Jammu & Kashmir High Court
Harbans Lal vs Amar Nath on 31 December, 2002
Equivalent citations: 2003(2)JKJ355, 2003 A I H C 2938, (2003) 2 RENCR 676 (2004) 1 RENCJ 176, (2004) 1 RENCJ 176
JUDGMENT Tejinder Singh Doabia, J.
1. The present appellant figured as a plaintiff in a suit for ejectment. This was filed under Section 11(1)(h) of the Jammu & Kashmir Houses-and Shops Rent control Act. This was with regard to a shop situated in main Bazar Udhampur, The respondent is a tenant.
2. In para "3" of the plaint, it was pleaded that earlier also a suit for ejectment was filed in the Court of Sub-Judge Udhampur, this was dismissed vide judgment dated 10.05.1963. It is not necessary to advert to further facts in this regard. Suffice it to say, that the present suit was filed after 20 years on 10.08.1983. In this suit it was pleaded that earlier the plaintiff was in occupation of a shop which was owned by his father-in-law. It was stated that a very small, portion thereof was owned by the plaintiff. This was to the extent or area having a width of 3. The rest of the shop as noticed above was owned by the father-in-law. It was further stated that the father-in-law of the plaintiff executed a gift on 22.8.1981. On account of this gift the shop where the plaintiff was permitted to carry on the business, came under the ownership of one Rajinder Kumar. As the main premises stood transferred to Rajinder Kumar son of the plaintiff, the plaintiff thought it apt to relinquish his rights in the 3, wide shop also. Accordingly a deed of relinquishment was executed on 14.2.1983. It was further pleaded that Rajinder Kumar is staying separately. After mentioning of these facts, in paragraphs 4 and 5 of the plaint, it was pleaded that the plaintiff-appellant required the premises under the possession of the respondent for his own use and also for the need of his son. It was pleaded that his son is un-employed. In addition, to this, the plea taken was that the defendant-respondent is also the owner of five shops in Udhampur Town and has got vacant possession of one shop from one Faquir Chand. Taking shelter behind these pleadings it was projected that the premises are required by the plaintiff for himself and also for the use and occupation of his son.
3. The defendants filed the written statement. The plea taken was that the plaintiff is already carrying on business as a chemist alongwith his minor son in another premises. It was thus pleaded that the shop/premises are not required by him. The fact that the plaintiff was living jointly with his son in the same residential accommodation, was projected in paragraph "5" of the written statement. It was admitted that the premises from where the plaintiff was carrying on business were owned by father-in-law of the plaintiff. Thus, the sum and substance of the pleadings on the part of the plaintiff was that the premises which were in his occupation, were owned by plaintiffs father-in-law. He had executed a gift. His father-in-law has since died and the property which stood gifted in favour of Rajinder Kumar has come under his i.e. ownership of Rajinder Kumar. A small portion of the shop which was owned by him. i.e. an area of the width of 3' has also come to vest in Rajinder Kumar. This was in pursuance of a deed or relinquish-ment executed by the plaintiff. He stated that he wants to carry on business in the premises, which has been let out to the defendant. This defendant admitted that the premises from which the plaintiff was carrying on business were owned by the father-in-law of the plaintiff. He, however, denied that the premises are required by the plaintiff. The fact that plaintiff was living jointly with his son, was projected.
4. The Trial Court dismissed the suit. The first appeal preferred also stands dismissed. Now, a second appeal has been preferred. A perusal of the file of this appeal indicates that as a question of law was framed on 8.11.1999. This is to the following effect:
(i) Whether the findings recorded on the question of personal requirement by the learned trial court are sustainable in the face of evidence led by the parties?
5. Before proceeding further it would be apt to notice that when matters pertaining to a dispute between the landlord and tenant are concerned, then the scope of interference and appreciation of evidence is somewhat different. In case reported as Rai Chand Jain v. Miss Chandra Kanta Khosla, AIR 1991 SC 744, it was held:
"The first question that poses for consideration by this court is whether the High Court while exercising its power under Section 15 (5) of the East Punjab Urban Rent Restriction Act, 1949, herein referred to as the 'said Act' is empowered to interfere and reverse the findings of fact arrived at by the appellate authority."
It was further observed;
"It is appropriate to notice in this connection the relevant provision of Section 15 (5) of the Act which specially conferred jurisdiction on the High Court in an application for revision against the Order of the Appellate Authority to satisfy itself as to the legality or propriety of the order made by the Appellate Authority. On a plain reading of this provision it is clear and transparent that the revisional jurisdiction conferred on the High Court is much wider than the jurisdiction provided Under Section 115 of the code of Civil Procedure. The High Court while exercising this jurisdiction is competent not only to see the irregular or illegal exercise of jurisdiction but also to see the legality or propriety of the order in question. In the instant case the High Court has found that the findings of the Appellate Authority insofar as it held that the demised premises were not let out for residential purposes and the same were let out for the purposes of running a press."
6. Some other decisions were quoted. Relevant part is quoted again.
".... Undoubtedly, the High Court reversed the findings of the Appellate Authority as the same are perverse and contrary to the evidence on record. The High Court in exercising its power under Section 15(6) of the said Act is within its jurisdiction to reverse the findings of fact as the same were improper and also illegal. It is appropriate to refer in this connection to the decision in the case of Ram Dass v. Ishwar chander, (1988) 3 SCC 131: AIR 1988 SC 1422 where it has been held that Section 15 (5) of the Act enables the High Court to satisfy itself as to the "legality and propriety" of the order under revision, which is, quite obviously a much wider jurisdiction. That jurisdiction enables the Court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not 51a second court of first appeal (see Dattpant Gopalrao Deveakate v. Vithalrao Marutirao, AIR 1975 SC 7777". Therefore this content is without any substance. It is appropriate to mention in this connection the occasion rendered by this Court in the case of Vinod Kumar Arora v. Smt Surjit Kaur (1987) 3 SCR 552: (AIR 1987 SC 2179) where it was held that the findings of the Rent Controller and the Appellate Authority are vitiated by inherent defects. The High Court was, therefore Justified in taking the view that those findings have no binding force on the revisional court. It was further held that the rule when the courts of fact render concurrent findings of fact, the High Court would not be entitled to disregard those findings and come to a different conclusion of its own, would apply where the findings have been rendered with reference of facts. Similar observations have been made by this Court in the case of Faqir Chand v. R.R Bhanot, AIR 1973 SC 921 (Supra) where it has been held that there is no estoppel because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case, there can be no estoppel against the statute."
7. In view of the above, the findings of fact as recorded by the Courts below are being examined:
As many as eight witnesses appeared on behalf of the plaintiff. The plaintiff also appeared in the witness box. PW-1 Partap Chand stated that the plaintiff is well versed in the Science of Indian system of Medicines, and he intends to start the business of a Hakeem. It was stated that defendant is running cloth business in the suit premises. For this, he needs sufficient accommodation. The defendant, it was stated, that defendant himself own 5/6 shops. One shop, as per this witness, was got vacated. This shop is lying vacant. It has not been re-constructed.
8. PW 2 Mohan Singh is another witness. He has produced the record. Rangil Singh is a record keeper of the District Court Udhampur, He has produced a copy of the suit filed on the earlier occasion. Roshan Din is yet another witness. He stated that the plaintiff is not doing anything. He testified to the effect that the plaintiff has sons and two of them are living separately from the plaintiff. So far as plaintiff's son Dharam Paul for whom the need was projected, it is stated, that he is not engaged in any business. He testified to the fact that the plaintiff was carrying on his business in the shop belonging to his father-in-law, but this shop has fallen to the share of plaintiff's son Rajinder Kumar, and it is Rajinder Kumar who is carrying on business in the said shop. No other commercial premises are available to the plaintiff. He also testified to the effect that the defendant has 4/5 shops and one of them was constructed about a 11/2 years back. PW 5 is one Faquir Chand. His statement is to the same effect as that of Roshan Din. As a matter of fact, this is a witness against whom a suit was filed and the shop was not vacated by the defendant. Durga Dass is the petition writer. He is a formal witness to the deed of the relinquishment. Bansi Lal is yet another witness. He testified to the effect that plaintiff is unable to carry on business as he has no accommodation available for this purpose. Satish Kumar is yet another witness. He also has testified to the same effect. Harbans Lal has appeared in the witness box. He has stated that Amar Nath is his tenant. He stated that he is unable to carry on any business because no commercial accommodation is available to him. The premises wherefrom he is doing the business has come under the ownership of Rajinder Kumar, and it is Rajinder Kumar who is carrying on his business therein. He also stated that plaintiff needs the shop for his son Devinder Kumar, because he is not engaged in any other business. He stated that Rajinder Kumar is un-mar-ried, but is carrying on business in ayurvedic medicines. Devinder Kumar is said to be possessing a licence and he wants to start a business. His sons Rajinder Kumar and Satish Kumar are putting up separately. This partition had taken place in the year 1971. He specially stated that they are separate in mess. Earlier Devinder Kumar was running a truck. This truck met with an accident and therefore he is not in a position to carry on any business.
9. The defendant has also led evidence. Six witnesses appeared on his ' behalf. The defendant also appeared on his behalf. The defendant also appeared in the witness box. Dwarka Nath who appeared on behalf of the defendant stated that plaintiff is even now carrying on the business, and this business he is carrying on from the premises of Rajinder Kumar. It was stated that it is the plaintiff who is attending to the business from the premises owned by Rajinder Kumar. Age of Rajinder Kumar was indicated. This was 20 to 21 years at the time of recording of evidence. On account of this age and lack of experience it was sought to be projected that he would not be in a position to administer medicines to the patients. What was sought to be projected was that it is the plaintiff who is in fact carrying on ,the business and the plea put across by the plaintiff that it is Rajinder Kumar who is running the business is not correct.
10. Chaman Lal is another witness. He stated that it is the plaintiff who is looking after the patients in the premises which are owned by Rajinder Kumar. It was stated that Devinder Kumar is a driver and he is owner of truck. When cross-examined, this witness was unable to state as to whether the defendants owns any other shop or not.
11. Ram Kumar is the son of the defendant. He also appeared in the witness box. He has testified to the same effect as Dwarka Nath and Chaman Lal. Bansi Lal is yet another witness. He stated that the name of Rajinder Kumar stands deleted from the ration card of the plaintiff. Under what circumstances this was done, this witness was unable to elaborate. Rattan Kumar is another witness, who has stated that the plaintiff was carrying on business from the premises said to have been vacated by Rajinder Kumar. To the same effect is the statement of Kidar Nath another witness produced by the defendant. Defendant also appeared in the witness box. He stated that earlier a suit was filed. He also stated that the plaintiff has been carrying on the profession of a Hakeem, and he personally attends to the patients. This he does from the shop owned by Rajinder Kumar. So far as Devinder Kumar is concerned, it was stated that he owns a truck and he drives the same. It is stated that a partition has taken place between the plaintiff and his son. This was in the year 1975. Satinder Mohan is yet another witness. It is stated by him that the plaintiff has constructed a shop adjacent to his house. As to what are the dimensions of this shop, have not been adverted to by this witness. Parma Nand is a witness who has indicated vis-a-vis the limits of Town Area Committee, Udhampur. Ram Chand witness stated that the plaintiff has constructed a shop on Dhar Road and has laid plinth for other four shops. Satish Gupta another witness testified to the same effect. Similar is the position vis-a-vis the other witnesses, namely Shiv Kumar and Girdhari Lal. The witnesses i.e. DWS 7 to 11 came to be examined when a report was sought vis-a-vis the question as to whether the plaintiff owns another shop.
12. Legal position as to need of the landlord he examined.
" In Rekha Chand Doogar V.J.R.D' Cruz AIR 1923 Cal, 223 Buckland J, observed.
I do not think it is enough that a plaintiff in order to defend a plea under the Calcutta Rent Act should merely say that he desires the premises bonafide for his occupation. The word in the Act is not desires but requires. This is my opinion involved something more that a mere wish and it involves an element of need to some extent at least.
Thus, the term "Bona fide requires" Connotes something more than desire to have something and much less than absolute necessity. This matter has also been dealt with and considered in Bhogi Lal M. Devya v. S.R. Subramanian Iyer, AIR 1954 Mad. 574."
In Firm Panju Dault Ma Ram v. Shakhi Gopal, AIR 1977 SC 2077, it was observed:-
That where a landlord is able to show that he requires the premises bona fide for his residential or non-residential requirement then order of eviction has to be passed. Likewise it was held that eviction of the non-residential portion which is an accommodation, if he makes out a non-residential requirement. "In M.M. Quasim v. Manohar Lal, AIR 1981 SC 1113, the Supreme Court observed that the landlord does not possess an unfattered right to re-enter premises of choice. He must prove that available vacant premises is not suitable for his purpose."
13. The term "reasonable requirement" undoubtedly postulates that there must be some element of need as opposed to a mere desire or wish. This distinction between dire and need should always be kept in mind. See: Bega Begum v. Abdul Ahmad Khan, AIR 1979 SC 272.
The genuineness of the need is to seen and this need is never static. It varies from person to person, place to place and from profession to profession. The meaning to be given to the term need or requirement should neither be artificially extended nor its language should be unduly restricted as such a course would defeat the very purpose of the Act. At the same time the proposition that the landlord is the sole arbitrator of his need is not to be accepted as the only view on the matter. There is no doubt that the subjective choice exercised in a reasonable manner by the landlord should normally be respected by the Court. Where the need for additional accommodation is proved the Court is not to dis-state the landlord to continue in the same business.
See: Precision Steel and Engineers v. Prem Deva, AIR 1982 SC 1518.
14. The term bona fide represents something more than a desire or wish to occupy. It quite clearly does not convey the idea of absolute necessity in the sense that there should be no other possible alternative for the landlord for meeting his requirement except by occupying his property. The Rent Control Legislation is primarily meant for protecting the tenants against the tactics of greedy and unscrupulous landlords who are taking advantage of the difficulties and helplessness of the tenants extract exorbitant rents from them. It does not appear to be designed to penalize the owners, by disabling them from occupying their own property when they bona fide require it. There is adequate provision in the Act safeguarding against a possible abuse of the privilege or the right of eviction on their part.
15. In Mattu Lal v. Redhey Lal, 1974 Rent Control Reporter 441, it was pointed out that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show that he genuinely required the accommodation. When the need can be said to be only a desire and when it is genuinely required cannot be tested on the criteria on the absolute necessity.
The meaning of bond fide requirement was considered in S.N. Datta v. VIIth Additional District Judge, Allahabad and Ors. 1984 (1) ARC 113, as follows:
"Mere desire or absolute need or necessity or both it has been held, erroneous approaches in this behalf, vide Janki Pd. v. IInd Additional District Judge and Ors., 1980 (UP) RCC 602. The word 'bona fide' mean genuinely, sincerely, i.e. in goodfaith in contradiction to mala fide. A Full Bench of this Court construed this to mean to genuinely or 'in goodfaith' and conveying an idea of absence of any intent to deceive, vide Chander Kumar Sah v. District Judge Varanasi, 1976 RCR 274: AIR 1976 All. 328: 1977 ARC 142 (FB) It will not be bona fide requirement of the landlord if release is sought for an ulterior purpose or fanciful whim, vide Dr. Sita Ram Gandhi v. District Judge Meerut 1978 (2) All India RCJ 326, Smt. Kamla Ahuja v. Vllth Additional District Judge Meerut and Ors., 1981 ARC 371."
16. If at this age the landlord want to start a business the Court should not step in and would not conclude that she is not able to run business. The law does not prevent the landlord from taking assistance from some outsider in carrying out his business. In Vinodilal v. Upbhokta Sahkart Bhandar Ltd. Guns, 1994 (2) Rent Control Reporter 386 in para 18 it was observed as:
"In the present case as noticed above, it has been brought on the record that the landlord wants to start his business at Guna. He was non suited as the Court below came to this conclusion that he was unable to specify as to when and what business he would start. As pointed out above the legal position is clear that eviction can be sought in contemplation or anticipated. The need and the eviction may not coincide. In contemplation of starting his business the landlord could seek eviction. It has been brought on the record that the requirement of the landlords genuine. There is no other impediment in the grant of relief to the landlord."
"It is not necessary that the need for starting business should exist on the date of the suit and the plaintiff can file a suit in respect of his requirement which is to arise in near future. This view was expressed by this Court in Hemraj Nima v. Rajnarayan, 1980 MPRCJ (NOC) 65."
"The fact that the tenant is not in occupation of any other accommodation in the city or town was taken note of and it was held that ejectment can be ordered. See: Damodam v. Nand Ram, AIR 1960 MP 345. In the above case the Court took note of the fact that grocery business of the landlord has grown and that the fact that the landlord required additional accommodation was a factor which was taken note. Ultimately it was observed that the landlord can seek eviction."
17. Coming to the facts of this case, the present plaintiff started the litigation almost forty years ago. First suit was filed on 10.5.1963. He was unsuccessful. After waiting for 20 years, a second suit was filed in 1983. In this suit he pleaded that he is carrying on business in a shop which belonged to his father-in-law and the father-in-law had chosen to bequeath this property in favour of his son. He was owner of a small portion 3' width in the shop. This open space was surrendered by him in favour of his son. The net result is that the plaintiff has no commercial premises which belong to him and from which he can carry on his business. He wanted the premises for his own need and also for the need of his son. The son was un-employed. It was pleaded by the other side that he has a truck. Evidence came on the record that this truck had suffered an accident. Therefore to say that the need of the appellant landlord was not bona fide is an argument which cannot be accepted. No doubt at that particular point of time the landlord wanted the premises for the benefit of his son for a particular business but nothing prevents the landlord from using the premises for any other purpose because during this period circumstances must have changed and if wants to carry on some other business or in case his son wants to carry on some other business then he is not debarred from doing so. As one son Rajinder Kumar has got a shop which is owned by him, the need of the landlord i.e. father and the son Devinder Kumar is there. On the other hand it may be seen that the defendant is owner of 5 to 6 shops. It has come on record that he got vacated one shop and that is lying vacant. No doubt, the rent laws are meant for the protection of tenant but then only a tenant who is in real distress can seek the beneficial provisions. These provisions are not meant to keep the landlord out of the premises owned by him for all times to come. The tenant has been successful and he has kept the landlord out for almost 40 years. Now need of the landlord stands established. The tenant must vacate the premises.
This appeal is accordingly allowed. The respondent-tenant is allowed three months time to vacate the premises. This is subject to the following conditions:
(i) that the up to date arrears of rent would be paid;
(ii) that the respondent-tenant would furnish an undertaking to the effect that he would handover vacant possession of the shop to the plaintiff-landlord and during this period, he would not create any third party rights. Let the undertaking be furnished within a period of fifteen days from today before District Judge Udhampur. In the event of failure to give an undertaking within the aforementioned period, the appellant-landlord would be well within his rights to execute the decree. It is also made clear that in case the premises are found to be locked then the appellant- landlord would be within his rights to break open the lock (s) thereof in presence of the SHO concerned and any movable property lying therein would be deemed to be on superdgi of the appellant-landlord.
This appeal is allowed in the manner indicated above.