Mr. Amrit Pal vs Govinder Singh Virk

V.S. Aggarwal, J.—The petitioner has filed the present revision petition directed against the order of the learned Rent Controller, Chandigarh, dated 28.2.1996 and of the learned Appellate Authority, dated 4.6.1998. the learned Rent Controller had dismissed the eviction petition filed by the petitioner and the appeal also failed.

The relevant facts giving rise to the present revision petition are that the respondent is a tenant with respect to the suit property i.e. first floor of the house in question. The petitioner filed eviction application on the ground that the respondent did not pay the arrears of rent at the rate of Rs. 1200/- per month and further that the petitioner requires the property for herself and members of her family. It has been pleaded that the house was owned by the father of the petitioner. After his death, the same has been inherited by the widow of the deceased, the petitioner and her sister Gagandeep Kaur. When the petitioner was married, she started living with her husband in a house in Section 11, Chandigarh. The said house was provided to her husband by the State Bank of India being an employee of the Bank. Subsequently, the petitioner and her husband shifted to the ground floor of the demised premises. At the time, the ground floor of the demised house was lying unoccupied. At that time, the mother of the petitioner and her father were employed in Himachal Pradesh. The mother of the petitioner retired in 1992 and started living on the ground floor of the demised premises. Ever since the shifting of the mother of the petitioner, the petitioner, her husband and two children started on the ground floor.

It is asserted that the said accommodation is insufficient because the mother of the petitioner being old has her own style of life. The petitioner wants to live in the suit premises. Her in-law also visit her and they find it difficult to live with the mother of the petitioner. The father-in-law of the petitioner is stated to be 70 years old and visits Chandigarh for treatment in the Post Graduate Institute of Medical Education and Research of Chandigarh.

The findings regarding the ground of eviction for non-payment of rent were against the petitioner and were not challenged in this Court.

The main contest here has been with respect to the ground if the petitioner require the suit premises for herself and members of her family.

In the written statement filed, the petition as such has been contested. It has been pleaded that the demand is mala fide. The husband of the petitioner was living in a house is Section 11, Chandigarh. It had been provided by the State Bank of India. After the marriage of the petitioner, she started living in that house. Admittedly, the petitioner has two children. It is not in controversy that earlier the mother of the petitioner was serving in the State of Himachal Pradesh. But it is stated that the mother of the petitioner is already living on the ground floor of the house is question. The petitioner and her husband wilfully vacated the house in Section 11, Chandigarh, and shifted on the ground floor of the demised premises in the year 1971. They had suitable alternative accommodation. It is denied that the accommodation with the petitioner is insufficient.

The learned Rent Controller as well as the learned Appellate Authority found that the requirement of the petitioner is not bona fide. The learned Appellate Authority even went on to hold that since the husband of the petitioner has been transferred to Himachal Pradesh, the requirement has ceased to be bona fide.

During the course of arguments, it had been pointed out that with respect to the ground of eviction for non-payment of rent, it has been found that the claim of the petitioner was false. On the strength of this fact, had been highlighted that it must be held that the requirement of the petitioner was not bona fide. However, on this score, indeed, the plea of the petitioner cannot be appreciated. Each ground of eviction has to be examined on its own merit. Unless the finding of the controversy reflects on the other, it will not be proper to draw any such inference. The ground on non-payment of rent has to be examined on its own merit. Thus, the question of there being mala fide with respect to the personal requirement on the said ground will not arise.

This Court in the case of Iqbal Singh Sethi v. Mangat Ram 1997(2) RCR 189 (P&H) : 1997(2) 116 P.L.R. 591, has considered the said controversy and held as under:-

"....Simply because the landlord has failed to establish that the rent had been increased to Rs. 50/- from 1.1.1972, it cannot be held that eviction application filed by the respondent was not bona fide or that he had taken a false plea in regard to the rate of rent. Petitioner in order to save himself from eviction was required to tender the entire arrears of rent and interest at the rate of six per cent per annum on such arrears, together with cost of the eviction application. Petitioner having failed to pay the full interest on the arrears of rent had rightly been ordered to be evicted on the ground that he has failed to pay/tender the rent as provided under sub-section (2) of Section 13 of the Act."

Same view was adopted in the subsequent decision of this Court in the case of Kishan Chand v. V.K. Dhawan 1999(1) RCR 141 (P&H) : 1991(1) RLR 346 and when a similar argument was advanced, it had been repelled with the following observation:-

"Learned counsel for the petitioner in the event contended that the landlord-respondent took up a false plea about the agreed rate of rent and this shows the mala fide intention. This cannot be so accepted. Even if the respondents put up the claim of excessive rent, that does not imply that for all other purposes the claim should be ignored. Each claim has to be examined and tested on its own merits. The findings so arrived at as pointed require no disturbance. There is no ground to interfere in the revision petition."

Therefore, the plea as such must fail

Admittedly, the husband of the petitioner has been transferred to Himachal Pradesh. However, it is in evidence that the petitioner is still living at Chandigarh with her two children. When the husband of the petitioner has been transferred and the petitioner is residing at Chandigarh, the requirement of the petitioner as such cannot be defeated simply because his husband has ceased to live in the demised premises on account of his transfer. The only fact to be noticed is that the requirement of accommodation of the husband can be deleted except on his occasional visits.

It is in evidence that before the petitioner and her husband shifted to the ground floor, the mother of the petitioner at that time was serving in the Himachal Pradesh. Presently, after retirement, she is also living on the ground floor. It has been alleged that the mother of the petitioner finds difficult to live with the petitioner and members of her family and, therefore, the petitioner intends to shift to the first floor which is the accommodation in question.

Indeed, the landlord is the best judge of his residential requirement. It is for landlord to decide as to how and in what manner he should live. If the landlord desires to beneficially enjoy his own property, unless mala fides are shown the petitioner as such cannot be defeated on that account. Supreme Court in the case of Mrs. Meenal Eknath Kshirsagar Vs. M/s. Traders and Agencies and another, in this regard held as under:-

"....As pointed out be this Court, it is for the landlord to decide how and in what manner he should live and that he is that best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate to him to continue to occupy such premises...."

Same view was adopted by the Supreme Court in the case of Sarla Ahuja Vs. United India Insurance Company Limited, Of course, this was a decision rendered u/s 25B(8) of the Delhi Rent Control Act, 1958. But while considering the bona fide requirement of the landlord, it was concluded by the Supreme Court that the tenant cannot dictate how landlord should adjust himself without getting possession of the tenanted premises.

In the present case in hand, the father-in-law of the petitioner is stated to be under treatment at Post Graduate Institute of Medical Education and Research at Chandigarh. He also visits the petitioner. Indeed, it would be inconvenient to the father of the petitioner to live on the ground floor where the mother of the petitioner is residing. If the petitioner intends to live on the first floor which is the suit premises, indeed, the tenant cannot dictate the terms.

During the pendency of the present revision petition, an application was filed on behalf of the respondent that additional accommodation has been built, namely, two rooms and, therefore, requirement of the petitioner has ceased to be bona fide. certain photographs in this regard were appended. The application had been opposed. A Local Commissioner with the consent of the parties was appointed to visit the spot. The Local Commissioner submitted the report dated 25.5.2000. With respect to the said additional accommodation, it was pointed out that one room was being used for storage and one for the servant. This was the precise reply that had been filed. In these circumstances, it cannot be termed that the additional accommodation as such had been set up can be stated to be living rooms. On that ground, indeed, no mala fide can be drawn.

As mentioned above, the petitioner is married lady. She has two children which have now grown up with the passage of time. She is visited by her father-in-law. If she finds it difficult to live with her mother, it cannot be termed that the demand would be mala fide. Consequently, the impugned judgments of the Court below cannot be sustained.

It is true that ordinarily this Court would not interfere in certain findings of fact. But when the findings have been arrived at on incorrect appreciation of position of law, this Court would certainly not hesitate in interfering. this is the position in this case.

For these reason, the revision petition is allowed and the impugned judgment is set aside. Eviction order is passed on the ground that the petitioner requires the demised property for herself and members of her family.

The respondent-tenant is granted six months time to vacate the suit premises.

Revision allowed.