Chahal is of no help to the landlord. Dr. Chahal nowhere stated that Bhagwan Dass had been treated for a heart problem, it is also significant that the petition is altogether silent with regard to the present address of the landlord. In the headnote to the petition, the landlord has not given his address and has simply mentioned that he was a resident of Bhatinda. In the absence of this significant detail, it is not possible to give a finding that the accommodation in his possession was insufficient for his needs. It also bears notice that the demised premises had been let out in the year 1986 for use as a Godown. There is no evidence that there is any kitchen, bathroom or toilet in the premises from which it could be inferred that they could be used for residential purposes as-well.
10. It has also been urged on behalf of the landlord that the value of the demised premises had been impaired on account of major structural changes made by the tenant without the permission of the landlord. Reference has been made in particular to the addition or removal of certain doors and windows etc. I find no merit in this plea as well. It is clear from the rent note, Exh.R-1, that the landlord had permitted the tenant to make additions or alternations which were required for the effective use of the premises. It cannot therefore, be said that by such acts, there had been an impairment in the value and utility of the property. It has come in the evidence of the tenant that one Parchhati was already in existence when the property had been taken on rent and a second one had been constructed without making any structural changes to the walls and that this Parchhati had no adverse effect on the stability of the structure. It is also clear, and it has been so found by the Rent Controller as also the Appellate Authority, that there was no evidence that by making the Parchhatti, the value of the property had been impaired. The evidence of Sohan Lal, AW-1 who prepared the site plan, Ex.A-1 needs to be considered in this respect. I find that this site plan gives only a picture of the building and does not indicate whatsoever that there were any material change, which could be said to have impaired the value of the property.
11. On the other hand, the tenant has examined a building expert Varinder Gupta as RW-2, who prepared and proved his report and site plan, Exs.R-28 and Exs.R-29 respectively. This witness stated that he had inspected the demised premises and was of the opinion that no damage had been caused by removal of the door or by the construction of a Parchhati and that the building was in excellent condition.
12. To my mind, there is also no merit in the plea that as the disputed properly had been sub-let by respondent No. 1 to respondent No. 2 thereby handling over the effective control of the property to the sub-tenant, the tenant was liable to be evicted. I find that there is no evidence to show that the control of the demised premises had in fact been passed over. It also bears special notice significant that respondent No. 2 is none else than the father of respondent No. 1 and that respondent No. 2 is carrying on his separate business in the name and style of M/s Kundan Lal Ved Parkash in a nearby shop bearing No. 4583 in Dhobi Bazar, Bathinda. It is also significant that the landlord while appearing as AW-3 did not even allude to this aspect of the matter.
For the reasons given above, this petition is dismissed with no order as to costs.