Punjab-Haryana High Court
Pawan Kumar Mittal vs Girdhari Lal Saroya on 25 November, 2009
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.3064 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Revision No.3064 of 2007
Date of Decision:-November 25,2009
Pawan Kumar Mittal ...Petitioner
Versus
Girdhari Lal Saroya ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Argued by: Mr.Harsh Aggarwal, Advocate for the petitioner.
Mr.Sanjay Majithia, Senior Advocate with
S/Shri Shailender Sharma and Jashan Preet Gill,
Advocates for the respondent.
Mehinder Singh Sullar, J.
Having lost the legal battle, Pawan Kumar Mittal son of Om Parkash petitioner-tenant (hereinafter to be referred as "the tenant") has directed the present revision petition challenging the impugned judgment/order dated 18.3.2006, whereby the Rent Controller accepted the ejectment petition of Girdhari Lal Saroya son of Amar Chand respondent-landlord (hereinafter to be referred as "the landlord") ordering him (tenant) to hand over vacant possession of the shop in dispute to the landlord within three months and the impugned judgment/order dated 20.3.2007, vide which the Appellate Authority has dismissed his appeal as well.
2. Emanating from the record and relevant for disposal of present revision petition, the brief facts are that originally, the landlord filed an ejectment petition against the tenant on the ground Civil Revision No.3064 of 2007 2 of personal necessity, invoking the provisions of section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred as "the Act"), inter-alia pleading that there is a relationship of landlord and tenant between the parties. But the tenant has not paid the rent at the rate of Rs.425/- per month of the demised premises from 1.7.2000 and he (landlord) bona fide require the premises for running the business after his retirement.
3. The case set up by the landlord was that he was serving as an Executive Engineer in the office of Chief Engineer, Jalandhar Zone in Defence Department and was going to retire from service on 31.1.2003. He is owner of two shops. The present shop is occupied by the present tenant while the other adjoining shop is occupied by his brother Vinod Kumar Mittal. He has no other shop within the municipal limit of Hoshiarpur or Punjab or India. He has neither vacated any shop nor has any other shop on rent as he was in service since 1965. The landlord wanted to run his business by constructing a show room in both the shops along with his unemployed son Rakesh Dutt and for that reason he is in bonafide need of the shop in question.
4. Levelling a variety of allegations, in all, according to the landlord that he bonafide required the shop in question for construction of show room for the purpose of business after his retirement alongwith his son. He repeatedly asked the tenant to vacate the same but, in vain even, despite legal notice, which necessitated him to file the petition for ejectment. On the basis of the aforesaid ground, the landlord filed the ejectment petition in the manner indicated here-in-above.
Civil Revision No.3064 of 2007 3
5. The tenant contested the petition and filed written statement, inter-alia pleading certain preliminary objections of, maintainability of the petition, bonafide requirement of the landlord and estoppel. However, the relationship of landlord and tenant was admitted. The tenant claimed that the landlord is not going to start any business as alleged by him or at all. His two sons owned two shops adjoining the shop in dispute. Out of the said two shops, Rakesh Dutt son of the landlord got vacated one shop from Jaswinder Mittal. The second shop was in possession of Munish Dutt, other son of the landlord. Thus, both the sons of the landlord are running the business of Manjit Spare Parts, Manjit Karyana, Manjit Confectioners and STD/PCO booth by converting the abovesaid two shops into one shop. The back portion of these shops was also stated to have been utilized by the landlord by constructing the said shops. It was claimed that the landlord has other plot situated on the back side of these shops. The story of starting business by the landlord with his son Rakesh Dutt was stated to be concocted and mala fide. He does not require the shop in dispute bonafide as he is not going to start any business as claimed. It will not be out of place to mention here that the tenant has stoutly denied all other allegations contained in the ejectment petition and prayed for its dismissal.
6. In the wake of pleadings of the parties, Rent Controller framed the following issues vide order dated 9.1.2006:-
1. Whether there exists relationship of landlord and tenant between the parties?OPA
2. Whether the petitioner requires the shop in dispute Civil Revision No.3064 of 2007 4 bonafide for running his business and respondent is liable to be ejected?OPA
3. Whether site plan produced by the petitioner is not correct?OPR
4. Whether petitioner is estopped by his act and conduct from filing the petition?OPR
5. Whether petitioner has not come to the court with clean hands, if so its effect?OPR
6. Relief.
7. The landlord in order to substantiate his ground of ejectment examined, AW1 OP Sharma, AW3 Rajnish Kumar while Girdhari Lal landlord himself appeared as his own witness as AW2 in oral evidence and has tendered into evidence his affidavit Ex.AW2/A. He has also brought on record certificate Ex.A1, pension certificate Ex.A2, site plan Ex.A3, legal notice Ex.A4, postal receipt Ex.A5, post card Ex.A6, reply to legal notice Ex.A7, another site plan Ex.A8, certificate of Chief Engineer Ex.A9 and copy of jamabandi Ex.A10 in documentary evidence.
8. The tenant in order to rebut the oral as well as documentary evidence brought on record by the landlord, examined RW1 Arjun Khanna, RW2 Harvinder Singh while the tenant himself appeared as his own witness as RW3 in oral evidence and has tendered his affidavit Ex.RW3/A. He has also produced site plan Ex.R1, copy of ejectment petition filed by the son of the landlord Ex.R2, certified copies of orders Ex.R3, Ex.R4 & Ex.R5, copies of statements Ex.R6 and Ex.R7, certified copy of suit filed by the tenant Ex.R8 and certified copy of written statement to the suit Ex.R9 in Civil Revision No.3064 of 2007 5 documentary evidence.
9. The Rent Controller accepted the ejectment petition and directed the tenant to hand over vacant possession of the shop in dispute to the landlord within three months vide order dated 18.3.2006. The appeal filed by the tenant was also dismissed by the Appellate Authority vide impugned judgment dated 20.3.2007.
10. The tenant did not feel satisfied with the impugned judgments and filed the present revision petition. That is how I am seized of the matter.
11. At the very outset, it will not be out of place to mention here that possibly no one can dispute with regard to the law laid down by the Hon'ble Supreme Court of India in T.Sivasubramaniam Versus Kasinath Pujari 1999 (2) RCR (Rent) 236; Deena Nath Versus Pooran Lal 2001 (2) RCR (Rent) 130; Atma S.Berar Versus Mukhtiar Singh 2003 (1) RCR (Rent) 42 and Adil Jamshed Frenchman (D) by LRs. Versus Sardar Dastur Schools Trust & Ors.
2005 (2) S.C.C. 476, relied on behalf of the tenant, that the bonafide requirement of a landlord must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. There must be an element of need as opposed to a mere desire or wish and it was the duty of the landlord to set out his need for premises in the petition and establish that such a need was bonafide.
12. Sequelly, it is now well settled proposition of law that the landlord is best judge in regard to his bonafide need. If he considers Civil Revision No.3064 of 2007 6 that the existing accommodation is insufficient and he required better and more accommodation, such need has to be seen from the angle of the landlord and not from the view point of the tenant and opinion of the tenant cannot be imported in it. Reliance in this connection can be placed on the judgment of this Court in Dr.Hukam Chand Dhawan Vs. State of Punjab 1997 (1) RCR 652 and M/s Bajaj Associates and others Vs. Vinod Kumar and others (2009-1) PLR 443. Sequelly, such a need of landlord was held to be bonafide by this Court in Sarjivan Kumar Vs. Raj Rani 2005 (1) RLR 609 and M/s Bhandari General Store and another Vs. Makhan Singh Grewal 2006 (1) RLR
532. Moreover, each case has to be decided on its own peculiar facts, circumstances and respective evidence brought on record by the parties in order to substantiate their pleaded cases.
13. Above being the legal position, now the short and significant question, though important, arises for determination in this petition is whether the landlord has essentially pleaded and proved his bonafide requirement of the demised premises or not in this respect.
14. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after considering the entire matter deeply, to me, as there is no merit, therefore, the present petition deserves to be dismissed, for the reasons mentioned here-in-below.
15. However, the main customary argument of learned counsel for the tenant that as the landlord has not specifically pleaded and proved his bonafide need, therefore, the impugned Civil Revision No.3064 of 2007 7 judgments cannot be sustained, is not only devoid of merits but misplaced as well, because the bare perusal of the record would reveal that the landlord has specifically pleaded in his amended ejectment petition that he was serving as Executive Engineer in Military Engineering Service (MES) since 1965 and was going to retire on 31.1.2003. He has attached certificate Ex.A2 issued by the Chief Engineer to that effect. He has, inter-alia, specifically pleaded that after his retirement he wanted to construct a show room over the two shops including the shop in dispute for running the business along with his son. In this manner, he has also pleaded all the essential ingredients in his petition in this relevant connection.
16. Not only that, the landlord has specifically pleaded all the essential ingredients of his bonafide requirement, he has also produced sufficient and reliable oral as well as documentary evidence in order to substantiate his case, the brief resume of which to me would be essential at this stage to decide the real controversy between the parties. Reference may be made to the statement of AW1 Om Parkash, who has stated that the landlord has retired from service on attaining the age of superannuation on 31.1.2003. He has also proved certificates Ex.A1 and Ex.A2 in this respect. AW3 Rajnish Kumar, Architect Engineer has proved the site plan Ex.A8 demonstrating the location of the property. The landlord while appearing as his own witness as AW2, has placed on record his affidavit Ex.AW2/A corroborating his pleaded case on all vital counts.
17. Sequelly, the fact that the landlord is also owner of some portion behind the shop in question as described in yellow colour in the site plan Ex.R1 prepared by RW1 Arjun Khanna Draftsman, will Civil Revision No.3064 of 2007 8 not debar him from claiming the possession of the demised premises, as urged on behalf of tenant, because the landlord is the best judge of his requirement, especially when RW1 Arjun Khanna has admitted in his cross-examination that the shop in dispute is on Jalandhar-Hoshiarpur Road, having a divider in between the road, there is no way to enter the street when one go from Hoshiarpur to Jalandhar on the main road and so much so, RW1 has admitted that the portion shown in yellow colour in the site plan Ex.R1 does not belong to the landlord.
18. Similarly, it cannot possibly be denied that RW2 Harvinder Singh and RW3 Pawan Kumar Mittal-tenant have stated in their affidavits Ex.RW2/A and Ex.RW3/A respectively that the sons of the landlord are running the business under the name and style of Manjit Spare Parts, Manjit Karyana, Manjit Confectioners and STD/PCO booth by converting two shops into one shop and likewise inviting the attention of this Court to the cross-examination of the landlord, wherein he has stated that his son Rakesh Dutt has gone to Italy in September or October 2004, his sons are having one shop each and that Jaswinder Mittal has also surrendered the possession of the third shop, the other feeble argument of learned counsel for the tenant, that in this manner, the bonafide need of the landlord vanished, cannot be accepted, as it ipso facto is no ground to non- suit the landlord because the mere fact that Rakesh Dutt son of the landlord has gone abroad on tourist visa much after the filing of the original ejectment petition or that his sons are running the business in the other shops would not disentitle the landlord to claim the possession of the shop in dispute and had no direct bearing on his Civil Revision No.3064 of 2007 9 bonafide requirement, particularly when the case of landlord from the very beginning was that he himself wants to start his business after his retirement alongwith his sons by constructing a showroom on the indicated shops. Moreover, the tenant (RW3) has admitted that the landlord is not running any independent business, although the landlord was found to be sitting on the shop of his son. That being so, it is no ground to presume that the landlord was doing that business. The tenant did not produce any cogent evidence that the landlord is doing any business, rather it has come on record that after retirement the landlord is not doing any job or business and he wants to start the business after his retirement.
19. Likewise, learned counsel for the tenant then contended that since the landlord feigned ignorance with regard to the names of the holders of local agencies of Philips and Bajaj Electrical Goods, so his statement contained in his affidavit as AW2 that he wants to start the work of electrical goods by taking some agency, cannot be believed. Again this argument is devoid of merit, because landlord has specifically stated in his affidavit that after his retirement he has settled at Hoshiarpur and in order to maintain his large family members, he wants to start work of electrical goods by taking some agency and according to the terms and conditions of the agency the front of the shop is required from 15 to 20 feet and for that reason he filed two different petitions, one against the present tenant and other against his brother Vinod Kumar Mittal, requiring the front of both the shops for displaying TV, Refrigerator and other electrical goods as desired by local agencies of Bajaj and Philips. Under such circumstances, the landlord was not required to know the names of Civil Revision No.3064 of 2007 10 the local agency holders of Bajaj and Philips Electrical Goods as urged on behalf of the tenant and he cannot possibly be non-suited in this regard.
20. Having regard to the rival contention of the parties and if the entire oral as well as documentary evidence brought on record by them is put together and analyzed in view of the above stated legal position, then, to me, the conclusion is inescapable that it stands proved on record that the landlord has successfully proved by cogent and reliable evidence that he bonafide required the demised premises for running the business after his retirement. His bonafide need cannot possibly be termed as otherwise in any manner. The Rent Controller and Appellate Authority correctly ordered the ejectment of the tenant in a right perspective. As there is no infirmity, therefore, the impugned orders of the courts below are hereby affirmed, in the obtaining circumstances of the case.
21. As stated above, in the wake of appraisal and appreciation of oral as well as documentary evidence brought on record by the parties, both the courts below have recorded a finding of fact based on evidence that the requirement of landlord was bonafide and such finding cannot possibly be set aside in the exercise of revisional jurisdiction of this Court, because the scope of its revisional jurisdiction is very limited and is confined only to testing the legality or propriety of the orders under revision. This Court cannot legally appreciate or re-appreciate the evidence dictated by mere inclination to take a different view of the facts. It is not the province of this Court to dislodge such concurrent findings recorded by the courts below. Such orders can only be interfered with if the Civil Revision No.3064 of 2007 11 same are perverse, arbitrary, not based on evidence and without jurisdiction. No such patent illegality or glaring irregularity has been pointed out by the learned counsel for the tenant in the impugned orders.
22. No other point worth consideration has been urged or pressed by learned counsel for the parties.
23. In this view of the matter and in the light of the aforesaid reasons, the present revision petition is without any merit and is hereby dismissed as such with no order as to costs.
(Mehinder Singh Sullar)
November 25,2009 Judge
AS
Whether to be referred to reporter?Yes/No