Punjab-Haryana High Court
Ramesh Chander vs Amarjit Kaur on 22 July, 2010
Author: Alok Singh
Bench: Alok Singh
CR No.4503 of 2010 1
In the High Court of Punjab and Haryana, Chandigarh.
CR No.4503 of 2010 (O&M)
Date of Decision: 22.07.2010
Ramesh Chander
....Petitioner
Versus
Amarjit Kaur
....Respondents.
Coram:- Hon'ble Mr. Justice Alok Singh
1.Whether reporters of local news papers may be allowed to see
judgement ?
2. To be referred to reporters or not ?
3. Whether the judgement should be reported in the Digest ?
Present: Mr. Arun Palli, Sr. Advocate with
Mr. K.S. Kang, Advocate
for the petitioner.
Mr. Ram Kumar Chauhan, Advocate
for the Caveator/respondent.
...
Alok Singh, J.
Tenant - revisionist has filed revision under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 1949 Act), challenging the judgement dated 9.11.2006 passed by the Rent Controller, Hoshiarpur as well as the judgement dated 22.5.2010 passed by the Appellate Authority/ADJ, Hoshiarpur, thereby allowing the eviction petition of the landlady directing eviction of the tenant - revisionist.
CR No.4503 of 2010 2
Brief facts of the present case are that the landlady - respondent herein has sought eviction of the tenant - revisionist on the ground that her husband is a handicapped and she has obtained certificate from the Civil Surgeon, Hoshiarpur, wherein 40% disability has been shown. One son of the landlady - respondent herein was living in Behrens and his one eye was injured. He is unable to stay abroad for his employment and has to come back to India; son and husband of the landlady are unemployed and have no permanent source of income. Therefore, the premises in dispute is required by the landlady to start business therein of blacksmith to earn their livelihood; landlady - respondent owns another shop, which is adjoining to it and is also filing ejetment petition against other tenant so that sufficient space be made available to the landlady, her husband and son to start business of blacksmith therein to earn their livelihood.
Tenant has contested the eviction petition saying landlady's husband and son are well settled. It is further averred in the written statement that earlier also landlady had filed a petition for eviction on two grounds i.e. non-payment of rent and bonafide need, which was withdrawn by the landlady after receiving rent from the tenant on 15.9.2000. Hence, present eviction petition is barred by Order 23 Rule 1 CPC and principle of estoppel.
The Rent controller as well as the Appellate Authority after going through the pleadings and entire evidence available on record, found favour with the landlady's case and directed eviction of the tenant - revisionist vide impugned judgements.
Mr. Arun Palli, Sr. Advocate assisted by Mr. K.S. Kang, CR No.4503 of 2010 3 Advocate vehemently argued that neither husband nor son of the landlady is unemployed. Landlady in her statement before the Rent Controller during the cross-examination has admitted that her husband is working in a factory. She has further admitted in her statement that her son is doing TV repair work. He further argued that finding of both the Courts below are against the evidence available on record. It was further contended by the learned counsel that in view of the withdrawal of earlier eviction petition on 15.9.2000, alleged bonafide need of the landlady is not proved. Had there been any need, the landlady would have prosecuted her previous eviction suit. He further argued that in view of the principle of Order 23 Rule 1 CPC, present petition is not maintainable since no liberty was sought from the Court to file fresh eviction petition while withdrawing the earlier eviction petition due to non-payment of rent, allegedly outstanding against the tenant. Learned counsel appearing for the respondent - caveator refuted the arguments of Mr. Palli.
It is recorded by both the Courts below that at the time of withdrawal of earlier petition, disability certificate was not available with the landlady, which was obtained by her after the withdrawal of the earlier petition certifying that her husband has 40% disability. It has further been observed that ground of arrear of rent and personal bonafide necessity are recurring grounds for ejectment and in view of this, fresh petition cannot be thrown out.
I have perused the record. In the opinion of this Court, eviction proceedings under the Rent Act are summary in nature and dismissal of previous petition or withdrawal of previous petition is no ground to debar the landlord from moving eviction petition on the recurring cause of action. CR No.4503 of 2010 4 In the earlier eviction petition, eviction of tenant was sought on two grounds and the main ground was non-payment of rent. Although, the landlady in the previous eviction petition had also sought eviction on the ground that she wants the premises in dispute to start business of furniture therein. Earlier petition was withdrawn in view of the fact that the tenant has paid entire amount of arrear of rent. In the present petition, landlady is seeking eviction of the tenant on the ground that the demise premises alongwith the adjoining premises is needed to start business of blacksmith therein by her handicapped husband and unemployed son. In my opinion, present petition cannot be thrown out, if landlady is able to prove that the demise premises along with the adjoining premises, is required for her unemployed son and husband.
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 demise 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.
In the opinion of this Court, tenant cannot dictate the landlord that he should be satisfied with his present income and he should not start new business as proposed by the landlord.
Mr. Palli has placed reliance on the judgement of the Himachal Pradesh High Court in the matter of J.P. Chatrath_Vs. Shamboo Dayal reported in 1976 RCR 601 and has vehemently argued that the revisional jurisdiction under Section 15(5) of the 1949 Act permits this Court to assess entire material available on record to find out legality and propriety of the CR No.4503 of 2010 5 impugned judgement(s). He further contends that this Court is competent to re-assess the evidence.
This Court is unable to accept the contentions made by Mr. Palli on this score. In the opinion of this Court, while exercising revisional jurisdiction under Section 15(5) of the 1949 Act, this Court shall upset the judgements passed by the Courts below only when this Court is satisfied that burden of proof was wrongly placed or inadmissible evidence was accepted or admissible evidence was rejected or right to lead evidence was illegally closed or Courts below have committed such grave error of procedural law, which vitiates the entire proceedings. However, while exercising revisional jurisdiction, this Court shall not upset the finding of fact recorded by the Courts below merely because two opinions are possible on the basis of material available on record.
In the opinion of this Court, both the Courts below have not committed any illegality, manifest error of law or jurisdictional error while coming to the conclusion that the landlady has bonafide need of the demise premises for the establishment of the business of blacksmith therein by her handicapped husband and son.
Petition is devoid of merit and hence is dismissed. However, in the interest of justice, two months' time is granted to the tenant - revisionist to vacate the tenanted property and thereafter the tenant shall hand over peaceful and vacant possession thereof to the landlady.
( Alok Singh ) Judge 22.07.2010 sk.