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2006 DIGILAW 2781 (PNJ)

Chaman Lal v. Amarjit Kaur

2006-07-17

P.S.PATWALIA

body2006
Judgment P.S.Patwalia, J. 1. By way of this revision petition the petitioner has challenged the order passed by the Learned Rent Controller, Ferozepur as also the Appellate Authority, Ferozepur vide which the petitioner has been ordered to hand over the possession of vacant premises in dispute to the respondent landlady. 2. The respondent Amarjit Kaur filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for the ejectment of the respondent-tenant from the ground floor of House No. 6676/DS-9. The petition had been filed on the ground of non-payment of rent as also for the landladys bona fide requirements and personal necessity of the respondent - landlady. The Rent Controller as also the Appellate Authority had ordered the eviction of the petitioner only on the ground of bona fide requirements and personal necessity. It is this finding which has been challenged by the petitioner in this revision petition. 3. The relevant facts as pleaded by the respondent-landlady are that the husband of the landlady was earlier employed at the H.M.T. Factory at Pinjore and therefore the landlady was having her residence there. He retired from service on 31.01.1996 and thereafter the family shifted to Ferozepur. The ground floor of the house in question comprising of three rooms, bathroom etc. was on rent with the petitioner-tenant. The first floor portion is without bathroom, kitchen, guest room and drawing room. It only comprises of one room. Apart from this a small portion of the ground floor of the house was also got vacated from one Mool Chand-tenant. It was alleged that even the said portion was in possession of the son of the petitioner-tenant without the consent of the landlady. The respondent - landlady had therefore contended that the portion which was in their possession was only one room without a drawing room, bedroom or kitchen. It was totally insufficient for their family which consisted of seven members including her husband, a divorced daughter, her son and his family. On account of this fact they had to take another house bearing No. 623 in the Housing Board Colony, Ferozepur on a monthly rent of Rs. 600/- as the portion in their occupation was totally insufficient for their residence. On account of this fact they had to take another house bearing No. 623 in the Housing Board Colony, Ferozepur on a monthly rent of Rs. 600/- as the portion in their occupation was totally insufficient for their residence. It was also pleaded that the landlady and her husband both were suffering from Asthama and were finding it very difficult to live on the first floor of the house. 4. On the other hand the petitioner-tenant had pleaded that originally one Smt. Kishan Kaur was the owner and landlady of the property in dispute. The property had been inherited by her three daughters including the landlady-respondent. He contended that she was in possession of two rooms and a latrine on the First Floor and one miani on the second floor. He also stated that first floor portion was got vacated from Nikka Ram-tenant and was lying locked from the date the landlady had taken over the possession. He had further pleaded that the landladys mother was owner of three houses which had come to the share of other three daughters. One such house was in Sirki Bazar and another in Gali Nihanganwali in Ferozepur City. However, it was admitted by the tenant that both these houses were in occupation of other tenants. It was further pleaded that in fact the landlady and her family were residing at Ludhiana with their son and as such the real intention was not to reside in the portion in question but merely to harass him. 5. On these facts the learned Rent Controller recorded the following findings: "22. After hearing the rival submissions, I do not find any substance to the contentions raised by the learned counsel for the respondent. The applicant has produced the copy of the ration card which is Ex.PW 7/A, the perusal of which shows that there are seven members including the applicant, who are residing in the premises in her occupation. No evidence has been led by the respondent to rebut this documentary evidence. Further, it is apparent that the applicant and her husband are in old age and due to old age are suffering from various diseases and as such are unable to keep their residence upstairs and, as such, a great difficulty is being experienced by them to keep their residence on the first or second floor. Further, it is apparent that the applicant and her husband are in old age and due to old age are suffering from various diseases and as such are unable to keep their residence upstairs and, as such, a great difficulty is being experienced by them to keep their residence on the first or second floor. Further, the applicant has produced the documentary evidence on the record that Baj Singh husband of the applicant is suffering from asthama and he remained under the treatment of Dr. O. P. Bagri at Civil Hospital, Ferozepur and the relevant medical slips/record is Ex.AW 6/1 to AW 6/13. Besides that the doctor has also proved on record the medical slips pertaining to the applicant as she had been getting the treatment from Dr. O. P. Bagri for various diseases. 23. Regarding the objection of the counsel for the respondent that the applicant has inherited the entire house in question from her mother Smt. Kishan Kaur alongwith two other houses. No documentary evidence has been produced on behalf of the respondent to prove that she is owner of any other house. The claim of the petitioner in the instant case is that the portion in which she is keeping her residence alongwith her family members is too small and she required the premises in question for bona fide necessity. The portion has been very well shown in the site plan Ex.P1. Further, regarding the contention of the learned counsel for the respondent that Nikka Ram, who was also a tenant in the house in question has already left the tenanted portion in favour of the applicant and that the portion is sufficient for the needs of the applicant and his family, it cannot be asked to the applicant nor it appeals to the reasons that the Court may direct the applicant to keep her residence there particularly when the pleadings of the applicant are that the entire house is an old one and it also requires to be renovated. Furthermore, it is settled principle of law that a tenant cannot dictate the terms of the landlord for keeping his/her residence i.e. the respondent cannot ask the applicant that the portion which has been got vacated by her from Nikka Ram is sufficient for the applicant but it is seen by the applicant, whether the said portion is sufficient for her accommodation or not. The respondent cannot direct the applicant to keep her residence at a particular site but it is the landlord who is a master of his/her needs. Therefore, this contention of the learned counsel for the respondent has no substance. 24. Further, the learned counsel for the respondent has failed to adduce any evidence on the record so as to whether Takdir Singh son of the applicant is keeping his residence at Ludhiana or that her married daughter, who is having her matrimonial dispute with her husband is not residing with the applicant at Ferozepur. Furthermore, Prem Kumar who is a landlord of house No. 623, Housing Board Colony, Ferozepur has categorically deposed that the applicant has obtained the said house from him on rent at the rate of Rs. 600/- per month, probably because the accommodation already in the occupation of the applicant is insufficient. " 6. On appeal the matter was again examined by the appellate authority and the following findings were recorded: "10. The only point for consideration in the present case is as to whether the Ld.Rent Controller rightly held that the respondent needed the premises in dispute for her bona fide personal necessity and the findings of the Ld. Rent Controller on issue No. 3 are sustainable on the basis of facts and law established on file. At the very outset, the Ld. counsel for the appellant has argued that the Ld. Rent Controller erred in holding that the appellant failed to prove the ownership of two other houses of the respondent within the urban area of Ferozepur City as she wrongly ignored the extracts Ex.RW2/1 to RW2/3 from the house tax assessment register of the Municipal Council, Ferozepur in which Kishan Kaur (deceased), mother of the respondent, has been duly recorded as owner of two other houses No. DS/9/52 and DS 13/40 situated at Ferozepur. He has also referred to copy of application Ex.R-1 dated 21.4.2001 moved by the respondent to the SHO for getting the one of the aforesaid houses situated in Gali Nihanganwali, Ferozepur City vacated from Smt. Bhagwanti tenant. This according to the Ld. counsel for the appellant findings of the Ld. trial Court to the effect that the appellant failed to prove any document on record for proving the ownership of two other houses of the respondent within the area of Ferozepur City are liable to be set aside. This according to the Ld. counsel for the appellant findings of the Ld. trial Court to the effect that the appellant failed to prove any document on record for proving the ownership of two other houses of the respondent within the area of Ferozepur City are liable to be set aside. According to him, once the respondent is proved to be the owner of two more houses in the area of Ferozepur City, her need cannot be said to be bon afide and those houses are more suitable to the respondent if she want to reside with her family in bigger portion. The respondent has concealed the ownership of the aforesaid houses and, therefore, her need cannot be said to be bona fide. Although it is proved from entries of house tax register Ex.RW/2// and Ex.RW2/3 that there are two other houses No.DS-9/52 and DS-13/36 respectively in the urban area of Ferozepur City and the same are recorded to be ownership of Smt. Kishan Kaur mother of the respondent and this fact was also admitted by the respondent in her cross-examination that her mother (since deceased) was also owner of two other aforesaid residential houses in addition to the house in question and she is having two other sisters and the property owned by her mother was inherited by her alongwith her two other sisters but at the same time, she categorically deposed during her cross-examination that those two other houses were not in her possession and during her life time, the aforesaid two other houses were given by her mother to her two other sisters. In these circumstances, when the other two houses were given by the mother of the respondent to her other two daughters during her life time, if cannot be said that the respondent in any manner suppressed anything regarding the ownership of the aforesaid two houses at the time of filing of the petition. In these circumstances, when the other two houses were given by the mother of the respondent to her other two daughters during her life time, if cannot be said that the respondent in any manner suppressed anything regarding the ownership of the aforesaid two houses at the time of filing of the petition. Even if for the sake of arguments it is taken that the respondent is also having share in the aforesaid two houses left by her mother Kishan Kaur, the requirement regarding the demised premises cannot be said to be mala fide because it is admitted case of the appellant that those two houses are in occupation of other tenants Once those two houses were not occupied by the respondent at the time of filing of the petition there was no necessity for her to plead the ownership of these two houses. She was to plead only if the possession of the aforesaid two houses was with her. I do not find any force in the contention of the Ld. Counsel for the appellant that the respondent should have got vacated the other two houses from the other tenants as the said accommodation was more suitable for her. It is well settled that the landlord is the best judge of his residential requirement and has complete freedom in the matter. Neither the Court nor the tenant can dictate the terms to the landlord as to how and in what manner he should live and to prescribe him the residential standard. My this view is forfeited from the findings of the Honble Punjab and Haryana High Court in case titled "Krishan Lal, Nanda v. Madan Lal 1992 (2) Rent Control Reporter Page 104". In these circumstances even if the Ld. Rent Controller overlooked the aforesaid documentary evidence of the appellant regarding the proof of ownership of two other houses of the mother of the respondent, the same does not in any manner jeopardise the rights of the appellant in any manner. " 7. While dealing with another contention raised on behalf of the petitioner-tenant it was contended that since the landlady and her family members were already occupying another house within the area of Ferozepur City as tenants, one of the most important ingredients for seeking ejectment on the basis of personal necessity, is lacking. " 7. While dealing with another contention raised on behalf of the petitioner-tenant it was contended that since the landlady and her family members were already occupying another house within the area of Ferozepur City as tenants, one of the most important ingredients for seeking ejectment on the basis of personal necessity, is lacking. Reliance for this was placed on a judgment of this Court in Karnail Singh v. Vidya Devi reported as 1980 (1) R.C.R. 592. This argument has also been repelled by the appellate authority with the following observations: "I have considered the aforesaid submission of the Ld. Counsel for the appellant and have also gone through the findings of the Honble Punjab and Haryana High Court in Karnail Singhs case (supra). I have arrived at a conclusion that the contention of the Ld. Counsel for the appellant is without merit as the facts of the present case are totally different than the facts in Karnail Singhs case (supra). In Karnail Singh s case (supra), the landlord was already occupying the other premises on rent and under those circumstances, it was held that he could not eject the tenant for bona fide requirement because of his already occupying the residential building in the same urban area as tenant but in the present case, it is proved on record that at the time of filing of the present ejectment application, the respondent was not occupying the house No.663 in the urban area of Housing Board Colony, Ferozepur City for the residence of her other family members but the other house was acquired by her only during the pendency of the present petition and thus it cannot be said that the said house was occupied by her in her own right at the time of filing of the petition. It is proved from rent receipts Ex.PW.3/A to Ex.PW.3/B as well as from the copy of power of attorney Ex.PW.3/C that the said house was acquired by the husband and son of the respondent on 11.4.2K i.e. much earlier to the occupation of the said house. It is proved from rent receipts Ex.PW.3/A to Ex.PW.3/B as well as from the copy of power of attorney Ex.PW.3/C that the said house was acquired by the husband and son of the respondent on 11.4.2K i.e. much earlier to the occupation of the said house. Even otherwise at the time of filing replication, the respondent specifically pleaded that the said house occupied by the members of her family as tenants was also insufficient to accommodate them because the said house was not having any bathroom, kitchen, drawing room and guest room and the same was insufficient to accommodate seven members of her family. She further alleged that the said portion was on the first floor. It was observed by the Honble Punjab and Haryana High Court in Karnail Singhs case (supra) that if the other residential building in the occupation of the landlord was wholly insufficient for his needs then he can seek eviction of his tenant and in such like circumstances, it will be an exception to the rule made by the Honble Punjab and Haryana High Court in Karnail Singhs case (supra). In the present case, it is already proved on record by the respondent from the statement of AW.6 Dr. C.P. Bagri that her husband Baj Singh remained admitted to Civil Hospital, Ferozepur from 12.10.01 to 18.10.01 because of having acute asthama problem. It is also proved from the statement of the respondent as well as from the medical prescription slips Ex.D/1 to Ex.D/4 that Baj Singh husband of the respondent is continuously taking treatment regarding his asthama problem. He also proved to be a retired employee and his age is more than 60 years. Similarly it is proved from the statement of the respondent that she is also more than 65 years of age and she was also put on pain killers because of her knee pain. Thus, the aforesaid medical evidence on record is sufficient to hold that the respondent and her husband cannot live peacefully on the first floor of the building in their occupation which they acquired on rent after the institution of the present case and thus the respondent is able to prove that the said accommodation is not sufficient and viable for her and for the members of her family. In these circumstances, it is held that the occupation of another premises on rent by the members of the family of the respondent cannot be made the ground for holding that the premises in question are not required by her for her bona fide requirement in order to accommodate about 7 members of her family. It is proved from ration card Ex.PW. 7/A that the respondent is having 7 members of her family and, therefore, only one room on the first floor of the building in question and another room which she got vacated from another tenant are not sufficient for her and her family members and therefore the Ld. Rent Controller rightly held that the respondent required the premises in question for her bona fide necessity. The Ld. Rent Controller rightly observed that the appellant failed to rebut the evidence of the respondent that her son Takdeer Singh along with her family and her divorcee daughter are to be accommodated by her in the premises in question to accomplish her bona fide necessity. Although at the time of filing reply the appellant alleged that Takdeer Singh son of the respondent is residing at Ludhiana but there is not an iota of evidence from the side of the appellant to prove this fact and to rebut the overwhelming evidence of the respondent that in fact he is residing at Ferozepur and the respondent needs the premises for accommodating him, his family members, her husband and a divorcee daughter. " 8. Shri A.K.Chopra, learned senior counsel appearing on behalf of the petitioner has again reiterated the same arguments before me. He contends that in the facts and circumstances of this case, the petitioner could not have been evicted on the ground of personal necessity as the landlady had conceded the fact that she owned two other houses. He further states that once it was found that she was already occupying a residential house in the same city as a tenant she was not entitled to secure an eviction on the ground of personal necessity. 9. I am afraid I cannot agree with either of these two submissions. It has come in the evidence that firstly the other two houses are also in occupation of tenants. Secondly it is a settled principle of law that a tenant cannot dictate the terms to a landlord for keeping his/her residence. 9. I am afraid I cannot agree with either of these two submissions. It has come in the evidence that firstly the other two houses are also in occupation of tenants. Secondly it is a settled principle of law that a tenant cannot dictate the terms to a landlord for keeping his/her residence. The tenant can not direct the landlord/landlady to keep his/her residence at a particular site but it is the landlord/landlady who is the master of his/her needs. 10. Moreover the lower appellate Court has also taken note of the submissions made by the landlady in her cross-examination that the landlady is having two other sisters and the property was inherited by her along with her two sisters and during her life time her mother had given the two other houses to her two other sisters. 11. In view of what has been stated hereinabove, I am not inclined to accept this contention raised by Shri Chopra. 12. Regarding the second contention also it may be noted that the respondent had specifically pleaded that the first floor of the house under occupation of petitioner-tenant was totally insufficient to accommodate her family as it was not having any bathroom, kitchen, drawing room or guest-room. She stated that seven members of other family could not stay there. She further stated that the said portion was on the first floor and it was extremely difficult for her to climb to one first floor in view other medical condition. Therefore I am of the opinion that she had succeeded in showing that the present accommodation was completely insufficient for her needs. In Karnail Singhs case (supra), a Judgment relied upon by the petitioner - tenant itself this exception has been carved out to Section 13 (3) (a) (i) (b) by a Full Bench of this Court. The relevant observations of Karnail Singhs case are as hereunder: "As already noticed, an exception was provided by the Full Bench judgment of this Court in M/s Sant Ram Des Rajs case (supra) to the provisions of Section 13 (3) (a) (i) (b) of the Act where a landlord was held entitled to get eviction of his tenant provided he was able to show that the other residential building in his occupation was wholly insufficient for his needs. It is difficult to envisage hypothetically any other exception to the aforesaid provision and whenever suitable facts are brought out, such a question may arise for consideration. " 13. This is precisely the view taken by the appellate authority. I therefore find no ground to interfere with the same. Moreover, it has also been found from the rent receipts Ex.PW3/A and Ex.PW3/B as also the Power of Attorney that the house was acquired by the husband and the son of the respondent. For the reasons recorded above, the present petition is found to be without merits and is dismissed.