Dismissed

Radhey Shyam v. Usha Rani

Punjab & Haryana HC27 Sept 2010CR/3042/2010

Case brief

AI extract

What is this about?

In this revision petition under Rent Control laws, the tenant challenged eviction orders held that the landlord had genuine personal necessity. The High Court affirmed the lower authorities' finding that the merged tenancy was singular and the landlord's prior property transactions did not defeat her claim, dismissing the revision.

What did the court decide?

The revision petition was dismissed, and the impugned judgments accepting the eviction application and dismissing the appeal were affirmed.

Radhey Shyam Vs Usha Rani — Landlord and Tenant | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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C.R. No.3042 of 2010 Date of Decision: 27.9.2010

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Radhey Shyam.	....... Petitioner through Shri Arun Jain, Senior Advocate with Shri Amit Jain, Advocate.
Versus
Usha Rani.	...... Respondent through Shri Arun Palli, Senior Advocate with Shri Animesh Sharma and Shri Kanwalvir Singh
	Kang, Advocates.

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CORAM: HON'BLE MR.JUSTICE MAHESH GROVER

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Mahesh Grover,J.

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This revision petition is directed against judgments dated 29.1.2009 and 9.3.2010 passed respectively by the Rent Controller and Appellate Authority, Patiala whereby the application of the landlady - respondent for eviction of the tenant-petitioner from the demised premises was accepted and his appeal was dismissed.

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The landlady-respondent had sought the ejectment of the tenant-petitioner from the demised premises, which is an amalgamation of

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three shops into one shop, on the ground of her personal necessity. It was averred that the landlady, who is a widow, was going to retire in near future from the government service and wanted to set up her own business venture of embroidery and stitching etc. in the demised premises.

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Upon notice, the tenant-petitioner appeared and disputed the personal need of the landlady by filing a written statement and pleaded that the tenancy was for three shops and consequently, the single application for eviction was not maintainable; that there was a room in existence which was in occupation of one Asha Rani, daughter-in-law of the landlady wherein she was running a beauty parlour which was vacated by her; that the said room was sufficient for meeting the requirement of the landlady; and that the landlady had failed to satisfy the ingredients of Section 13 of the East Punjab Rent Restriction Act,1949 (for short, `the Act') as she failed to plead and prove that she was not occupying any other non-residential building or shop and that she had not vacated/got vacated any such building or shop in the urban estate where the demised premises are situated. To substantiate his assertion with regard to non-compliance of the ingredients of Section 13 of the Act, the tenant had made a reference to the shop which was let out to one Paramjit Kaur Dhillon in the year 1989 and stated that since after coming into force of the Act, such premises were got vacated by the landlady and then let out to Paramjit Kaur Dhillon, she had violated those provisions. It was the further case of the tenant that the landlady was already residing in the building which is commercial in nature and had sufficient accommodation wherein she could commence her proposed

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venture.

The parties went to trial on the following issues:-

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Whether the petitioner requires the demised premises for own use and occupation?OPA

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1-A. Whether single petition for ejectment of respondent from three separate shops is maintainable?OPR

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1-B. Whether the petitioner has let out one shop in favour of Paramjit Kaur Dhillon after letting out the shops in dispute in favour of the respondent? If so, its effect?OPR

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Relief.

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After appraisal of the evidence on record, the Rent Controller accepted the application of the landlady and ordered ejectment of the tenant from the demised premises.

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Feeling aggrieved, the tenant filed an appeal before the Appellate Authority. During the pendency of the proceedings in appeal, in order to establish that Asha Rani was leased out a room in the year 2005, the pleadings were sought to be amended, the tenant sought amendment of the pleadings which prayer was declined on 6.3.2010. The tenant also moved another application for bringing on record subsequent events that Asha Rani had vacated the tenanted room thereby making available the same to the landlady which diluted her personal need. This application was allowed by the Appellate Authority on 6.3.2010 and the parties were permitted to lead evidence by way of affidavits as per the provisions of Order 19 Rule 1 of the C.P.C. Thereafter, the Appellate Authority considered the respective

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case of the parties and dismissed the appeal of the tenant vide judgment dated 9.3.2010 which has resulted in the filing of the instant revision petition.

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Learned counsel for the tenant-petitioner assailed the impugned judgments in the light of the averments noticed hereinabove. In addition, he contended that the evidence by way of affidavit placed on record by the landlady pursuant to Order 19 Rule 1 of the C.P.C. which was allowed by the Appellate Authority, was meaningless without cross-examination and could not have been considered.

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Learned counsel for the landlady, on the other hand, submitted with reference to Exhibit-A3, that the tenancy was singular as the intervening walls between three shops were demolished to convert the same into one structure and thus, the tenancy pertained to one shop. It was next contended that the tenant himself is having sufficient accommodation in Patiala wherein he was running his own business of similar kind which he is engaged in the demised premises which fact has not been denied by him in his written statement in response to the averment to this effect contained in the eviction application. It was submitted that the shop was let out to Paramjit Kaur Dhillon in the year 1989 almost at the same time when the demised premises were let out to the tenant-petitioner and merely because one shop was let out to Paramjit Kaur Dhillon would not deprive the landlady to raise the plea of personal necessity qua the demised premises, more-so when she has retired from government service on 30.6.2005 and immediately prior to her retirement, she had sought eviction of the tenant-

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petitioner as she required the demised premises for setting up her own venture in order to support herself and her family. It was also submitted that even if it is accepted that the landlady had got vacated some other premises in the urban estate of Patiala and let out the same to some one, it will not defeat her claim to get the demised premises vacated on the ground of personal necessity as the fact of letting out the shop to Paramjit Kaur Dhillon took place in the year 1989, i.e., more than decade and half before the proceedings under Section 13 of the Act were set in motion by her. Learned counsel for the landlady-respondent also sought to off-set the contention raised by the learned counsel for the tenant-petitioner that no opportunity was given to the tenant-petitioner to cross-examine the landlady upon the affidavit furnished by her pursuant to order dated 6.3.2010, by contending that there was an opportunity available to him to invoke the powers of the Court to seek permission to cross-examine the deponent, but he did not avail the same and also did not challenge the aforesaid order and, therefore, he is now precluded to raise such a plea in the revisional jurisdiction of the High Court once the final order has been passed to his detriment. He further referred to the averments made by the tenantpetitioner in his applications for amendment of pleadings and for bringing on record subsequent events to contend that the tenant-petitioner himself had stated that Asha Rani was in possession of one room behind the shop rented out to Paramjit Kaur Dhillon and the very description of the premises in possession of Asha Rani and the access thereto revealed that it is distant from the demised premises and is essentially part of residential area in

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occupation of the landlady and in no way connected with the demised premises which are exclusively commercial in nature. Lastly, he submitted that there is no error of jurisdiction committed either by the Rent Controller or the Appellate Authority in ordering eviction of the tenant-petitioner and consequently, no interference in the impugned judgments is warranted in the revision petition.

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I have thoughtfully considered the rival contentions/ submissions and have gone through the impugned judgments, as also the record which was summoned.

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Exhibit A3 is the rent note executed between the tenantpetitioner and the landlady-respondent and which is bedrock of the relationship between them. The relevant extract of this document, when translated in English, reads as under:-

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“That one shop which is a part of H.No.788 situated at Tripuri Town, Patiala and is bounded as under:-

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East – shop of Tara Chand s/o Bishnu Ram,

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West – Main Road,

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North – Main road,

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South owner's residential house,

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measuring 17-1/2' x 20', has been taken on rent for a period of 11-1/2 months w.e.f. 15.11.1984 at the rate of Rs.2800/- (two thousand and eight hundred only) per month from its owner -Smt.Usha Rani w/o Sh. Uttam Chand ,r/o H.No.788, Tripuri Town, Patiala and the terms and conditions of the rent deed are

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as under:-

(1) that I will not sublet the abovesaid shop or any part thereof to any body, which shop has been made a big shop by joining three shops.

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xx xx xx xx xx xx xx xx”

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A bare perusal of the above reproduced portion of the rent note, Exhibit A3, reveals that the petitioner was under a singular tenancy when three shops were modified to be converted in one unit subject to the singular tenancy created between the parties. It is, therefore, difficult to imagine and appreciate the contention raised by the learned counsel for the petitioner that the eviction application was not maintainable in view of the existence of three shops. The petitioner having subjected himself willfully to the modified premises wherein three shops were converted into one and having accepted the singular tenancy, cannot turn around to say that for three shops, single eviction application was not maintainable. The contention in this respect is, therefore, rejected.

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The second contention on which much stress has been laid by the learned counsel for the petitioner is with reference to the provisions of Section 13(3)(1)(a) of the Act which require the landlord/ landlady to plead that he or she is not occupying another non-residential building in the concerned urban estate and has not vacated such building without sufficient cause after commencement of the Act in the said urban estate. Even though, the landlady-respondent has pleaded likewise, but such a pleading is sought to be defeated by the interpretation laid by the counsel for the tenant-

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petitioner that the premises were let out to Paramjit Kaur Dhillon in the year 1989 after the same were got vacated initially and this act was sufficient to defeat her right as it amounted to negation of two of the ingredients of Section 13 of the Act.

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I am not in agreement with the contention so raised. The facts reveal that the premises were let out to Pramjit Kaur in the year 1989 more or less at the same time when the demised premises were let out to the tenant-petitioner. The instant proceedings are also on the ground of personal necessity and, therefore, two essential facts emanating from the provisions of Section 13(3) of the Act and the pleadings of the parties have to be reconciled. When the premises were let out in the year 1989 to Paramjit Kaur Dhillon and the demised premises were leased out to the tenant-petitioner, the landlady-respondent was well entrenched in her job and had no conceivable idea that the demised premises would be required by her at subsequent point of time. A landlord/ landlady who has more than one premises to his or her ownership, cannot be expected not to manage his or her properties to extract maximum benefit therefrom and to deny him or her the right to get the tenanted premises vacated merely because some other property had been let out at a point of time which was decades away, would be to negate the right of beneficial enjoyment of such assets which a landlord or landlady has created. The situation would have been different if such an act had taken place in the near proximity of time when the eviction proceedings were initiated because that would have reflected adversely on the personal need of such a landlord, but as observed above, if as an act of

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prudent management, some property had been let out or vacated much prior in time, then the right of the landlord or landlady to get his or her another tenanted premises vacated on the ground of personal necessity cannot simply be wished away on the ground that after commencement of the Act even though two decades back, he or she had got such premises vacated or had let out the same, on the plea that it happened after the commencement of the Act. For the said reason, the second contention of the learned for the petitioner also merits rejection.

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In so far as the question of personal necessity is concerned, it is now more or less settled by a catena of judgments as to how the need of a landlord has to be evaluated as juxtaposed to the objection raised by the tenant.

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In Gulabbai Versus Nalin Narsi Vohra & Ors., 1991(2) R.C.R. 453 (S.C.), reiterating the view taken in Bega Begum Versus Abdul Ahad Khan, (1979) 1 S.C.C. 273, it was laid down by the Apex Court that the words “reasonable requirement” undoubtedly postulate that there must be an element of need as opposed to a mee desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire.

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A three-Judges Bench of the Apex Court in Prativa Devi (Smt.) Versus T.V.Krishnan, (1996) 5 S.C.C. 353, dealt with a case arising out of personal necessity of a landlady qua a rented premises and held as under:-

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“The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the

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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.

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xx xx xx xx xx xx xx

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There is no law which deprives the landlord of the beneficial enjoyment of his property.”

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In Sarla Ahula Versus United India Insurance Co. Ltd., 1998 (2) R.C.R. (Rent) 533 (S.C.), it has been held by the Supreme Court that the Rent Controller should not proceed on the assumption that the requirement of the landlord is not bona fide. According to the view taken in the said judgment, once the landlord shows a prima facie case, a presumption of bona fide requirement can be raised in his favour and it is not for the tenant to dictate terms to the landlords as to how they could adjust themselves.

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In Shiv Sarup Gupta Versus Mahesh Chand Gupta, (1999) 6 S.C.C. 222 = 1999(2) R.C.R. (Rent) 141 (S.C.), the Apex Court, in a detailed judgment, while dealing with the personal need of a landlord, analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict the tenant refers to a state of mind prevailing with the landlord and then it was observed that “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 the posing a question to himself – whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said

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to be natural, real, sincere, honest? and if the answer be in positive, the need is bona fide.”

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In Dattatraya Laxman Kamble Versus Abdul Rasul Moulali Kotkunde & Anr. JT 1999(3) S.C. 283, the Apex Court observed in paragraph 8 of the judgment as follows:-

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“8. When a landlord says that he needs the building for his own occupation there is no doubt he has to prove it. But there is no warrant for presuming that his need is not bona fide. The statute enjoins that the court should be satisfied of his requirement. So the court would look into the broad aspects and if the court feels any doubt about the bona fides of the requirement it is for the landlord to clear such doubts. Even in a case where the tenant does not contest or dispute the claim of the landlord the court has to look into the claim independently albeit landlord's burden gets lessened by such non-dispute. In appropriate cases it is open to the court to presume that the landlord's requirement is bona fide and put the contesting tenant to the burden to show how the requirement is not bona fide.”

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In Atma S.Berar Versus Mukhtiar Singh, 2003(1) Rent Control Reporter 42 (S.C.), their Lordships of the Supreme Court noticed the above mentioned judgments and then expressed the similar view.

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In Sait Nagjee Purushotham & Co. Ltd. Versus Vimalabai Prabhulal and others, (2005) 8 S.C.C. 252, it was observed that it is always

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the prerogative of the landlord to decide for what purpose he requires premises in question and that it is not tenant who can dictate terms to landlord and advise him what he should do and what he should not.

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Having noticed the position of law, the Court now embarks upon the assessment of the need of the landlady-respondent from the facts of the instant case. Undisputedly, the landlady has superannuated from her employment and immediately prior to her retirement, she had initiated the present proceedings for eviction of the tenant-petitioner. There is also no doubt that she is residing in a portion which is distinct from the commercial premises which are in possession of the tenant-petitioner and which she seeks to have for her own use and occupation. In the eviction application, apart from pleading her necessity, she has also pointed out that the tenantpetitioner himself is having some other premises in the vicinity and is also carrying on a similar business from some other premises. This fact has not been denied by the petitioner. To this effect the pleadings of both the parties as contained in paragraph 9 of the application and the written statement are extracted below:-

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“ Paragraph 9 of the eviction application.

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That on the other hand in the adjoining double storey show room belonging to the respondent himself, he is running another cloth business under the name and style of Bhagwati Silk and Saree. He himself is residing in House No.475, Street No.6, Tripri Town, Patiala. The respondent is also owner of a building situated on the Mini Secretariat Road, near Gurdwara

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Dukhniwaran Sahib, Patiala. In this building, there are three shops in the front which the respondent has let out to different tenants. From the Main Road, there is a passage to in this building which leads to a big hall at the back of the three shops in which the respondent is running another cloth business under the name and style of Om Tex as a partner.

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.-.-.-.-.-.-.-.-

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Paragraph 9 of the written statement.

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Para No.9 of the petition regarding running another show room in the name of Bhagwati Silk and Saree is not disputed. The residence of the respondent is matter of record. It is correct that the respondent has some building on road going to Mini Secretariat from Gurudwara Dukh Niwaran Sahib, Patiala. It is totally wrong that in said building there are three shops. The alleged shops are not in the ownership of the respondent. The respondent has got only passage from main road and in possession of space behind the alleged three shops and in fact these three shops are not the ownership or in possession of the respondent. It is totally wrong that these three shops have been let out to three different tenants. When the respondent is not the owner nor in possession of three shops the question of letting out does notarise at all. It is correct that the respondent is also running a shop in the space behind these three shops but that business is in partnership and is the named as Om Tex.”

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As stated above, the landlady-respondent has retired from government service and has expressed a need to have the demised premises for her own personal use and occupation. The tenant-petitioner is neither in a position to assert that the landlady-respondent has not utilized some other premises even though available to her nor is he in a position to state and question her need. Moreover, he himself is not only having share in the business being carried out in some other premises, but is also owning premises in the same urban area. His tenacity to cling to the tenanted premises, thus, seems to be having an element of greed as juxtaposed to the intent of the landlady-respondent driven by need. Therefore, he cannot defeat the right of the landlady-respondent to get the demised premises vacated.

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The contention of the counsel for the petitioner that since Asha Rani had vacated the room occupied by her making available the same to the landlady-respondent and which vacation had taken place after the filing of the instant eviction application and which fact was brought on record by filing an affidavit and the averments contained in the counter-affidavit of the landlady-respondent could not be accepted in the absence of an opportunity having been granted to cross-examine her and the tenantpetitioner was not liable to be evicted, is also not tenable for the simple reason that the petitioner had the opportunity to press for cross-examination of the landlady-respondent by seeking permission of the Court and even if the plea of the petitioner is to be accepted that there was hardly any time available to him as the permission to file affidavit was granted on 6.3.2010

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and the appeal was decided on 9.3.2010, even then he has no case as the landlady-respondent was very well within her right to evaluate her need independently to see as to whether she required the demised premises or any other area for carrying out her business venture.

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Looking at it from any angle, the revision petition does not deserve to be accepted.

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At this stage, a half-hearted submission was made by the learned counsel for the petitioner that the tenant-petitioner is willing to part with half of the demised premises in favour of the landlady-respondent and that should satisfy her need.

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The aforesaid proposition was put to the counsel for the landlady-respondent, who refused to accept the same and stated that the landlady requires the entire demised premises for her own use and occupation.

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In any eventuality, these are the matters of settlement inter se between the parties and the Court leaves it to their discretion and wisdom and does not wish to comment upon such an arrangement as proposed by the counsel for the tenant-petitioner.

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In the result, the instant revision petition is dismissed.

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September 27,2010 “SCM”

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( Mahesh Grover ) Judge

Radhey Shyam v. Usha Rani

Case brief

What is this about?

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Radhey Shyam v. Usha Rani

Case brief

What is this about?

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