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2018 DIGILAW 2428 (PNJ)

Kirpal Singh @ Kirpal Chand v. Satish Kumar

2018-05-24

RITU BAHRI

body2018
JUDGMENT Ms. Ritu Bahri, J. :- Petitioner (tenant)-Kirpal Singh @ Kirpal Chand has filed the present civil revision against the findings recorded by Ld. Rent Controller, Ferozepur and the Appellate Authority, Ferozepur, vide orders dated 06.10.2012 and 22.10.2014, respectively for ejectment of petitioner under Section 13 of the East Punjab Urban rent Restriction Act, 1949, whereby he has been ordered to be evicted from the demised premises on the ground of personal necessity. 2. The respondent-landlord is the owner of portion consisting of one room shown in red colour and the same is part of Court yard, bath room on the ground floor and one room and latrine on the first floor and the same is situated in Mohall Lala Jagan Nath Kakar, Ferozepur City. The petitioner is a tenant in the portion mentioned above on payment of monthly rent of Rs.85/-plus house tax. The respondent sought eviction of the petitioner on the grounds mentioned below:- (i) The petitioner has neither paid nor tendered the arrears of rent for the period 01.11.2008 till the filing of the eviction petition. (ii) Further the respondent required the portion in dispute for the use of shop in question for his son namely Parvesh Garg for running the business of wholesale and retail woolen yarn at Ferozepur City. 3. On the other hand, the petitioner in his reply in the ejectment petition states that the respondent had filed the eviction petition just to pressurize him to enhance the rent to the exorbitant rate of Rs.2000/- per month of which he did not agree. The respondent is in litigation with the petitioner for the last 32 years as several petition against the petitioner has been filed and the same has been dismissed and the whimsical desire of the respondent to settle his son at Ferozepur city for the alleged whole sale business is wrongly projected. 4. After the parties led their evidence, the Courts below ordered the eviction of the petitioner on the ground of personal necessity of the respondent to settle his son at Ferozepur city for the alleged whole sale business. 5. Learned counsel for the petitioner contends that the respondent failed to prove on record the element of need of his son. 4. After the parties led their evidence, the Courts below ordered the eviction of the petitioner on the ground of personal necessity of the respondent to settle his son at Ferozepur city for the alleged whole sale business. 5. Learned counsel for the petitioner contends that the respondent failed to prove on record the element of need of his son. Further the respondent had placed on record site plan Ex A2 and A3 of the properties owned by him at Ferozepur and thus, the application of the respondent for ejectment of the petitioner should not have been allowed. 6. Learned counsel for the petitioner further contends that the respondent had already shifted his family to Ludhiana and his son was associated in the business at Ludhiana and thus it was only a ploy to get the demised premises vacated by alleging whimsical need of the son of the respondent. The observation of the learned authorities below that the respondent did not own any residential or non residential building except the demised premises is against the record, as he has enumerated various properties at Ferozepur city. 7. On the other hand, learned counsel for the respondent states that the Courts below has come to a right conclusion by evicting the petitioner from the demised premises, as the respondent need the demised premises for settling his son who was still a bachelor at the time of filing of the eviction petition. Both the Courts below had appreciated the evidence in true terms. The right of landlord to have sufficient accommodation is a matter of his fundamental right. Heard learned counsel for the parties. 8. The relationship of landlord and tenant is not in dispute between the parties. The question for consideration before this Court would whether the respondent genuinely needs the demised premises for settling his son. Further whether the respondent has some other properties at Ferozepur City. 9. Reference at this stage can be made to the statement of A.W.1-Satish Kumar who reiterated the entire version as mentioned in the petition. In his cross examination he admitted that there is no passage from the shop in question which leads to the residential portion. Further he has a flourish business at Ludhiana and is an income tax payee. 10. Reference at this stage can be made to the statement of A.W.1-Satish Kumar who reiterated the entire version as mentioned in the petition. In his cross examination he admitted that there is no passage from the shop in question which leads to the residential portion. Further he has a flourish business at Ludhiana and is an income tax payee. 10. A.W.2 in his statement has categorically stated that he requires the demised premises for his own use and occupation for running the business of whole yarn at Ferozepur City. In his cross examination, he stated that he and his family shifted to Ludhiana about 15/20 years ago at Ludhiana. His father carrying out a separate business from his brother and doing the business along with his brother. There are three shops lying with Taia (Uncle) and the other one with Chacha (Uncle). 11. R.W.1 i.e tenant/petitioner in his cross examination has admitted that the respondent/landlord does not any other building except the shop in question. He further admitted there is no other shop for the sale of whole sale woolen yarn in Ferozepur City. He has admitted that the respondent is also financially very strong. 12. However, R.W.2 Balwant Rai deposed that the respondent along with his brother owned other residential as well as non-residential building in Ferozepur city including the one situated in Mochi Bazar, Ferozepur city. However, in his cross examination he has admitted that all the shopkeeper used to purchase the wool from Ludhiana and then sold the same in their respective shops. 13. After going through the above statements, one thing is clear that the respondent is carrying out the business of woolen yarn at Ludhiana and in Ferozepur city where the demised shop is located, there are 25 shops for the sale of woolen yarn and all these persons used to purchase the woolen yarn from Ludhaina for the sale of the same in their respective shops. This fact has also been admitted by the petitioner. So, the argument of learned counsel for the petitioner that the need of the respondent is not a bona fide, is rejected, as the son of the respondent wants to start the business independently in the demised shop in question. The need is a genuine one and the son of the respondent can start new business as they are financially sound as well. The need is a genuine one and the son of the respondent can start new business as they are financially sound as well. If the landlord requires the tenanted premises to expand his business, then his need can be presumed to be a bona fide one. With regard to the argument of learned counsel for the petitioner that the respondent besides the shop in question, he along with brothers were having residential or non-residential building in different localities, it is also liable to be rejected, as the respondent himself admitted that he was having residential and non-residential buildings at Ferozepur. He has also placed on record the site plans Ex A2 and A3 of those properties at Ferozepur. He stated that he is only a co-sharer in the residential building. The brother of the respondent is having equal share as the father of the petitioner has expired and now the share of the father has been inherited by four sons and two daughters. Further the petitioner is not in possession of any other residential/non-residential building at Ferozepur urban area except properties mentioned in the foregoing paras. Thus, it is Ravinder Kumar (brother of the respondent) who is in physical possession of other residential property in Ferozepur and the petitioner is only a co-sharer in the property along with other brothers and sisters. 14. On 03.05.2018, learned counsel for the petitioner has handed over a draft of Rs.34500/- and a cash of Rs.6500/- i.e total Rs.41,000/- towards mesne profit in Court to learned counsel for the respondent and the matter was referred to Mediation Centre but the mediation failed between the parties. Reference at this stage can be made to Section 13 (3) (a) to (d) 13. Eviction of tenants. Reference at this stage can be made to Section 13 (3) (a) to (d) 13. Eviction of tenants. (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession- (i) In the case of a residential building if - (a) He requires it for his own occupation; (b) He is not occupying another residential building, in the urban area concerned; and (c) He has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area; (d) it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment: Provided that where the tenant is workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord.] 15. A bare perusal of the aforesaid Act makes it abundant clear that the respondent fulfills the above conditions as required for eviction of the petitioner-tenant as firstly he requires the demised shop so that his son can start business of yarn, which the respondent is having in Ludhiana as well. There are 25 shops for the sale of woolen yarn and all these persons used to purchase the woolen yarn from Ludhaina for the sale of the same in their respective shops. Secondly, he is not occupying another residential building, in the urban area concerned. He has further not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area. 16. Reference at this stage can be made to a judgment passed by this Court in a case of Janta Transport through its partner v. Amarjeet Singh and others, 2016 (1) R.C.R (Rent) 473 wherein this Court dismissed the petition filed by the tenant wherein the tenant was pleading that since respondent/landlord did not disclose that he possessed numerous other properties and this is fatal to his claim. This Court while dismissing the petition of the tenant held that the respondent/landlord is the exclusive owner of the demised premises while other properties are owned by his other family members. Even if one premises lying vacant other brothers and sisters may not agree that one of family should have excessive user and rather may pressurize that premises should be let on rent so that all of them can get proportionate share of rent. Thus, even if the respondent/landlord did not disclose that he along with other family members are in position of other properties, it is not fatal to petitioner’s tenant case. Further, not even whisper by petitioner/tenant that 21 year old son of landlord possessed any other property in urban area. In para 5 and 6, it has been observed as under:- 5. The second argument raised by learned senior counsel for the petitioner is that there was no pleading by the respondent in his petition that his son, for whose benefit the personal necessity was claimed, was not possessed of any other property in the urban area and for this he has relied upon Manmohan Lal v. Shanti Parkash Jain reported as 2014(2) RCR(Rent) 222 where this Court held as follows:- “ It may be pointedly mentioned that in terms of the statutory requirement, landlord was not only to plead such facts about himself but was also to plead such facts qua his son Surinder Vir Jain as well for whose need as well, he had set up a case of personal necessity. It is a conceded fact that there is complete black out in the petition that Surinder Vir Jain son of the petitioner was not in possession of any other non-residential premises and had not vacated any such premises in the town of Nabha after coming into force of the Act. Reference may be made to authority Ajit Singh Vs. Jit Ram and another 2008(2) RCR (Rent) 328 (SC) wherein it was held that when personal necessity, interalia, of son had also been pleaded as a ground for eviction of the tenant, such pleadings in compliance with statutory requirements regarding non-possession of any other residential premises as also non-vacation of such premises within the town concerned, were mandatory. Jit Ram and another 2008(2) RCR (Rent) 328 (SC) wherein it was held that when personal necessity, interalia, of son had also been pleaded as a ground for eviction of the tenant, such pleadings in compliance with statutory requirements regarding non-possession of any other residential premises as also non-vacation of such premises within the town concerned, were mandatory. This fault of the petitioner-landlord in noncompliance with the statutory requirements in terms of Section 13(3)(a)(i) of the Act is fatal for the case of the landlord.” 6. In that case it was found by this Court that Shanti Parkash Jain and his son owned 7 or 8 properties in Nabha. The son had long lived in Chandigarh and had retired from there and had also taken a service thereafter. It was in these circumstances that this Court observed that the non-disclosure of the other properties by the son of the landlord would disentitle him from relief. In the present case there is not even a whisper by the petitioner that the 21 year old son of the landlord- respondent possessed any other property in the urban area. In these circumvents the omission to plead that his son did not own or possess or had vacated any other property in the urban area would not be fatal to the case of the petitioner. 7. Further this Court in a case of Brig. Harpreet Singh Chahal v. Gopal Gupta, 2016 (1) R.C.R (Rent) 131 wherein the tenant has been ordered to be evicted from demised premises and the revision petition filed by the landlord was allowed. The eviction of the tenant was made on the ground of bona fide need of landlord for establishing security and computer education center for son of one of the petitioners. In para 12 and 13,it has been observed as under:- 12. The decision in Ajit Singh (supra) would alone require a proper understanding. If the Supreme Court was holding that the person who is seeking for ejectment “for his own use” actually for the need of anyone else in the family, the requirement of such other person must be spelt out under Section 13 (3)(ii) and must be understood in a proper context. It is a repeated theme in our courts and if I make an attempt to explain the Supreme Court’s judgment, it is only to ensure that some clarity obtains in this grey area. It is a repeated theme in our courts and if I make an attempt to explain the Supreme Court’s judgment, it is only to ensure that some clarity obtains in this grey area. It is still an issue in our courts where the petitions get to be drawn, redrawn, amended, challenged in appeal or revision only on issue of nature of pleading for bona fide requirement. The practice must stop somewhere. There is need to explain the Supreme Court judgment in Ajit Singh (supra). At a fundamental level, for me, the rules of pleadings must be reasonably flexible before any Tribunal. Tribunalization has come with several pluses and minuses. Wherever strict procedural in approaches were frowned upon as creating new obstacles for quick and efficacious disposal, Tribunals established through enactments invariably provide for respective Tribunals to set their own procedures for trial work. We have Tribunals that abound for determining compensation for motor accidents for recovery of amounts, for financial institutions for recoveries, and son. In each one of the enactments, the authorities are granted powers to frame their own procedures. The common thread in all these legislations is to provide for powers of summoning and enforcing attendance of witnesses as vested in a court under the Civil Procedure Code. If the Civil Procedure Code were to be applied in its full force, there is no necessity to even the limit of power to exercise of summoning of witnesses. In fact Section 16 of the Punjab Rent Restriction Act contains a similar provision giving the Rent Controller a power of a civil court under the Civil Procedure Code for summoning the enforcing agencies of witnesses. This provision would have been unnecessary and otiose, if the CPC were to be applied in all its full force for any other activity as well. 13. Pleadings are methods of ensuring that there is no vagueness left in what the parties have to prove and when issues are framed for establishing the landlord’s personal need, there needs to be objective basis for assessment of that need. That basis is provided under the statutory provision in requiring the Rent Controller to examine that the landlord was not vacated any other premises and applies to a court for ejectment giving out a need for ejectment, such a landlord shall not also be a person who already has no other property vacant in the same urban area. That basis is provided under the statutory provision in requiring the Rent Controller to examine that the landlord was not vacated any other premises and applies to a court for ejectment giving out a need for ejectment, such a landlord shall not also be a person who already has no other property vacant in the same urban area. It is, therefore, expected that a landlord sets out in the petitions or volunteers information about the fact that he owns no other building which is vacant or he has not vacated any other building only in order to claim ejectment. If the parties go to trial on all aspects relating to the bona fide need and it is brought out in evidence that there is no other property which is vacant or the landlord has not vacated any other property to claim ejectment, then that itself should be taken as proving the bona fides. I will, therefore, rest the judgment in Ajit Singh (supra) to be confined to secure proof of what the law requires and if that proof is available by parties joining that issue with all adequate materials at the trial, it ought to servethe ends of justice. 17. Reference at this stage can be made to to full bench judgment of this Court passed in a case of Banke Ram vs. Sarswati Devi 1977 AIR Punjab 158 wherein in para 8 and 11, it has been observed as under:- “8. One of the main objects of the Act is to protect the tenant from the caprice and whim of the landlord to eject him without any valid and sufficient reason. It has been specifically provided under that a tenant will not be ejected except in accordance with the conditions laid down in Sub-sections (2) and (3). The landlord has been injuncted from evicting the tenant even on the ground of the need of his own occupation unless two other conditions provided in Sub-clauses (b) and (c) are also fulfilled. The fulfilment of the conditions is a pre-requisite for any order of ejectment. If this objective is to be achieved, it is essential that both landlord and tenant must state all the facts specifically and expressly in their pleadings before they enter on evidence. The fulfilment of the conditions is a pre-requisite for any order of ejectment. If this objective is to be achieved, it is essential that both landlord and tenant must state all the facts specifically and expressly in their pleadings before they enter on evidence. In its absence, the proceedings will be a fertile source of objections that the tenant was taken by surprise because the landlord had not made specific averments in his pleadings and the objection by the landlord that the tenant had not raised specific objection in his reply. In a large number of cases, it has been seen that after a long time, the Appellate Authority or the High Court, are required to deal with the question whether amendment of the pleadings by the landlord should be allowed or not. This results in unnecessary prolonged litigation and avoidable burden of expenditure consequent thereto. Such a course is neither in the interest of the landlord nor the tenant. The interest of speedy justice makes it imperative that both the landlord and the tenant must be absolutely clear in their minds from their respective pleadings as to what case is required to be proved by the landlord and rebutted by the tenant. Viewed from any angle, there is no escape from the conclusion that the landlord must make specific averments in regard to the ingredients contained in Sub-clauses (b) and (c). In my considered opinion, the judgment of the Division Bench in Krishan Lal Seth’s case (1961-63 Pun LR 865) (supra) so far as it lays down that it is not necessary for the landlord to plead the ingredients of Sub-clauses (b) and (c) in the pleadings does not lay down good law and the same is reversed. 11. In the present case, we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of Sub-clauses (b) and (c) and not the question that if in a particular case these ingredients are not pleaded, but the parties have led evidence with regard to them, what will be the effect? In any given case, where facts have not been averred in the pleading, a number of questions can arise as to whether proper evidence has been adduced by the landlord regarding those facts which do not find place in the pleadings and secondly whether such evidence will be admissible or not and lastly, whether the tenant was taken by surprise or not and had led evidence with full knowledge of the requisite contentions raised toy the landlord and whether the tenant has in those circumstances been prejudiced or not. The Court would be required to give full consideration to the contentions raised by the respective parties and the facts and circumstances of each case before giving its decision in favour of the landlord or the tenant, tout the decisions of the High Courts or the Supreme Court, in this regard, cannot be of any avail to detract from the validity of the proposition that it is necessary for the landlord to make averments regarding the ingredients of Sub-clauses (b) and (c). However, it may be made clear that when it is held that it is essential to plead the ingredients of Sub-clauses (b) and (c) in the eviction application by the landlord, it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged in Sub-clauses, (b) and (c) can be looked into. This is not peculiar to the eviction applications. Similar considerations come into operation even in the case of suits which are governed by the specific and detailed provisions of the Code of Civil Procedure regarding pleadings. 18. Reference at this stage can further be made to a judgment of Hon’ble the Supreme Court of India in a case of Ajit Singh and anr v. Jit Ram and anr, [2008(4) Law Herald (P&H) 2874 (SC) : 2008(5) Law Herald (SC) 3711] : 2008(4) RCR (Civil) 390 wherein landlord was held entitled to evict tenant from non residential premises for use of his son for business. In such a case, it would be mandatory for son to plead and prove that he was not occupying any other such building and has not vacated such building without sufficient cause. 19. In such a case, it would be mandatory for son to plead and prove that he was not occupying any other such building and has not vacated such building without sufficient cause. 19. Now coming to the facts of the present case, where son of the respondent has led sufficient evidence that he needs the demised premises for the use of his son who wants to run business. He has further proved that he is only a co-sharer in the property of his father and the property is now in possession of Ravinder Kumar (brother of the respondent), who is doing his own business. The petitioner/tenant has not stated that the son of the respondent is in possession of any other property in Ferozepur. The respondent has been able to prove that he needs the demised premises to settle his son, who wants to run business of wholesale and retail woolen yarn at Ferozepur City. The respondent himself is carrying out the same business in Ludhiana. 20. In view of the above factual position and applying the ratio of the above mentioned judgments, this petition is dismissed on merits, however, nine months time commencing w.e.f. 24.05.2018 is granted to the petitioner-tenant for making alternative arrangement, subject to furnishing an undertaking on or before 25.06.2018 before the court of learned Rent Controller, Ferozepur that he shall hand over actual physical vacant possession of the demised premises to the respondent/landlord by 25.02.2019. The undertaking shall also state that he has cleared all arrears of rent. Further now he shall also continue to pay future rent at the rate of Rs.10000/- per month by 10th of each calender month. Needless to say that any violation of the aforesaid terms shall entitle the landlord to seek his eviction forthwith with police help, if necessary, without recourse to any other remedy besides the petitioner-tenant making himself liable in contempt proceedings.