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2011 DIGILAW 2193 (PNJ)

Ravi Sethi v. Kamla Madan

2011-12-09

RAKESH KUMAR GARG

body2011
JUDGMENT Mr. Rakesh Kumar Garg, J.: - This judgment shall dispose of three civil revision petitions i.e. CR Nos.6982, 6984 and 7066 of 2011 which have arisen out of three rent petitions i.e. Rent Petition No.6, 7 and 8 of 2007 between the parties and were decided vide one common judgment. 2. This is tenant’s revision petition challenging the order dated 4.10.2010 of the Rent Controller, Jagadhri whereby his eviction from the demised premises was ordered and the judgment dated 18.10.2011 of the Appellate Authority dismissing his appeal against the aforesaid order. 3. The respondent-landlady filed three eviction petitions under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1976, for ejectment of the petitioners from the shops in dispute, as detailed in the headnote of the petitions being part of House No.204, situated near DAV Girls College at Chhoti Line, Yamunanagar. In Rent Petition No.6 of 2007 (CR No.6982 of 2011), it was averred that there existed a relationship of landlady and tenant between petitioner-Ravi Sethi and respondent-Kamla Madan. The shop in dispute was rented out by the respondent to the petitioner vide rent deed effected from 1.5.1993 to 31.3.1994 at the rate of Rs.850/- per month plus house tax. It was submitted that rent of the said shop was increased to Rs.1080/- + house tax w.e.f. 1.4.1994. The petitioner was liable to be ejected on the ground that he had subletted the shop in dispute to one Ram Bali Malhotra (who was arrayed as respondent No.2 in the ejectment petition) without the permission of the landlord and in violation of the terms and conditions of the agreement of rent. It was further averred that the petitioner and one Ram Bali Malhotra have changed the user of the shop in dispute and have installed photostat machines and started a STD telephone booth and mobile coupon recharge in the shop in dispute without the prior permission of the respondentlandlady. It was also stated that the petitioner had made huge additions and alterations and had damaged the northern wall and due to demolition of the wall, the roof of the shop in dispute has become weak. The petitioner had also made big holes in the walls of the shop for affixing racks by which the strength of the shop has weakened. The petitioner had also made big holes in the walls of the shop for affixing racks by which the strength of the shop has weakened. It was stated that there were three shops which were rented out to the petitioner and the petitioner without written consent of the respondent, had removed all the intervening walls which were in between the three shops and converted them into one shop without the permission of the landlady. It was further averred that the petitioner was a bad pay master and never paid the rent in time and at present has failed to make the payment of rent for the period from 1.11.2006. It was also submitted that shop in dispute was required by the respondent-landlord for her personal necessity as her son, namely, Narinder Kumar was unemployed and had no source of income. Thus, the petitioner was requested to vacate the shop in dispute but he had refused to do so. Similar ground of personal necessity was raised in other eviction petitions regarding other demised premises. 4. Upon notice, the petitioner filed written statement-cum-counter claim. The facts of written statement placed on record of three petitions are similar except the date of rent agreement and monthly rent of shops. It was submitted that shop in dispute in petition No.7 of 2007 was rented out by the respondent to the petitioner vide rent agreement dated 22.4.1993 on a monthly rent of Rs.850/- per month. It was further submitted that shop in dispute in petition No.8 of 2007 was rented out by the respondent to the petitioner vide rent agreement dated 7.10.1994 on a monthly rent of Rs.800/- and shop in dispute in petition No.6 of 2007 was rented out vide rent agreement Ex.P3 on a monthly rent of Rs.850/- per month. No house tax was payable by the petitioner. It was further submitted that the petitioner filed suit for possession which was dismissed by the court of Ms.Sonika Goel, the then Civil Judge (Junior Division), Jagadhri vide civil suit Nos.1188, 1189 and 1190 of 9.11.2000 decided on 14.10.2006. In those suits, the respondent herself admitted that the petitioner was not liable to pay any tax. It was further submitted that the petitioner filed suit for possession which was dismissed by the court of Ms.Sonika Goel, the then Civil Judge (Junior Division), Jagadhri vide civil suit Nos.1188, 1189 and 1190 of 9.11.2000 decided on 14.10.2006. In those suits, the respondent herself admitted that the petitioner was not liable to pay any tax. It was further submitted that rate of rent of the shop in dispute was not increased after expiry of 11 months but was increased at the rate of 5% per year by the petitioner arbitrarily and illegally whereas the basic rate of rent of the shop was Rs.800/- per month inclusive of house tax and other expenses. It was further submitted that shop was rented out to the petitioner for running the business of stationery etc. and it was agreed at the time of agreement that the petitioner may make any addition or alteration as per requirement of students of college. Moreover, the petitioner was allowed to change the business but in fact he had not changed the business and had expanded the same which was also related to his business of stationery. It was also stated that the petitioner never sublet the shop in dispute to Ram Bali Malhotra and he was not a tenant in the shop and had no concern with the business of the petitioner. It was also stated that as per the rent note, the petitioner was permitted to remove the wall and he had also taken the adjoining shop on rent from the respondent vide rent note dated 1.6.1996 and vide this rent note, he was permitted to make the passage in the northern wall of the shop in dispute. It was further submitted that the petitioner was always ready to pay the rent but the respondent refused to accept the same. All other averments were denied and dismissal of the petition was prayed. 5. The petitioner also filed counter claim for a sum of Rs.4800/- as received by the respondent in advance along with interest and also for a direction to refund Rs.1350/- received by the landlady as house tax on 30.8.2007 in the Court along with interest. 6. Ram Bali Malhotra, who was arrayed as respondent No.2 in the ejectment petition, also filed written statement stating that he has no right or interest in the shop in dispute. 6. Ram Bali Malhotra, who was arrayed as respondent No.2 in the ejectment petition, also filed written statement stating that he has no right or interest in the shop in dispute. He further denied that the petitioner had sublet the shop or any part of it to him and that he was doing any business in the shop in dispute. All other averments of the petition were denied and dismissal of the ejectment petition was prayed. 7. The respondent-landlady filed reply to the counter claim. From the pleadings of the parties, the following issues were framed: “1. Whether respondents are liable to be ejected from the rented premises on the ground mentioned in the petition? OPP 2. Whether respondent No.1 is entitled for excessive amount of rent paid by him to the petitioner as alleged? OPR 3. Whether petition is not maintainable? OPR 4. Relief.” 8. Thereafter, the following additional issues were framed on 22.9.2010: “3-A Whether petitioner has received an amount of Rs.4800/- as advance and respondent is entitled for refund? OPR 3-B Whether respondent is entitled for interest @ Rs.2% per month on advanced amount of Rs.4800/- from 5.10.1994 till its realization? OPR 3-C Whether respondent is entitled for refund of house tax charged by the petitioner? OPR” 9. During the course of hearing, the Rent Controller found that initially the respondent had sought eviction of the petitioner on the ground of non-payment of rent, change of user, subletting and personal necessity of the premises in dispute. The petitioner appeared and tendered the rent and thus, ground of non-payment of rent was given up. Counsel for the respondent-landlord did not press the grounds of subletting of the premises and thus, before the Rent Controller, the following disputed questions remained for determination : (i) As to whether the petitioner was liable to be evicted on the ground of change of user of the demised shop. (ii) As to whether the respondent was entitled for eviction of the petitioner on the ground of personal necessity. 10. Both the points were held in favour of the respondent-landlady. Issues No.2, 3-A, 3-C were answered in favour of the petitioner and issue No.3-B was answered against him. (ii) As to whether the respondent was entitled for eviction of the petitioner on the ground of personal necessity. 10. Both the points were held in favour of the respondent-landlady. Issues No.2, 3-A, 3-C were answered in favour of the petitioner and issue No.3-B was answered against him. Issue No.3 was not pressed by the petitioner and in view of the aforesaid findings, all the petitions were allowed to the extent that the petitioner and Ram Bali Malhotra were held liable to be evicted from the demised shop within a period of two months from the date of order. Counter claim of the petitioner was also partly allowed to the extent that he was held entitled to refund the excessive amount of Rs.4800/- and the house tax received by the respondent in advance and against the aforesaid order/judgment of the Rent Controller, the petitioner-tenant filed three appeals which were dismissed by the Appellate Authority and findings recorded by the Rent Controller were upheld. While upholding the findings of the Rent Controller on the issue of change of user, the Appellate Authority observed as under: “It is an admitted fact that the tenant has installed Photostat machine and STD booth and has also started the business of selling mobile recharge coupens from the demised premises. Apart from the oral evidence led by the petitioner in this regard the photograph Ex.P7 and Ex.P8 have also been placed on record to establish the installation of Photostat machine and STD booth by the tenant in the demised premises. Though the tenantappellant has pleaded that he had started these business with due permission of the landlady but the evidence in this regard is totally lacking in this case. Moreso, the installation of the Photostat machine and STD booth as well as sale of recharge coupens are not the business of such a nature which can be inferred to be the allied business of stationery and thus, in view of the admission of the tenant it is well established on record that the tenant-appellant has change the user of the demised premises and thus, learned Rent Controller has dully considered this aspect in right perspective and arrived to the right conclusion.” 11. Similarly, the findings of the Rent Controller on the ground of personal requirement of demised premises of the respondent-landlord were affirmed by observing as under: In the instant case, the requirement of the landlady/respondent for the demised premises i.e. shop in question for use of her sole son is the requirement of landlord ‘for his own use’ within the meaning of section 13(3) (a) (ii). The evidence placed on the file indicates that the son of the landlord/respondent is running a gift item shop in a very small accommodation that too beneath the stair case of their house. The main contention of the appellant-tenant is that since the son of the landlady is already running business in the space adjoining to the demised premises. It has been further argued that the shop in question is the only source of income and livelihood of the tenant-respondent and thus, he will suffer more hardship than the landlord/petitioner. However, it has been admitted by the tenant-appellant that the son of the landlady is running shop at a small space beneath the stair case of their house whereas the tenant is occupying big hall as he has removed the intervening walls of three shops and has converted the same into one shop. Why would son of the landlady run his business from small space when they are owning big space which is more suitable to run business. The tenant-appellant has not produced any evidence to show that the petitioner/landlady is owner of any other shop or she has got vacated any other shop in the concerned urban area. The legal position is well settled that it is the bonafide personal necessity of the landlord which has to be looked into and not that of the tenant. It is for the landlord to decide as to which one of his shops is required by him for his personal necessity as he is the master of his requirement and a tenant cannot impose his will upon the landlord. Therefore, in the light of above discussion. The expression “for his own use” as occurring in Section 13 (3) (a) (ii) of the Rent Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. Therefore, in the light of above discussion. The expression “for his own use” as occurring in Section 13 (3) (a) (ii) of the Rent Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. The expression landlord requires “for his use” is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal “emanations” of the landlord is included therein. As stated earlier, the tenant has not disputed the fact that the son of the landlady/petitioner is running business in small space that too beneath the stair case of their house. So, the landlady/owner cannot be deprived of to enjoy her right to the property merely on the ground that the tenant will suffer more hardship than the landlord. It is for the landlord/landlady to decide his bona fide necessity to require the premises. A tenant cannot dictate his terms to the landlord/landlady that he/she should continue his/her business from the tenanted premises. It shall always be prerogative of the landlord/landlady to make choice of the premises which he/she wants. Need of the tenant cannot be compared with the need of the landlord. In Raghunath V. Panhale Vs. Chagan Lal Sudarji and Company, 1999 (2) R.C.R. 485 the Hon’ble Apex Court has laid down the following guidelines in respect of definition of bonafide requirement:- i) Requirement of landlord must be both reasonable and bona fide; ii) The word ‘reasonable’ connotes that requirement is not fanciful or unreasonable. It cannot be mere desire. In Raghunath V. Panhale Vs. Chagan Lal Sudarji and Company, 1999 (2) R.C.R. 485 the Hon’ble Apex Court has laid down the following guidelines in respect of definition of bonafide requirement:- i) Requirement of landlord must be both reasonable and bona fide; ii) The word ‘reasonable’ connotes that requirement is not fanciful or unreasonable. It cannot be mere desire. iii) The word requirement coupled with the word reasonable means that it must be something more than mere desire but need not certainly be a compelling or absolute or dire necessity; iv) A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end; v) It may not be need in prasenti or within reasonable proximity in the future. The word bona fide means that need must be honest and not be trained with any oblique motive; vi) Language of provision cannot be unduly stretched or strained as to make it impossible for landlord get possession. Construction of relevant statutory provision must strike a balance between right of landlord and right of tenant; vii) Court should not proceed on assumption that requirement of landlord was bona fide and that tenant could not dictate to the landlord as to how he should adjust himself without getting possession of tenanted premises. No doubt, calling upon a tenant to vacate the tenanted premises in the modern times is hardship to him yet law has to prevail and the genuine need of a landlord cannot be scuttled on the premises of mere hardship. Therefore, the learned Rent Controller has duly appreciated the legal as well as factual preposition of law in right perspective and this court is in agreement with the finding recorded by the learned Rent Controller on this aspect.” 12. Challenging the aforesaid findings of the Authorities below in these revision petitions, learned counsel for the petitioner has vehemently argued that the Authorities below have not appreciated the fact that in the rent deed, the premises in question were given for the business of Stationery etc. and there was no condition according to which the petitioner could not do any other business. and there was no condition according to which the petitioner could not do any other business. The installation of photostat machine, STD-PCO phone and to sell mobile recharge coupons, addition to the business of stationery, cannot be said to be change of user to order eviction of the petitioner from the demised premises. Moreover, the business of photostat machine, sale of mobile recharge coupens and STD PCO are allied and related to the business of stationery and thus, by no stretch of imagination this could have been considered as a change of user of the premises in dispute. 13. While challenging the findings of the Authorities below on the ground of personal requirement of the landlord with regard to the premises in dispute, learned counsel for the appellant vehemently argued that the Authorities below have not appreciated the fact that the respondent was already having the commercial area measuring 320 sq. feet which was not deliberately disclosed. Moreover, admittedly, the son of the respondent was already running the business and had there been no place with him to run the business, the matter could have been different. It has also argued that the area under the occupation of the son of the respondent was more than the area in the shape of three shops with the petitioner and thus, the need of the respondent was not bona fide as sufficient accommodation was already there with the son of the respondent for running his business. 14. Counsel for the petitioner has also raised grievance with regard to rejection of his application to lead additional evidence. According to him, the petitioner had received the vital information under the Right to Information Act, according to which the respondent was having 600 sq. feet covered area which is commercial in nature and out of this 600 sq.feet. covered commercial area, 278 sq. feet commercial area was with the petitioner whereas 320 sq.feet covered commercial area was with the respondent. This information was very vital and important piece of document for the just decision of the case but the Appellate Authority rejected the application to lead additional evidence to prove the said document which was coming from the custody of public office, without any justifiable reasons and thus, according to the learned counsel for the petitioner, the impugned orders of eviction passed against him were liable to be set aside. 15. 15. I have heard learned counsel for the petitioner and have perused the impugned orders of the Authorities below. 16. Both the Authorities below on appreciation of evidence on record, have recorded a concurrent finding with regard to the points raised before this Court and which are in the nature of finding of fact. Before this Court, learned counsel appearing on behalf of the petitioner could not dispute the fact that in the rent agreement itself it is specifically mentioned that the demised premises were let out to the tenant for running the stationery shop only. There is no evidence on record on the basis of which it can be held that installation of STD Booth and photostat machine is allied and ancillary to the business of running a stationery shop. Even before this Court, learned counsel for the petitioner has made no effort to refer to the agreement of rent in question. Thus, no fault can be found in the findings recorded by the Authorities below on the aforesaid issue. 17. So far as the ground of personal necessity is concerned, suffice is to say that admittedly son of the respondent-landlady is running business in a small space below the staircase adjoining to the demised premises. It has also come in the evidence that the shop in question is the only source of income and livelihood of the respondent whereas the petitioner is occupying a big hall as he has removed the intervening wall of three shops and has converted the same into one shop. The petitioner has failed to produce any evidence to show that the respondent-landlady is owner of any other shop or she has vacated any other shop in the concerned urban area. The legal position is well settled that it is the bona fide necessity of the landlord which has to be looked into and not that of the tenant. It is for the landlord to decide as to which of the shop is required by him for his personal necessity as he is the best judge of his need and tenant cannot dictate his terms with regard to the suitability of accommodation in possession of the landlord. The land owner cannot be deprived of to enjoy her right to the property merely on the ground that tenant will suffer more hardship than the landlord. 18. The land owner cannot be deprived of to enjoy her right to the property merely on the ground that tenant will suffer more hardship than the landlord. 18. By producing the evidence petitioner wants to show that the landlord was having larger area of the shop in dispute in his possession which is sufficient to meet his necessity. The evidence sought to be produced by the petitioner as additional evidence is of no help to the petitioner as it is well settled that the tenant cannot dictate the landlord with regard to the suitability of accommodation in his possession and it is the landlord who is the best judge of his needs. Hardship caused to the tenant cannot be a ground to deny the eviction of tenant. Moreover, the petitioner has taken a specific stand in the earlier statement that landlord is having sufficient accommodation in his possession and has also raised the issue before the Authorities but has found no favour as discussed above. Thus, no exception can be taken to the order of rejection of additional evidence of the petitioner. No other point was argued. Thus, no interference is required to be warranted in the findings of the Authorities below. Dismissed.