Raj Kumar vs Murli Dhar and others

J.V. Gupta, J.—This is landlord''s revision petition whose ejectment application has been dismissed by both the authorities below.

The shop, in dispute, was let out originally by Ram Kumar, the father of the present landlord Raj Kumar. The said Ram Kumar died on March 26, 1978 whereas the present ejectment application was filed in July, 1978, on the allegations that he Raj Kumar was born on July 5, 1960, and that the ejectment application was being filed within three years of his attaining age of eighteen years, as provided under Sub-section (3-A) of Section 1(Sic) of the Haryana Urban (Control of Rent and Eviction) Act, 197(Sic) (hereinafter called the Act) According to the landlord, the rate of rent originally agreed to was Rs. 100/- per month, but later on it was enhanced to Rs. 800/- per month. The shop, in question was in a dilapidated condition. An agreement took place between the father of Raj Kumar, and the tenant, according to which the tenant would get the shop re-constructed and the costs of construction were assessed at Rs. 4,800/- which were to be adjusted against the rent and that the same had since been adjusted. The tenant had failed to pay the ren from March 1, 1978 to June 30, 1978. Thus, according to the landlord, the tenant was in arrears of rent to the tune of Rs. (Sic)1,200 and Rs. 5,120/- as the arrears of taxes. It was further pleaded that the tenant had sublet the shop, in favour of Chand Cloth Merchant. The landlord needed the shop for his personal necessity. Both the brothers were in need of the shop for their own businesses. The other brother Mahabir Parshad filed a separate ejectment application, giving rise to Civil Revision Petition No. 2014 of 1986. The application was contested inter alia on the ground that the father of the landlord had already received advance rent vide agreement dated February 25, 1971 and March 21, 1974, respectively, up to October 2, 1983, and the corresponding entries were also entered In the of the tenant therefore, the petition was premature and not maintainable. The tenant also denied that the landlord required the shop for his personal occupation. The Rent Controller found that the tenant had paid rent up to October 2, 1953, and therefore was not in arrears of rent. It was further found that the application was not maintainable. It was also found that the application was premature because the tenant had paid the rent up to October 2, 1983. In view of these findings, the ejectment application was dismissed on December 21, 1981. In appeal, the learned Appellate Authority affirmed the said findings of the Rent Controller though no finding as such was given as to whether the landlord required the demised premises for his personal use or not. According to the learned Appellate Authority, the ejectment application was premature as the tenant had already paid advance rent up to October 2, 1983.

The learned Counsel for the Petitioner submitted that even if it be assumed that the father of the Petitioner had realised advance rent from the tenant up to October 2, 1983. even then, the ejectment application filed by the landlord under Sub-section (3A) of Section 13 of the Act, could not be dismissed as premature. According to the learned Counsel, it was a statutory right given to the Petitioner and could not be taken away by any agreement as such. At the most, argued the learned Counsel, the eviction order could be passed on the condition that the same would be executed after the expiry of the date. i.e., October 2, 1983. The whole approach, according to the learned Counsel, of the authorities below, was wrong and improper. He also pointed out that the finding of the Rent Controller that the Petitioner works with his brother was arbitrary and without any evidence. Even the Appellate Authority has not affirmed the same as such.

On the other hand, the learned Counsel for the tenant Respondent submitted that the learned Rent Controller found that the landlord did not require the premises for his personal use as he was working with his brother and that being so, the ejectment application has been rightly dismissed by the authorities below.

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I find force in the contention raised on behalf of the Petitioner.

Even if it be assumed that advance rent had been paid to the father of the landlord up to October 2, 1983, the ejectment application filed by him under Sub-section (3A) of Section 13 of the Act, could not be dismissed as premature. It reads as under.

In the case of a non-resdential building, a landlord who stands retired or discharged as a Non-Commissioned Officer from the armed forces of the Union of India or who was a minor son at the time of death of the deceased landlord and requires it for his personal use, may within a period of three years from the date retirement or discharge or attaining the age of eighteen years, as the case may be, apply to the Controller for an order directing the tenant to put the landlord in possession;

Provided that where landlord has obtained possession of a non-residential building under this sub-section he shall not be entitled to apply again for the possession of any other nonresidential building of the same class.

The application could be filed within a particular time given therein. Therefore, the only effect of the payment of advance rent was that the eviction order, if passed would be executable after the expiry of the Said date, i.e., October 2, 1983. In the present case, the application as such could not be dismissed as premature as done by the authorities below. The whole approach in this behalf was wrong, illegal and misconceived.

As regards the personal requirement of the landlord it has been found by the Rent Controller that he was working with his brother and, therefore, he did not require the premises for his personal necessity this finding was not affirmed in appeal by the Appellate Authority, after going through the evidence the said finding could not be sustained. There is nothing in evidence to show that the landlord was working with his brother. No question was put to the landlord when he appeared in the witness-box as A. W. 1, nor to the tenant so stated while he appeared in the witness box, in this behalf. The said finding by the Rent Controller was without any evidence and arbitrary. From the facts and circumstances of the case, the bona fide requirement of the landlord is amply proved on the record. His ejectment application was primarily dismissed on the ground that it was premature because of the advance rent having been paid up to October 2, 1983. During the pendency of the proceeding, even the said date has also expired. Under the circumstances, this revision petition is liable to succeed.

Consequently this revision petition succeeds and is allowed. The impugned orders of the authorities below are set aside and the eviction order is passed against the Respondents. However, the Respondents are allowed three months'' time to vacate the premises; provided all the arrears of the rent, if any, with advance rent for three months are deposited with the Rent Controller within one month, with a further undertaking, in writing, that after the expiry of the said period, vacant possession would be handed over to the landlord.