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JAI DEV versus CHANDAN GAUTAM & ANR

High Court of Punjab and Haryana, Chandigarh

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Jai Dev v. Chandan Gautam & Anr - CR-120-1991 [2006] RD-P&H 12226 (8 December 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR NO.120 of 1991

DATE OF DECISION: November 29, 2006

Jai Dev

....Petitioner

VERSUS

Chandan Gautam and another

....

Respondents

CORAM:- HON'BLE MR. JUSTICE VINEY MITTAL
PRESENT: Ms.Alka Sarin, Advocate for the petitioner.

Shri Surinder Gandhi, Advocate for the respondents.

Viney Mittal,J.

This order shall dispose of two Civil Revisions being Civil Revision No.120 of 1991 and Civil Revision No.121 of 1991.

Both the revision petitions have been filed by the tenant Jai Dev challenging the order dated December 13, 1990 passed by the Appellate Authority, whereby on appeal filed by the landlords, the order of the Rent Controller was set aside and the tenant was ordered to be evicted.

Originally, Ashwani Kumar, father of the present landlord-respondents filed an ejectment application on September 18,

1984. The ejectment of the tenant Jai Dev was sought on various grounds but primarily the ejectment petition was pressed on two grounds. It was claimed that the rent of the premises in question, which is a residential premises, is Rs.350/- per month and the tenant had not paid the arrears of rent with effect from February 1, 1984.

Other ground on which the ejectment was sought was personal requirement of the landlord. Elaborating the aforesaid ground, the landlord claimed that he required the premises for his own use and occupation and for the occupation of his son. The landlord pleaded that previously he was working as an Operator in Sangeet Cinema, Rohtak. In the year 1982, he temporarily shifted to Jalandhar and in the meantime, the house in question was let out to Jai Dev, tenant through one Om Parkash. The tenant had promised to vacate the premises on the return of the landlord from Jalandhar. It was claimed by the landlord that he had shifted back to Rohtak in August 1984 and had joined back the service of Sangeet Cinema as a Head Operator. It was also pleaded that he wanted to marry his own son and since there was no other house for the residence of the landlord and his son and also for user of the same by his sisters and daughters who were married, therefore, the house in question was required by him for his personal necessity.

This ejectment petition was contested by the tenant. He claimed that the rent of the premises was Rs.225/- per month and that he had paid all the arrears of rent at that rate on December 3,1984, after the ejectment petition had been filed. The tenant also claimed that landlord did not require the premises in any manner.

During the pendency of the ejectment petition, the landlord died. His legal representatives i.e. his son Chandan Gautam and his daughter Girish were brought on the record. A separate Page numbers

ejectment petition was also filed by the aforesaid Chandan Gautam and Girish, after the death of their father. They also sought the ejectment of the tenant on identical grounds. It was claimed by them that the tenant was in arrears of rent with effect from May 1,1988 till October 31, 1988. It was also pleaded that the house in question was required by Chandan Gautam for his own occupation and for the occupation of his family and that he had no other house at Rohtak, nor he had vacated any such house in the said urban area. The landlords further pleaded that, in the meantime, Chandan Gautam had married and had two children but had no house to stay at Rohtak.

Even when Girish, sister of Chandan Gautam used to visit her parental family, she had no house to stay at Rohtak.

This ejectment petition was also contested by tenant Jai Dev. Identical defence was raised in this petition also.

Vide an order dated October 26, 1989 passed by this Court, the two ejectment petitions were ordered to be consolidated.

Consequently, the evidence was recorded in the petition originally filed by Ashwani Kumar, deceased landlord.

Vide an order dated April 30,1990, the learned Rent Controller, dismissed two ejectment petitions filed by the landlords.

The rate of rent was held to be Rs.225/- per month and consequently it was held that the tenant was not in arrears of any rent, having paid the rent at that rate during the proceedings before the Rent Controller.

The plea of personal necessity set up by the landlords was also rejected by the Rent Controller.

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The landlords filed two separate appeals before the Appellate Authority. Both the aforesaid appeals were heard together.

Vide order dated December 13, 1990, the Appellate Authority has allowed the aforesaid two appeals filed by the landlords. Both the findings recorded by the Rent Controller have been set aside. The rate of rent of the premises in question has been held to be Rs.350/- per month and as a result thereof it has been held that the tenant had not tendered entire arrears of rent and as such the tender made by the tenant was short and invalid. The Appellate Authority has also reversed the findings recorded by the Rent Controller with regard to the personal necessity of the landlords.

The Appellate Authority has held that the landlords required the premises in question for their own personal use and occupation. In these circumstances, the orders passed by the Rent Controller have been set aside and both the ejectment petitions filed by the landlords have been allowed and the tenant has been ordered to be ejected from the premises.

It is in these circumstances that the tenants have approached this Court through the present two revision petitions.

I have heard Ms.Alka Sarin, the learned counsel appearing for the tenant petitioner and Shri Surinder Gandhi, the learned counsel appearing for the landlord respondents and with their assistance have also gone through the record of the case.

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At the outset, Ms.Alka Sarin, the learned counsel appearing for the tenant petitioner has argued that the findings recorded by the Appellate Court with regard to the rate of rent of the premises in question being Rs.350/- per month are absolutely unjustified and contrary to the record. The learned counsel has maintained that the Rent Controller had, in fact, appraised the entire evidence on the record and thereafter had held the rate of rent to be Rs.250/- per month and, in these circumstances, the findings recorded by the Appellate Authority with regard to the rate of rent being Rs.350/- per month cannot be sustained. In addition, the learned counsel has agued that even if the rate of rent is held to be Rs.350/- per month, still keeping in view the law laid down by the Apex Court in Rakesh Wadhawan & Ors v. Jagdamba Industrial Corporation & Ors 2002(2) PLR 370, since no provisional order with regard to the arrears of rent had been passed by the Rent Controller, therefore, an opportunity was required to be given to the tenant to pay the shortage of arrears of rent.

With regard to the ground of personal necessity, on which the ejectment has been ordered by the Appellate Authority, the learned counsel for the tenant petitioner has also challenged the said findings. She has argued that the plea raised by the landlords lacked the essential ingredients and as such the ejectment petition on the ground of personal necessity was liable to be dismissed on this short ground alone. The learned counsel has further argued that the landlord Chandan Gautam was employed with M/s. Kelvinator India Page numbers

at Faridabad and as such had no intention to shift to Rohtak, and in any case, no evidence whatsoever had been led by the landlord that he had any means to run his own business, as alleged by him. In these circumstances, it has been maintained by the learned counsel that ejectment of the tenant could not even be ordered on the ground of personal necessity.

On the other hand, Shri Surinder Gandhi, the learned counsel appearing for the landlords has defended the order passed by the Appellate Authority. It has been claimed by the learned counsel that the rate of rent has been rightly held to be Rs.350/- per month and since there was a shortage in payment of the arrears of rent, therefore, the tender made by the tenant could not be held to be valid.

The learned counsel has also argued that originally the ejectment had been sought by Ashwani Kumar,the father of the present landlords in the year 1984, when Chandan Gautam, landlord No.1, was unmarried.

During the pendency of the litigation, Chandan Gautam had married and had even two sons and as such having a family of his own, required the premises in question for his personal use. It has also been argued by the learned counsel that once the landlords had proved that they had no other house at Rohtak, nor had vacated any such house in the said city, then need of the landlords has to be held as bonafide.

I have duly considered the rival contentions of the learned counsel for the parties. In my considered opinion, there is no merit in the present petitions.

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Although both the learned counsel for the parties have addressed arguments with regard to the rate of rent but I do not wish to go into the said question, inasmuch as, even if it is held, as found by the learned Appellate Authority also, that the rate of rent is Rs.350/- per month, still keeping in view the law laid down in Rakesh

Wadhawan's case (supra), a provisional order was required to be passed by the Rent Controller assessing the arrears of rent.

Concededly, no such order had been passed in the present case. In these circumstances, it would be required to give an opportunity to the tenant to pay the arrears of rent and in such an opportunity, the shortage of arrears of rent can always be made good by the tenant.

Therefore the said ground of ejectment is almost not even available to the landlord, at this stage. Thus, any finding on the rate of rent, either in favour of the landlord or in favour of the tenant, would be wholly irrelevant, at this stage.

However, with regard to the other ground of personal necessity, claimed by the landlords, upon which the ejectment of the tenant has been ordered by the Appellate Authority, it is apparent that originally Ashwani Kumar, father of the landlords, had filed an ejectment petition in the year 1984. At that point of time, Chandan Gautam son of Ashwani Kumar was unmarried and he was serving at Faridabad. Ashwani Kumar had pleaded that he wanted to marry his son Chandan Gautam, who also wanted to shift to Rohtak for carrying on his own business. Ashwani Kumar died thereafter. In these Page numbers

circumstances, Chandan Gautam and his sister Girish filed a fresh ejectment petition, and even continued with the original ejectment petition as legal representatives of their father. In the subsequent ejectment petition, the landlords took up identical pleas. However, it was claimed that, in the meantime, Chandan Gautam had been married. In the evidence, it has also come on record that Chandan Gautam has two sons. He has specifically stated that he was living in a one room accommodation at Faridabad, for which he was originally paying rent at the rate of Rs.400/- per month, which rent had been raised to Rs.500/- per month later on and still latter the rent has further been increased to Rs.650/- per month. Chandan Gautam has stated that he wanted to shift to Rohtak to start his own business of repair of refrigerators and air conditioners. Although, an argument has been raised on behalf of the tenant before this Court, as was raised before the Appellate Authority also, that the landlords had not led any evidence to show that Chandan Gautam had means to start any business, but the Appellate Authority has rightly observed that since the business proposed by him was merely of repair of refrigerators and air conditioners, therefore, the same did not require any investment. In these circumstances, the requirement of the landlords has been upheld by the Appellate Authority. Obviously, the landlord Chandan Gautam could not be expected to shift from Faridabad to Rohtak without any residential premises being available to him. Nothing has been shown before this Court that the findings of fact recorded by the Appellate Authority suffered from any infirmity Page numbers

or are improper under the facts and circumstances of the case. The learned counsel for the tenant has not been able to point out any deficiency in the pleadings of landlords as argued by her.

It is well settled that the landlords is the sole Judge of his needs and the Courts cannot sit in judgment over the aforesaid needs, nor can tenant be permitted to render any suggestions with regard to any business and residential accommodation of the landlords. Under the facts and circumstances of the case, the need of the landlords has to be held to be bonafide.

As a result of the aforesaid discussion, I do not find any merit in the present revision petitions. The same are dismissed.

However, the tenant petitioner is granted two months' time to vacate the premises.

November 29,2006 (Viney Mittal)

KD Judge

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Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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