Punjab-Haryana High Court
Pritam Singh Bakshi vs Mrs. Sukhdev Kaur And Others on 29 August, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
Civil Revision No.1141 of 2003 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.1141 of 2003 (O&M)
Date of decision: 29.08.2013
Pritam Singh Bakshi
Petitioner
Versus
Mrs. Sukhdev Kaur and others
Respondents
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL
Present: Mr. Roshan Lal Sharma, Advocate for the petitioner.
Mr. Arun Jain, Sr. Advocate with
Mr. Ankur Soni, Advocate for the respondents.
Ajay Kumar Mittal,J.
1. The landlord - petitioner has approached this Court through the present revision petition against the order dated 3.9.2002 passed by the lower appellate authority, Chandigarh whereby the appeal against the order dated 11.5.1998 passed by the Rent Controller, Chandigarh, dismissing the ejectment petition filed by him under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (in short, "the Act") seeking eviction of respondent-Tenant Pritam Singh (since deceased) from Shop No.36, Sector 22-D, Chandigarh, has been rejected.
2. Briefly, the facts necessary for adjudication of the controversy involved, as available on record, may be noticed. On Singh Gurbax 2.2.1996, the petitioner filed petition under Section 13 of the Act 2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 2 seeking eviction of the respondent-tenant from Shop No.36, Sector 22-D, Chandigarh on the ground of non payment of rent, personal necessity and impairment in the value and utility of the demised premises. The petitioner was owner of the demised premises and the respondent-Pritam Singh was tenant under him on a monthly rent of ` 200/- excluding water and electricity charges. The tenancy was created by way of writing dated 31.7.1972 initially for a period of 11 months and the respondent was to hand over the possession to the petitioner on his failure to pay the rent. Sudhir Kumar and Sandeep Kumar, sons of the petitioner were doing business of ready-made garments in Shop No.25, Sector 22-B, Chandigarh under the name and style of Bakhshi & Sons. The petitioner wanted to increase his business and in order to earn his livelihood, he required the demised premises which was on the back of the shop being run by his sons and on the vacation of the demised premises, the total area of both the shops would have been the most convenient and spacious for fulfilling the requirement. It was also alleged that the respondent- tenant had constructed a mezzanine portion by fixing ballis etc. and thereby materially impairing the value and utility of the demised premises. The petition was contested by the respondent-tenant, inter- alia, on the plea that ground of personal requirement for a non residential building was not available to the petitioner. It was also pleaded that the petitioner was a partner in the firm - Bakshi & Sons and therefore, the ground that the demised premises was required by him for earning his livelihood was not available to him. It was also Singh Gurbax 2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 3 alleged that the petitioner had let out different buildings in Chandigarh and was getting rent. It was submitted that earlier also he was doing the business in SCO Nos.3003-04, Sector 22D, Chandigarh and after vacating the said SCO, he had let out the same to some other tenant in 1985-86. On these premises, prayer for dismissal of the petition was made. The petitioner also filed replication reiterating his stand taken in the petition and controverting the assertions made in the reply filed by the respondent-tenant. On the pleadings of the parties, the learned Rent controller framed the following issues:-
1. Whether the respondent was liable to be evicted from the demised premises on the ground of bonafide requirement of the petitioner? OPP
2. Whether the respondent was liable to be evicted from the demised premises on the ground that respondent had materially impaired and altered the structure and impaired the value and utility of the demised premises? OPP
3. Whether the respondent was liable to be evicted from the demised premises on the ground of non payment of rent? OPP
4. Whether the petition was not maintainable? OPR
5. Relief.
3. After considering the evidence on record and hearing both the parties, the the Rent Controller dismissed the petition vide order dated 11.5.1998. Aggrieved by the said order, the petitioner filed appeal before the appellate authority. Vide order dated 3.9.2002, the findings recorded by the Rent Controller were affirmed by the appellate authority and the appeal was dismissed. Hence the present Singh Gurbax 2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 4 revision petition.
4. Learned counsel for the petitioner submitted that Issue No.1 had been wrongly decided by the Rent Controller as well as by the appellate authority and the conclusion drawn by them that the demised shop was not required by the landlord for personal use, was against the record. It was argued that the statement of PW1 Pritam Singh Bakshi, landlord was in conformity with the pleadings and the findings recorded by the authorities below were wrong. The building was bonafide required by the petitioner.
5. Learned Senior counsel for the respondent-tenant submitted that the three ingredients as required under Section 13(3)
(a) (i) of the Act had not been pleaded and proved by way of statement by the landlord. He referred to paras 4 and 8 of the petition and the reply thereto, to submit that SCO Nos.3003/3004, Sector 22- D, Chandigarh which was owned by the landlord petitioner was vacated and let out after the commencement of the Act. On the aforesaid premises, it was submitted that the requirement of Section 13(3) (a) (i) (b) and (c) did not stand fulfilled. Reliance was placed on judgments in Shri Banke Ram v. Smt.Sarasti Devi, 1977 PLR 112 (FB), Shri Hans Raj and another v. Balraj Singh, 1978(1) RCR 346, Banwari Lal v. Ram Parkash and another, 2009(2) RCR 160 and Shankar Lal v. Madan Lal and others, 2011(1) RCR (Rent) 139, in support of the submissions. It was argued that the landlord had changed his stand taken in petition to that in the statement made in the Court. In the petition, he wanted eviction of the shop for Singh Gurbax 2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 5 children whereas in the evidence, he stated that he required the same for his personal use. Thus, the requirement of the petitioner landlord could not be said to be bonafide. Relying upon judgment of this Court in Sadhu Ram Verma v. Pawan Kumar, 2006(2) HRR 270, it was submitted that the petitioner-landlord had concealed the factum of SCO Nos.3003-3004, Sector 22D Chandigarh from the Court and in such circumstances, the authorities had rightly dismissed the petition. Reference was made to cross examination of PW2 Charanjeet Nagpal, PW3 Om Parkash Sharma and PW4 Sudhir Bakshi to show that the petition was only to get the premises vacated without there being any bonafide necessity.
6. After hearing learned counsel for the parties and perusing the record, I do not find any merit in the revision petition.
7. Examining the legal position relating to the effect of not pleading the ingredients embodied in Section 13(3) (a) (i) regarding personal necessity, inevitably reference is made to decision in Shri Banke Ram's case (supra), wherein a Full Bench of this Court had laid down as under:-
"15.....Thus, it is clear from the above discussion that the predominant view of this Court has been that it is imperative for the landlord to plead the ingredients of sub-clauses (b) (c) of section 13(3) (a). Even after the decision of the Division Bench of this Court in Krishan Lal Seth's case (supra), to the contrary, Mahajan,J. (as he then was) one of the Judges on this Division Bench expressed a contrary view in Darshan Singh's case (supra). It is well established and salutary principle of Singh Gurbax law that in any civil proceeding it is essential for a party 2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 6 to plead the ingredients of any facts in the pleading on which he wants to rely and in proof of which he may produce evidence...."
8. In Shri Hans Raj's case (supra), it was recorded by this Court as under:-
"6.....In my opinion, in view of the law laid down by their Lordships of the Supreme Court with regard to the conditions in sub-clauses (b) and (c) in the above mentioned decision, it was mandatory for the landlord to specifically bring evidence on the record to the effect that he was in occupation of no premises after the commencement of the Act, or in the alternative, that he had not vacated the same without sufficient cause. In the absence of any such statement or evidence, it was not the duty of the tenant to fill up the gap in the evidence of the landlord and to put question to him or his witnesses in cross examination in this regard..."
9. In Banwari Lal's case (supra), it was observed by this Court as under:-
"12. I find no force in the contention raised by the learned counsel for the petitioner though it is always open to the parties to plead the ingredients of Section 13(3) of the Act in any form given under the Act and it is also settled that landlord can always prove the said ingredients in evidence and if it is shown that no prejudice is caused to the tenant on account of non-pleading of ingredients of Section 13(3) of the Act, then petition cannot be rejected. However, it is also held that the ingredients of Section 13(3) are mandatory in nature though no specific performa is required to be given."
Similar was the position in Shankar Lal's case (supra). Singh Gurbax 2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 7
10. From the above, it emerges that it is essential and mandatory for the landlord to plead the other ingredients embodied in Section 13(3) (a) (i) of the Act. In other words, the pleadings in terms of Clauses (b) and (c) are required to be incorporated in the petition. In the absence of the same, no order of ejectment can be validly passed.
11. Having noticed the legal position, it would be apposite to scan the pleadings to ascertain whether the essential requirements as required under section 13(3) (a) (i), clauses (b) and (c) stand fulfilled in the present case or not. Paras 4 and 8 of the petition filed under section 13 of the Act would be relevant for the said purpose which read thus:-
"4. That the petitioner is without any business and vocation and is totally free and has decided to start business for earning his livelihood but he could not do so as he has no suitable commercial premises to start his business for readymade garments in order to earn his livelihood. The shop in dispute is required for the personal bonafide requirement of the petitioner."
"8.That the petitioner is not in occupation of any other commercial premises nor has vacated any commercial premises in the urban area of Chandigarh after the commencement of the Rent Act, without sufficient cause. The tenanted premises is ideal for running and expanding the business of readymade garments, the petitioner and his family members possess means and know how for running such business of readymade garments."
Paras 4 and 8 of the written statement filed by the respondent-tenant would be material, which read thus:-
Singh Gurbax2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 8
"4. Para No.4 of the petition is denied. The petitioner has let out different buildings in Chandigarh and getting rent and earlier was doing business in SCO No.3003- 3004, Sector 22-D, Chandigarh under the name and style of M/s Bakshi and Sons which shop the petitioner vacated and let out to other tenants in 1985-1986. It is denied that the petitioner is to start the business for earning his livelihood and that he requires the shop in dispute for that purpose."
"8. Para No.8 of the petition is denied. The petitioner vacated the SCO No.3003-3004, Sector 22-D, Chandigarh without sufficient cause after the commencement of the Act. It is denied that the demised shop is ideal for the sale of readymade garments."
In the replication to paras 4 and 8 of the written statement, it has been stated as under:-
"4. That contents of para 4 of the written statement are wrong and denied and of the plaint are reasserted. The detailed reply has already been given in the foregoing para."
"6,7 & 8. That paras 6, 7 and 8 are wrong, hence denied and of the plaint are reasserted."
12. A perusal of the above shows that the petitioner-landlord had not stated that he was not in occupation of SCO Nos.3003-3004, Sector 22-D, Chandigarh after the commencement of the Act and had not mentioned the sufficient cause for vacating the said premises as there is no mention of the same either in the petition or in the replication. Thus, the conditions under Sub clauses (b) and (c ) of Section 13(3) (a) (i) had not been pleaded in accordance with the factual background. Further, the petitioner had Singh Gurbax 2013.09.28 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh Civil Revision No.1141 of 2003 (O&M) 9 not specifically denied that SCO Nos.3003-3004, Sector 22-D, Chandigarh were not in his possession or had not been vacated after the commencement of the Act as pleaded by the tenant in para 4 of the written statement. In the absence of the same, the requirements as envisaged under the provisions of the Act would not stand complied with.
13. In view of the authoritative pronouncements as noticed above on which reliance has been placed by learned counsel for the respondents, the order passed by the authorities below dismissing the eviction petition could not be faulted.
14. Further, another factor which may be noticed is that there is no mention with regard to SCO Nos.3003-04, Sector 22-D, Chandigarh either in the ejectment petition or in the replication filed by the petitioner. The statement made by Pritam Singh Bakshi while appearing as PW1 also nowhere makes mention of the aforesaid premises. It is only in the cross examination where he admits that the same was got vacated about 3-4 years back and was let out to various tenants, when his statement was recorded in 1996. Thus, the conduct of the petitioner shows that there has been concealment and in view of the observations of this Court in Sadhu Ram Verma's case (supra), the petitioner is not entitled to any relief.
15. In view of the above, there is no merit in the revision petition and the same is, hereby, dismissed.
August 29, 2013 (Ajay Kumar Mittal)
'gs' Judge
Singh Gurbax
2013.09.28 13:52
I attest to the accuracy and
integrity of this document
High Court Chandigarh