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2008 DIGILAW 908 (PNJ)

Hira Chand v. Sukhdev Raj Jain

2008-04-23

M.M.KUMAR

body2008
Judgment M.M.Kumar, J. 1. This petition filed by the tenant-petitioner, namely, Hira Chand, under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act), challenges the view taken by both the Courts below directing his ejectment from the demised premises on ground of personal use and occupation of the landlord-respondent No. 1. 2. Few facts may first be noticed. Mrs. Neelam Aggarwal wife of Rakesh Kumar and Smt. Kailash Wati wife of Balwant Rai, were owners of property bearing No. B-IV-100, Ghas Mandi, Ludhiana. On 6.9.1986, first and second floor of the building was rented out to the petitioner on a monthly rent of Rs. 900/-for the purpose of residence and business. Shri Sukhdev Raj Jain, landlord respondent No. 1, was occupying one shop on the ground floor of the said property as a tenant. On 28.6.1995, Smt. Kailash Wati sold her portion out of the aforesaid property in favour of Shri Sukhdev Raj Jain, landlord-respondent No. 1, and he became owner/landlord qua tenant-petitioner Shri Hira Chand. 3. On 16.11.1995, the landlord-respondent No. 1 filed an application under Section 13 of the Act in the Court of Rent Controller, Ludhiana, seeking ejectment of the tenant-petitioner on the ground that he failed to tender the arrears of rent with effect from 1.7.1995. The other ground raised was that the landlord-respondent No. 1 required the demised premises for his own use and occupation claiming that he has to take rest in the demised premises during the day time. It was also claimed by the landlord-respondent No. 1 that being President of various educational institutions at Ludhiana, a number of persons visit him, therefore, he requires the demised premises for his own bona fide necessity. He further claimed that his house is also situated at a distance of 4 Kms. From his shop and due to ill health it is not possible for him to go to his residence for rest during working hours. Moreover, doctors have also advised him to rest during the day time. The tenant-petitioner contested the application and after adducing evidence by the parties, learned Rent Controller, Ludhiana, decided Issue No. 1 regarding non-payment of rent in favour of the tenant-petitioner as he has paid entire arrear of rent and costs, amounting to Rs. 4,750/-, in the Court on 18.1.1996. Moreover, doctors have also advised him to rest during the day time. The tenant-petitioner contested the application and after adducing evidence by the parties, learned Rent Controller, Ludhiana, decided Issue No. 1 regarding non-payment of rent in favour of the tenant-petitioner as he has paid entire arrear of rent and costs, amounting to Rs. 4,750/-, in the Court on 18.1.1996. The other issue as to whether the landlord-respondent No. 1 requires the demised premises for his own use and occupation has been decided against the tenant petitioner. The concluding part of the finding on Issue No. 2 recorded by the learned Rent Controller, Ludhiana, reads thus: The residential accommodation of the petitioner is at the distance of 5/4 Kms from the said shop. The respondents have not denied this fact, so it is not possible for the petitioner to visit his house and take rest there during the working hours. Moreover, the petitioner is a 60 years old person and it is not possible for such an old person to shuttle between his shop and residential accommodation, just for the sake of taking rest. The occupation of one shop at the ground floor by the son of the petitioner is no ground to reject his plea of bonafide. Ultimately, I hold that the petitioner Sukhdev Raj Jain has bonafide requirement for his personal use and occupation. Hence, I decide this issue in favour of the petitioner and against the respondents. 4. Learned Rent Controller, Ludhiana, accordingly, allowed the rent petition filed by the landlord-respondent No. 1 and direction was issued to the tenant-petitioner to vacate and deliver vacant possession of the demised premises within three months from the date of passing of order dated 5.8.2003. 5. Feeling aggrieved, the tenant-petitioner filed an appeal before the Appellate Authority, Ludhiana raising the plea that the demised premises include first and second floor and the same cannot be the used simultaneously for the purpose of rest during the day time. It was further asserted that since the landlord-respondent No. 1 has purchased only half share of the property, which was owned by Smt. Kailash Wati, therefore, he cannot claim to be the landlord of the tenant-petitioner. It was further asserted that since the landlord-respondent No. 1 has purchased only half share of the property, which was owned by Smt. Kailash Wati, therefore, he cannot claim to be the landlord of the tenant-petitioner. However, giving detailed reasoning, as is evident from a bare perusal of paras 13 to 15 of the judgment dated 19.11.2004, learned Appellate Authority dismissed the appeal upholding the order dated 5.8.2003, passed by the learned Rent Controller, Ludhiana. The Appellate Authority rejected the argument that tenancy cannot be splited by observing as under: ...the appellant himself is admitting the ownership of tenanted premises of two owners and at the time of tendering the rent he has made the statement that he has paid 1/2 the rent to the other co-owner and in the written reply in para No. 4-A also, it has been admitted that he has paid the rent from 1.4.95 to 31.3.1996 to other co-sharers vide cheque No. 252214 of State Bank of Patiala Branch, Industrial Area, Ludhiana encashed on 18.5.95. The Honble Supreme Court in case Mohan Singh (dead by his legal representative v. Devi Charan and Ors. (supra) 1988(1) R.C.R. 654 has held that Section 109 of the Transfer of Property Act provides splitting up of tenancy when ownership of a single tenancy of two shops is created by joint owners or when there is partition between the owners, tenancy can be spoilt up. Similar law has been laid down by the Honble Supreme Court in case Nalakath Sainuddin v. Koorikadan Sulaiman (supra) 2002(2) R.C.R. 114 6. The Appellate Authority also rejected the argument concerning the visitors coming to the landlord-respondent No. 1 with the following findings: ...PW Anil Kumar Sood, Senior Clerk of Jain Girls Senior Secondary School brought the record and deposed that Jain Girls Senior Secondary School is being run and managed by S.S. Jain Girls School Committee Regd. Ludhiana and Sukhdev Raj is the President of the society since 1986. He has brought the general house register, correspondence and the documents regarding grant etc. which are signed by the President, Sukhdev Raj and they go to the shop of Sukhdev Raj and there is no place to sit as the shop is very small. Ludhiana and Sukhdev Raj is the President of the society since 1986. He has brought the general house register, correspondence and the documents regarding grant etc. which are signed by the President, Sukhdev Raj and they go to the shop of Sukhdev Raj and there is no place to sit as the shop is very small. The appellant has not cross-examined this witness regarding the record brought by this witness, although this witness has brought the complete record and has stated that the respondent is connected with many institutes. The shop in which a bench or mattress is lying belongs to the son of the respondent where he is carrying on his business. That cannot be taken to be the sufficient accommodation available with the respondent/petitioner for attending to the visitors and for rest as the respondent/petitioner is an old man. It was also argued that the respondent is suffering from various ailments and he cannot use the first and second floor but this argument is again not tenable because the suffering from blood pressure or backache is no ground to decline the relief to the respondent/landlord as the respondent has all alone been contesting this position and has appeared as a witness in the present case. He has been climbing the stairs to attend the court.... 7. I have heard the learned Counsel for the parties at some length and have perused the record. The question which arise for consideration is as to whether this Court in exercise of revisional jurisdiction conferred under Section 15(5) of the Act could record findings different than the concurrent findings recorded by the two Courts below. I have the opportunity to examine the aforementioned legal proposition in the case of Harjit Singh v. Dava Ram Sat Narain (2003-1)133 P.L.R. 579. After placing reliance on numerous judgments of Honble the Supreme Court in the cases of Vaneet Jain v. Jagjit Singh (2000-3) 126 P.L.R. 263; Shiv Lal v. Sat Parkash 1993 (Suppl.)2 S.C.C. 345; Bhoop Chand v. Kay Pee Cee Investments; and Lachhman Dass v. Santokh Singh (1995-3)111 P.L.R. 276 had concluded in para 20 as under: 20. After placing reliance on numerous judgments of Honble the Supreme Court in the cases of Vaneet Jain v. Jagjit Singh (2000-3) 126 P.L.R. 263; Shiv Lal v. Sat Parkash 1993 (Suppl.)2 S.C.C. 345; Bhoop Chand v. Kay Pee Cee Investments; and Lachhman Dass v. Santokh Singh (1995-3)111 P.L.R. 276 had concluded in para 20 as under: 20. From the above enunciation of law laid down by the Supreme Court it is evident that despite wider nature of power of revision with the High Court under the Rent Act than the power of revision under Section 115 of the Code of Civil Procedure, 1908 a distinction has to be maintained between a revision and an appeal. The ground of revisions are limited and can be summed up as under. (a) Findings are perverse; (b) Findings are bald and without evidence; (c) Findings are based on perfunctory and superficial approach; (d) Findings are Wholly unreasonable; (e) Findings cannot be reversed by re-assessing evidence merely because a view different than the one recorded by the Courts below is possible (e) Powers of revision under Sub-section (6) of Section 15 of the Act do not extend to power of regular appeal. 8. When the facts of the instant case are examined in the light of the principles deducted from various judgments of Honble the Supreme Court as noted in the preceding para then it becomes clear that the findings are not perfunctory or without any evidence. The personal necessity of the landlord-respondent No. 1 has been pleaded, proved and accepted by both the Courts. There are categorical findings that the residential accommodation of the landlord-respondent No. 1 is at a distance of 4-5 Kms. from the premises in question. It has also come on record that the landlord respondent No. 1 was about 60 years of age at that point of time and he cannot shuttle between the present premises, which is a shop, and his residential accommodation. The plea of splitting of tenancy has been rightly rejected as is evident from the quoted para. Likewise, the Appellate Authority also rightly rejected the plea that no visitor comes to the landlord-respondent No. 1. 9. The argument of learned Counsel for the tenant-petitioner based on the judgment of Honble the Supreme Court in the case of Shiv Sarup Gupta v. Dr. Likewise, the Appellate Authority also rightly rejected the plea that no visitor comes to the landlord-respondent No. 1. 9. The argument of learned Counsel for the tenant-petitioner based on the judgment of Honble the Supreme Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta 1999(2) R.C.R. 141, can also not be accepted because the ratio of that judgment is not attracted to the facts of the present case because in that case it has been laid down that if the requirement of the landlord is found to be a mere wish then it cannot be considered as a bona fide requirement. In the present case the necessity has been highlighted by virtue of the fact that the landlord-respondent No. 1 was an old man of 60 years at the relevant time and he needs the accommodation to take rest. Therefore, I do not find any merit in the submission made by the learned Counsel and the same is hereby rejected. For the reasons aforementioned, this petition fails and the same is dismissed.