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2014 DIGILAW 219 (PNJ)

Mohan Lal Gupta v. Satya Devi

2014-01-28

SABINA

body2014
JUDGMENT Mrs. Sabina, J.: - Respondent No. 1 had filed petition under Section 13 of Haryana Urban (Control of Rent and Eviction) Act, 1973 seeking ejectment of the petitioner and respondent No. 2 on the ground of arrears of rent and that the petitioner had materially impaired the value and utility of the shop in question and had sublet the premises in question to respondent No. 2 and was guilty of nuisance to the occupants of the building by installing air conditioner and that the shop in question was required by respondent No. 1 for her son. 2. Petitioner, in his written statement, admitted the relationship of landlord and tenant between the parties but the other contentions in the ejectment petition were denied. 3. On the pleadings of the parties, following issues were framed by the Rent Controller. 1.Whether respondent is liable to be ejected from the demised premises on the ground as alleged ? OPP 2.Relief. 4. Parties led their evidence in support of their case. Rent Controller vide order dated 2.3.2010 allowed the petition and ordered the ejectment of the petitioner on the ground that the premises in question was required by the landlady for her personal use. The said order of the Rent Controller was upheld by the Appellate Authority vide order dated 12.5.2011. Hence, the present petition by the petitioner-tenant. 5. Learned senior counsel for the petitioner has submitted that in the present case, the factum of personal necessity of the landlady could not be said to be established as neither the landlady herself had appeared in the witness box nor her son for, whose use the premises was required by the landlady, had been examined during trial. Only the husband of the landlady had appeared in the witness box as her attorney and his statement was not sufficient to establish the factum of personal necessity. Further AW-3 Rajinder Singh Verma, husband of the landlady, had stated in his cross-examination that they wanted ejectment of the tenant because he had installed air conditioner in the premises and the said witness has further deposed that in case the air conditioner was removed from the ventilator and installed below, then he would withdraw the petition. 6. Further AW-3 Rajinder Singh Verma, husband of the landlady, had stated in his cross-examination that they wanted ejectment of the tenant because he had installed air conditioner in the premises and the said witness has further deposed that in case the air conditioner was removed from the ventilator and installed below, then he would withdraw the petition. 6. Learned counsel for respondent No. 1, on the other hand, has opposed the petition and has submitted that it was settled law that landlady could seek ejectment of the tenant from the premises in question on the ground of family need. Husband of the landlady had appeared in the witness box and had established the factum of personal necessity. 7. In the present case, ejectment petition filed by respondent No. 1 has been allowed by the Courts below on the ground of personal necessity. AW-3 Rajinder Singh Verma, in his cross-examination, deposed that in case the air conditioner was put up at a lower level by the petitioner, then he would withdraw his petition. From this, it appears that the landlady was mainly aggrieved by the fact that an air conditioner had been put up by the petitioner in the wall at a higher level whereas the landlady wanted that it should be put at a lower level. This shows that the landlady, in fact, did not require the premises in question for her personal use. Respondent No. 1-landlady has not appeared in the witness box to establish the factum of personal necessity. As per the case of the landlady, she required the premises in question for her son. Even the son of the landlady has not appeared in the witness box to establish the factum of personal necessity. In order to establish the factum of personal necessity, it was required by the landlady to have appeared in the witness box herself or at least examine her son qua whom the premises in question was required by her. Neither the landlady nor her son have appeared in the witness box. Husband of the landlady has appeared in the witness box as her attorney and the statement of the attorney cannot be said to be sufficient to establish the fact that the landlady required the premises in question for her personal use and occupation. During the course of arguments, it has transpired that the landlady was aged about 58 years. Husband of the landlady has appeared in the witness box as her attorney and the statement of the attorney cannot be said to be sufficient to establish the fact that the landlady required the premises in question for her personal use and occupation. During the course of arguments, it has transpired that the landlady was aged about 58 years. In such circumstances, she could have easily appeared before the Court. The landlady is resident of Jagadhari and the case was also going on at Jagadhar. In the facts and circumstances of the present case, the Courts below erred in holding that the tenant was liable to be ejected as the landlady required the premises in question for her personal use. Rather the husband of the landlady had deposed in his cross-examination that he was ready to withdraw the case in case the tenant removed the air conditioner from the ventilator and affix the same at a lower level. 8. So far as the grounds of eviction i.e. impairment of value and utility and subletting the premises in question by the petitioner to respondent No. 2 are concerned, they were not established by the landlady as no evidence was led to the effect that the value of the premises in question had been impaired. The oral testimonies of the witnesses of the landlady were not supported by any documentary evidence in this regard. It is the case of the landlady herself that respondent No. 2 was working as a compounder with the petitioner. Hence, it cannot be said that the premises in question had been sublet by the petitioner to respondent No. 2. Mere installation of the air conditioner in the ventilator does not mean that the value and utility of the shop had been impaired or that it was a case of nuisance. Further, the construction of toilet cannot be also said to have impaired the value and utility of the shop in question. The landlady had failed to examine any expert to establish that the value and utility of the shop had been impaired by the tenant. In this regard, the landlady had also failed to seek appointment of a Local Commissioner to establish that value and utility of the shop had been impaired by the tenant. 9. The landlady had failed to examine any expert to establish that the value and utility of the shop had been impaired by the tenant. In this regard, the landlady had also failed to seek appointment of a Local Commissioner to establish that value and utility of the shop had been impaired by the tenant. 9. Since the landlady had failed to prove her case, the Courts below erred in allowing the ejectment petition, filed by respondent No. 1. Accordingly, this petition is allowed. Impugned orders of the Courts below dated 2.3.2010 and 12.5.2011 are set aside. Consequently, the ejectment petition filed by respondent No. 1-landlady, is ordered to be dismissed. ---------0.B.S.0------------ —————————