LAIQ RAM v. VIJAY AGGARWAL — 1999 DIGILAW 184 (HP)

JUDGMENT Surinder Sarup, J.—This revision is directed against the judgment of the Appellate Authority, Shimla, dated 18.2.1998, whereby he has set-aside the order of eviction of the respondent/tenant passed by the Rent Controller (1), Shimla, dated 16.3.1996, on the eviction petition under Section 14 of the H.P. Urban Rent Control Act, hereinafter to be called "the Act", which was originally filed by the petitioner-landlord. By the said impugned judgment the Appellate Authority has in addition dismissed the said eviction petition of the petitioner. 2. The petitioner filed the petition under Section 14 of the Act against the respondent for his eviction from the demised premises on the ground of bona fide requirement by him for his use and occupation and his family members. It was stated therein that besides himself the petitioners family comprised of his wife, three sons and the wives and children of two of his sons, the remaining son being unmarried at that time. As per the petitioners case in the eviction petition, he was in occupation of only two bed rooms, one drawing room, one dining room, a kitchen and a kitchen store in the upper ! storey of the building in question i.e. the demised premises, on the ground floor of which the respondent was a tenant. The petitioners case was that the accommodation in his occupation was insufficient for his entire family inasmuch as one bed room was required by him and his wife, three bed rooms were required for his sons and their families, to the extent that two of them were married having children, one bed room was required for any visiting guests and additionally there was a requirement of one drawing-cum-dining room along with a study room for his grown up grand children who were school going. In other words, this was the minimum accommodation required by the petitioner as landlord for himself and his family members. t 3. The respondent-tenant in his written statement pleaded that the petitioner was already in occupation of six rooms in the upper storey of the demised premises which were more than sufficient for him and his family members. In other words, this was the minimum accommodation required by the petitioner as landlord for himself and his family members. t 3. The respondent-tenant in his written statement pleaded that the petitioner was already in occupation of six rooms in the upper storey of the demised premises which were more than sufficient for him and his family members. It was further stated that only the wife of one of the sons of the petitioner by the name of Jagdish along with her children as well as the children of another married son of the petitioner by the name of Parkash were residing in the demised premises while the three sons and the petitioner as well as his wife were residing somewhere else. According to the version of the respondent in his written statement, Prakash was an agriculturist and was permanently settled at Kotkhai to look-after his land and orchard. The other son by the name of Jagdish was posted at Nalagarh. The third son whose name was Satish was also residing at some other place. The petitioner and his wife were stated to be residing in Kotkhai area. As per the respondent the motive and reason for filing eviction petition by the landlord was to raise the rent from Rs. 390/- per month to Rs. 1,000/- per month. This demand having been made and not having been complied by the respondent-tenant, resulted in filing of the eviction petition. 4. The Rent Controller framed the following issues on the above pleadings of the parties : 1. Whether the petitioner bona fide required the premises in question for its own use and occupation, as alleged? OPP 2. Whether the petition is not maintainable as alleged? OPR 3. Relief. 5. The finding under Issue No. 1 was that the premises were bona fide required by the landlord for use and occupation of self and his family members. Issue No. 2 was decided against the respondent due to lack of evidence. On these findings the Rent Controller by his order dated 16.3.1996 allowed the eviction petition and directed the respondent to handover the demised premises in the ground floor of the building which was known as "SHIV KUTIR" situated in Jakhu area of Shimla. 6. Issue No. 2 was decided against the respondent due to lack of evidence. On these findings the Rent Controller by his order dated 16.3.1996 allowed the eviction petition and directed the respondent to handover the demised premises in the ground floor of the building which was known as "SHIV KUTIR" situated in Jakhu area of Shimla. 6. Feeling aggrieved by that order of the Rent Controller the respondent filed an appeal which has been allowed by the Appellate Authority, Shimla, vide the impugned judgment, hence the revision at the instance of the landlord. 7. Before proceeding further in the matter it would be proper to briefly summarise the reasons and findings resulting therefrom which have culminated in the impugned judgment allowing the appeal of the respondent-tenant. On the basis of the discussion of the evidence, the Appellate Authority has come to the conclusion that only two married sons of the landlord along with their wives and children have their residence in Shimla. On this premise as well as the pleadings and evidence of the parties, it has further been concluded that the total requirement of the landlord is four rooms. In the impugned judgment and plan of the demised premises Ex. PW1/A has been taken into consideration which shows that the accommodation in the occupation of the landlord consists of two bed rooms, a drawing room, a dining room, a reading room and a kitchen. This is in the upper storey of the building in question. In addition, he has two more rooms in his possession which have been described as reading room and a kitchen store in the said plan. According to the perception of the learned Appellate Authority these two rooms can be used as bed rooms by the two married sons of the landlord. The sizes of the reading room as well as the room shown as kitchen store have been taken into consideration and it has been found that actually the room shown as kitchen store appears to be a bed room with attached toilet. 8. In addition to the above, the Appellate Authority has also discussed and appreciated the other evidence on the record. 8. In addition to the above, the Appellate Authority has also discussed and appreciated the other evidence on the record. For example, in para 14 of the impugned judgment it is stated that while the landlord himself appearing as PW 1 and his son Prakash appearing as PW 8, have deposed that the third son Satish was employed in Modi Company and stationed at Shimla, the latter as PW 2 has stated that he was employed in Haryana Distillery, Yamunanagar but was posted at Shimla. In cross-examination he was asked whether he could produce any appointment/posting order about his being posted at Shimla, though working in Haryana Distillery, Yamunanagar, but he could not do so nor did he take time to produce such an order. On the basis of these statements of the father and two sons, the Appellate Authority appears to have correctly come to the finding that Satish is not residing at Shimla. Even otherwise, in the absence of any categorical or definite evidence to that effect, it cannot be believed that though employed in Haryana Distillery at Yamunanagar, Satish is posted at Shimla. 9. In para 15 of the impugned judgment it is stated that the evidence produced by the landlord indicates that he, along with his wife, has settled in his native village Dhar in Kotkhai after retirement on superannuation from service. In this connection one of the sons, namely, Satish as PW 2 has stated that his parents have settled in Kotkhai though they were visiting Shimla also off and on. The Voters List relied upon by the landlord as Ex. PW1/B on the record shows that his name as well as that of his wife do not figure in the said voters list pertaining to Shimla. Not only that, the landlord while appearing as his own witness admitted in his cross-examination that his ration card was at Kotkhai and his wifes name was also included in the said ration card. All this evidence clearly points to only one conclusion and that is that the landlord, along with his wife, was residing at Kotkhai at the relevant time and not in Shimla, as alleged. 10. All this evidence clearly points to only one conclusion and that is that the landlord, along with his wife, was residing at Kotkhai at the relevant time and not in Shimla, as alleged. 10. It is clear from the above discussion that the Appellate Authority has rightly come to the conclusion that the evidence on the record amply demonstrates that the accommodation in possession, use and occupation of the landlord i.e. the petitioner herein is sufficient for his requirement. 11. Learned counsel for the petitioner has vehemently argued that the findings of the Appellate Authority in the impugned judgment are based on inferences and the case, as such, set-up by the landlord for eviction of the tenant on the ground of bona fide requirement by the former of the demised premises has been rejected by the Appellate Authority, Shimla, on conjectures and surmises. According to the learned counsel, in the impugned judgment cogent reasons have not been given for setting aside the well considered order of eviction passed by the Rent Controller. However, in the considered view of this Court, there is no merit in this contention of the learned counsel. Appreciation of evidence is done in its proper perspective by the learned Appellate Authority as summarised above. 12. Learned counsel for the petitioner was at great pains to stress that in view of the pleaded case of the landlord and the evidence led by the parties on the record, the accommodation presently at the disposal of the petitioner is insufficient for the minimum need and requirement for himself as well as his large family, but in fact the position is otherwise in view of the evidence led by the landlord himself before the Rent Controller and discussed above. Thus, there is no merit in this submission of the learned counsel for the petitioner also. 13. Shri Bhupender Gupta, learned counsel, has cited case law in support of his above submissions. First, he has placed reliance on the case of Mohan Lai Aggarwal v. Kali Ram, (1997(2) Shim. L.C. 508). On the facts of that case it was found that landlord alone is the judge of his requirement and not the tenant. 13. Shri Bhupender Gupta, learned counsel, has cited case law in support of his above submissions. First, he has placed reliance on the case of Mohan Lai Aggarwal v. Kali Ram, (1997(2) Shim. L.C. 508). On the facts of that case it was found that landlord alone is the judge of his requirement and not the tenant. It is for the landlord to see which accommodation is needed for himself, for the married son and the family and in case there are more than one married sons, which part of the premises have to be allotted to whom keeping in view the size of the family and the living style. Be that as it may, the facts in the present case are otherwise where the evidence on the record clearly shows that the accommodation at the disposal of the landlord is more than sufficient for his need and requirement. This is so, because the evidence clearly shows that the landlord himself, along with his wife, is residing in Kotkhai and not in Shimla. It is also not proved that his third son Satish by name is posted at Shimla, though employed with Haryana Distillery at Yamunanagar. 14. Reliance on behalf of the petitioner is also placed on the case of Som Nath Sharma v. Prem Lata and others, (1990 (1) Shimla Law Cases 52). In that case it was held that the present as well as near future requirement of the landlord has to be taken into consideration in order to determine his bona fide requirement for more accommodation. It was further held that the requirement for additional accommodation of the landlord has to be seen on the principle of reasonable accommodation for living. It would be seen that in the present case the landlord and his wife as well as one of the three sons are not residing in Shimla, as per evidence, while the accommodation in occupation as per plan Ex. PW1/A is more than sufficient for the requirement of the other two sons and their families who are residing at Shimla. 15. In fairness to the learned counsel for the petitioner, he has also cited the following cases: 1. Meenal Eknath Kshirsagar (Mrs.) v. Traders & Agencies and another, (1996) 5 SCC 344; 2. Prativa Devi (Smt) v. TV. Krishnan, (1996) 5 SCC 353; 3. Amar Singh v. Chander Kala, 1999(1) Rent Control Reporter 59; 4. 15. In fairness to the learned counsel for the petitioner, he has also cited the following cases: 1. Meenal Eknath Kshirsagar (Mrs.) v. Traders & Agencies and another, (1996) 5 SCC 344; 2. Prativa Devi (Smt) v. TV. Krishnan, (1996) 5 SCC 353; 3. Amar Singh v. Chander Kala, 1999(1) Rent Control Reporter 59; 4. J.K. Saxena v. Madan Lai Khurana, 1999(1) Rent Control Reporter 117; 5. Devi Ram v. RamKapoor, 1999(1) Rent Control Reporter 152; and 6. Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkune and another, 1999(4) Supreme 350. 16. All the above cited case law is distinguishable on facts from the present case. Moreover, these authorities relate to the Rent Control Acts of other places than Himachal Pradesh, namely, Delhi, Bombay etc. the same cannot be made the basis to adjudge the bona fide requirement of the landlord under the Act which governs the present case. Also, in view of the evidence led by the landlord particularly and discussed in depth by the Appellate Authority in the impugned judgment, briefly referred to above, does not justify the eviction of the tenant from that part of the demised premises which is in his possession as such. 17. On the other hand, the learned counsel for the respondent-tenant has forcefully urged that the Appellate Authority has appreciated evidence correctly and has come to the right conclusion that since the landlord and his wife as well as his son Satish are not residing in Shimla, the accommodation in occupation of the landlord as shown in the plan Ex.PW-1/A is more than sufficient for the need and requirement of the other two sons and their families who are residing in Shimla. 18. On behalf of the respondent, his learned counsel has placed reliance on Amarjit Singh v. Smt. Khatoon Quamarain, 1987(1) RCR 192 and Smt Sushila Devi and others v. Avinash Chandra Jain and others, 1987 (1) RCR 252. In this authority, it has been laid down by the Apex Court that the claim of the landlord as regards his bona fide requirement of a given premises should be objectively determined and that no order of ejectment of tenant can be passed unless there is compelling necessity. It has further been held that the Court has to strike a just balance between competing needs of landlord and tenant. It has further been held that the Court has to strike a just balance between competing needs of landlord and tenant. Applying this ratio to the facts of the present case it would be seen that striking a just balance between the parties, there is no escape from the conclusion that as per the evidence on the record, the accommodation in occupation of the landlord is sufficient for his bona fide requirement which means the requirement of his two sons and their families who are permanently residing at Shimla. 19. In 1998(2) RCR (Rent) 628, M.S. Zahed v. K. Raghvan, the facts were that the landlord was a high ranking officer and foreign guests used to visit him. He was having a family of six members and was in possession of two halls, two bed rooms, one dining room, two kitchens and one more room. It was held in the circumstances by the Apex Court that the landlord therein had sufficient accommodation and there was no genuine need for additional accommodation. The revision of the landlord having been dismissed by the High Court, that order was not interfered with by the Apex Court on the above facts. 20. In the present case also, the landlord had in his occupation already four bed rooms, a drawing room and a dining room as per the findings of the learned appellate authority, based on the appreciation of evidence, particularly the plan Ex. PW-l/A. They are thus quite sufficient and can be deemed as comfortable accommodation for his two married sons and their families, since the landlord and his wife reside at Kotkhai and the third son Satish is employed in Haryana Distillery, Yamunanagar as per evidence. 21. Lastly, reliance has been placed by the learned counsel for the respondent on 1983(1) RLR 492, LD. Rajput v. Ramji Dass. In that case, it was held that where it is landlords own case that his daughters are very well settled and living in spacious homes and his sons are settled abroad, while posing the question that should the tenant be turned out permanently for these transitory trips of the sons and daughters to their father, it has been answered by the Delhi High Court to the effect that it would appear that in the facts and circumstances this would be in violation of one of the primary objects of the Rent Control legislation. Similar is the case here. Merely because the landlord, though permanently residing in Kotkhai, occasionally would like to visit Shimla would not be a sufficient ground to evict the tenant respondent from the ground floor of the demised premises of which he is in occupation. 22. For the reasons recorded above, there is no merit in this revision. The same accordingly fails and is dismissed. In the circumstances of the case, the parties are left to bear their own costs. CM.P. No. 84 of 1999 : In view of disposal of the revision petition, this CMP does not survive and is disposed of. Revision dismissed.