Punjab-Haryana High Court
Joginder Singh Sawhney vs Harbans Lal on 18 November, 2002
Equivalent citations: (2003)134PLR242
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity 'the Act' challenges order dated 18.2.1993, passed by the Appellate Authority, Ambala, dismissing the appeal of the landlord-petitioner in which the order dated 7.1.1991 passed by the Rent Controller was impugned. The Rent Controller in his order dated 7.1,1991 had dismissed the application of the landlord-petitioner in which his prayer for ejectment of the tenant-respondent on the ground of non-payment of rent and also on the ground of personal necessity was negatived.
2. The facts necessary for deciding the legal controversy raised in the present petition are that the landlord-petitioner filed Rent Application No. 6-R/16.4.1988 instituted on 3.1.1983 for ejectment of the tenant-respondent from the demised premises by alleging that he had not paid rent since 1.7.1979. However, rent for the period from 1.11.1979 to 31.10.1982 only amounting to Rs. 2880/- including interest and cost was claimed. It was further alleged that the rate of rent per month was Rs. 80/-. It was further alleged that the demised premises were required by the landlord-petitioner for his own use and occupation as his son was of marriageable age who did not have any residence for his use. The landlord-petitioner further asserted that he had not vacated any other premises without sufficient cause nor he has any accommodation available for his own use and occupation, He further averred that the premises available with the landlord-petitioner was not sufficient and he urgently required the demised premises alongwith another portion of the house for which a separate ejectment application had been filed.
3. The tenant-respondent took the stand that the demised premises was rented out to him by the mother of the landlord-petitioner long ago at a monthly rent of Rs. 25/- per month which was later on enhanced to Rs. 35/- per month exclusive of water and other charges. It was denied that the rate of rent was fixed at Rs. 80/- per month. It was alleged that the rent use to be collected by the mother of the landlord-petitioner or his son Paramjit Singh from time to time. It was further claimed that the tenant-respondent had paid rent upto July, 1982 which has been collected by his mother and son. For the month of July 1982, the son of the landlord-petitioner collected rent at the rate of Rs. 35/- per month and he had also issued a receipt. It was further claimed that he had sent Rs. 75/- representing the rent for a period of two months i.e. August and September, 1982 through money order to the son of the landlord-petitioner who refused to accept the money order as is recorded in the endorsement by the postal official. It was further claimed that the landlord-petitioner has a residential house in Model Town Ambala City in his own name which was rented out to some other tenant but this fact has intentionally been concealed in order to raise the plea of personal necessity. It is refuted that the demised premises is required by the landlord-petitioner for his own personal use. The Rent Controller framed three issues which read as under;-
"1. Whether the respondent is liable to be evicted from the premises in question on the grounds alleged? OPP
2. Whether the petition is not maintainable in the present form as alleged? OPR
3. Relief."
4. On issue No. 1, the Rent Controller took up both the grounds for decision. He recorded the finding that the landlord-petitioner miserably failed to prove the rate of rent. He further pointed out that different rates of rent have been given in the ejectment application where he has claimed Rs. 80/- per month as rent and in his replication, the rate of rent mentioned is Rs. 90/-.When he appeared as PW1, he did not depose about the rate of rent. The plea of the tenant-respondent was taken to be proved that the rate of rent as settled between the landlord-petitioner and the tenant-respondent was Rs. 35/- per month and therefore, it was accepted that the tender amount of Rs. 250/- represented the arrears of rent which was not accepted by the landlord-petitioner. On the basis of the aforementioned findings, the Rent Controller recorded the conclusion that there was no arrears of rent and negatived the first plea.
5. The ground of bona fide personal necessity was also negatived because the Rent Controller has reached the conclusion that the landlord-petitioner has not been able to discharge the onus to prove the bona fide necessity and that Joginder Singh has already vacated a portion of the demised premises about 1 1/2 years ago. Consequently, the application for ejectment of the tenant-respondent was dismissed.
6. The Appellate Authority also affirmed the findings recorded by the Rent Controller. Referring to the written arguments placed on file by the parties, the Appellate Authority proceeded to determine the rent receipt Ex.R.2 and the money order Coupon Ex.R.5. Both these- documents were produced by the tenant-respondent to show that he has been paying rent regularly and receipt has been issued by the son of the landlord-petitioner. Both these documents were found to be proved by relying on the statement R-2 of the handwriting expert Sh. N.K. Jain. The plea of personal necessity was also negatived because it was found that certain other premises had been vacated by some other tenant. The objection raised by the tenant-respondent with regard to concealment of the present residential house and his address by the landlord-petitioner was also taken into consideration to affirm the finding that there was no personal necessity available requiring the tenant-respondent to vacate the premises.
7. Mr. M.S. Rakkar, learned counsel appearing for the landlord-petitioner has not paid rent upto to the date of filing of the ejectment application. The learned counsel has pointed out that the tenant-respondent tendered rent for 7 months on 20.2.1983 which cannot be considered as a legal tender within the meaning of Section 13(2)(i) of the Act. The learned counsel has further pointed out that the ground of personal necessity has also been fully proved as his son was of marriageable age and there was insufficiency of accommodation. Criticising the approach of the Appellate Authority, the learned counsel submitted that house number was not required to be given.
8. Mr. S.D. Sharma, learned counsel appearing tor the tenant-respondent has submitted that the landlord-petitioner has sufficient accommodation which has already been occupied by him and he does not have any bona fide personal necessity. According to the learned counsel, the landlord-petitioner is required to plead and prove that neither he was owning any other building nor vacated any one without any cause and these facts have neither been pleaded and could not in any case be proved. In support of his submission, the learned counsel has placed reliance on a Full Bench judgment of this Court in the case of Sh. Banke Ram v. Smt. Sarasti Devi, (1977)79 P.L.R. 112 and also a Division Bench judgment of this Court in the case of Raman Mal v. Faquir Chand and Ors., (1984-1)87 R.L.R. 197. For the same proposition, he has cited the case of Joinder Pal alias Rajinder Pat and Ors. v. K.C. Sharma, 1984(1) R.L.R. 49 and argued that once the landlord-petitioner had failed to plead the basic ingredients of Section 13(a)(i) of the Act in the ejectment application showing bona fide personal necessity, then neither any evidence could be led to prove those facts nor any order of ejectment could be made. The learned counsel has further pointed out that the landlord-petitioner has a huge bungalow, namely, 261, Prem Nagar, Ambala which he never disclosed and, therefore, the conduct of the landlord-petitioner lacks bona fide. According to the learned counsel it is not a mere wish of the landlord-petitioner which could result into the eviction of the tenant-respondent. The word 'requires' used in Section 13(3)(i) of the Act would necessarily imply an element of need to some extent at feast. Referring to the Full Bench judgment of this Court in the case of Sant Ram Das Raj Kalka v. Koran Chand Manual Rant, A.I.R. 1963 Punjab 1, the learned counsel has argued that the expression requires was interpreted by the Full Bench to mean that an element of need is implicit in it and in case of need only that the tenant-respondent could be ordered to be ejected. Mr. Shanna has pointed on that fraud and justice can never stand together.
9. I have thoughtfully considered the rival submissions made by learned counsel for the parties and after perusing the record I have reached the conclusion that the landlord-petitioner has miserably failed to make out a case for ejectment of the tenant-respondent from the demised premises. The landlord-petitioner has not even pleaded the basic ingredients in the application that he was not occupying another residential building in the concerned urban area and has not vacated such residential building. In para 2(iii) of the application filed under Section 13 of the Act, the landlord-petitioner has only mentioned a part of substantive facts as envisaged by Section 13(3)00(0 of the Act, namely, that he had not vacated such a residential building. He in fact concealed the facts. Section 13(3)(a)(i) of the Act reads as under;-
"13. Eviction of tenants.- xx xx (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(a) in the case of a residential building, if,-
(i) he requires it for his own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of the 1949 Act in the said urban area;
XX XX XX XX Provided further that where the landlord has obtained possession of a residential building or rented land under the provisions of Sub-clause (i) or Sub-clause (v) of Clause (a) or Clause (b), he shall not be entitled to apply again under the said provisions for the possession of any other building or rented land of the same class;"
10. A perusal of the aforementioned section shows that in case of residential buildings ejectment could be sought by a landlord by claiming that he is not occupying any other residential building in the concerned area. There is not even an averment to this effect in the ejectment application. Therefore, the judgment of the Full Bench in the case of Sh. Banke Ram (supra) as well as Raman Mal (supra) an Joginder Pal's case (supra) would squarely cover the controversy in favour of the tenant-respondent. Moreover, the findings of the Rent Controller as affirmed by the Appellate Authority are that the ground of personal necessity has not been proved by the landlord-petitioner. It has further been found that two tenants, namely, Bishan Dass and Gurbachan Singh have left the possession of the premises under his tenancy. Even Paramjit Singh son of the landlord-petitioner had appeared and deposed that he was not yet married. Therefore, the concurrent findings of fact recorded by the courts below cannot be considered to be without evidence and the landlord-petitioner has miserably failed to prove his bona fide necessity of the demised premises.
11. The other ground of non payment of rent has also not been proved. The findings as recorded by the Rent Controller and affirmed by the Appellate Authority unequivocally show that at different places different rates of rent have been pleaded. )n the ejectment application the rate of rent claimed was Rs. 80/- p.m. and on the denial of the tenant-respondent, replication was filed wherein the rate of rent mentioned was Rs. 90/-p.m. by stating that it was wrongly typed as Rs. 80/- p.m. in the ejectment application. The rent was tendered at the rate of Rs. 80/- p.m. from 1.11.1979 to 31.10.1982. Therefore, the landlord-petitioner was unable to prove the rate of rent when he stepped into the witness box. Both the Courts below have accepted that the tender was rightly made by the tenant-respondent in the Court which was not accepted by the landlord-petitioner and it was rightly concluded that the tenant-respondent cannot held to be in arrears of rent.
12. I am further of the view that the landlord-petitioner made an attempt to conceal the correct facts by his failure to disclose that he has another house, namely, H. No. 261, Prem Nagar, Ambala. The conduct of the landlord-petitioner is not worthy of any comment by this Court.
13. For the reasons recorded above, this revision petition fails and the same is dismissed.