Punjab-Haryana High Court
(O&M;)Jatinder Pal Sood vs M/S Kataria General Store on 18 November, 2014
CR No. 5185 of 2005 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No. 5185 of 2005
Date of Decision : 18.11.2014
Jatinder Pal Sood
....Petitioner
Versus
M/s Kataria General Store, Gidder Baha through Manohar Lal
Kataria (deceased) represented by legal heirs.
...Respondent
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. Naresh Jain, Advocate
for the petitioner.
Mr. S.S. Bhinder, Advocate
for the respondent(s).
R.P. Nagrath, J.
This revision under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for short 'the Act') is filed by the landlord of the demised shop which was rented out to the respondent on 01.04.1970 @ ` 1400/- per annum, by Smt. Durga Devi, the grandmother of the petitioner. The rent was later on increased to ` 2400/- per annum i.e. ` 200/- per month. Smt. Durga Devi executed a Will dated 18.12.1986 of her estate in favour of the petitioner in her sound disposing mind. Smt. Durga Devi died on 03.02.1996 and mutation of her estate was sanctioned in favour of the petitioner on 06.03.1997. The eviction of the respondent was JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -2- sought on the ground inter alia:-
(a) that the tenant-respondent is in arrears of rent from 01.01.1991; and
(b) that the petitioner bonafide requires the demised shop for his personal use and occupation.
2. It was stated that the petitioner is Master of Science (Honours School) from the Department of Microbiology, Panjab University, Chandigarh and he intended to start his laboratory of pathology and bacteriology (specialized tests for diagnosis of the disease). It was also stated that there is presently no high-tech laboratory in Gidderbaha. The petitioner was also unemployed, and was not occupying any other shop in the urban area of Gidderbaha or anywhere else for the purpose of his own business nor he has vacated any such building in the local area of Gidderbaha, without sufficient cause after the commencement of the Act.
3. The respondent disputed the validity of Will of Smt. Durga Devi set up by the petitioner. It was averred that Smt. Durga Devi left behind three sons and a daughter. The other legal heirs of Smt. Durga Devi except for the father of the petitioner are disputing his claim of inheritance. On merits it was stated that originally the rate of rent was ` 700/- per annum which as on the date of institution of the eviction petition was ` 2400/- per annum. The respondent pleaded that the rent for the period from 01.01.1991 to 31.12.1993, had been paid to Satpal father of the petitioner vide receipt dated 28.07.1996. However, to avoid the ejectment, arrears of rent w.e.f JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -3- 01.01.1991 had been tendered alongwith interest and costs as assessed by learned rent controller. The courts below have held that the arrears having been paid on the first date of hearing, this ground no more subsists.
4. The instant revision filed at the instance of landlord is confined to seek eviction on the ground of bonafide personal requirement of the petitioner. In the written statement it was pleaded that the petitioner is the only son of his parents and working with his father in a spacious shop located in the busy centre of the town and they are carrying on the business as general merchants. The said business was quite flourishing and it is in fact the petitioner who was running that business as father of the petitioner is quite an old person suffering from physical incapabilities. The petitioner was also elected as vice president of the local association of general merchants. The petitioner was earlier in the service and getting handsome salary. The petitioner had left the job because his father was unable to cope with the business single handedly. The petitioner resigned from the lucrative job to join his father many years ago. During a long period the petitioner has not taken any step to infer.
5. In the rejoinder it was admitted that the petitioner was in service but he was not pulling on well with the management and thus forced to resign. It is denied that the petitioner is having a joint family with his father. It was stated that the petitioner is separate from his father in mess, residence, worship and is not doing any business alongwith his father. The father of the petitioner is in fact JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -4- running the business in a rented shop owned by Municipal Committee, Gidderbaha for the past 50 years. Earlier father of the petitioner was running business with his brothers and after separation from his brothers, Satpal father of the petitioner is running that business as a sole proprietor. It was admitted that the petitioner remained as vice president of the general merchant association but it was on account of good reputation of his father in the town that he was nominated as Honorary Vice President out of love, affection and respect. Surinder Kumar was elder brother of the petitioner. Surinder Kumar aforesaid has died and is survived by two sons.
6. It was further stated in the rejoinder that there is good scope of business in starting laboratory as there are specialist doctors holding M.D. and M.S. Degrees and there is no person as qualified as petitioner is for starting such a laboratory. The people have to go for such tests to Bhatinda which is quite an expensive affair.
7. Learned rent controller framed the following issues:-
(i) Whether the respondent is in arrears of rent at the rate of ` 200/- per month from 01.01.1991 upto date and is liable to be evicted from the demised shop? OPD (OPA)
(ii) Whether the respondent is liable to be evicted on the ground of personal necessity of the applicant as prayed in 7(B)? OPA JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -5-
(iii) Whether there exists relationship of landlord and tenant between the parties? OPA
(iv) Relief.
8. Before the appellate authority, learned counsel appearing for the parties made statements that they do not contest the findings of the rent controller on issues no. 1 and 3. The rent controller held that the petitioner has proved the existence of relationship of landlord and tenant between the parties. Sufficient evidence was led by the petitioner to prove valid execution of the Will, Ex. P1, by Smt. Durga Devi in his favour and even the mutation of inheritance of estate of Smt. Durga Devi was sanctioned in favour of the petitioner.
9. On the issue of bonafide need of the petitioner, learned rent controller discussed the relevant evidence and observed as under:-
10. That the applicant has produced documentary evidence to prove that his father is sole proprietor of his firm and the applicant is not partner in that firm. AW-4 Pardeep Kumar, Field Officer, State Bank of India, Gidderbaha deposed from the record that the limit under account no. 3/16 of M/s Shubhkaran Lal Sat Pal General Merchants, Gidderbaha was sanctioned on 12.12.1995 and it is the sole proprietorship concern of Sat Pal son of Subhakaran. AW-5 Albel Singh, Record Keeper, in the office of Excise and Taxation Officer, Muktsar JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -6- has deposed that the firm M/s Shubhkaran Lal Sat Pal General Merchants, Gidderbaha is the partnership concern consisting of Shushil Kumar, Sat Pal and Kewal Krishan. The applicant himself has deposed that his father was previously conducting the business of partnership with his brothers Avtar Krishan and Kewal Krishan and when his uncle Avtar Krishan left Gidderbaha his father became the sole proprietor of the concern. He has further deposed that he has no concern whatsoever with the business of his father nor he ever worked with him. It has been held in Harbilas Rai Bansal and another vs. State of Punjab, 1995 (2) Rent Control Reporter 672 that landlord can seek ejectment of the tenant on the ground of his bonafide requirement of the shop in dispute for his personal use and occupation.
11. Ld. counsel for the respondent has submitted that the petitioner is not in need of the shop in dispute for starting a laboratory as it is mere wish or desire to start the business of laboratory and his requirement is not genuine. This argument has been opposed by the opposite counsel, who has submitted that the applicant being the landlord is not in possession of any other premises for JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -7- starting the business and he requires the shop in dispute for the purpose of starting the laboratory. After considering the arguments of both the parties, I am of the opinion that the applicant has been able to prove his bonafide requirement of the shop in dispute for starting his laboratory. The respondent being tenant cannot say that it is a mere desire or wish of the applicant to start the business of laboratory in the shop in dispute. It has been proved by the applicant that he is not in possession of any other premises to start his business. He need not make any prior preparation for starting the business of laboratory and this is no ground to refuse the ejectment of tenant as landlord did not make any preparation to start his business. It has been held in Mattulal vs. Radhe Lal, 1974 Rent Control Reporter 441 that landlord need not make preparation for starting business as he cannot be sure after how many years he would be able to get premises in litigation. Taking into consideration the oral and documentary evidence led by both the parties, I am of the opinion that the applicant has been able to prove his bonafide need to start his business of laboratory for Pathology and Bacteriology, as he JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -8- possesses the required qualification for starting this business. It is proved that he is not in occupation of any other shop or building at Gidderbaha or any where else in India nor he has vacated any sush premises."
10. Learned appellate authority dislodged the petitioner on the ground that as per certificate of educational qualification (Ex. A-5) the petitioner did his Master of Science (Honours School) in Microbiology in the year 1972. The petitioner remained in service upto the year 1987 but the instant petition was filed in 1997 after 10 years from the date when the petitioner left the job. The appellate authority thus observed:-
"9. The learned counsel for the petitioner-landlord urged before me that the ground for ejectment of the respondent from the shop in dispute became available to the petitioner-landlord only 1995 since before that, no ejectment could be sought on the basis of personal necessity regarding the business premises and as such the application is bonafide one. On the other hand, the learned counsel for the tenant-appellant urged that the petitioner remained vice president of Karyana Association and he is working at the Karyana shop of his father who is an old man and is not able to run the shop and as such, the premises in dispute are not JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -9- required by the petitioner and his requirement is not bonafide.
In this case, the petitioner appeared as AW-6 and in his cross-examination he admitted that he remained Vice President of General Merchants Association at Gidderbaha and he was nominated by the President, Vikramjit Singh. This shows that admittedly the petitioner remained Vice President of the Karyana Merchants Association. Such association are formed by the business community in order to protect their interest and the office- bearers are elected from amongst the persons who are in the trade so that they protect their interest. The petitioner tried to explain that his father being a respectable person and being a Karyana Merchant, he was made Vice President out of love and affection. The said contention does not appear to be correct. If the father of the petitioner is running a Karyana shop and the people have got respect for him, then the father of the petitioner would have been elected as Vice President and not the petitioner. The very fact that the petitioner remained Vice President of the Karyana General Merchants Association, shows that he is running the business of General JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -10- Merchant.
10. In this case, the respondent has even produced the photographs mark A and B which the petitioner admitted as of his own. He stated that he cannot say if these were taken at the shop of his father. The petitioner must be fully knowing the location and size of the shop of his father. Had the photos been not of the shop of his father, he must have given specific denial. The very fact that he gave an evasive reply, shows that he is trying to hide the truth. He states that he has never been to the shop of his father. But, the evidence shows that he was present at the shop of his father and his photographs were taken. The petitioner denied that his father is aged about 85/90 years. However, he stated that he is aged about 78 years and that his father walks with the help of a stick. This shows that admittedly, the father of the petitioner is an old man. It is even the case of the petitioner that his father is having good business and respect. It has even been admitted that the shop of his father is one of the oldest shops. As such, for running such a shop, help of someone is required and the very fact that the petitioner left his job of a Pharmaceutical concern shows that he JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -11- wanted to join the business of his father. There is no evidence on the file that from 1987 to 1997 the petitioner tried to run any other business. One cannot believe that after leaving a lucrative job, a person will sit idle at home. As such, it can be safely concluded that the petitioner is running the general merchant shop alongwith his father.
11. The petitioner in the petition has alleged that he is unemployed and is not doing any business. This shows that his conduct is not bonafide one. He has tried to suppress the fact that he is running the shop alongwith his father. When the father of the petitioner is an old man of about 80 years and is running a lucrative business, it does not appear probable that the petitioner wants to start his own laboratory after leaving the shop of his father. It is admitted by the petitioner that he is the only alive son of his father and had another brother who is dead and even family of his brother is not residing in Gidderbaha. As such, the business of his father has to be run by the petitioner. His requirement cannot be said to be bonafide.
In the photographs produced in this case, it is admitted by the petitioner that he was standing at the counter of the shop. This shows that it is he JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -12- who actually runs the business of his father. Therefore, the finding of the trial court on this issue regarding the bonafide requirement of the petitioner of the shop in dispute, is liable to be repelled."
11. The above finding of the appellate authority is in ignorance of the material fact that the father of the petitioner is sole proprietor of the business being run in a shop of general merchant. Learned appellate authority seems to be mainly swayed by the fact that the petitioner did not start the business of clinical laboratory for a period of 10 years after his retirement. The contention that the petitioner acquired ownership of the shop in question only on the death of his grandmother was rightly appreciated by the Rent Controller and thus the gap of intervening period cannot be a ground to deny the right which is available to him to seek eviction for his bonafide need.
12. What the appellate authority has ignored as a material evidence on record is that the shop in which the father of the petitioner is running business is not owned by his father, as it was clearly stated in the rejoinder that the said shop belongs to Municipal Committee, Gidderbaha and is on rent with father of the petitioner. This fact has also been testified by the petitioner himself in cross- examination. This affirmative evidence of the petitioner could not be successfully rebutted by the respondent. RW-7 Manohar Lal Kataria rather stated in cross-examination that he cannot say whether the JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -13- shop where business of general merchants is being carried on by the petitioner belongs to Municipal Committee of Gidderbaha. Similar is the response of RW-4 Telu Ram a witness of the respondent. In any event, there is no evidence worthwhile led by the respondent to suggest that the said shop where business of general merchant is being run is owned by the father of the petitioner.
13. It is an admitted evidence that brother of the petitioner had shifted to Delhi many years ago. RW-7 stated that elder son of Sat Pal separated from his father 30 to 40 years ago and shifted to Delhi. Anyhow family of brother of the petitioner could always claim their right and interest in the business being run in the shop whenever eventuality arises but the petitioner has every right to start his own business in the shop separately owned by him, especially, when it is not shown that the petitioner is a partner in the business of his father or any right in the property of that shop.
14. The petitioner was not of course correct in stating that he is unemployed since the year 1989 or that he never visited the shop of his father in view of overwhelming evidence led by the respondent to the contrary. Petitioner also admitted that he is residing in the house of his father alongwith his parents but tried to suggest that there is separate apartment of the house in which he is living.
15. In Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal and others, 2005 (8) SCC 252, Hon'ble Supreme Court held that the landlords have led evidence to show that one of their sons who had requisite qualification for starting a computer institute JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -14- wants to establish the same at Calicut and others for extension of their business. The trial court as well as the first appellate court and the High Court examined the statements of PWs. 2 & 3 and after considering their evidence, the appellate court reversed the finding of the trial court and held that the need of the respondent- landlords to start business at Calicut, is bonafide & genuine. It was held that it cannot be said that a person who is already having business at one place cannot expand his business at any other place in the country. It is true that the landlords have their business spreading over Chennai and Hyderabad and if they wanted to expand their business at Calicut it cannot be said to be unnatural, thereby denying the eviction of the tenant from the premises in question. It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlords and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial court held in favour of tenant-appellant. But the appellate court as well as the High Court after scrutinizing the evidence on record, reversed the finding of the trial court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bonafide.
16. The contention before Hon'ble Supreme Court was that JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -15- the plea of either starting business or expanding it at Calicut is nothing but sham and it was also pointed out that some of the sons have multifarious activities and are already established in some other business and one of the sons i.e. respondent No.9 had already gone to United States of America and he has settled there. Hon'ble Supreme Court held as under:-
"..........We fail to appreciate that when two sons are there and if they want to expand their business at Calicut then it cannot be said that the need is a sham one. It is not possible for the landlords and their sons to wait till the disposal of the case. They have to do something in life and they cannot wait till the appellant is evicted from the premises in question. It is common experience that landlord tenant disputes in our country take long time and one cannot wait indefinitely for resolution of such litigation. If they want to expand their business, then it cannot be said that the need is not bonafide. It is alleged that one of the sons of the landlords has settled in the U.S.A.. That does not detract from the fact that the other sons of landlords want to expand their business at Calicut. Indian economy is going global and it is not unlikely that prodigal sons can return back to mother land. He can always come back and start his business at Calicut. On this ground we cannot deny the eviction to the landlords."
JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -16-
17. It was vehemently contended by learned counsel for the respondent that there is no scope of opening the pathology and bacteriology laboratory at Gidderbaha because the town has no specialist doctor. So many witnesses have been examined by the respondent to support the above contention. The respondent's evidence is also to the effect that patients are going to Bhatinda and Ludhiana for specialized treatment. If that be the fact situation, the petitioner's desire to establish a clinical laboratory cannot be ingenuine as he holds such a higher qualification in the field and his desire must be appreciated by the courts. The petitioner's need cannot be discarded simply because during the past few years he was engaged with his father in general merchant's shop in which family of the deceased brother can always claim right whenever occasion would arise. Moreover, starting of pathology laboratory would only be an expansion of the business even if the petitioner continues to help his father in his business of general merchants.
18. This Court in Ramesh Chander vs. Amarjit Kaur, 2010 (4) PLR 513, held that working of the handicapped husband of the landlady in a factory for the time being and working of her son as a TV mechanic for the time being does not mean that both of them are not entitled to start their own business of blacksmith in the demised premises. Every landlord has a right to increase his income and every landlord has a right to leave service and to start his own independent business. Tenant cannot dictate the landlord that he should be satisfied with his present income.
JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -17-
19. In Ramkubai (Smt.) deceased by LRs & Ors. vs. Hajarimal Dhokalchand Chandak & ors., (1999) 6 SCC 540, Hon'ble Supreme Court observed that B was unemployed on the date of filing of the suit but in the meanwhile started some business and in that context, their Lordships held that it cannot be expected to idle away the time by remaining unemployed till the case was finally decided. It was held that if the eldest son was carrying on business along with his mother that does not mean that his need has not been established for starting his own business.
20. In Ramkubai's case (supra), Hon'ble Supreme Court further held as under:-
"10. The second reason given by the Appellate Court is that at the time of filing of petition the son of the landlady was unemployed but later on he started doing work as a contractor in construction field, so he did not really want to run a Kirana shop in the suit premises. The Appellate Court was of the view that had he really intended to take up Kirana business he would not have started a business like that of a contractor. The third reason given by him is that the landlady was a partner, after the death of her husband, in the Kirana business run by her husband's brother. It was also noted that another son of the landlady is in possession of another shop and doing Kirana business and thus the family is engaged in doing Kirana business in two shops and if Bhikchand wanted JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -18- to do Kirana business he could have joined existing business. From this the Appellate Court concluded that the landlady did not require the suit premises for establishing Bhikchand in Kirana business. The learned counsel for the respondents strongly supported these reasons. It is correct that Bhikchand was unemployed on the date of filing of the suit but he could not be expected to idle away the time by remaining unemployed till the case is finally decided. It has already taken about 25 years. Therefore, we do not think that taking up contractor work, in the meanwhile, will militate against his carrying on the business of Kirana which is his family business, which was carried on by his father and is being carried on by his brother independently. The facts that the landlady during her life time was a partner in the firm carrying on Kirana business and her elder son is carrying on Kirana business do not disentitle Bhikchand to establish his own business. We are not impressed by the other reasoning and conclusion of the Appellate Court which are confirmed by the High Court. In our view, none of the reasons leads to the inference that Bhikchand did not intend to start family Kirana business, so relief cannot be denied to the landlady to recover the suit premises for personal requirement of Bhikchand to establish Kirana business independently." JITENDER KUMAR 2015.01.05 10:08 I attest to the accuracy and authenticity of this document Chandigarh CR No. 5185 of 2005 -19-
21. If for illustration the demised shop was in the ownership of Sat Pal father of the petitioner, who is having general merchant shop belonging to Municipal Committee, Gidderbaha, Sat Pal even could successfully move the rent controller for seeking possession from the tenant for separate business of his son, for running laboratory. So why not the petitioner himself who is landlord of the demised shop on the basis of having acquired ownership by inheritance from his grandmother?
22. The need of the petitioner rather has to be looked from the angle of his immediate desire to open the clinical pathology lab as he did not loose any time in filing the eviction petition for starting such a business just within a year of the death of his grandmother. It is not essentially required that the petitioner should have taken steps to hire another shop in the town for starting pathology laboratory to show his bonafide. Learned appellate authority has not adopted the legal approach in turning down the bonafide need of the petitioner which has been categorically determined in favour of the petitioner by the rent controller.
23. For the reasons stated above, the instant revision is allowed and the judgment passed by the appellate authority is set aside and that of the rent controller is restored. Since the respondent is in possession of the shop for many years, he is granted three months time to vacate the premises.
November 18, 2014 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2015.01.05 10:08
I attest to the accuracy and
authenticity of this document
Chandigarh