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2013 DIGILAW 1382 (PNJ)

Kamla Devi and Ors v. Urmila Devi

2013-10-21

RAKESH KUMAR GARG

body2013
Rakesh Garg, J. 1. This is tenants' revision petition challenging the impugned order dated 20.12.2011 of the Appellate Authority, Patiala whereby appeal filed on behalf of the respondent-landlord against dismissal of ejectment application vide order dated 8.2.2011 of the Rent Controller, Patiala has been accepted and petitioner-tenants have been ordered to be evicted from the demised premises. In brief, the respondent-landlady filed an ejectment petition against Madan Lal (since deceased and now represented by LRs i.e. the petitioners) on the ground of personal necessity. It was alleged that the respondent-landlady had retired from service on 30.11.2005 and she requires the demised premises for her personal use and occupation as she intends to do the business of books and stationery. It was further averred that she was neither having any other shop in her possession nor has ever got vacated any such shop/non-residential building after the commencement of the Act. It may further be noticed that one Surinder Kumar Dhawan, husband of the respondent-landlady, was also joined as co-petitioner in the ejectment application. 2. Upon notice, tenant-Madan Lal filed written statement raising various preliminary objections and denying the personal necessity of the respondent-landlady further pleading that she had sufficient accommodation at her disposal. It was specifically stated that the petitioner has given another shop on rent adjoining to the shop in question to one Union Medical Store. 3. At this stage, it is necessary to notice that Surinder Kumar Dhawan, arrayed as petitioner No. 2 in the petition was allowed to withdraw from the petition vide order dated 19.1.2011 of the Rent Controller without prejudice to the rights of the petitioner-tenant. 4. While dismissing the ejectment petition, the Rent Controller observed as under: 12. In order to get the respondent ejected on the ground of personal use and occupation and bona fide requirement the applicant is require to specifically prove that the applicant is nor having other property nor has got the same vacated. 13. The respondent in the written statement has taken up the specific plea that the applicants are having other properties including two godowns and a vacant site. The applicants in the rejoinder have taken up the specific plea that they are only having one property which is the demised premises. 13. The respondent in the written statement has taken up the specific plea that the applicants are having other properties including two godowns and a vacant site. The applicants in the rejoinder have taken up the specific plea that they are only having one property which is the demised premises. Even, while tendering statement by way of affidavit, the applicant Urmila Devi has not disclosed the other property and has specifically submitted that he has no shop in her possession nor she has got any shop vacated. At the time when the petition was filed or rejoinder was filed or when the applicant Urmila Devi had given the statement by way of affidavit Ex. PW1/A, the applicant No. 2 namely Surinder Kumar was still a party. Therefore, both Urmila Devi and Surinder Kumar were required to disclose their properties as they had filed the present petition by claiming themselves to be the landlord. An application for withdrawing the petition on behalf of applicant No. 2 Surinder Kumar was filed after the case matured and was fixed for rebuttal evidence and arguments. The respondent from the testimony of RW4 Ravinder Pal Jindal has been deposited the cheque in the account of applicant No. 2 Surinder Kumar. All the witnesses of the respondent have submitted that the shop under the possession of Union Medical Store is the ownership of the applicants. Even the applicant in her cross-examination has submitted that there is another shop in the house in which the applicant is residing and the same is on rent with Union Medical Store. The applicant has further admitted in her cross-examination that they are having one godown which is in the name of her husband. So, with a view to save themselves for not having complied with the basic provisions of law, an application was filed to withdraw the petition on behalf of applicant No. 2. This Court while disposing of the application had specifically observed that all the rights of the respondent shall be protected. The applicant was duty bound to specifically plead regarding the properties owned by them. The applicant has specifically not mentioned about the said properties owned by them. Therefore, the applicant is not entitled to get the demised premises evicted on the ground of bona fide requirement for her own personal use and occupation. The applicant was duty bound to specifically plead regarding the properties owned by them. The applicant has specifically not mentioned about the said properties owned by them. Therefore, the applicant is not entitled to get the demised premises evicted on the ground of bona fide requirement for her own personal use and occupation. Therefore, in these circumstances, issue No. 2 is accordingly decided against the applicant and in favour of the respondent. 5. Aggrieved from the aforesaid order of dismissal of ejectment petition by the Rent Controller, the respondent-landlady filed an appeal before the Appellate Authority which was accepted. While accepting the appeal, the Appellate Authority observed as under: 13. In the light of aforesaid arguments, I have perused the record. The present petition was filed on the ground of personal necessity. In para No. 2 of the petition, it has been specifically pleaded that the petitioner Urmila Devi is the landlady who rented out the shop in question. In para No. 2 of the written statement, this fact is admitted as correct. In para No. 4 of the petition, the rent agreement between Urmila Devi and the respondent has been pleaded. The said para has also been admitted in the written statement. The admission of the respondent to this aspect has been further corroborated by documentary evidence. Ex. Pl is the copy of rent note which has been executed by the respondent in favour of petitioner Urmila Devi. From the admission of the respondent and contents of rent deed Ex. Pl, it is established that there exists relationship of landlady and tenant between the petitioner Urmila Devi and the respondent. 14. The present petition has been filed on the ground of personal necessity. It is pleaded in para No. 7 of the petition that the petitioner had retired from the service on 30.11.2005 and she requires the shop in question for doing the business of books and stationary. She is not having any other shop in her possession nor she has ever vacated any non-residential building without sufficient cause after the commencement of the Act. 15. The retirement of the petitioner on 30.11.2005 stands proved by the statement of petitioner Urmila Devi in her affidavit Ex. PW1/A by pension payment order Ex. P2, intimation slip of PPO Ex. P3 and certificate of report-cum-gratuity payment order Ex. P4. 16. The petitioner has categorically stated in her affidavit Ex. 15. The retirement of the petitioner on 30.11.2005 stands proved by the statement of petitioner Urmila Devi in her affidavit Ex. PW1/A by pension payment order Ex. P2, intimation slip of PPO Ex. P3 and certificate of report-cum-gratuity payment order Ex. P4. 16. The petitioner has categorically stated in her affidavit Ex. PW1/A that she is not having any other shop in her possession. Neither anything in the cross-examination has been pointed out nor any documentary evidence has been led by the respondent to prove that she is having any other shop in her possession or that she had ever vacated any other shop after the commencement of the Act. Even in her cross-examination, she had categorically stated that apart from the said shop, she is not having any other shop. 17. The learned counsel for the respondent made reference of her cross-examination where she had stated that there is godown on rent which is on the name of her husband. Her husband had rented out a shop of Union Medical Store and he had not filed any case of vacation of the said shop lam the considered view that the said part of the cross-examination of the witnesses has no bearing on this case. This part of the cross-examination is with regard to the other property owned by her husband and not by her. Moreover, the said properties are not lying vacant whichever the ownership of her husband. She is not in a position to occupy those properties to run her business after her retirement, since these properties are already in possession of the tenants. 18. In view of aforesaid circumstances, withdrawal of the petition on behalf of petitioner No. 2 Surinder Kumar has no bearing on this case, especially when the ejectment was sought on the ground of personal necessity of petitioner Urmila Devi and not on the ground of personal necessity of petitioner No. 2 Surinder Kumar. Secondly, it has not been established that any shop which is owned by petitioner Surinder Kumar has been vacated after the commencement of the Act or is lying vacant at the time of filing of the present petition. 19. The proved facts on record indicate that petitioner Urmila Devi has retired from service. She wants to open a shop for sale and purchase of Books and stationary. She is the best judge of her needs. 19. The proved facts on record indicate that petitioner Urmila Devi has retired from service. She wants to open a shop for sale and purchase of Books and stationary. She is the best judge of her needs. No malafide on the part of the petitioner has been pointed out. The need of the petitioner is proved to be bonafide. Hon'ble Punjab and Haryana High Court in Paras Ram v. Surinder Kumar 2006(2) R.C.R. (Rent) 273 : 2006 (2) PLR-684 (Supra) held that once the landlord establishes that he intends to start his new business and his intention cannot be held to be a mere wish merely on the ground that he has no practical experience for doing a particular type of business. In Baljit Singh v. Manjeet Kaur 2008 (4) RCR (Civil)-261 (Supra), the landlady sought ejectment on the ground of personal need. During the pendency, husband of the landlady inherited three shops as a co-sharer, but the shops were sold off. It was held that the shops were not inherited by the land lady, but by the husband. The ejectment was allowed. 20. Keeping in view the aforesaid fact and circumstances of this case, the need of the petitioner is found to be bonafide. The personal necessity is proved, as such she is entitled for ejectment order on the ground of personal necessity. Ld. Trial Court has not appreciated these facts. 21. No other point was argued before me. 22. The present appeal is accepted. The order passed by the Rent Controller dated 08.02.2011 is set aside. 6. The aforesaid order of the Appellate Authority is under challenge in this revision petition at the instance of the tenants. 7. At the time of motion hearing, noticing the contentions of the counsel for the petitioners, this Court passed the following order on 23.3.2012: Counsel for the petitioner contends that the mandatory requirement of Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 has not been complied with as the landlords did not specifically stated whether he is in occupation of any other property in the urban area. It is contended that the pleadings are only regarding Urmila Devi and the word is used are not in her possession. It is further submitted that this fact specifically denied in the written statement and in the evidence it is not stated. It is contended that the pleadings are only regarding Urmila Devi and the word is used are not in her possession. It is further submitted that this fact specifically denied in the written statement and in the evidence it is not stated. When the case was ripened for arguments, the landlord No. 2 withdrew from the ejectment application but the said order was conditional and in pursuance of that the Rent Controller dismissed the ejectment petition on the ground that there was concealment regarding the property in possession of the landlords. Accordingly, it is argued that the Appellate Authority while reversing well reasoned order of the Rent Controller has not properly appreciated this legal position. Reliance is placed upon Shankar Lal v. Madan Lal and others, : 2011 (1) RCR (Rent) 139 and Prabha Kanta Sharma v. Smt. Gian Mala Verma, 2007(1) R.C.R. (Rent) 410 : 2007 (1) PLR 711 Notice of motion for 8.5.2012. In the meanwhile, dispossession of the petitioner is stayed, subject to the petitioners depositing all the arrears of rent by 16.04.2012 with the Rent Controller and shall continue depositing the rent which accrues by the 7th of every month with the Rent Controller, failing which, the protection granted by this Court shall be deemed to have been vacated. Records of the Courts below be requisitioned. At this stage, Mr. Arvind Rajotia, Advocate accepts notice on behalf of respondent. 8. During the course of hearing, learned counsel for the petitioners has reiterated the contentions raised at the time of motion hearing and has argued that in view of the facts established on record wherein Surinder Kumar Dhawan, the co-petitioner of the respondent-landlady, has been found to be renting out other properties, the present ejectment petition was liable to be dismissed. 9. However, counsel appearing on behalf of the respondent-landlady has supported the judgment of the Appellate Authority and has argued that withdrawal of the petition on behalf of Surinder Kumar Dhawan has no bearing on this case, especially when the ejectment was sought on the ground of personal necessity of Urmila Devi alone and not on the ground of personal necessity of said Surinder Kumar Dhawan. Secondly, there is nothing on record to show that the respondent has ever vacated any shop or lying vacant at the time of filing of the present petition. 10. Secondly, there is nothing on record to show that the respondent has ever vacated any shop or lying vacant at the time of filing of the present petition. 10. I have heard learned counsel for the parties and perused the record. 11. A perusal of the ejectment petition would show that a specific averment has been that respondent-Urmila Devi is the landlady of the demised premises. It is the further specific averment that she requires the demised premises for her own use and occupation. Counsel for the petitioners could not dispute that no averment has been made in the petition with regard to necessity of Surinder Kumar, husband of the respondent-landlady. Counsel for the petitioners further could not dispute the fact that landlady is the owner of the demised premises and even the rent note was executed by her alone. In view of the aforesaid undisputed fact, the argument raised on behalf of the petitioners before this Court is fallacious as respondent-landlady has come to the Court on specific averment with regard to her own necessity. It further could not be disputed that she fulfills all the other necessary ingredients entitling her to get the vacant possession of the shop in dispute and thus withdrawal of co-petitioner Surinder Kumar from the ejectment petition is insignificant and has no bearing in the instant case. The petitioners cannot take benefit of the fact that since Surinder Kumar was arrayed as co-petitioner and he has rented out a shop belonging to him, therefore, necessity of the landlady is not proved. No other argument was raised. In view thereof, this Court finds no merit in this petition. Dismissed.