Lucky Sethi vs Pardeep Kumar and Others

Rakesh Kumar Garg, J.—This is tenant''s revision petition challenging the order of the Rent Controller dated 02.03.2013, whereby his eviction from the demised premises has been ordered on the ground of personal necessity of the respondents-landlords and the judgment dated 10.05.2013 of the Appellate Authority dismissing the appeal of the petitioner against the aforesaid order of the Rent Controller. Briefly stated, the respondents are owners of the property bearing No. 1929 measuring 10''-9" x 51'' having purchased the same on 24.03.1999 and 15.04.1999, and a part of the said building has a platform. It is further case of the respondents that a part of the said platform measuring 2''-6" x 9'' was given by the respondents to the petitioner on a monthly rent of Rs. 1,000/- for running a tea-stall. The said platform is having one shed at the top and the petitioner had kept his articles of tea-stall in the open space having no permanent structure over the said platform, rather the respondents are having one window in their shop opening towards the platform. The eviction of the petitioner has been sought on the ground that he has failed to pay the arrears of rent with effect from 01.01.2007 at the rate of Rs. 1000/- per month; and that the respondents need the said premises for their personal use for business purposes as the respondents are running a Bartan Store and therefore, they need one show case to be installed over the demised premises for displaying the new products for attraction of the general public who may come and visit their shop for purchasing their requirements/utensils in kitchen, and thus, need of the respondents was bonafide and genuine for their own use and occupation.

The petitioner contested the eviction petition raising various preliminary objections, including that the property in question was not owned by the respondents. On merits, it was denied that the demised premises were let out on a monthly rent of Rs. 1000/- and asserted that the petitioner was in possession of the property in question before its coming into the ownership and possession of the respondents, as he was running a tea-stall at the place for the last 17-18 years. It was further averred by the petitioner that the respondents used to receive a rent of Rs. 400/- per month from him upto 31.12.2008, however, there is no writing or receipt in this regard. It has also been stated that the demised premises is a part of the platform and is not a part of the property purchased by the respondents, and thus, the question of personal use does not arise. More so, the respondents were having sufficient property for their use and business, and thus, they were not in need of the demised premises. Dismissal of the eviction petition was prayed.

On the basis of the averments made, the Rent Controller framed following issues:

Whether respondent is in possession of the platform as tenant under the petitioner at the rate of Rs. 1,000/- per month? OPA

Whether respondent is in arrears of rent w.e.f. 1.1.2007? OPA

2-A. Whether the respondent is liable to be ejected from the suit property on ground of bonafide personal necessity of petitioner? OPA

Whether petitioners have got no cause of action or locus standi to file the present suit? OPR

Whether present petition is not maintainable in the present form? OPR

Relief.

On consideration of the evidence, the Rent Controller found that the relationship of landlord and tenant between the parties is admitted as the petitioner himself has admitted in the written statement by pleading that the respondents have received rent from him upto 31.12.2008 at the rate of Rs. 400/- per month. On the basis of the sale deeds placed on record, the Rent Controller further found that by virtue of the sale deeds the respondents have become owners of the property No. 1929 which includes the Thara/platform in possession of the petitioner, which forms a part of the property and is evident from the site plan (Ex. R5/1) and the photographs.

While ordering eviction of the petitioner, the Rent Controller further found that the ground of personal necessity of the respondents has been fully established on file. Thus, the petitioner was ordered to be evicted from the demised premises on the ground of personal necessity.

Aggrieved from the aforesaid order of the Rent Controller, the petitioner filed an appeal before the Appellate Authority which was also dismissed. The relevant part of the judgment dated 10.05.2013 passed by the Appellate Authority reads thus:

Careful consideration of oral and documentary evidence produced by the parties shows that petitioners Pardeep Kumar and Sandeep Kumar together purchased part of the property from vendor Smt. Neera Bhateja vide sale deed Ex. A-4 dt. 15.4.1999 while petitioner Alka purchased part of same property from the same vendor Smt. Neera Bhateja vide sale deed Ex. A-6 dt. 24.3.1999. There is a reference of platform (Thara) in both the sale deeds. Confusion of boundaries as highlighted by the learned counsel for the appellant was due to the fact that different vendors have purchased the property from the same owners which is contiguous. Site plan of the petitioner''s Ex. A-1 supports their case to the extent that shop in question consists of one portion described as 11 feet X 10.9 feet and area of the shop belonged to Alka Rani is adjoining to that on the western side. Platform in dispute is in front of the portion of the shop purchased by Pardeep Kumar and Sandeep Kumar together and by Alka Rani vide separate sale deeds. I am not convinced with the argument raised on behalf of the appellant that the property has not been described as purchased by the petitioner.

I further find no force in the contention of the learned counsel for the appellant that joint petition filed by the petitioner is not maintainable. In fact, the property undisputed is one and the same and vendees have purchased the same separately vide two sale deeds Ex. P4 and Ex. P6. Petition is one filed by two landlords and a land lady. Regarding existence of the property in question-platform in the street, I have gone through the cross-examination of the appellant Lucky who appeared as RW-1. He has testified that Deepu (i.e. Pardeep Kumar petitioner-landlord) told him that the property in question was purchased by him and he was to receive the rent. RW-1 did not object to that. RW-1 has admitted that owners of the tea stall are Pardeep Kumar, Sandeep Kumar and Alka. He has further admitted that after crossing the tea stall, there is newly constructed market, although the shops are inoperative. Lucky Sethi in his affidavit Ex. RW1/A has asserted that he has been running the tea stall on the platform for the last about 20 years. The respondents in this appeal are collecting the rent at the rate of Rs. 400/- per month and they have received the rent upto 31.12.2008. Although the appellant-tenant has denied their title and has asserted that the rent was being collected forcibly from him, his contention does not appeal to the reason as per the facts and circumstances discussed above.

In the light of discussion made above, I reach at a conclusion that the authorities relied upon by the appellant are not helpful to him. He is a tenant over the property in dispute. Learned Rent Controller has rightly passed the eviction order against the appellant. There being no force in the appeal, the same is dismissed but without costs. Memo of costs be prepared. Lower Court record be returned. Appeal file be consigned to the record room.

Still not satisfied, the petitioner-tenant has filed the instant petition challenging the orders of the courts below. Learned counsel for the petitioner has vehemently argued that the courts below have failed to record a finding with regard to the rate of rent and the arrears of rent; yet eviction of the petitioner has been ordered on the said ground, and thus, the impugned orders are liable to be set aside as after deciding issues No. 1 and 2 against the tenant no opportunity has been given to him to deposit the rent assessed.

Learned counsel for the petitioner has further argued that even the bonafide need of the respondents is not made out from the evidence produced before this Court as admittedly in the showroom, the respondents are having a window which can be converted into a showcase and the goods can be displayed by them in the said showcase and they are not in need of the platform/Thara on which the petitioner is running his tea-stall.

The arguments raised before this Court are liable to be rejected.

A perusal of paragraph 14, 15 and 16 of the judgment of the Appellate Authority (as noticed in the judgment) would show that all these arguments, which have been raised now before this Court, were not raised at all before the said authority. It may further be noticed that though issues were framed before the Rent Controller with regard to rate of rent and arrears of rent and no specific finding has been given with regard to the arrears of rent, yet it may be noticed that the Rent Controller has found that the petitioner himself has admitted that he has paid rent at the rate of Rs. 400/- per month upto 31.12.2008. Moreover, a perusal of the order of the Rent Controller would show that eviction of the petitioner has not been ordered on the ground of non payment of rent/arrears of rent, but the same has been ordered only on the ground of personal necessity of the respondents. Relevant paragraph of the judgment passed by the Rent Controller reads thus:

In the present case, it has been proved beyond the preponderance of probabilities that the demised premises is required by the petitioners for their personal use for expanding their business of bartan store, which is admittedly being done in the shop purchased by the petitioners and the demised premises is the part of that property, it being a platform/tharra outside the bartan store. This being a bonafide & genuine requirement, in view of my aforesaid discussion, I am of the firm view that the petitioners have proved their requirement of personal necessity over demised premises to expand their business of bartan store, therefore, the respondent is liable to be evicted from the demised premises.

So far as the non-payment and arrears of rent/rate of rent is concerned, the onus of proving this issue was on the petitioner, but he has not been able to discharge the said onus by leading cogent and convincing evidence as AW1 Pardeep Kumar during his cross-examination stated that there is no record in the Municipal Council regarding tenancy of respondent @ Rs. 1,000/- per month. He further stated that he is paying house tax but did not file the house tax receipt in this case. Therefore, since the petitioners have not been able to convincingly prove the rate of rent of the demised premises, so this issue is decided against the petitioner, whereas, the rest of the issues under discussion are decided in favour of the petitioners and against the respondent.

Therefore, the argument raised on behalf of the petitioner before this Court on this ground is misconceived.

It may further be noticed that though it has been argued that need of the respondents-landlords is not bonafide; suffice is to say, it is well settled that need of the landlord is to be seen from his view point and the tenant cannot dictate terms in this regard.

A specific plea has been taken by the respondents-landlords with regard to their need, which has further been corroborated by the testimony of the landlord. It is for the landlord as to how he has to utilize the premises under his occupation and in this view of the matter, no fault can be found with the findings recorded by the courts below whereby eviction of the petitioner has been ordered on the ground of bonafide need of the respondents-landlords. Dismissed.