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2023 DIGILAW 595 (HP)

Naresh Goyal v. Hemlata Sharma

2023-12-27

VIVEK SINGH THAKUR

body2023
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Present Revision Petition, invoking provisions of Section 24 (5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the ‘Rent Act’), has been preferred against judgment dated 4.1.2023 passed by Appellate Authority-III, Solan in Rent Appeal No. 4ADJ-II/14 of 2022, titled as Naresh Goyal vs. Hemlata Sharma, whereby order of eviction dated 14.6.2022, passed by Rent Controller, Solan in Rent Case No. 20/2 of 2014, titled as Hemlata Sharma vs. Naresh Goyal, ordering eviction of tenant from the demised preemies, has been affirmed. 2. For convenience, parties hereinafter shall be referred according to their status before the Rent Controller, i.e. respondent herein as landlord and petitioner herein as tenant. 3. Landlord preferred a Rent Petition seeking eviction of tenant from non-residential premises, on the ground that she was owner in possession of two storied building, first floor whereof was being used by her for residential purposes, whereas two shops in ground floor were rented out to two different persons, one shop to present tenant Naresh Goyal and another to Vineet Goyal. Landlord had preferred two different Eviction Petitions against both tenants on the ground that she and her husband alongwith their son Sanjeev, were intending to do business of readymade garments by using experience of her son in association with son and husband, for which both commercial shops were required by landlord and her family members for own use and occupation. Landlord, at the time of filing Rent Petition, in the year 2014 was 67 years old and her husband was 75 years old. There was no one to look after them, who were old and ailing and in these circumstances their son Sanjeev had to shift to Solan from Delhi, who earlier was doing the business of readymade garments in Mexico since 1997 till 2013 and had left the place to join the company of his parents to look after them because another son Sanjay Sharma was working in Nokia Siemens as Manager at Gurgaon and was residing there. It was further stated that landlord had not acquired any such building without sufficient cause within five years after commencement of the Act in the same urban area and was not occupying any other commercial building, except two shops referred supra and thus landlord was in bonafide need for the purpose of carrying out her own business as proposed. 4. It was further stated that landlord had not acquired any such building without sufficient cause within five years after commencement of the Act in the same urban area and was not occupying any other commercial building, except two shops referred supra and thus landlord was in bonafide need for the purpose of carrying out her own business as proposed. 4. It was also stated that Tenant was owner of three storied building at Jaunaji Road, Solan, had taken five stores/shops on rent in Solan town out of which two were in Jaunaji Road, one in Kasai Galli and two Godowns in Sanatan Dharam Mandir Market Complex Solan and all these stores cum shops were near to the premises in reference and thus Tenant was having sufficient accommodation for his own occupation. 5. In response, Tenant had claimed that landlord was having four other shops in the same floor of the building in reference and thus was having sufficient accommodation to run her business as proposed and thus it was denied that the shop in reference was best suited for the business to be run by the landlord. It was contended on behalf of tenant that building owned by him is residential and was not located in the commercial area of Bazar with further averments that having rented accommodation for Godowns at various places, did not mean that tenant was having sufficient accommodation for running his business. 6. After taking into consideration pleadings and evidence on record, Rent Controller had passed eviction order against the tenant on the ground of bonafide requirement, for personal use and occupation. 7. In instant Revision Petition, it has been contended on behalf of tenant that both the Courts below have committed illegality by appreciating and preferring oral evidence over the documentary evidence by ignoring Ex. 7. In instant Revision Petition, it has been contended on behalf of tenant that both the Courts below have committed illegality by appreciating and preferring oral evidence over the documentary evidence by ignoring Ex. PW-2/B, which was showing that there were no Godowns, but shops were available with the landlord in the ground floor; that landlord did not appear in evidence in person, but her husband being her General Power of Attorney Holder had appeared in evidence; that landlord has made false averments related to provisions contained in Section 14(2) and 14(3) of the Rent Act; the son for whose requirement premises is required, was not examined; ingredients of Section 14(3)(d) of the Rent Act were not pleaded; principle that landlord is best judge of his need has been applied in mechanical manner, ignoring the fact that landlord did not disclose other alternative accommodation in her possession with equal amenities and facilities; that landlord did not disclose that landlord was occupying four shops in the same building and such shops could not be used as shops and such shops were Godowns and further that landlord had intentionally concealed about four shops, despite that it was highlighted by the Tenants. 8. It is true that landlord did not appear in person, but her husband appeared on her behalf as her General Power of Attorney holder, however, non-appearance of landlord in present case is not fatal to the landlord because her General Power of Attorney, has narrated each and every thing in his examination and cross-examination and he did not refuse to answer any question for want of knowledge, rather he has answered each and every question and there is no denial of any question on the ground that he is only General Power of Attorney holder. 9. Plea with respect to non disclosure of other shops in the building also does not appear to be concealment of facts intentionally because the map Ex. PW-2/B has been proved on record by the landlord which established existence of other shops in the same building. Had there been intention to hide this fact, there was no necessity or compulsion for the landlord to produce and prove Ex. PW -2/B in evidence. The said documentary evidence led by landlord is to be read with oral evidence related thereto. Had there been intention to hide this fact, there was no necessity or compulsion for the landlord to produce and prove Ex. PW -2/B in evidence. The said documentary evidence led by landlord is to be read with oral evidence related thereto. A piece of evidence cannot be picked up for consideration in isolation ignoring other evidence on record including the oral evidence. In oral evidence PW-1 has categorically explained that other shops are in the shape of Godowns and there are two shops only in the ground floor. These two shops, admittedly, have been rented out to tenants one to present Tenant Naresh Goyal and other to Vineet Goyal. Admittedly, tenant is also in possession of various shops in the same urban area but, according to him, these shops are not suitable for his business and are being used as Godowns. In case each and every shop is to be considered as a shop useful for running business as being contended on behalf of Tenant with respect to the shops owned by landlord in the ground floor, then other shops which are being used by the Tenant as Godowns with claim that these shops are not suitable to run business, but only can be used Godowns, runs contrary to the stand of the Tenant. 10. Landlord in his evidence has produced Ex. PW-2/B. Therefore, it cannot be said that landlord had intentionally and deliberately withheld the information and concealed the material facts. For pleadings landlord was depending upon the Advocate and under whose advise evidence has been led and, therefore, it also cannot be said that Advocate was intending to hide the complete facts from the Court. Therefore, objection in this regard is not sustainable. 11. It is settled that landlord is best judge of his suitability and to decide his bona-fide requirement. Different shops located in the same building may have different potential and scope of running business in such shops. Each and every shop, on account of different location in the building, has different potential of use and yield. Some shops may good to be used as Godowns only, whereas a shop on other corner of the same building may have a good potential to run a business. Each and every shop, on account of different location in the building, has different potential of use and yield. Some shops may good to be used as Godowns only, whereas a shop on other corner of the same building may have a good potential to run a business. Therefore, the declaration by the landlord that she has not vacated “such accommodation” or is not in occupation of “such accommodation”, is to be read and considered with reference to her requirement of shop to run business. Landlord has filed eviction petition on account of bona-fide requirement to run business by opening shop and such business definitely cannot be carried out from a shop which can only be used for Godown purpose. No doubt a shop kept for Godown purpose can also be used as a shop, but in such eventuality the yield from such business may not be of required expectation for disadvantageous location, and accommodation in a disadvantageous location cannot be equated with another accommodation in possession of Tenant located at a advantageous or better location. For these reasons, declaration required to be made under Sub-Sections (2) and (3) of Section 14 of the Act, is to be appreciated with reference to the given facts and circumstances. In the given facts and circumstances of present case, plea in this regard raised by Tenant is not sustainable. 12. The averments and ingredients of Section 14(3)(d) of the Rent Act, in my opinion, were not required to be pleaded in present case, because there is specific pleading that premises in reference is required by the landlord for her own bona-fide requirement to run business in association with her son and husband. Even otherwise, essence of pleadings are to be seen because landlord had filed the Rent/Eviction Petition with aid and advise of the counsel, who is expert in his field and it is to be kept in mind that way of expression differs from man to man and the averments are not to be expected in stereo type manner. In present case, it is not a case that requirement under Section 14(2) and 14(3) of the Rent Act is not depicted at all. The pleadings in this regard are specific and clear. 13. It has come in evidence, as admitted by tenant in cross-examination and also evident from documents Ex. Px1, Px2, Px3, Px4 and Ex. In present case, it is not a case that requirement under Section 14(2) and 14(3) of the Rent Act is not depicted at all. The pleadings in this regard are specific and clear. 13. It has come in evidence, as admitted by tenant in cross-examination and also evident from documents Ex. Px1, Px2, Px3, Px4 and Ex. RX that Tenant was having building in Lower Bazar, Solan, his wife was having flat in Lower Bazar, Solan and his wife was running a hotel in Deoghat and his two sons Navrattan Goyal and Navjot Goyal were having two shops on rent. Tenant is also having shops on rent owned by Sanatan Dharam Sabha, which, according to Tenant, are being used as Godowns. It is stand of Tenant that the shops used by him as Godowns cannot be equated with the shop where from business can be run, but with respect to landlord, he has taken a contrary stand and is breathing hot and cold at one and the same time. If all shops are having equal potential, then Tenant would have agreed to run his business from shop suitable for godown. 14. In given facts of the case, I do not find that examination of son of landlord was necessary. Otherwise also his non-examination is not fatal for the case of landlord. 15. It has also come in evidence that tenant Vineet Goel, occupying other shop, after filing Eviction Petition against him, has already handed over the possession to the landlord. 16. In view of above discussion, I am of the opinion that material available on record has been rightly appreciated by the Courts below and keeping in view the ambit and scope of revision under Section 24(5) of the H.P. Urban Rent Control Act, I do not consider it a fit case warranting interference of this Court by exercising the revisional jurisdiction under the Act. 17. In my considered view, no illegality, judicial impropriety or perversity is there in the impugned order and judgment. Accordingly, Revision Petition is dismissed being devoid of any merits. 18. The Revision Petition stands disposed of in the above terms, so also pending applications, if any. Interim order stands vacated. 19. Records of the Courts below be sent back forthwith.