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2013 DIGILAW 1063 (PNJ)

Rajinder Kumar v. Haropinder Singh

2013-08-14

RAKESH KUMAR GARG

body2013
JUDGMENT RAKESH KUMAR GARG, J. This revision petition has been filed at the instance of tenant, whose eviction from the demised premises was ordered vide order dated 20.02.2008 by the Rent Controller, Ajnala and even the appeal filed by him against the aforesaid order of eviction was also dismissed by the Appellate Authority vide order dated 10.09.2010. Suffice it to say that the respondent and lord had filed an eviction petition against the petitioner for his eviction from the demised premises on various grounds; however, eviction of the petitioner has been ordered only on the ground that the demised premises are required by the respondent and lord for his personal use. A perusal of the impugned judgments of the authorities below would show that the personal need of the respondent and lord was set up in the following words: “that petitioner requires this demised shop for his personal use and occupation to run business of sale of pesticides and other medicines since he is a Pharmacist by profession and he does not own nor has vacated any shop in the urban area of Ajnala after commencement of Rent Act, 1949. Despite his requests respondents did not vacate the shop. Hence this petition.” The tenant petitioner contested the aforesaid ground taken by the respondent and lord submitting that the respondent and lord does not require the demised shop for his alleged personal use, further adding that respondent and lord has concealed from the Court that he is possessing three vacant shops adjoining to the shop in dispute and he also owns various nonresidential properties in Ajnala and about two years back he got vacated a shop from one Gajjan Singh and another shop from Pardeep Kumar, who had also executed rent note dated 23.05.1990 in favour of the respondent and lord in which description of other properties owned by him were also given, and thus, the landlord does not fulfill the conditions of eviction on the ground of personal necessity. While allowing the eviction petition, the Rent Controller, Ajnala, vide order dated 20.02.2008, held as under: “15. This issue is the sole issue pressed by learned counsel for petitioner. While allowing the eviction petition, the Rent Controller, Ajnala, vide order dated 20.02.2008, held as under: “15. This issue is the sole issue pressed by learned counsel for petitioner. Onus to prove this issue being on petitioner he himself stepped into the witness box as AW1 and in his examination in chief while reiterating his version in petition, also stated that he is a Pharmacist by profession and he intends to open a Pesticides medicine shop in the premises in question and therefore, he requires the demised premises. In his cross-examination also he stood by his such version when he stated that he did his Pharmacy course from Patiala University and is due to retire in four years. Respondent No.1 did not even suggest to his witness that he does not require the demised premises for his referred personal use and occupation. RW3 i.e. respondent No.1 in his examination in chief though stated that demised premises is not required by petitioner since he has no intention to open business of selling of Pesticides medicine but in his cross-examination he admitted that petitioner holds a degree in B. Pharmacy, though remaining suggestions were denied by him. 16. From above detailed circumstances, it is obvious that version of petitioner AW1 that he requires demised premises for his referred personal use and occupation has gone uncontroverted by respondent No.1 when he failed to controvert AW1 in his cross examination on the point. By way of amendment respondent also pleaded on file that petitioner owns and also has many vacant shops at Ajnala and that he does not require the demised premises bona fidely. To prove this aspect while deposing as RW3 respondent No.1 also examined RW1 Gajjan Singh and RW2 Deed Writer Amolak Singh. RW1 stated that petitioner owns many properties at Ajnala one shop he got vacated from him and another he got vacated from Pardeep Kumar which are lying vacant. In his cross examination RW1 admitted that petitioner had got vacated a shop from him by way of ejectment on the ground that said shop had become unfit and unsafe for human habitation. He also admitted that except shop in question in this petition remaining all shops have fallen down and these all remaining shops properties are owned by Surjit Singh (father of petitioner). He also admitted that except shop in question in this petition remaining all shops have fallen down and these all remaining shops properties are owned by Surjit Singh (father of petitioner). RW2 Deed Writer did not see original rent note dated 23.5.90 which he allegedly scribed at the instance of RW1 Gajjan Singh favouring petitioner. He brought on file only the crux of his deed writer register regarding this rent note as Ex.R1. In his cross examination, he admitted that he has not seen such original rent note in Court. His remaining cross examination is suggestive in nature. RW3 Rajinder Kumar respondent No.1 also admitted that the shop petitioner got vacated from RW1 Gajjan Singh has fallen down and also that except for shop in question in this petition remaining all shops have fallen down. Remaining suggestions were denied by him. 17. The above detailed discussion regarding testimonies of RW1 to RW3 patently show that except for shop in question there is no other shop belonging to petitioner. Remaining all shops also are nonexistent since have fallen down and also that these all properties excluding shop in question in this petition belong to Surjit Singh and not to petitioner. In nutshell, it can be put that except for shop in question petitioner cannot opt for any other property for his use and occupation. 18. Finding these circumstances learned counsel for petitioner has referred to pronouncements 2007(2) CCC 613 (P&H) and 2007(2) CCC 276 (P&H) vide which it is held by our own Hon’ble High Court that it is for the landlord to choose which of the premises is suitable for his business and where he earlier was in service his need of shop to start business bonafide and not a mere wish. In the facts in hand the shop in question is the only shop available with the petitioner where he can run his proposed medicine shop. He also holds a degree in Pharmacy and is due to retire in coming 4 years. His need to run such business and his competence in the field therefore patently is bonafide and genuine. It neither is a mere wish nor is a hypothetical ground. Petitioner holds the relevant qualifications and expertise to run such business of Pesticides medicine shop. He also holds a degree in Pharmacy and is due to retire in coming 4 years. His need to run such business and his competence in the field therefore patently is bonafide and genuine. It neither is a mere wish nor is a hypothetical ground. Petitioner holds the relevant qualifications and expertise to run such business of Pesticides medicine shop. In the light of these circumstances the pronouncement 1978(1) RLR 589 (P&H) relied upon by respondent No.1 can be of no help to him when it is already held above that the intention of petitioner to run referred business in the demised shop does not appear to be a mere wish. 19. In view of above detailed circumstances, I find that petitioner has been able to show on file that he requires the demised shop for his personal use. This issue is decided in his favour and against respondents.” The aforesaid findings of the Rent Controller were upheld by the Appellate Authority vide its judgment dated 10.09.2010 in the following manner: “13. In order to prove issue No.3 the petitioner himself appeared in the witness box as AW1 and categorically deposed in his affidavit Ex.AW1/A that he required the demised shop for his personal use as he wants to start business of selling pesticides and other medicines, he being a Pharmacist by profession. He also deposed in his affidavit that he does not own any property in the vicinity of Ajnala nor he has vacated any shop after the commencement of Act III of 1949. Besides himself, the petitioner also examined AW2 David Masih Draftsman who appeared and proved the site plan Ex.A1 of the demised shop. No doubt the petitioner has not examined any witness to support his version, but in his cross examination the respondent has not put even a single suggestion to him regarding the issue of bonafide requirement. Although in his written statement the appellant/respondent has denied the requirement of the respondent/petitioner to be bonafide, but in the cross examination of AW1 respondent/petitioner, it has not been suggested to him that his requirement is not bonafide. Although in his written statement the appellant/respondent has denied the requirement of the respondent/petitioner to be bonafide, but in the cross examination of AW1 respondent/petitioner, it has not been suggested to him that his requirement is not bonafide. Another plea raised by the appellant/respondent in his written statement is that the petitioner is in possession of three vacant shops adjoining to the shop in question on the main road at Ajnala which are in his exclusive possession and he also alleged that the petitioner recently got vacated shop from Gajjan Singh and another shop from Pardip Kumar who were also his tenants. Therefore, the plea raised by the appellant/respondent is that the petitioner/landlord is in possession of three shops in Ajnala and this suggestion put to AW1 that he owns any other shop in town Ajnala, but it has been denied by him in his cross examination. Therefore, in the cross examination of AW1 nothing material could be extracted from the mouth of the respondent/petitioner which could doubt or shatter his version. 14. Now the next point to be seen is as to whether the appellant/respondent has been able to rebut the version of AW1. RW1 Gajjan Singh and RW3 Rajinder Kumar both have stated that the petitioner owns many properties in Ajnala and according to Gajjan Singh, he also got the shops vacated from him and Pardeep Kumar and similar version has been given by RW3. But in cross examination, RW1 Gajjan Singh has clearly admitted that except the shop in dispute, all other shops have fallen down. Similarly, RW3 Rajinder Kumar appellant/respondent himself has admitted in his cross examination that except the shop in dispute, all other shops have fallen down and he also admitted that the shop in which Gajjan Singh was tenant has also fallen down. He even admitted that the petitioner has passed the degree in B.Pharmacy. Therefore, when the appellant/ respondent could not extract anything material from the mouth of the respondent/petitioner in the cross examination which could doubt his version of examination in chief and even it has come up in the cross examination of RW1 Gajjan Singh and RW3 Rajinder Kumar that except the shop in dispute, the other shops have fallen down, it stands established by the petitioner that he has got no other shop for starting his business of pesticides except the shop in dispute. The law is well settled that the landlord is the best judge with regard to his bonafide need and opinion of the tenant cannot be imparted in it and in this regard, reference can be made to 2010(1) RCR (Civil) 460. Further the learned counsel for the respondent has relied upon the case law reported in 2006(4) Civil Court Cases 250 (P&H) in which it has been observed by the Hon’ble High Court that the need of the landlords has to be examined broadly and reasonably considering their social status and other requirements. In 2010 (1) Civil Court Cases 316 (SC) relied upon by the learned counsel for the respondent/petitioner, it has been observed by the Hon’ble Apex Court that landlord can seek eviction of a tenant from nonresidential building on ground of personal necessity.” Thus, it may be noticed that both the Authorities below have found that the respondent and lord wants to start his business of selling pesticides and other medicines, he being a Pharmacist by profession, and the said need of the respondent and lord though has been denied in the written statement, but, not even a single suggestion has been put to the landlord in his cross examination that his requirement is not bonafide. Thus, the requirement of the respondent and lord, as provided under Section 13(3)(a)(i)(a) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as, ‘the Rent Act’) stands fulfilled. In fact, learned counsel for the petitioner has very fairly stated before this Court that he is challenging the findings of the authorities below on the ground that in the instant case, requirements of Section 13(3)(a)(i)(b) & (c) of the Rent Act are not fulfilled. At this stage, a reference is made to the provisions of Section 13(3)(a)(i)(a), (b) & (c) of the Rent Act, which read thus: “13.Eviction of tenants. At this stage, a reference is made to the provisions of Section 13(3)(a)(i)(a), (b) & (c) of the Rent Act, which read thus: “13.Eviction of tenants. (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession (i) in the case of a residential building if commencement of this Act, in the said urban area” (a) he requires it for his own occupation; (b) he is not occupying another residential building, in the urban area concerned; and (c) he has not vacated such a building without sufficient cause after the Learned counsel for the petitioner tenant, elaborating his arguments, has vehemently argued that from the evidence on record it stands proved that the respondent and lord is having many other shops in Ajnala and he has concealed from the Court that he was possessing three vacant shops adjoining to the demised shop; and further that he owns various nonresidential properties in Ajnala and about two years back he got vacated a shop from one Gajjan Singh and another from Pardeep Kumar, who had also signed rent note dated 23.05.1990 in favour of the respondent and lord, in which description of other properties owned by the respondent and lord was given, and the respondent and lord did not disclose in his ejectment petition the aforesaid facts which shows that his need was neither reasonable and bonafide nor genuine. Moreover, the petitioner, in his amended written statement, raised a specific plea with regard to the respondent and lord having in his occupation three shops in the locality and plea with regard to the other shops vacated by other persons and thereafter, in the replication the said facts were duly admitted by the respondent and lord by admitting that the said shops were in his occupation but have fallen down; and thus, the respondent and lord is not entitled to seek eviction of the petitioner tenant on the ground of his personal necessity. The argument raised is wholly misconceived and is liable to be rejected. The argument raised is wholly misconceived and is liable to be rejected. A perusal of the pleadings made on behalf of the respondent and lord, as noticed in the foregoing paragraphs of this judgment, would show that he had clearly pleaded that he requires the demised shop for his personal use and occupation to run the business of selling pesticides and other medicines; and that neither he owns nor has got vacated any shop in the urban area of Ajnala after commencement of the Rent Act. Thus, all the ingredients of Section 13(3)(a)(i)(a), (b) & (c) of the Rent Act, which are required to be fulfilled by a landlord to seek eviction of a tenant from the demised premises on the ground of personal necessity, have been clearly pleaded. The argument, as raised on behalf of the petitioner, that the respondent and lord has not disclosed the factum of other shops available to him in the eviction petition, is not fatal to the case as in the first instance, he was not required to state the details at that stage and in any case, on raising a specific plea in this regard by the petitioner tenant in his written statement, the respondent and lord in his replication has clearly stated that the shops available to him, as mentioned by the petitioner, have fallen down. This fact is not refuted by the petitioner at any stage by pleading or leading evidence to the effect that all those shops, which he alleges to be available to the respondent and lord, have fallen down. Moreover, the shops got vacated by the respondent and lord from Gajjan Singh and Pardeep Kumar were admittedly ordered to be vacated on the ground that the same have become unfit and unsafe for human habitation. Obviously, such a building, which has become unfit and unsafe for human habitation, cannot be said to be available for occupation of the landlord for his personal use and occupation. It may further be noticed that other three shops allegedly available to the respondent and lord do not belong to him but are owned by his father Surjit Singh as admitted by petitioner’s own witness. At this stage, it may further be noticed that it cannot be held that the respondent and lord had concealed any fact from the notice of the Court, as replication is a part of the pleadings. At this stage, it may further be noticed that it cannot be held that the respondent and lord had concealed any fact from the notice of the Court, as replication is a part of the pleadings. Moreover, this Court has clearly laid down in a catena of judgments that if there is any defect in the pleadings of the landlord with regard to the ground of eviction, as raised under Section 13(3)(a)(i)(a), (b) & (c) of the Rent Act, the same is not fatal to the petition and the same can be rectified immediately on raising such an objection. This view finds support from the judgment of Hon’ble the Supreme Court and this High Court in ‘M/s Bhatia Cloth House v. Dr. Raj Kumar Gupta and another’ 2008(4) RCR(Civil) 250, wherein it has been held as under: “It is consistent position in law that ambiguity in pleadings regarding the ingredients, set out in Section 13(3)(a) of the Act, if made good in the evidence, is sufficient compliance of the statutory provisions.” In ‘Raj Kumar v. Budha Mal’ 2011(2) RCR (Rent) 60, it was held that: “Having perused the judgment in Banke Ram’s case (supra), this Court is of the opinion that of course ingredients of subsection (b) and (c) of Section 13(3)(a)(i) of the 1949 Act are to be necessarily pleaded in the eviction petition, however, as held by the Full Bench in paragraph 12 of the judgment, this Court is of the opinion that it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged under subsection (b) and (c) can be looked into. Hence, in the opinion of this Court, if parties were fully aware about the ingredients of subsection (b) and (c) at the time of leading evidence and both the parties have led evidence on these issues, then petition cannot be thrown out merely because the landlord has failed to plead ingredients of subsection (b) and (c) in the eviction petition.” Herein, in this case, the petitioner raised an objection in his written statement which was duly replied by the respondent and lord giving detailed explanation in his replication. Thus, no prejudice has been caused to the petitioner in this regard. Thus, no prejudice has been caused to the petitioner in this regard. Not only this, parties were fully aware of the case set up by them and have also led evidence in this regard; and therefore, the argument raised on behalf of the petitioner tenant does not carry any weight. In support of the aforesaid view, reliance may be placed on ‘Nedunuri Kameswaramma v. Sampati Subba Rao’ 1963 SC 884, wherein it is held as under: “Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.” In view of the finding that requirement of the respondent and lord is bonafide and that neither he owns/occupies any other shop nor has got vacated any shop in the vicinity; no exception can be taken to the impugned orders passed by the authorities below. No other argument has been raised. Dismissed. Before parting with the judgment, office is directed to get the response of the officer(s) concerned in pursuance of the orders passed by this Court on 17.07.2013, 02.08.2013 and 12.08.2013, and put up the case for further orders.