Ashok Kumar Bagga vs Prithvi Nath Kaul

R.N. Mittal, J.—This revision petition has been filed by Ashok Kumar Bagga against the order of the appellate Authority, Chandigarh, dated September 13, 1977.

Briefly, the facts are that Prithvi Nath Kaul is the owner of the house bearing No. 1668, situated in Sector 34-D, Chandigarh. He leassed a portion of the house consisting of two rooms, a Kitchen and a veranda with attached bath room and latrine (2nd floor) at a rent of Rs. 115/ per mensum, exclusive of electricity and water charges, to the tenant. He further said that he had two sons studying in 8th and 10th classes and three daughters studying in B.A., higher secondary and Ist primary classes and that the accomodation with him was 4 rooms, which was insufficient for the needs of his family. He, therefore, filed an application for ejectment of the tenant u/s 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) for ejectment of the tenants on two grounds, namely, that the tenant had not paid the rent and that he required the portion occupied by the tenant for his personal use.

The application was contested by the tenant-Respondent. He, however, paid the rent of the home along with interest and costs assessed by the learned Rent Controller on the first date of hearing. It was accepted by the landlord under protest saying that it was insufficient. The learned Rent Controller framed the following issues:

Whether the premises is required for bona fide personal requirement of the Petitioner ?

Whether the Respondent is liable to be evicted on the ground of none payment of rent ?

Relief.

He held that the landlord required the premises bona fide for his own use and occupation. He further said that issue No. 1 was not pressed. Consequently, he in view of findings on issue No. 1, allowed the application and ordered the ejectment of the tenant. An appeal was filed by the tenant before the Appellate Authority who affirmed the order of the Rent Controller and dismissed the appeal. He has come up in revision to this Court.

The only contention of the learned Counsel for the Petitioner is that the house in dispute consists of ground floor, first floor and second floor. The accommodation on the ground floor consists of four rooms. The accommodation on the first floor is the same at that on the ground floor. On the second floor there are two rooms, a Kitchen and a bath room. He argues that there were three tenants on the first floor and they vacated the premises during the pendency of the present petition but the landlord gave those portions on lease to other tenants at exorbitant rents. He further argues that in case the landlord bona fide required further accommodation he could have occupied the rooms on the first floor. According to the learned Counsel for the Petitioner, the Petitioner is being ejected in order to get enhanced rent of the second floor. On the other hand the learned Counsel for the Respondent has vehemently argued that the landlord can get that portion of the house vacated tor his needs, which he thinks is suitable for him. He submits that the daughters of the Respondent were grown up and, therefore, be wanted a separated portion for them. He further contends that the tenant cannot dictate the landlord to occupy those portions which are not considered suitable by him.

I have heard the learned Counsel for the parties and given thoughtful consideration to their arguments. It is not disputed that the tenant on the first floor vacated the three portions occupied by them during the pendency of these proceedings and the landlord inducted new tenants in those portions. It is also not disputed that there are four rooms of the first floor. When some portions of the first floor were vacated the landlord could conveniently occupy those portions. The contention of Mr. Bali(sic) that the Respondent has grown up daughters and that they could not be asked to occupy the rooms on the floor which was shared by other tenants, is untenable. On the other hand the rooms on the first floor could have been more suitable if these were to be given to the daughters. In the alternative the Respondent could have offered the rooms which were vacated on the first floor to the Petitioner who is a tenant on the second floor and get his portion vacated. He, however, did not choose to adopt either of the courses but gave the accommodation on the first floor on rent to new tenants. It is true that the Respondent has two sons and three daughters besides wife and the children are studying in different classes. But the fact of leasing out the first floor to new tenants clearly goes to show that he is getting the premises vacated with an oblique motive. It cannot be disputed that the bona fide requirement of a landlord has to be found out on the facts and circumstances of each case. After taking into consideration the circumstances of the present case, I am not satisfied that the landlord bona fide requires the premises for his own use and occupation.

The language of Section 13(3)(a)(i) of the Act also warrants the above conclusion. It will be advantageous to read the said section, which is as follows:

13(3)(a). landlord may apply to the Controllor for an order directing the tenant to put the landlord in possession: (i) in the case of a residential building, if:

(a) he requires it for his own occupation; and

(b) he is not occupying an other residential building, in the urban area concrened; and

(c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area;

(d) X X X X

From a reading of the aforesaid Section it is evident that if the landlord wants to make an application for ejectment of a tenant on the ground that he wants the premises bona fide for his own use and occupation, he is to allege all the aforesaid grounds and prove them. (See (1977) 79 P.L.R 112, (Full Bench) Banke Ram v. Shrimati Saras -vati Devi.) (1977) 79 P.L.R. 112. If the accommodation comprised in two rooms on the first floor was available with the landlord at the time of tiling the application for ejectment, be could not ask for ejectment of his tenant on the second floor on the ground of bona fide requirement. Therefore, the same principle will apply if similar accommodation is vacated by a tenant during the pendency of the application for ejectment.

The learned Counsel for the Respondent has made reference to T. Panchapakesan (died) and Others Vs. Peria Thambi Naicker (died) and Others, Manohar Lal v. Mool Chand 1976 R.C.R. 236 and Shri Surjit Singh v. Shit I.J. Chawla (1978) 2 Rent. L.R. 736.

In P. Gnanasambandam''s case (supra) a learned Single Judge of Madras High Court observed that where the requirement of landlord for additional accommodation is bona fide it is not for the tenant to say as to which of the portions in the premises should be taken by the landlord. Similar observations were made in Manohar Lal''s case (Supra). The above observations are unexceptionable but the facts of both the cases are distinguishable. Therefore the Respondent cannot drive any benefit from these cases. In Surjit Singh''s case (Supra), on which great reliance has been placed by Mr. Bali, the landlord made an application for ejectment of his tenant from second floor which comprised of one barasti. The landlord was is occupation of the ground floor. During the pendency of the ejectment proceedings the first floor which was one unit and comprised of a drawing cum-dining room, two bed rooms, one kitchen, one bath room and one store, was vacated by the tenant. The landlord gave that portion on lease to another tenant on rent of Rs. 550/ per month. The rent of the 2nd floor at that time was is 275/- per month. A contention was raised on behalf of the tenant that the order of his ejectment was bad as the landlord had let out the first floor which had been vacated after the riling of the petition, to another tenant. It is evident from the persual of the facts in that case, that there was only one tenant on the first floor and the accommodation with him was much more then that required by the landlord. That portion was again let out to one person. The learned Judge also held that the landlord required only one room and not three. In this case the accommodation which is available on the second floor was also available to the landlord on the first floor. In the circumstances the observations in that case are of no help to the Respondent.

For the aforesaid reasons, I accept the revision petition, set aside the order of the Appellate Authority and dismiss the application for ejectment. No order as to costs.