Punjab-Haryana High Court
Dhian Chand vs Ritesh Malhotra on 29 October, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 5160 of 2014
Date of decision : September 29, 2014
Dhian Chand
... Petitioner
vs.
Ritesh Malhotra
... Respondent
CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA Present: Mr. Puneet Jindal, Sr. Advocate with Mr. Varun Goyal, Advocate for the petitioner.
Surinder Gupta, J This revision petition has been directed against the order of the Appellate Authority, under the East Punjab Urban Rent Restriction Act, 1949 (for short, "the Rent Act"), Jalandhar whereby the appeal filed by the appellant (petitioner herein) against the order dated 12.10.2011 passed by the Rent Controller, Jalandhar in ejectment application No.14 of 2010 was dismissed. Ritesh Malhotra-petitioner (respondent herein) sought ejectment of the respondent (petitioner herein) from shop No.5, a portion of property No.EJ-340, Milap Road, Jalandhar, on the ground that the respondent was in arrears of rent w.e.f. 1.4.1992; he has changed the user of the premises without written consent of the petitioner and that the demised premises was required by the petitioner for his own use and occupation for starting his business, as the petitioner after completion of his studies had no job or place to work to earn his livelihood.
The revision petitioner contested the claim of the respondent with plea that there exists no relationship of landlord and tenant between the parties. The entire up to date rent had been paid and the plea of change of user and requirement of the demised premises by the respondent for his own use and occupation were denied.
The respondent explained in the replication that the demised premises was originally owned by Smt. Devi. It comprised of five shops including the shop in question. Smt. Devi executed a valid Will dated DEEPAK KUMAR 2014.11.10 11:46 I attest to the accuracy and integrity of this document Civil Revision No. 5160 of 2014 -2- 21.7.1993 bequeathing her estate to her husband Madan Lal. She died on 30.12.1990. Madan Lal, executed a Will dated 22.7.1996 in favour of the respondent and his four sons bequeathing one shop each to them. Madan Lal died on 31.1.1997 and as per his Will the respondent became owner of the demised premises.
Pleadings of the parties led to the framing of following issues by the Rent Controller.
1. Whether rent tendered in the Court is short and invalid?OPA
2. Whether respondent is liable to be ejected for change of user of the demised premises?OPA
3. Whether petitioner requires the demised premises for his own use and occupation?OPA
4. Whether there exists relationship of landlord and tenant between the parties?OPA
5. Whether petition is not maintainable in the present form?OPR
6. Whether site plan attached with the plaint is not correct?OPR
7. Whether petitioner has no locus standi to file present petition?OPR
8. Relief?
With regard to tender of rent, findings were returned that the revision petitioner had paid the entire due rent as such, this issue was not pressed. On the question of the status of the respondent as landlord, the Rent Controller, on the basis of the statement of the witnesses observed that the Will dated 21.7.1973 registered with Sub Registrar, Jalandhar on 23.7.1973 (Ex.AW2/1) was executed by Smt. Devi in favour of her husband Madan Lal. The marginal witness of the Will dated 22.7.1996 (Ex.AW4/1) executed by Madan Lal and another witness AW Kuldip Singh proved the factum of execution of Will by Madan Lal in favour of his four sons and respondent. Neither the Rent Controller nor the Appellate Authority found any ambiguity or lack of credibility in the evidence of respondent proving his title through the Will of Madan Lal. On the issue of requirement of DEEPAK KUMAR 2014.11.10 11:46 I attest to the accuracy and integrity of this document Civil Revision No. 5160 of 2014 -3- demised premises, the Rent Controller observed that need of the respondent qua the demised premises is bona-fide.
The Appellate Authority affirmed the findings of the Rent Controller.
I have heard learned counsel for the petitioner and perused the paper book with his assistance.
Learned counsel for the petitioner has first of all attacked the findings of both the courts below holding relationship of landlord and tenant between the parties and has relied upon the observations of the Hon'ble Supreme Court in the case of Subhash Chandra vs. Mohammad Sharif and others, (1990) 1 Supreme Court Cases 252 to raise the argument that the petitioner is not estopped under Section 116 Evidence Act to challenge the title of the subsequent landlord. In that case, Hon'ble Supreme Court has observed that the tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else. The above observations in no manner help the revision petitioner-tenant because in this case the respondent-landlord has duly proved the Will of the original owner Smt.Devi and then of subsequent owner Sh.Madan Lal in his favour. The revision petitioner has though taken a plea denying the relationship of landlord and tenant with the respondent but has not come up with any plea that if the respondent is not the landlord then under whom he is a tenant. In the facts and circumstances of the case, the plea raised by the petitioner is just a fake plea, concocted to contest the claim of the respondent.
Learned counsel for the petitioner has argued that the plea of Will of Smt. Devi and Sh. Madan Lal was raised by the respondent in the replication which could not be looked into and has relied upon the observations in case of Chander Shekhar vs. State of Punjab, 1996 (1) CurLJ 446 and has argued that no new plea could be raised by the respondent in the replication. The observations of the above citation are of no help to the petitioner as the respondent had pleaded in the petition that he is the landlord being the heir of deceased Smt. Devi, original landlord of the petitioner. In the replication, he has only elaborated this plea. Even otherwise, the petitioner has tendered rent of the demised premises in favour of the respondent without challenging his authority as landlord to claim DEEPAK KUMAR 2014.11.10 11:46 I attest to the accuracy and integrity of this document Civil Revision No. 5160 of 2014 -4- rent. Now he is estopped from challenging the status of respondent as his landlord.
The maximum stress of learned counsel for the petitioner is on the fact that the respondent has concealed, rather denied, the fact that he is an income tax assessee. The returns of the respondent were placed on file showing his income from the salary as `36000 in the financial year 2004- 05 and `60,000 from the business during that financial year and it was `80,000 from salary and `70,000 from other sources in the financial year 2005-2006. He has argued that this shows that the respondent was not only employed but was also doing business as well, to earn his livelihood, a fact not disclosed in the petition. He had also purchased the property vide sale deed dated 6.10.2005 with his wife which was a non-residential property. As such, he has also concealed the fact that he did not occupy any other property.
On giving a careful thought to the submissions of the learned counsel for petitioner, I find no substance therein so as to agree with him. The petition under Section 13 of the Rent Act was filed in the year 2003. There is no evidence that in the year 2003 the petitioner was employed or running business. It is not the requirement of law that in order to get a premises vacated, the landlord must remain in idle state and should not earn his livelihood till his case is decided. This was not the intention of the legislature. As is evident in this case, even after the expiry of about 11 years of filing of petition, petitioner has not been able to get the possession of the demised premises. If he has done some business or earned salary, during the period of pendency of this petition, he has committed no wrong. While appearing as PW-1 on 25.10.2006 he has stated that he is not an income tax assessee. The income tax return produced on file pertain to the period up to 31.3.2006. There is nothing that at the time of filing of the petition or at the time of making statement in the court, the petitioner was an income tax assessee. As already discussed, even if he was an income tax assessee this in no manner dis-entitle him from claiming possession of the demised premises for his personal bona-fide need.
On considering the above submissions of the learned counsel for the petitioner, I find no reason to interfere with the findings of the Rent DEEPAK KUMAR 2014.11.10 11:46 I attest to the accuracy and integrity of this document Civil Revision No. 5160 of 2014 -5- Controller or the Appellate Authority. This court would interfere only when there is illegality or impropriety in the order passed by the Rent Controller and the Appellate Authority or if the findings are absurd and contrary to the record, based on misreading of evidence. The Rent Controller as well as Appellate Authority have committed no error of law or fact while allowing the petition filed by the respondent.
This petition has no merits. Dismissed.
(Surinder Gupta) Judge September 29, 2014 deepak DEEPAK KUMAR 2014.11.10 11:46 I attest to the accuracy and integrity of this document