Punjab-Haryana High Court
Baljeet Singh vs Narinder Pal Kaur on 4 May, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
C.R. No.1801 of 2012(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.1801 of 2012(O&M)
Date of decision: 04.05.2012
Baljeet Singh ....Petitioner
Vs.
Narinder Pal Kaur ....Respondent
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Arun Bansal, Advocate,
for the petitioner.
Mr. BPS Virk, Advocate,
for the respondent/caveator.
G. S. SANDHAWALIA, J. (Oral)
C.M. No. 7681-CII of 2012 Application filed under Section 151 CPC praying for dispensing with filing of certified copy of impugned order dated 17.05.2010 is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.R. No.1801 of 2012(O&M)
1. The present revision petition has been filed by the tenant against the concurrent findings of the Courts below wherein ejectment has been ordered on the ground that the premises are bona fide required for the personal use and occupation of the landlady as her NRI grandson alongwith his family has to come to India to live with her.
2. The respondent-landlady filed the petition seeking ejectment from the premises in question bearing House No. 895, Sector 40-A, Chandigarh on the grounds of arrears of rent since September 2004 and personal C.R. No.1801 of 2012(O&M) 2 necessity as well as nuisance created by the tenant and his family members. The respondent-landlady pleaded that she was the landlady of the house consisting of four bed rooms, drawing-dining, two bath rooms, one kitchen, back side court yard and front side court yard and had inducted the respondent as tenant in two rooms, one kitchen, one bathroom in January 2004 on monthly rent of 3,800 which excluded water and electricity charges. It was alleged that the tenant took possession of the third room and second bathroom by breaking open locks forcibly and illegally and came in possession of three rooms, one kitchen and two bathrooms and he paid rent upto August 2004 and thereafter issued two cheques of `4,000 and `3,800 dated 27.10.2004 and 29.10.2004 for the month of September and October 2004 which bounced on presentation. The landlady alleged that she was issued a senior citizen card and was a widow of military personnel and had been residing in one room of the house and using the bathroom being used by the tenant of which he took the possession illegally. The accommodation with the landlady became inadequate as she had only one room and a bathroom and that she being 79 years old had not been keeping good health and had requested her NRI grandson to come to India with his family and look after her in her old age and the tenant had been asked to vacate and the tenant did not vacate the demised premises and legal notice dated 16.11.2006 through registered post calling upon the tenant to vacate the premises had been served upon him and thus she sought ejectment on the ground of non-payment of rent since September 2004, her personal use and occupation and nuisance. It was averred that she did not occupy any other residential building in urban area of Chandigarh except as stated above nor she has vacated any residential building within the urban area of Chandigarh without sufficient C.R. No.1801 of 2012(O&M) 3 cause.
3. In the written statement filed by the tenant, it was alleged that the petition had been filed to harass the tenant and to let out the premises at a higher rent. The landlady had accommodation in House No. 1120, Phase 3B-II, SAS Nagar, Mohali and that she was residing there and was also landlady of that house. The relationship of the landlady-tenant was admitted and it was alleged that the premises consisted of four bed rooms, drawing-dining, two bath rooms, one kitchen, back side court yard and front side court yard and the rate of rent was `3,800 per month and he was a tenant from January 2004 and regularly making payment but the landlady was not issuing any receipt. It was alleged that the whole house had been taken on rent except one room with the landlady which was being used as a store and it was denied that only two rooms, one kitchen, one bathroom had been rented out. The ground of personal requirement was just to pressurize the tenant and to get him vacated and to let out the property at higher rate of rent and he was regularly paying the rent but no receipt had been issued and the cheques had bounced due to unavoidable circumstances but the payment had been made thereafter but the cheques had not been returned by the landlady and had been kept to pressurize the tenant. No criminal proceedings were filed against the bouncing of the cheques and the landlady being a widow of military personnel was denied and it was also denied that she was residing in the demised premises but it was alleged that she was residing in House No. 1120, Phase 3B-II, SAS Nagar, Mohali and was having more than sufficient accommodation in the said house. The need of the NRI grandson was only a concocted story.
4. On the basis of the said pleadings, the Rent Controller framed the following issues:-
C.R. No.1801 of 2012(O&M) 4
"1.Whether the respondent is in arrears of rent with respect to the demised premises w.e.f. September 2004? OPP
2. Whether the demised premises is required by the petitioner for her personal use and occupation? OPP
3. Whether the respondent and his family created nuisance to the petitioner and the other inhabitants of the locality? OPP
4. Whether the petitioner has concealed the material facts from the court? OPR
5. Whether the petitioner has got no cause of action to file the present petition? OPR
6. Relief."
5. The landlady examined herself and two more witnesses namely Bhupinder Singh and Rajinder Singh as PW-2 and PW-3 respectively and closed her evidence whereas the tenant examined Suresh Kumar as RW-1 and himself appeared as RW-2 and also examined Shri Mam Raj, Junior Technician, Chandigarh Housing Board as RW-3. On the findings of the arrears of rent, the Rent Controller came to the conclusion that there was nothing remaining due and payment had been made. On the issue of personal use and occupation and concealment of material facts and cause of action, the Rent Controller came to the conclusion that the petitioner was an old aged lady and required company of her family members and the grandson who had agreed to shift to India and reside with her in the premises in question. The submission of the tenant that the property was owned by one Prem Sagar Malhotra since allotment letter was issued in his C.R. No.1801 of 2012(O&M) 5 name Ex. RW-3/A and thus she was not the owner of the demised premises was brushed aside on the ground that the tenant had always paid the rent to the landlady. It was held that one room and one kitchen alongwith bathroom that she has been asked to share was very less accommodation and since her grandson had agreed to shift to India and she being the best judge of her need, the tenant had no right to dictate the terms. The ownership of house in Mohali did not bar to seek ejectment of the tenant because Mohali did not fall within the urban area of Chandigarh. Accordingly, it was held that the premises were required for her bona fide personal use and occupation. The issue of nuisance was decided against the landlady and accordingly, ejectment was ordered from the premises in question on 17.05.2010 by the Rent Controller, Chandigarh.
6. The tenant preferred an appeal before the appellate authority, which was dismissed on 12.01.2012 upholding the ejectment. Resultantly, the present revision petition has been filed.
7. Counsel for the petitioner-tenant has stressed and limited his argument on the ground that the ownership of the property is not with the respondent-landlady and, therefore, without being the owner of the property, the ground of personal necessity could not be pressed into action. It is contended that the property was owned by Prem Sagar Malhotra and the allotment letter Ex.RW-3/A showed that the allotment on the record of the Chandigarh Housing Board was in the name of the said person and there was only a general power of attorney in favour of Manjit Singh s/o of Gurcharan Singh, who was son of present landlady. Reliance is placed upon the judgment of the Hon'ble Supreme Court of India in Joginder Pal vs. Naval Kishore Behal, AIR 2002 SC 2256 to contend that once the necessity of the grandson was there, the requirement of the landlady to C.R. No.1801 of 2012(O&M) 6 prove that she was the owner was essential and eviction could not have been ordered. Similarly, reliance is also placed upon judgment of this Court rendered in Smt. Ram Piari vs. M/s. Delhi Fruit Company and others, 1980 (1) RLR 624, Bharat Petroleum Corp. Ltd. and another vs. Smt. Raj Kumar Devi and others, 2004 (1) Rent Law Reporter 644, Sohan Lal vs. Swaran Kaur, 2003 (2) Rent Law Reporter 619.
8. The second submission was regarding the bona fide requirement of the landlady being whimsical as the landlady already had accommodation in Mohali which is sufficient for her need and her grandson's need. Reliance is placed upon a judgment of this Court rendered in Bhagwan Dass vs. Naresh Kumar and another, 2004 LAR 444 and it is contended that the Rent Act was a beneficial piece of legislation and it should not be misused by the landlords. Reliance is also placed upon P.C. Verman (Retd.) Lt. Col. DR, vs. Mohinder Singh and others, 1997 (3) PLR 856, Mangat Rai and others vs. Kidar Nath and others, 1980 (2) Rent Law Reporter 678 and Mam Chand vs. Chhotu Ram and others, 1964 PLR 93.
9. Submission made by the counsel for the landlord, on the other hand, is that a Full Bench of this Court in Ajay Kashyap vs. Smt. Mohini Nijhawan, 2004 (2) CCC 69 has held that landlord can be a person who is entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of any other person and even would include a tenant who sub-lets any building or rented land and also any other person from time to time deriving title under a landlord and accordingly even the allottees of the dwelling units owned by the Chandigarh Housing Board were held to be the C.R. No.1801 of 2012(O&M) 7 landlords entitled to the possession of the premises in question and submitted that it was not necessary to be the owner of the property to seek ejectment on the ground of personal necessity. It is also contended that under the Rent Act, the bona fide requirement of the family has to be taken into consideration and the grand son of the landlady was part of the family for whom ejectment is being sought.
10. The submission made by the counsel for the petitioner does not carry substances as a bare perusal of Section 2(c) of the Rent Act goes on to show that the definition of landlord does not refer to the landlord being owner of the property as such. The relationship of landlord-tenant in the present case is admitted and under Section 116 of the Indian Evidence Act, 1872 the tenant is precluded from denying the issue of title of the landlord. That the appellate court has referred to the rent agreement executed between the parties, wherein tenant had admitted the landlady to be the owner in possession of the house in question and held that it would not lie in the mouth of the tenant to deny the title to the landlady. Section 2(c) of the Rent Act reads as under:-
"(c) "landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the C.R. No.1801 of 2012(O&M) 8 manner hereinafter authorised, and, every person from time to time deriving title under a landlord;"
11. The Hon'ble Apex Court, in the case of K.D. Dewan vs. Harbhajan Singh Parihar, 2002 (2) PLR 682 examined the said proposition and held that it is not necessary for the landlord to be the owner of the property in question. Relevant paras of the judgment read as under:-
"9. Having noticed the definition of the term 'landlord', it will be useful to refer to Section 13(3)(a) of the Act which reads as follows:
"Section 13(1) xxx xxx xxx
(2) xxx xxx xxx
(3) (a) A landlord many apply to the
Controller for an order directing the tenant to put the landlord in possession -
(i) in the case of a residential building, if -
(a) he requires it for his own occupation"
10. A plain reading of the provisions extracted above makes it clear that to claim a relief thereunder a person must be a landlord within the meaning of the terms of Section 2(c); his being owner of the premises is neither a pre-requisite nor a relevant factor.
xxx xxx xxx xxx xxx xxx
14. From the above discussion it follows that C.R. No.1801 of 2012(O&M) 9 such a truncated meaning of the term 'landlord' cannot be imported in clause (c) of section 2 of the Act having regard to the width of the language employed therein and there is no other provision in the Act to restrict its meaning for purposes of Section 13(3)(a) thereof to an owner of the premises alone. The appellant has been paying monthly rent of the premises to the respondent from 1976. The respondent is thus the landlord of the premises under the Act and is entitled to seek relief under Section 13 (3)(a) of the Act. In this view of the matter, we find no illegality in the order of his High Court under challenge. The appeal is without merit and it is liable to be dismissed."
12. Thereafter, in E. Parashuraman (D) by L.Rs. vs. V. Doraiswani (D) by L.R, 2006 (1) HRR 55, while taking into consideration the provisions of Section 116 of the Evidence Act, 1872 and the provisions of the Karnataka Rent Act, 1999, the Hon'ble Supreme Court of India again held that the landlord need not be the owner of the premises and once the appellants were inducted as tenants, the rule of estoppel applied to them and they could not raise the issue of lack of title.
13. The Full Bench of this Court in Ajay Kashyap's case (supra), also after taking into consideration the provisions of Section 2(c) of the Rent Act, Haryana Housing Board Act, 1971 and The Chandigarh C.R. No.1801 of 2012(O&M) 10 Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979, overruled the judgment of this Court in Damyanti Bhalla vs. Pritpal Singla, 1999 (2) RCR 189 (P & H), wherein it was held that the landlord being an allottee of the Housing Board, was not entitled to evict his tenant under the provision of the Rent Act and went on to held that the provisions of Rent Act shall govern the inter se relationship between such allottees and their tenants. The judgment rendered in Joginder Pal's case (supra) relied upon by the petitioner does not support his case as the Hon'ble Apex Court in that case had considered the requirement of the landlord-respondent of the premises for use of her son who was a Chartered Accountant. The Apex Court, after taking into consideration the provisions of various State Rent Acts, came to the conclusion that the expression own use cannot be narrowly construed and has to be taken into consideration in its widest sense. The principles laid down by the Apex Court read as under:-
"Our conclusions are crystalised as under:
(i) the words 'for his own use' as occurring in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow construction.
(ii) The expression __ landlord requires for 'his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal C.R. No.1801 of 2012(O&M) 11 'emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as inter-relationship and inter-
dependence __ economic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong.
(iii) The tests to be applied are : (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) Whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as 'his own' occupation or user? The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as 'his own' and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere C.R. No.1801 of 2012(O&M) 12 ruse to get rid of the tenant, will uphold the landlord's claim.
(iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.
(v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord 'for his own use' within the meaning of Section 13(3)(a)(ii). The appeal is dismissed. The tenant is allowed four months time to vacate the premises subject to his clearing all the arrears and filing the usual undertaking in the Executing Court to deliver vacant and peaceful possession over the suit premises to the landlord- respondent on expiry of the time allowed. Compliance in four weeks."
14. Similarly, in Smt. Ram Piari's case (supra), this Court allowed the revision petition of the landlord and directed ejectment of the tenant and restored the order of the Rent Controller. It was held that in case there is a dispute between the persons who inducted the tenant and the person who claims himself to be the owner of the property, the Rent Controller may not decide this dispute and refer the parties to the civil courts. If there is no dispute between the person who inducted the tenant originally and the real owner of the property and once the relationship of landlord was admitted, then it C.R. No.1801 of 2012(O&M) 13 could not be said that the owner is not the landlord of the property for the purposes of the Act.
15. In the present case, it has been found that there is a general power of attorney in favour of Manjit Singh, who is the son of the present landlady and even if the property was owned by Prem Sagar Malhotra, once the tenant had been inducted by the present respondent-landlady, he could not question the relationship of the landlord-tenant. In Bharat Petroleum Corporation Ltd. Case (supra), the revision petition was allowed on the ground that the Court had not considered the question of partial eviction in terms of Section 11 (1)(c) of the Bihar Buildings (Lease, Rent and Eviction Control) Act, 1982. Similarly, the judgment rendered in Sohan Lal's case (supra) cannot be taken into consideration as the said judgment pertains to Section 13-B of the Rent Act wherein, in cases of properties owned by non-resident Indians, the eviction can be got done by the owner and the different provisions come into play as it is a requirement that only the owner for the last more than 5 years, is entitled for getting one building vacated. The provisions of Section 13-B of the Rent Act have also been taken into consideration by Division Bench of this Court in Smt. Bachan Kaur and others vs. Kabal Singh and another, 2011 (1) RCR (Rent) 368 and noticed that for the first time the word owner has been used in Rent Legislation. Relevant para of the said judgment reads as under:-
"17. In the Punjab Act, as originally enacted, the word owner is not used in the entire Act. Section 13-B C.R. No.1801 of 2012(O&M) 14 of the Punjab Act confers a right of eviction to an owner for the first time. Therefore, an ordinary meaning of such expression has to be applied while interpreting the provisions of the Punjab Act. The proviso to sub-section (1) of Section 13-B of the Punjab Act, regulates the right of eviction of such owner i.e. after a period of five years from the date of becoming the owner of such a building. The proviso is an exception to the substantive provision when it restricts right of such owner to seek eviction after five years and is explanatory, when it provides that an owner shall be entitled to seek eviction after five years of becoming owner. The right of eviction under the Punjab Act, has been given to an owner in respect of residential, scheduled or non residential building let out by him or her, required for his or her use or for the use of anyone ordinarily living with or dependent upon him or her. The proviso explains that an owner is entitled to seek ejectment after five years of acquiring title. It is well settled that all words in the statute have to be given meaning. The argument that an NRI is entitled to seek eviction after five years of becoming owner only if the tenant has been inducted by him does not serve the purport of the Act. If such meaning is assigned, the right of eviction given to NRI C.R. No.1801 of 2012(O&M) 15 becomes otiose. Therefore, restricting the right of eviction to an owner who has let out the building alone cannot be reconciled with the proviso. The harmonious construction of proviso and the substantive provision is possible by accepting the argument that the tenant need not be necessarily inducted by the petitioner- owner more so when a tenancy is interest in the immoveable property transferred with the property itself."
16. Therefore, the judgment rendered in Sohan Lal's case (supra) would not be relevant in the facts and circumstances of the present case.
17. Regarding the second submission on the bona fide requirement of the landlady, the Hon'ble Apex Court has time and again held that it is not for the tenant to dictate the terms to the landlord and the landlord is free to choose and decide how he wishes to use the property in question. The Apex Court in Sarla Ahuja vs. United India Insurance Company Ltd., AIR 1999 Supreme Court 100 has held as under:-
"14. The crux of the ground envisaged in clause
(e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the C.R. No.1801 of 2012(O&M) 16 presumption that the requirement is not bona fide.
When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
18. The Hon'ble Apex Court in Dwarkaprasad vs. Niranjan and another AIR 2003 SC 2024, has held that the requirement of the joint Hindu family property would include the requirement of the younger brother also and in the present case the grand mother is seeking ejectment on the ground that her NRI grandson has to come and live with her in her old age and, therefore, there can be no dispute with the proposition that the requirement is not bona fide.
19. The judgment rendered in P.C. Verman (Retd.) Lt. Col. DR's case (supra) pertains to the issue of protection to be granted to the sub-tenant and the judgments rendered in Mam Chand's case (supra) and Mangat Rai's case (supra) pertains to the right of the defaulting tenant regarding the tendering of rent on the first date of hearing and in such circumstances, the issue of beneficial legislation C.R. No.1801 of 2012(O&M) 17 regarding the tenants has been taken into consideration. The said judgments are not applicable in the facts and circumstances of the case where the requirement of the landlady is for the bona fide need of the premises in question and whereas there is interdependency upon each other.
20. Keeping in view the said circumstances, no fault can be found with the concurrent findings of the Courts below whereby, the ejectment of the petitioner has been ordered from the premises in question. Accordingly, the present revision petition is dismissed and the ejectment orders passed by the authorities are upheld.
(G.S.SANDHAWALIA) JUDGE 04.05.2012 shivani`