Punjab-Haryana High Court
Madho Ram Garg vs Baldev Singh Bath And Anr. on 29 April, 2008
Equivalent citations: (2008)2PLR769
Author: Rajive Bhalla
Bench: Rajive Bhalla
JUDGMENT Rajive Bhalla, J.
1. Challenge in this revision petition is to an order, dated 11.1.2007, passed by the learned appellate Authority, Chandigarh, accepting the appeal, filed by respondent No. 1-landlord and reversing the order, dated 29.11.2004, passed by the learned Rent Controller, Chandigarh.
2. The landlord-respondent No. 1 is admittedly owner of shop-cum-office No. 284, Sector 35-D, Chandigarh, and in possession of the first and second floors of the building. The rear portion on the ground floor is occupied by the petitioner as a tenant initially @ Rs. 600/- per month and eventually increased to Rs. 1,300/- per month excluding water and electricity charges. The landlord filed a petition for ejectment on the grounds that the petitioner had sublet the premises to respondent No. 2 for running an STD booth, without any authority from the landlord, the petitioner had made alterations in the premises, which had materially impaired the value and utility of the building, and that the landlord required the premises for his own use and occupation, as after living for over 30 years in the West, he was fed up with the western way of life and had decided to shift to India and to start a business in the portion, occupied by the petitioner.
3. Upon notice, the petitioner-tenant filed a written statement, asserting that the-premises in dispute are a shop-cum-office. The first and second floors can not be used as a residence, as a shop-cum-office can only be used for the purpose of an office. It was further asserted that the landlord's requirement is malafide, as the ejectment petition was instituted so as to pressurize the petitioner to increase rent. The landlord is residing abroad and is well settled in his business. As regards the plea of sub-letting, it was stated that respondent No. 2 is the petitioner's daughter. The entire premises are in his physical possession, though the STD connection is in his daughter's name. It was denied that any cabin had been constructed. Respondent No. 2 in her written statement denied the plea of subletting and the existence of a cabin. The landlord filed a replication reiterating the assertions in the ejectment petition.
4. The learned Rent Controller framed the following issues:
1. Whether respondents are liable to be ejected from the tenanted premises on the grounds taken in para 1(b), 1(c) of the petition? OPP
2. Whether petitioner is in bonafide need and requirement of the tenanted premises? OPP 2A. Whether the premises in dispute is required by the petitioner for his personal requirement? OPP 2B. Whether the respondent has made material addition and alternations in the premises in dispute? OPR 2C. Whether the premises in dispute is liable to be evicted on the ground of sub-letting by the respondent? OPR
3. Relief.
5. The Learned Rent Controller, after a perusal of the pleadings and upon an appraisal of the evidence, adduced by the parties, dismissed the ejectment petition by holding that the landlord had failed to establish his bonafide personal need, and the pleas of subletting and material alterations.
6. Aggrieved by the aforementioned order, the petitioner filed an appeal. The learned Appellate Authority upheld the order, passed by the Rent Controller on the ground of subletting and material impairment but accepted the landlord's plea of bonafide necessity and, therefore, allowed the appeal, set aside the order, passed by the Rent Controller and ordered the petitioner's ejectment.
7. Counsel for the petitioner submits that while reversing the Rent Controller's order on the ground of bonafide personal necessity, the learned Appellate Authority, apart from discussing the precedents, cited by counsel for the parties, has failed to make any significant reference to the pleadings and the evidence. The impugned judgment is, therefore, illegal, without jurisdiction and perverse. It is argued that the bonafide requirement, asserted by the landlord, does not disclose any element of need much less an element of necessity. The landlord is admittedly settled in Canada since the year 1970 and came to India to file the ejectment petition. In order to establish his bonafide necessity, the landlord has failed to produce any evidence in corroboration thereof. The landlord has not disclosed the nature of the business that he proposes to set up in the tenanted premises, his financial capacity to start a business, the effort made by him towards start of a business and most important of all despite being in possession of the first and second floors of the shop-cum-office, as to why his alleged necessity could not be satisfied by starting a business in the aforementioned premises. By referring to the cross-examination of the landlord, recorded before the Rent Controller, it is submitted that the landlord has admitted that he is a Canadian citizen, and is doing business there. In the absence of any material to infer that he had shut down his business in Canada, the Appellate Authority had no jurisdiction to accept the self serving statement of the landlord and direct the petitioner's ejectment.
8. It is further argued that there is no evidence on record to suggest a genuine desire on the part of the landlord to shift to India and, therefore, the appeal should have been dismissed. The landlord merely wants to let out the premises on an enhanced rate of rent.
9. Counsel for the petitioner places reliance upon Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta to assert that a plea of necessity must disclose a degree of need and requirement and must not be a mere desire. It is submitted that in the absence of any particulars or any corroboration of the landlord's statement, the Appellate Authority erred in holding that the necessity pleaded by the landlord is bonafide. Reliance for the above arguments is also placed upon Atma S. Berar v. Mukhtiar Singh (2003-1) 133 P.L.R. 371 (S.C.) and Om Parkash Bajaj v. Chandder Shekhar 2003 (1) R.C.R. 332.
10. Counsel for the landlord-respondent No. 1 on the other hand, submits that the order, passed by the Appellate Authority, Chandigarh is legal and valid. It does not suffer from any error of fact or of law as would require interference in the exercise of revisional jurisdiction. It is submitted that the landlord has clearly and categorically deposed that he has wound up his business in Canada, as he was fed up with the western way of life and wants to return to Indian to set up a business. The tenant has failed to produce any evidence, to cast any doubt or to establish the falsity of the plea and/or the absence of a genuine need. The Appellate Authority, therefore, was right in accepting the appeal, reversing the order, passed by the Rent Controller and allowing the petition for ejectment.
11. It is further argued that the absence of any material to suggest that the plea of necessity was occasioned by a lack of good faith, or was occasioned by fraud, deceit or a desire to enhance the rent, a presumption arose in favour of the landlord that the necessity pleaded was bona fide. As the tenant has failed to rebut this presumption, the Appellate Authority rightly ordered his ejectment. It is also asserted that as the landlord's statement has sufficiently established his bonafide requirement, the absence of any other evidence or statement is irrelevant. The question whether the necessity pleaded is a mere desire or a genuine need has to be judged in the context of the facts pleaded and established by the landlord. A tenant cannot impose his perception of the landlord's necessity, the extent or the nature thereof and as the Appellate Authority has accepted the plea of bonafide personal necessity, the impugned order does not call for any interference.
12. I have heard learned Counsel for the parties and perused the impugned order.
The landlord filed a petition for ejectment on the grounds of his bonafide personal necessity, subletting by the tenant, and material, impairment. As noticed herein above, the pleas were rejected by the Rent Controller. The Appellate Authority upheld the findings returned by the Rent Controller on the grounds of subletting and material impairment, but accepted the landlord's plea that his necessity to occupy the demised premises to set up a business is bonafide.
13. Before proceeding to examine the facts so as to ascertain, whether the necessity pleaded, is bonafide or otherwise, it would be appropriate to delineated the legal obligation of a landlord, who asserts a plea of personal necessity and the rights of a tenant in opposition thereto and the jurisdiction of Courts, while considering such a plea.
14. A landlord is entitled, under Section 13(3)(a)(i)(a) of the East Punjab Urban Rent Restriction Act, 1949 to apply to the Rent Controller for an order directing the tenant to put the landlord in possession, if he "requires" it for his own occupation. The word "requires" is the key to an understanding of the expression "for his own occupation" and as repeatedly held by judicial precedents, is to be interpreted to give meaning to the principle that a person should not be deprived of his own premises, if he bonafide requires them for his own occupation. For a requirement to be bonafide, it must disclose a sincerity of desire, and a genuineness of purpose as to enable a Court to hold that the necessity so pleaded is genuine, honest, and tainted by any oblique purpose. The word "requires" that precedes the expression "for his own occupation", connotes something more than a mere desire, a whim or a fancy. It would, therefore, fall to the jurisdiction of a Court to determine on die facts and circumstances of a particular case, whether the requirement pleaded is natural, real, sincere, honest, asserted in good faith and without an element of deceit, fraud or malafide intent. A landlord's perception of his necessity, namely, the nature thereof, the premises to be occupied, the area required are generally, in the absence of any evidence to the contrary, accepted as bonafide. A landlord, who succeeds in establishing the bonafides of his requirement, to the satisfaction of a Court, is entitled to urge a presumption that the necessity pleaded is bonafide. The onus to establish otherwise thereafter shifts to the tenant and in discharge of this onus, a tenant is required to rebut the presumption of bonafides by leading cogent and material evidence. In the absence of any evidence or material to doubt the bonafides of the landlord, a Court would necessarily accept the plea of bonafide and would not proceed to imposes its own perception of the state of affairs and the parameters of the necessity so pleaded.
15. The facts of the case, as pleaded in the ejectment petition, are that respondent No. 1 left for Canada in the year 1970 and started a business. About an year and half before filing of the ejectment petition, the landlord claims to have closed his business in Canada. His wife has left her job in Canada. The landlord has also asserted that he is using the first and second floors of the building for his residence and would start a business after the tenanted premises are vacated.
16. The learned Rent Controller disbelieved the landlord's plea of bonafide personal necessity to start his business in the tenanted premises on the grounds that (a) the landlord has failed to procedure any evidence that he has permanently settled in India, (b) as the front portion of the shop-cum-office is occupied by a tenant, the landlord would be unable to start any substantial business in the rear portion, occupied by the petitioner, without first obtaining ejectment of the tenant, occupying the front portion, (c) the landlord was running his business in Canada.
17. The Appellate Authority accepted the landlord's plea that he requires the premises to start his own business, by holding that it was not necessary for a landlord residing abroad to show that he had shifted permanently to India to set up a business and as the choice of the landlord with respect to the premises could not be dictated to by a tenant or a Court, the findings of the Rent Controller that the landlord could not do any substantial business in the rear portion without filing a petition for ejectment against the tenant occupying the front portion, was incorrect.
18. The Appellate Authority rightly reversed the above findings. The Rent Controller, as also counsel for the petitioner, lost sight of a significant fact, namely, that the petitioner-tenant is himself managing a successful business in the rear portion of the building, without being a possession of front portion. Thus, if the tenant can run a successful business in the rear portion, I fail to comprehend as to how the landlord would be prevented from running a business in the tenanted premises, without occupying the front portion. It is no part of a Court's duty to examine whether the business to be set up would be successful or not in the tenanted premises. The success or otherwise of a proposed business lies in the realm of speculation and Courts abjure speculative conclusions. The choice of the premises, the nature or the extent thereof rest solely with a landlord. A court cannot, while examining the evidence, imposed its own perception of the nature, extent or choice of the landlord. The Rent Controller, therefore, committed a fundamental error, while holding that the landlord could not run a successful business in the tenanted premises.
19. The other ground, relied upon by the Rent Controller, and rightly negatived by the Appellate Authority, is that the landlord has not produced any evidence that he has shifted to India permanently. The Rent Controller's conclusion is based upon the absence of a ration card or any similar document. The absence of a ration card or the proof of a permanent residence, though the landlord asserts that he resides in the first and second floors of the building, cannot be a ground to deny a landlord's petition for ejectment on the ground of a bonafide personal necessity. The East Punjab Urban Rent Restriction Act, 1949 does not and rightly so require a landlord, who seeks ejectment on the plea of his personal necessity, to reside "permanently" in the urban area concerned. A landlord may reside any where in India or in the world and still run a successful business, without residing permanently in the urban area concerned cannot be a circumstance to deny relief to such a landlord.
20. An assertion forcefully canvassed by counsel for the petitioner that the landlord's solitary statement has been believed by the Appellate Authority, despite the absence of any corroboration, ignores a salutary principle that it is the quality and not the quantity of evidence of evidence that is the basis for a judicial finding.
21. Another contention that the landlord has not produced any material to evidence that he has shut down his business in Canada and has failed to produce any evidence as to the nature of business, he proposes to start in India, merits rejection. The landlord's statement that he has shut down his business in Canada remains unrebutted, whether by cross examination or by any evidence, produced by the petitioner. The nature of the business to be set up by the landlord, his financial wherewithal, may in a given circumstance, be a ground to hold against a landlord. In the present case, the tenant has failed to establish any fact or circumstance that would enable this Court to hold that as the landlord has failed to disclose the nature of the proposed business, his plea of bonafide necessity must be held to be malafide, deceitful or false. It would also be necessary to mention here that apart from asserting that the landlord's plea of bona fide necessity was actuated by a desire to enhance the rent, no other fact has been pleaded or asserted by the tenant. The tenant has failed to either plead or establish any fact or circumstance that would establish the malafides of the plea of personal necessity, set out by the landlord. Even otherwise, counsel for the petitioner has failed to address any argument that would enable this Court to hold that the findings, returned by the Appellate Authority, are beyond jurisdiction, illegal, perverse or arbitrary and should, therefore, be set aside. Consequently, as the impugned order does not call for any interference, the revision petition is dismissed with no order as to costs.