Bhupinder Singh vs Harbhajan Kaur

R.S. Mongia, J.—This revision petition has been filed by Bhupinder Singh, tenant, against the concurrent order and finding of the Rent Controller and the Appellate Authority, by which a finding has been recorded that respondent Harbhajan Kaur (landlady) requires the demised premises for personal need and occupation and on that basis ejectment of the petitioner from the demised premises has been ordered.

Landlady Harbhajan Kaur (respondent herein) retired as a Teacher from a primary School on October 31, 1991. The dismissed premises in question i.e, ground floor of house No. 7845/5, situated in Guru Tag Bahadur Nagar, Lehal Colony, Patiala, had been rented out to the petitioner by the landlady. The house is built on a sixteen marla plot. The ground floor consists of two bed rooms, drawing room, dining room, kitchen etc. and almost similar accommodation is on the first floor, which is being occupied by the landlady harbhajan Kaur. After retirement, she had filed a petition u/s 13-A of the East Punjab Urban Rent Restriction Act (hereinafter referred to as "the Act") on November 22, 1991, for ejectment of the petitioner as a specified landlord on the ground that she was not owner in possession of any suitable accommodation in the local area, in which she intended to reside. That petition has also been allowed on November 3, 1992. However, against the said order, C.R. No. 3644 of 1992 had been filed by the tenant Bhupinder Singh, Which was admitted and dispossession was stayed.

Landlady Harbhajan Kaur filed another petition u/s 13 of the Act on May 8, 1996. The grounds taken were non-payment of rent and personal necessity. So far as the ground by personal necessity is concerned, it was averred in para 5 of the petition as under:-

"5. That petitioner is residing on the Ist floor and is aged about more than 62 years and suffering from illness, joint pains and other diseases. The petitioner got operation from U.S.A. and there is a difficulty for the petitioner to go on Ist floor and cannot go easily on Ist floor and come down from Ist floor to the ground floor. The suit property required for the personal use and occupation of the petitioner".

It may be observed here that the landlady had claimed rent at the rate of Rs. 1200/- per mensem and the tenant had denied the same and had averred that the rate of rent is Rs. 300/- per mensem since the premises were let out to him in the year 1982. So far as averments regarding personal necessity are concerned, it was averred as under :-

"That the contents of para No. 5 are wrong and denied. It is wrong and denied that the claimant is aged 52 years and is suffering from any illness. It is wrong and denied that the petitioner is suffering from joint pain and other diseases. It is wrong and denied that the operation has been performed USA. The petitioner is hale and healthy and her only motive is to get the premises vacated with ulterior motive. It is wrong and denied that the premises is required for personal use and occupation. It is wrong and denied that the petitioner is not in possession of any accommodation except the present one."

The petition was tried on the following issues :-

"1. Whether respondent is liable to be evicted from the premises in dispute due to non-payment of arrears of rent ? OPP

What is rate of rent ? OP Parties.

Relief.

However, on December 27, 1998, on an application filed by the petitioner (landlady) the following additional issues were framed :-

"2-A. Whether the petitioner requires the tenancy premises for her use and occupation ? OPP"

In support of her case, the landlady stepped into the witness box and also examined Dr. Sanjeev Sarin (A W2), Senior Resident, Department of Orthopaedics. Government Rajindra Hospital, Patiala, and Dr. Dharam Veer (A W3), Senior Lecturer, Cardiology in the same Hospital. On the other hand, tenant Harbhajan Singh himself stepped in the witness box and did not produce any other evidence. After considering the oral evidence as wall as the documents produced, finding was recorded by the Rent Controller on issued No. 2-A that the landlady required the premises in dispute bona fide for her own occupation. It may be observed here that the landlady did not press issues No. 1 and 2 on the ground that another petition on the same ground (non- payment of rent) was pending in another Court.

Finding on issue No. 2-A was upheld by the Appellate Authority. Hence the present revision petition.

Learned counsel for the petitioner raised the following points for consideration :-

1) In the present case, the sufficiency of accommodation with the landlady is not in doubt. It is the need which had to be proved by the landlady. The evidence which has been produced by the landlady is beyond the pleadings and, therefore, could not be looked into. Whatever the pleadings are, there is no evidence and whatever the evidence is there are no pleadings. The medical evidence which has been produced pertains to the period after the filing of the petition.

ii) That the offer of the tenant to shift to the first floor and give the demised premises on the ground floor to the landlady having not been accepted would go to show that the need of the landlady is not bona fide but mala fide.

iii) That the petition u/s 13-A of the Act filed by the landlady having been allowed by the learned Rent Controller, the relationship of landlord and tenant came to an end and, therefore, the second petition u/s 13 did not lie.

In support of the first point, learned counsel for the petitioner submitted that in the petition for ejectment, it had only been averred that the landlady was suffering from illness, joint pains and other diseases and there was nothing mentioned about the heart disease or the spinal problem whereas in the medical evidence now produced it had been brought on record that the landlady was suffering from heart, spinal problem etc. It was further argued that the doctor had advised the landlady to avoid climbing the stair and this did not mean that the landlady was prohibited from climbing the stairs or that she could not climb the stairs.

In her evidence, landlady had stated that she has been suffering from spinal problem and had got operated for the spinal problem in USA in September, 1996, where her brother is living. Prior to that she was under treatment at Rajindra Hospital, Patiala. She has also mentioned that she is suffering from heart problem and suffered a heart attack in October, 1987 and remained admitted in Rajindra Hospital and underwent angioplasty for heart ailment in U.S.A. She had also brought all the documents regarding treatment taken by her in Rajindra Hospital, at Delhi as well as in U.S.A. The Court asked the counsel for the tenant if he wanted to get information about the name of the hospital from where she had got operated upon, which the landlady could give from recorded she had brought but the counsel stated that he did not want any such information.

The landlady had also produced the doctors from whom she was getting treatment who have supported the case of the landlady regarding the illness on the basis of documents which were duly exhibited. I do not find any substance in the argument of the learned counsel for the petitioner. The landlady had stated in her petition that she was suffering from illness, joint pains and other diseases and had got operated in U.S.A. It is not necessary to give as to from which particular illness the person is suffering especially when written proof regarding illness is produced in the Court. The landlady had retired from service in 1991 at the age at 58 years and when the petition was filed in the year 1996, she was about 63 years of age. A lady of about 63 years of age can have joint pains, spinal problems and experience pain and discomfort in climbing the stairs. This has been so stated by the doctors who attended upon her. So it cannot said that the medical evidence could not be looked into regarding her disease or other problems as it has not been specifically stated in the petition.

So far as the second point that since the landlady did not agree to swap the accommodation with the tenant by offering the tenant the accommodation on the first floor, it should be held that the need is not bona fide is concerned, I do not agree with the same. Of course, if the tenant is otherwise a good tenant and not creating any problems for the landlord, this may be one of the considerations that may be kept in mind by the Court. Learned counsel for the landlady argued that the tenant had been creating all sorts of nuisance for her where as a widow she was staying with her old sister and complaints had also been made to the concerned authorities of the electricity board where the tenant was working. the landlady has no intention to give the first floor to any tenant and she wants to give the accommodation to one of her near relations so that in case of some need or help medically or otherwise she can look and demand upon such a relation. She has no intentions to let out that portion to anybody nor to sell it to anybody. I find nothing wrong in the approach of the landlady. In normal circumstances where the relationship of landlord and tenant is not otherwise strained, the Court may take this fact into consideration. But when it is not so, the landlord cannot be compelled to exchange the premises with the tenant.

So far as point (iii) is concerned, the argument is not tenable. The ejectment order passed u/s 13-A of the Act against the tenant was stayed by this Court in C.R. No. 3644 of 1992. On the grant of stay the relationship of landlady and tenant between the parties did not come to an end and the petition u/s 13 of the Act is filed on the ground of personal necessity and the same is allowed but the Appeal or the revision filed against the ejectment order is pending and the stay has been granted and during that period, the tenant sublets a part of the demised premises. Would it be that landlord is debarred from filing another petition u/s 13 of the Act on the ground of subletting ? To me the answer has to be in the negative. A subsequent petition cannot be barred. The relationship of landlord and tenant continues till, pursuant to the order of ejectment, the tenant vacated the premises.

In passing it may also be observed here that the tenant is an employee of the Electricity Board and entitled to official accommodation. To my query it was pointed out the that the tenant is getting about Rs. 1300/- per mensem from the Electricity Board as House Rent Allowance.

For the foregoing reasons, I find no merit in this petition, which is hereby dismissed. However, under the circumstances of this case, the petitioner-tenant is given two months time to hand over the vacant possession of the demised premises to respondent-landlady.

Petition dismissed.