Punjab-Haryana High Court
Salim Ahmed vs Surjit Kumar Sahai on 5 May, 1998
Equivalent citations: (1998)120PLR182
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Salim Ahmed, hereinafter described as "the petitioner", directed against the order of the learned Rent Controller, Chandigarh, dated 1.4.1992 and that of the Appellate Authority dated 20.2.1997. Both the learned Rent Controller and the Appellate Authority had not allowed the claim of the petitioner.
2. The relevant facts are that petitioner Salim Ahmed filed an application for eviction against Surjit Kumar Sahai respondent. The respondent-tenant is occupying two roomed accommodation with Kitchen, latrine and bath room on the ground floor of House No. 1891, Sector 22-B, Chandigarh, on a monthly rent of Rs. 80/- excluding water and electricity charges. Salim Ahmed petitioner had purchased the entire house. At the time when he filed the petitioner he was residing on barsati portion of the said house. The petitioner was seeking eviction of the respondent alleging that he bona fide require the property for himself and members of his family. Earlier the petitioner was residing in House No. 3185, Sector 21-D, Chandigarh, as a tenant. He was in occupation of two rooms and kitchen on the first floor. The owner of the house filed an application for ejectment on personal necessity because he had retired. An order of eviction was passed against the petitioner. The petitioner vacated it on 24,4.1989. Thereafter, he lived with his younger brother in Sector 32-C, Chandigarh. The petitioner shifted to one room on barsati after he purchased the said house. His family comprises of his wife and two sons and the accommodation in possession of the petitioner is totally insufficient for himself and members of his family. The other grounds of eviction does not survive and, therefore, no mention of same is made here.
3. The respondent contested the petition and took up the plea that the petition is liable to be dismissed because there is mis-statement and concealment of facts. The respondent is tenant in the demised premises for the past 26 yeaRs. It was denied that the petitioner required the property for himself and members of his family. The petitioner started blocking the front court-yard and the passage with the sole objective of getting the property vacated. After taking the property in dispute, the petitioner had raised additional construction and had set up another room on the top floor with kitchen, latrine and bath-room.
4. Learned Rent Controller as well as Appellate Authority held that the requirement of petitioner was not bona fide. Accordingly, the petition as such was dismissed.
5. Some of the facts that were admitted during the course of arguments can conveniently be delineated. Earlier the petitioner was a tenant in a house in Sector 21. The landlord filed an eviction application. The result was that petitioner vacated that house. After sometime, he purchased the present building and shifted on the barsati portion. Presently, there are two rooms besides kitchen, latrine and bath-room on the barsati floor. At that time there were two tenants; one on the first floor and the respondent on the ground floor. The tenant on the first floor during the pendency of purchasing vacated his two rooms apartment and presently it is in the occupation of petitioner. When the petitioner filed eviction petition, he had alleged that his brother is also living with him but this has not been addressed. When petition was filed, his family comprised of his wife and two sons.
6. One son of the petitioner is named Vasim Ahmed. On behalf of the respondent, it has been pointed that said son of the petitioner had gone to Australia. When Shamim Ahmed, son of the petitioner, appeared as a witness he admitted that his brother had applied for immigration for going to Australia but it was not shown if he was immigrated to or left for Australia. It has not been established that said son of the petitioner, in any way, has left India or Chandigarh. He is, therefore, taken to be residing with the petitioner.
7. The controversy, however, was as to whether the eldest son of the petitioner is residing with him or not ? The eldest son of the petitioner during the pendency of the proceedings had admittedly married a Christian girl. On behalf of the petitioner it was alleged that after marriage the said son with his wife is residing with the petitioner and, therefore, the requirement of the petitioner has increased.,
8. On behalf of the petitioner reliance was .being placed on the statement of Rev. Mohinder Peter, RW-10, to urge that the eldest son of petitioner after marriage is living with him in the same building. The witness has stated that he had baptised Salim Ahmed. He had gone to the community centre on 28.4.199.6. There was a reception. The marriage had already been performed. He-had seen the Nikah and entry regarding it. During cross-examination he had stated that he had gone to the house in question and met daughter-in-law of the petitioner on the first floor.
9. Can on the basis of such a statement it be held that the eldest son of the petitioner after marriage is residing with the petitioner or not? The answer would be in the negative. This is for the reason that at best it would be a evidence on that particular date. Daughter-in-law of the petitioner had come to her house at Sector 22 i.e. the house in question.
10. In fact, there is other evidence on the record which shows that eldest son of the petitioner after marriage is not residing with him. Exhibit PW 10 is the copy of affidavit of Shamim Ahmad s/o petitioner Salim Ahmad dated 24.4.1996. He has given his address as House No. 409, Sector 10, Panchkula. Not only this, eldest son of the petitioner appeared as PW 2. He stated that his name appears in the ration card along with his father and that he married with Shehnaz on 5.4.1996. According to this witness, he firstly married her as, per Muslim rites and thereafter Christian ceremony also. During further probing, he stated that, "I have marriage according to my wishes but I want to come and want to live with my parents. But there is a paucity of accommodation."
11. A perusal of the above statement clearly shows that he is only being a dutiful son. But is not residing with his father. He only stated that he wants to reside with his parents. He was not residing with them at that moment. If he really wanted to live with his parents then there was no occasion why he had moved out. The claim is an after-thought. The finding of fact so arrived at by the courts below, therefore, requires no disturbance that the eldest son of the petitioner after marriage is not residing with him.
12. As mentioned above, petitioner has two rooms, a kitchen, latrine and bathroom on the first floor and two rooms, kitchen, latrine etc on the second floor. His family comprises of himself, his wife and one son. The said accommodation is more than sufficient for the requirement of the petitioner. Even if for the sake of arguments, the eldest son is to live with the petitioner, still the accommodation is more than the requirement. This is for the added reason that it is not shown that the family status of the petitioner is so high that he requires much more accommodation. He is a barber. Earlier, he was living in two rooms in Sector 21. After his landlord got it vacated, he shifted to a house of his brother and then in one room barsati. The present accommodation is much more than required. The question of bona fide requirement does not arise.
13. Learned counsel for the petitioner then pressed into service the well known principle that landlord is the best judge of his requirement and ordinarily, therefore, his claim should not be rejected or ignored. Indeed, no precedent for this principle is required. Supreme Court in the case of Meenal Eknath Kshirsagar v. Traders & Agencies, 1996(2) Rent Control Reporter 233, while setting the said principle observed as under :-
"... As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the 'Olympus' flat, it is being occupied exclusively by Sridhar and his family since October, 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the 'Olympus" flat is readily available to the appellant's husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family."
14. But as is apparent from the facts, it is not that the landlord at any time and every time can seek eviction. It is not his whimsical or fanciful desire. There has to be an element of need before it can be stated that the requirement is bona fide. The same is missing in the present case, therefore, the said contention necessarily must fail.
15. Another plea offered was that when the landlord has purchased the property in dispute for his own residence, he would not invest a huge sum only to allow the tenants to live therein. The attention of the Court was drawn to the decision of this Court in the case of Jetha Nand v. Ram Chander and Anr., (1966)68 Punjab Law Reporter 377. It was held in paragraph No. 5 of the judgment as under :-
"... One would expect in the normal course that a displaced person who purchases a house for as much as Rs. 24,000,00 does so with the object of occupying it for the residence of himself and members of his family. He certainly does not pay such a considerable sum in order to realise the nominal rent which the tenants have been paying as allottees under the Custodian which ordinarily is a grossly inadequate return on the capital invested. Thus when a landlord says that he does want to occupy the house himself, there should be no difficulty in the Court's believing him unless cogent reasons exist for doubting his bona fide in this respect. The fact that landlord feels compelled, in order to meet the requirements of the Court to invent some unconvincing reasons to support his natural desire to occupy his own house, ought not in my opinion to be held against him."
16. As one glances through the judgment it appears that it was so observed keeping in view the facts of that case and it was one of the reason why the order of eviction was sustained. It was not the ratio of the decision that whenever a landlord purchases a house he can automatically be taken to be requiring the property bona fide. The facts of each case have to be examined on its own.
17. In the present case, the facts clearly reveals that the requirement, in fact, is not genuine and bona fide. There is sufficient accommodation with the petitioner.
18. For these reasons, the revision petition begin without merit must fail and is dismissed.