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2006 DIGILAW 3032 (PNJ)

Chaman Lal v. Ramesh Chander

2006-07-27

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. This revision petition has been filed against the order of ejectment passed against the petitioner by the learned Rent Controller, Jalandhar vide his order dated 4.10.2004 and affirmed by the Appellate Authority on 7.4.2006. 2. The respondent-landlord had filed a suit for ejectment of the petitioner and respondent No. 2 herein from the tenanted shop on the following grounds :- "(i) The respondent No. 1 has sublet the premises in dispute to respondent No. 2 for consideration and without written consent of the petitioner. (ii) The respondent No. 2 has been doing the work of `Rafugiri in the shop in dispute and he has also been selling the shawls in the shop in dispute. The respondent No. 2 is in exclusive control of the portion shop in dispute. (iii) The respondent No. 1 has made material additions and alterations in the shop in dispute thereby diminishing the value and utility of the same. Earlier there was a `Varandha in front of the shop, but the respondent No. 1 has merged the said `Varandha in the shop by raising on both the sides of the `thara. The shop with the `Varandha was having much more value and utility. (iv) The petitioner requires the shop in dispute for his own use and occupation for starting his own business. Earlier the petitioner had been running a `dairy in mohalla No. 31 in the tenanted premises. However, the petitioner had to close down his business as Cantt. Board had passed a resolution to shift the dairies outside the civil area of Cantt. The petitioner has further alleged that he has not been occupying any other non- residential building for starting his business nor he has vacated any building without any sufficient cause. The petitioner has further alleged that his son was running the business of general merchant in the shop No. 1 in Mohalla No. 27 of Jalandhar Cantt. But later on his son had joined the service. The petitioner could not carry on both the business i.e. dairy and the shop, as such; the said shop was closed by the petitioner. The said shop was converted into two small shops which were rented out to M/s. R.K. Tailors and a painter. However, the petitionr had to close down his dairy business in pursuance of resolution passed by the Cantt. Board. The said shop was converted into two small shops which were rented out to M/s. R.K. Tailors and a painter. However, the petitionr had to close down his dairy business in pursuance of resolution passed by the Cantt. Board. Now the petitioner is without any work for the last about two years. The shop in dispute is suitable for starting a general store, as it is a corner shop. The petitioner requires the said shop for starting his own business." 3. The petitioner-tenant contested the petition and tendered the arrears of rent w.e.f. 1.9.2000 to 30.11.2000 along with interest and costs and raised a plea that rent up to August, 2000 had already been paid to the petitioner. The allegation of sub-letting was denied and it was claimed that he was running a Dry-cleaning shop and he engages a darner as and when he feels any necessity for darning garments if desired by the customer. He also denied the fact of personal necessity as pleaded by landlord-respondent. 4. The learned Rent Controller held the tender to be short and in view of the judgment of Honble Supreme Court in Rakesh Wadhawan and others v. M/s. Jagdamba Industrial Corporation and others, 2002(1) RCR(Rent) 514 : AIR 2002 SC 2004 directed the petitioner to make payment of Rs. 740/- to the petitioner within a period of 30 days. This was done by the petitioner therefore, the ground of ejectment on account of non-payment of rent was held to be not available to the respondent-landlord. 5. Issue No. 2 regarding sub-letting was decided in favour of the petitioner- tenant. 6. On issue No. 3 also it was held that there was no impairment to the value and utility of the shop. Issue Nos. 5, 6 and 7 were decided against the tenant. However, on issue No. 4, the learned Rent Controller held the need of respondent-landlord to be bona fide and ordered the ejectment of the petitioner from the shop in dispute. The petitioner challenged the order of ejectment before the Appellate Authority wherein the finding of the learned Rent Controller that the petitioner was in arrears of rent was reversed and it was directed that a sum of Rs. 740/- deposited by the petitioner would be adjusted in future rent. However, the finding on bona fide requirement was maintained and accordingly the appeal was dismissed. 7. Mr. 740/- deposited by the petitioner would be adjusted in future rent. However, the finding on bona fide requirement was maintained and accordingly the appeal was dismissed. 7. Mr. Arun Jain, learned counsel for the petitioner challenged the finding of the learned Courts below on issue No. 4 on the plea that the case set up by the respondent-landlord was that he closed his dairy business in October, 1995 and thereafter he was not doing anything. This statement coupled with the fact that he had not been believed on the question of rate of rent, should be sufficient to hold that need of the landlord was not bona fide. 8. Learned counsel for the petitioner further contended that the landlord in his statement had admitted the fact that he had rented out the shops to the tenants who were in possession for the last 15, 6 and 5 years. Thus, according to the learned counsel for the petitioner the very fact that one of the tenants was inducted about 5 years back would show that after closing the business of dairy farm in 1995 he has let out the premises to the tenant and therefore, his need cannot be held to be bona fide. 9. Mr. Puneet Jindal, learned counsel appearing for the respondent-landlord contended that the learned Rent Controller as well as the Appellate Authority on appreciation of evidence had held the need of the landlord to be bona fide. This being a question of fact was not open to challenge in this Court in exercise of revisional jurisdiction. 10. Learned counsel for the respondent on merit contended that the petitioner in his cross-examination has categorically admitted that one shop which was in occupation of the son of the respondent-landlord was closed in the year 1993 when he had joined the Government Service. The said shop was converted into two shops and rented out to the tenants. The contention of the learned counsel for the respondent, therefore, is that in view of the admission made by the tenant the inference being drawn by the petitioner was totally misconceived. The tenant in his cross-examination clearly admitted that the said shops were rented out to the tenants in the year 1993 i.e. before the closure of dairy business. 11. The contention of the learned counsel for the respondent, therefore, is that in view of the admission made by the tenant the inference being drawn by the petitioner was totally misconceived. The tenant in his cross-examination clearly admitted that the said shops were rented out to the tenants in the year 1993 i.e. before the closure of dairy business. 11. I have considered the arguments raised the learned counsel for the parties and have gone through the record and find that there is not any dispute that the landlord had closed his business due to the resolution of the Cantonment Board ordering the closure of the dairy business within the municipal area and therefore, the respondent-landlord had no option but to close the business. Further no fault can be found with the landlord not starting his business immediately after closure of diary business in 1995. It is for the landlord to decide as to when and how he has to start business and no adverse inference can be drawn on this account. 12. The next contention of the learned counsel for the petitioner that need was not bona fide in view of the fact that certain shops were rented out by respondent-landlord to other tenants can also not be accepted, in view of the admission made by the tenant in the cross-examination that one shop held by the son of the landlord was converted into 2 shops and rented out to other tenants when his son closed the business. 13. Thus, there is no ground to interfere with the concurrent finding recorded by the learned Courts below holding that the need of the respondent-landlord was bona fide. Accordingly, finding no merit in the present revision petition the same is dismissed. 14. However, keeping in view the fact that the petitioner is running a commercial business, he is granted 3 months time to vacate the demised premises. However, this would be subject to the condition that the petitioner will file undertaking by way of an affidavit in this Court within one month to the effect that he would clear all the arrears of rent and continue paying the rent in advance by 10th of each month during this period.