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2014 DIGILAW 1639 (PNJ)

Ramesh Chander v. Naveen Gandhi

2014-11-27

G.S.SANDHAWALIA

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JUDGMENT : G.S. Sandhawalia, J. The present revision petition has been filed by the tenant and is directed against the ejectment order dated 10.09.2013 passed by the Rent Controller, Jagadhri and which has been further upheld in appeal by the Appellate Authority on 07.11.2014. 2. The respondent-landlord filed the application for ejectment of the present petitioner from the shop bearing No. 32 which is part of building bearing House Tax Assessment No. C-3/131 situated at Mohan Market, Buria Gate, Jagadhri, Opposite Cremation Ground. The case of the respondent was that he had retired from the Indian Air Force and purchased the shop vide sale deed dated 18.11.2005. The present petitioner had filed a suit for permanent injunction against him that he was a tenant and had also got an injunction whereby, he had been restrained in interfering in the actual and physical possession of the tenant. Ejectment was sought on the grounds of non-payment of rent from 18.11.2005 to 17.10.2008 and the fact that he had retired from Indian Air Force and wanted to start his own business. It was also pleaded that he had met with an accident and his right arm had been amputated and he required the shop in question to run the electrical business as he is retired personnel from Indian Air Force and he had sufficient experience and could run and manage the said business in the shop. It was specifically pleaded that he was not occupying any other similarly situated building in the urban area of Municipality of Jagadhri and has not vacated any other similarly situated building without any sufficient cause within the local limits of Jagadhari Municipality. He had to maintain his wife and two children who were studying and required the shop to start business. 3. The ejectment was opposed on the ground of the conduct of the landlord as such that he had purchased the property and, therefore, tried to interfere in the possession of the respondent forcibly, personally and through his agents and suit for permanent injunction had been filed whereby, injunction had been granted and he had also criminally trespassed in the suit property. The landlord had taken undue advantage of being an Ex-serviceman by putting pressure through higher authorities and thereafter, the present petition was filed on the ground of personal necessity. The landlord had taken undue advantage of being an Ex-serviceman by putting pressure through higher authorities and thereafter, the present petition was filed on the ground of personal necessity. The ground to run business in the disputed property is just an excuse and to take possession of his property, he was taking advantage of being an ex serviceman and his handicap. The rent had been offered and there were no arrears and rather excess amount was there. The petitioner was already in occupation of a shop on the first floor of the building and, therefore, he did not require the property in question. The Rent Controller framed the following issues on the basis of the pleadings of the parties:- "1. Whether respondent is liable to be ejected from the demised shop on grounds set out in the application?OPP 2. Whether the present petition is not maintainable in the present form?OPP 3. Relief." 4. The respondent examined himself as AW-1 and placed on record the certificate of Electrical Diploma and certificate of being an Exserviceman as Exs. A-1 and A-2. He also examined Raj Kumar as AW-2, who was his colleague in the Indian Air Force and who deposed that the chobara on the first floor was still incomplete and neither the walls were plastered and could only be used for storing articles and waste material. 5. The petitioner-tenant examined himself as RW-1 and deposed as per his written statement and also placed on record the injunction orders passed inter se the parties. He admitted that the shutter was still to be installed in the said chobara and that chobaras have been constructed on all the shops and there was a common stair case and that he had not got any proof regarding the fact that the landlord was acting as a property dealer. One Braham Parkash, Clerk was examined as RW-2 to prove the complaints and Swaraj Kumar as RW-3 who deposed that the landlord did not require the premises in question. One Dimple Nagpal as RW-4 was also examined for the purpose of proving the fact that the landlord was doing property business. 6. The issue of arrears of rent was decided in favour of the tenant on account of the fact that the provisional rent, as assessed, was paid alongwith the house tax etc. One Dimple Nagpal as RW-4 was also examined for the purpose of proving the fact that the landlord was doing property business. 6. The issue of arrears of rent was decided in favour of the tenant on account of the fact that the provisional rent, as assessed, was paid alongwith the house tax etc. On the issue of bona fide personal necessity, it was noticed that the conduct of the landlord was not good as he had tried to take forcible possession and injunction was granted against him but merely because the shop had been purchased with the tenant sitting in the said shop, it would not mean that the requirement of the landlord was not genuine. Reliance was placed upon the judgments in Chander Mukhi v. Rajesh Sood, 2008 (1) RCR 405. and Ramesh Chand Bihari Lal v. Ravindra, 2013 (1) CCC 374to reject the argument that if the tenant is sitting in the property, the landlord is not entitled to seek eviction on account of the fact that he had purchased it later. It was noticed that a retired personnel having electrical diploma and wishing to start business of electrical appliances and was residing on rent himself and, therefore, the need was bona fide. Merely because the contention of the respondent that he was a property dealer would not mean that he could be prevented from pursuing the business of his choice and the tenant could not dictate his terms. It was further noticed that in case the property is sold, there was adequate protection provided under the Act and the grievance of the tenant could be looked into but would not be a ground to deny ejectment. The issue of the shop in possession of the petitioner on the first floor was also considered and rejected on the ground that firstly the shop was still under construction as it was an admitted fact and that it was the discretion of the landlord that which is the best premises situated for his interest and it is not for the tenant to dictate his terms. Resultantly, on the ground of bona fide personal necessity, eviction was ordered. The said order, as noticed above, was upheld in appeal. 7. Resultantly, on the ground of bona fide personal necessity, eviction was ordered. The said order, as noticed above, was upheld in appeal. 7. Counsel for the petitioner has vehemently submitted that the landlord was a property dealer and his conduct was as such not good and he had another shop in his possession on the first floor. He has placed reliance upon judgments of this Court in Sadhu Ram Verma v. Pawan Kumar, 2006 (3) PLR 666 and Pritam Singh Bakshi v. Mrs. Sukhdev Kaur and others, 2014 (1) PLR 674. 8. After hearing counsel for the petitioner, this Court is of the opinion that there is no scope for interference in the well reasoned orders passed by the Courts below. The fact remains that the landlord is a retired Air Force personnel who is handicapped and his right arm had been amputated in an accident. He is seeking the eviction on the ground of bona fide personal necessity. He has stepped into witness box and deposed regarding his need. The Courts below have found that his bona fide requirement is genuine, honest and sincere and he requires the premises for running of a business. In case even if he is engaged in the business of property dealing, it would not deny him the right to get the premises vacated for his personal use and requirement. It is not for the tenant to dictate the terms and what business should be run by the landlord and it is the discretion of the landlord to run the business of his own choice. The argument raised that he is in occupation of another shop in the same building and the said fact was concealed also does not cut much ice with the Court since it has come on record that the shop in question is not inhabited and is incomplete. This fact has been admitted by the petitioner himself. 9. The Apex Court in Sarla Ahuja v. United India Insurance Company Ltd., 1998 (8) SCC 119 has specifically held that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. The relevant observations read thus:- "14. 9. The Apex Court in Sarla Ahuja v. United India Insurance Company Ltd., 1998 (8) SCC 119 has specifically held that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. The relevant observations read thus:- "14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself." 10. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222 , it was held that once the satisfaction is there of the bona fide need of the landlord, the Court would not in such a case thrust its own wisdom upon the choice of the landlord. In the said case, the requirement of the landlord was challenged by the tenant on account of the fact that he had sufficient accommodation for his residence. The said plea was rejected. The relevant observations read thus:- "12. Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine' means 'natural; not spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The word 'genuine' means 'natural; not spurious; real: pure: sincere'. In Law Dictionary, Mozley and Whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of 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, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one. But the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against." 11. The judgment in Sadhu Ram's case (supra) pertains to a case where the ejectment had been declined on the ground that there was a shop available already in the same building which was not mentioned in the ejectment application and, therefore, the said judgment would not be applicable to the facts and circumstances of the present case as the other shop is admittedly not complete and occupied. 12. Similarly, in Pritam Singh's case (supra) also, the issue in question was the same and the pleadings did not fulfill the mandatory ingredients of Section 13(3)(a)(i). In the present case, specific averments have been made, as noticed, that he is not in occupation of any other shop and has not vacated any other shop. It has come on record that the other shop is incomplete and the construction had started at a subsequent stage. In such circumstances, the observations of the Constitutional judgment of the Apex Court in Hindustan Petroleum Corporation Ltd. V. Dilbahar Singh, 2014 (9) SCC 78 have to be kept in mind. The same read thus:- "45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on reappreciation of the evidence, its view is different from the Court/Authority below. The same read thus:- "45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on reappreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." 13. Accordingly, the present revision petition is without any merit and is accordingly dismissed.