Civil Revision No. 569 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
Civil Revision No. 569 of 2008
Date of decision: May 08, 2009
Chander Kalan and another ........Petitioners
Versus
Roshan Lal .......Respondent(s)
Coram: Hon'ble Ms Justice Nirmaljit Kaur
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Akshay Kumar Goel, Advocate
for the petitioners
Mr. Sudhanshu Makkar, Advocate
for the respondent
-.-
Nirmaljit Kaur, J.
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
Civil Revision No. 569 of 2008 2
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.
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 PW-
1 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.
Counsel for the respondent, on the other hand, argued that
Civil Revision No. 569 of 2008 3
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.
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.
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:-
” 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
Civil Revision No. 569 of 2008 4born 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.”
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.
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
Civil Revision No. 569 of 2008 5
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.
The lower Appellate Court in para 12 of its judgment,
records:-
“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
Civil Revision No. 569 of 2008 6house 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.”
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
Civil Revision No. 569 of 2008 7
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.
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.
The arguments raised by the learned counsel for the
respondent that the petitioners had sold another house and it was only,
Civil Revision No. 569 of 2008 8
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. Meenakshi, reported as (2005) 13 Supreme Court Cases 99, held as
under:-
“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.”
Civil Revision No. 569 of 2008 9
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.
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:-
Civil Revision No. 569 of 2008 10
“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
Civil Revision No. 569 of 2008 11evidence 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.”
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.
[Nirmaljit Kaur]
Judge
May 08, 2009
mohan