Madan Lal (Deceased) Through his L. Rs. v. Hardeep Kaur
2013-11-07
AJAY KUMAR MITTAL
body2013
DigiLaw.ai
Ajay Kumar Mittal, J. 1. This revision petition has been filed by the tenant-petitioner against the judgment dated 14.9.2006 passed by the appellate authority whereby the judgment dated 14.6.2005 passed by the Rent Controller allowing the petition under Section 13 of the East Punjab Urban Rent Restriction Act (in short, "the Act") of the landlady-respondent, was upheld. Put shortly, the facts necessary for disposal of the present petition as narrated therein are that the father of the respondent-landlady purchased booth No. 47, Sector 22D, Chandigarh and the ownership was transferred on 20.5.1999 in the name of the respondent by the Estate Officer as per decree passed by the civil court of Meerut. The said booth was taken on rent by the petitioner on 13.3.1982 from the father of the respondent at a monthly rent of ` 500/-. The petitioner did not pay rent and was in arrears of rent from June 1989 till date. Accordingly, the respondent filed an eviction petition on the grounds of non-payment of arrears of rent; she required the demised premises for her own use and occupation for doing the business of readymade garments and that the tenant had made material alterations thereby decreasing the utility of the booth. Upon notice, the petitioner-tenant filed reply taking various preliminary objections. It was pleaded that there existed no relationship of landlord and tenant between the parties. It was admitted that earlier Hazura Singh was the owner of the demised premises but he did not let out the same to the petitioner. Besides controverting the averments made in the petition, a prayer for dismissal of the ejectment petition was made. From the pleadings of the parties, the following issues were framed by the Rent Controller:- 1. Whether respondent is liable to be ejected on the ground of non-payment of rent? OPP 2. Whether respondent has made material alterations? OPP 3. Whether demised premises is bonafide required for the purpose of personal necessity of petitioner? OPP 4. Whether there is relations of petitioner and respondent between the parties? OPR 5. Whether respondent is entitled to counter claim? OPR 6. Relief. 2. Issues No. 1 and 2 were decided against the landlady and in favour of the tenant.
OPP 3. Whether demised premises is bonafide required for the purpose of personal necessity of petitioner? OPP 4. Whether there is relations of petitioner and respondent between the parties? OPR 5. Whether respondent is entitled to counter claim? OPR 6. Relief. 2. Issues No. 1 and 2 were decided against the landlady and in favour of the tenant. Issue No. 3 was decided in favour of the landlady holding that she required the booth in question for her personal use and occupation whereas under issue No. 4 it was held that there existed relationship of landlord and tenant between the parties. Accordingly, the Rent Controller vide judgment dated 14.6.2005 allowed the ejectment petition filed by the landlady and directed the tenant to deliver the vacant possession of the booth in question to the landlady within two months. Feeling aggrieved, the tenant filed an appeal before the appellate authority who vide judgment dated 14.9.2006 upheld the judgment of the Rent Controller and dismissed the appeal. Still dissatisfied, the tenant has approached this Court by way of instant revision petition. 3. Learned counsel for the petitioner-tenant submitted that the need of the landlady-respondent was not bonafide. The petition had been filed only to evict the tenant. The landlady had expressed her wish and not the bonafide requirement. The conduct of the respondent was not genuine. Reference was made to the statement of the landlady who had appeared as PW1 and in particular to her examination-in-chief, wherein it was stated that "if my booth is vacated then I will think whether I am to run business or not." According to the learned counsel, this clearly negated the requirement of personal necessity as the landlady was not even sure as to whether the business was to be run or not and which business she was to run in the premises and, therefore, the authorities below were in error in recording the finding of personal necessity in her favour. Reliance was placed upon judgment of this Court in CR No. 5081 of 2003 decided on 8.7.2010 (Mrs. Ranbir Talib @ Mrs. Ranbir Satwant Singh v. M/s. Bhatia Gas), in support of his submission. Referring to the judgment of the Hon'ble Supreme Court in Shiv Sarup Gupta v. Dr.
Reliance was placed upon judgment of this Court in CR No. 5081 of 2003 decided on 8.7.2010 (Mrs. Ranbir Talib @ Mrs. Ranbir Satwant Singh v. M/s. Bhatia Gas), in support of his submission. Referring to the judgment of the Hon'ble Supreme Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta 1999(2) R.C.R. (Rent) 141 : (1999) 6 SCC 222 , it was urged by the learned counsel for the petitioner that the requirement of the landlady was not genuine, real and sincere and, therefore, the petition has been wrongly allowed by the Rent Controller and upheld by the appellate authority on the ground of personal necessity. It was pointed out that the mesne profits in terms of order dated November 30, 2011 from the date of eviction order, i.e. 14.6.2005 till 31.8.2013 amounting to ` 14 lacs had been deposited and are lying with the Registrar of this Court. A prayer for the refund of the same was also made. 4. On the other hand, learned counsel for the landlady respondent submitted that it was not essential to mention the precise nature of business as held in Kewal Krishan v. Amrik Singh 2001(1) R.C.R. (Rent) 434 : 2001(1) PLR 485. Support was also drawn from M/s. Satpal Vijay Kumar v. Sushil Kumar : 2011(1) R.C.R. (Rent) 160 : 2011(1) PLR 274 and Mohd. Ayub and another v. Mukesh Chand, : 2012(1) R.C.R. (Rent) 56 : AIR 2012 SC 881 . With reference to the statement made by the landlady-PW1, it was submitted that the business which had to be started was to be started only after the premises were vacated. 5. I have heard learned counsel for the parties and perused the record with their assistance. 6. After having considered the respective submissions of learned counsel for the parties, I do not find any merit in the revision petition. 7. Under Section 13(3)(a)(i) of the Act, a landlord can apply to the Rent Controller seeking possession of the demised premises where he requires it for his own bonafide requirement on fulfillment of following conditions:- (a) he is not occupying another residential building in the urban area concerned; and (b) has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area. 8.
8. Though the terminology of bonafide requirement has not been defined in the Act but in Raghunath G. Panhale v. M/s. Chagan Lal Sudarji and Company, 1999(2) RCR 485 the Hon'ble Supreme Court has enumerated the following guidelines:- 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 bonafide requirement is something in between a mere desire or wish on one hand that a compelling or dire or absolute necessity at the other end. v) It may not be need in praesenti 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 not bona fide and that tenant could not dictate to the landlord as to how he should adjust himself without getting possession of tenant premises. 9. The Hon'ble Apex Court in various pronouncements had laid down guiding principles to be followed by a court while adjudicating the bonafide requirement of a landlord which should be genuine, honest and conceived in good faith. In M/s. Rahabar Productions Pvt. Ltd. v. Rajendra K. Tandon,: 1998(1) RCR 482, it has been observed as under:- The phrase "bona fide need" or "bona fide requirement" occurs not only in the Delhi Rent Control Act but in the Rent Control legislation of other States also. What is the meaning of this phrase has been considered innumerable times by various High Courts as also by this Court and requires no citations to explain its legal implications. Even then reference may be made to the decision of this Court in Ram Das v. Ishwar Chander and others, : 1988(1) RCR 625, in which it was indicated that "bona fide need" should be genuine, honest and conceived in good faith.
Even then reference may be made to the decision of this Court in Ram Das v. Ishwar Chander and others, : 1988(1) RCR 625, in which it was indicated that "bona fide need" should be genuine, honest and conceived in good faith. It was also indicated that landlord's desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. These observations were made in respect of the provisions contained in E.P. Urban Rent Restriction Act, 1949. 10. The bonafide requirement of a landlord depends upon facts and circumstances of each case and there cannot be a strait jacket formula for this purpose. The burden lies upon the landlord to establish that the accommodation is bonafide required by him for personal use. While adjudicating whether the requirement is bonafide or not, it is to be seen objectively and not subjectively by the Court though, the landlord is the best judge of his requirement. The need of the landlord must exist so as to distinguish it from mere wish or desire. 11. In order to adjudicate whether there exists personal bonafide necessity of the landlady or not in the present case, the evidence produced by the parties needs to be examined. 12. Landlady Hardeep Kaur had appeared as PW1 and stated that she had received the booth in question from her father. There was no other income of her husband other than salary who was working in Punjab National Bank. The booth had been let out to the tenant-Madan Lal by the father of the landlady. She further deposed that she was graduate and wanted to do business to repay back the loan which was taken by her husband for purchasing the house for ` 9 lacs. In her statement as PW1, she had stated to the following effect:- If my booth is vacated then I will think whether I am to run business or not again said which business I will start in the premises I will think after the premises are vacated by the respondent.
In her statement as PW1, she had stated to the following effect:- If my booth is vacated then I will think whether I am to run business or not again said which business I will start in the premises I will think after the premises are vacated by the respondent. The earlier portion that the landlady would think whether to run the business or not was not complete statement but the entire statement has to be seen where she has later on clarified by stating that the nature of business would be decided after the booth was vacated. It was not mandatory for the landlady to have specified the particular business to be carried on in the booth after its vacation by the tenant. It was sufficient for her to have deposed that she wants to run the business in the booth in question. 13. It is not sine qua non for the landlord to specify the nature of business for which the premises are bonafide required by him. There being time lag between the filing of the petition and the time when actual business would be started, the nature of business could be decided after the demised premises are vacated by the tenant. Non-specifying the nature of business would not disentitle the landlord to seek eviction on the ground of personal necessity. The abovesaid view finds support from the following observations in Kewal Krishan's case (supra):- 9. As against the above submission of the learned counsel for the tenant, the learned counsel for the respondent-landlord relied on a decision rendered by Hon'ble Supreme Court in Raj Kumar Khaitan and others v. Bibi Zubaida Khatun and another,: 1995(1) RCR (Rent 495 (SC) : AIR 1995 SC 576 . Pointed attention of this Court was invited to the following observation made by the Apex Court: It is clear from the averments made in the above quoted paragraphs that the plaintiffs asserted that there was no other means of livelihood with them and as such they wanted to set up their own business in the premises in dispute. The High Court, however, came to the conclusion that apart from above quoted pleadings it was necessary to plead the nature of the business which the appellants-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error.
The High Court, however, came to the conclusion that apart from above quoted pleadings it was necessary to plead the nature of the business which the appellants-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated. 10. In view of the determination of the apex Court extracted above, it is clear that it is not incumbent upon the landlord to express the precise business which is sought to be set up in the premises. 14. Adverting to the judgment relied upon by learned counsel for the petitioner, it may be noticed that in Mrs. Ranbir Talib @ Mrs. Ranbir Satwant Singh's case (supra), this Court was dealing with a case where the landlady had changed her stand given in the pleadings from deposition while appearing in the witness box. In those circumstances, the Court had concluded that there was no bonafide requirement of the landlady, which is not the case here. Further, in view of the authoritative pronouncement of the Apex Court in Raj Kumar Khaitan and other's case (supra) and this Court in Kewal Krishan's case (supra), no benefit can be derived by the petitioner from the said judgment. The decision of the Hon'ble Apex Court in Shiv Sarup Gupta's case (supra) when examined in detail also does not support the case of the petitioner. 15. Examining the evidence in the light of enunciation of legal principles noticed herein above, finding of the authorities below on issue No. 3 regarding bonafide personal necessity of the landlady may be referred to which read thus:- XXX 16. Secondly, the Ld. Counsel for the respondent has argued that it has come in the evidence of the petitioner that she is a housewife. She has not got any experience to run any business in the booth in question. As such, in the absence of experience it can easily be concluded that the petitioner does not want to run the business in the booth in question, after getting it vacated she wants to sell the booth. 17. But on the other hand, the ld.
She has not got any experience to run any business in the booth in question. As such, in the absence of experience it can easily be concluded that the petitioner does not want to run the business in the booth in question, after getting it vacated she wants to sell the booth. 17. But on the other hand, the ld. Counsel for the petitioner has argued that in order to get the booth in question vacated it is not necessary on the part of the petitioner to prove that she wants to do such and such business and she has got experience in that field. It is sufficient if the petitioner has deposed that she wants to run the business in the booth in question. In support of this, the ld. Counsel for the petitioner has relied upon a case law 2003(2) RCR page 2. In this case law the landlord retired from service as Teacher and wanted land for starting firewood business. The contention of the tenant was that the need was not bonafide as landlady had no background of business. She was unmarried and her income from pension was sufficient. This contention was repelled. It was held that once the landlady has pleaded personal need to run business in the premises and has entered into the witness box in support of her case she cannot be disbelieved unless need pleaded by her could be unfounded, unreasonable or fanciful or unless there was material to show that the need was not genuine. In view of this case law referred to by ld. Counsel for the petitioner, I am also of the opinion that when the petitioner has specifically pleaded that she is housewife. Her husband is bank employee. Her two sons are studying. Her husband has availed loan of ` 9 lacs for the purchase of house and in order to return the loan amount she wants to run the business in the booth in question. I think it is sufficient on the part of the petitioner to prove that she requires the booth in question for her personal use and occupation. As such, the objection taken by the respondent that the petitioner does not require the booth in question for her personal use and occupation does not carry any weight. 18.
I think it is sufficient on the part of the petitioner to prove that she requires the booth in question for her personal use and occupation. As such, the objection taken by the respondent that the petitioner does not require the booth in question for her personal use and occupation does not carry any weight. 18. From the foregoing discussion, I have come to the conclusion that the petitioner has been able to prove that she requires the booth in question for her personal use and occupation. 16. The appellate authority while endorsing the aforesaid findings had recorded as under:- 14. It is the case of the applicant that she requires the demised premises for her own personal use and occupation as she intends to run the business of ready made garments there. On the other hand, it is the case of the respondent that the applicant does not require the demised premises for her use and occupation and she is contacting the Property Dealers and will sell out the demises premises after eviction of the respondent from the demised premises. So far as the plea of the respondent that the applicant wants to sell out the demised premises after evicting him from the demised premises, the East Punjab Urban Rent Restriction Act has provided safeguard for the tenant in case the landlady sell out as alleged or re-let out the demised premises after getting it vacated from tenant on the ground of personal necessity, and does not occupy the same for her personal use and occupation, the tenant-appellant has every right to get re-possession of the demises premises under the law. 15. Now it is to be seen whether the demised premises is required by the applicant for her personal use and occupation? It is the case of the petitioner that she requires the demised premises for her own use and occupation for starting her business of readymade garments to clear the loans of her family. 16. On the other hand, it is urged on behalf of the tenant that since the applicant does not occupy any experience for running her business there, as she herself stated that she is a housewife, so, she does not require the demised premises for her bonafide use and occupation. 17. Applicant Hardeep Kaur while appearing as PW1 has stated that she is graduate and wants to do her business.
17. Applicant Hardeep Kaur while appearing as PW1 has stated that she is graduate and wants to do her business. Her husband has taken loan for purchasing the house and as he is to repay back the loan, she want to start her business. In 'Meenal Eknath Kshirsagar v. M/s. Traders & Agencies 1996(2) RCR SC 533, it was held by the Apex Court that it is for the landlord to decide how and in what manner he should live and the landlord is the best judge of his residential requirement. If landlord desired to beneficially enjoy his own property when the other part occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Court to dictate him to continue to occupy such premises. It has also been held by the Apex Court in 'Shiv Swaroop Gupta v. Dr. M.C. Gupta, : 1999(2) R.C.R. (Rent) 141 : AIR 1999 SC 2507 that the judgment of the facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere and honest. If the answer be in the positive, the need is bonafide. Rent Control Legislation generally leans in favour of the tenant. It is only the provision for seeking eviction of the tenant on the ground of bonafide requirement of the landlord for his own use and occupation or use of the tenanted accommodation which treats the landlord with some sympathy. The Apex Court was also pleased to observed in 'Joginder Pal v. Naval Kishore Behl,: 2002(1) RCR 582 that bonafide requirement of a person who was dependent upon the landlord or on whom the landlady was dependent. The Apex Court was further pleased to observe that it is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. So far as the necessity of the landlady for the demised premises for her own use and occupation is concerned, the same seems to be genuine, honest and bonafide.
So far as the necessity of the landlady for the demised premises for her own use and occupation is concerned, the same seems to be genuine, honest and bonafide. The argument of the learned counsel for the tenant that she has no experience to run the business in the demised premises, also does not cut any ice because once the lady has pleaded personal need to run business in the premises and has entered the witness box in support of her case, she cannot be disbelieved unless need pleaded by her could be unfounded, unreasonable or fanciful or unless there was material to show that the need was not genuine. The respondent has not succeeded in proving that need of the landlady is not genuine and is fanciful. As stated by her, Hardeep Kaur landlady is graduate and a graduate lady can easily run any business and, as such, can help financially to her family. Hence, the need of the applicant for the demised premises for her personal use and occupation is held to be genuine, honest, bonafide and there is an element of need. The learned Rent Controller has rightly decided issue No. 3 in favour of the applicant-landlady and as such, findings on issue No. 3 are also affirmed in this appeal. 17. No illegality or perversity could be pointed out in the findings of both the authorities below which may warrant interference by this Court. In view of the above, the need of the landlady is held to be real and genuine and the Courts below have rightly concluded that the demised premises were required bonafide by the landlady-respondent. 18. Accordingly, I do not find any merit in this revision petition and the same is hereby dismissed. Before parting, it is noticed that a sum of ` 14 lacs stands deposited with the Registrar of this Court on account of mesne profits in terms of order dated 30.11.2011 which was passed on the statement of learned counsel for the petitioner accepting ` 15,000/- per month as charges for use and occupation of the demised premises from the date of eviction order passed by the Rent Controller. In view of failure of the revision petition filed by the tenant-petitioner, the amount of mesne profits deposited by the tenant-petitioner be disbursed to the landlady-respondent by demand draft drawn in her favour. Civil Misc.
In view of failure of the revision petition filed by the tenant-petitioner, the amount of mesne profits deposited by the tenant-petitioner be disbursed to the landlady-respondent by demand draft drawn in her favour. Civil Misc. No. 20170-CII of 2011 for mesne profits stands disposed of accordingly.