Punjab-Haryana High Court
Krishan Lal And Anr. vs Harvinder Singh And Anr. on 31 August, 2004
Equivalent citations: (2005)139PLR628
JUDGMENT M.M. Kumar, J.
1. This is tenants petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') challenging concurrent findings of facts recorded by both the Courts below holding that the tenant petitioners are liable to be evicted from the demised shop on the ground of personal necessity as envisaged by Section 13(3)(a)(i) of the Act. Both the courts have given categorical findings that the need of the landlord-respondents is bonafide as the demised shop is required by landlord-respondent No. 1 for carrying on the business of Karyana and Dairy products. The argument of the tenant-petitioners, that there is a room on the first floor (Chaubara) and the same is commercial in nature where the landlord-respondent could carry on the business of Karyana and Dairy products, has been rejected by the learned Appellate Authority holding that the room on the first floor (Chaubara) cannot be equated with the shop, especially when no objection to that effect has been raised in the written statement filed before the Rent Controller. The view of the Appellate Authority on this is.sue reads as under:-
"In the present case, the room on the first floor (Chaubara) cannot be equated with shop. Further the tenants never took any objection in this regard in their written statement before the Rent Controller. Moreover, the above said Chaubara, room was on upper storey of the shop in dispute and the stair case leads to it from adjoining the shop as such there was no question of concealing the same by the landlords from the tenants. Although the above said Chaubara/room on the upper floor of the shop in dispute is not specially pleaded in the ejectment petition but before Rent Controller, the petitioners-landlords have placed on record the site plan showing the room/chaubara on the first floor."
2. The other argument that there is concealment of facts by the landlord-respondents, inasmuch as no reference to the room (Chaubara) on the first floor has been made in the pleadings, has also been rejected on the ground that both the parties were well aware about the room on the first floor and in such circumstances, there could be no allegation with regard to concealment of fact. It is patent that the tenants are occupying the demised shop on the ground floor on the first floor of which there is a room (Chaubara). In respect of the Chaubara/room on the first floor, the allegation of concealment was made which has been rejected as the tenants were fully aware and no prejudice is suffered by them. Another arguments raised before the Appellate Authority has also been rejected that the necessity of the landlord-respondents is merely a wish and not substantial because landlord-respondent No. 1 does not have funds or any cash balance in the bank. The plying of taxi by landlord-respondent No. 1 and his employment with M/s Cadbury India Limited have also not found favour with the Appellate Authority to decline his prayer for occupying the demised shop for his personal necessity by opening the business of Karyana and Dairy products.
3. Mr. Amit Rawal, learned counsel for the petitioners has raised three fold submissions before me;(a) He has argued that evidence beyond the pleadings has been accepted for recording the findings with regard to personal necessity: (b) The landlord-respondents are guilty of active concealment of facts, inasmuch an attempt was made to conceal that there is a room on the top of the shop which could be used as a commercial property and once the landlords have committed such a violation of the provisions of Section 13(3)(a)(i) of the Act, then they do not deserve to be heard with regard to ground of personal necessity. According to the learned counsel, they failed to satisfy the basic requirements of the aforementioned Section which may entitle them to a decree of ejectment by the Rent Controller or the Appellate Authority. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Kailash v. Mangat Ram, 1984(2) R.L.R. 655 and argued that in a case where the landlord did not disclose in his ejectment petition that he was also in occupation of a house in the locality, the petition was liable to be dismissed. He has also cited a judgment of this Court in the case of Vinod Kumar Arora v. Smt. Surjit Kaur, 1987(2) Rent Law Reporter 660,. He further cited a judgment of the Supreme Court in the case of Kempaiah v. Lingaiah, 2001(8) S.C.C. 718.
4. After hearing the learned counsel, I am of the considered view that this Court in revisional jurisdiction, provided by Section 15(5) of the Act, cannot reappreciate evidence in order to reach a conclusion different than the one concurrently recorded by the Courts below. The Supreme Court has gone to the extent of observing that even if principal facts have been proved and inferential facts have been assumed by the Courts below, it would not be possible for this Court to exercise revisional jurisdiction under Section 15(5) of the Act. The aforementioned view has been taken in the cases of Ram Doss v. Ishwar Chander, (1988-2)94 P.L.R. 478 (S.C.); Rajbir Kaur v. S. Chokesiri & Co., (1989)1 S.C.C. 19; Nihal Chand Rameshwar Dass and Anr. v. Vinod Rastogi, J.T. 1994(4) S.C. 113; Vaneet Jain v. Jagjit Singh, (2000-3)126 P.L.R. 263 (S.C.) and Mohinder Singh v. Madan Lal Sharma, 2002(10) S.C.C. 676. In Ram Dass's case (supra) the Supreme Court was seized of a matter in which ejectment of the tenant had been ordered by the Courts below. The observations of the Supreme Court show that interference under Section 15(5) of the Act is not warranted even when inference has been drawn by assuming other facts by the Courts below from the principal facts. The following paras which apply to the present deserve to be quoted in extenso:-
"10. It is, no doubt, true that the question whether the requirement of the landlords is bona fide or not is essentially one of fact, notwithstanding the circumstance that a finding of fact in that behalf is a secondary and inferential fact drawn from other primary of perceptive ones. All conclusions drawn from primary facts are not necessarily question of law. They can be and quite often are pure questions of fact. The question as to bona fide requirement is one such.
11. Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as "bona fide and reasonable requirement", 'reasonable requirement, "bona fide and reasonable requirement" or, as in the case of the present statute, merely referred to as "landlord requires for his own use". But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord's desire for possession however honest it might otherwise be, has inevitably a subjective element in and that, that desire, to become a "requirement" in law must have the objective element of a "need". It must also be such that the Court considers it reasonable and, therefore eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.
12. On the first contention that the revisional powers do not extend to interference with and upsetting of findings of fact, it need to be observed that subject to the well known limitations inherent in all revisional jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction..."
13. But here, Section 15(5) of the Act enables the High Court to satisfy itself as to the legality and propriety of the order under revision, which is, quite obviously, a much wider jurisdiction. That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not a second court of first appeal...."
5. Both the courts below have concurrently found that there is no prejudicial effect of concealing or non impleadment of presence of room on the first floor of the demised shop because it is such a patent fact that no one can conceal it from the tenant-petitioners as they themselves occupy the demised shop on the top of which the room alleged to be concealed is built. The argument now raised before this Court does not deserve to be accepted for the same reason.
6. The other argument that the evidence is beyond pleadings, would also not furnish sufficient ground for this Court to set aside the concurrent findings recorded by both the Courts because this issue was not raised before the Appellate Authority or the Rent Controller as has been held by the Supreme Court in the case of Duggi Veera Venkata v. Sakala Veera, (1987)1 S.C.C. 254. I am further of the view that need of the landlord-respondents cannot be regarded as the one lacking bonafide because landlord-respondent No. 1 would be available to start the business of Karyana and Dairy products and the absence of funds cannot constitute the basis to conclude that it is a mere wish. He might be able to arrange funds from any banking institution in this era of liberalisation at a reasonable rate of interest. Moreover, there are sufficient provisions in the Act providing for re-occupation of the tenant-petitioners if the landlord-respondent No. 1 fails to utilise the demised shop if it is not occupied for his personal necessity.
7. The judgment of this Court in Kailash's case (supra) on which reliance has been placed by the learned counsel does not advance the case of the tenant-petitioner because in that case the landlord failed to disclose in his ejectment petition that he was in occupation of a house in the urban area and the same was insufficient and that in the absence of pleadings with regard to insufficiency of accommodation, the evidence led on that fact was impermissible. In the present case, the room on the fact floor which is alleged to be concealed from the pleadings cannot be considered as commercial in nature and no pleadings as per the findings of the Courts below were required. Moreover, the landlord-respondent cannot be accused of concealing this fact because it was so evident that no intention to conceal could be imputed to the landlord-respondent. In any case the evidence with regard to room on the first floor cannot be thrown away as already observed in the preceding paras by referring to the judgment of the Supreme Court in Duggi Veera Venkata's case (supra) as it would not constitute sufficient ground for interference under Section 15(5) of the Act. Moreover, the aforementioned contention concerning lacks of pleadings has not been raised before the Courts below. Therefore, the judgment of the Supreme Court in the case of Vinod Kumar Arora (supra) on which reliance has been placed by the learned counsel would not come to his rescue.
8. The other argument based on the judgment of the Supreme Court in Kempaiah's case (supra) has also not impressed me because in the present case, the need of the landlord-respondent is not merely a wish but a reality which is evident from the findings of facts recorded by the Courts below. The aforementioned aspect has already been dealt with in the preceding paras. Therefore, this argument too is liable to be rejected. For the reasons recorded above, this petition fails and the same is dismissed.