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2014 DIGILAW 653 (PNJ)

Sita Devi v. Om Parkash

2014-03-28

MAHESH GROVER

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JUDGMENT Mr. Mahesh Grover, J.: - This petition is directed against the order of the Appellate Authority, Narnaul dated 14.9.2001 reversing the findings recorded by the learned Rent Controller and thereby dismissing the rent petition filed by the petitioners/landlords. 2. The petitioners had preferred a petition under Section 13 of the Haryana Urban Control of Rent and Eviction Act, 1973 seeking eviction of the respondent from the demised premises consisting of a room on the ground floor and two rooms on the first floor as depicted from the site plan. The eviction was sought on the ground of non-payment of rent and bona fide need. The petitioners pleaded that they had no other residential building in the urban area of Narnaul and were residing in the house of Gangadhar, who is son of petitioner Sita Devi and brother of Pardeep Kumar, and were desirous of settling down in their own house independently. It was also pleaded that petitioner Pardeep Kumar had to get married. 3. The arrears of rent having been tendered largely reduced the relevance of this issue. While determining the issue of personal necessity the learned Rent Controller accepted the plea but the same was upset by the Appellate Authority. 4. The reasoning adopted by the Appellate Authority to reverse the findings of the learned Rent Controller was the reliance on the statement made by the respondent-tenant that the petitioners own number of houses in the urban area of Narnaul and the averment to the extent that the petitioners own only residential house was erroneous. The petitioners had in their statement clarified during the course of evidence that the alternate house in their possession as alleged by the respondent was not within the urban area of Narnaul and was not fit for human habitation. It was pleaded that it was used for tethering cattle and storing fodder. The Appellate Authority adopted a strange reason to say that since the alternate property with the petitioners was not being used for tethering cattle at that point of time, the same could be used for residential purposes. It also concluded that this accommodation had two toilets as was visible from the site plan Ex.P-9 and concluded that the petitioners had tried to conceal facts from the court. 5. It also concluded that this accommodation had two toilets as was visible from the site plan Ex.P-9 and concluded that the petitioners had tried to conceal facts from the court. 5. During the course of proceedings, learned counsel for the petitioners placed on record certain material to indicate that the respondent was in possession of his own residential accommodation and had started living there. He has placed photographs on record as also sale deed and necessary information to this effect. An application was also moved for determining the mesne profits. The respondents in turn admitted that they had residential property in their favour but said that it was in village Buchukpur, which is at some distance away. The petitioner in turn countered the same to say that this village was now within the urban limits of Narnaul and is in the controlled area as declared by the Urban Development Department. He also stated that the distance between the house of the tenant and Canal Rest House, Singhana Road, Narnaul is hardly 250 meters. A map of the city was also relied upon. 6. During the course of hearing the respondent managed to delay the proceedings for as long as almost two years on the pretext of seeking instructions regarding these facts. The orders passed from time to time would indicate that he did not plead any such instructions as was required of him vide order dated 27.9.2012 wherein it was categorically noticed that the petitioners had no house of their own while the respondent was residing in his own house. So much so the court was intending to issue bailable warrants to secure his presence to seek such information that would have largely determined the course of proceedings. Learned counsel representing the respondent assured the court that the respondent would remain present in Court but failed to secure his presence. 7. The Court then examined the matter and is deriving an adverse inference against the respondent on account of his conduct and not bringing forward the relevant information to the court. 8. The petitioners had pleaded personal necessity to settle themselves after marriage of petitioner No.2 in their own house which is the sole residential accommodation they have. The other property alleged by the respondent to be in possession of the petitioners is stated to be in a village and not fit for human habitation. 8. The petitioners had pleaded personal necessity to settle themselves after marriage of petitioner No.2 in their own house which is the sole residential accommodation they have. The other property alleged by the respondent to be in possession of the petitioners is stated to be in a village and not fit for human habitation. The Appellate Authority was wrong in assuming that the petitioners could have used these alternate premises for their residential purposes and forsake their claim to the demised premises. The personal necessity has to be determined from the perspective of the landlords and if the landlords in the instant case have pleaded that they are desirous of settling down in their own accommodation after marriage of petitioner No.2, the Appellate Authority should have respected such a desire. Besides, the irony of the situation cannot be lost to the courts where the tenant has a house of his own which he has chosen for his residence but keeps the demised premises locked or unused to deprive the landlords of their rightful possession. Such could never have been the intention of the Act which was tailored to protect the tenants in view of the paucity of accommodation. A property which is not put to intended use by the tenant cannot be permitted to be retained by him by a measure of protection of the Act in preference to the desire of the landlord to enter his premises for a use beneficial to him. 9. Since the respondent has failed to offset the assurance made by the petitioners on the basis of relevant material on record, I am of the considered view that the petition needs to be accepted, more particularly keeping in view the following observations made by the Hon’ble Supreme Court in Sarla Ahuja v. United India Insurance Company Ltd. 1998(2) RCR 533 : “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 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 of 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. Similarly, in Atma S.Berar v. Mukhtiar Singh 2003(1) RCR 42 it has been observed as under :- “The landlord is the best judge of his residential requirements. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own”. 11. Having regard to the aforesaid, the petition is accepted and the respondent is directed to be evicted from the premises. The executing Court shall upon an execution application being preferred before it without any delay resort to the process to retrieve the possession from the respondent who has unnecessarily clung on to it while himself residing in another premises. For this purpose the executing Court will not hesitate to get the possession from the respondent through police help and the process shall be concluded as expeditiously as possible without falling prey to the usual gimmicks of the tenant/Judgment Debtor who resort to procedural delays to delay the inevitable. 12. Before parting with the order, the Court is also called upon to decide the issue of mesne profits. The Hon’ble Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 S.C.C. 705 held that while granting mesne profits the Court has to rely on robust common sense, knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record as these provide useful inputs as relevant facts to exercise the discretion called for in such cases. 13. 13. Keeping in view the above and noticing the fact that the demised premises are one room on the ground floor and two rooms on the first floor in a place like Narnaul, in the opinion of the Court an amount of Rs.3,000/- per month would be a safe assessment of the mesne profits. The respondent shall be required to pay the amount @ Rs.3,000/- per month from 23.11.1998, when the eviction order was passed by the learned Rent Controller, within a period of two months from the date of communication of the order. In case the same is not deposited, the petitioners would be at liberty to approach the Court of learned Rent Controller, who shall proceed to recover the same through coercive process which may also include attachment of salary of the respondent since he is stated to be an employee of the Haryana Government. Petition allowed. —————————