Punjab-Haryana High Court
Sarjivan Kumar vs Raj Rani on 10 December, 2004
Equivalent citations: (2005)139PLR729, AIR 2005 PUNJAB AND HARYANA 288, 2003 CRI LJ 164, 2005 A I H C 951, (2005) 1 CIVILCOURTC 756, 2005 HRR 1 381, (2005) 1 PUN LR 729, (2005) 1 RENCR 214, (2005) 1 RENTLR 609, (2003) 114 COMCAS 728, (2003) 1 ALD(CRL) 261, (2003) 1 ANDHLT(CRI) 147, (2003) 1 ANDHWR 216, (2003) 2 BANKCAS 332, (2003) 2 CURCRIR 180, (2003) 3 RECCRIR 476, (2004) 1 BANKJ 144
JUDGMENT M.M. Kumar, J.
1. This is tenant's petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 challenging concurrent findings of facts recorded by both the Courts below holding that the land-lady respondent who has retired from the Education Department on 31.5.1999 require two shops under the tenant-petitioner for her personal use and occupation. No evidence has been brought on record showing that the landlady-respondent is having any other building in her possession in the urban area concerned. It has also been concurrently found that there are two shops between the street in the site plan Ex.P1 and on the remaining portion of the building the landlady respondent is residing with her family. She has filed two ejectment applications inter-alia on the ground of bona-fide personal necessity asserting that she wanted to open a departmental store in both the shops by removing the intervening wall. It has been further found that husband of the landlady-respondent who is without any work would also support her in the business. She has been found to be healthy enough to run the departmental store and her necessity has been found to be bona-fide. The opening of a departmental store in the front portion of the house has also been found to be convenient for her. Reliance has been placed on a judgment of this Court in the case of Janak Dulari Khosla v. Jaswinder Singh and Ors., 2003(2) R.C.R. 2.
2. The argument of the tenant-petitioner that her son is already running a shop has been rejected on the ground that she cannot force her son to provide a shop to her to start the business as she is legally entitled to start her own business in her own right and in her own property. The other argument also failed which was to the effect that the intervening wall between the two shops could not be removed as it was a load baring wall. It has been observed that in the modern time, support to batten can be given by constructing cemented beam by placing girder and such a course could be conveniently adopted by the land-lady as there is no chaubar (room on the building in question) and the roof can be relaid as the roof is made of battens.
3. Shri Amarjit Markan, learned counsel for the tenant-petitioner has argued that son of the landlady respondent has acquired additional property during the pendency of the ejectment petition and to that effect an application before the Rent Controller was filed. It has been emphasised that subsequent events could always be taken into consideration by the Courts. However, the afore-mentioned application has been dismissed by the Rent Controller on 28.8.2003. According to the learned counsel the son who has acquired additional property in the shape of shops away from the demised shops has been living in the joint family and therefore would be covered by the expression 'family'. The learned counsel has insisted that once the property has been acquired by a member of the family then it is required to be taken into consideration by the Courts in order to determine the personal necessity of the landlord. He has urged that if the afore-mentioned course is not followed then it would result into unfair treatment of the tenant and the need of the landlord could not be considered bona-fide. According to the learned counsel it would not be a case of need but of greed. In support of his submission the learned counsel has placed reliance on a judgment of the Supreme Court in the case of T. Sivasubramaniam and Ors. v. Kasinath Pujari and Ors., (1999)7 S.C.C .275 and Kedar Nath Agarwal and Anr. v. Dhanraji Devi by LRs. and Anr., (2004)8 S.C.C. 76.
4. After hearing the learned counsel at some length I regret my inability to accept his submissions because a glance on the provision dealing with the ejectment of a tenant on the ground of personal necessity would show that the landlord could apply to the Rent Controller for an order directing the tenant to put him/her in possession of the building (residential or commercial). The expression landlord has got nothing to do with the expression 'family' which has been used in Section 13(3)(d)(i-a). The afore-mentioned provision deals with the necessity of the member of the armed forces of the Union of India who may require the rented premises for occupation of their family if a certificate to that effect is produced. In that regard, the expression 'family' has been defined to mean such relations of the landlord who are ordinarily living with him and are dependent on him. Section 13(3)(a) alongwith other relevant Sections read as under: "13.
Eviction of tenants. -
(1) and (2) xx xx xx (3) A landlord may apply to the Collector for an order directing the tenant to put the landlord in possession-
(i) in the case of a residential building if
(a) he require it for his own occupation;
(b) he is not occupying another residential building in the urban area concerned; and
(c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area;
(d) it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment;
Provided that where the tenant is workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947 he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord.
(i-a) In the case of a residential building, if the landlord is a member of the armed forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed authority, referred to in Section 7 of the Indian Soldiers (Litigation) Act, 1925, that he is serving under special conditions within the meaning of Section 3 of that Act.
Explanation.- For the purposes of this sub-paragraph-
(1) the certificate of the prescribed authority shall be conclusive evidence that the landlord is serving under special conditions, and (2) "family" means such relations of the landlord as ordinarily live with him and are dependent upon him."
5. From a perusal of the afore-mentioned sections it becomes evident that the expression 'family' has not been used in Section 13(3)(a)(i) of the Act and therefore it has got nothing to do with the expression 'landlord'. It is a different matter that a landlord has been given a right to seek ejectment of a tenant on the ground of his personal necessity which may include the necessity based on the need of a family member as has been held by the Supreme Court in the case of Joginder Pal v. Naval Kishore Behal, A.I.R. 2002 S.C. 2256. Therefore, I do not find any merit in the submissions made by the learned counsel.
6. The other argument that the Rent Controller has dismissed the application for bringing on record the subsequent event by his order dated 28.8.2003 would also fall to the ground because no evidence was sought to be produced showing that subsequent to the filing of the ejectment application the landlady-respondent has acquired some property which may dis-entitle her to an order of ejectment in respect of the demised shops. The property acquired by the son would hardly be relevant to determine the necessity of the landlady-respondent. Therefore, no fault can be found with the order dated 25.8.2003 passed by the Rent Controller.
7. Even otherwise the findings recorded by both the Courts below shows that it is not the wish of the landlady-respondent but the bona fide necessity covered by Section 13(3)(i). In view of the above, I do not find any merit in this petition warranting its admission.
8. For the reasons recorded above, this petition fails and the same is dismissed. However, in the peculiar facts and circumstances of the case, the tenant petitioner is given one month's time to vacate the premises.