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2000 DIGILAW 686 (PNJ)

Mool Chand v. Ram Gir

2000-07-08

N.K.SUD

body2000
Judgment N.K.Sud, J. 1. This revision is directed against the order of the appellate authority, Karnal dated 8.4.1983 under the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short "the Act)" accepting the appeal of the respondents-landlords against the judgment of the Rent Controller, Karnal dated 30.11.1981. The respondents are the owners of a vacant piece of land situated in Sadar Bazar, Karnal which was occupied by the appellant as a tenant on a monthly rent of Rs. 2.81 inclusive of house tax. The appellant was running the business of a tea-shop constructed over the said plot. The respondents filed a suit for eviction of the appellant on the following grounds :- a) Non-payment of arrears of rent from 1.2.1978 to 31.7.1980; b) The premises were being used for a purpose other than for which it was leased out; c) The tenant has committed such acts which have impaired materially the value and utility of the rented lands; d) The appellant required the rented land for their own use and occupation, inasmuch as they wish to start their business over the land in question by opening wood taal and coal depot. 2. The appellants in reply to eviction petition admitted the tenancy but denied all the allegations mentioned above. After hearing the parties, the Rent Controller framed the following issues : 1) Whether the respondent is using the demised premises for a purpose other than for which it was leased out ? 2) Whether the respondent has committed such act which has impaired materially the value and utility of the rented land ? 3) Whether the petitioner requires the rented land in question for their own use and occupation ? 4) Whether the application is not in conformity with the rules ? 5) Relief. 3. The Rent Controller on the basis of evidence led before her decided all the issues against the respondent and dismissed his eviction petition. The respondent filed an appeal before the appellate authority and the only finding challenged before him was in respect of issue No. 3. Respondent had contended before the Rent Controller that the landlord requires the tenanted premises to start his own business of running coal depot and wood "taal". The respondent filed an appeal before the appellate authority and the only finding challenged before him was in respect of issue No. 3. Respondent had contended before the Rent Controller that the landlord requires the tenanted premises to start his own business of running coal depot and wood "taal". It was contended by him that merely because portions of the same premises were let out to different persons for commercial use at different times did not show any lack of bona fides on his part. It was further contended that the landlord alone was the sole judge of his requirement and could not be denied the right to choose any portion of his property for his personal requirement. The claim of the landlord was resisted by the tenant by pointing out that different portions of the same property had been let out to other persons for commercial use at different times and that there was no bona fide requirement of the landlord for the premises for his own use and occupation and it was merely an excuse to get the premises vacated so that he could sell the same. On the basis of oral and documentary evidence led before the Rent Controller it was held that the plea of the tenant that the landlord wanted to get the demised premises vacated in order to sell the same could not be proved by him. However, the Rent Controller was of the view that merely on this ground it cannot be said that the bona fide requirement of the landlord stood fully proved. According to him it has to be seen from the facts of each case whether the need of the landlord is bona fide or not. While deciding this matter it has to be kept in mind that the claim of the landlord must not be based on a mere wish but such wish must be backed by an element of need. It was also observed that the landlord must not make such a claim as an excuse to eject a tenant and recover the possession of the demised premises. According to the Rent Controller, there was no evidence brought on record to show as to what the landlord was doing at present and how he required the demised premises personally and also what steps he had taken to start the business. According to the Rent Controller, there was no evidence brought on record to show as to what the landlord was doing at present and how he required the demised premises personally and also what steps he had taken to start the business. These findings were based on the argument of the tenant that the landlord must prove that he has the necessary experience to run the business and also has the necessary resources and capacity for the same. Thus, the Rent Controller held that the respondent-landlord had failed to prove his bona fides. The petition was, therefore, dismissed. 4. Before the lower appellate Court it was contended that the Rent Controller was not justified in accepting the testimony of tenant against that of the landlord as the testimony of the landlord had to be given more weight, he being the sole judge of his requirement. It was contended that the inference drawn by the trial Court that the landlord had not placed any material to show that he possessed the necessary funds and the capacity to start the business was totally mis-conceived. It was further contended that the tenant had never challenged the claim of the landlord on these issues as no such suggestions were put to him during cross-examination. The tenant, however, contended that the landlord could not be given benefit of his silence in this behalf because it was for him to establish his case beyond doubt. The lower appellate Court after hearing the arguments from both sides came to the conclusion that the need of the landlord for his personal use was genuine. It was observed that there was no dispute about the proposition that mere desire to live in ones own house was not decisive and the landlord must prove his bona fide need. The lower appellate Court also found that although in para 3(iv) of the petition the landlord had clearly stated that the premises were required for his own use and occupation for starting his own business of wood "taal" and coal depot, yet it is significant to note that this contention was never challenged. In reply to this para the tenant had only stated that the property in dispute could not be got vacated on the grounds mentioned in para 3(iv) as the same was commercial one being used and let out for commercial purposes. In reply to this para the tenant had only stated that the property in dispute could not be got vacated on the grounds mentioned in para 3(iv) as the same was commercial one being used and let out for commercial purposes. Thus, according to the lower appellate Court, the need of the landlord was admitted. The appellate Court also found that in the cross- examination of the landlord no suggestion was given to him that he did not want to start his business or that he did not have the necessary capacity and experience to start the same or that he was getting the eviction order in order to seek an increase in rent. It was observed that the whole cross- examination was directed to the aspect that he had other buildings and he was getting them vacated for the same purpose. Thus in the absence of any such challenge there was nothing on record to show that the landlord had no capacity or inclination to start the business. It was further observed that the business of coal depot and wood "taal" on a vacant land does not require any special skill or any heavy investment. No prior steps are required to be taken to open such a business except obtaining a licence. The view of the Rent Controller that the landlord had not obtained the licence which showed that he had no intention to start his business was not tenable because the licence could only be applied for after the landlord had obtained possession of land. The lower appellate Court, therefore, set aside the findings of the Rent Controller or issue No. 3 and ordered the eviction of the appellant- tenant from the premises in dispute. 5. Ms. Bhawna Walia, Advocate, appeared for the petitioner and has reiterated the arguments advanced before the Courts below. According to her except for a mere desire expressed by the landlord that he wanted to start a business no material was placed on record to prove his bona fides. Mr. Narotam Kaushal, Advocate, appeared for the respondent and has supported the well reasoned findings of the lower appellate Court. He has further clarified that in the cross-examination of the landlord the tenant had put a suggestion to him that he was getting the other buildings vacated for his purpose. Mr. Narotam Kaushal, Advocate, appeared for the respondent and has supported the well reasoned findings of the lower appellate Court. He has further clarified that in the cross-examination of the landlord the tenant had put a suggestion to him that he was getting the other buildings vacated for his purpose. He clarified that the respondent owned only one plot which was let out to three different tenants. The requirement of the respondent for starting the business is for the whole plot and it is under these circumstances that he had applied for eviction of the other two tenants from the parts of the same plot. 6. After hearing the counsel for the parties and after going through the orders of the Courts below, I am of the view that the lower appellate Court has rightly decided the issue. The only ground on which the Rent Controller had decided the issue against the landlord was that he had failed to place any material on record to show that as to what he was doing earlier and what steps he had taken to start the business. From the evidence on record it is absolutely clear that the landlord had clearly stated that he wants to start a business of coal depot and wood "taal" and this need was not even challenged by the tenant. The tenant had also not challenged his capacity or resources to run the business. It is also borne out from record that the respondent was getting the other parts of the plot in occupation of two other tenants also vacated so that he could have the entire plot in his possession for the purpose of opening the new business. The lower appellate court was justified in observing that unless the respondent had been put in possession of the demised premises, he could not possibly be expected to apply for a licence to start his business because such a licence could only be obtained after he was put in possession of the demised premises. I am, therefore, in total agreement with the view taken by the lower appellate Court and, therefore, see no ground to interfere in his finding in the present revision petition. The revision petition is accordingly dismissed.