Radhey Shyam vs Sumitra Devi

Rakesh Kumar Garg, J.—By filing this revision petition, the tenant has challenged the order dated 2.9.2011 of the Rent Controller, Narnaul

ordering his eviction from the demised premises and the order dated 30.3.2013 of the Appellate Authority, Narnaul, dismissing his appeal against

the aforesaid order of the Rent Controller. The respondent-landlady filed the present petition u/s 13 of the Haryana Urban (Control of Rent and

Eviction), Act, 1973 (for short the ''Act'') for ejectment of the petitioner from the tenanted premises (i.e. shop and go-down) situated in Mandi

Narnaul. In the petition, it was pleaded that the demised premises were rented out to the petitioner on a monthly rent of Rs. 225/- w.e.f. 1.9.1993

on the basis of a written rent note dated 18.9.1983. Subsequently, the rent was increased to Rs. 3750/- per annum. After the death of the original

landlord, namely, Devi Dayal, his wife Sumitra i.e. respondent became the landlady of the demised premises.

It was further pleaded that the petitioner was in arrears of rent since 1.4.2008 and has failed to pay house tax and fire tax and thus, was liable to

be ejected from the demised premises on the ground of nonpayment of arrears of rent. The respondent-landlady further pleaded that the petitioner

has changed the user of the premises by converting the shop into a godown and the premises had been lying closed for the last more than a year

which had diminished its value and utility.

The respondent-landlady further pleaded that the demised premises are required by her for opening a business for her sons, namely, Mahesh

Kumar and Manish Kumar who have no shop available with them to do business. Her son Mahesh Kumar was earning his livelihood by supplying

goods in the area of village Hudian and Bhakri etc. and he needs the demised premises for opening a business for himself. She has no other shop

available with her to open a business for her sons. It was further pleaded that she had not vacated any such shop after the commencement of the

Act in the urban area of Narnaul. Initially the petitioner had agreed to vacate the demised premises after his son got a job. However, he had

refused to vacate the shop as agreed by him. The petitioner has not acceded to her request for handing over the vacant possession of the demised

premises. Hence, the petition for ejectment.

Upon notice, the petitioner filed reply pleading therein that the agreed rent stands tendered by him on 25.11.2009. He was not liable to pay

house tax and nothing remains to be paid to the respondent-landlady towards the rent of the demised premises. He further denied that the demised

premises were lying locked for the last more than one year or that the same was being used by him as a godown. It was further denied that the

value and utility of the demised premises has been decreased in any manner.

The petitioner further pleaded that both sons of the respondent are well settled and the respondent wants to get the premises vacated with mala

fide intentions so as to re-let or sell the same. She does not require the demised premises for her own use or for use by her sons. Other averments

were denied and dismissal of the petition was prayed for.

The respondent-landlord filed rejoinder to the written statement controverting the averments made therein and reiterated those made by her in

the eviction petition.

From the pleadings of the parties, following issues were framed on 15.2.2010.

Whether the respondent is liable to be ejected from the shop in question on the grounds as alleged in the petition? OPP

Whether the petition is not maintainable? OPR

Whether the petitioner has no cause of action to file the present petition? OPR

Whether the present petition is time barred? OPR

Whether the present petition is bad for non-joinder and mis-joinder of the necessary party? OPR

Whether the petitioner has not come in the Court with clean hands and concealed true and material facts from the Court? OPR

Relief

The Rent Controller after considering the evidence on record held that the arrears of rent stands voluntarily tendered by the petitioner and he

was not liable to be ejected on the said ground. The Rent Controller further found that the petitioner was not liable to be ejected from the demised

premises on the ground of change of user or that he had materially impaired the value and utility in any manner or that the same was lying closed for

the last more than a year prior to the institution of the present suit.

However, after considering the pleadings of the parties and the evidence on record, the Rent Controller vide its order dated 2.9.2011 allowed

the eviction petition on the ground that demised premises was required bonafidely by the respondent-landlady for opening a business for her grown

up sons so as to settle them independently.

At this stage, it is useful to refer to the observations of the Rent Controller which reads thus:

The petitioner has sought ejectment on the averment that she requires the premises for opening a business for her grown up sons. The sons of the

petitioner namely Mahesh Kumar and Manish Kumar appeared in the witness-box as PW 2 and PW 5 respectively. PW 2 Mahesh Kumar stated

that he has no building to open a business for himself. He has been doing business of supply of goods in different villages as a hawker. PW 5

Manish Kumar has also stated that he does not possess any building of his own for opening a business. The premises where he has been running

his office is on rent. He want to open his office in the shop in question. The statements made on oath by PW 2 Mahesh Kumar and PW 5 Manish

Kumar the sons of the petitioner/landlord leaves no doubt that the need set up by the petitioner is the most genuine one.

It is also well settled that the landlord is the best judge of his own requirement. The tenant cannot be allowed to dictate terms to the landlord. Even

if the landlord is found to be owner in possession of more than one premises, it is for the landlord to decide which premises he would prefer to

occupy. Landlord has a freedom to see as to how he has to utilize his property and which of the properties owned by him is best suited to fulfill his

need. The suitability of any premises for the need of the landlord is to be considered as per the convenience of the landlord and his family

members.

The petitioner/landlord is duty bound to settle her sons independently. It cannot be expected that his both sons would remain joint for all time to

come. The grown of the families and transformation of joint families into nuclear families has been a recent phenomenon. Therefore, if two brothers

or father and son want to part gracefully and start independent business, a tenant cannot be allowed to curtain the right of the landlord from doing

so on account of his hardship.

It has also been observed by our Hon''ble High Court in the ruling Yashpal Juneja v. Satish Kumar (supra) that even if an alternative

accommodation is available, it is for the landlord to decide as to how and in what manner he should fulfill his requirement. It has also been

observed by our Hon''ble High Court in the ruling Ramnath v. Deshraj and other (supra) that the question of landlord''s necessary, the extent or its

nature, in the context of the suitability of the premises, be best left to landlord''s perception of his necessity and the Court shall not proceed to

dictate or impose its own perception of the landlord''s necessity.

In the present case there is nothing on record to show that the petitioner owns or possess any other suitable accommodation wherein she may

open a business for his sons so as to settle them. The rooms on the first floor of the demised premises cannot be said to be suitable for running a

business. At the most the rooms on the first floor of the demised premises can be sued for residential purposes. The other shop owned by the

petitioner is situated on the back side of the demised premises also cannot be held to be sufficient enough for opening a business by the petitioner-

landlord for her two sons. As already observed the suitability of the premises has to be judged from the view point of the landlord. Even otherwise

the demised premises seems to be most suitable for opening a business by the sons of the petitioner landlord. So the need set up by the petitioner

cannot be held to be a mere wish or desire one. The landlord has explained the suitability of the premises required by him. Neither the tenant nor

the courts can substitute the requirement of the landlord.

Further the contention of the respondent that the petitioner has no intention to occupy the tenanted premises and that she would re-let the same

after getting it vacated is also misconceived. The tenant has a legal right u/s 13(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973

which says that in case the landlord who obtained the possession of the building or rented land on the ground of personal requirement does not

occupy the same, for which the possession was obtained for a continuous period of twelve months, the tenant could apply to the Rent Controller

for an order directing to restore the possession of such building.

In view of the observations made above, it is held that the petitioner has been able to prove that the demised premises is bonafidely required by her

for opening a business for her grown up sons so as to settle them independently. The respondent is thus held liable to ejectment from the demised

premises on this ground u/s 13(3) of the Haryana Rent Act. Accordingly findings on this issue are recorded in favour of the petitioner and against

the respondent.

Aggrieved from the aforesaid eviction order of the Rent Controller, the petitioner filed an appeal before the Appellate Authority which was also

dismissed.

Still not satisfied, the petitioner has filed the instant revision petition.

Challenging the aforesaid orders of the Authorities below, counsel for the petitioner has vehemently argued that need projected by the

respondent for her personal occupation of the demised shop is not genuine and convincing need as the respondent has nowhere pleaded that the

shop in question is needed for their own business purpose, rather in cross-examination of Mahesh, (son of the respondent-landlady), he has

admitted that he was doing the business of supplying the goods by delivering the same in different villages and he has further admitted that the

godown on the back of the demised premises is owned and possessed by the respondent-landlady wherein household goods are lying. It is the

case of the petitioner that Mahesh, son of the landlady, has never reiterated the fact that godown on the back side of the said premises is not

suitable for opening the shop and thus, the requirement seems to be mere a wish of the landlady instead of a genuine need. Moreover, the

respondent is also in possession of the rooms on the first floor of the demised premises which are lying vacant.

Counsel for the petitioner has further argued that the Authorities below have misappreciated the fact of availability of the rooms on the first

floor of the demised premises and a godown of equal size on the backside of the demised premises. Moreover, the respondent in her petition has

not pleaded that the accommodation available with her is insufficient and that the respondent does not own any commercial building in the said

area.

According to the petitioner, the Courts below have erred at law while ignoring provisions of Section 13(3)(a)(i)(b) and (c) of the Act i.e. the

respondent is not occupying any other commercial building and she has not vacated such a building without sufficient cause and the respondent has

nowhere specifically pleaded the ingredients of the aforesaid provisions. According to the counsel for the petitioner, in order to seek eviction on the

ground of personal necessity, the averments are essential to be pleaded and proved as given in Section 13(3)(a)(i)(b) and (c) of the Act. In

support of his case, counsel for the petitioner has relied upon a Full Bench judgment of this Court in Banke Ram Vs. Smt. Sarasti Devi, .

According to the counsel for the petitioner, the respondent landlady has not made these averments deliberately as she has other premises

where she could easily adjust her son Mahesh who has admitted that he was in possession of the godown on the backside of the demised premises

and the rooms on the first floor of the premises which are lying vacant and are in their possession and the fact that sufficient accommodation is

available with the landlady negates the plea of personal requirement. Thus, according to the counsel for the petitioner, the impugned orders are

liable to be set aside.

I have heard the learned counsel for the petitioner and have also perused the impugned judgments.

There is no dispute with the law laid down by a Full Bench judgment of this Court in Banke Ram''s case (supra). It is imperative for landlord to

specifically plead all the ingredients in sub-clauses (b) and (c) i.e. he is not occupying any other residential building and he has not vacated such a

building without sufficient cause and also to prove the facts constituting those conditions.

However, the aforesaid judgment is not applicable in the facts and circumstances of the case and in fact from the perusal of the impugned

judgments, it is crystal clear that the petitioner had specifically pleaded all the ingredients and has further proved the same by leading cogent

evidence and the argument raised is without any merit. The factum of pleadings as required under the aforesaid sub-clauses (b) and (c) of Section

13(a)(i) can be noticed from the facts as mentioned in both the judgments. Not only this, the aforesaid pleadings are further supported from the

statement of the landlady.

It may further be noticed that there is not an iota of evidence on record to show that the respondent-landlady owns or possesses any other

suitable accommodation in the locality or that she has vacated such a premises after commencement of the said provisions. The argument raised on

behalf of the petitioner in this regard on the basis of admission of Mahesh, son of the respondent-landlady, that rooms are lying vacant on the first

floor of the demised premises and the vacant godown lying on back of the demised premises, is liable to be ignored simply on the ground that it is

the landlord who is to see the suitability of the premises required by him. Neither the tenant nor the Court can substitute the said requirement of the

landlord-respondent. The rooms on the first floor of the demised premises cannot be used for commercial purposes and the godown situated on

the backside of the demised premises also cannot be held to be sufficient or suitable enough for opening a business by the respondent-landlady for

her two sons. Learned counsel for the petitioner has not referred to any of the evidence on record to establish that after the commencement of the

Act, the respondent-landlady has vacated any such premises and that the respondent was occupying any other accommodation in the urban area

concerned. Though it has been argued on behalf of the petitioner that the respondent-landlady has not pleaded the necessary ingredients of

aforesaid provisions of Section 13(3)(a)(i)(b) and (c) of the Act, however, keeping in view the facts, as noticed in both the judgments of the

Authorities below, counsel for the petitioner has no courage to show me the pleadings of the parties in this regard.

No other point has been argued.

Thus, I find no merit in this petition.

Dismissed.