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RAJ KUMAR versus DR. GURBAX SINGH MALHOTRA

High Court of Punjab and Haryana, Chandigarh

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Raj Kumar v. Dr. Gurbax Singh Malhotra - CR-1703-2003 [2006] RD-P&H 5390 (8 August 2006)

C.R.No.1703 of 2003 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.1703 of 2003 (O&M)

Date of Decision: August 21, 2006

Raj Kumar ........Petitioner

v.

Dr. Gurbax Singh Malhotra ........Respondent CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Akshay Bhan, Advocate

for the petitioner.

Mr.M.L.Saggar, Advocate

For the respondent.

***

P.S.PATWALIA, J.

The present civil revision has been filed challenging the orders passed by the Rent Controller, Chandigarh as also the Appellate Authority, Chandigarh whereby the petitioner has been ordered to be evicted from Booth No.15, Sector 9-D, Chandigarh.

A petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 was filed by the landlord seeking eviction of the tenant inter alia on the ground of personal necessity. The petitioner stated that he had retired as Joint Director (Eye Relief) Punjab on 31.3.1986. He had worked as Eye and ENT Specialist in the General Hospital from 1962 to 1964. Thereafter he was a Consultant in the Eye Department of the Post Graduate Institution of Medical Education and Research, Chandigarh from 1964 to 1971. After his retirement he started private practice from a single room in the basement of his House No.1364, C.R.No.1703 of 2003 [2]

Sector 15-B, Chandigarh. He stated that the aforementioned room was a very small room of the size of 10' x 11'. During the rainy season the basement used to get flooded from rain water which made the room dirty and damp and thereafter it could not be used for weeks together. Since his retirement he had wanted to start his practice in the booth but could not file an ejectment petition on the ground of personal necessity as the booth was a commercial premises. It was only after the judgment of the Hon'ble Supreme Court clarifying that even a commercial premises could be got vacated on the ground of personal necessity that the present petition was filed. He further stated that the booth is located in Sector 9 which was a posh locality where the practice of the petitioner could flourish. The petitioner had averred that he is still enjoying good health. It has come on the record that in fact the petitioner is running a Dispensary in the name and style of Bhai Kanhiya Free Dispensary in a Gurudwara in Sector 15 where he attends to the patients on every Friday.

Learned Rent Controller on a consideration of the evidence on the record recorded the following findings:- "10. The petitioner has sought the ejectment of the respondent from the disputed booth on ground that since the basement of his house whether he was running a clinic gets flooded during the rainy season resulting in dampness and foul smell which persists for weeks, he cannot run his clinic in the same. The respondent on the other hand has taken contradictory plea though in his written statement he has averred that the petitioner being of old age is not physically fit to run a clinic and is not running any clinic at all but in the cross-examination of the witnesses of the petitioner suggestions have been put to the effect that petitioner is seeing the patients in the drawing room of his house and is having a good practice therefrom.

Also respondent in his cross examination has deposed that petitioner C.R.No.1703 of 2003 [3]

visits the Gurudwara 4/5 times in a week and sees his patients free of costs. Such contradictory pleas of the respondent proves the falsity of this stand. The petitioner on the other hand, has deposed that he is seeing his patients in the drawing room of his house which is not a place for running a clinic and therefore, needs the disputed booth to set up his clinic. This testimony of the petitioner is fully corroborated by Gian Parkash Sood, PW2. Also Gurminder Singh PW3 has deposed that the petitioner is running a dispensary in the Gurudwara by the name and style of Bhai Kanhiya Free Dispensary and attends the patients on every Friday from 8.00 AM to 9.00AM.

In view of the evidence led by the petitioner, it is duly established on the record that the petitioner is physically fit to run a clinic and is rather leading an active life. The contention of the ld. Counsel for the respondent that petitioner can run a clinic by raising further construction in his house is legally not maintainable and is even otherwise beyond pleadings. The petitioner in the evening of his life wants to do something constructive with his valuable medical experience since he is a retired Director, Health Services Punjab and I see no reason why he cannot run his clinic in the disp0uted booth merely because the respondent feels that he is too feeble in soul and in body to do so.

11. Further the respondent has taken a plea that the disputed booth is very small and hence not suitable for running a clinic. In this regard, I find it relevant to mention that on the one hand respondent has taken a plea that petitioner can very well run his clinic from the drawing room of his house because an Eye and ENT Specialist does not need too many gadgetry but on the other hand has taken a plea that the booth is very small for running a clinic. If the petitioner can C.R.No.1703 of 2003 [4]

run his clinic in the drawing room of his house which is though not meant for the said purpose he can very well run his clinic in the disputed booth as I concur with the ld. Counsel for the petitioner that he does not need to instal too many gadgetry. Before parting with this issue I find necessary to mention that a drawing room is not a place for running a clinic and the petitioner must obviously be facing hardship in setting up a make shift clinic in the drawing room of his house, therefore, in view of my discussion above, I am of the considered opinion that the petitioner has established on the record that he needs the disputed booth for running his clinic which is a bonafide need and this issue is decided in favour of the petitioner." On this basis, the petition for eviction was allowed. The Appellate Authority has affirmed the said findings with the following observations:- "22. Reverting to the instant case, it is important to note that the petitioner deposed that he wants to remain in practice because he has the expertise to do practice and he does not want to remain idle. He also stated that he has only one son, who is a doctor in PGI and is living with him in the same house with his family, so, he cannot do practice on the ground floor because of insufficient place. It is further in his statement that the prospects of medical practice in the demised premises are very good because it is in Sector 9, Chandigarh, which is considered to be the best locality and is also near to his house. There is no rebuttal to these facts. More so, it is worth-while to note that it is not the allegation of the respondent that the petitioner had ever asked him to increase the rent or had been filing petitions for his ejectment unnecessarily. Hence, it is held that since the petitioner does not have proper and sufficient accommodation to run a clinic at his residence and the demised C.R.No.1703 of 2003 [5]

premises are well suited for doing private practice, he had to file the instant petition and there is no reason to decline his prayer. He cannot be compelled either to squeeze his residence or to sit idle and not to start a clinic of his own to lead an active life and also supplement his income. Here reliance is placed on the authority reported as Sarla Ahuja Versus United India Insurance Company Limited, 1998(2) Rent Control Reporter 533, wherein the Hon'ble Apex Court laid down as under:-

"The crux of the ground envisaged in clause (e) of Section 14 (1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When 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 of the 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 endeavor as to how else the landlord could have adjusted himself." At the time of arguments learned counsel for the petitioner contended that in fact the plea of bona fide personal necessity put forward by the landlord was not a genuine plea. The landlord did not actually want to practice. He contended that no evidence had come on record as to whether the landlord had any professional income from his practice. No patients' register was placed on the C.R.No.1703 of 2003 [6]

record. He therefore prayed that the findings of the Courts below allowing the claim of the landlord should be reversed.

Having considered the arguments of the learned counsel, I am not inclined to agree with the same. A reading of the facts of this case would show that both the Courts have concurrently found that the landlord is a qualified doctor. He is carrying on practice in his residential house. He is also examining patients in a local Gurudwara. The evidence on the record shows that in spite of his age he is capable of working. At this stage of his life he wants to do something constructive with his valuable medical experience. Therefore there is no reason as to why he should not be permitted to practice from this commercial booth which is situated in Sector 9, Chandigarh. The findings recorded by the Courts below are on assessment of the evidence produced before them and I find no infirmity in the same. Merely because professional income has not been mentioned and register of patients' has not been produced is no ground to disturb the findings recorded by the Courts below.

For the reasons recorded hereinabove, I find no merit in this revision petition and the same is dismissed. In terms of the orders passed by the Rent Controller as also the Appellate Authority, the petitioner-tenant is directed to hand over vacant possession of the demised premises to the respondent-landlord within a period of two months.

( P.S.PATWALIA )

August 21st, 2006. JUDGE

RC


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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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