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2009 DIGILAW 355 (PNJ)

M/s Bata India Limited v. Ashok Kumar Chopra

2009-02-18

K.KANNAN

body2009
Judgment K.Kannan, J. 1. The tenant who faces the order of ejectment issued by the Rent Controller and affirmed by the Appellate Authority is the revision petitioner before this Court. 2. The admitted case is that the Bata India Ltd., became a tenant under Krishna Rani. She had three sons Ashok Kumar, Ram Kumar and Pardeep Kumar. Two of her sons separated themselves from the joint family of which Joginder Pal Chopra, the husband of Krishna Rani was the Manager and set up independent business. Joginder Pal was having another shop in which he was carrying on a business with the younger son Pardeep Kumar. The original landlord Krishna Rani had three other shops which were in the hands of tenants. 3. The application had been filed by the petitioner seeking eviction of the tenant on the ground that amongst her sons Ram Kumar had contemplated setting up an independent business along with his son Rakesh Chopra and as the family had grown in size it was found not possible for the two sons Ashok Kumar and Ram Kumar to carry on the business together and therefore it was decided to establish a separate business. Ashok Kumar had even constructed his own house and had set up an independent family. The three other shops in the hands of the tenants were small and were not adequate for establishing the business which Ram Kumar was to commence. The contention of the landlord was accepted by the Courts below and the counsel for the revision petitioner assails the findings of the Courts below on the following grounds :- (a) The sons Ashok Kumar and Ram Kumar had actually separated themselves from the family and they were in no sense dependent on their mother. The requirement of such a divided son could not be convassed by the mother as the bona fide requirement of the landlord. (b) The witness on the side of the plaintiff had admitted that there were other shops which had fallen vacant after the vacation of the premises by the tenants and the said fact was concealed in the petition. The landlords needs therefore did not satisfy the requirement of law. (c) The mother who knew about the existence of other properties was the most competent person to speak about the needs of the family and her own non- examination was fatal to the case . 4. The landlords needs therefore did not satisfy the requirement of law. (c) The mother who knew about the existence of other properties was the most competent person to speak about the needs of the family and her own non- examination was fatal to the case . 4. Learned Senior counsel appearing on behalf of the tenant refers to the averments of the petition where the landlord had admitted in paragraph 4 that even apart from the three shops namely the shop in the hands of two of her sons, the shop in the hands of her husband and the shop in the hands of the tenant, there were three other petty shops of small size such as bathroom nearby which according to the landlord were in occupation of the other tenants and that such shops were not suitable for the requirement and the demise shop was sought to be vacated. These averments in the petition were not a complete picture of true state of affairs but truth had been brought out in the evidence of AW-5 Ram Kumar (for whose benefit the property was sought) had admitted "the property purchased by Krishana Rani was under tenancy from the date of purchase. Some of the tenants vacated it voluntarily and the ejectment proceedings were filed to get it vacated. A writing was executed when those tenants who themselves vacated the shops ejectment order was passed against other tenants and not in possession of those, they might be in possession of my mother Krishna Rani". According to learned Senior counsel these properties which had been vacated by the tenants had not been referred to in the petition and hence the landlords needs were not bona fide and the landlord was guilty of suppression of material evidence. 5. The learned Senior counsel appearing for the respondent who joined issues on this directly by reference to the fact that the specific averment in the Rent Control petition that apart from the three large shops in which the two sons on the one hand and father and yet another son on the other and one more shop in which the tenant was in possession, the landlord had owned only three other shops all of which were in the hands of tenants. There were no other properties and the evidence of AW-5 referring to three shops that had been vacated by tenants were indeed the three shops in which the family members and Bata Company were respectively in possession. The Senior counsel also refers to the suggestion made to AW-5 at the end of the cross-examination that Krishna Rani had many other properties and that the witness was suppressing them. The suggestion was not that three other shops which had been vacated by the tenants were the shops which were still available for occupation with the landlord. He also seeks to explain the evidence of AW-5 with the statement that there was another shop adjoining the demised premises where the News Agency was being run by Rajinder Singh Walia and mother had purchased the property and after getting the site plan sanctioned she had a property constructed in the year 1977-78 and rented them out. The learned Senior counsel for the landlord adverts to Ex. A-10 which gave out details of six units of property that the landlord was possessed of and that plan clearly showed how apart from total number of six shops referred to in the petition there had been no other property. He identified the property in the hands of one Rajinder Singh who was carrying on business in News Agency had also been rented out and the allusion to "the tenants vacating the property" in the cross-examination of AW-5 was only with reference to the shops among the six shops mentioned in the petition. It is a trite proposition of law that the evidence of witnesses must be read as whole and shall not be read piecemeal. Again, it is a well known proposition that an admission could always be explained. I have gone through the entire evidence and reading it as a whole it admits of no ambiguity that apart from total number of six shops, three small and three big, there were no other shops in the occupation of the landlord and there had been no suppression of evidence in that regard. Again, the argument by the learned senior counsel Mr. Again, the argument by the learned senior counsel Mr. Chetan Mittal that the mother cannot secure possession of the property from the tenant on behalf of the divided son has no meaning, when what is necessary is whether the person for whom possession was sought was a member of the family of the landlord or not. It is immaterial whether the son has pre-existing right in the property or he was a member of the joint family. 6. Learned counsel appearing for the revision petitioner refers to a decision in Joginder Pal v. Naval Kishore Behal, 2002(1) RCR(Rent) 582 : AIR 2002 SC 2256, for the proposition that in order to test the bona fides of the landlord "for his own use" it shall be whether the requirement pleaded and proved were properly recorded as landlords own requirement and when on the facts and circumstances of a given case, when occupation for a person other than the landlord was sought for, then the nature of relationship would have to be seen. According to the learned Sr. counsel arguing on behalf of the tenant, this decision must be understood in the context of evidence that the son for whose requirement the landlord had sought for ejectment was not dependent on the mother and hence the requirement is not bona fide. The reliance on this decision, in my view, is misplaced. In the said judgment the Supreme Court was equally upholding the landlords claim for ejectment and found the bona fides of the need of the landlord as having been established. The nature of relationship or dependence which the Supreme Court had referred to was in the context of nearness of relationship and not the status of a person as divided son or member of a joint family. It will be wrong to read the judgment out of context in which the observations were made. 7. The learned Sr. counsel for the landlord also refers to several decisions of the Supreme Court in J. Pandu v. R. Narsubai, 1987(1) RCR(Rent) 379 : 1987(1) RLR 499 and G.C. Kapoor v. Nand Kumar Bhasin and others, 2002(1) RCR(Rent) 407 : 2002(1) SCC 610, which were instances of respective landlords contentions being upheld for the requirement of the sons business. counsel for the landlord also refers to several decisions of the Supreme Court in J. Pandu v. R. Narsubai, 1987(1) RCR(Rent) 379 : 1987(1) RLR 499 and G.C. Kapoor v. Nand Kumar Bhasin and others, 2002(1) RCR(Rent) 407 : 2002(1) SCC 610, which were instances of respective landlords contentions being upheld for the requirement of the sons business. He particularly lays emphasis on the judgment of this Court in Roshan Lal v. Ved Parkash, reported in 2002(2) RCR(Rent) 494 : 2003(2) PLR 97 which, while adverting to the test of bona fides of the landlords requirement, held that when a landlord was running a business jointly with his brother, it could not be expected that he could be tied for all times to come with his brother for running the business and there was no reason why a person cannot ask for eviction of a particular shop for running an independent business after breaking the joint business with the brother. 8. If the landlord gave all the details of the property in her occupation and if it was shown through evidence that only the demised premises in the hands of the tenants were suitable for the landlord to commence the business, the tenant cannot dictate to the landlord any other building in the hands of any other tenant would be more suitable for running the business. It shall always be the prerogative of the landlord to make choice of the premises which she wants. 9. The bona fides of the need as found expressed in the petition and upheld by the Rent Controller and affirmed by the Appellate Authority have cogent and convincing reasons and documentary proof and there is no scope for interference in revision. The revision petition is dismissed with costs assessed at Rs. 10,000/-. Petition dismissed.