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2007 DIGILAW 374 (PNJ)

Ramji Lal v. Devi Dayal

2007-03-08

RAJIVE BHALLA

body2007
Judgment Rajive Bhalla, J. 1. This revision, filed by a tenant impugns the judgments of the Appellate Authority, Bhiwani dated 20.1.1994, whereby the judgment of the Rent Controller dated 16.1.1992, dismissing the petition for ejectment, was reversed. 2. The respondent herein, filed a petition for ejectment of the petitioner, pleading various grounds. The only grounds that survive for consideration are whether the premises in dispute are residential/ non residential and whether the Appellate authority was right in directing the petitioners ejectment on the plea of personal necessity. 3. Admittedly, the petitioner is a tenant in a shop located in a residential building. The respondent landlord, prayed for ejectment, citing his personal necessity and basing his plea in respect thereof, on the ground that his family of four, including his wife and three children were residing in a single room and one store behind the shop. It was pleaded that this property was insufficient to meet their needs and, therefore, the petitioner be ejected from the premises occupied by him. The aforementioned plea was opposed by the petitioner by alleging that the building was non-residential, as he was a tenant in the shop. The shop was rented out to him by the previous landlord. It was also asserted that the sale deed, whereby the respondent purchased the property in dispute, referred to the premises, as a shop and, therefore, the right to seek ejectment, on the ground of personal necessity, was not available to the respondent. 4. After framing issues and permitting the parties to lead evidence, the learned Rent Controller dismissed the petition for ejectment. It was held that the premises in dispute was residential and the plea for ejectment on the ground of personal necessity was not bona fide. 5. Aggrieved by the aforementioned order, the respondent herein, preferred an appeal. The petitioner, aggrieved by the finding that the premises were residential, impugned the said finding by way of cross objections. The appellate authority, vide judgment dated 20.1.1994, accepted the appeal, filed by the respondent landlord. The findings of the trial Court on the nature of the building were affirmed. The first appellate Court proceeded to reverse the finding of the trial Court on the ground of personal necessity and ordered ejectment of the petitioner. 6. Counsel for the petitioner contents that the learned Courts below erred in returning a finding that the building is residential. The findings of the trial Court on the nature of the building were affirmed. The first appellate Court proceeded to reverse the finding of the trial Court on the ground of personal necessity and ordered ejectment of the petitioner. 6. Counsel for the petitioner contents that the learned Courts below erred in returning a finding that the building is residential. It is contented the alleged shop was leased out to the petitioner for commercial purposes. The sale deed, whereby the respondent purchased the building refers to the demised premises as a shop. The report submitted by the Local Commissioner, reveals that the shop has no access to the residential portion, at the back of the shop. It is also contended that a large number of shops exist in the locality, more particularly a shop being run by the respondents father. It is prayed that in view of the aforementioned facts, the findings of the Courts below as regards the nature of the building be reversed. In so far as the plea of personal necessity, it is contended that the first appellate Court, failed to refer to any evidence or discuss any of the contentions raised. It merely reversed the findings by holding that the bona fide need of the landlord cannot be impeached by a tenant. The order is non speaking and, therefore, perverse and should consequently be set aside. On merits, it is contended that the landlord, as is apparent from the evidence on record, resided with his father in the adjoining house. His family member also resided in the said house. The landlords wife owns another residential building and is in possession thereof. The landlord is joint in mess and residence with his father, a fact, evidenced by a joint ration card, with his father. It is contended that these facts are indicative of the mala fides of the plea of necessity and the mere fact that a landlord has raised a plea of necessity, would not bar a Court from examining the veracity and bona fides thereof. 7. Counsel for the respondent landlord, however, contends that the findings of fact recorded by the Rent Controller, as also the learned appellate authority, as regards the nature of the building cannot be reversed in revisional jurisdiction. 7. Counsel for the respondent landlord, however, contends that the findings of fact recorded by the Rent Controller, as also the learned appellate authority, as regards the nature of the building cannot be reversed in revisional jurisdiction. It is contended that as no illegality, perversity, or error of law or jurisdiction has been urged, much less pointed out by the petitioner, the said findings be affirmed. It is also contended that mere user of the small part of the building, does not alter the nature of the building. If a small part of the residential building is used for commercial purposes, the nature of the building cannot be said to have been altered. The findings returned by the Rent Controller and as affirmed by the Appellate Authority, do not call for any interference. As regards the finding of bona fide personal necessity, it is urged that once a landlord establishes a prima facie bona fide need, his assessment of his requirement should be generally accepted. A landlord is the best judge of his requirements and whereby prima facie, evidence establishes a bona fide legal necessity, the plea should be accepted. It is contended that the petitioner, while opposing the plea of bona fide need, failed to produce any evidence that would suggest that the respondent was in possession of sufficient residential accommodation "in his own right". Even if it is accepted that the respondent was residing with his father or that his wife was owner of another residential building, the petitioner was required to establish by cogent evidence that the respondent was in possession of the aforementioned properties in his own right and the plea for ejectment was a falsehood. 8. It is, therefore, prayed that as the finding returned by the appellate Court does not suffer from any error of jurisdiction or error of law, the present petition be dismissed. 9. I have heard learned Counsel for the parties and perused the paper book. 10. Revisional jurisdictional, unlike jurisdiction of an appellate Court, is confined to appraisal of the impugned judgments and decrees to discern any error of jurisdiction or infraction of law. The impugned judgment, must disclose an illegal assumption of jurisdiction or failure to discharge jurisdiction conferred by law, leading to a miscarriage of justice. 10. Revisional jurisdictional, unlike jurisdiction of an appellate Court, is confined to appraisal of the impugned judgments and decrees to discern any error of jurisdiction or infraction of law. The impugned judgment, must disclose an illegal assumption of jurisdiction or failure to discharge jurisdiction conferred by law, leading to a miscarriage of justice. As noticed herein before, both Courts, namely, the Rent Controller as also the Appellate Authority, upon an appraisal of the evidence, adduced by the parties, returned a finding of fact that the premises in dispute were residential. Counsel for the petitioner has failed to impugn the correctness of the aforementioned findings or to point out any illegality, perversity or error of jurisdiction in the aforementioned findings. The mere fact that a small portion of a residential building was let out as a shop, by the respondents -vendor, in my considered opinion, would be insufficient to alter the residential nature of the building. Even otherwise, as the aforementioned findings do not suffer from any error or law, no interference is called for. 11. As regards the findings returned by the Appellate Authority, on the question of personal necessity, it is true that the first appellate Court has not referred to the evidence in any degree of detail. It proceeded to hold that the bona fide need of a landlord could not be impeached by a tenant and then proceeded to hold that as the necessity was bona fide, the landlords plea for ejectment should be accepted. Normally, this Court should have remanded the matter, to enable the Appellate Authority to opine in greater detail as regards the question of bona fide necessity, but in view of the fact that the ejectment application was filed as far back as 1986 and the revision has been pending since the year 1994, I have proceeded to examine the matter in detail. 12. The learned Rent Controller declined to accept the plea of personal necessity by holding that the respondent landlord had admitted that his sisters were married, his mother had expired, his father was all alone and he had a joint ration card with his father. It was also held that his father was owner in possession of the adjoining building, which had three or four rooms and that he was working with his father. It was also held that his father was owner in possession of the adjoining building, which had three or four rooms and that he was working with his father. It was also noticed that the respondent had purchased the property three/four months, prior to filing of the ejectment petition. Another factor, which appears to have impressed the Rent Controller was, that a passage had been opened between the house owned by the respondents father and a part of the premises in possession of the landlord. On these facts, the Rent Controller concluded that the respondent was residing in an adjoining building owned by his father. Another circumstance, relied upon by the Rent Controller, was that the respondents wife owned another building. I am afraid that in the facts and circumstances of the present case, the aforementioned facts, were insufficient to hold that the necessity pleaded by the landlord was mala fide. Accepting the aforementioned facts as true, mere residence with his father would not render the plea of necessity mala fide. The landlord, would be residing with his father, as a mere licensee, a right so tenuous as to be negligible and in no manner sufficient to hold that the landlord was in possession of premises, other than the demised premises "in his own right". The tenant was required to establish, by cogent evidence that the landlord was in possession of sufficient accommodation, "in his own right" and that those premises were sufficient to fulfill his needs. No such evidence is available on record. The fact that the landlord had a joint ration card with his father or that a wall had been opened between the two premises would not detract from the bona-fides of the plea of personal necessity. Admittedly, the landlord was neither in possession nor the owner of any premises, other than the demised premises. It is not denied that the demised premises consists of one room, a store and the shop, ejectment wherefrom has been sought. The landlords family consists of his wife and three children. He would obviously require more accommodation than the single room and store, admittedly, in his possession. Simply because his father or his wife owns other property, would be insufficient to hold, that the necessity was mala fide. The fact that the landlord purchased the. premises, a few months before he filed the ejectment petition, is irrelevant. He would obviously require more accommodation than the single room and store, admittedly, in his possession. Simply because his father or his wife owns other property, would be insufficient to hold, that the necessity was mala fide. The fact that the landlord purchased the. premises, a few months before he filed the ejectment petition, is irrelevant. The landlords assessment of his necessity cannot be faulted. No circumstances has been brought to notice, as would enable this Court to hold otherwise. The order of the first appellate Court, through deficient as regards detailed findings, does not call for interference. Consequently, as there is no merit in the present revision petition, the same is dismissed. However, as the tenant is running a shop in the premises, he is granted six months time, to vacate the premises in dispute, subject to his filing an undertaking to handover possession of the same to the landlord on the expiry of his six months and to continue to pay the rent as agreed between the parties. 13. Copy of this order be given dasti on payment of usual charges.