Punjab-Haryana High Court
Darshna Devi vs Kewal Krishan on 10 December, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.281 of 2014 -1-
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.281 of 2014 Reserved on : 19.11.2014 Date of decision: 10.12.2014 Smt. Darshna Devi ....Petitioner Versus Kewal Krishan ...Respondent CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr. Keshav Kataria, Advocate for the petitioner.
Mr. K.B. Raheja, Advocate, Advocate for respondent.
**** G.S.Sandhawalia J.
1. The challenge in the present revision petition filed by the tenant under Section 15(5) of the East Punjab Rent Restriction Act, 1949 is to the ejectment order dated 4.6.2011 passed by the Rent Controller, Abohar and also to the appellate order dated 9.9.2013.
2. The deceased respondent-Landlord filed a petition on 9.2.2007 seeking ejectment of the petitioner -tenant from the tenanted shop being part of property bearing No.2035/2 situated at street No.15, Bus Stand Street, Abohar. The shop situated in the said property is measuring 8-1/4' X 12' and had been rented out at the rate of ` 400/- per month on 5.3.1985 for a period of six months till 4.9.1985. The ejectment was sought on the ground that tenant was in arrears of rent qua the shop in dispute from 1.7.1992 and house tax and fire cess had also been assessed from 2.8.1993 and notice had been served upon him for making payment. The tenant was liable to make payment of fire cess at the rate of ` 108/- per year. The tenant was manufacturing and selling attaches but had changed the use of general merchant without the consent and had made holes in the walls and ceiling of the shop and therefore impaired the value and utility.
PRADEEP KUMAR ARORA 2014.12.12 10:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -2- **** The landlord required the premises for his own use and he was a qualified Doctor and retired from Government service in the year 1999. He was a permanent resident of Abohar and after his retirement he required the premises for doing his private practice and did not own any other premises in the urban estate of Abohar.
3. In reply, the tenant had taken the plea that earlier rent petition had been dismissed on 2.12.1996. Another application was filed on 5.6.1996 which was dismissed as withdrawn on 15.11.1996 and therefore, the present petition was only filed with intention to harass the tenant. False claim had been made regarding the arrears of rent, fire cess, house tax etc. and no cause of action arose. The rent had been received from 1.7.1992 to 31.10.1996 through Court. The Rent Controller, Abohar framed the following issues on the pleadings of the parties:-
"1. Whether the respondent is in arrears of rent?OPP
2. Whether the shop in question is required by the petitioner for his personal use and occupation?OPP
3. Whether the respondent has changed the business in the demised premises without permission of the petitioner?OPP
4. Whether the respondent is liable to be ejected from the demised premises?OPP
5. Whether the petitioner has no cause of action to file the present petition?OPD
6. Relief"
4. The deceased landlord examined as many as six witnesses and also stepped into witness box as AW-4 whereas the petitioner-tenant examined as many as three witnesses and stepped into witness box as RW-3. The Rent Controller, Abohar noticed that on appearance on 30.3.2008, the rent had been PRADEEP KUMAR ARORA 2014.12.12 10:54 I attest to the accuracy and integrity tendered from 1.11.1996 to 31.3.2007 and there was no stipulation in the rent of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -3- **** note regarding the payment of house tax and there was an admission that he had received rent from 1.7.1992 to 31.10.1996 in the Court of the then Rent Controller and accordingly held that tender was valid and the landlord was not entitled to eviction on the ground of arrears of rent. On issue no.3 regarding change of use and value and utility of the building being impaired was also decided in favour of the tenant in the absence of any evidence on record and the fact that the tenant had taken the plea that same business was being run. However, on the issue of requirement of personal use and occupation regarding shop in question and whether the tenant was liable to be ejected, the Rent Controller, Abohar noticed that the landlord himself stepped into the witness box to depose in his favour for his claim that he had retired in the year 1999. Earlier there was litigation regarding the matrimonial dispute of his daughter and due to which he had not settled at Abohar. After the settlement the landlord wanted to settle at Abohar and use the shop for doing his practice and accordingly, eviction order was passed keeping in view the principle laid down that the landlord was the best Judge how to use the property.
5. The Appellate Authority noticed the factum of retirement of the deceased landlord and that he was native of Abohar. It was noticed that the brother of the landlord and children were also residing and working at Abohar and accordingly, in the absence of any other shop being available, it was held that he was entitled for eviction order and the appeal was dismissed keeping in mind the fact that the ingredients of the personal necessity were satisfied. It was also noticed that his brother Ram Kishan and his nephew Bal Krishan and his wife Shivani were doing medical practice at Abohar in the adjoining shop and he only owned a shop measuring 100 sq. yards at Amritsar as admitted in cross-examination.
6. Counsel for the petitioner has vehemently submitted that the PRADEEP KUMAR ARORA 2014.12.12 10:54 I attest to the accuracy and integrity landlord having died on 21.8.2014 there is no need which arises to his legal of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -4- **** representatives and therefore, in the changed circumstances, the orders are liable to be set aside and the ejectment petition is liable to be dismissed. It is further submitted that the conduct shows that earlier also rent petition was filed in the year 1996 and the appeal was dismissed on 8.6.1999 and therefore, the second petition filed by the landlord was not bonafide.
7. It was noticed that on an earlier occasion on 11.8.2014 before the Coordinate Bench time had only been given to the petitioner to vacate the demise premises and notice of motion was issued for the limited purpose. However, on appearance of the respondent, present counsel has put in appearance and argued on merits.
8. After hearing counsel for the petitioner, this Court is of the opinion that this Court while exercising its revisional powers is only to examine the factor that whether the authorities under the Act have acted within the ambit of jurisdiction and whether they have erred grossly and the orders suffer from any infirmity or error or law. Reliance can be placed upon the observations of the Constitutional Bench in Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh, 2014 (9) SCC 78. The same read thus:-
"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 reappreciation 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 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 PRADEEP KUMAR ARORA 2014.12.12 10:54 correction because it is not treated as a finding according to law. In I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -5- **** 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 reappreciate 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 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."
9. It is settled principle that the cause of action is to be seen on the date of application and merely because the landlord has died during the pendency of litigation would not be a ground to set aside the relief which the land had earned after leading evidence. Reliance can be placed upon the judgment of this Court in M/s Gagan Traders and another Vs. Jaspreet Singh and another 2010(4) PLR 38 wherein the judgment of the Apex Court in Kamleshwar Prasad Vs. Pradumanju Aggarwal 1997(1) RCR 591 and Shakuntala Bai and others Vs. Narayan Dass and others 2004(5) SCC 772 were kept in mind while dismissing the revision petition of the tenant. Similar view has also been taken by the Apex Court in Usha P. Kuvelkar and others Vs. Ravindra Subrai Dalvi 2008(1) Civil Court Cases 291 wherein it has been held that the requirement is to be seen at the time of filing of the petition. The landlord had himself stepped into the witness box and deposed regarding his need and both the Courts below had found his bonafide requirement just and honest and that it was not for the tenant to dictate the terms and tell where the landlord should settle and carry on his business.
PRADEEP KUMAR ARORA 2014.12.12 10:54
10. The principle that weighed with the Apex Court was that proceeding I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -6- **** takes long time to culminate and that maxim 'actus curiae neminem gravabit' would come into play 'since an act of Court shall prejudice no man.' The principle of law thus laid down in Shakuntala Bai's case (surpa) reads as under:-
"15. As the preamble shows the Madhya Pradesh Accommodation Control Act, 1961 has been enacted for expeditious trial of eviction cases on the ground of bona fide requirement of landlords and generally to regulate and control eviction of tenants. If the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time. There is no warrant for interpreting a Rent Control legislation in such a manner the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come."
11. The Apex Court in Sarla Ahuja vs. United India Insurance Company Ltd. 1998 (8) SCC 119 has specifically held that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. The relevant observations read thus:-
"14. The crux of the ground envisaged in clause (e) of Section 14 (1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause PRADEEP KUMAR ARORA 2014.12.12 10:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -7- **** are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
12. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222, it was held that once the satisfaction is there of the bona fide need of the landlord, the Court would not in such a case thrust its own wisdom upon the choice of the landlord. In the said case, the requirement of the landlord was challenged by the tenant on account of the fact that he had sufficient accommodation for his residence. The said plea was rejected. The relevant observations read thus:-
"12. Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine' means 'natural; not spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra- distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself PRADEEP KUMAR ARORA 2014.12.12 10:54 in the arm chair of the landlord and then ask the question to himself-
I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -8- **** whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one. but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
13. Accordingly, in such circumstances bonafide requirement could not be doubted.
14. The second submission regarding the issue of earlier litigation also is without any basis. Admittedly, first petition was dismissed way back in the year 1996 and the present petition was filed after a period of more than 11 years in 2007. In the meantime, the various factors including retirement of the landlord from Government service had taken place and in such circumstances he had filed an application for the ejectment on the ground of personal necessity of the shop in question. As noticed, the landlord has been able to demonstrate his personal requirement. In such circumstances, the second petition on the ground PRADEEP KUMAR ARORA 2014.12.12 10:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.281 of 2014 -9- **** of bonafide necessity is very much maintainable and no fault can be found with the orders of the authorities below in granting the relief. Reference can be made to the judgment of this Court in Ranjit Singh Vs. Narinder Kaur 2008(1) Civil Court Cases 467 wherein it has been held that on account of change in circumstances the second petition is maintainable even if the first petition had been dismissed.
15. Accordingly, keeping in view the above discussion, this Court is of the opinion that the impugned orders do not warrant interference and the present revision petition is accordingly dismissed.
10.12.2014 (G.S.SANDHAWALIA)
Pka JUDGE
PRADEEP KUMAR ARORA
2014.12.12 10:54
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh