Punjab-Haryana High Court
Sunil Badhan vs Tarsem Singh on 1 September, 2011
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
Civil Revision No.3126 of 2010(O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.3126 of 2010(O & M)
Date of Decision:01.09.2011
Sunil Badhan
....petitioner
Versus
Tarsem Singh
.....respondent
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
1.Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Puneet Sharma,Advocate
for the petitioner
Mr.Rajiv Joshi, Advocate
for the respondent
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RAKESH KUMAR GARG, J.(ORAL):
This is landlord's revision petition challenging the impugned order dated 22.04.2011,passed by the Rent Controller, Jalandhar, whereby his prayer for amendment in the plaint was rejected.
As per the averments made in this petition, the petitioner- landlord filed an ejectment application against the respondent-tenant on the ground of non-payment of rent and that the demised shop was required for the petitioner-landlord for his own occupation and use.
Para No.3(ii) of the ejectment petition reads thus:
That the petitioner is a registered legal practitioner i.e.advocate and the premises is required by the petitioner for his own occupation. There is one more shop which is in occupation of the brother of the petitioner who is doing the business of Gas Agency in Civil Revision No.3126 of 2010(O & M) 2 the portion shown green in the site plan. This shop is more suitable for opening the office, to start his legal practice. The back side of the premises is residential and the family of the petitioner is residing. The petitioner moved an application for amendment of his plaint, whereby he wanted to add the following lines in sub para(ii) of para No.3 of the ejectment application:
The shop measuring 6ft x 6ft.has been occupied by the petitioner as per order of ejectment. The petitioner also requires the shop in dispute along with the shop which has fallen vacant during the pendency of the ejectment petition.
The aforesaid prayer of the petitioner was opposed by the respondent-tenant and the Rent Controller,Jalandhar, vide impugned order, rejected the prayer of the petitioner by observing as under:
Perusal of petition transpired that present ejectment petition has been filed on the ground of non-payment of rent since 01.06.2003 by the respondent and that the premises in dispute is required by the petitioner for his personal necessity. Needless to say the fact proposed to be pleaded by way of present application is that the ejectment order is passed in another property owned by the petitioner vide order dated 08.03.2010 passed by Ld.Rent Controller, Jalandhar is insufficient to carry out legal practice of the petitioner.
Present ejectment petition was filed on 05.08.2006.
However, the said order has been passed in an another ejectment petition on 08.03.2010 i.e.after the filing of present petition. However, the fact which Civil Revision No.3126 of 2010(O & M) 3 restrict this court from allowing the present application is that while filing the present petition in para No.5 it was specifically stated that the petitioner does not own any other property within local limit of Jalandhar District and has also not vacated any property without any sufficient and reasonable cause. Meaning thereby that at that time also it was claimed by the petitioner that he is not in the possession of any other property. However while filing the affidavit by the petitioner by way of examination-in-chief, the said fact was pleaded in para No.5 of affidavit Ex.PW1. Needless to say any fact beyond the pleadings cannot be taken any account of allowing the present application and same is likely to change the altogether plea taken by the petitioner for ejectment of respondent from the property in dispute. Even otherwise, the said order was passed by ld.Rent Controller on 08.03.2010. However, petitioner has failed to convince this Court as to what prevented him for filing the present application for the last one year. The fact as required to be pleaded in the present petition was well within the knowledge of the petitioner at the time the present petition was filed, as the perusal of said order passed by Ld.Rent Controller transpired that the other ejectment petition filed by present petitioner against one Dalbir Singh was on 22.02.2006. Meaning thereby that same was filed before filing of the present petition. Non mentioning of the said fact in the present petition bars the petitioner for taking any subsequent event Civil Revision No.3126 of 2010(O & M) 4 that as occurred in the said petition. Petitioner has relied upon 1996(2) RCR Gurdev Singh versus Surjit Kumar Jit and AIR 1981 Sajida and others versus Iind Addl.District Judge, Jaunpur. However same are distinguishable from the facts in hand.
Consequently,present application being devoid of any merits is hereby declined. Now to come up on 07.05.2011 for evidence of respondent.
It is not in dispute that the shop measuring 6ft x 6 ft. for which the petitioner is seeking amendment, has been made available to him only on 05.02.2011, when he got the possession of the aforesaid shop in execution of ejectment order dated 08.03.2010. It is also a matter of record that the petitioner has moved instant application, immediately i.e.on 16.03.2011 and without causing any delay. Not only this, by way of the aforesaid amendment, petitioner only wants to bring on record the additional facts regarding the availability of additional accommodation to him which has come into existence after filing of the petition. The aforesaid amendment is not going to change the nature of the petition, in any manner.
It may also be noticed that under the provisions of Section 13(3)(ii) the landlord is to show that he requires the demised premises for his own use and he is not occupying any such shop in the urban area concerned for the purpose of business or any other such demised premises and he has not vacated such premises without sufficient cause after the commencement of this Act in the urban area concerned. The amendment sought by the petitioner, does not, in any manner allow the petitioner to fill in the aforesaid lacuna. Rather, it may be noticed that the aforesaid fact of availability of additional accommodation to the petitioner shall be helpful to the Rent Controller to reach to the conclusion with Civil Revision No.3126 of 2010(O & M) 5 regard to the need of the personal bona fide need of the landlord in an effective manner.
In this view of the matter, the impugned order is set aside and the prayer for amendment as prayed by the petitioner-landlord is allowed. Parties through their counsel are directed to be present before the Rent Controller, Jalandhar on the date fixed. The respondent-tenant is at liberty to file amended written statement. Thereafter, the Rent Controller, Jalandhar, shall proceed in accordance with law.
(RAKESH KUMAR GARG) JUDGE 01.09.2011 neenu