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2008 DIGILAW 1339 (PNJ)

M/s Bajaj Associates v. Vinod Kumar

2008-08-08

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. M/s Bajaj Associates and others, the tenants of ground floor of SCO No. 25, Sector 26, Madhya Marg, Chandigarh have filed this revision petition to challenge the order passed by the learned Rent Controller as affirmed by the learned Appellate Authority, Chandigarh for their eviction from the demised premises. 2. The respondent-landlords being owners of SCO No. 25, Sector 26, Madhya Marg, Chandigarh sought eviction of the petitioners on the plea that the tenanted portion is being used for the purpose of trading from the very beginning under the terms of the lease. 3. The respondent-landlords are carrying on business under the name and style of M/s Kapoor Brothers Agency in the basement and ground floor of SCO 194-195, Sector 17-C, Chandigarh. Firm of the respondents i.e. M/s Kapoor Brothers Agency is having a Titan show room and deals with Titan watches and Tanishq Jewellery manufactured by Titan Industries Limited a company of Tatas. The respondent firm was also having a franchise of the said company and the products are being sold on the ground floor and basement of SCO Nos. 194-195, Sector 17-C, Chandigarh. 4. In addition they also have franchise of Titan Industries Ltd. and Arvind Mills which manufacture Arrow shirts. Said company is running prestigious showrooms in India and abroad. In order to run a franchise of the said company proper decoration space, management, display and sale efforts are required from any dealer. The landlords claim that in these circumstances the ground floor is found to have been sufficient only for dealing with Titan Industries products i.e. watches and jewellery and for the sale of Arrow shirts manufactured by Arvind Mills. The business of paper and stationery required space for storage and sale and therefore, the space with the landlord was unsuitable for promoting and carrying on with the business like watches and jewellery and shirts etc. along with stationery business. The landlords were also the owners of SCO No. 25 Madhya Marg, Sector 26, Chandigarh and therefore, it has been decided to shift the business of paper and stationery from SCO Nos. 194-195 Sector 17C Chandigarh to SCO No. 25, Sector 26, Chandigarh. 5. along with stationery business. The landlords were also the owners of SCO No. 25 Madhya Marg, Sector 26, Chandigarh and therefore, it has been decided to shift the business of paper and stationery from SCO Nos. 194-195 Sector 17C Chandigarh to SCO No. 25, Sector 26, Chandigarh. 5. It was also the case of the landlords that the premises on rent with the petitioners herein is required to have separate show room for sale and storage of papers and stationery for economic benefit and prosperity and to add space. The respondent landlords, therefore, pleaded that the respondent landlords who are co-owners of the tenanted premises required the tented premises for their own use and occupation as detailed above. The landlords claim that they have no other place for shifting the business of paper and stationery in their possession in the urban area of Chandigarh nor they have vacated any non- residential premises in the urban area of Chandigarh after the enforcement of the Act without sufficient cause. The respondent landlords also claimed that whole of SCO No. 25, Sector 26, Madhya Marg was required by the respondents and other co-owner. The petitioners also filed eviction petition against other occupants i.e. M/s Faquir Chand Karva & Sons as also against the Punjab National Bank. 6. The petition was contested by the petitioners by taking a preliminary objection on the plea that the case filed by petitioners is mala fide and has been filed to pressurize the petitioners to increase the rent and at abnormal rate. It was also the case of the petitioners that the rent was voluntarily increased from Rs. 12000/- to Rs. 13500/- and then to Rs. 17,088/-. The demand of respondent landlords to increase the rate to Rs. 25000/- was not acceptable. 7. It was also the case of the petitioners herein that the landlords are well settled in business and have sufficient space. It was also the case of the petitioners herein that the landlords have not taken any step till date for expansion of the business and therefore, the premises in dispute were not required bona fide. Objection was also taken that the petition was not filed by authorised person. 8. On merit, it was claimed that the petitioners were using the disputed premises for commercial purpose in conformity with the permissible use by the Chandigarh Administration. Objection was also taken that the petition was not filed by authorised person. 8. On merit, it was claimed that the petitioners were using the disputed premises for commercial purpose in conformity with the permissible use by the Chandigarh Administration. Factum of stating business by the respondent landlords was denied. The anticipated future requirement of the landlords was denied on the ground that no steps have been taken by the landlords for starting business in the demised premises and the additional need as projected was merely imaginary. It was also claimed that the bona fide need projected by the petitioners is only fanciful thinking and was much short of need and reasonableness as the petitioners have not shown any steps which could justify the shifting of business from Sector 17, Chandigarh to Sector 26, Chandigarh which is undeveloped market as compared to Sector 17-C Chandigarh. 9. Written statement filed by the petitioners was thereafter got amended by taking an additional plea that the landlords had shifted the business of Tanishq to the first floor on 2nd July, 2001 and the space occupied became available to the landlords. It was also claimed that an area of 1531 sq. feet on the second floor has been leased out to a tenant and the balance area is lying vacant with the landlords. It was also the case that the landlords have also filed a petition for ejectment of the ground floor against M/s Faquir Chand as also against Punjab National Bank. Thus, it was reiterated that the need was not bona fide and the object of filing the petition was only to enhance the rent as the rate in the market had gone up. 10. On the pleadings of the parties the learned Rent Controller framed the following issues : "1. Whether the respondent is liable to be ejected from the premises in question as the petitioners require the same for their personal use and occupation ? OPP 2. Relief." In support of the petition the respondent-landlords exhibited agreement between Titan Watches Ltd. and M/s Kapoor Brothers Agencies as Ex.P1. Agreement of franchise executed between Arvind Clothing Ltd and M/s Kapoor Brother Agencies as Ex.P.2. The partnership deed was also placed on record. The petitioners tenant got exhibited the certified copies of the rent petition filed by the petitioners against Punjab National Bank as well as against Faquir Chand Karva and his sons. Agreement of franchise executed between Arvind Clothing Ltd and M/s Kapoor Brother Agencies as Ex.P.2. The partnership deed was also placed on record. The petitioners tenant got exhibited the certified copies of the rent petition filed by the petitioners against Punjab National Bank as well as against Faquir Chand Karva and his sons. 11. Learned Rent Controller on appreciation of evidence decided issue No. 1 in favour of the respondent-landlords and held that the premises were required bona fide and ordered the eviction of the petitioners. 12. Order passed by the learned Rent Controller was challenged before the learned Appellate Authority, Chandigarh. The appeal was dismissed by the learned Appellate Authority by observing as under : "10. By way of this petition, the applicants have sought the ejectment of the respondents from the demised premises on the ground of their personal necessity for expansion of their business therein. Concededly, the applicants are running their business under the name and style of Kapoor Brother Agencies in the basement and ground floor of SCO No. 194-95, Sector 17C, Chandigarh. They are also dealing with Titan watches; Tanish Jewellery manufactured by Tata Industries Ltd. and are also having franchisee of Tata Products. They have also franchisee of Arrow Shirts of Arvind Mills. The franchisee of Titan Industries and Arvind Mills who are manufacturing Arrow Shirts are the most prestigious business and these companies require proper decoration, space, management, display and sale efforts from dealer. It is also the case of the applicants that SCO No. 194-95 has not been found sufficient for dealing these business i.e. Titan Watches as well as Tanish Jewellery along with Arrow Shirts. The applicants are also dealing with paper and stationery in the above said SCOs. The transaction of paper and stationery which requires enough space for storage and sale has been found to be unsuitable for promoting and carrying on with the business like watches and jewellery and shirts etc. and as such, they have decided to shift the business of paper and stationery from Sector 17, Chandigarh to the demised premises. In order to establish this fact, they have proved on the record partnership deed Ex.P4. The respondents have no where denied that the applicants are not running the above said business in SCO Nos. 194-195, Sector 17-C, Chandigarh. Their version is that basement and some portion of second floor are lying vacant. In order to establish this fact, they have proved on the record partnership deed Ex.P4. The respondents have no where denied that the applicants are not running the above said business in SCO Nos. 194-195, Sector 17-C, Chandigarh. Their version is that basement and some portion of second floor are lying vacant. Rather the applicants are having vacant space in the building in Sector 17C, Chandigarh which is lying vacant and can be used for storage purposes. First of all, this Court has to see whether the demised premises can be got vacated by the applicants-landlords for the personal use and occupation as claimed by the applicants. The answer is in the affirmative in view of the law laid down in Meenal Eknath Kshirsagar v. M/s Trader & Agencies, 1996(2) RCR(Rent) 233 (SC), wherein it was held that it is for the landlord to decide how and in what manner he should live and the landlord is the best judge of his residential requirement. If landlord desired to beneficially enjoy his own property when the other property occupied by his as a tenants or on any other basis is either insecure or inconvenient it is not for the Court to dictate him to continue to occupy such premises. It has also been held by the Apex Court in Shiv Swaroop Gupta v. Dr. M.C. Gupta, 1999(2) RCR(Rent) 141 : AIR 1999 Supreme Court 2507 that the judge of the facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere and honest. If the answer be in the positive, the need is bona fide. Rent Control Legislation generally leans in favour of the tenants. It is only the provision for seeking eviction of the tenants on the ground of bona fide requirement of the landlord for his own use and occupation or use of the tenanted accommodation which treats the landlord with some sympathy. The Apex Court has also held in M.L. Prabhakar v. Rajiv Singal, 2001(1) RCR(Rent) 91 (SC) that suitability has to be seen from the convenience of the landlord and his family members and on the basis of totality of circumstances including their profession, vocation, style of living, habits and background. The Apex Court has also held in M.L. Prabhakar v. Rajiv Singal, 2001(1) RCR(Rent) 91 (SC) that suitability has to be seen from the convenience of the landlord and his family members and on the basis of totality of circumstances including their profession, vocation, style of living, habits and background. Respondent Rajesh Bajaj while appearing as RW1 himself admitted in his cross-examination that Tanish Jewellery and Titan watches is one of the most prestigious shows of the town and that he had seen the godown of papers of the applicant which is in Sector 17, Chandigarh and the applicants might be having place for less than a truck load of goods. He further stated that he is not having personal knowledge that the applicants sell 100 truck load i.e. 1000 MT of paper of one particular mill. He has also admitted that the above said business are being run by the applicants. It is well settled principle of that the tenant cannot dictate the term to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. In this respect, reference can also be made to the law laid down in Sarla Ahuja v. United India Insurance Company Ltd., 1998(2) RCR(Rent) 533 (SC). Whether the accommodation available with the landlords is sufficient has to be seen from the point of view of the landlord while taking into consideration the totality of the circumstances. The above said business, run by the applicants require plenty of space. It is for the landlord to decide where they have to keep the store of the paper and stationery and where number of trucks are to be unloaded and loaded with the paper and stationery. It is also well settled principle of law that if after ejectment of a tenants, the landlords re-let the demised premises to other tenant at higher rate of rent as alleged by the tenants, the tenants-appellants have a right of re- possession of the demised premises. The law has provided safe guard for the tenants in case the landlords re-let out the demised premises after getting it vacated on the ground of personal necessity. The law has provided safe guard for the tenants in case the landlords re-let out the demised premises after getting it vacated on the ground of personal necessity. So, in case the applicants after ejectment of the appellants, re-let out the demised premises on higher rent and do not occupy the same for running the business there, the appellants have every right to get re-possession of the demised premises under the law. Hence, the need of the applicants for the demised premises for running the business above said, is held to be reasonable, bona fide and there is no element of need. The transaction of paper and stationery which requires enough space for storage and sale has been found to be unsuitable for promoting and carrying on with the business like watches and jewellery and Shirts etc. by the landlords and as such, they have every right to shift the business of paper and stationery from Sector 17, Chandigarh to the demised premises. The learned Rent Controller has rightly decided issues No. 1 in favour of the applicants-landlords and as such, findings on issue No. 1 are affirmed in this appeal." 13. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioners has challenged the findings recorded by the Courts below on the ground that in the present case it was proved on record that initially the rent was Rs. 12000/- per month which was periodically increased to Rs. 13,500/- and Rs. 17088/-. Thus, it was pleaded that the present petition was an attempt to pressurize the petitioners to increase the rent and therefore, the same could not be said to be a bona fide need. 14. Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioners also vehemently contended that in the present case eviction was sought on the ground that the respondent-landlords wanted to expand their business. However, no evidence has been brought on record in support of this contention. It is also the contention of the learned senior counsel that it has been proved on record that the petitioners are already running the business of stationery and therefore, the requirement of additional accommodation cannot be said to be bona fide need but a mere desire. 15. However, no evidence has been brought on record in support of this contention. It is also the contention of the learned senior counsel that it has been proved on record that the petitioners are already running the business of stationery and therefore, the requirement of additional accommodation cannot be said to be bona fide need but a mere desire. 15. Learned senior counsel appearing on behalf of the petitioners referred to statement made by Vinod Kapoor who appeared as PW1 to contend that he failed to give any proof of expansion plan as he could not give the date and details of the proposal submitted to the bank as was claimed by him. Learned senior counsel also contended that no letter was placed on record from Titan, Tata company showing that there was need of additional space to run the show room. 16. Learned senior counsel for the petitioners also contended that the second floor of the premises in occupation of the landlords was vacated. However, the landlords chose to lease out the same, thus, showing that the need was not bona fide. 17. Learned senior counsel appearing on behalf of the petitioners placed reliance on the judgment of Honble Supreme Court in the case of Deena Nath v. Pooran Lal, 2001(2) RCR(Rent) 130 in support of his contention that the requirement of the landlord must be bona fide and not a mere whim or fanciful desire. The contention of the learned senior counsel, therefore, was that bona fide requirement must be in the praesenti and manifested in actual need. 18. Learned senior counsel appearing on behalf of the petitioners also placed reliance on the judgment of Honble Supreme Court in the case of M/s Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon, 1998(1) RCR(Rent) 482. where again Honble Supreme Court has been pleased to lay down that need of landlord has to be bona fide and genuine and not mere desire. Reliance was also placed on the judgment of Honble Supreme Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1992(2) RCR(Rent) 141 wherein Honble Supreme Court has been pleased to define the bona fide requirement as under : "i. The words need and require denote a certain degree of want with a thrust within demanding fulfilment. ii. Mahesh Chand Gupta, 1992(2) RCR(Rent) 141 wherein Honble Supreme Court has been pleased to define the bona fide requirement as under : "i. The words need and require denote a certain degree of want with a thrust within demanding fulfilment. ii. Term bona fide refers to a state of mind - requirement is not a more desire - Degree of intensity contemplated by requirement is much higher than in mere desire. iii. The phrase required bona fide is suggestive of legislative intent that a mere desire which is outcome of whim is not taken note of by Rent Control legislation. iv. The Judge of facts should place himself in the arm chair of landlord and then ask question to himself whether in the given facts the need to occupy the premises can be said to be natural, real and honest. v. Once Court is satisfied of bona fides of the need of landlord by applying objective standards, then in the matter of choosing out more than one accommodation available to landlord his subjective choice shall be respected by court. vi. The court would permit their landlord to satisfy the proven need by choosing the accommodation which landlord feels would be most suitable for the purpose - Court would not in such a case thrust its own wisdom upon the choice of landlord. vii. Concept of bona fide need needs a practical approach instructed by realities of life - An approach either too liberal or too conservative or pedantic must be guarded against." 19. Learned senior counsel appearing on behalf of the petitioners thereafter by placing reliance on the judgment of Honble Supreme Court in the case of P.S. Pareed Kaka and others v. Shafee Ahmed Saheb, 2004(1) RCR(Rent) 503 and Molar Mal v. M/s Kay Iron Works (P) Ltd., 2000(1) RCR (Rent) 354 contended that the revisional power of the High Court under the Act is wider than the power conferred under section 115 of the Code. 20. The contention of the learned senior counsel, therefore, was that this court in exercise of revisional jurisdiction can reappraise the evidence to see whether the landlord-respondents were able to prove their bona fide need. 20. The contention of the learned senior counsel, therefore, was that this court in exercise of revisional jurisdiction can reappraise the evidence to see whether the landlord-respondents were able to prove their bona fide need. The contention of the learned senior counsel appearing on behalf of the petitioners in this regard was that the evidence of landlords could not be accepted for want of material particulars with regard to the expansion of their business as no documentary evidence in this regard was placed on record. 21. Mr. M.L. Sarin, learned senior counsel appearing on behalf of the respondents vehemently contended that in the present case the evidence brought on record clearly proves that the need of the respondent-landlords was bona fide. It was the contention of the learned senior counsel that in the present case documentary evidence was proved on record to show franchise agreement entered into by the respondents with the lead company of International fame and therefore, the space in their occupation was required for running of the business of watches, jewellery and Arrow shirts etc., whereas the stationery business was required to be shifted to the demised premises. It was the contention of the learned senior counsel for the respondents that bona fide need of the petitioners already stands established and accepted by this court in the case of Punjab National Bank v. Vinod Kapoor and others i.e. CR No. 2454 of 2008 decided on 29.4.2008. 22. It is also the contention of the learned senior counsel for the respondents that Honble Supreme Court has also declined to interfere with the bona fide requirement established by the respondent-landlords in the said case. 23. Learned senior counsel placed reliance on the judgment of Honble Supreme Court in the case of E. Parashuraman (Died) by LRs. v. V. Doraiswamy (died) by LRs., 2005(2) RCR(Rent) 590 : (2006-1) PLR 661 to contend that the findings with regard to be bona fide personal need is a pure question of fact and there is no reason to interfere with the said finding unless very exceptional and strong case is made out. 24. Learned senior counsel for the respondents thereafter placed reliance on the judgment of Honble Supreme Court in the case of Dev Kumar (Died) through LRs. 24. Learned senior counsel for the respondents thereafter placed reliance on the judgment of Honble Supreme Court in the case of Dev Kumar (Died) through LRs. v. Smt. Swaran Lata and others, 1996(1) RCR(Rent) 40 : AIR 1996 SC 510 to contend that the powers of High Court in revision under section 15 (5) of the Act cannot be equated with the appellate jurisdiction and in the absence of perversity in the matter of appreciation of evidence by the learned appellate authority, the High Court cannot interfere with the said findings. 25. Learned senior counsel for the respondents also placed reliance on the judgment of Honble Supreme court in the case of Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 Supreme Court Cases 353 to contend that the landlord is the best judge of his requirement. Honble Supreme Court has been pleased to lay down as under : "The landlord is the best judge of his residential requirement. 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 was rather soliditous about the age of the appellant and though that because of her age she needed to be looked after. That was a lookout of the appellant and not of the High Court. The gratuitous advice given by the High Court was uncalled for. There is nothing to show that she had any kind of right whatever to stay in the house of the family friend. On the other hand she was there merely by sufferance. There is no law which deprives the landlord of the beneficial enjoyment of his property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right to such occupation in adjudging the bona fides of the claim of the landlord under Section 14(1)(e) of the Act. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances." 26. Learned senior counsel appearing on behalf of the respondents also relied upon the judgment of Honble Supreme Court in the case of Ragavendra Kumar v. Firm Prem Machinary and Co., 2000(1) RCR(Rent) 135 : AIR 2000 SC 534 which is also to the same effect wherein also the Honble Supreme Court has reiterated the earlier view that the landlord is the best judge of his complete freedom with regard to the claim regarding suitability of the accommodation. 27. Learned senior counsel for the respondents also contended that it is not for the tenant to dictate the terms to the landlord as to how else he could adjust himself without getting the possession of the tenanted premises. In support of this contention reliance was placed on the judgement of Honble Supreme Court in the case of Sarla Ahuja v. United India Insurance Company Ltd., 1998(2) RCR(Rent) 533. 28. On consideration of the arguments raised by the learned counsel for the parties, I find force in the contentions raised by the learned senior counsel for the respondents. 29. Concurrent finding of fact has been recorded by the learned courts below that the premises are bona fide required by the landlord, for running their stationery business in the premises. The contention of the learned senior counsel for the petitioners that no expansion plan has been placed on record is totally misconceived. 30. The respondent-landlords sought eviction on the ground that premises in their possession in Sector 17, Chandigarh are for running of jewelry, watches and business of Arrow shirts. It was proved by way of evidence brought on record that the respondents wanted to shift their stationery business to Sector 26, Chandigarh as sufficient space for the, said business was also required. 31. It was proved by way of evidence brought on record that the respondents wanted to shift their stationery business to Sector 26, Chandigarh as sufficient space for the, said business was also required. 31. The contention of the learned senior counsel for the petitioners that they were running stationery business at the demised premises and there is no need to shift cannot be accepted as it is not for the petitioners being tenants to dictate to the landlords as to how they have to run or adjust their business. 32. Learned appellate authority took note of the fact that law has provided safeguard for the tenant in case the landlords re-let out the demised premises after getting it vacated on the ground of personal necessity. 33. Learned courts below on appreciation of evidence brought on record have rightly come to the conclusion that the need of respondent-landlords was bona fide. It may also be mentioned that the need of the respondents also stands upheld by this court in CR No. 2454 of 208 decided on 29.4.2008 Punjab National Bank v. Vinod Kapoor and others wherein this court has been pleased to hold as under : "The reference is made by the petitioner to a letter dated 1.2.1995 seeking enhancement of a rent. The writing of the letters is conceded, but it is pointed out that after 1995, the respondents felt the need to have the premises for their own use. It is to be noticed that the business of Arvind Clothing was started by the respondents in the year 1994. There may not have been need of more space in the year 1995 and it came to be realized subsequent in the year 1997-98. The Arrow Shirt business is also started in the year 1994. As has been observed on the basis of judgments of this court that mere writing of letters by landlord to tenant to enhance rent on an earlier occasion is no ground to doubt the bona fide need of the landlord. Reference in this regard can be made to Usha Mukerjee v. Mohan Lal, 1980(2) RCR(Rent) 686 and Chander Mohan Mittal v. Behari Lal Gupta, 1991(2) RCR(Rent) 163. In my view, the Appellate Authority has rightly differed with the view taken by the Rent Controller. I am, thus, inclined to uphold the findings returned by the Appellate Authority. Reference in this regard can be made to Usha Mukerjee v. Mohan Lal, 1980(2) RCR(Rent) 686 and Chander Mohan Mittal v. Behari Lal Gupta, 1991(2) RCR(Rent) 163. In my view, the Appellate Authority has rightly differed with the view taken by the Rent Controller. I am, thus, inclined to uphold the findings returned by the Appellate Authority. The petitioner has not been able to substantiate any of the pleas and thus this revision deserves to be dismissed. It is so ordered." Karamjeet Kaur 34. Honble Supreme Court had declined to interfere with the order passed by this Court on the question of bona fide requirement of the respondents herein. In view of what has been stated above, finding no merit, this petition is dismissed.