Punjab-Haryana High Court
Mistri Piara Lal vs Surinder Nath on 12 December, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CR No.2718 of 2005(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.2718 of 2005(O&M)
Date of decision: 12.12.2013
Mistri Piara Lal ......Petitioner(s)
Versus
Surinder Nath ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Kamal Sehgal, Advocate for the petitioner.
Mr. R.N. Moudgil, Advocate for the respondent.
Rakesh Kumar Garg, J. (Oral)
This is tenant's revision petition challenging the order dated 25.4.2005 of the Appellate Authority whereby appeal filed on behalf of the respondent-landlord against dismissal of his application for ejectment vide order dated 10.3.2003 of the Rent Controller, Rupnagar, was accepted and eviction of the petitioner was ordered from the demised premises on the ground of bona fide need of the respondent-landlord.
In the original eviction petition, the respondent-landlord pleaded his personal necessity as under:
"That the son of the applicant has grown up and has completed his study and the applicant wants to rehabilitate him by opening a separate business of stationery in the shop in question. Thus, the applicant requires the shop in question for his personal bonafide necessity."
Saini Pushpinder The eviction petition was contested by the petitioner. 2013.12.20 15:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.2718 of 2005(O&M) -2-
In the written statement filed on behalf of the petitioner, the personal necessity of the respondent-landlord was disputed. Thereafter, the parties led evidence. However, the respondent-landlord moved an application for amendment in the pleadings which was rejected. Thereafter, the landlord filed CR No.124 of 2002 which was allowed vide order dated 25.11.2002.
In view of the aforesaid order, the respondent-landlord filed amended ejectment petition pleading all the necessary ingredients of Section 13(3)(a)(i) of East Punjab Urban Rent Restriction Act, 1949. Amended pleadings filed on behalf of the respondent-landlord were not refuted. However, the Rent Controller vide order dated 10.3.2003 rejected the ejectment application observing as under:
"In the present case I find that the petitioner is already having three shops which are on rent with different persons. It has not been shown by the petitioner that whether Munish Kumar is having some qualification for which he requires the shop for his personal use. Moreover, the petitioner can seek eviction of some other shop. They are having three shops on rent with some other tenants. The son of the petitioner Surinder Nath is wholly dependent upon him. It is not the case of the petitioner that they have no other shop but the shop in dispute. So in these circumstances, I find that the shop is not required by the petitioner for his personal use, hence this issue is decided in favour of respondent against the petitioner."
The respondent-landlord challenged the aforesaid order of the Saini Pushpinder 2013.12.20 15:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.2718 of 2005(O&M) -3- Rent Controller before the Appellate Authority. The appeal filed on behalf of the respondent was allowed vide impugned order dated 25.4.2005 of the Appellate Authority observing as under:
"The appellant has also sought eviction of the shop in question on the ground of personal necessity. In Harbilas Rai Bansal Vs. State of Punjab and another, 1995, Rent Control Reporter, Page 672, the Hon'ble Supreme Court has held that the landlord can seek ejectment of a tenant from non residential building on the ground of personal necessity. In Joginder Pal Vs. Naval Kishore Behal, 2002 (2) Civil Court Cases, Page 633, the Hon'ble Apex Court held that the requirement of a member of the family of landlord can be considered to be the requirement of landlord for his own use. Thus, appellant has got right to file the present rent petition even if the shop in question is required by his son to run his independent business.
In the amended rent petition appellant took plea that he is occupying one shop and he also owns another three shops in the municipal limits of Morinda which are given on rent to different tenants. It is further pleaded that appellant has not vacated any commercial shop after the commencement of the Act within municipal limits of Morinda. The son of appellant while appearing in the witness box stated that his father owns three shops in Morinda and none of these shops was got vacated by his father. In these circumstances, this Saini Pushpinder 2013.12.20 15:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.2718 of 2005(O&M) -4- Court is of the view that appellant has pleaded in his ejectment application the ingredients in Sub-clauses 'B&C' of para No.1 (i) of Section 13 (3)(a) of the Act and he has also been able to prove the said plea through the testimony of his son. Even otherwise, in the written statement no objection has been taken by the respondent that in the rent petition the proper pleadings have not been pleaded as per the requirements of Section 13(3)(a)(i)(a) of the Act. So, it cannot be said that the rent petition has not been properly framed and, thus, is not maintainable.
18. The shop in question is required by the landlord to start the business of his son in the said shop. It has come into evidence that son of appellant is postgraduate but is unemployed. It has also come into evidence that appellant is running stationery business in one shop situated in Gurdwara Baazar, Morinda. There is nothing on the record to prove that son is running joint business in the above said shop along with the appellant. Also there is nothing on the record to prove that the son is not dependent on the appellant. Appellant has taken specific plea in the amended petition that he is occupying one shop and he also owns another three shops in Morinda but the same are given on rent to tenants. RW1 deposed that appellant owns five shops in Morinda. He was also to disclose the location of only three shops of appellant. He further stated that he has Saini Pushpinder 2013.12.20 15:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.2718 of 2005(O&M) -5- not seen the record of ownership of three shops situated at Sugar Mill Road. RW2 deposed that appellant owns 5/6 shops in Morinda. He admitted that he has not seen the record of ownership of said 5/6 shops. RW2 stated that appellant owns ¾ shops in Morinda. He stated that one of the shop situated at Mill road, has been rented out by the appellant while another shop situated in Gurdwara Market is occupied by appellant himself and that regarding other shops he has got no knowledge. It has also come into evidence that one shop is occupied by appellant himself while all the remaining shops are given on rent by the appellant. Thus, it is evident that appellant owns number of shops in Morinda out of which one is occupied by him while the remaining shops have been given on rent. In Raghvendra Kumar Vs. Firm Prem Machinery and Co., 2000 (1) RCR, page 135, the Hon'ble Apex Court has held that landlord is the best judge of his requirement or business purposes. The landlord has complete freedom in the matter. In the said case the landlord required shop for business. He owned other shops and plots also but none was vacant and as per landlord said shop was suitable for his business. In these circumstances, Hon'ble Apex Court held that need of the landlord was bonafide. In P. Sundaram Vs. R. Gangadharan, 2002 (1) RLJ Page 185, the Hon'ble Madras High Court held that tenant cannot dictate as to which premises the landlord has to Saini Pushpinder 2013.12.20 15:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.2718 of 2005(O&M) -6- choose if he is in need of any premises for his own use and occupation or for the members of his family. In S. Mariappan Vs. Kadar Beevi 1998 (1) RCR, Page 189 Hon'ble Madras High Court held that where the landlady required premises for business of her son and during eviction proceedings another shop falling vacant but same was rented out to some other tenant, still Hon'ble High Court held that it is choice of the landlady as to which building her son should occupy and that if bonafide is proved, then the tenant can not dictate term to the landlady with her son should occupy some other building/shop.
In the case in hand, it has come into evidence that the shop in question is situated in the middle of the city and is able for carrying any type of business. It is evident that son of appellant is educated and appellant has already running stationery business. It has also come into evidence that appellant is income tax assessee. So it appears that appellant has got enough resources to start fresh business of his son. Even if his son has got no post experience in the business, it does not reflect lack of bonafide. It has also not necessary that landlord should indicate precise nature of the business which his son intends to start. Even otherwise in the rent petition the appellant has pleaded that he want to start separate business of stationery, for him in the shop in question. In this context reference be made Saini Pushpinder 2013.12.20 15:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.2718 of 2005(O&M) -7- to Kewal Krishan Vs. Amrik Singh 2001 (1) Rent Control Reporter, Page 434 (Punjab & Haryana). All it appears that son wants to enter into family business of stationery. Son can not be kept tied with his father all time to come. It is evident that appellant owns other shops in the area of Morinda but all of them are lying. The shop in question is suitable for running all types of business. It is evident that shop in question is required by appellant to start business of his son.
In the light of above discussion, this court is of the view that bonafide personal necessity of appellant is fully proved on the record. So, the findings of the Ld. Rent Controller, regarding issue No.3 are hereby set aside and the said issue is decided in favour of appellant and against the respondent."
Aggrieved against the aforesaid order, the tenant has filed the instant petition.
Learned counsel for the petitioner has vehemently argued before this Court that in the instant case, the respondent-landlord has failed to plead and prove the necessary ingredients of Section 13(3)(a)(i) of East Punjab Urban Rent Restriction Act and therefore, the ejectment of the petitioner from the demised premises could not have been ordered. Elaborating his argument further, learned counsel for the appellant has vehemently argued that in the original petition, the respondent-landlord admittedly had not pleaded the necessary ingredients of Section 13(3)(a)
(i) of East Punjab Urban Rent Restriction Act and he was allowed to do so only by way of amendment and that too after leading evidence by the Saini Pushpinder 2013.12.20 15:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No.2718 of 2005(O&M) -8- parties and therefore, the personal necessity of the respondent-landlord cannot be said to be proved as the pleadings were amended only after closing of evidence.
The argument raised is wholly misconceived. Once, the respondent-landlord was allowed to amend his pleadings, the same will relate back to the original filing of the petition. Not only this, after amendment of the pleadings, the petitioner was at liberty to seek leading of additional evidence which admittedly he did not. Moreover, the petitioner did not refute the amended pleadings filed by the respondent-landlord. Therefore, what to talk of leading evidence, the petitioner has even failed to refute the pleadings.
In view thereof, the argument raised is wholly misconceived. No other argument has been raised.
The petition being without any merit is dismissed.
December 12, 2013 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2013.12.20 15:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh