Tara Chand vs Dhirendra Pal and Others

Gurmeet Singh Sandhawalia, J.—Challenge in the present revision petition, filed by the tenant, is to the order dated 29.11.2011, ordering his eviction, passed by the Rent Controller, Narwana, regarding the plot situated at Railway Road, Narwana. The said order has been upheld in appeal by the Appellate Authority, Jind on 13.10.2014 which is also subject matter of challenge.

The eviction petition was filed on the ground that the plot was taken on rent by Beli Ram, the grandfather of the present petitioner- Ishwar Singh son of Tara Chand, who had constructed a wooden khokha and started a shop there. After his death, Tara Chand became the tenant and was paying Rs. 75/- per month. It is alleged that he had constructed his own house in Jind Central Cooperative Street and was running a shop in his house and had sublet the property to one Pawan Kumar, respondent No. 2. The landlord being a Lawyer who had worked with his elder brother Shri B.B. Gupta and after his death, needed the plot for constructing his office as his nephew was in possession of the office where he was earlier working. The plot was ideal for setting up the office of a Lawyer.

The eviction petition was contested by Tara Chand, who is now presented through his legal representatives and who have further filed the present petition, through Subhash, son of Tula Ram, who is the tenant in the adjoining premises and has filed CR No. 8588 of 2014, challenging his eviction. The said attorney, Subhash is present today in Court and has undertaken to vacate the premises which are in his possession by 31.03.2016. Thus, it is apparent that the possession of the property is no longer with the original tenant and the alleged sub-tenant.

The defence of the said tenant was of denial that the landlord was the owner of the plot. The factum of rent which was due since 01.08.1996 was also denied and it was pleaded that he had tendered the rent under protest for the period of 3 years. The factum of sub-letting to Pawan Kumar was also denied and the need of the landlord for his office was denied on the ground that he was already having an office in Patram Nagar, Narwana. Counter claim had also been filed that he had tendered the rent @ Rs. 366/- per month along with interest on 09.10.2007 and wanted refund of the same. Following issues were framed by the Rent Controller:

"1. Whether the respondent No. 1 is liable to be evicted from the shop in dispute? OPP

Whether the respondent is tenant or not? OPP

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

Relief."

The landlord examined one Narayan Parsad as PW1 and one Dinesh Kumar as PW3 and also examined himself as PW2 whereas the petitioner examined Surinder Pal, Lajpat Rai, Rajbir and Ishwar as RW1 to RW4, respectively.

Eviction was ordered on the ground of bona fide necessity and after noticing that the relationship between the parties was admitted as the petitioner herein has admitted that the property was taken on rent by his grandfather from the father of the landlord. The report of the Local Commissioner was relied upon to order eviction on the ground of subletting also and accordingly, the petition was allowed.

In appeal filed by the petitioner, the Appellate Authority held that there was nothing to show apart from the report of the Local Commissioner that there was any subletting and similarly, on the non-payment of rent, the finding was also modified. Eviction was only ordered on the ground of personal requirement by noticing that the landlord was an Advocate and earlier was working with his brother and after the death of his brother, he wanted to raise his own office and since his nephew, Narayan Prasad Gupta, PW1 was running the office of his brother, it was noticed that a professional would like to be independent and grow up as such and the principle that the landlord is the best judge of his own need was kept into consideration while upholding the eviction order.

The principle of bona fide requirement has been elaborated time and again and it has been held that it is the choice of the landlord as to how he is to use his premises and it is not for the tenant to dictate the terms. The landlord has examined his nephew to show that he was no longer having any concern with the earlier office of his elder brother, Shri B.B. Gupta. The landlord himself has stepped into the witness box and deposed about his need. In such circumstances, the concurrent finding which has been recorded regarding the bona fide requirement, cannot be said to be suffering from any infirmity, which would require interference. The Apex Court in Sarla Ahuja Vs. United India Insurance Company Limited, has specifically held that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. The relevant observations read thus:-

"14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself." 9. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, , it was held that once the satisfaction is there of the bona fide need of the landlord, the Court would not in such a case thrust its own wisdom upon the choice of the landlord. In the said case, the requirement of the landlord was challenged by the tenant on account of the fact that he had sufficient accommodation for his residence. The said plea was rejected. The relevant observations read thus:-

"12. Chambers 20th Century Dictionary defines bonafide to mean ''in good faith : genuine''. The word ''genuine'' means ''natural; not spurious; real: pure: sincere''. In Law Dictionary, Mozley and Whitley define bonafide to mean ''good faith, without fraud or deceit''. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by ''requires'' is much more higher than in mere desire. The phrase ''required bonafide'' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one. but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against." 10. Another factor which is to be taken into account, as noticed above, is that the present revision petition has been filed through Subhash, who is the tenant of the adjoining plot and thus, the original tenants are now represented through an attorney. Thus, an adverse inference can necessarily be drawn against the original tenant that the premises have now been surrendered to the attorney who was also ordered to be ejected from the adjoining plot on the same ground.

The findings which have been recorded by both the Courts below deserves to be upheld, in view of the abovesaid discussion. Even otherwise, while exercising its revisional powers, this Court is not sitting as a Court of Appeal and is only to examine the factor that whether the authorities below have acted within the ambit of jurisdiction and whether they have erred grossly and if the orders suffer from any infirmity or error or law. Reliance can be placed upon the observations of the Constitutional Bench of the Apex Court in Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, . The same read thus:-

"45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on reappreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." 12. Accordingly, in the absence of any infirmity in the orders under challenge, the present revision petition stands dismissed.