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2009 DIGILAW 962 (PNJ)

Naresh Kumar And Another v. Krishan Lal Kohli

2009-05-18

K.KANNAN

body2009
Judgment K.Kannan, J. 1. The only ground that survives for consideration in the Civil Revision after the order of the Rent Controller which found affirmation in the order of the Appellate Authority upholding the landlords claim for an eviction is on the ground of his personal requirement. The landlord had sought eviction on several grounds and the ground of personal requirement itself was brought through an amendment to the petition subsequent to the filing of the petition as an event that arose sub-sequent to the filing of the petition. The subsequent event was the alleged death of brother of the landlord and the landlord contended his brothers son was in the native village and he was to be gainfully occupied in some business and as a karta of the family, he required the premises for accommodating his brothers son namely Ravinder Mohan. The two Courts below while rejecting every one of the grounds urged by the landlord such as change of user material impairment and nuisance, upheld the landlords claim only on the ground of personal necessity by pointing out that the landlord had examined even the nephew Ravinder Mohan to substantiate his need and it was always the prerogative of the landlord to decide on the suitability of the premises for personal occupation. 2. The counsel for the petitioner would urge that the so called personal requirement of the landlord was itself not made in the petition but was only brought through an amendment to the pleading. Even a subsequent event that could be relevant could be urged only if the need was either of the landlord himself or the member of the family who was dependent on him. He read out in Court the evidence of Ravinder Mohan who admitted that he was doing work in his native village in Dhanas and that he was earning his livelihood in the said business and due to financial problems, he left shop at Dhanas one year later, when there was a theft in his shop. He also stated that the business done by him was financed by his father and not by the petitioner- landlord. Even now at the time, he was giving evidence he had no funds to start his business. He also stated in Court that his elder brother was a government employee and he was dependent only on his elder brother. He also stated that the business done by him was financed by his father and not by the petitioner- landlord. Even now at the time, he was giving evidence he had no funds to start his business. He also stated in Court that his elder brother was a government employee and he was dependent only on his elder brother. He further deposed that the landlord had another shop in Sector 16 in which Ravinder Mohan had also l/3rd share but the landlord had vacated the tenant and he was occupying the booth in Sector 16, Chandigarh. 3. This evidence is illustrative of two important facts i.e. (i) Ravinder Mohan for whose benefit the property was being sought was not dependent on the landlord nor was the landlord dependent on him and (ii) Ravinder Mohan himself had no funds to start his business. Another subsequent event that took place after the tenant gave evidence was, he had himself filed an affidavit in Court purporting to withdraw his statement and contending that he did not want the premises and an objection was filed by the landlord stating that Ravinder Mohan was acting in collusion with the tenant. Significantly it was not the contention of the landlord that Ravinder Mohan himself did not make a statement and that the affidavit was brought about by impersonation or forgery. However, the application moved by Ravinder Mohan was dismissed and the matter came to be decided only on the evidence of Ravinder Mohan, among other witnesses. 4. The learned counsel for the petitioner, Mr. Akshay Bhan, relies on the affidavit filed by Ravinder Mohan expressing that he had to carry on business on the premises as expression of a state of mind that defied the so-called bona fide need of the landlord. If the landlord had no need of his own and that he could treat the need of the members of his family vicariously as his need, it cannot be extended to the needs a nephew or the need assessed without reference to how the nephew himself disowned his need by an affidavit. The authorities below committed a serious error in my view by taking the personal need of the landlord as satisfied when all that the landlord was trying to say was that the property was necessary for running a business of his nephew. The authorities below committed a serious error in my view by taking the personal need of the landlord as satisfied when all that the landlord was trying to say was that the property was necessary for running a business of his nephew. There is no reference at all in the order of either of the authorities of the admitted position that the business that the nephew was running in his native village was with the assistance of the funds provided only by his father and even after the life time of the father, it was only his elder brother who was supporting him. Even the element of dependence of the nephew on his uncle did not exist to support of the plea bona fides of the requirement of the landlord. Mr. Akshay Bhan refers to a decision of Honble the Supreme Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, A.I.R. 1999 Supreme Court 2507, that explains the words bona fide needs coming within the definition of the Delhi Rent Act. Honble the Supreme Court explained the limits of intervention of a finding of fact of subordinate authorities by the High Court. While cautioning that the High Court would not enter into re-appreciation of evidence, still observed that the High Court would test the order of the Rent Controller on the touchstone of whether the decision was according to law. For that purpose, it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting objectively could have reached the conclusion on materials available. 5. I have already pointed out that the evidence of Ravinder Mohan for whose alleged benefit the landlord seeking eviction had not been considered in its proper perspective. The orders of the Courts below are therefore clearly vitiated. The respondent, Shri Krishan Lal Kohii, who appeared in person, relies on several decisions to bring home the point that the High Court will not re-appreciate the evidence and the finding cannot be reassessed merely because a different view was possible. To this effect, he relied upon the judgment in case Sarla Ahuja v. United India Insurance Company Limited? (1999-1)121 P.L.R. 805; Ashwani Chatlay v. Brig. To this effect, he relied upon the judgment in case Sarla Ahuja v. United India Insurance Company Limited? (1999-1)121 P.L.R. 805; Ashwani Chatlay v. Brig. H.S.Dhillon 2003(2) R.C.R. (Rent) 131; Atma S.Berar v. Mukhtiar Singh, (2003-1)133 P.L.R. 371 (S.C.); Krishan Lal and another v. Harvinder Singh and another,(2005-1)139 P.L.R. 628, that proof of bona fide requirement is essentially is a question of fact, notwithstanding the circumstances that inferential facts were drawn from other primary evidence and the High Court would not normally interfere with the evidence of facts as laid down in Janak Raj v. Mohan Lal, 2004(2) R.C.R. (Rent) 638 and Shahti Devi v. Smt. Paramjit Kaur Rang, 2004(2) R.C.R. (Rent) 703. In my view, the decision of the Rent Controller and the Appellate Authority are vitiated by the failure to examine the issue that the requirement of the landlord shall not be held to be proved if it was not for his own personal need or any member of his family who was dependent on him. In this case, the person for whose benefit the landlord sought eviction was neither a member of his own family or a person dependent on him. The assumption that he, as a karta after the death of his brother was entitled to take interest in the affairs of his nephew, shall have to be examined on what is permissible in law and shall not be on the basis of how a paternal uncle is interested in his nephew. While it may not be artificial to reject outright a genuine concern for a landlord to set up in business a nephew who had lost his own father, whether such filially and altruism would be sufficient ingredients to sustain a ground of eviction is quite a moot point; nay, even impermissible within the scheme of the Rent Acts where the nephew was not dependent on his uncle. The lofty concern of senior member for a near relative cannot still substitute what the specific provisions of law demand under the provisions of East Punjab Urban Rent Restriction Act as applied to Chandigarh when the nephew disowned by an affidavit the need as proffered by the uncle. 6. The orders of the Courts below under such circumstances are set aside and the Civil Revision is allowed.Petition allowed.