Punjab-Haryana High Court
Paramjit Singh vs Jagat Singh on 7 November, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
CR No. 5244 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No. 5244 of 2007 (O&M)
Date of Decision: 07.11.2013
Paramjit Singh
....Petitioner.
Versus
Jagat Singh
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. Ramnik Vasudeva, Advocate for the petitioner.
Mr. A.L. Verma, Advocate and
Mr. Jaideep Verma, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. The tenant-petitioner has preferred this revision petition against the order dated 31.8.2007 passed by the appellate authority whereby the appellate authority while reversing the findings dated 12.6.2006 of the Rent Controller had ordered his eviction.
2. The facts necessary for adjudication of the present revision petition as narrated therein are that originally Uttam Singh was the owner of the property in dispute and the same had come to the share of the respondent. The property in dispute was held to be rented out by Uttam Singh @ ` 400/- per month by the Civil Court. Uttam Singh died on 20.11.1997 and the petitioner had been admitting the respondent to be the owner and landlord of the shop in dispute. The tenant was in arrears of rent since August, 1997. The landlord had bonafide Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -2- requirement of the shop in dispute for his own use and purpose as the said property was rented out to the tenant long back. The landlord was running a shoe shop on the Eastern side. Previously the shop in dispute was the part of main shop. Accordingly, the landlord filed a eviction petition on the grounds of non-payment of arrears of rent and personal necessity. In pursuance thereto, the tenant filed written statement raising various preliminary objections. It was pleaded that the suit for possession filed by the landlord had already been dismissed by the trial court and appeal thereof had also been dismissed. The other averments made in the petition were denied and a prayer for dismissal of the petition was made. From the pleadings of the parties, the following issues were framed by the Rent Controller:-
"1. Whether applicant is entitled to ejectment of the respondent from the shop in dispute? OPA
2. Whether application is not maintainable? OPR
3. Relief."
3. On appreciation of the oral as well as documentary evidence led by the parties, the Rent Controller decided issue No.1 in favour of the tenant holding that the requirement of the landlord was not bonafide. Accordingly, the Rent Controller vide order dated 12.6.2006 dismissed the eviction petition. Feeling aggrieved, the landlord filed an appeal before the appellate authority who vide order dated 31.8.2007 allowed the appeal holding that the landlord was entitled to the ejectment of the tenant from the shop in dispute. The tenant was directed to hand over the vacant possession of the shop in dispute to the landlord within a period of two months from the date of order. Hence, the present revision petition by the tenant.
Singh Gurbachan2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -3-
4. Learned counsel for the petitioner submitted that the landlord-respondent had sought eviction on two grounds, namely, non- payment of rent and personal necessity. He further submitted that the demised premises were let out in 1993 and the Rent Controller had rightly dismissed the eviction petition holding that there was no personal bonafide requirement. It was argued that the landlord had sought eviction on the ground that he wants to expand his business of shoes whereas there are neither pleadings nor any evidence has been adduced by the landlord to that effect. According to the learned counsel, in view of the judgment of this Court in Girdhari Lal Jain v. Smt. Sushil Rani 1980(2) RLR 382, no inference could have been drawn by implication with regard to the plea of bonafide requirement from the pleadings unless it was explicit in its words. Reliance was placed upon the cross-examination of the landlord-respondent who had appeared as AW1 to contend that the requirement of the landlord was not genuine. Support was also drawn from Tarlok Chand v. Guran Ditti alias Tara Wati and others 1981(1) RLR 216, Akbar Basha v. B. Maruthi 2000(1) RCR 188 (Karnataka) and Shankarlal v. Smt. Kamla Devi Nayak, 2001(2) RCR 542(MP) by urging that unless it was specifically pleaded or stated that the shop is required for extending the business, the requirement of the landlord was not bonafide.
5. Elaborating his submissions, learned counsel for the petitioner relied upon a large number of judgments reported as Deena Nath v. Pooran Lal (2001) 5 SCC 705 (SC), Jagat Ram v. Mathra Dass and another 1978(1) RLR 628 (P&H), Salim Ahmed v. Surjit Kumar Sahai 1998(2) RLR 289, K.S. Munawar Jan Begum v. H. Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -4- Subramaniam 2000(2) RCR (Rent) 324 (Madras) and Mohd. Moizuddin Siddiqui v. Mohd. Ismail 2001(1) RCR (Rent) 122 (AP), where it was held that need was not bonafide.
6. Controverting the submissions made by learned counsel for the petitioner, learned counsel for the respondent submitted that the requirements of law of pleadings regarding personal necessity have been duly incorporated in para 6 of the eviction petition in various clauses. It was also submitted that the requirement of personal necessity is to be seen at the time of filing of the petition. It was argued that there was no suggestion which was put to the landlord that the shop in dispute was not required for personal use. It was submitted that parda wall between the shop of the tenant and the landlord was constructed in the year 1982. Relying upon the judgments in M/s Sait Nagjee Purushotham and Co. Ltd. v. Vimalabai Prabhulal and others 2005(2) RCR 436 (SC), Sarjivan Kumar v. Raj Rani 2005(1) CCC 756 (P&H) and Pardeep Kumar and others v. Amar Nath 2007(2) PLR 1, it was contended that the landlord was entitled to eviction of the tenant where the premises were required for expansion of business. On the strength of judgment of the Apex Court in Ms. Celina Coelho Pereira and others v. Ulhas Mahabaleshwar Kholkar and others AIR 2010 SC 603, it was submitted that the pleadings are not to be construed technically.
7. I have heard learned counsel for the parties and perused the record with their assistance.
8. Under Section 13(3)(a)(i) of the East Punjab Rent Restriction Act, 1949 (in short "the Act"), a landlord can apply to the Rent Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -5- Controller seeking possession of the demised premises where he requires it for his own bonafide requirement on fulfilment of following conditions:-
(a) he is not occupying another building in the urban area concerned; and
(b) has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area.
9. Though the terminology of 'bonafide requirement' has not been defined in the Act but in Raghunath G. Panhale v. M/s Chagan Lal Sudarji and Company, 1999(2) RCR 485 the Hon'ble Supreme Court has enumerated the following guidelines:-
i) Requirement of landlord must be both
reasonable and bonafide.
ii) The word "reasonable" connotes that
requirement is not fanciful or unreasonable. It cannot be mere desire.
iii) The word requirement coupled with the word reasonable means that it must be something more than mere desire but need not certainly be a compelling or absolute or dire necessity.
iv) A reasonable and bonafide requirement is something in between a mere desire or wish on one hand that a compelling or dire or absolute necessity at the other end.
v) It may not be need in praesenti or within reasonable proximity in the future. The word Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -6- bona fide means that need must be honest and not be trained with any oblique motive.
vi) Language of provision cannot be unduly stretched or strained as to make it impossible for landlord get possession. Construction of relevant statutory provision must strike a balance between right of landlord and right of tenant.
vii) Court should not proceed on assumption that requirement of landlord was not bona fide and that tenant could not dictate to the landlord as to how he should adjust himself without getting possession of tenant premises.
10. The Hon'ble Apex Court in various pronouncements had laid down guiding principles to be followed by a court while adjudicating the bonafide requirement of a landlord which should be genuine, honest and conceived in good faith. In M/s Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon, 1998(1) Rent Control Reporters 482, it has been observed as under:-
"The phrase "bona fide need" or "bona fide requirement" occurs not only in the Delhi Rent Control Act but in the Rent Control legislation of other States also. What is the meaning of this phrase has been considered innumerable times by various High Courts as also by this Court and requires no citations to explain its legal implications. Even then reference may be made to the decision of this Court in Ram Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -7- Das v. Ishwar Chander and others, 1988(1) RCR 625, in which it was indicated that "bona fide need"
should be genuine, honest and conceived in good faith. It was also indicated that landlord's desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The "desire"
to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. These observations were made in respect of the provisions contained in E.P. Urban Rent Restriction Act, 1949."
11. The bonafide requirement of a landlord depends upon facts and circumstances of each case and there cannot be a strait jacket formula for this purpose. The burden lies upon the landlord to establish that the accommodation is bonafide required by him for personal use. While adjudicating whether the requirement is bonafide or not, it is to be seen objectively and not subjectively by the Court though, the landlord is the best judge of his requirement. The need of the landlord must exist so as to distinguish it from mere wish or desire.
12. In order to effectively adjudicate the revision petition and also to see whether there exists personal bonafide necessity of the landlady or not in the present case, the pleadings and the evidence produced by the parties need to be examined.
13. Taking up the pleadings first, clauses (ii), (ix), (xiv) and (xv) of para 6 of the petition are relevant which read thus:- Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -8-
"(ii) That the petitioner/applicant bonafidely requires the shop in dispute for his own use and purpose.
(ix) That the applicant bonafidely requires the shop in dispute for his personal use and necessity and now it is the requirement of the applicant to remove the intervening wall CD which is between the shop of the applicant and the shop in dispute, so that a complete one shop may be formed and the Gosha will also remove and the shape of the shop will improve by removing the intervening wall, so that the main shop of the applicant i.e. Shoe Shop may be visible from the Western side also.
(xiv) That the size of the shop in dispute is 3 ft. on the Northern side, 4 ft. on Southern side, 9 ft. on Eastern side, 9 ft. on Western side.
(xv) That in case the shop in dispute is not added with the main shop ABCEF, the business of the applicant will suffer."
14. The cumulative reading of these clauses shows that the size of the shop in dispute is as described in clause (xiv) of para 6. There exists intervening wall CD between the demised shop and the shop of the landlord. The same is required to be removed and the area of the demised shop added to the main shop ABCEF, otherwise the business of Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -9- the landlord would suffer. The pleadings are not to be construed technically as held in Ms. Celina Coelho Pereira's case (supra). The true test is to see that the other side is not taken by surprise or is prejudiced. Thus, the contention of the petitioner-tenant that in the absence of specific pleadings relating to expansion of business, no order of eviction can be passed, is without any substance and is rejected.
15. Adverting to the second limb of the argument of learned counsel for the tenant-petitioner, evidence on record may be scanned. In the affidavit Ex.AW1/A in the form of examination-in-chief of Jagat Singh- landlord, he had deposed that previously there was no bazar towards the western side of the shop in dispute and about 4 years back, new shops have been established on the western side of the demised shop. The shoe shop was being run by the landlord for last many years which is situated on the eastern side of the disputed shop. It was also stated that the disputed shop ABCD was part of the main shop i.e. ABEFG as depicted in the site plan. He had also deposed in the affidavit that he wants to remove the wall CD which intervenes between the shop of the landlord and the tenant so as to make one composite shop for improving his business. Further, his shop would be visible from western side as well. The landlord in para 14 of the affidavit (Ex.AW1/A) had stated regarding expansion of business in the following terms:-
"14. That the deponent bonafidely required the shop in dispute for his personal use and necessity and now it is the requirement of the applicant to remove the intervening wall CD which is between the shop of the applicant and the disputed shop so that a complete one shop may be formed and the shop of the Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -10- applicant deponent will improve by removing the intervening wall and the same will be visible from the western side."
Nothing in the cross-examination of the landlord impeaches the veracity of the statement made by him in the examination-in-chief in the affidavit Ex.AW1/A
16. From the above, it emerges that the landlord is carrying on the business of shoe shop on the left side adjoining to the demised shop. The landlord wants to expand his business as at the time of letting out there was no bazar whereas now there has been great development in the area. The Parda wall CD was constructed in the year 1982 and the landlord now wants to remove so as to have bigger shop to run his business of shoes there. The pleadings as noticed hereinabove and the statement of the landlord in the form of affidavit Ex.AW1/A in examination-in-chief establish the bonafide need of the landlord for expansion of the business.
17. The appellate authority while reversing the findings of the Rent Controller on issue No.1 relating to personal necessity of the landlord of the demised shop had recorded as under:-
"13. In the present case the plea of the petitioner is that the shop in question is towards the Northern site and the same is a corner shop so if one comes from the Southern-Western side of Bazaar then the bigger shop where the landlord is himself carrying as shoe business is not visible. Admittedly the petitioner is running a shoe shop which is adjoining to the shop in question on the left side. The shop in question is Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -11- situated in the right corner of the shop of the petitioner and the door of the shop in question is towards Western side which opens on the street so if one comes from the Southern-Western side of the bazaar then the shop of the petitioner is not visible on account of the shop in question which is situated on the right side of the corner of the shop in question of the petitioner where he is carrying on his shoe business.
14. The plea of the petitioner is that earlier there was no bazaar but now great development has taken place at Kurali and so many shops have been established so petitioner wants to expand his business of shoes. The plea of the petitioner is that the shop in question was part and parcel of the bigger shop in question of the petitioner but a Parda Wall C, D was constructed in the year 1982 when the shop in question was rented out to one Randhir Singh and now petitioner wants to remove that Parda wall to make his shop bigger in order to expand his business. Counsel for the petitioner has placed reliance on an authority titled as Sarjivan Kumar Vs. Raj Rani 2005 (1) Civil Court Cases 756 (P&H) wherein it has been held by the Hon'ble High Court of Punjab and Haryana that if the landlord has sought ejectment on the ground of personal necessity then the same may include necessity based on the need of a family Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -12- member. It was further held that if there are two adjoining shops and eviction of one shop is sought on the ground of bonafide requirement and the landlady wanted both the shops to run a departmental store by removing intervening wall then the need was bonafide. This authority is fully applicable to the facts of the present case because in the present case the landlord wants to remove the intervening wall between his shop and the shop in dispute in order to expand his business, so his need is quite bonafide. Counsel for the petitioner further placed reliance on an authority titled as Smt. G. Kaushalya Devi Versus Ghanshyamdas 2000(1) Rent Control Reporter 155 wherein it has been held by the Hon'ble Supreme Court of India that in an ejectment petition if mother of the landlord purchasing another shop then it does not prohibit the eviction of tenant if member of family of landlord possessed other non-residential premises.
This authority is fully applicable to the facts of the present case because in the present case one shop situated at a different place within the municipal limits of Kurali is in possession of son of the petitioner. Counsel for the petitioner has further placed reliance on an authority titled as M/s Nagjee Purushotham & Co. Ltd. Versus Vimalabai Prabhulal & Ors 2005(2) Rent Control Reporter 436 wherein it has been held by the Hon'ble Supreme Court that if landlord is doing Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -13- the business at place A and he wanted to expand his business at place-B then the need of the premises by the landlord is bonafide because it is the privilege of the landlord to choose the nature of the business and the place of business. Tenant cannot advise the landlord. This authority is fully applicable to the facts of the present case because in the present case the disputed shop which was earlier part and parcel of a bigger shop in possession of the petitioner is situated in the right side corner of the shop in question and the petitioner wants to remove Parda wall in between the two shops to make the shop a bigger one in order to expand his business then the need of the petitioner is quite bonafide. Counsel for the petitioner placed reliance on an authority titled as Radha H. Joshi and others Versus M/s Pioneer Surgical Company represented by its Partners and others 2005(2) Rent Control Reporter 683 of the Hon'ble Madras High Court wherein it has been held that if eviction of the tenant was sought on the ground of bonafide requirement of non-residential premises and the contention of the tenant was that other vacant premises belonging to landlord were available then it was held in this authority that it is not for the tenant to dictate as to which portion landlord can occupy and landlord has got every right to choose which of the portion of the shop is suitable for use and occupation Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -14- either for residential or for non-residential purpose. This authority is also fully applicable to the facts of the present case because it is prerogative of the landlord to choose the place where he wants to expand his business. The shop in question is adjoining to the shop in possession of the petitioner and by removing the intervening wall between two shops the petitioner wants to make his shop a bigger one in order to expand his shoe business, so need of the petitioner is quite bonafide.
15. On the other hand the plea of the respondent is that the petitioner does not require the shop in dispute for his use and occupation rather the present ejectment petition has been filed by the petitioner only to evict and harass the respondent and there is no bonafide requirement of the shop in question by the petitioner. Counsel for the respondent has placed reliance on an authority titled as Dr. Avtar Singh Vs. Ascharaj Lal 2002(3) Civil Court Cases 168 (P&H). In this authority it was held by the Hon'ble High Court of Punjab and Haryana that if the ejectment of the shop is sought on the basis of a family settlement and the family settlement is found to be fake then the ejectment cannot be ordered. This authority is not applicable to the facts of the present case because in the present case the family settlement/family partition among the petitioner and other co-sharers of the Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -15- property is not a fake transaction, rather the demised premises had fallen to the share of the petitioner on the basis of the judgment and decree of the Civil Court dated 26.8.2006. Counsel for the respondents has further placed reliance on an authority titled as Mukhtiar Singh Versus Atma Singh Brar 1999(2) Civil & Rent Judicial Reports 273 of the Hon'ble High Court of Punjab and Haryana wherein it was held that burden is on the landlord to establish the fact regarding bonafide requirement and merely because landlord asserts that he wants the accommodation would not be enough and there should be an element of need as opposed to mere desire or wish. This authority is also not applicable to the facts of the present case because in the present case the petitioner wants to remove the Parda wall in between shop in possession of the petitioner and the disputed shop in order to make his shop a bigger one in order to expand his shoe business, so in the present case the need of the petitioner is bonafide and he bonafidely requires the demised premises in order to expand his business because the shop in question was earlier part and parcel of the shop in question which is in possession of the petitioner where he is running his shoe business.
16. In the present case the plea of the petitioner is that the shop in dispute is part and parcel of the shop Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -16- in possession of the petitioner and the Parda Wall in between the two shops was constructed in the year 1982 and in order to prove this fact the petitioner has examined PW3 Charanjit Singh Mason who has stated that he had constructed a partition wall in between two shops in the year 1982 and the partition wall is not bearing any weight of the lintel of the Chobara nor there is any foundation below the partition wall. PW3 Charanjit Singh could not appear for his cross-examination on account of his death and his death certificate has been proved on the file as Ex.P17. Because PW3 Charanjit Singh died during the pendency of the case and he could not be cross- examined so on account of his death his own oath statement in the form of his examination-in-chief can definitely be considered by the Court. The respondent has not examined any building expert or Engineer in order to prove that the wall in between two shops was not a partition wall, rather the shop in question was constructed as an independent shop as alleged by the respondent. The dimensions of the shop in question are 3' Northern side, 4' Southern side, 9' Eastern side and 9' Western side, so from the dimensions of the shop in question it becomes clear that the shop in question was not independent shop constructed along with other shop, rather it was earlier a part of the shop in possession of the petitioner and Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -17- lateron a partition/Parda wall was constructed in between two shops in the year 1982 when the shop in question was given on rent to one Randhir Singh.
17. Keeping in view the above stated reasons and further considering the contentions and rival contentions and after going through the law laid down in the above noted authorities, this Court is of the considered view that the authorities relied upon by the learned counsel for the petitioner in which the law has been laid down by the Apex Court are more applicable to the facts of the present case as compared to the authorities relied upon by the learned counsel for the respondent. In the present case the shop in question was earlier part and parcel of the shop in possession of the petitioner and there is only a partition wall which is to be removed in order to increase the size of his shoes shop in order to expand his business, so the need of the landlord is quite genuine and bonafide, so this Court is of the considered view that the petitioner requires the demised premises for his personal use and occupation and his need is bonafide. In view of the above stated reasons it is held that the petitioner is entitled to the ejectment of the respondent from the shop in question on the ground of bonafide requirement, so findings of the learned lower Court on issue No.1 are liable to be reversed by holding that the petitioner is entitled to the ejectment of the Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -18- respondent from the shop in dispute as the petitioner requires the shop in question for his personal use and occupation and the need of the petitioner is quite genuine and bonafide."
18. No illegality or perversity could be pointed out in the findings recorded by the appellate authority which may warrant interference by this Court. Thus, the appellate authority had rightly held that the personal bonafide necessity of the landlord was existing and on that ground had rightly ordered eviction of the tenant.
19. Adverting to the judgments relied upon by learned counsel for the petitioner-tenant, in view of the findings recorded above, no help can be derived by him from the pronouncements in Girdhari Lal Jain, Tarlok Chand, Akbar Basha and Shankarlal's cases (supra) being different on fact situation involved therein.
20. Equally, other judgments relating to personal necessity, it may be noticed that while adjudicating cases of personal necessity, the Court is required to assess the cumulative effect of the evidence and the pleadings and on that basis come to the conclusion whether need of the landlord is bonafide, genuine, honest and conceived in good faith. In the present case, on appreciation of evidence and the pleadings, the bonafide of the landlord has been held to be genuine. Thus, the judgments relied upon by the learned counsel for the tenant reported as Deena Nath, Jagat Ram, Salim Ahmed, K.S. Munawar Jan Begum and Mohd. Moizuddin Siddiqui's cases (supra) do not advance his case and, therefore, no advantage can be taken by him from the said pronouncements.
Singh Gurbachan 2013.12.04 14:19 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 5244 of 2007 -19-
21. In view of the above, finding no merit in the revision petition, the same is hereby dismissed. No costs.
November 07, 2013 (AJAY KUMAR MITTAL)
gbs JUDGE
Singh Gurbachan
2013.12.04 14:19
I attest to the accuracy and
integrity of this document
High Court Chandigarh