Punjab-Haryana High Court
Mrs. Jaspreet Takhar Wife Of Mr. Kultar ... vs Ghai Enterprises on 16 January, 2013
Author: K. Kannan
Bench: K. Kannan
C.R. No.3863 of 2003 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No.3863 of 2003
Date of Decision.16.01.2013
Mrs. Jaspreet Takhar wife of Mr. Kultar Singh Nat, resident of House
No.1230, Sector 18-C, Chandigarh .....Petitioner
Versus
Ghai Enterprises, Booth No.1, Sector 27, Chandigarh and others
.......Respondents
Present: Mr. M.L. Sarin, Senior Advocate with
Ms. Hemani Sarin, Advocate
for the petitioner.
Mr. R.S. Bains, Advocate
for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.
1. The landlord is in revision challenging the orders of dismissal of the petition for eviction filed under the Punjab Rent Restrict Act on the ground of personal requirement of the demised property for establishing her own business in Pottery. The petition was filed on an express averment that the petitioner owned no other premises within the same town and she had not also vacated any property to disentitle her for claiming the demised property for personal necessity. The respondent denied that there was any bona fide need and contended that the petitioner was an Architect and she had not established her own prowess or skills in the Pottery business. At the time of trial, it was elicited in the cross examination of the landlord that she had yet C.R. No.3863 of 2003 -2- another building in her occupation in the very same town and she sought to explain it in her evidence that it was a rented place where she was having an Architect's office and she had no other property in her possession. The Rent Controller observed that the petitioner had been guilty of suppression of material fact and found the bona fides as not established. The Appellate Court had additional reasons to support namely that the place where the demised property was situate was essentially a property reserved for automative parts and the place would not be suitable for carrying on the Pottery business. The Appellate Court also observed that the plaintiff had not established that she had indeed established business or obtained order for their execution.
2. Learned Senior Counsel for the petitioner would contend that she did not own other property except the demised property and the particular building which was in occupation in which she was carrying on her profession as an Architect was actually a rented premise. The tenant himself had not denied anywhere petitioner's contention that she was not possessed of any other property as not true and that the petitioner was not guilty of any suppression. On the other hand, the respondent had merely traversed the allegation in the petition that the petitioner was not in possession of any other property by contending that he has no knowledge of the particular statement in the petition regarding her assertion that she was not possessed of any other property. The learned Senior Counsel would explain that what was elicited in the cross-examination at the trial of her holding possession of yet another property was actually a rented premise where she was carrying on her profession as an Architect and the said place could not C.R. No.3863 of 2003 -3- be used for carrying on the business in Pottery. The learned Senior Counsel would also argue that the Chandigarh Administration had actually shifted the shops dealing with the automotive parts to some other sector and the demised property cannot be said to be fit only for doing business in automotive parts. The counsel would also argue with vehemence that it is essentially a matter of personal choice for a landlord to choose the location of her business and the tenant cannot dictate the suitability of her shop for a particular business. The counsel would also refer to decisions in that regard.
3. The contention of the landlord was resisted by the tenant by urging that the petitioner had been guilty of suppression of an important fact of some other property in her possession at the time when the petition was filed. Learned counsel would refer to a specific mandate contained under the East Punjab Urban Rent Restriction Act, 1949. It mandates under Section 13(3) 2(i) that in case of non-residential building a landlord is not merely to declare that the property is required for his own use but should also affirm under sub clause (b) that he was not occupying in the urban concerned for the propose of his business any other building and in clause (c) that he has not vacated such a building without sufficient cause. It was not until the cross-examination that the land-lady admitted that she had yet another building. It is irrelevant that she did not "own" any other building than the demised premise. On the other hand, the fact that she had yet another building in her possession was sufficient. The counsel would argue that the Courts below have entered concurrent findings on fact that the landlord's need was not bona fide and there was no justification for reversing the C.R. No.3863 of 2003 -4- decision.
4. I agree with the contention of the tenant that the landlord was guilty of serious suppression of material fact. As a measure of essential pleading mandated through the express provision, which I have referred to above as regards the existence or otherwise of any other building, cannot be allowed to be merely a matter elicited in the cross- examination. If the land-lady was admitting the existence of yet another building in the cross-examination, it is another way of stating that she was forced to admit the same although there was no pleading regarding the same. The argument made by the learned Senior Counsel that the other property in her possession was for her professional requirement as an Architect, which cannot be used for running shop, is more the explanation of a counsel than the explanation for the party. I have gone through the evidence and there is no statement anywhere uttered by her that the property in her possession under a demise cannot be put to use for her Pottery business as well. If the petitioner had specifically made reference to the existence of a shop and was pleading that the property in her occupation held under demise was not suitable for Pottery business then it would not become possible for the tenant to join issues on such aspect and brought specific evidence. The absence of pleading by the petitioner cannot be a matter of advantage for the landlord and she cannot hope the Court to make a conjecture that a premise that is available with her for carrying on a profession cannot be used by her for carrying on the newly intended commercial proposition. I have no difficulty in agreeing with the contentions of the learned Senior Counsel for the petitioner that the Appellate Court was C.R. No.3863 of 2003 -5- straining its reasoning a little too hard by insisting that the landlord had not proved that this particular place was suitable. Such kind of proof was not necessary. The Appellate Court was again perhaps wrong that there was no proof that the petitioner was carrying on the trade in Pottery. There was sufficient proof documentary as well as oral through the witnesses that the land-lady had during her stint in the foreign country equipped herself in Pottery as well and she was doing it as a hobby. There was nothing improper or irregular for a person, who was carrying on a particular activity as hobby to later find a commercial exploitation for her passion in Pottery. The case cannot be decided on whether the petitioner could be disentitled to start a new business or whether the particular place could be more suitable. On the other hand, the case has to be only tested on whether the petitioner had been bona fide in her needs. There was surely evidence that she had a studio in her own house for manufacturing Pottery items but there is no clear evidence as to how the property in her possession for carrying on her profession was unsuitable for vending her wares.
5. The petition was under the circumstances rightly dismissed and I will find no reason to interfere with the same. The civil revision is consequently dismissed.
(K. KANNAN) JUDGE January 16, 2013 Pankaj*