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2003 DIGILAW 419 (PNJ)

Ashwani Chatlay v. Brig. H. S. Dhillon

2003-03-12

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed by the tenant-petitioner under sub- section (5) of Section 15 of the East Punjab Urban Rent Restriction (Extension of Chandigarh) Act, 1974 as applicable to Chandigarh, is directed against the concurrent findings of facts recorded by both the courts below that the landlord-respondent requires the demised premises for his bonafide need to occupy the same himself. It has been concurrently found that the ground floor of house No. 2565, Sector 35-C, Chandigarh is occupied by the landlord- respondent, his wife and three grand-daughters. The son of the landlord- respondent Brig. P.P.S. Dhillon also retied from the Army on 1.5.1997. Miss Lagan Dhillon, one of the grand-daughters got married in June, 1996 during the pendency of the appeal before the appellate authority but in the meanwhile Brig. P.P.S. Dhillon, the son, had joined the family and the total members of the family continued to be five. The first floor of the house held to be in the possession of the second son of the landlord, who has kept his luggage there. The second floor of the house is used as servant quarters by the landlord-respondent, which is allegedly comprised of two rooms. On the basis of the afore-mentioned evidence, it was held that the landlord alongwith his family members, is in possession of ground floor comprised of three bed rooms, drawing-dining, kitchen, lobby and study room only. It has further been held that keeping in view the status of the family of the landlord, it cannot be said that three bed rooms accommodation is sufficient for them to reside because landlord as well ass his son P.P.S. Dhillon have retired from the post of Brig. The status of the family of the landlord is proved from the evidence that it is having sufficient cause. The courts have held that the necessity of the landlord to occupy the demised premises, rented out to the tenant- petitioner is bonafide and the landlord-respondent cannot be directed to live in the manner desired by the tenant-petitioner. He is best judge of his needs. 2. Mr. Amit Jain, learned counsel for the tenant-petitioner has argued that during the pendency of the instant petition, the second grand-daughter of the landlord-respondent has also been married. Therefore, the personal necessity should be considered to have reduced drastically. He is best judge of his needs. 2. Mr. Amit Jain, learned counsel for the tenant-petitioner has argued that during the pendency of the instant petition, the second grand-daughter of the landlord-respondent has also been married. Therefore, the personal necessity should be considered to have reduced drastically. The learned counsel has also pointed out that the first floor by his other son cannot be kept outside the consideration for assessing the need of the landlord-respondent because merely keeping the luggage on the first floor cannot constitute sufficient basis for the landlord-respondent the state that his son alone is entitled to use the first floor. The learned counsel has also pointed out that servant could use only one room and not both the rooms and the second floor. In support of his submission, learned counsel has placed reliance upon a judgment of the Supreme Court in Om Prakash Gupta v. Ranbir B. Goyal, 2002(1) RCR 150 to submit that subsequent events my be taken into consideration if the relief claimed originally is adversely affected. He has also placed reliance on a judgment of this court in the case of Salim Ahmed v. Surjit Kumar Sahai, 1998(3) PLR 182 and argued that it is not a fanciful desire or a mere wish of the landlord to seek ejectment of the tenant and the landlord must establish his bonafide requirements. 3. Mr. H.S. Bhullar, learned counsel for the landlord-respondent has argued that the findings of fact recorded by both the courts below cannot be interfered with by this court under sub-section (5) of Section 15 because the scope of interference in the findings of facts is limited. In support of his submission, learned counsel has placed reliance on judgment of Supreme Court in the case of Vaneet Jain v. Jagjit Singh, 2000(1) RCR 507. The learned counsel has also pointed out that the landlord is the best judge of his need and tenant cannot compel the landlord to live in a particular fashion in his own accommodation. According to the learned counsel, status of the family of the landlord has to be kept in view because both the son and landlord have retired from the post of Brigadler and it is not expected by them to tailor their needs in accordance with the desires of the tenant. According to the learned counsel, status of the family of the landlord has to be kept in view because both the son and landlord have retired from the post of Brigadler and it is not expected by them to tailor their needs in accordance with the desires of the tenant. In support of his submission, learned counsel has placed reliance on a judgment of this court in the cases of Anil Kumar Kaushik v. Mahinder Kaur, 2000(1) RCR 78 and the judgment of Supreme Court in Ragavendra Kumar v. Firm Prem Machinery and Co., 2000(1) RCR(Rent) 135 (SC) : 2000(1) SCC 679. 4. After hearing learned counsel for the parties and perusing the order passed by the Rent Controller as well as the Appellate Authority. I am of the considered view that this petition is devoid of merit and is liable to be dismissed. Both the courts have concurrently found that the accommodation at the first floor is in occupation of the another son of the landlord- respondent. It may be proved that the other son with his family was to live in the accommodation occasionally but that would not constitute a basis to record a finding that the landlord and his son P.P.S. Dhillon could occupy that accommodation and for that matter, the same could be taken into consideration for recording a finding of fact. Both the courts have found that the accommodation available to the landlord, his wife and grand daughters is on the ground floor which obviously is insufficient. It is true that during the pendency of the litigation two of the grand daughters have got married but it is equally true that during the pendency of the petition Sh. P.P.S. Dhillon the son of the landlord-respondent has retired from the Army as Brigadier and has started living with his father. His date of retirement is recorded as 14.6.1997. Instead of five members, the family is reduced to four on account of the marriage of two grand daughters of the landlord. It is for the landlord to consider his need and personal necessity as long as it is not wishful and fanciful which cannot be concluded that it lacks bonafide. The demised premises would still continue to be required by the landlord- respondent. 5. It is for the landlord to consider his need and personal necessity as long as it is not wishful and fanciful which cannot be concluded that it lacks bonafide. The demised premises would still continue to be required by the landlord- respondent. 5. It is well settled that the powers of this court to interfere in the findings of fact under sub-section (5) of Section 15 of the Act are limited and cannot be interfered with in revisional jurisdiction. It is true that the revisional power of this Court is not restricted to the areas specified by Section 115 of the Code of Civil Procedure, 1908, yet is could be exercised only in certain specified circumstances. Sub-section (5) of Section 15 of the Act which deals with the revisional power of this Court reads as under :- "15. Vesting of appellate authority on officers by State Government. - (1) to (4) xx xx xx xx xx (5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying himself as to legality or propriety of such order or proceedings and may pass such an order in relation thereto as it may deem fit." 6. The above mentioned provision is pari materia to sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and the same came up for consideration before the Supreme Court in the case of Vaneet Jain v. Jagjit Singh, 2000(1) RCR(Rent) 507 (SC) : 2000(5) SCC 1. Dealing with the revisional powers of the High Court, their Lordships observed as under :- "Sub-section (6) of Section 15 of the Act empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the Appellate Authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarun Gupta v. Dr. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. This Court in the case of Shiv Sarun Gupta v. Dr. Mahesh Chand Gupta, 1999(2) RCR(Rent) 141 (SC) : 1999(6) SCC 222 held, that the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. For that limited purpose the High Court would be justified in reappraising the evidence. In Sarla Ahuja v. United India Insurance Co. Ltd., 1998(2) RCR(Rent) 533 (SC) : 1998(8) SCC 119 it was held that the High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact- finding court is wholly unreasonable. A perusal of sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 115 of the Code of Civil Procedure. It is no doubt true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. We are, therefore, of the view that it is not permissible for the High Court to reassess or reappraise the evidence to arrive at a finding contrary to the finding of fact recorded by the Court below." 7. Similar view has been taken in the case of Shiv Lal v. Sat Parkash, 1994(1) RCR(Rent) 495 (SC) : 1993 (Suppl) 2 SCC 345 and Bhool Chand v. Kay Pee Cee Investments, 1990(2) RCR(Rent) 694 (SC) : 1991(1) SCC 343. Sub-section (6) of Section 15 of the Haryana Act also fell for consideration in the case of Lachhman Dass v. Santokh Singh, 1995(2) RCR(Rent) 480 (SC) : 1995(4) SCC 201. Sub-section (6) of Section 15 of the Haryana Act also fell for consideration in the case of Lachhman Dass v. Santokh Singh, 1995(2) RCR(Rent) 480 (SC) : 1995(4) SCC 201. Placing reliance on Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698; State of Kerala v. K.M. Charia Abdullah and Co., AIR 1963 SC 1585; and Neta Ram v. Jiwan Lal, AIR 1963 SC 499, their Lordships pointed out the distinction between the revisional power under the Rent Act and the appellate power which reads as under : "From the use of the expression "Legality or propriety of such order or proceedings" occurring in sub-section (6) of Section 15 of the Act, it appears that no doubt revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision. That being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust there should be no interference." (emphasis supplied by me) 8. From the above enunciation of law laid down by the Supreme Court it is evident that despite wider nature of power of revision with the High Court under the Rent Act than the power of revision under Section 115 of the Code of Civil Procedure, 1908 a distinction has to be maintained between a revision and an appeal. From the above enunciation of law laid down by the Supreme Court it is evident that despite wider nature of power of revision with the High Court under the Rent Act than the power of revision under Section 115 of the Code of Civil Procedure, 1908 a distinction has to be maintained between a revision and an appeal. The ground of revisions are limited and can be summed up as under : (a) Findings are perverse; (b) Findings are bald and without evidence; (c) Findings are based on perfunctory and superficial approach; (d) Findings are wholly unreasonable; (e) Findings cannot be reversed by re-assessing evidence merely because a view different than the one recorded by the Courts below is possible; (f) Powers of revision under sub-section (6) of Section 15 of the Act do not extend to power of regular appeal. 9. The Supreme Court in the case of Kanchana v. P. Manian, JT 2002 (Suppl.1) S.C. 36 has again taken a similar view. Dealing with the question of willful default in payment of rent by a tenant, their Lordships held that it is a question of fact, which should not ordinarily be disturbed while exercising powers of revision. The views of their Lordships read as under :- "We must observe that where (whether ?) there has been a wilful default in payment of the rent by the respondent, is primarily a question of fact which should not ordinarily be disturbed by a revisional court unless the order suffers from non-consideration of important evidence, or misreading of the evidence on recording a conclusion which no reasonable man in the given facts could have arrived at. A perusal of the order of the High Court, under challenge, does not show that the order was interfered with on any of the aforementioned grounds....." 10. The argument of the learned counsel for the tenant-petitioner that subsequent events affecting the relief claimed on the ground of personal necessity should be taken into account is supported by the judgment of the Supreme Court in Om Prakash Guptas case (supra). However, it is required to be remembered that such a course can be followed only if certain conditions are fulfilled as laid down by the Supreme Court in the case of Atma S. Berar v. Mukhtiar Singh, 2003(1) RCR(Rent) 42 (SC) : 2003(2) SCC 3. However, it is required to be remembered that such a course can be followed only if certain conditions are fulfilled as laid down by the Supreme Court in the case of Atma S. Berar v. Mukhtiar Singh, 2003(1) RCR(Rent) 42 (SC) : 2003(2) SCC 3. Dealing with this aspect, their Lordships of the Supreme Court laid down three conditions which are as under :- "........The power of the court to take note of subsequent events is well settled and undoubted. However, it is accompanied by three riders; firstly, the subsequent event should be brought promptly to the notice of the court; secondly, it should be brought to the notice of the court consistently with the rules of procedure enabling the court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events; and thirdly, the subsequent event must have a material bearing on right to relief of any party........" 11. On the basis of subsequent events showing that the two grand-daughters of the landlord-respondent have been married during the pendency of the proceedings and the son after retirement has joined the company of his father in the available accommodation, has been taken into consideration and it has been found on that basis that the personal necessity continues to subsist. It is equally well settled that the landlord is the best judge of his residential requirement and in this regard he has complete freedom as has been held by a three Judges Bench of the Supreme Court in the case of Prativa Devi v. T.V. Krishnan, 1996(5) SCC 353. Therefore, I do not find any valid ground to interfere with the findings of fact recorded by both the courts below. 12. For the reasons recorded above, this petition fails and tenant-petitioner is directed to hand over the vacant possession of the demised premises to landlord-respondent within a period of two months from today.