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2006 DIGILAW 3043 (PNJ)

Amar Nath v. Darbari Lal Garg Alias D. L. Garg

2006-07-28

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. This order will dispose of Civil Revision No. 4662 of 2003 and Civil Revision No. 4663 of 2003 as common questions of law are involved in both the petitions. 2. For deciding these Civil Revisions, the facts are taken from Civil Revision No. 4662 of 2003. 3. The landlord, a retired Chief Engineer (Design and Procurement) from Haryana State Electricity Board filed a petition seeking ejectment of the respondent from the shop in dispute situated at Barnala. 4. The stand of the respondent-landlord was that he was owner of a building comprising of three shops with a tripple storey building with four rooms, kitchen, bath, toilet, store and court-yard situated at Barnala. One of the said shops was in possession of the present petitioner on payment of Rs. 1,000/- per annum as rent besides house tax at the rate of Rs. 150/-. Initially, the shop was rented for one year and thereafter the petitioner became statutory tenant. 5. The tenant-Ramesh Kumar in Civil Revision No. 4663 of 2003 was in possession of another shop on the payment of Rs. 1,800/- per annum as rent beside this he was to pay house tax at the rate of 15% of the rent. The ejectment was sought on the following grounds :- "(a) That the respondent is in arrears of rent since October 1, 1996 and has not paid the same inspite of notice. (b) That the petitioner bona fide requires the shop in dispute for his own occupation for running his profession of consultancy in several branches of Engineering. (c) That the petitioner did not own or possess any other building suitable for starting his profession of consultancy in Engineering within the Municipal Limits of Barnala nor he has vacated any such building after enforcement of East Punjab Urban Rent Restriction Act." 6. It was also pleaded by the landlord that a registered notice was served on the respondent requesting him to vacate the shop in occupation as the landlord was to retire from service w.e.f. 30.11.1996 and that the landlord bona fide required the premises in dispute for his own occupation for starting his profession of consultancy in engineering but his tenant failed to vacate the premises and the present petition was brought. 7. 7. The claim of the landlord was contested by the tenant and on the pleadings of the parties following issues were framed :- 1. Whether the applicant required the premises in dispute for personal necessity ? OPA 2. Whether the application has been filed with mala fide intention to increase rent ? OPR 3. Whether the application is false, frivolous as such respondent is entitled to special costs to the tune of Rs. 5,000/- u/s 35A CPC ? OPR 4. Whether the application is not maintainable as mentioned in para No. 3 of the legal objection ? OPR 5. Whether the application does not contain principle of the Order 7 Rule 1(J) CPC, if so its effect ? OPR 6. Relief." 8. On an application made on 27.2.2001, additional issue No. 5-A was framed which reads as under :- Whether respondent is liable to pay house tax on rental value of property in dispute at the rate of 15% per annum ? OPA 9 Issue Nos. 1 and 2 were decided together and the learned Rent Controller decided these issues against the landlord. The operative part of the judgment reads as under :- "After considering above referred rulings and case law quoted by Mr. Pabbi, I am of considered view that for seeking ejectment of tenant from demised premises, petitioner has to prove that he has got basic element of need of the premises and his desire must be tested objectively and not subjectively. In order to ascertain whether petitioner actually requires the premises in dispute for his bona fide use and occupation, we have to look into evidence adduced by him and his conduct during the case. Origin of this petition is notice, copy of which has been proved on record by petitioner himself as Ex. A9. This notice was served by petitioner through his counsel Sh. K.M. Jauhar, Advocate Sangrur on 23.10.1996 and it has been mentioned in this notice that after retirement, petitioner is requiring accommodation for his residence and for starting his profession as an architect and also other allied business of Consultancy in several branches of Engineering. Both these businesses are totally different one, because work of architect is to prepare designs of buildings i.e. an architect is professor of building, who prepares plans and superintends work and is designer of complex structure. Work of Electric Engineer is quite a different one. Both these businesses are totally different one, because work of architect is to prepare designs of buildings i.e. an architect is professor of building, who prepares plans and superintends work and is designer of complex structure. Work of Electric Engineer is quite a different one. Thus at the time of service of this notice petitioner never intended to start his work of consultancy in several branches of Engineering as alleged in his petition. Had there been any grain of reality in his bona fide need, petitioner after his retirement should immediately shift from Hisar i.e. place of his retirement to Barnala, but as is evident from evidence produced by him on record, he instead of coming to Barnala, where he has got sufficient residential accommodation, preferred to settle at Sirsa. Petitioner in his cross-examination has clearly admitted that he is follower of Guru of Dera known as Sacha Sauda, Sirsa where he is residing in an accommodation provided to him by said Guru. He has further admitted in clear terms that he and his wife are fully devoted to said Guru and they do every thing after seeking guidance and orders of Guru. Other evidence brought on record by petitioner is clearly a created one. AW-2 Inspector Gurmukh Singh has been examined by petitioner to prove that he is residing at Barnala, where he has obtained a ration card. But perusal of statement of this witness reveals that this ration card was obtained by the petitioner much after filing of this petition i.e. on 5.3.1998. Similarly AW-3 Kuldip Singh has been examined by petitioner to prove that he has not installed telephone connection in the upper portion of demised premises. But this telephone connection has also been obtained by him on 23.12.1997 during pendency of the case, when he was leading his evidence. AW-4 Sital Kumar has been examined by petitioner to prove transfer of his gas connection from Sirsa to Barnala on 6.5.1998 and that is also a created evidence. From statements of all these witnesses, it is evident that petitioner had been preparing ration card, getting telephone connection and transfer of gas connection within a month or so before examining the witnesses in the Court, simply to create evidence in his favour to show that he is intending to settle at Barnala. From statements of all these witnesses, it is evident that petitioner had been preparing ration card, getting telephone connection and transfer of gas connection within a month or so before examining the witnesses in the Court, simply to create evidence in his favour to show that he is intending to settle at Barnala. Till 1998, petitioner has not attempted to get prepared his ration card or gas connection at Barnala and it appears that these documents have been created by him after consulting with someone to give a genuine look to his bona fide need. It has come in his own statement that his daughters are married and settled in houses of their in- laws, while his only son is settled at abroad and he along with his wife is serving in Dera known as Sacha Sauda at Sirsa. In the above facts and circumstances respondent cannot be ordered to be ejected from the property in dispute on the basis of law laid down in Sarla Ahuja v. United India Insurance Company Ltd. (supra) and Raj Kumar Khaitan v. Bibi Zubaida Khatun (supra), because of the reasons that in the case of Sarla Ahuja v. United India Insurance Company Ltd. (supra), petitioner was a widow lady and she was residing at Calcutta, when she filed ejectment application. She had required residential accommodation for her bona fide use and occupation belonging to her at New Delhi where United India Insurance Company Limited had set up its office. In the case in hand petitioner has got sufficient residential accommodation with him, but from his conduct it is amply established that he has never intended to settle in that portion of the building. Again in case of Raj Kumar Khaitan v. Bibi Zubaida Khatun (supra), petitioners-landlord had got the only property, which was subject matter of that case and they had got no means of livelihood and wanted to start their business in the tenanted premises. In the case in hand petitioner has been getting sufficient pension and his daughters are well settled in house of their in-laws and his son is settled at abroad. Otherwise, if petitioner really wants to start this business, he could do it in a better way in a place at Haryana, where he has spent his entire service life and might be having good report in the circle. Otherwise, if petitioner really wants to start this business, he could do it in a better way in a place at Haryana, where he has spent his entire service life and might be having good report in the circle. Thus all those circumstances lead me to the conclusion that there is no basic element of need in the desire of petitioner. Adjudging his requirement objectively, as per law laid down in S.J. Edenezer v. Velayudhan and others, 1998(1) RCR(Rent) 86 : 1998(1) All India Rent Control Journal 138, I hold that retirement of petitioner is not a bona fide, rather it is a mala fide. So both these issues are decided against petitioner and in favour of respondent." 10. Issue Nos. 3, 4 and 5 were decided in favour of the landlord-respondent as these were not pressed. Similarly, issue No. 5-A was also decided in favour of the landlord. 11. In view of the findings recorded on issue Nos. 1 and 2 the eviction petition was dismissed by the Rent Controller, Barnala. The landlord- respondent filed an appeal before the appellate authority, Sangrur challenging the order passed by the Rent Controller. The learned appellate authority reversed the finding of learned trial Court. 12. The appellate authority recorded a finding that there was no dispute about the fact that the landlord had retired as Chief Engineer from the Haryana State Electricity Board on superannuation on 30.12.1996. It was also found that the landlord had constructed the building at Barnala. On the ground floor of his building, there were three shops which were rented out to three different tenants including the present tenant. It was also found that he has made out his mind to do business of consultancy in engineering and accordingly asked the tenant to vacate the premises. The learned appellate authority noticed that it would not be open to the tenant to assess future needs of the landlord by alleging that he was never going to come and settle at Barnala as he was follower of Sacha Sauda and also on the ground that his children were well settled in life and they did not need any money nor the appellant needed any money as he had retired as Chief Engineer and was getting sufficient amount by way of pension. The learned appellate authority by following the well settled law that the landlord is a best judge of his own needs and is ultimate master to decide as to where and which property he wants to commence his business for profession of Consultancy in Engineering accepted this contention of the landlord. In order to reach this conclusion the appellate authority has placed reliance on the judgment of this Court 1997(1) Rent Controller Reporter 652 titled Dr. Hukam Chand Dhawan v. State of Punjab. It also placed reliance on the judgment of the Supreme Court in the case of Sarla Ahuja v. United India Insurance Company Ltd., 1998(2) RCR(Rent) 533 : 1998(2) Apex Court Journal 704 (SC) wherein in para 14 of the judgment it was observed as under :- "The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by the Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite necessary to make an endeavour as to how else the landlord could have adjusted himself." 13. Thus the learned appellate authority came to the conclusion that the landlord was the best judge of his requirement of accommodation as also to decide whether (where ?) he was to start his profession and business no body else was permitted to guide him. 14. The contention of the learned counsel was that so far as the landlord has not shifted to Barnala was also rightly repelled by the appellate authority by holding that the landlord was not aware as to when the shop would be vacated. No fault can be found by his not shifting to Barnala. 14. The contention of the learned counsel was that so far as the landlord has not shifted to Barnala was also rightly repelled by the appellate authority by holding that the landlord was not aware as to when the shop would be vacated. No fault can be found by his not shifting to Barnala. For this purpose, reliance was placed on judgment of the Honble Supreme Court in case of Raghunath G. Panhale (dead) by LRs v. M/s. Chaganlal Sunderji & Co., 1992(2) Apex Court Journal 630 (SC). 15. The learned appellate authority by placing reliance on 1999(1) Rent Control Reporter 514 (Delhi), Y.M. Sehgal v. K.V. Sachdeva rightly held that there was no requirement that landlord should firstly shift to the place where he intended to start business or profession then apply for eviction of the tenant from the shop. The learned appellate authority rejected the findings recorded by the learned Rent Controller by making following observation :- "When the contention of the learned counsel for respondent that landlord has not shifted from Sirsa to (Barnala is) seen in the light of the law laid down in the authority of the Honble Apex Court discussed above this contention ought to be discarded being meritless. Landlord can shift at any time to Barnala subject to his convenience as and when possession of the demised shops is delivered to him by the respondents. A perusal of the order of eviction passed by the learned Rent Controller shows that Rent Controller was of the view that landlord has to prove that he has got basic element of need of the premises and his desire must be tested objectively and not subjectively. Learned Rent Controller must have not been impressed by the evidence produced by the landlord in order to establish his bona fide need. It has been recorded in para No. 21 of the order by the learned Rent Controller that a notice Ex. A-9 was sent by the appellant to the respondent through his counsel Shri K.M. Jauhar Advocate on 23.10.1996 wherein it has been mentioned that after retirement appellant wants the accommodation for starting his profession as an architect and also other allied business of Consultancy in several branches of Engineering. A-9 was sent by the appellant to the respondent through his counsel Shri K.M. Jauhar Advocate on 23.10.1996 wherein it has been mentioned that after retirement appellant wants the accommodation for starting his profession as an architect and also other allied business of Consultancy in several branches of Engineering. According to the Rent Controller, both these businesses are totally different, because work of architect is to prepare designs of buildings i.e. an architect is professor of building, who prepares plans and superintends work and is designer of complex structures, whereas work of Electric Engineering is quite different one. Rent Controller was further of the view that at the time of service of notice appellant never intended to start profession of consultancy in Engineering, as alleged in his petition. The observations recorded by the Rent Controller are not only misconceived but are also misplaced. It is well settled proposition of law that a landlord is not bound to disclose the business or profession he intends to commence in a particular building, eviction of which is being sought by him. Learned Rent Controller has perhaps overlooked the law on this aspect. I deem it pertinent to cite 1995(1) Rent Control Reporter 495 wherein it has been held by Honble Mr. Justice Kuldip Singh and Honble Mr. Justice B.L. Hansaria of the Honble Apex Court in civil appeal titled as Raj Kumar Khaitan v. Bibi Zubaida Khatun in Para No. 3 of the judgment as follows :- "It is clear from the averments made in the above quoted paragraphs that the plaintiffs asserted that there was no other means of livelihood with them and as such they wanted to set up their own business in the premises in dispute. The High Court, however, came to the conclusion that apart from above quoted pleadings it was necessary to plead the nature of the business which the appellants-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated no body could bind the landlords to start the same business in the premises after it was vacated." Similar view has been taken by our own Honble High Court in 2001(1) Rent Control Reporter 434 wherein it has been held by Honble Mr. Justice J.S. Khehar in a civil revision titled as Kewal Krishan v. Amrik Singh that is not necessary that landlord should indicate precise nature of business in pleadings. His Lordship has relied on 1995(1) Rent Control Reporter 495 authority of the Honble Apex Court. When the observations of the learned Rent Controller are viewed in the light of the law laid down in the authorities discussed above, these observations ought to be overlooked and discarded. It has further been recorded by the Rent Controller that had there been any grain of reality in the bona fide need of the appellant he after his retirement should have immediately shifted from Hissar to Barnala but he instead of coming to Barnala, where he has got sufficient accommodation preferred to settle at Sirsa. Learned Rent Controller has further recorded that appellant who is follower of Sucha Sauda sect at Sirsa and is residing in an accommodation provided to him by the Guru has also admitted that he is devotee of the Guru and that they will do every thing after seeking guidance from the Guru. Once again it is not clear as to what learned Rent Controller wanted to conclude from the residing of the appellant at the Dera, where an accommodation was provided to him by the Sacha Sauda sect. It was not at all requirement of the law that appellant should have immediately shifted to Barnala after his retirement, when shops in which he intended to start profession of consultancy were not vacated by the respondent and other tenants, for which he has to file the eviction petitions. It was not at all requirement of the law that appellant should have immediately shifted to Barnala after his retirement, when shops in which he intended to start profession of consultancy were not vacated by the respondent and other tenants, for which he has to file the eviction petitions. Nothing prevents an individual to be follower of any sect or a devotee of any Guru because he being follower of any sect certainly does not disentitle or debar him from starting any business or profession of his choice, in the property, which he has constructed for his own use. I am impelled to record that appellant has not spent such a huge amount on the building constructed by him at Barnala so that present respondent may continue to occupy the same for ever by paying paltry sum of Rs. 1,000/- per annum. If the respondent seeks equity he must also do equity. Learned Rent Controller has also deprecated the acts of the appellant in preparing ration card, getting of gas connection at his Barnala residence and installation of a telephone. I once again fail to understand as to how installation of telephone connection or obtaining of gas connection and preparing of ration card are mala fide acts on the part of appellant, when he has clearly asserted in his testimony that he comes to Barnala every month for few days and stays in his house. It is clearly borne out from the testimony brought on record by the parties that appellant is waiting for his shops to be vacated and unless same are vacated, naturally he cannot start the "intended business" in these shops. The Rent Controller has clearly erred in arriving at a conclusion that need of the appellant in getting the three shops vacated is not a bona fide need and that eviction petition has been filed with a mala fide intention. Such a finding certainly cannot sustain in the eyes of law, for the simple reason that it has by now become a well settled proposition of law that landlord is the best judge of his needs and his need is always to be viewed from his angle and not from the view point of the tenant. I draw support from 2001(1) Rent Control Reporter 396, wherein it has been held by Honble Mr. Justice R.L. Anand in a civil revision titled as Dr. I draw support from 2001(1) Rent Control Reporter 396, wherein it has been held by Honble Mr. Justice R.L. Anand in a civil revision titled as Dr. J.S. Sodhi v. Mela Ram in para Nos. 30 and 31 of the judgment as follows :- Shri Sarin has invited my attention to 1998(9) JT 40, Magboolunisa v. Mohd. Saleha Quaraishi and submits that with the availability of the similar area of accommodation on the ground floor of SCO No. 810 the requirement of the landlord has to be fully met and therefore, the ejectment application should be dismissed. Moreover, the landlord has not amended the pleadings. The desire of a large shop by the landlord cannot be acquated (equated ?) with a genuine bona fide need. The judgment is distinguishable on facts. The case set up by the landlord was that the existing accommodation in his possession is not sufficient for him. He wants to establish his son also by handing over the possession of the existing premises to him and he wants to come to the new premises forming part of SCO No. 809-810. His Lordship has further held that in these circumstances, the need of the landlord has to be seen from his angle as I stated above. Reliance was also placed on 2000(1) RCR 354, Molar Mal v. M/s. Kay Iron Works. The facts of this case are also distinguishable. In the cited case the landlord got three plots through eviction proceedings during the pendency. In these circumstances, the Honble Supreme Court held that "the Courts can see to the subsequent events and if with the acquisition of the rented land the need of the landlord has been fully met then it cannot be said that his desire to get the demised premises was a bona fide one. There is no similarity of facts in the present case." His Lordship has also held that Rent Controller cannot sit over the decision of the landlord as it is for the landlord to decide as to whether he requires the demised premises for his personal necessity or not. The only rider on the decision of the landlord is that his need must be bona fide and not mala fide." 16. Learned counsel for the petitioner merely relied on the finding recorded by the Rent Controller to submit that the finding by the appellate authority cannot be sustained. The only rider on the decision of the landlord is that his need must be bona fide and not mala fide." 16. Learned counsel for the petitioner merely relied on the finding recorded by the Rent Controller to submit that the finding by the appellate authority cannot be sustained. The contention of the petitioner was that the learned appellate authority had failed to notice that it was merely the desire and not requirement of the landlord to shift to Barnala. The contention of learned counsel for the petitioner that once the respondent-landlord after retirement had shifted to Sirsa, there was no reason for him to shift to Barnala. The contention of the learned counsel for the petitioner was that the petition was mala fide and there was no need for eviction of the tenant. 17. I have considered these contentions and find that the same have been rightly answered by the appellate authority and no error can be found in the judgment recorded by the appellate authority. Thus, agreeing with the findings recorded by the appellate authority, I find no ground to interfere with the well reasoned judgment and dismiss the Civil Revision being without any merit. 18. However, the learned counsel for the petitioner thereafter requested that as it is a commercial building, he may be given some time to vacate the same. 19. The request is accepted, the petitioner is granted six months time to vacate the tenanted premises. However, it shall be subject to the following conditions :- 1. That the tenant will pay all the arrears of rent till date within one month from today. 2. He will continue to pay the rent in advance by 10th of each month during this period. 3. File an undertaking in this Honble Court within one month from today, that he will hand-over the vacant possession of the tenanted premises to the landlord on or before 31.1.2007.