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2008 DIGILAW 865 (PNJ)

Ram Nath v. Des Raj

2008-04-09

RAJIVE BHALLA

body2008
JUDGMENT Rajive Bhalla, J. - Challenge in this revision petition is to an order, dated 16.3.2007, passed by the learned Appellate Authority, Ambala accepting the appeal, filed by respondent No. 1, and setting aside the order, dated 15.10.2004, passed by the learned Rent Controller. 2. Respondent No. 1-landlord filed a petition under section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short herein after referred to as "the Act") praying for the ejectment of the petitioner and respondents No. 2 to 4 from shop No. 701, situated in Ward No. 11, New Grain Market, Naraingarh, District Ambala on the grounds of his bona fide personal necessity and for non-payment of rent. 3. On the basis of the pleadings, the learned Rent Controller framed the following issues : "1. Whether the respondent is liable to ejectment from the shop in question on the ground that non-payment of rent, personal necessity etc ? OPP 2. Whether the petition is not maintainable in the present form ? OPR 3. Relief." 4. Upon a consideration of the evidence, produced by parties, the learned Rent Controller rejected the plea of personal necessity and dismissed the ejectment petition. 5. Aggrieved by the aforementioned order, respondent No. 1 filed an appeal. The learned Appellate Authority allowed the appeal and ordered the ejectment of the petitioner and respondents No. 2 to 4. 6. Counsel for the petitioner vehemently submits that the learned Appellate Authority committed an error of jurisdiction in reversing the well reasoned judgment of the learned Rent Controller. The Rent Controller held that the landlords assertion that he wanted to start his business after retirement, was mala fide and, therefore, could not be accepted, as the landlord owned 10 shops and 12 godowns and during the pendency of the ejectment petition, he had rented out one of these shops. It is further pointed out that as the landlord retired, during the pendency of an appeal from an earlier petition for ejectment, his failure to seek amendment in the appeal or to immediately file an ejectment petition disclosed the lack of a bona fide necessity. The Appellate Authority, on the other hand, disregarded the findings, returned by the learned Rent Controller, and without assigning any reason, cogent or otherwise, reversed these findings. The Appellate Authority, on the other hand, disregarded the findings, returned by the learned Rent Controller, and without assigning any reason, cogent or otherwise, reversed these findings. It is further argued that the landlord has failed to establish, by any clear or cogent evidence, that the 10 shops and 12 godowns, owned by him, were insufficient or in-appropriate for him to set up his business. The finding, returned by the Appellate Authority that the tenanted premises were suited to the pleaded necessity, does not find support from the evidence on record. The Appellate Authority erred, while accepting the landlords plea that the other shops and godowns were occupied by tenants. The mere fact that the landlord offered a vacant shop to the petitioner, a circumstance, relied upon by the Appellate Authority, was irrelevant and, therefore, wrongly assigned undue significance by the Appellate Authority. The landlord retired more than an year before filing the petition for ejectment and, therefore, as held by the learned Rent Controller, the requirement asserted by the landlord, lacked an element of necessity and could not have been accepted by the Appellate Authority. 7. Counsel for respondent No. 1, on the other hand, submits that the earlier petition for ejectment was filed, on the grounds of non-payment of rent and material impairment, while respondent No. 1 was in service. While in service, the landlord could not urge a plea of necessity. The landlord retired during the pendency of the appeal, and instead of praying for an amendment, in the pending appeal, filed a fresh ejectment petition on the plea that he requires the tenanted premises. It is asserted that the landlordss sons are occupying adjoining shops and he works with them. The other shops and godowns are occupied by tenants and , therefore cannot be used by the landlord. Respondent No. 1 requires the tenanted premises to start the business of an iron merchant. It is further asserted that the premises in dispute are suited to the proposed business. The demised premises have a court yard, where the landlord can store iron rods etc. The premises are situated on the main road and, therefore, advantageously located. Respondent No. 1 requires the tenanted premises to start the business of an iron merchant. It is further asserted that the premises in dispute are suited to the proposed business. The demised premises have a court yard, where the landlord can store iron rods etc. The premises are situated on the main road and, therefore, advantageously located. It is submitted that respondent No. IIs bona fides are established and fortified, as prior to the filing of the ejectment petition, he addressed a letter, dated 6.8.2001 offering the petitioner vacant possession of a godown that had fallen vacant, if he agree to vacate the demised premises. The tenants, however, did not respond to this offer and, therefore, their assertion that the landlords prayer for ejectment is mala fide, should be rejected. It is, therefore, prayed that as the plea of bona fide necessity has been duly established and accepted by the Appellate Authority, the revision petition be dismissed. 8. I have heard counsel for the parties and perused the impugned order. 9. As noticed in the narrative of facts, respondent No. 1, the landlord, filed a petition for ejectment primarily asserting a bona fide need to personally use and occupy the tenanted premises to start his business as an iron merchant. This plea is fortified by averments that the landlord has retired from government service as a Head Teacher on 31.7. 1999 and, therefore wants to start his business. The shop i.e. the tenanted premises, is eminently suited to this business. The learned Rent Controller negatived this plea by holding that the landlord could not have waited for a period of one year after his retirement to assert this plea and should have filed the petition prior to or immediately after retirement. It was also held that the landlord had failed to plead and establish the ingredients of Section 13(3)(a)(i) of the Act, namely, that he was not occupying or had not vacated any other commercial premises in the urban area concerned, as the landlord owns a large number of shops and godowns and it was incumbent upon him to plead his ownership in respect thereof. It was also held that the necessity was not bona fide as during the pendency of the ejectment petition, the landlord had rented out one of these shops. 10. It was also held that the necessity was not bona fide as during the pendency of the ejectment petition, the landlord had rented out one of these shops. 10. The Appellate Authority, on the other hand, reversed these findings by holding that the delay of an year in the filing of the ejectment petition was irrelevant. It was held that though the landlord was failed to plead ownership of shops, owned by him, but while deposing on oath, he had disclosed his entire property and had, therefore, established the ingredients of Section 13(3)(a)(i) of the Act. The Appellate Authority held that the shops owned by the landlord, were not vacant and, therefore, could not be occupied by the landlord. As regards the plea of necessity, it was held that the premises were most suited to the landlords bona fide need and, therefore, the Rent Controller committed an error in dismissing the petition for ejectment. 11. The Appellate Authority also placed reliance upon a significant feature of the case, namely, that prior to the filing of the ejectment petition, the landlord addressed a letter, dated 6.8.2001 to the tenants and offered an alternative shop/godown. The tenants, however, failed to respond to this offer. The Appellate Authority held that as the plea of necessity was bona fide, the order passed by the Rent Controller, was not legal. 12. A perusal of the pleadings and the evidence on record clearly establishes that the landlord asserts a plea of bona fide personal necessity, on the ground that after retirement, he wants to start the business of an iron merchant, in the tenanted premises. The tenanted premises are situated on the main road and are advantageously located. They are eminently suited to his need, as they comprise of a shop and a court yard. The court yard can be used for storage of iron rods, girders etc. 13. The question of a landlords necessity, the extent or its nature, i the context of the suitability of the premises, is best left to a landlords perception of his necessity and a court shall not proceed to dictate or impose its own perception of the landlords necessity. The landlord has admittedly retired from service. The tenanted premises are situated on the main road. The landlord has admittedly retired from service. The tenanted premises are situated on the main road. The landlords sons are carrying on their business in adjoining shops and, therefore, it would be natural to expect the landlord to start the business, in the tenanted premises. The premises in dispute consist of a courtyard that can store iron rods, girders etc. and, therefore, are eminently suited to meet the requirement of the landlord. The landlords choice of the premises most suited to his necessity, therefore, cannot be faulted. I find no reason to doubt the bona fides of the landlord or the bona fides of his pleas of necessity, as upheld by the Appellate Authority. The Appellate Authority examined the pleas raised for and against the landlords necessity and held in his favour. No reason factual or legal has been asserted to disbelieve the landlords plea. The mere fact that he owns 10 shops and 12 godowns, all admittedly occupied by tenants, would not discredit the prayer for ejectment. 14. The petitioners assertion that if the landlords necessity was indeed bona fide, he should have filed the petition for ejectment either before retirement or should have sought amendment in the already pending appeal arising from an earlier ejectment petition, does not merit acceptance. The landlord filed an ejectment petition, which was dismissed on 27.3.1998. The appeal was dismissed on 26.7.2000. The landlord retired from service on 31.7.1999. He could be legitimately expected to await the outcome of the pending ejectment petition/appeal, as the plea of personal necessity became available after retirement. He could either have sought amendment of the ejectment petition or filed a fresh petition raising a plea of bona fide personal necessity. As the landlord chose the latter course I fail to comprehend as to how and in what manner it would adversely reflect on the bona fides of the plea of necessity. 15. As regards the plea that the landlord owns 10 other shops and a large number of godowns, it has come in evidence, that these shops are in possession of different tenants. Admittedly, one of his shops was rented out during the pendency of the ejectment petition. This shop had fallen vacant and was offered to the tenants but as they did not respond, the landlord rented it out. Even otherwise, the demised premises, as established by the landlord, were most suited to the proposed business. Admittedly, one of his shops was rented out during the pendency of the ejectment petition. This shop had fallen vacant and was offered to the tenants but as they did not respond, the landlord rented it out. Even otherwise, the demised premises, as established by the landlord, were most suited to the proposed business. 16. It would be necessary to mention here that before filing the ejectment petition, the landlord addressed a letter requesting the tenants to vacate the demised premises and in lieu thereof offered possession of shop No. 381 or godown No. 5, as they had fallen vacant. The said letter has been proved by postal receipts Exs.P6 and P7, as also by acknowledgement receipts Exs.P10 and P12. The tenants, however, failed to respond to this fair offer and, thus, compelled the landlord to file the petition for ejectment. The offer of alternative premises by the landlord, in my considered opinion, goes a long way in establishing the bona fides of the plea of personal necessity. The landlord, conscious of the hardship likely to be caused to the tenants, if ejected, offered alternative premises. The tenants, however, spurned his fair offer and failed to respond. Though the landlord was not obliged, whether by contact or by law to offer alternative premises to the tenants, this offer is a clear pointer to the landlords bona fides. 17. A plea of personal necessity once established, by prima facie evidence, raises a presumption as to its bona fides and till such time as the tenant adduces cogent material to rebut its correctness, it should be accepted. A landlord is the best judge of this necessity, the nature, the extent thereof, the premises to be occupied , and the area required. In the present case, the tenants have failed to produce any evidence that would enable this Court to hold that the learned Appellate Authority committed any error of law or of jurisdiction as would require interference in the findings of fact returned against the petitioner. Consequently, as the landlord has succeeded in establishing the bona fides of the plea of personal necessity, the revision petition is dismissed with no order as to costs. Petition dismissed.