Punjab-Haryana High Court
(O&M;) Tirath Ram And Ors vs Balwant Singh on 17 December, 2014
CR No. 23 of 2004 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No. 23 of 2004
Date of Decision : 17.12.2014
Tirath Ram and others ....Petitioners
Versus
Balwant Singh ....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. S.P. Soi, Advocate
for the petitioner(s).
Mr. Anshuman Chopra, Advocate
for Mr. Amarjit Markan, Advocate
for the respondent.
R.P. Nagrath, J.
Instant revision is filed in terms of Section 15 (5) of the East Punjab Urban Rent Restriction Act, 1949 (for short to be referred as 'the Act'). Tirath Ram and Darshan Pal, petitioners no. 1 and 2 the real brothers and predecessors of the petitioners no. 3 to 7 filed a petition for ejectment of the respondent, who is a tenant in the shop in question with effect from 29.10.1983 on a monthly rent of ` 290/-. The eviction was sought on the grounds inter alia:-
(i) that the respondent was in arrears of rent w.e.f.
01.05.1996; and
(ii) that the shop in question is required for the bonafide use and occupation of the sons of the JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -2- original petitioners.
2. Tirath Ram is survived by one son Gulshan Rai- petitioner no. 4 and Darshan Pal survived by two sons, namely; Sanjeev Kumar and Rajesh Kumar, petitioners no. 6 and 7. The original petitioners before the Rent Controller set up a plea that they wanted to settle their sons in the shop in question so that they may earn their livelihood. The other ingredients as specified in sub-clauses (b) and (c) of Section 13(3) of the Act were also pleaded. Since the rent was tendered on the first date of hearing, the only ground that subsists as per the contention of learned counsel for the petitioners is the bonafide requirement of the petitioners. The respondent contested the petition. Rejoinder was also filed and learned Rent Controller framed the following issues:-
(i) Whether the respondent is liable to be ejected on the grounds as mentioned in para no. 4 of the application? OPA
(ii) Whether petitioners have not come to Court with clean hands? OPR
(iii) Relief.
3. Parties produced their respective evidence. The Rent Controller initially dismissed the application for eviction but in appeal order of the Rent Controller was set aside and order of eviction was passed. That order was challenged in CR No. 2177 of 1999, before this Court and it was pointed out that Durga Dass grandfather of petitioners no. 3, 6 and 7 and Darshan Lal father of petitioners no. 6 and 7 had died during pendency of the revision. This JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -3- Court observed that the subsequent events have necessarily required to be taken note of and also the fact now some more property/shops have become available. In view of the above, the learned counsel stated that he would like to amend the eviction application and bring subsequent events to the notice of the Court. For this reason, the revision petition was allowed and the order of the appellate authority was set aside and the matter was remitted to the Rent Controller for fresh decision, permitting the petitioners to submit application for amendment. It is admitted that even Tirath Ram, the other original petitioner has since died.
4. In the amended petition, the ground of bonafide need and occupation of the petitioners is that the petitioners require the premises to earn their livelihood by occupying the same and settling themselves in one shop each because they have since inherited two shops from their fathers and one shop from their grandfather Sh. Durga Dass. The respondent in the written statement to the amended petition pleaded that the petitioners are occupying two shops in the same locality besides the disputed shop. It was also stated in the amended written statement dated 05.01.2011 that Rajesh son of Darshan Pal petitioner no. 5 has secured permanent Government employment in the Education Department.
5. The learned Rent Controller framed the following issues on the amended pleadings:-
(i) Whether the respondent is liable to be ejected on the ground as averred in the amended plaint? JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -4-
OPA
(ii) Whether the present application is not maintainable? OPR
(iii) Whether the ejectment application filed by the applicant is not bonafide rather it has been based upon malafide intention with ulterior motive to get the shop in question vacated from the tenant on the ground of personal necessity? OPR
(iv) Relief.
6. The parties produced their respective evidence. Learned Rent Controller dismissed the application which was upheld in appeal. Both the orders have been challenged in the instant revision.
7. I have heard learned counsel for the parties, perused the order passed by the courts below and the records.
8. All the petitioners have stepped into the witness-box to prove bonafide necessity of the petitioners. Respondent appeared himself as RW-1. It would be appropriate to refer to the statement of the petitioners, namely; Gulshan Rai, Sanjeev Kumar and Rajesh Kumar for whose bonafide need the shop in question is required.
9. Sanjeev Kumar as AW-3 stated that it was the bonafide desire of their grandfather Durga Dass and the original petitioners, Darshan Pal and Tirath Ram that the petitioners should settle independently in one shop each. In cross-examination, JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -5- AW-3 admitted that he and Gulshan Rai are jointly running the business in the shop which was inherited by them from their grandfather Durga Dass. He further admitted that other two shops are owned by Darshan Pal and Tirath Ram. The shop adjoining to the shop in question is used as a store and the same is not being used as regular shop. Both the shops have one electric meter.
10. The question that remains to be discussed is about the requirement of Rajesh Kumar son of Darshan Pal. It is admitted by AW-3 Sanjeev Kumar that Rajesh Kumar has got a job in the Education Department.
11. To the same effect is the statement of AW-4 Gulshan Rai and AW-5 Rajesh Kumar with regard to the joint business being run by AW-3 and AW-4. It was admitted that third is the shop in question. Both AW-4 and AW-5 stated that AW-5 Rajesh Kumar got clerical job in the Education Department about one year ago. The job was secured on compassionate ground due to death of his father Darshan Pal. AW-5 Rajesh Kumar admitted that his job with the Education Department is permanent. He is posted there as clerk and his office timings are 8 O'clock to 02.00 p.m. According to him, AW-3 and AW-4 are running the business jointly for the past 10 years in the shop which was previously run by Durga Dass, their grandfather. AW-5 was examined on 24.04.2001.
12. The other witnesses examined are AW-1 Surinder Bala wife of late Tirath Ram and AW-2 Bimla Rani wife of late Darshan JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -6- Pal.
13. Learned counsel for the petitioners vehemently contended that the need of the landlords is to be seen as on the date of filing original eviction application. The original petition was filed in the year 1996 and because of the subsequent event that one of the son having joined Government job is not of much relevance as a person cannot sit idle for his whole life and wait for the final adjudication on the rent petition. Learned counsel placed reliance upon Gaya Prasad vs. Pradeep Srivastava, 2001 (2) SCC 604 in which Hon'ble Supreme Court held as under:-
"10. We have no doubt that the crucial date for deciding as to the bonafide of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bonafides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -7- work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period."
14. In the instant case, requirement basically is to settle each of the son of the original landlords separately in one JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -8- shop each. There are three shops in the ownership of landlords and the requirement of the disputed shop basically is for Rajesh Kumar because two sons of the petitioners are carrying on business jointly for the past about 10 years before they were examined and there is also one more shop available with them being used as a store. Petitioner no. 5-Rajesh Kumar is in the permanent job of the Government which he obtained on compassionate ground which shows that Darshan Pal father of Rajesh Kumar was himself in the Government job and therefore, the premises could not have been required for bonafide need for running business by Darshan Pal till he was in permanent employment of the Government Department.
15. Learned appellate authority observed as under:-
"17. Thus, as per pleadings of the parties, Gulshan Rai, Sanjeev Kumar and Rajesh Kumar required the shop for their use to earn their livelihood by occupying one shop each as there are two more shops near the shop in question. But while appearing in the witness box, Gulshan Rai and others did not utter a single word about their requirement much-less bonafide requirement of the shop, in question, and all the witnesses simply deposed about the desire of their predecessors-in-interest. The 'desire' cannot take the place of requirement and ejectment of the JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -9- tenant cannot be ordered simply on the ground that a landlord desires to occupy the tenant premises. In the circumstances, it cannot be said that applicants have led sufficient evidence on the file to establish their bonafide requirement and the learned Rent Controller rightly came to the conclusion that the shop in question, was not required by the applicants for their own use and occupation.
18. The learned Rent Controller has taken into consideration that there is a store belonging to the applicants which can be used as a shop as well and Rajesh Kumar, one of the applicants, has joined Government service to come to the conclusion that the premises are not required by the applicants and these findings were assailed by the learned counsel. Suffice to say that the applicants have failed to lead cogent and convincing evidence to prove their requirement and, therefore, the said observation made by the learned Rent Controller do not make any difference."
16. Section 15(5) of the Act reads as under:-
"15. Vesting of appellate authority on officers by State Government -JITENDER KUMAR
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(1) to (4) xx xx xx xx
(5) The High Court may, at any time on the
application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit."
17. With regard to the scope of revisional jurisdiction of this Court, a five Judges Bench of Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh, 2014 (2) RCR (Rent) 210 held as under:-
"27. The ordinary meaning of the word 'legality' is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal.
28. The term 'propriety' means fitness;
appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy.
29. The terms 'correctness' and 'propriety' ordinarily convey the same meaning, that is, something JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -11- which is legal and proper. In its ordinary meaning and substance, 'correctness' is compounded of 'legality' and 'propriety' and that which is legal and proper is 'correct'.
30. The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play."
18. Hon'ble Supreme Court referred to earlier judgment in M/s Sri Raja Lakshmi Dyeing Works and others vs. Rangaswamy Chettiar, (1980) 4 SCC 259 that two Judges Bench of Hon'ble Supreme Court while considering the scope of Section 25 of Tamil Nadu Rent Control Act followed Dattonpant1 and while doing so, the Court also articulated the distinction between "appellate jurisdiction" and "revisional jurisdiction". In paragraph 2 (page 261 of the Report), Hon'ble Supreme Court observed as follows:-
"2. 'Appeal' and 'revision' are expressions of common usage in Indian statute and the distinction between 'appellate jurisdiction' and 'revisional jurisdiction' is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such 1 Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagaval, 1975 (2) SCC 246 JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -12- jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute."
While dealing with revisional power under Section 25 of the Tamil Nadu Rent Control Act, the JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -13- Court said in paragraph 3 (page 262 of the Report) as under:-
"The language of Section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions 'appeal' and 'revision' are employed in the statute. Quite obviously, the expression 'revision' is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression 'appeal'. In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words 'to satisfy itself' under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25, the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -14- the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J., in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval1; "it is not wide enough to make the High Court a second Court of first appeal".
Pertinently, in Sri Raja Lakshmi Dyeing Works2, the Court said in unequivocal words that concurrent findings, based on evidence, cannot be touched upon by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Rent Control Act."
19. It was ultimately held that in dealing with the findings of fact, the examination of the matter is limited to satisfy itself that the decision is "according to law". This is expressly stated in Ram Dass vs. Ishwar Chander, AIR 1988 SC 1422. Whether or not a finding of fact recorded by the subordinate court/tribunal is according to law, is required to be seen on the touchstone whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross miscarriage of justice. Ram Dass's case (supra) does not lay down as a proposition of law that the revisional power of the High Court under the Rent Control Act is as 1 1975 (2) SCC 246 2 M/s Sri Raja Lakshmi Dyeing Works and others vs. Rangaswamy Chettiar, (1980) 4 SCC 259 JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -15- wide as that of the Appellate Court or the Appellate Authority or such power is coextensive with that of the Appellate Authority or that the concluded finding of fact recorded by the original Authority or the Appellate Authority can be interfered with by the High Court by re-appreciating evidence because revisional court/authority is not in agreement with the finding of fact recorded by the Court/Authority below. Ram Dass's case (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to re-appraise or re-assess the evidence for coming to a different finding contrary to the finding recorded by the Court/Authority below. Rather, it emphasizes that while examining the correctness of findings of fact, the revisional Court is not the second Court of first appeal. Ram Dass's case (supra) does not cross the limits of revisional court as explained in Dattonpant.
20. Hon'ble Supreme Court in Hindustan Petroleum's case (supra) ultimately held as under:-
"45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -16- facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re- appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -17- of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
21. In this case also learned courts below have analyzed the evidence and came to the firm finding that need of the petitioners is not proved to be bonafide requirement for their personal use and occupation and these findings are not shown to be perverse or in ignorance of the material available on record. The instant case is not covered within the requirement of the orders of courts below as illegal or improper requiring interference of this Court in exercise of revisional jurisdiction.
22. AW-5 Rajesh Kumar was 28 years old when he was examined on 24.04.2001 and he got employment on compassionate ground one year before his stepping into the witness-box. The petition was filed in the year 1996 when Rajesh Kumar may be about 22 or 23 years old. Subsequent event of joining job can have the effect both ways with regard to the 'term' requirement at the time of institution of the suit and also at the time of seeking amendment in the petition after original petitioners had died. Otherwise there is no reason furnished why one of the shop which is not being used for regular business has not been used for the purpose of business despite the last 10 years of joint business of two of the petitioners.
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23. Learned counsel for the petitioners relied upon Ram Lal and another vs. Sanotsh Kumar Puri, 2009 (3) RCR (Civil) 303 a judgment of this Court. It was held in that case that the contention of the tenant inasmuch as the subsequent event of the son's employment has been explained by the landlord by stating in evidence that the son was not expected to remain unemployed during the continuation of proceedings and that he had always an intention to forsake his job and join him in a business as soon as the property fell vacant. In these circumstances it was held that requirement of the landlord must be taken in the manner expressed and it shall not be possible for a tenant to contend by the mere fact that son was said to be unemployed at the time of filing of the petition and when he took up employment, the need also should be taken as having come to an end. There was an allegation that the property was principally required for starting his own business and the association of the son in the business was merely stated as an additional fact. The property itself was not sought only for providing employment to his son. So the facts of that case are quite distinct. In the said case before this Court, there was concurrent finding of the courts below and this Court found that there was no illegality or impropriety to suffer a reversal of the final result in the adjudication.
24. There is not even a whisper in the statement of AW-5 Rajesh Kumar that he intends to leave the job and start separate business in the shop in question except for stating that his JITENDER KUMAR 2014.12.24 15:16 I attest to the accuracy and authenticity of this document Chandigarh CR No. 23 of 2004 -19- grandfather, uncle and his father had a desire that each of the son should occupy one shop for separate business. Had Rajesh Kumar or any of the petitioner uttered a word about Rajesh Kumar's intention to leave the job and to start business, the matter could have assumed a different character.
25. I find no scope to interfere in the concurrent findings of both the courts below in exercise of revisional jurisdiction of this Court. Dismissed.
December 17, 2014 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2014.12.24 15:16
I attest to the accuracy and
authenticity of this document
Chandigarh