Dismissed

Iqbal Singh & Ors. v. Sunil Arora & Anrs.

Punjab & Haryana HC11 Jul 2013CR/2214/2011

Case brief

AI extract

What is this about?

The High Court dismissed a tenants' revision petition challenging an eviction order. Upholding decisions of the Rent Controller and Appellate Authority, the Court ruled that the landlord's need to expand his business and his wife's shop constituted bona fide personal necessity, supported by witness admissions and income tax records.

What did the court decide?

The revision petition challenging the eviction orders was dismissed, upholding the decisions of the Rent Controller and the Appellate Authority.

Iqbal Singh & Ors. Vs Sunil Arora & Anrs. — Landlord and Tenant | Punjab & Haryana HC (2013)

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CR No.2214 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.2214 of 2011 (O&M) Date of decision: 11.07.2013

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Iqbal Singh & ors.

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......Petitioner(s)

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Versus

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Sunil Arora & anr.

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......Respondent(s)

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CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG

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Present: Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the petitioners.

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Mr. Ashok Singla, Advocate and Mr. Aakash Singla, Advocate for the respondents.

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Rakesh Kumar Garg, J.

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This is tenants' revision petition challenging the order/judgments of the Authorities below whereby their eviction has been ordered from the premises in dispute on the ground of personal bona fide necessity of the respondent-landlord.

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Without elaborating the facts, suffice is to say that the petitioners are the tenants in different portions of the premises in dispute i.e. SCF No.5, Sector 22-D, Chandigarh under the respondent-Sunil Arora. The respondent-landlord filed eviction petition against the petitioners on various grounds including the ground of personal necessity. However, no other ground except the ground of bona fide personal necessity of the respondent-landlord has found favoured with the Rent Controller for eviction of the tenants and the aforesaid judgment/order of the Rent

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Controller has been further upheld by the Appellate Authority.

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The case of the respondent-landlord on the ground of personal necessity as set up is that he is doing the business of books under the name of M/s Popular Book Store for the last many years. The said business has increased manifold and now he requires the demised premises for the purposes of shifting and adjusting the stationery and material related to the computer stationery which is part of his expanding business in the demised premises and secondly, his wife has also decided to expand her wholesale business of gift items etc. and to run the same from the demised premises under the name and style of M/s J.M. Popular which she has started recently from the existing premises, but she is unable to carry due to insufficiency of the accommodation.

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The petitioners have controverted the averments made in the eviction application denying that the business of the respondent-landlord has increased and he is in the need of adjoining premises as well as the premises in question for his business and further stated that the premises are not required by the respondent-landlord for his bona fide personal necessity for the purpose of expansion of the business and he has only fabricated this ground to get the ejectment of the petitioners.

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While appearing in the witness box as PW1, the respondentlandlord has reiterated the entire averments on oath. He has specifically stated that the premises in question are required by him for his personal use and occupation and for expanding the business of his wife who is carrying out the business of wholesale gift items.

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The Rent Controller after considering the evidence on record while holding that the respondent-landlord is entitled to the ejectment of the petitioners on the ground of personal bona fide necessity has observed as

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CR No.2214 of 2011 (O&M)

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under:

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“In the present case, it has been pleaded by the petitioner that his business had expanded and he had to display his goods in the verandah because of the scarcity of the space. He has further alleged that his wife has also started her business five years ago and the business of the wife has also been expanded and the premises is insufficient for that purpose. On this point appearing in the witness box as RW-2 Iqbal Singh, respondent has himself admitted that the petitioner display the books and stationery item outside the shop. Gulzar Singh RW-1 has also admitted in his cross-examination that the petitioner many times lay and display their stocks on the cots outside the shop, although the same is prohibited. The admission on the part of respondent No.1 Iqbal Singh and respondent No.3 Gulzar Singh appearing in the witness box as RW2 and RW1 goes to show that the petitioner is in scarcity of space and that is why he has to display his goods outside the shop. This makes the need of the petitioner as bonafide. Furthermore, a careful perusal of the

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income tax statements of Sunil Arora petitioner goes to show that the income has kept on rising. Whereas the business profits were Rs.64,610/- in the year, 1996-97, the same increased to Rs.72,000/- in the year, 1997-98 and further continued to increase to Rs.1,14,225/- as per the income tax return of 2001-2002. These are the documents relevant for the purpose of determining the bonafide need of the petitioner regarding the expansion of his business. The increase in the income goes to show that the business of the petitioner has increased manifold and therefore, his need for the premises in question is bonafide one.”

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Aggrieved by the said order of the Rent Controller, the petitioners filed an appeal before the Appellate Authority. Even the respondent-landlord filed cross appeal challenging the findings of the Rent Controller on other issues which had gone against him in the trial Court.

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During the pendency of these appeals, three applications moved by the tenants for leading additional evidence were also allowed and the additional evidence was recorded.

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It was submitted before the Appellate Authority that the respondent-landlord was in occupation of sufficient accommodation to run his business and his need regarding the premises in question was not

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bona fide as the landlord has not placed on record any evidence to show the expansion in business. Moreover, a part of the premises on the first floor of SCF No.6 i.e. The existing premises in occupation of the landlord has also been vacated and the landlord can occupy the same with regard to the need of his wife. It was argued that the alleged business to be run by the wife of the respondent-landlord has been shown only to make a case for ejectment and the landlord might have displayed greeting cards, gifts etc. in front of the shop in the festival season only and cannot derive any benefit from the same.

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However, after considering the arguments raised, the Appellate Authority while rejecting the appeal of the tenants observed as under:

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“After considering the submissions of learned counsel for the parties and after going through the record, I am of the view that in this case landlord is already doing business in the portion of SCF No.6, Sector 22-D, Chandigarh. He has sought ejectment of the tenants from SCF No.5 which is adjoining SCF No.6. The version of the landlord is that existing portion in his possession on the ground floor is short, insufficient for expanding stationery and books business. His wife has started the new business as sole proprietor in the name and style of M.s J.M. Populars. She deals in gifts and other fancy items. She has started the said business from the same premises which is already occupied by the landlord. The premises in his occupation is

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insufficient. There is need for additional separate adjoining showroom for properly and efficiently running, increasing and expanding both the business. It is well settled that landlord is the best judge of his requirement. The tenant cannot dictate terms to the landlord. There should not be mere wish or desire of the landlord but need of the landlord should be bonafide. There is nothing on the file that wife of the landlord is not doing any business from the premises already in occupation of the landlord. The landlord has proved his income-tax return for the years 1996-97 to 200102 which duly establish that business of the landlord is increasing every year. RW.1 and RW.2 have admitted that landlord displayed books and stationery item outside the shop. Thus, I am in agreement with the finding of learned Rent Controller that landlord requires the premises for expanding his business and for the business of his wife. In case Anil Kumar Vs. Harpal Singh cited supra, it was held by our Hon'ble Court that landlord who establishes prima-facie existence of his necessity is entitled to raise a presumption in law, that his need is bonafide. In case Subhash

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Chander Chawla Vs. Gurdial Sing cited supra,

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the landlord wanted two shops for his business. Our Hon'ble High Court has held that need

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bonafide, one shop may not be sufficient for the landlord to start his business. In case Bishan Lal v. Gopi Ram cited supra , the landlord already vacated land which was of smaller size. In the said case meaning of expression such rented land was explained by our Hon'ble High Court. It was held that if landlord had earlier vacated the said land, that land must be of same nature from which ejectment is being sought. In the case in hand, there is nothing on the file that landlord has let out any adjoining premises and same was not disclosed in the petition. Booth No.317, Sector 32D,Chandigarh was owned by the father of the landlord. The same was given by Will to sister of the landlord by the father of the landlord. There is nothing on the file that landlord ever occupied the said booth. The sister of the landlord Smt. Usha Kathuria sold the said booth No.317, Sector 22-D, Chandigarh. Copy of deed of transfer is Ex.AA/1. There is recital that transferees are already in possession of the said booth. As per lease deed Ex.AW8/3, Booth No.321, Sector 32-D, Chandigarh was purchased by the landlord and deed was executed by the Chandigarh Administration in his favour on 14.12.2004 Ex.AW8/3. The landlord filed a suit for ejectment of Amarjit Singh and Varinder Kumar from the said

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Booth No.321, Sector 32-D, Chandigarh. Copy of the written statement is Ex.AW9/A. Copy of the plaint is Ex.PB. The said suit was withdrawn on 7.5.2005 copy of which is Ex.PA. From the said documents, it is proved that the landlord never came in possession of the said property. Booth No.326, Sector 32-D, Chandigarh was not owned by the landlord. Sh. Rajiv Gulati AW.8 has proved the said fact. If in the application of inspection Ex.A2 number of booth was wrongly written as 326 that does not mean that landlord has become owner of the said booth. AW.8 has specifically deposed that inspection application was kept in file of Booth No.321 since said file was inspected by the landlord. The property i.e. SCO No.246, Sector 20, Panchkula is situated in different urban area. There is nothing on the file that at the time of filing the petition the landlord was occupying any other property which he failed to disclose in the petition. In case Gurdev Singh Vs. Ajmer Kaur 2007(1) RCR 80, it was held by our Hon'ble High Court that fact that landlord got possession of one shop during the pendency of the eviction proceedings and let the same on rent is not relevant. In case Kewal Krishan Vs.Amrik Singh cited supra , some of the shops which were also on rent were sold by the wife of the

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landlord. Our Hon'ble High Court had held that it would have no effect for bonafide need for son. In case M/s Voltas Limited Vs. J.C. Malhotra cited supra , it was held by our Hon'ble High Court that Panchkula urban area is not same urban area as Chandigarh. In case Ram Narain Arora Vs. Asha Rani cited supra, the landlord did not disclose that he was in possession of any accommodation in same city. The Hon'ble High Court held that non-disclosure was not fatal as that accommodation was not reasonably suitable. Order of Hon'ble High Court was upheld by Hon'ble Apex Court. Since there is nothing on the file that landlord or his wife was having any other premises adjoining or near his shop where he can run the business so I am of the view that landlord has not concealed in the petition about any accommodation in his occupation. The authorities cited by counsel for the tenants are distinguishable on facts. In case Prabha Kanta Sharma Vs. Smt. Gian Mala Verma cited by the counsel for the tenants, attempt was not made by the petitioner to bring the factum of pendency of the revision petitoin to the notice of the court and rather, the fact was cleverly concealed. In case Adil Jamshed Frenchman (D) by LRs cited supra, the landlord had entered into negotiations

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with M/s Godrej and Boyace Ltd. for selling or use by them of the property, it was held that need cannot be said to be genuine. In case Harjit Kaur Vs. M.K.Seth cited supra , it was held that landlord had filed the petition for reasons other than the personal necessity. In the said case landlord wanted to shift to Ludhiana since she required gal-bladder surgery, it was held by Hon'ble High Court that she would not require to permanently come to Ludhiana for the treatment of the disease. In case R.Sudhandhira Devi Vs. K. Navanithakrishna cited supra, it was not pleaded that husband of the landlord did not possess any other premises. In case Harnam Singh Vs. Mohinder Singh cited supr a, the claim of the landlord was found to be false with regard to commencement of tenancy, rate of rent and date from which rent was payable. In case Sudha Ram Verma Vs. Pawan Kumar cited supra, landlord concealed the fact that residential portion in the same building was already in their possession. In case Bhagwan Dass Vs. Naresh Kumar cited supra , landlord concealed the fact that he has other accommodation in the same locality. In case Krishan Chand Vs. Jagdish Parshad cited supra, eviction on the ground of bonafide requirement for landlord and his son was

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sought. The son was already having a residential flat. Said fact was concealed by the landlord. In case Joginder Singh Sawhney Vs. Harbans Lal cited supra , the landlord failed to lead the basic ingredients of the section. In case T.K Kameshwaran Vs. R. Santhanakrishnan cited supra , a portion of the premises fell vacant which the landlord let out to Insurance Company. So all the authorities cited by the counsel for the tenants are distinguishable on facts and ratio of said authorities cannot be applied to the facts of the present case.

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13. In the light of above discussion, I am of the view that learned trial court has rightly held that the need of the landlord is bonafide so finding on issue No.2 is hereby affirmed.”

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Still not satisfied, the tenants have filed the instant revision petition challenging the impugned orders of their eviction.

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Even at the time of motion hearing, on 16.5.2011, learned counsel for the petitioners had contended before this Court that cause shown for seeking eviction of the tenant from the demised premises i.e expansion of business of the landlord, has not been proved on record as no evidence has brought on record to show increase in the income/turn over of the firm which is occupying the shop in question. The order dated 16.5.2011 reads thus:

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“Learned counsel for the petitioners, inter alia, contends that cause shown for seeking

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eviction of the tenant from the demised premisses is of constant expansion of business of the landlord, whereas except for the Income Tax return of individual, there is no evidence brought on record to show increase in the income/turn over of the firm which is occupying the shop of the landlord.

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Notice of motion for 23.5.2011. Dasti only.”

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During the course of hearing also, the only argument raised before this Court is that need of the landlord is not proved as he is in occupation of shop cum flat No.6 and First Floor of the demised premises. Moreover, expansion of business, as alleged, is imaginary and a ploy, only to get the petitioners evicted and thus, the impugned orders are liable to be set aside.

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At this stage, reference is made to para 4 of the eviction petition which reads thus:

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“That the petitioner is also owner to the extent of 1/3^rd share of another adjoining SCF No.6, Secor 22-D, Chandigarh, and there he is doing a well established business as proprietor of M/s Popular Book Store for the last many years. The said business of the petitioner-landlord in the adjoining SCF No.6, Sector 22-D, Chandigarh has gradually increased and grown to such an extent that the petitioner needs the demised premises i.e. SCF No.5, Sector 22-D, Chandigarh, for two purposes namely, to shift and adjust the stationery and

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CR No.2214 of 2011 (O&M)

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material related to Computer stationery which is part of his expanding business in the demised premises and secondly the petitioner's wife has also decided to expand her wholesale gift business and run the same from demised premises under the name and style of M.s J.M Populars, which she has just started from the existing premises, but is unable to carry out the same properly and is unable to run it flourishingly due to insufficiency of accommodation of Popular Book Store of her husband, from where she is carrying out skeleton services of her business. Thus the demised premises i.e. SCF No.5, Sector 22-D, Chandigarh, is bonafide required for personal use and occupation of the petitioner and his family for running, increasing, expanding and also for establishing the new business of petitioner's wife, and as such demised premises is needed for both petitioner and his wife.”

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The aforesaid pleadings according to the petitioners have not been supported by evidence. It has been argued that the Courts below have gravely erred and has failed to take note of the fact that at the time of filing of eviction petition, the respondent-landlord has failed to proved the fact that his wife has allegedly carrying out the business of M/s J.M. Popular which deals with gifts and other fancy items. The respondentlandlord has completely failed to prove this fact nor he has ever produced any documentary proof in this regard.

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It is well settled that the landlord is the best judge of his needs if he considers the existing accommodation insufficient and his need is more for commodious accommodation, the tenant cannot dictate his terms and it is not for the Court to go into such a question to arrive at a different conclusion. Once the Court comes to the conclusion that the need is a bona fide one, then the Court has not to sit over as a judge over the requirement of the landlord for that purpose.

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The Hon'ble Supreme Court in the case of Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100 has authoritatively held 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 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 to 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.

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At this stage, reference be also made to para 4 of the written statement filed by the tenant-petitioners which reads thus:

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“Para No.4 of the petition is denied that petitioner owns SCF 6, Sector 22/D, Chandigarh to the extent of 1/3^rd as alleged. It is admitted that business under name of M/s Popular Book Store

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is being run in the said SCF. Mr.K.C. Arora was running the said business for the last many years. The building under tenancy and adjoining building of SCF are commercial buildings as the sites underneath were allotted/sold for the said purpose. It is denied that business has increased and that need has arisen for adjoining premises as well as is being made out by petitioner. It is denied that petitioner is to shift and adjust stationery and material related to Computer stationery therein. It is also denied that petitioner's wife has decided to expand any alleged business run under name of M/s J.M. Populars, which has been recently started. It is denied that there is any insufficient accommodation for business. The need is not malafide in as much as petitioner has tried to project on the basis of non-existing need/requirement for business in SCF No.6, Sector 22/D, Chandigarh. It is denied that demised premises are required for personal use and occupation for establishing new business of petitioner's wife and same is required for both of them. The rent petition for need of wife is not competent and maintainable in law. Rentals have increased manifold in the locality and the demand for such increase was not acceded to by the

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respondents, the present rent petition has been filed malafide.”

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Further reference be also made to the cross-examination of Gulzar Singh RW-1 which is as under:

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“Petitioner's wife Sangeeta is also doing the business from the same premises of gift items but she has started it about only 5 yrs ago. Whereas the petitioner is running the business for the last many yrs in the said premises. It is true that the petitioners may times lay and display their stocks on the cots outside the shop although the same prohibited.”

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Even Iqbal Singh RW2 in his cross-examination has admitted that business of the petitioner is flourishing. The relevant part reads thus: “I am doing my business for the last many years and business of everybody including mine and petitioner and also other persons is flourishing also. The petitioner's wife Sangeeta has only about five years with a malafide intention started the business of J.M. Popular in the same premises but she has done so just to create a ground for eviction. It is correct that the display of books and stationery items on the cots outside the shop by the petitoner is not legally allowed, but during academic session and festivals they do it against law.”

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XXX XXX XXX XXX XXX

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The petitioners are employing the staff of more than 5/6 persons in their shop as they can not manage the business number less than that. It is correct that the petitioners are doing the business of stationery, books and computer stationery and the petitioner wife is doing the business of gift items from the same premises.”

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On the other hand, the respondent-landlord has vehemently argued that the findings of the Authorities below are supported by the evidence on record and even while appearing as RW-1 Gulzar Singh and RW2 Iqbal Singh have clearly admitted that wife of the respondent-landlord is carrying out the business of gift items which she has started recently. Not only this, the income tax returns of the landlord as well as his wife as Ex.P-3 to P-8 and Ex.D1 to D3 are already on record of this petition.

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Moreover, in the written statement, the case set up by the tenant-petitioners is that there was no need of demised premises for expansion of the building or the business of respondent's wife. However, in his cross-examination, as noticed above, Gulzar Singh RW-1 and Iqbal Singh RW2 had admitted in clear terms that wife of the respondentlandlord is doing the business of gift items etc. from the existing shop and she is also putting the goods sometimes on the footpath, outside the existing shop in their occupation and the business of petitioner is flourising. Thus, it has come on record that the wife of the landlord has started her business from the existing premises as a sole proprietor under the name and style of M/s J.M. Populars which deals with gifts and other fancy items. It has also come in the statement of the landlord who has unequivocally stated that her wife wants to run her business separately as

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the existing space is unsuitable, short and insufficient. He has further stated that he needs the shop in dispute for expansion of her wife's business. Even petitioner in his cross-examination as RW1 has admitted that business of landlord is flourising. Therefore, the argument raised on behalf of the petitioner that there is no evidence with regard to the need of the respondent-landlord is wholly incorrect. There is sufficient evidence in the shape of the admission of RW-1 Gulzar Singh and RW-2 Iqbal Singh and the statement of the respondent-landlord that they are in bonafide need of premises in dispute. Not only this, even the Income Tax Return filed on behalf of the M/s J.M. Populars , which is being run by the wife of the petitioner is on record as Annexure Ex.D1 along with profit and loss account Ex.D2 and balancesheet as on 31.3.2002 as Ex.D3. It has come on record that the wife of the landlord is a commerce graduate and has started her new business from the same premises as a sole proprietor under the name and style of M/s J.M. Popular in gift and other fancy items for which she needs a separate space. The landlord in his statement has unequivocally stated that her wife wants to run her business from the demised premises separately as the existing space is unsuitable, short and insufficient. It has also come on record that at the time of filing of the petition, the landlord and his wife were running their respective business from the ground floor of SCF No.6 and the demised premises was occupied by the tenants. The aforesaid evidence coupled with the settled law with regard to the need of the landlord is sufficient to support the findings of the Courts below.

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At this stage, it may be noticed that in a catena of judgments, it has been settled that the Revisional Court is not to interfere in the concurrent findings recorded by the Rent Controller as well as the

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Appellate Authority to arrive at a different finding. Reference can be made to the judgments of the Hon'ble Supreme Court in the cases of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta AIR 1999 SC 2507, Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100 and N.Eswari v. K. Swarajya Lakshmi (2009) 9 Supreme Court Cases 678.

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In view of the aforesaid overwhelming evidence on record and the settled principles of law, the argument of the learned counsel for the petitioners is misconceived and is liable to be rejected.

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No other point has been argued.

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Dismissed.

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(RAKESH KUMAR GARG) JUDGE

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July 11, 2013 ps

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CR No.2214 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.2214 of 2011 (O&M) Date of decision: 11.07.2013

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Iqbal Singh & ors.

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......Petitioner(s)

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Versus

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Sunil Arora & anr.

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......Respondent(s)

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CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG

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Present: Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the petitioners.

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Mr. Ashok Singla, Advocate and Mr. Aakash Singla, Advocate for the respondents.

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Rakesh Kumar Garg, J.

Iqbal Singh & Ors. v. Sunil Arora & Anrs.

Case brief

What is this about?

What did the court decide?

Iqbal Singh & Ors. v. Sunil Arora & Anrs.

Case brief

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What did the court decide?

What the court decided

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