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2006 DIGILAW 3318 (PNJ)

Harkirat Singh v. Hari Ram

2006-08-18

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. The present revision petition has been filed against the order dated 1.10.2002 passed by the Appellate Authority, Chandigarh vide which the appeal filed by the tenant-respondent herein against the order of ejectment by the Rent Controller was allowed and the application for ejectment filed by the landlord-petitioner herein was dismissed. 2. The petitioner had filed a petition under Section 13(3)(a) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the `Act) for putting him into possession of the two rooms along with kitchen, latrine and bathroom on the top floor and one room along with joint latrine and bathroom on the ground floor of House No. 3084, Sector 27-D, Chandigarh which was under the tenancy of the respondent, on the ground of bona fide requirement. 3. The case of the petitioner was that he was an owner of House No. 3084, Sector 27-D, Chandigarh which he had purchased from its previous owner Smt. Baljit Kaur vide registered sale-deed executed in November, 1991. The respondent was a tenant in the tenanted premises at a monthly rent of Rs. 1,200/- per month. It was claimed that the respondent had not paid the rent since November, 1991 since the time the petitioner purchased the said house from its previous owner. It was further alleged that out of total four rooms and kitchen on the ground floor, the petitioner was in possession of only one room, the possession of which was handed over by the previous owner. The rest of the rooms and kitchen was on rent with the respondent and one Smt. Neelam. It was also alleged that the latrine and bathroom were joint. 4. It was also the case of the petitioner that he was working as an Officer with the State Bank of India and his wife was a Lecturer in Government School near Chandigarh. Both the sons of the petitioner were studying in Chandigarh. Therefore one vacant room with the petitioner on the ground floor was not sufficient for his family consisting of his wife and children. It was further averred that as per family settlement between the petitioner and his brothers, the old mother of the petitioner was also residing with him. Both the sons of the petitioner were studying in Chandigarh. Therefore one vacant room with the petitioner on the ground floor was not sufficient for his family consisting of his wife and children. It was further averred that as per family settlement between the petitioner and his brothers, the old mother of the petitioner was also residing with him. The case of the petitioner was that due to lack of accommodation in the house of his in-laws in Sector 21-A, Chandigarh, it was very difficult for him to accommodate the mother along with his family. 5. It was also the case of the petitioner that his mother is a very old lady, who cannot go up-stairs and, therefore, he needed the accommodation on the ground floor. The petitioner required the entire accommodation on the ground that his brother also wishes to live with him at Chandigarh. It was also alleged in the petition that the respondent had sufficient accommodation on the top floor and was also using the ground floor to accommodate his distant relation. The petitioner further alleged that though the respondent assured him that he would vacate the accommodation on the ground floor when his house, which was under construction, was completed, but he has not done so. His further allegation was that his entire family was scattered for want of accommodation. It was also alleged that he was residing in a very small accommodation with his in-laws as a short-gap arrangement and the accommodation with his in-laws was also insufficient. 6. On notice, the respondent-tenant contested the ejectment petition and took a preliminary objection that the petition was false, frivolous and vexatious and the same was liable to be dismissed. It was claimed that the petition deserved to be dismissed on the ground of res judicata as the earlier petition filed by the petitioner was dismissed and the appeal filed by the petitioner also met the same fate. The rate of rent was denied and it was claimed that the rate of rent was Rs. 500/- and not Rs. 1,200/- as claimed by the petitioner. 7. It was the case of the respondent-tenant in the earlier rent petition the rate of rent was held to be Rs. 500/- and not Rs. 1,200/-. The rate of rent was denied and it was claimed that the rate of rent was Rs. 500/- and not Rs. 1,200/- as claimed by the petitioner. 7. It was the case of the respondent-tenant in the earlier rent petition the rate of rent was held to be Rs. 500/- and not Rs. 1,200/-. The respondent further stated that one room on the ground floor, three bed rooms, a kitchen, a bath room, latrine on the first floor of the house in question, were in occupation of the petitioner. It was further the case of the respondent that four rooms in occupation of the petitioner, were lying vacant as he wanted to sell the house after getting it vacated from all the tenants. It was also the case of the respondent that the wife of the petitioner was staying at Ferozepur. 8. On merits, the case of the respondent was that the four vacant rooms, kitchen and bath room in occupation of the petitioner was sufficient for domestic needs of the family members of the petitioner. It was claimed by the respondent that the petitioner has not disclosed the number of the house in which he was residing. It was also claimed by him that the petitioner was not living in Chandigarh and it was merely an excuse to get the house vacated so as to sell the house at a higher price. It was also denied that the brother of the petitioner wanted to live with him at Chandigarh. It was claimed by the respondent that he was in occupation of only one room on the ground floor and the remaining portion in his possession was the Barsati portion. He denied that he ever constructed house at Chandigarh. 9. In the replication, the allegations of the respondent were controverted. The learned Rent Controller on the basis of the pleadings of the parties framed the following issues :- "1. Whether the petitioner requires the disputed premises for the purpose of his bona fide possession ? OPP 2. Whether the petitioner has not come to the Court with clean hands ? OPR 3. Whether the petition is barred under Order 2 Rule (sic) Code of Civil Procedure ? 4. Relief." 10. Whether the petitioner requires the disputed premises for the purpose of his bona fide possession ? OPP 2. Whether the petitioner has not come to the Court with clean hands ? OPR 3. Whether the petition is barred under Order 2 Rule (sic) Code of Civil Procedure ? 4. Relief." 10. The learned Rent Controller on issue No. 1 came to the conclusion that the demised premises were bona fide required by the petitioner-landlord for his own use and occupation and accordingly ordered the ejectment of the petitioner. The learned Rent Controller also took note of the provisions of Section 13(3)(a) of the Act and rejected the contention of the respondent- tenant by observing as under :- "In so far as the contention of absence of pleading of ingredients of Section 13(3)(a) is concerned, the same cannot by itself be taken as ground to non- suit the petitioner otherwise also no ground has been taken to challenge the pleadings of the petitioner on this ground. Respondent could prove the factum of petitioner having occupying any other residential building in the urban area or vacating such a building without sufficient cause with a view to make the petitioner disentitled to the relief claimed but no iota of evidence in this respect has been brought on record." 11. The other issues were also decided in favour of the petitioner. Accordingly, the ejectment of the respondent was ordered from the tenanted premises. 12. The respondent-tenant filed an appeal before the Appellate Authority which was accepted on the ground that the petitioner-landlord had neither pleaded nor proved the fact that he has not been occupying any such premises or rented premises in the urban area concerned nor he has vacated any such premises or rented premises after coming into force of the Rent Act. Therefore, the learned Appellate Court while accepting the appeal observed as under :- "This point is thus proved on the record that the petitioner/landlord had neither pleaded nor proved the above referred points under Section 3(3) (a to c) of the Rent Act. The learned counsel for the landlord argued that this is only an irregularity which would not affect the merits of the case and even if it was not specially pleaded in the ejectment petition by landlord; it will not make much difference. The learned counsel for the landlord argued that this is only an irregularity which would not affect the merits of the case and even if it was not specially pleaded in the ejectment petition by landlord; it will not make much difference. The Full Bench of our own Honble High Court in Banke Ram v. Smt. Saraswati Devi reported in 1977 Rent Control Reporter Page 595 has laid down that it is necessary for the landlord to plead all the ingredients of the sub-clause (1) of Clause (a) of sub-section (3) of Section 13 of the Rent Act. Even the Honble Supreme Court has observed in Onkar Nath v. Ved Vyas reported in 1980(1) Rent Control Reporter Page 304 that were requirement of the ingredients under Section 13(3)(a)(a) of the Rent Act have not been pleaded and proved, filing of affidavit at a later stage of litigation is not adequate to meet the above requirement. It was observed by the apex Court that the statute benignly designed to protect tenant from unreasonable eviction has taken care to put restrictions which must be rigorously construed to fulfil the purpose of statute. The gist of the authority is that it is mandatory to plead and prove the ingredients by the landlord that he is not occupying any other residential building in the urban area concerned and he has not vacated such a building without sufficient cause, after the commencement of the Act. In the absence of the above ingredients both in pleadings and evidence, the necessity to occupy the demised premises by the landlord cannot be held to be bona fide. The Rent Controller fell into error in coming to the conclusion to the contrary. Undoubtedly, landlord is the master of his requirement and Rent Controller and tenant cannot dictate the terms to him to make an adjustment in any way not liked by the landlord. The landlord is best judge of his choice and there is no exception to it. Consequently, this Court has reached the conclusion that for want of mandatory requirement of Section 13(3)(a) of the Rent Act in pleading and proof, it cannot be held that the petitioner/landlord requires the demised premises for his personal use and occupation in bona fide way. The landlord is best judge of his choice and there is no exception to it. Consequently, this Court has reached the conclusion that for want of mandatory requirement of Section 13(3)(a) of the Rent Act in pleading and proof, it cannot be held that the petitioner/landlord requires the demised premises for his personal use and occupation in bona fide way. In view of the mandate of law laid down by Full Bench of our Honble High Court and the Honble Supreme Court as referred to above, the requirement as projected by the landlord in this case cannot be held to be bona fide, in as much as he has not proved the mandatory points in his pleadings and proof to the effect that he has not been occupying any other premises in the urban area concerned nor he has vacated any such premises after coming into force of Rent Act. The finding recorded by the learned Rent Controller, under issue No. 1 is thus unsustainable and the same is reversed in this appeal and issue No. 1 is decided against the petitioner/landlord accordingly. No other point was urged or pressed before this Court during the course of arguments by either of then parties." 13. Learned counsel for the petitioner has challenged these findings of the Appellate Authority by placing reliance on the judgment of this Court in Dr. J.S. Sodhi v. Mela Ram, 2001(2) RCR 396, wherein in para 18 it was observed as under :- "Now let us see what has been said by the landlord in his examination-in- chief. It is specifically stated by the landlord Shri Mela Ram that the premises are required by him for his personal necessity. He wants to shift his business from Booth No. 31, 32 to SCO Nos. 809-810 as the accommodation of those booths was insufficient for carrying on his business. Moreover, he wanted to settle his son independently in SCO No. 809-810. He further clarified that he has a godown at the back side of booth Nos. 31 and 32 for the purpose of keeping the goods and articles. He still maintained that he required the premises in question as the booths were not serving his well established business and moreover, he wanted to settle his son independently. With this specific statement made on oath by the landlord, nothing further requires to be done. 31 and 32 for the purpose of keeping the goods and articles. He still maintained that he required the premises in question as the booths were not serving his well established business and moreover, he wanted to settle his son independently. With this specific statement made on oath by the landlord, nothing further requires to be done. This is the opinion of this Court and it was so held in 1991(2) RCR(Rent) 117 (P&H) : 1991(2) Rent Control Reporter 163, Chander Mohan Mittal v. Behari Lal Gupta, in which it was held that landowner is not required to state in pleadings that he was not occupying any other house in urban area or that he had not vacated the same when these facts were clear from the ejectment application. Fortunately, for the landlord, in the present case, the pleadings are clear and specific and the statement of the landlord has corroborated the pleadings. In 2001(2) RCR 139, Shanti Mohan v. Krishna Devi, this Court held that in an application for eviction of tenant on the ground of bona fide requirement, the law Courts should not give too much stress on the pleadings of the parties which should be construed if those pleadings are coming from mofussil level. In the present case also, pleadings have been drafted by a lawyer of the headquarter of Chandigarh, therefore, a hyper-technical approach as suggested by the learned counsel for the petitioner-tenant cannot be taken." 14. The learned counsel for the petitioner also placed reliance on the judgment of this Court in Shanti Mohan v. Krishna Devi, 2001(2) RCR 139, wherein para 12 of the said judgment reads as under :- "A minute perusal of the evidence on the file shows that RW-1 Chaman Lal has stated in his cross-examination that it is correct that she is residing at Talwara in a rented house. He has also deposed that it is correct that Krishna Devi has no other house except the house in dispute any where throughout Punjab. He has also stated that it is correct that Krishna Devi has no other house except the house in dispute at Tanda. He has further deposed that the husband of the petitioner has died but he cannot tell the date of his death. He has further deposed that Krishna Devi has two sons who are also serving at Talwara. He has also stated that it is correct that Krishna Devi has no other house except the house in dispute at Tanda. He has further deposed that the husband of the petitioner has died but he cannot tell the date of his death. He has further deposed that Krishna Devi has two sons who are also serving at Talwara. RW-2 Amrik Singh Clerk, Municipal Committee, Tanda has also stated in his cross-examination that whenever they make an entry in the register about the rate of rent, they do so on the application of the landlady, but he has not brought the said application. All this evidence on the file shows that even if the lower Court has given finding that rate of rent was Rs. 30/-, the same cannot be said to be on the basis of the application of the landlady and the entry may have been made in the register just at the instance of the tenant. Besides this, RW-1 Chaman Lal has admitted that Krishna Devi has no other house at Tanda and she has not vacated any other house any where and in this manner, I have come to the conclusion that the lower Court has rightly held that the appellants/tenants are liable to be ejected on the ground of personal necessity of the respondents/landlady and I do not find any infirmity or illegality in the findings of the lower Court and the same are affirmed. In view of the facts and circumstances of the case, the citations referred to by the learned counsel for the appellants/tenants are not applicable to the facts of the present case while those referred to by the learned counsel for the respondent/landlady are applicable to the facts of the case. However, there being no merits in the appeal, the same is dismissed with no order as to costs." 15. It was lastly contended by the learned counsel for the petitioner that in case this Court comes to the conclusion that the ingredients of Section 13(3)(a)(i) were not fulfilled then, he should be allowed to amend the rent petition. However, there being no merits in the appeal, the same is dismissed with no order as to costs." 15. It was lastly contended by the learned counsel for the petitioner that in case this Court comes to the conclusion that the ingredients of Section 13(3)(a)(i) were not fulfilled then, he should be allowed to amend the rent petition. In order to appreciate the contention of the learned counsel for the petitioner, it would be relevant to read paras 4 and 7 of the amended rent petition, which reads as under :- "Para 4 : That out of total four rooms and kitchen on the ground floor, petitioner is in the possession of only one room possession of which was delivered to him by previous landlord. Rest of the three rooms and kitchen is on the rent with the respondent and one Smt. Neelam. However, latrine and both room are joint. Para 7 : That since one room vacant with the petitioner on the ground floor is not sufficient for his family, petitioner along with his family is staying with his in-laws at Sector 21-A, Chandigarh as temporary settlement, he is also searching for rental accommodation since accommodation at his in-laws house is not sufficient as compared to the persons living there besides this petitioner does not want to stay for a longer period with his in-laws." 16. The reading of these two paras with the evidence led by the parties would show that the ingredients of Section 13(3)(a)(i) of the Act were fully satisfied. As regards bona fide requirement on merit was concerned, the learned Rent Controller keeping in view the status and position of the family members of the petitioner had rightly come to the conclusion that the demised premises was bona fide required by the petitioner. The learned Appellate Authority had not reversed the said finding, but allowed the appeal of the tenant on a technical ground that ingredients of Section 13(3)(a)(i) have not been pleaded or proved. 17. In view of the law laid down by this Court in the cases of M/s. Jeet Enterprises v. Gurnam Singh, 2001(2) RCR 138 and Dr. J.S. Sodhis case (supra) and in view of pleadings in paras 4 and 7 of the amended rent petition read with evidence led by the petitioner, the findings recorded by the lower Appellate Court cannot be sustained. J.S. Sodhis case (supra) and in view of pleadings in paras 4 and 7 of the amended rent petition read with evidence led by the petitioner, the findings recorded by the lower Appellate Court cannot be sustained. Accordingly, this revision petition is accepted, the order passed by the lower Appellate Court is set aside and that of the learned Rent Controller is restored with no order as to costs.