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2007 DIGILAW 874 (PNJ)

J. S. Khorana v. Rajesh Chaudhary

2007-04-17

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - The petitioner is owner and landlord of House No. 289, Sector 10, Chandigarh, which has two portions, one is known as Northern Collage, which is situated on the right side of the plot and another is on the Western Collage which is situated on the left side of the plot. The premises known as Northern Collage is towards House No. 290, Sector 10, Chandigarh and is in possession of respondent at a monthly rent of Rs. 250/-. The family of the petitioner consists of himself, two sons and two married daughters. The sons of the petitioners are running their business at Jammu. One of the sons of the petitioner Shri H.S. Khorana is dealing in selling of furniture and furnishing accessories etc. at Jammu. It was claimed that in view of the present circumstances in the State of Jammu & Kashmir, the son of the petitioner wanted to shift the entire business along with his family to Chandigarh. It was further claimed that he was maintaining his links in Punjab and Haryana and even otherwise because of the adequate education and medical facilities at Chandigarh, the son of the petitioner wanted to shift to Chandigarh. His one daughter is married and the other daughter, who is aged 19 years, was studying in B.A. and one son was studying in 6th class. His brother along with his family were said to be settled in other house and was having good business around Chandigarh. It was also claimed that once the business was established/settled, the entire family was going to shift to Chandigarh slowly. The petitioner and his family members have no other house in their possession as owner within the urban area of Chandigarh. The petition was, therefore, filed for eviction of the respondent-tenant on the ground of personal bonafide need. It was also claimed that the petitioners son has already opened an office for starting his business from portion of House No. 35, Sector 5, Chandigarh. It was also mentioned in the petition that earlier a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) was filed by the petitioner on the ground of personal necessity, but the said petition was dismissed for non-production of medical evidence. It was also mentioned in the petition that earlier a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) was filed by the petitioner on the ground of personal necessity, but the said petition was dismissed for non-production of medical evidence. It was further claimed that the present requirement of the petitioner was subsequent and recent and that too on account of requirement of his son. It was alleged in the petition that the respondent never paid the rent in time and was said to be in arrears of rent from 1.1.1987 to 31.5.1988. It was further claimed that the rent was paid in Court only for 12 months and therefore, the tenant was liable to be evicted on this ground also. 2. It was also pleaded that the petitioner has not vacated any residential premises without sufficient cause after commencement of the Rent Act and does not own any residential house in Chandigarh. It would be relevant to reproduce the pleadings qua personal necessity which read as under :- "5. That keeping in view the present circumstances in Jammu & Kashmir the son of the petitioner wants to shift the entire business along with family to Chandigarh. He is already maintaining his business contacts in Punjab and Chandigarh, even otherwise because of the good education and medical facilities at Chandigarh the son of the petitioner wants to shift to Chandigarh along with his business. The son of the petitioner is having one married daughter, one daughter aged 19 years studying in B.A. and one son who is school going and is studying in 6th class. The brother and his family in other house is settled, who is already having good business around Chandigarh, then the entire family is going to shift slowly, so that the business is not affected immediately. The petitioner and his family members i.e. sons etc. have no other house in possession as owner or otherwise within the urban read of Chandigarh, therefore, the petitioner requires the present premises for their personal use and occupation for immediately shifting the residence and the business. 6. That the petitioners son have already opened one office initially for starting their business from a portion of House No. 35, Sector 5, Chandigarh. 7. 6. That the petitioners son have already opened one office initially for starting their business from a portion of House No. 35, Sector 5, Chandigarh. 7. That previously also a petition under Section 13 was filed on the ground of personal necessity of the petitioner himself, but on account of the non- production of the doctor the said petition was dismissed in the year 1987. However, the present petition has nothing to do with the outcome of the result of the said petition. The present requirement of the petitioner is subsequent and recent that too on account of the requirement of the son of the petitioner." 3. The petition was contested by the respondent-tenant by raising a preliminary objection that the petitioner had earlier instituted an eviction petition for ejectment of the respondent on 24th July, 1985 and the same was dismissed on 27th of July, 1987. The other petition instituted on 24th of February, 1988 was dismissed on 10th of December, 1992. It was claimed that earlier petitions on the ground of personal necessity stood dismissed. The present petition being barred was not maintainable. The present petition was said to be mala fide and was alleged to have been instituted to pressurize the respondent to increase the rent. It was further claimed that the premises was not required by the petitioner for his personal use and occupation. However, the relationship of landlord and tenant as well as description of the property was admitted. The factum of Shri H.S. Khorana having business of furnishing accessories at Jammu was admitted and it was claimed that he was permanently settled and was not dependent on the petitioner. It was also claimed that the petitioner along his sons was having huge property in Jammu and further the petitioner had not taken any steps to shift his business to Chandigarh. 4. It was also the case of the respondent that the other portion i.e. Western Cottage was also having similar accommodation which is in occupation of the other tenant, but no petition was filed against him. The factum of the business of his brother Shri D.K. Khorana in or around Chandigarh was denied. It was also the case of the respondent that the entire rent along with costs and interest was paid on the first date of hearing. The counter claim for recovery of excess rent was filed. 5. The factum of the business of his brother Shri D.K. Khorana in or around Chandigarh was denied. It was also the case of the respondent that the entire rent along with costs and interest was paid on the first date of hearing. The counter claim for recovery of excess rent was filed. 5. The replication was filed by the petitioner, wherein the averments made in the petition were reiterated. On the pleadings of the parties, following issues were framed :- "1. Whether the respondent is in arrears of rent ? OPP 2. Whether the premises is required by petitioner for his bonafide requirement ? OPP 3. Relief." 6. It is pertinent to mention here that after the institution of the petition, Shri H.S. Khorana died and his business was inherited by his widow. The petitioner appeared as PW-1 and reiterated his version in the petition. He also examined his son Daljit Singh as PW-2, who also supported the averments made in the said petition. It was claimed that the office opened in House No. 35, Sector 5, Chandigarh, was closed temporarily due to the death of his brother. The partnership-deed was also placed on record as also the copy of the subsequent partnership-deed with the wife of his deceased brother. After producing certain bills, the evidence was closed. 7. The respondent, on the other hand, examined Shri Paramvir, the other tenant in the Western Cottage, who stated that the petitioner and his family are well settled in Jammu. Shri Anil Kumar, who was examined as RW-2, stated that no office was opened in House No. 35, Sector 5, Chandigarh. The tenant- respondent herself appeared as RW-3 and reiterated her version as given in the written statement. She also produced on record copies of judgments dated 27.7.1987 and 10.12.1992. 8. The learned Rent Controller on issue No. 2 held that the need put up by the landlord was bonafide and could not be termed as mala fide. It was noticed that the death of the petitioners son could not disentitle him for claiming eviction of the tenant because he wanted to shift to his own house due to disturbed conditions at Jammu. A judicial notice of the fact was also taken that the persons wanted to Shift from Jammu & Kashmir due to disturbed conditions. It was noticed that the death of the petitioners son could not disentitle him for claiming eviction of the tenant because he wanted to shift to his own house due to disturbed conditions at Jammu. A judicial notice of the fact was also taken that the persons wanted to Shift from Jammu & Kashmir due to disturbed conditions. The learned Rent Controller also came to the conclusion that the subsequent petition on different facts was maintainable and the dismissal of the earlier petitions could not be treated to be a bar for ordering eviction of the respondent-tenant. 9. The respondent-tenant filed an appeal before the Appellate Authority. The learned Appellate Authority relied upon the judgment of the Honble Supreme Court in the case of Sri Kempaiah v. Lingaiah, 2002(1) RCR 532 to non-suit the petitioner, wherein the Honble Supreme Court has been pleased to lay down that the requirement implies something more than a mere wish or impulse or desire on the part of the landlord. The Honble Supreme Court has noticed that although the element of need is present in both the cases, the real distinction between desire and require lies in the insistence of the need and an element of must have in the case of require which is not present in the case of mere desire. The learned Appellate Authority further placed reliance on another judgment of the Honble Supreme Court in the case titled as Rattan Chand Jain v. Charan Singh, 1978(1) RCR 265 to come to the conclusion that the statement of the landlord regarding personal requirement should ordinarily be accepted was no longer a correct view. The statement of landlord could not be accepted unless there was an element of need. The reliance was also placed on the judgment in the case titled as Mukhtiar Singh v. Atma Singh Berar, 1999(2) RCR 121. However, the said judgment stands reversed. The Appellate Authority thus came to the conclusion that in the present case it was mere desire of the petitioner to shift to Chandigarh and there was no element of need and, therefore, held that the need of the petitioner was not bonafide. 10. The learned Appellate Authority also took into consideration the factum of death of Shri H.S. Khorana for whose need the eviction was sought. 10. The learned Appellate Authority also took into consideration the factum of death of Shri H.S. Khorana for whose need the eviction was sought. The evidence with regard to the need of shifting the family to Chandigarh was not accepted by the learned Appellate Authority on the plea that there was no such pleading to this effect. As such the said evidence could not looked into. The Appellate Authority also came to the conclusion that mere disturbed conditions could not be a ground for shifting to Chandigarh and therefore, reversed the findings of the learned Rent Controller on issue No. 2. In coming to this conclusion, the other fact which was taken note of was that the petitioner had not taken a specific plea that he himself wanted to shift to Chandigarh from Jammu and therefore on account of death of Shri H.S. Khorana, it could not be said that the need of the petitioner was bonafide. 11. Finally, the learned Appellate Authority recorded a finding that need of the petitioner was not genuine or bonafide and accordingly dismissed the rent petition by allowing the tenants appeal. 12. Mr. M.L. Sarin, learned senior Counsel appearing on behalf of the petitioner vehemently contended that the Appellate Authority was wrong in coming to the conclusion that there was no pleading with regard to disturbed conditions and need of the landlord. Learned Senior Counsel made reference to para 5 of the petition, wherein it has been specifically pleaded that due to present circumstances in Jammu & Kashmir, the son of the petitioner wanted to shift the entire business along with his family to Chandigarh. The detail of family members was also given and their need mentioned. 13. Learned Senior Counsel for the petitioner thereafter placed reliance on a judgment of the Honble Supreme Court in the case of Sarla Ahuja v. United India Insurance Company Limited, 1999(1) PLR 805. Para 14 of this judgment reads as under:- "The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that requirement of the landlord for occupation of the tenanted premises must be bonafide. 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 bonafide. 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 bonafide. 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 bonafide. It is often said by Court 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 bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself." 14. Learned Senior Counsel thereafter relied upon a judgment of the Honble Supreme Court in the case titled as Atma S. Berar v. Mukhtiar Singh, 2003(1) RCR(Rent) 42 (SC) to contend that the order passed by the learned Appellate Authority cannot be sustained as reliance was placed on the judgment of this Court in the case of Mukhtiar Singh v. Atma S. Berar (supra), which stood reversed. Para 15 of the judgment passed by the Honble Supreme Court on which reliance was placed by the learned Appellate Authority is reproduced below for ready reference :- "The learned counsel for the tenant-respondent submitted that the findings arrived at by the Rent Controller and the Appellate Authority were vitiated and the High Court was justified in interfering therewith especially in the light of the events which had taken place during the pendency of the proceedings. The power of the Court to take note of subsequent events is well settled and undoubted. However, it is accompanied by three riders : firstly, the subsequent event should be brought promptly to the notice of the Court, secondly, it should be brought to the notice of the Court consistently with rules of procedure enabling Court to take note of such events and affording the opposite party an opportunity of meeting or explaining such event; and thirdly, and subsequent event must have material bearing on right to relief of any party. We have dealt with each one of the so-called subsequent events brought to the notice of the High Court as also of this court by the learned counsel for the tenant-respondent. We have dealt with each one of the so-called subsequent events brought to the notice of the High Court as also of this court by the learned counsel for the tenant-respondent. None of them causes a dent in the case of bonafides and needs were found proved by the authorities below the High Court. Seen in the light of normal human nature and behaviour, the events pendente lite rather reinforce the direness of the need. We need only remind ourselves of the observations made by three Judges Bench of this Court in Prativa Devis case (supra) "the landlord is the best judge of his residential requirements. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own." The High Court need not be solicitous and venture in suggesting what would be more appropriate for the landlord to do. "That was the lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for..... There is no law which deprives the landlord of the beneficial enjoyment of his property." The present one, in our opinion, is an appropriate case where the High Court ought not to have interfered with the findings of fact arrived at by the two authorities below and that too concurrently, in exercise of its revisional jurisdiction simply because it was inclined to have a different view." 15. The learned Senior Counsel thereafter placed reliance on a judgment of the Honble Supreme Court in the case of Ragavendra Kumar v. Firm Prem Machinary and Co., AIR 2000 SC 534 to contend that the landlord is the best judge and has complete freedom in the matter. Learned Senior Counsel also placed reliance on the judgment of the Honble Supreme Court in the case of Kamleshwar Prasad v. Pradumanju Agarwal (dead) by LRs., AIR 1997 SC 2399 to contend that bonafide need of the landlord for starting business does not lapse on the death of landlord as the business can be carried on by his widow. Learned Senior Counsel also placed reliance on the judgment of the Honble Supreme Court in the case of Kamleshwar Prasad v. Pradumanju Agarwal (dead) by LRs., AIR 1997 SC 2399 to contend that bonafide need of the landlord for starting business does not lapse on the death of landlord as the business can be carried on by his widow. The contention of the learned senior counsel for the petitioner was that evidence was brought on record to show that after the death of Shri H.S. Khorana, his wife had entered into a partnership deed and, therefore, was running the business, which was to be shifted to Chandigarh. Learned Senior Counsel referred to the statement of PW-1 which was said to have been misread by the learned Appellate Authority. PW-1 in his statement, stated as under:- "The State of Jammu has been declared disturbed area recently due to circumstances. I want to shift along with my daughter-in-law and three children at Chandigarh because now a days, it is very difficult and dangerous to live at Jammu. My second son namely D.S. Khurana will also shift from Jammu to Chandigarh along with his family. Myself and my daughter-in-law w/o H.S. Khurana and her children and family of my second son B.S. Khurana are living jointly at Jammu." He further stated "my son D.S. Khurana is having business contacts at Chandigarh and Punjab and we also want to shift the entire business along with entire family to Chandigarh." 17. It may be noticed here that PW-2 also reiterated the same stand. It was also contended by the learned senior counsel for the petitioner that in the cross-examination, the factum of opening of office at Chandigarh was re- asserted and the landlord had merely stated that he has not started the business at Chandigarh and the said statement had been mislead. 18. Mr. Arun Palli, learned counsel appearing on behalf of the respondent- tenant, contended that no fault could be found with the judgment rendered by the learned Appellate Authority as the same is based on appreciation of pleadings & evidence. 18. Mr. Arun Palli, learned counsel appearing on behalf of the respondent- tenant, contended that no fault could be found with the judgment rendered by the learned Appellate Authority as the same is based on appreciation of pleadings & evidence. Learned counsel for the respondent made a specific reference to para 5 of the petition to contend that the case set up by the petitioner was that the premises were required for settling Shri H.S. Khrana at Chandigarh along with his family and on account of his death, the very basis of the petition stood knocked off and, therefore, the order passed by the learned Appellate Authority is in consonance with law. 19. Learned counsel for the respondent also placed reliance on the judgment of the Honble Supreme Court in the case of Pratap Rai Tanwani v. Uttam Chand, 2004(2) RCR(Rent) 436 (SC) to contend that the Court was required to examine, evaluate and adjudicate the subsequent events and their effects. The contention of the learned counsel for the respondent, therefore, was that if the subsequent event of death of Shri H.S. Khorana is taken into consideration, the need projected by the landlord could not be said to be bonafide, but a mere desire. 20. Learned counsel for the respondent also placed reliance on the judgment of the Honble Supreme Court in the case of Mattu Mal v. Radhey Lal, AIR 1974 SC 1596 to contend that mere assertion on the part of the landlord that he requires the accommodation in occupation of the tenant for his personal need is not decisive. The Court is to determine the truth of the assertion and also whether it is bonafide. The test to be applied is an objective test and not subjective one as the word "require" signifies that mere desire on the part of the landlord is not enough, but there should be an element of need and landlord must show and the said burden is on him to prove to same. The contention of the learned counsel for the respondent was that the landlord in the present case has failed to bring on record any material which would justify his need to be genuine especially when Shri H.K. Khorana had died after filing of the petition and his family was well settled at Jammu. 21. The contention of the learned counsel for the respondent was that the landlord in the present case has failed to bring on record any material which would justify his need to be genuine especially when Shri H.K. Khorana had died after filing of the petition and his family was well settled at Jammu. 21. Learned counsel for the respondent thereafter placed reliance on the judgment of the Honble Supreme Court in the case of Sri Kempaiah v. Lingaiah (supra) to contend that even in absence of contest the court is obliged to look into the claim independently and give a specific finding with regard to bonafide requirement. Learned counsel for the respondent also placed reliance on the judgment of the Honble Supreme Court in the case of Kedar Nath Agarwal (Dead) v. Dhanraji Devi (dead) by LRs., 2004(2) RCR(Rent) 498 (SC) to contend that subsequent events are required to be taken into consideration if the relief originally has by reason of subsequent change of circumstances become inappropriate or where the subsequent events are required to be seen in order to shorten litigation, or they are required to be considered to do complete justice between the parties. The contention of the learned counsel for the respondent was that in the present case, due to subsequent event the need set up by the landlord has ceased to exists. 22. I have heard the learned counsel for the parties and find that the only question to be decided in the present revision petition is whether in view of the evidence and pleadings on record, the need set up by the petitioner- landlord is to be treated to be bonafide need or a mere desire. In order to arrive at an appropriate conclusion, it would be appropriate to notice that in para 5 of the eviction petition, the landlord had categorically stated that the family of the petitioner wanted to shift to Chandigarh on the ground of disturbed conditions in Jammu & Kashmir as also for the education of the children of Shri H.S. Khorana. 23. The contention of the learned counsel for the respondent-tenant that the present need set up by the petitioner was merely for Shri H.S. Khorana cannot be sustained as the need was set up by the petitioner for whole of the family. 23. The contention of the learned counsel for the respondent-tenant that the present need set up by the petitioner was merely for Shri H.S. Khorana cannot be sustained as the need was set up by the petitioner for whole of the family. The question of shifting of business to Chandigarh also did not lose importance on account of death of Shri H.S. Khorana, as there was evidence on record to show that widow of Shri H.S. Khorana was joined as partner in the business which is continued even after his death. 24. The learned Appellate Authority was wrong in coming to the conclusion that the evidence led by the petitioner was beyond pleadings. The reading of the pleadings referred to in the earlier part of the judgment clearly shows that the need of family was specifically pleaded and the evidence to this effect was also led. Even otherwise in view of the judgment of the Honble Supreme Court in the case of Kamleshwar Prasad (supra) it has to be held that merely on account of death of Shri H.S. Khorana, the need did not cease to exist. In the present case, even if the subsequent events are taken note of, it would be seen that the position did not change in any way. The finding recorded by the learned lower Appellate Court is against the settled law that the landlord is the best judge to assess his requirement. It was not for the Court to come to the conclusion that the landlord was not to shift his settled business at Jammu. The decision of the landlord in this respect could not be faulted with as he had decided to shift his business in view of the disturbed conditions in Jammu & Kashmir. The Honble Supreme Court in the case of Prativa Devi (Smt.) v. T.V. Krishnan, 1996(5) SCC 353 has been pleased to lay down that the landlord is the best judge of his residential requirement. 25. The Honble Supreme Court in the case of Prativa Devi (Smt.) v. T.V. Krishnan, 1996(5) SCC 353 has been pleased to lay down that the landlord is the best judge of his residential requirement. 25. The contention of the respondent-tenant that the landlord did not take any steps for setting up the business at Chandigarh, as he failed to prove the factum of opening of office in House No. 35, Sector 5, Chandigarh, also cannot be accepted as it is well settled law that the landlord is not required to prove the fact regarding the start of his business not he is required to take any steps in this regard especially when the eviction was sought for residential building and in absence of the said building there would be hardly an occasion to start his business. The need of the landlord is to be seen from his perspective and the Courts are not competent to lay down any guidelines as to how the landlord is to act. The Rent Act provides protection to the tenant to repossess the building in case the landlord fails to shift to the building for which eviction was sought for personal use and occupation. For the reasons recorded above, this revision petition is allowed, the order dated 8.4.2004 passed by the learned Appellate Authority is set aside and that of the Rent Controller dated 22.8.2003 allowing the eviction of the respondent-tenant is restored with no order as to costs. Petition allowed.