In this revision, the tenant challenged orders of the Rent Controller and Appellate Authority allowing eviction. The High Court rejected the plea, holding the landlord proved bonafide necessity for her sons to open independent businesses. The Court rejected arguments regarding vacant premises, noting suitability must be judged by the landlord.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR No.3105 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.3105 of 2013 (O&M) Date of decision: 26.07.2013
Radhey Shyam
......Petitioner(s)
Versus
Sumitra Devi
......Respondent(s)
CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Mukesh Mittal, Advocate for the petitioner.
Rakesh Kumar Garg, J. (Oral)
By filing this revision petition, the tenant has challenged the order dated 2.9.2011 of the Rent Controller, Narnaul ordering his eviction from the demised premises and the order dated 30.3.2013 of the Appellate Authority, Narnaul, dismissing his appeal against the aforesaid order of the Rent Controller.
The respondent-landlady filed the present petition under Section 13 of the Haryana Urban (Control of Rent and Eviction), Act, 1973 (for short the 'Act') for ejectment of the petitioner from the tenanted premises (i.e shop and godown) situated in Mandi Narnaul. In the petition, it was pleaded that the demised premises were rented out to the petitioner on a monthly rent of Rs.225/- w.e.f. 1.9.1993 on the basis of a written rent note dated 18.9.1983. Subsequently, the rent was increased to Rs.3750/per annum. After the death of the original landlord, namely, Devi Dayal, his wife Sumitra i.e respondent became the landlady of the demised premises.
It was further pleaded that the petitioner was in arrears of
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rent since 1.4.2008 and has failed to pay house tax and fire tax and thus, was liable to be ejected from the demised premises on the ground of nonpayment of arrears of rent. The respondent-landlady further pleaded that the petitioner has changed the user of the premises by converting the shop into a godown and the premises had been lying closed for the last more than a year which had diminished its value and utility.
The respondent-landlady further pleaded that the demised premises are required by her for opening a business for her sons, namely, Mahesh Kumar and Manish Kumar who have no shop available with them to do business. Her son Mahesh Kumar was earning his livelihood by supplying goods in the area of village Hudian and Bhakri etc. and he needs the demised premises for opening a business for himself. She has no other shop available with her to open a business for her sons. It was further pleaded that she had not vacated any such shop after the commencement of the Act in the urban area of Narnaul. Initially the petitioner had agreed to vacate the demised premises after his son got a job. However, he had refused to vacate the shop as agreed by him. The petitioner has not acceded to her request for handing over the vacant possession of the demised premises. Hence, the petition for ejectment.
Upon notice, the petitioner filed reply pleading therein that the agreed rent stands tendered by him on 25.11.2009. He was not liable to pay house tax and nothing remains to be paid to the respondent-landlady towards the rent of the demised premises. He further denied that the demised premises were lying locked for the last more than one year or that the same was being used by him as a godown. It was further denied that the value and utility of the demised premises has been decreased in any manner.
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The petitioner further pleaded that both sons of the respondent are well settled and the respondent wants to get the premises vacated with mala fide intentions so as to re-let or sell the same. She does not require the demised premises for her own use or for use by her sons. Other averments were denied and dismissal of the petition was prayed for.
The respondent-landlord filed rejoinder to the written statement controverting the averments made therein and reiterated those made by her in the eviction petition.
From the pleadings of the parties, following issues were framed on 15.2.2010.
1. Whether the respondent is liable to be ejected from the shop in question on the grounds as alleged in the petition? OPP
2. Whether the petition is not maintainable?OPR
3. Whether the petitioner has no cause of action to file the present petition? OPR
4. Whether the present petition is time barred? OPR
5. Whether the present petition is bad for non-joinder and mis-joinder of the necessary party? OPR
6. Whether the petitioner has not come in the Court with clean hands and concealed true and material
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facts from the Court? OPR
7. Relief.”
The Rent Controller after considering the evidence on record held that the arrears of rent stands voluntarily tendered by the petitioner and he was not liable to be ejected on the said ground. The Rent Controller further found that the petitioner was not liable to be ejected from the demised premises on the ground of change of user or that he had materially impaired the value and utility in any manner or that the same was lying closed for the last more than a year prior to the institution of the present suit.
However, after considering the pleadings of the parties and the evidence on record, the Rent Controller vide its order dated 2.9.2011 allowed the eviction petition on the ground that demised premises was required bonafidely by the respondent-landlady for opening a business for her grown up sons so as to settle them independently.
At this stage, it is useful to refer to the observations of the Rent Controller which reads thus:
“The petitioner has sought ejectment on the averment that she requires the premises for opening a business for her grown up sons. The sons of the petitioner namely Mahesh Kumar and Manish Kumar appeared in the witness-box as PW2 and PW5 respectively. PW2 Mahesh Kumar stated that he has no building to open a business for himself. He has been doing business of supply of goods in different villages as a hawker. PW5 Manish Kumar has also stated that he does not
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possess any building of his own for opening a business. The premises where he has been running his office is on rent. He want to open his office in the shop in question. The statements made on oath by PW2 Mahesh Kumar and PW5 Manish Kumar the sons of the petitioner/landlord leaves no doubt that the need set up by the petitioner is the most genuine one.
It is also well settled that the landlord is the best judge of his own requirement. The tenant cannot be allowed to dictate terms to the landlord. Even if the landlord is found to be owner in possession of more than one premises, it is for the landlord to decide which premises he would prefer to occupy. Landlord has a freedom to see as to how he has to utilize his property and which of the properties owned by him is best suited to fulfill his need. The suitability of any premises for the need of the landlord is to be considered as per the convenience of the landlord and his family members.
The petitioner/landlord is duty bound to settle her sons independently. It cannot be expected that his both sons would remain joint for all time to come. The grown of the families and transformation of joint families into nuclear families has been a recent phenomenon.
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Therefore, if two brothers or father and son want to part gracefully and start independent business, a tenant cannot be allowed to curtain the right of the landlord from doing so on account of his hardship.
It has also been observed by our Hon'ble High Court in the ruling Yashpal Juneja Versus Satish Kumar (supra) that even if an alternative accommodation is available, it is for the landlord to decide as to how and in what manner he should fulfill his requirement. It has also been observed by our Hon'ble High Court in the ruling Ramnath Versus Deshraj and other (supra) that the question of landlord's necessary, the extent or its nature, in the context of the suitability of the premises, be best left to landlord's perception of his necessity and the Court shall not proceed to dictate or impose its own perception of the landlord's necessity.
In the present case there is nothing on record to show that the petitioner owns or possess any other suitable accommodation wherein she may open a business for his sons so as to settle them. The rooms on the first floor of the demised premises cannot be said to be suitable for running a business. At the most the rooms on the first floor of the demised premises can be sued for
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residential purposes. The other shop owned by the petitioner is situated on the back side of the demised premises also cannot be held to be sufficient enough for opening a business by the petitioner-landlord for her two sons. As already observed the suitability of the premises has to be judged from the view point of the landlord. Even otherwise the demised premises seems to be most suitable for opening a business by the sons of the petitioner landlord. So the need set up by the petitioner cannot be held to be a mere wish or desire one. The landlord has explained the suitability of the premises required by him. Neither the tenant nor the courts can substitute the requirement of the landlord.
Further the contention of the respondent that the petitioner has no intention to occupy the tenanted premises and that she would re-let the same after getting it vacated is also misconceived. The tenant has a legal right under Section 13(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 which says that in case the landlord who obtained the possession of the building or rented land on the ground of personal requirement does not occupy the same, for which the possession was obtained for a continuous period of twelve months, the tenant could apply to the
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Rent Controller for an order directing to restore the possession of such building.
In view of the observations made above, it is held that the petitioner has been able to prove that the demised premises is bonafidely required by her for opening a business for her grown up sons so as to settle them independently. The respondent is thus held liable to ejectment from the demised premises on this ground under Section 13(3) of the Haryana Rent Act. Accordingly findings on this issue are recorded in favour of the petitioner and against the respondent.”
Aggrieved from the aforesaid eviction order of the Rent Controller, the petitioner filed an appeal before the Appellate Authority which was also dismissed.
Still not satisfied, the petitioner has filed the instant revision
petition.
Challenging the aforesaid orders of the Authorities below, counsel for the petitioner has vehemently argued that need projected by the respondent for her personal occupation of the demised shop is not genuine and convincing need as the respondent has nowhere pleaded that the shop in question is needed for their own business purpose, rather in cross-examination of Mahesh, (son of the respondent-landlady), he has admitted that he was doing the business of supplying the goods by delivering the same in different villages and he has further admitted that the godown on the back of the demised premises is owned and possessed by
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CR No.3105 of 2013 (O&M)
the respondent-landlady wherein household goods are lying. It is the case of the petitioner that Mahesh, son of the landlady, has never reiterated the fact that godown on the back side of the said premises is not suitable for opening the shop and thus, the requirement seems to be mere a wish of the landlady instead of a genuine need. Moreover, the respondent is also in possession of the rooms on the first floor of the demised premises which are lying vacant.
Counsel for the petitioner has further argued that the Authorities below have misappreciated the fact of availability of the rooms on the first floor of the demised premises and a godown of equal size on the backside of the demised premises. Moreover, the respondent in her petition has not pleaded that the accommodation available with her is insufficient and that the respondent does not own any commercial building in the said area.
According to the petitioner, the Courts below have erred at law while ignoring provisions of Section 13(3)(a)(i)(b) and (c ) of the Act i.e the respondent is not occupying any other commercial building and she has not vacated such a building without sufficient cause and the respondent has nowhere specifically pleaded the ingredients of the aforesaid provisions. According to the counsel for the petitioner, in order to seek eviction on the ground of personal necessity, the averments are essential to be pleaded and proved as given in Section 13(3)(a)(i)(b) and (c ) of the Act. In support of his case, counsel for the petitioner has relied upon a Full Bench judgment of this Court in Banke Ram versus Shrimati Sarasvati Devi 1977 (1) RCR (Rent) 595.
According to the counsel for the petitioner, the respondentlandlady has not made these averments deliberately as she has other
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premises where she could easily adjust her son Mahesh who has admitted that he was in possession of the godown on the backside of the demised premises and the rooms on the first floor of the premises which are lying vacant and are in their possession and the fact that sufficient accommodation is available with the landlady negates the plea of personal requirement. Thus, according to the counsel for the petitioner, the impugned orders are liable to be set aside.
I have heard the learned counsel for the petitioner and have also perused the impugned judgments.
There is no dispute with the law laid down by a Full Bench judgment of this Court in Banke Ram's case (supra). It is imperative for landlord to specifically plead all the ingredients in sub-clauses (b) and (c ) i.e. he is not occupying any other residential building and he has not vacated such a building without sufficient cause and also to prove the facts constituting those conditions.
However, the aforesaid judgment is not applicable in the facts and circumstances of the case and in fact from the perusal of the impugned judgments, it is crystal clear that the petitioner had specifically pleaded all the ingredients and has further proved the same by leading cogent evidence and the argument raised is without any merit. The factum of pleadings as required under the aforesaid sub-clauses (b) and (c ) of Section 13 (a) (i) can be noticed from the facts as mentioned in both the judgments. Not only this, the aforesaid pleadings are further supported from the statement of the landlady.
It may further be noticed that there is not an iota of evidence on record to show that the respondent-landlady owns or possesses any other suitable accommodation in the locality or that she has vacated such a
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premises after commencement of the said provisions. The argument raised on behalf of the petitioner in this regard on the basis of admission of Mahesh, son of the respondent-landlady, that rooms are lying vacant on the first floor of the demised premises and the vacant godown lying on back of the demised premises, is liable to be ignored simply on the ground that it is the landlord who is to see the suitability of the premises required by him. Neither the tenant nor the Court can substitute the said requirement of the landlord-respondent. The rooms on the first floor of the demised premises cannot be used for commercial purposes and the godown situated on the backside of the demised premises also cannot be held to be sufficient or suitable enough for opening a business by the respondent-landlady for her two sons. Learned counsel for the petitioner has not referred to any of the evidence on record to establish that after the commencement of the Act, the respondent-landlady has vacated any such premises and that the respondent was occupying any other accommodation in the urban area concerned. Though it has been argued on behalf of the petitioner that the respondent-landlady has not pleaded the necessary ingredients of aforesaid provisions of Section 13(3)(a)(i)(b) and (c ) of the Act, however, keeping in view the facts, as noticed in both the judgments of the Authorities below, counsel for the petitioner has no courage to show me the pleadings of the parties in this regard.
No other point has been argued.
Thus, I find no merit in this petition.
Dismissed.
July 26, 2013 ps
(RAKESH KUMAR GARG) JUDGE
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3 issues framed by the court
Whether the landlord is entitled to evict the tenant on the ground of bonafide requirement for opening a business for her grown-up sons.
Whether the existence of vacant rooms or a godown owned by the landlord negates her claim of necessity for the demised premises.
Whether the landlord satisfied the statutory conditions under Section 13(3)(a)(i)(b) and (c) regarding possession of other buildings.
Colour shows how this judgement treated each authority
Banke Ram versus Shrimati Saraswati DeviReferred¶75
Banke Ram versus Shrimati Saraswati Devi 1977 (1) RCR (Rent) 595
Yashpal Juneja Versus Satish KumarReferred¶54
Yashpal Juneja Versus Satish Kumar (supra)
Ramnath Versus DeshrajReferred¶54
Ramnath Versus Deshraj and other (supra)
3 provisions across 1 enactments
Radhey Shyam
Sumitra Devi
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
