Mrs Kanan Dewan and Others vs Sh. S. S bawa

J.V. Gupta, J.—This is landlords'' petition in whose favour, eviction order was passed by the Rent Controller but the same has been set aside in appeal.

The demised premises consist of the front portion (ground floor) of House No. 52, Sector 2-B, Chandigarh. The whole building has three storeys. The ground floor in occupation of the tenant consisting of two rooms, dining cum-drawing, kitchen, bath room, a store and a servant quarter, was given on a monthly rent of Rs. 1,200/- by Sushil Kumar, ton of Sh. Shanti Sarup Dewan. The ejectment application dated 12th August, 1982, was filed by Sh. Sushil Kumar on the ground that the premises in dispute were required for his bonafide use and occupation. It was stated that he was then residing in a rented house No. 2, Sector 28-A, Chandigarh, and was occupying its ground floor ; that he wanted to shift to his own house mentioned above, as the accommodation with him was not suitable and sufficient for his need It was also pleaded that the landlord did not own any other residential building nor had vacated any house after coming into force of the East Punjab Urban Rent Restriction Act, 1949, in the urban area concerned, nor was he occupying any other house except the ground floor of H No. 2, Sector 28-A, Chandigarh. In the Written Statement it was pleaded that the landlord was residing comfortably in H No. 2, Sector 28-A, Chandigarh, which place was just close to his business premises ; that the plea of personal requirement was not bonofide and the ejectment application had been filed with a view to increase the rent. The learned Rent Controller after discussing the entire evidence cane to the conclusion that the premises in dispute were bonafide required by the landlords.

It may be stated here that during the pendency of the eject-application, Sushil Kumar, landlord, died, and his legal representatives, namely his widow, his mother and three minor children, were brought on record It is also pertinent to note that originally, the whole building of H. No. 52, Sector 2 B, Chandigarh, belonged to late Sh. Shanti Sarup Dewan. He died leaving behind two sons and a widow. The premises in dispute had fallen to the share of Sushil Kumar, son of Sh Shanti Sarup. On the evidence produced on behalf of the landlords, the learned Rent Controller came to the conclusion that "It is on record by way of statement of the Petitioner Kanan without being any challenge that the front portion of House No. 52, Sector 2-B, Chandigarh had fallen to the share of deceased Sushil Kumar while the equal portion on the back side on that building had fallen to the share of his brother Ashwani Kumar The Respondent admitted that Ashwani Kumar never took rent from him in recpect of the disputed portion, although he had been coming for collection of proportionate water charges of the disputed portion. This fortifies the stand of the Petitioners that there was a mutual partition after the death of Shanti Sarup and while the disputed portion had fallen to the share of Sushil Kumar, the portion on the back side came to the share of Ashwani Kumar, who was dealing with that portion as a landlord/owner " Consequently, eviction order was passed on 31st October, 1983. In appeal, the learned Appellate Authority took the view that the landlords were occupying the ground floor of a ten Maria house and the demised premises seem to be almost of the same area as the accommodation in the possession of the landlords at present. It further found that the accommodation in their possession was just near to the place of their business whereas the demised premises were quite a few miles away therefrom. It was also observed that the landlords were paying Rs. 380/- p. m, as rent of the portion with them while they were getting Rs. 1,200/- p. m. as rent from the tenant. According to the Appellate Authority, it had not been pleaded or stated that the landlords were under any obligation to vacate the premises in their possession in Sector 28-A, Chandigarh, and on these grounds it found that the requirement of the landlords was not bonafide. Consequently, it set aside the eviction order Dissatisfied with the same, the landlord has filed this petition in this Court.

During the pendency of this petition, an affidavit dated 6th December, 1984, was filed on behalf of Mrs Kanan Dewan, widow of late Sh. Sushil Kumar, whereby certain facts subsequent to the filing of the revision petition were sought to be brought on record. It was stated therein that her daughter Kumari Nidhi Dewan had joined the Government College for Girls in Sector 11, Chandigarh, in Pre Medical Class ; that her second daughter Kumari Veenu Dewan would be joining the said College in May/June, 1985 and that her third daughter Kumari Charu Dewan was a student of L K. G. in Government Model School, Sector 20-D, Chandigarh, which was quite far off from her present tenanted house whereas the Government Model School, Sector 10, Chandigarh, was at a walkable distance from her house No. 52, Sector 2, Chandigarh She further stated that in H. No 53, Sector 2, Chandigarh, lived Sh. Ram Lal Aggarwal and Sh. Yog Parkash Aggarwal, the real uncle (Phupha) of Dewan Sushil Kumar her late husband i. e. very adjacent to the premises in dispute, and they can be very helpful to her in her present circumstances as she had to go out during the day to look after her business. It was further averred by her that on 28th November, 1984, the landlady of the house presently occupied by the deponent as a tenant, namely the ground floor of H. No. 2, Sector 28-A, Chandigarh, bad served her with a legal notice through her advocate Sh. Pardeep Kumar, terminating her tenancy after the expiryy of 15 days from the receipt of that notice, when she was required to deliver the vacant possession of the said premises failing which she would have to pay damages for the use and occupation of the said premises at the rate of Rs. 600/- per mensem, and that her landlady would have to file a petition for her ejectment. No counter affidavit was filed to these averments on behalf of the present tenant-Respondent However, an affidavit dated 3rd December, 1985, was filed by Sh S. S. Bawa, the tenant, wherein it was stated that the third portion of H. No. 52, Sector 2-B, Chandigarh, (alleged to have fallen to the share of Smt. Parkash Dewan) which was in occupation of P. Pandarwani, I. A. S., Director of Sports. Haryana Government, as a tenant, had been vacated by him during the pendency of the present petition, but it had not been occupied by the landlord-Petitioners and instead had been let out for an enhanced rent of Rs. 1,050/- p. m. In reply to the said affidavit, Mrs. Parkash Diwan, wife of late Dewan Shanti Sarup, has filed an affidavit dated 7th January, 1986, wherein it has been stated that she is absolute owner of the back portion constructed on the first floor of H. No 52, Sector 2-B, Chandigarh, which has been let out by her as she cannot live on the first floor because she cannot go up stairs as advised by the doctors and that her only source of livelihood is the income from rent.

Learned Counsel for the Petitioner contended that in view of the facts and circumstances of the case, particularly, the subsequent facts as to the issuance of said notice by the landlady of the tenanted premises in Sector 28, Chandigarh ; and the miner children of the Petitioner having taken their admission in Government College, Sector 11, Chandigarh, the requirement of the demised premises by the Petitioner-landlord was banafide and there is nothing on the record to suggest that the same was not genuine in any manner. According to the learned Counsel, the whole approach of the Appellate Authority was wrong, illegal and improper. The learned Rent Controller had rightly come to the conclusion that the personal requirement of the landlord was bonafide but this finding has been reversed arbitrarily, on surmises and conjectures, by the Appellate Authority. It was further contended that it was the requirement of the landlord that has to be seen by the Authorities under the Act taking into consideration all the relevant facts; and circumstances, and in the absence of malafides, the landlord is entitled to seek ejectment of his tenant. On the other hand, the learned Counsel for the tenant/Respondent submitted that the present accommodation in occupation of the landlords is sufficient to meet their requirements; moreover, the said premises are situate nearby the business premises and are, therefore, most suitable. According to the learned Counsel, the notice has been got issued to the present Petitioners designedly, as no action has been taken so far on the basis of the said notice: that the subsequent facts sought to be brought on record by way of affidavit dated 6th December, 1984, are after-thought ; and that no such plea was taken by the landlords that they are the owners of one portion of the whole house, and, therefore, any finding given by the Rent Controller was of no consequence. According to the learned Counsel, the whole house belongs to the Petitioners and since one portion had fallen vacant during the pendency of this petition, and the same had again been rented out to some other tenant for a higher rent, the petition was liable to be dismissed on that ground alone. It was also contended that the Appellate Authority, on appreciation of the evidence, had come to the conclusion that the requirement of the landlords was not bonafide, and that being a finding of fact, cannot be interfered with in revisional jurisdiction, In support of his contentions, he referred to Romesh Kumar v. Atma Devi 1985 (2) R. C. J. 566 and Kewal Krishan v. Smt. Janki Devi (1982) 84 P. L. R. 113.

I have heard the learned Counsel for the parties and also gone through the evidence on record. From the facts and circumstances of the case brought on record, it is amply proved that the requirement of the landlords is most bona fide. There is no suggestion that the landlords wanted to increase the rent, and, therefore, they filed the present application. Apart from that, nothing has been brought on record by the tenant to prove that the application was actuated by any mala fide. The Petitioners are the owners of /3rd portion in the house in dispute which was rented out by Sushil Kumar to the tenant Sh. S. S. Bawa, and, it is, therefore, those premises which are required for the bona fide need of the Petitioners. The statement of Smt. Kahan Bala AW 1 is very specific on this point and no challenge was made to that statement in her cross examination. That being the position, it becomes irrelevant if the third portion of the house was vacated during the pendency of the petition by the tenant and was again rented out to another tenant. Apart from that, in the affidavit dated 7th January, 1986, it has been explained that since Mrs. Parkash Diwan cannot live on the first floor and go upstairs as per medical advice, the same could not be occupied by her. Not only that, the rental income being the only source of her livelihood, she had to let out that portion of the house, and live with the family of her son on the ground floor, i.e., the demised premises. After the death of Sushil Kumar, there is no male member to lock after the family, and in these circumstances it becomes a relevant factor that the ether relations who are living in the adjacent house No. 53, Sector 2-A, Chandigarh, will be able to look after them. It has not been denied by the tenant that the minor children of the Petitioner Mrs Kanan Diwan have taken admission in Government College, Sector 11, Chandigarh, which is near the house in dispute. Thus, taking into consideration all the facts and circumstances of the present case the bona fide requirement of the Petitioners has been overwhelmagly established. The learned Rent Controller rightly came to the conclusion that the disputed property is required by the Petitioners bona fide whereas the said finding has been reversed arbitrarily on surmises and conjectures. Moreover, at present, the Petitioners are residing in the tenanted premises for which a notice terminating their tenancy has already been issued to them. It is not necessary that they must wait and get themselves ejected from those premises first and then seek the ejectment of their tenant/Respondent from the demised premises. As observed earlier, there it absolutely no evidence on the record that the landlords wanted to increase the rent at any stage, and, therefore, the application was not bona fide.

As a result of the above discussion, this petition succeeds, the order of the Appellate Authority is set aside and that of the Rent Controller directing the ejectment of the tenant is restored, with costs. However, the tenant is allowed three months'' time to vacate the premises provided all the arrears of rent, if any, are deposited with the Rent Controller within a fortnight from today with a further undertaking in writing that after the expiry of the said period, vacant possession will be handed over to the Petitioners, and the tenant shall pay the rent for this period in advance by the 10th of every succeeding month.