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2003 DIGILAW 651 (PNJ)

Om Parkash v. Phullan Devi

2003-05-07

J.S.NARANG

body2003
Judgment J.S.Narang, J. 1. The landlord filed a petition under Section 13 of the Haryana Urban (Control or Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) for eviction of Om Parkash i.e., tenant from the demised premises reflected in red colour and delineated as ABCD in the site plan Ex.PA/1, situated at Mohalla Rampura Dodar, Hansi, District Hisar. It is alleged that the tenancy was created in favour of the respondent at a monthly rent of Rs. 25/-. The eviction has been for on three grounds i.e. (1) He has not paid rent since July 1, 1987; (2) The demised premises are bona fidely for the use and occupation of the petitioner i.e., the landlord; and (3) That the building has become unsafe and unfit for human habitation. 2. Additionally it has been averred that the respondent owns two houses and one vacant plot. Petitioner-respondent No. 1 Smt. Phullan Devi widow of Chhotu Ram has averred that she is living in village Kharkhoda, District Sonipat, with his brother and that her family has grown in age and the children have become of marriageable age. Since she is living at the sufferance of her brother and that she needs the premises herself, her need is bonafide for seeking the eviction of the tenant, and for using the premises for herself and her family. So far as the building has become unsafe and unfit for human habitation is concerned, it has been pleaded that the house is in a dilapidated condition. It has kutcha floor and kutcha roof and that the walls have developed cracks, resultantly, is unsafe to remain in occupation. 3. The petition has been contested by the respondent-petitioner i.e., tenant and he has controverted all the pleas of the landlord. It is stated that the rent has been tendered with effect from July 1, 1987 to June 13, 1988 under protest and a right is being claimed that the rent stood paid earlier but no receipt was issued, therefore, he is entitled to seek the refund of the rent tendered in Court, it has been emphatically denied so far as the status of demised premises is concerned. Similarly, the personal necessity of the petitioner-respondent has been contested. Similarly, the personal necessity of the petitioner-respondent has been contested. Upon the pleadings of the parties, the issues had been struck and the respective documentary and oral evidence in support of their pleadings to prove the issue, has been brought on record. The Rent Controller has categorically held that the rent tendered in Court is not liable to be refunded as no evidence in this regard has been produced by the respondent-petitioner. So far as personal necessity is concerned, the finding has been returned against the petitioner-respondent. It has been further held that the premises cannot be held to be unsafe and unfit for human habitation. The cumulative effect is that the petition has been dismissed by the Rent Controller vide order dated 28.3.1992. 4. The aforesaid judgment has been further challenged by the landlord before the Appellate Authority. The appeal has been accepted by reversing the finding in respect of personal bona fide necessity of the petitioner-respondent No. 1. Resultantly, the finding on issue No. 2 of the Rent Control has been reversed so far as it relates to the personal necessity of the landlord is concerned. On all other issue, the finding wherever it affected the landlord has been reversed and wherever it is in favour of the tenant without jeopardising the right of the landlord in respect of eviction has been affirmed. 5. Being dissatisfied with the judgment dated May 27, 1993, passed by the Appellate Authority, the present petition has been filed by the tenant. 6. Learned counsel for the petitioner has argued that the personal necessity of the petitioner has not been established as the landlady did not specifically lead that her brother is forcing her to shift from his house in village Kharkhoda to Hansi. The petitioner-respondent No. 3 and 4 have been duly married of and they are residing with their respective husbands. The petitioner-respondent No. 2 being her son is serving in Railways at Haridwar, therefore, the bona fide personal necessity is not made out. It is argued that the Appellate Authority has fallen into error in upsetting the judgment of the Rent Controller in this regard. No doubt, the landlord is the only person to judge his own personal necessity and need. However, this right has been subjected to certain restraints and constraints which enabled the authority to look into the personal necessity and need of the landlord. No doubt, the landlord is the only person to judge his own personal necessity and need. However, this right has been subjected to certain restraints and constraints which enabled the authority to look into the personal necessity and need of the landlord. Likewise, the Rent Controller had looked into her need and necessity and found that she did not require the premises for her personal use as she has grown in age and she would require somebody to look after her. Since her son is not living with her and that the daughters have been married off, the nearest person to look after her is her own brother. The evidence brought on record shows that she is contemplating to sell the property, which fact, cannot be ruled out. If it is for achievement of this objective, the tenant should not be evicted. The superfluous conjectural plea of personal necessity would not be sustainable. The landlord has to substantiate her claim of personal necessity from the attendant circumstances and that only the bald statement of the landlord would not be safe enough to order eviction of the tenant. 7. On the other hand, learned counsel for the petitioner-respondent has argued that the factual of personal need of the landlord is always dependent upon the need spelt out by the landlord. It is the settled law that the landlord is a judge herself/himself in this cause and no other person can measure or gauge the personal necessity of a landlord. Living at the sufferance of one of the relations would itself be a positive circumstance in accepting the personal necessity of the landlord. The circumstance, that the landlord himself/herself is too old to live independently is subjected to a check under the provision of the Act i.e. if the landlord does not occupy building for the statutory period, the tenant would be entitled to seek re-possession of the premises. In the case at hand, it has been beyond any doubt that the family of the landlady has grown and they need the premises themselves. Therefore, she has rightly asked for the vacation of the premises for her personal necessity. 8. After hearing learned counsel for the parties, I am of the view that the factum of personal necessity need based has been established beyond any doubt. Therefore, she has rightly asked for the vacation of the premises for her personal necessity. 8. After hearing learned counsel for the parties, I am of the view that the factum of personal necessity need based has been established beyond any doubt. Admittedly, the landlady is living at the sufferance of her brother whose family has also grown and that she is in a position to look after herself. It has nowhere come on record that while living with her brother, she cannot or would not be able to look after her chores herself. Thus, the Appellate Authority has correctly reversed the finding of the Rent Controller and has accepted the application of the landlady on the premises that she needs the demised premises for her personal necessity. 9. In view of the above, there is no merit in the petition and the same is dismissed with no order as to costs.