Allowed

Chander Kalan and Anr. v. Roshan Lal

Punjab & Haryana HC8 May 2009CR/569/2008

Case brief

AI extract

What is this about?

In this civil revision, the High Court set aside orders dismissing a rent petition and held that the landlords had a genuine need to evict the tenant for their personal use, citing an increase in family members post-tenancy and prior findings of fact as perverse.

What did the court decide?

Revision petition allowed; orders of Rent Controller and Appellate Authority set aside; rent petition under Section 13 allowed.

Chander Kalan and Anr. Vs Roshan Lal — Pension and Retirement Benefits | Punjab & Haryana HC (2009)

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Civil Revision No. 569 of 2008 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 569 of 2008 Date of decision: May 08, 2009

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Chander Kalan and another

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........Petitioners

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Versus

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Roshan Lal .......Respondent(s)

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Coram: Hon'ble Ms Justice Nirmaljit Kaur

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1. Whether Reporters of local papers may be allowed to see the judgment?

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2. To be referred to the Reporters or not?

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3. Whether the judgment should be reported in the Digest?

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Present: Mr. Akshay Kumar Goel, Advocate for the petitioners

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Mr. Sudhanshu Makkar, Advocate for the respondent

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-.-

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Nirmaljit Kaur, J.

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The petitioners-landlord filed rent petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in brevity the Act, 1973), seeking eviction of the respondent-tenant from the house in dispute, bearing Municipal No. D-571, situated at Dhani Chejran, Bhiwani. Chander Kalan-Petitioner No. 1, is the landlady, while petitioner No. 2- Rajesh Kumar, is the son of petitioner No. 1. The eviction of the respondent was sought, mainly, on two grounds; firstly , non-payment of rent, and secondly , for the bona fide use and occupation of the house in dispute by petitioner No. 2, Rajesh Kumar. The rent petition was

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Civil Revision No. 569 of 2008 2

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dismissed by the Rent Controller, Bhiwani, vide order dated 02.12.2004. The petitioners, thereafter, preferred an appeal against the aforesaid order dated 02.12.2004, passed by the Rent Controller, Bhiwani before the Appellate Authority, Bhiwani, which was also dismissed vide order dated 10.10.2007. The petitioners have, therefore, filed the present revision, challenging the order dated 02.12.2004 passed by the Rent Controller, Bhiwani, order dated 10.10.2007 passed by the learned Appellate Court, Bhiwani, as also the order dated 10.10.2007 passed by the lower Appellate Court, dismissing the application filed under Order 41 Rule 27 CPC filed by the petitioners for leading additional evidence.

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While impugning the order passed by the Rent Controller and the concurrent findings recorded by the lower Appellate Court, the learned counsel for the petitioners submitted that both the Courts below misread the evidence while deciding their bone fide requirements of the premises. The Courts below failed to peruse the pleadings and the statements of PW1 and PW-3 in their true perspective and did not appreciate that the petitioners have clearly mentioned in their pleadings that the family of petitioner No. 1, consists of four members excluding petitioner No. 2 (her son) and his wife whom he had married 1 and ½ years back from the date of the filing of the petition before the learned trial Court, i.e. before 28.09.2001. Meaning thereby, the petitioners consisted of 6 members at the time of the filing of the petition and failed to notice that PW-1 in his affidavit stated that they are now 7 members in all, as a child was also born subsequently.

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Counsel for the respondent, on the other hand, argued that

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petitioners had three houses. He was earlier a tenant of one of the houses, which the petitioners sold subsequently. He agreed to shift to the present house in order to make it convenient for the landlord-petitioners to sell the house, in which he was earlier residing as tenant. Presently also, petitioner No. 2 was residing in a separate house from the one, which was sought to be vacated from the respondent. Hence, the petitioners do not require the house and there is no bona fide requirement of the premises in dispute.

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After hearing the learned counsel for the parties and having perused the record, evidence and pleadings of the case, I find merit in the arguments raised by the learned counsel for the petitioners.

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The present is a case of rent revision. While challenging the finding recorded by the Appellate Court, the attention of the Court was invited to the findings recorded by the Rent Controller, which were later on upheld by the lower Appellate Court in para-11 of its judgment, as under:-

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“ In the present case, Chander Kalan sold another house before letting out the house in question to the respondent. It was admitted by PW1 that previously the respondent was residing in their other house. It is also admitted by him that the said house was sold and thereafter the house in question was let out to the respondent. As per his statement the house in question was let out to the respondent in the year 1995. It shows that they have sold the property after enforcement of the Act, 1949. It is no where alleged by the petitioners that PW1 Rajesh Kumar was married or his children were

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born after letting the house in question to the respondent. It shows that when the previous house was sold by Chander Kalan the number of the family members was same. Previous house was got vacated by the respondent because the petitioners were willing to sell the same and gave him the house in question on rent. Now, they are seeking his ejectment on the ground of personal necessity. It shows that they are not coming with clean hands.”

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The findings recorded by the Appellate Court, as narrated above, are contrary to the evidence on record and the same is evident as demonstrated below.

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The present premises were admittedly rented out in the year 1995. In para 5 of the rent petition filed before the Rent Controller, it is specifically stated that petitioner No. 2 was married 1 and ½ years back. The rent petition is dated 28.09.2001, which means that the petitioner No. 2 got married in the year 1999. Thus, from the pleadings, it is evident that petitioner No. 2 got married and a child was born after the house in question was rented out to the respondent. This averment in para 5 has not been denied in the written statement and nor in their evidence. As such, the number of family members increased due to the marriage of petitioner No. 2, after letting out the present house to the respondent and also after the selling of the earlier house, i.e. in the year 1995. Even if, it is to be accepted that one of the houses was got vacated from the respondent because the petitioners intended to sell the same, it will not come in the

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way of the petitioners from seeking ejectment of the respondent from the house in question, as at that time, petitioner No. 2 was not married and he did not have an extended family of his own and the personal necessity of having one's own residence and a separate accommodation from the other family members was not there till petitioner No. 2 got married. It is apparent from the pleadings, as discussed above that petitioner No. 2 got married some where in the year 1999, which is definitely after the year 1995, i.e. the date of the sale of earlier house and renting out the present premises.

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The lower Appellate Court in para 12 of its judgment,

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records:-

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“Further, it is alleged in para No. 5 of the petition that they were four members in the family. The names of the members are not mentioned therein. But PW-3 stated that there were seven members in the family. It was stated by him that two daughters and another son of Chander Kalan were also residing with her. It shows that four members never resided in the house. More so, PW3 stated in his examination that Rajesh was living in his neighbourhood in a rented house. It means that he is not residing in the house shown in EX.P1 along with Chander Kalan. PW3 stated that he is residing in his own house. It shows that reference of rented house is not pertaining to him. It is nowhere alleged that Rajesh Kumar is residing in another house taken on rent. In this way, the petitioners have failed to prove that their need is bona fide and

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house in question is required for their personal necessity. So these arguments are of no avail. The finding of learned Rent Controller are well reasoned, based on law and facts and cannot be disturbed.”

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The above findings are contradictory and inconsistent and also not based on correct perspective. The fact that it is a rented accommodation is obvious from the examination of PW-3, Pardeep Kumar, himself, wherein, he has specifically stated that Rajesh Kumar stays in a rented accommodation. Therefore, it has been wrongly recorded that there is no evidence to show that Rajesh Kumar is residing in another house which is taken on rent. Rather, it is clear that the accommodation to which Rajesh Kumar has shifted is on rent and presently, there is no other house except in which Rajesh Kumar has a share i.e. house in dispute, which is an ancestral house from which the eviction of the respondent is being sought. There is no rebuttal to the evidence of PW-3 that the family consists of seven members, namely, Chander Kalan, mother, who is an elder lady, Rajesh Kumar, who is petitioner No. 2 and a married man, two grown up sisters, one brother aged about 19 years, Rajesh Kumar's wife and his minor son. Thus, there is no doubt that there are seven members in all. It is also clear from the site plan, EX P-1, that it comprised of only one room and one verandah, which is insufficient and absolutely against the aesthetic sense of any human being, to allow all the seven family members of different relationship between each other to stay in one room. Thus, to reject the personal necessity of the petitioner No. 2, being married, and need of a separate accommodation only on the ground that he has

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shifted to a rented accommodation, is totally unfair and unjust, especially when there is no evidence forthcoming as to whether the present accommodation, to which petitioner No. 2 has shifted, is also sufficient or not. At the same time, an accommodation of one room and a verandah available with such a huge family cannot in any way be termed as sufficient. The requirement is, therefore, bona fide and the house in question is rightly required by the petitioners for their own personal need, which has definitely arisen on account of the marriage of petitioner No. 2.

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The Courts below fell in error in not relying on the various judgments rendered by the Hon'ble Supreme Court, wherein, it is the consistent view of the Apex Court that the tenant cannot dictate the terms to the land lord and also cannot dictate as to how he should live. It is for the landlord to see as to what accommodation is needed by him and his family. He is the best judge of his own needs. Thus, I find that the need of the petitioners is genuine and the accommodation available with them is insufficient. The accommodation available with petitioner No. 2, including the rented premises, were not sufficient for his need. There is no evidence on record to show that the same was sufficient. Even otherwise, in the case of ' Ramesh Kumar V. Atma Devi', reported as 1985 P.L.R 751 (Full Bench ), it was held that if landlord is occupying another premises in the urban area as tenant, he would be entitled to eject his own tenant, if there is sufficient cause for him to vacate the premises in his occupation or the same are not sufficient/suitable for his needs.

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The arguments raised by the learned counsel for the respondent that the petitioners had sold another house and it was only,

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thereafter, they had filed the eviction petition, does not help in the facts of the present case, as the said house, as discussed in the earlier part of this judgment, was sold before the filing of the eviction petition and petitioner No. 2 got married in the year 1999 and it was only thereafter that the present eviction petition was filed. Even otherwise, Hon'ble Supreme Court in a similar situation in the case of ' C. Karunakaran (dead) by Lrs. v. T. Meenaksh i, reported as (2005) 13 Supreme Court Cases 99 , held as under:-

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“6. Counsel for the appellant has contended that the respondent landlady had sold one building two years prior to the examination of the respondent in Court. Sale of such a building demonstrated that the need was not bona fide. Had the need been bona fide then the respondent would not have sold the building of which vacant possession was available. We do not find any substance in this submission. The building had been sold two years prior to the examination of the respondent. Admittedly, on the date of filing the eviction petition, the building was not available to start the business. It has not come on record that the said building was suitable for starting the business. In the absence of any such evidence, it cannot be concluded that the personal necessity pleaded by the respondent was not bona fide. We do not find any infirmity in the findings record by the High Court.”

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One of the tests for coming to the conclusion as to whether, the expressions employed by different legislation “bona fide requirement”, “genuine need” and “requires reasonable and in good faith”, had been laid down by Hon'ble the Supreme Court in the case of “Shiv Sarup Gupta V. Dr. Mahesh Chand Gupta” , reported as (1999)6 SCC 222, wherein it is held that requirement in the sense of need felt is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a 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 is in the positive, the need is bona fide. Also, the appellate Court, while rejecting the case in the facts of the present case probably, was not guided by the same and the findings recorded by it, are wholly unreasonable and based on wrong perspective.

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No doubt, it is true that the Courts below have recorded a concurrent finding of fact, but as discussed above, the same are contrary to the evidence on record. Under the Act, as applicable to the rent revision, the power of this Court is not used in a routine manner. However, in the cases where the conclusion recorded by the Courts below are not possible to be accepted on the material placed on record, then there is no bar on the exercise of such power, as held by Hon'ble the Supreme Court in the case of ' Molar Lal v. Kay Iron Works (P) Ltd ., reported as (2000-2) 125 P.L.R. 678 (S.C.) , which reads as under:-

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“Similarly, we are of the opinion, on the facts and circumstances of this case, the argument of the tenant that the High Court exceeded its jurisdiction by interfering on a finding of fact arrived at by the appellate authority is also to be rejected. It is to be noticed that under Sub section (6) of Section 15 of the Act, the High Court as a revisional authority has the power to call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order and is entitled to pass such order as it may deem fit. The power vested in the High Court under the provision of law is much wider than the power conferred on the High Court under Section 115 CPC. In the process of satisfying itself as to the legality or propriety of an impugned order, the High Court in a given case can go into the finding of fact arrived at the courts below and, if found necessary, reverse as a finding of fact. Of course this court has in many cases cautioned that this power is not to be used as a revisional court in a routine manner, but to be used only when the revisional court comes to the conclusion that the last court of fact has arrived at a conclusion which is perverse or not possible to be accepted on the materials placed before it. In other words, if the High Court comes to the conclusion that the finding of the first appellate court is based on no

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evidence then in a given case, it is open to the High court to interfere with such finding of fact. In the instant case, we are not convinced that the High court has exceeded its jurisdiction while allowing the revision of the landlord on this count. Therefore, this question urged on behalf of the appellant is also rejected.”

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In view of what has been stated and discussed above, while allowing the present revision petition, the order dated 02.12.2004 passed by the Rent Controller, Bhiwani and order dated 10.10.2007 passed by the Appellate Authority, Bhiwani, are set aside and accordingly hold that the premises in dispute is a bona fide requirement of the petitioners for their own use and occupation. The rent petition filed by the petitioners under Section 13 of the Act, 1973, is accordingly allowed.

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[Nirmaljit Kaur] Judge

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May 08, 2009 mohan

Chander Kalan and Anr. v. Roshan Lal

Case brief

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Chander Kalan and Anr. v. Roshan Lal

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