Punjab-Haryana High Court
Tarsem Chand Son Of Raj Kumar Son Of ... vs Rajinder Singh Son Of Tarlochan Singh on 23 April, 2013
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.6319 of 2009 (O&M)
Date of decision:23.04.2013
Tarsem Chand son of Raj Kumar son of Kapoor Chand, resident of
Chandana Gate, Kaithal, and others.
....Petitioners.
versus
Rajinder Singh son of Tarlochan Singh, resident of Chandana Gate,
Kaithal, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Arun Jain, Senior Advocate, with
Mr. Amit Jain, Advocate, and
Mr. Jaivir Chandel, Advocate,
for the petitioners.
Mr. Atul Gaur, Advocate, for
Mr. Sumeet Goel, Advocate,
for respondents 1, 2 and 4.
None for respondents 3 and 5.
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1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No.
3. Whether the judgment should be reported in the digest ? No.
----
K.Kannan, J.
1. The revision petitioners are before this Court challenging the concurrent orders dismissing the landlord's petition for eviction. The eviction had been sought by the tenant on the ground that the tenants had been in default in payment of rent from Civil Revision No.6319 of 2009 (O&M) -2- 01.11.2002 and that the property was required for the personal necessity of one of the landlords, namely, Ashok Kumar, described as the second petitioner. The contention was that the second petitioner had three children and the eldest was school going and the needs of the family were increasing day-by-day and, therefore, in order to augment the income, he wanted to start the business in karyana (wholesale) for setting up his business. The landlord admitted to own other businesses as well but the contention was that the demised premise was necessary for him for starting a new business. The statement in defence of respondents 2 and 3, who had joined and filed the written statement was that the property in their possession was 5 khanns usually called the godowns which included shops situated on the main road, as also three godowns situated towards northern side and one godown on the eastern side and they all formed one unit. They were also in possession of open courtyard and passage which was part of tenancy of the respondents. Joining issues with the plea that the landlord required the property for his personal necessity, the contention was that the petitioner was already doing the flourishing business of commission agency in the name of M/s Kapoor Chand Raj Kumar and M/s Raj Kumar Ashok Kumar and that there was no need for the landlord to have another business. The tenants also had the contention that the landlord was at all times harassing them. They were themselves the successors-in-interest of Civil Revision No.6319 of 2009 (O&M) -3- their father-Tarlochan Singh, who had taken the property on rent in the year 1974. He successfully fended off an action for eviction in the year 1974 brought against him earlier before the Rent Controller, Kaithal, where a similar plea for ejectment on the ground of personal need was made and the petition was dismissed. The landlord at that time filed an appeal and revision to the higher authorities and they were also dismissed. Even during the pendency of earlier proceedings, yet another suit for ejectment had been filed in the year 1989 on the ground that the suit properties were godown and that the Rent Act was not applicable. The suit was hotly contested which was dismissed by the trial Court in the year 1998. Thereafter an ejectment petition was filed in the year 1999 setting up a case of bona fide requirement of the premises for the use of Tarsem Kumar and Ashok Kumar, who were the sons of the first petitioner-Raj Kumar. The petition was allowed to be dismissed for default after 5 years of pendency and after availing several opportunities to let in evidence. They had also filed another ejectment petition on 11.05.1999 titled "Raj Kumar etc. Versus Subhash Chand" in which the present second petitioner-Ashok Kumar was the 4th petitioner. The said petition was in relation to the adjoining building in the occupation of Subhash Chand. The reference to all these proceedings by the tenants was only to show that the landlord was literally harassing them with several petitions and there was no bona Civil Revision No.6319 of 2009 (O&M) -4- fide need at all.
2. The landlord's relatives opulence and their engagements in other business was set up by the tenants only to show that there was no need to start yet another business. They would also contend that Ashok Kumar, for whose alleged requirements the property was sought, was running business of rice shelling in the name of M/s Hindustan Rice Mill, Kaithal and M/s Kapoor Chand Rice Mill, Kaithal. The actual need for starting yet another business was not clearly established and nothing was shown to prove that the landlord had taken any steps to set up a wholesale karyana shop. The tenants would contend that the landlord had been demanding a still higher rent @ ` 10,000/- per month and only when they were not willing to pay higher rent, the petition had been filed. It was also contended that the dismissal of the petition for default would bar a fresh petition on the principles of res judicata.
3. The Rent Controller, while examining the issue of bona fides, made reference to the fact that the very same landlord had earlier filed a petition in the year 1999 against the respondents' father-Tarlochan Singh on a plea that the property was necessary for petitioners 3 and 4 described in the petition that included Ashok Kumar who is presently described as the second petitioner. Then yet another petition for eviction of another shop for the requirements of Tarsem and Ashok Kumar was also filed in the same year. A third Civil Revision No.6319 of 2009 (O&M) -5- petition was filed against one Surjit Singh of yet another shop where a similar requirement was pleaded. The last of the petitions against Surjit Singh was dismissed and the bona fides pleaded was negatived. Another petition filed against yet another tenant-Subhash Chand was withdrawn on the ground that they had obtained ejectment of yet another tenant-Suresh for personal use of the premises of Arvind-another member of the family. The Rent Controller reasoned that at various times, the petitions had been filed against various persons for setting out the same need and they were taking ejectment orders or allowed their petitions to be dismissed at their whims and, therefore, the plea that the landlord required the premises for starting a karyana shop could not be true. If such a contention were to be true, it must have been stated even earlier when petitions were filed in 1999 or 2006. The Court further reasoned that the karyana shop would require an investment of ` 5 to 6 lakhs and the landlord had not set out as to why the place which was being used as godown shall be necessary to start a karyana shop. The Rent Controller examined the dimensions of the demised building that consisted of two shops 15' x 8.10', of which the first godown was 14.0' x 20.1', the second godown was 17.7' x 13.10', third godown was 9.3' x 14.8', fourth godown was 19.5' x 11.6' which was an extension to the 3rd godown and such a large area for a karyana shop was most unlikely. The Rent Controller also Civil Revision No.6319 of 2009 (O&M) -6- observed that he (landlord) was himself a partner in M/s Hindustan Rice Mill which he had taken on lease upto 30.07.2009 for ` 4 lakhs per annum and there was no need for the landlord for looking up this property before the expiry of lease. There was evidence to the effect that M/s Hindustan Rice Mill had been given on further lease to Giri Raj Rice Mills, Kaithal and an official from the Sales Department gave evidence that it was not being run by Hindustan Rice Mill.
4. The Rent Controller also held that the present petition was not barred by res judicata as contended by the tenant. The appellate Court maintained the same reasoning and found the persistence of the landlords through several petitions in the past pointed to the fact that the landlords were only harassing the tenants and the bona fides of his requirements had not been established. He also adverted to the fact that the landlords had deliberately made it appear as though as they were closing down the commission agency business and had the licence cancelled from 01.04.2007 only after filing the petition for ejectment on 23.01.2007. He, therefore, found that this was clearly motivated to bring a false evidence as though the requirement was genuine. He substantially affirmed the same reasoning as adopted by the Rent Controller for holding that there was no bona fide particularly with reference to other businesses which were being run by the petitioner and the fact that the petitioner had been associated with his brothers in filing other Civil Revision No.6319 of 2009 (O&M) -7- petitions one after another for ejectment against the tenants to harass them. The appellate Court had an additional ground to dismiss the petition. He referred to the fact that the rent note that had come about on 08.02.1974 had described the building included also a courtyard and the description of the property in the tenancy as per the site plan was contrary to the rent note. The Court observed that the plea regarding the improper description of the property had been taken up by the tenants and that the courtyard was part of the tenancy. The landlord had denied the same without properly explaining as to how the rent note included the same and when the courtyard was later excluded from the tenancy.
5. The learned senior counsel for the landlord contending that the dismissal of the earlier application will not be a bar and a bona fide requirement brought out on substantially a new ground must be taken as founded on a new cause of action and there could be no bar of res judicata as well. I do not think it is necessary to detain myself on this ground since the two Courts below have not taken such a finding, but they have thrown out the landlord's petition only on the ground that the landlord was only harassing the tenants by repeated applications and the landlord's family which is an affluent family with several businesses have no requirement for this property. The learned senior counsel would also point out that the desire of the landlord to start new business even when he is also Civil Revision No.6319 of 2009 (O&M) -8- involved in some businesses need not be suspected since it is in commencement of new business that the prosperity and development is possible. I will surely accept such a reasoning and will not hold the landlord should be compelled to remain static and cannot commence a new business. However, in this case, the Rent Controller has assessed the dimensions of the demised premise as reasonably big and which were used as godowns and he found lack of evidence of the landlord as to why such huge premises were sought and also found that there was absolute lack of evidence about the type of investment and the need of the landlord for such a premise for commencement of karyana business. It was in that context that the Rent Controller and the appellate Court have examined the several applications filed by the landlord at different times setting out the needs of one or the other member of the family for ejectment as completely lacking the bona fides. The Courts below have dealt with the case in an elaborate fashion and if there are two views possible and the Courts below have taken the view that the landlord's need was not established, I would not find a scope for interference. The orders are confirmed and the revision petition is dismissed.
(K.KANNAN) JUDGE 23.04.2013.
sanjeev