Tirlok Chand and Another vs Raj Kumar

This is tenants'' revision petition against whom the eviction order has been passed by both the authorities below.

The landlord Raj Kumar adopted son of Sher Singh, the original landlord, filed the present ejectment application on June 7, 1979, for the ejectment of the tenants from the shop, in dispute, inter alia on the ground that the landlord required the same bona fide for his personal use as provided under sub-section (3A) of S. 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973(hereinafter called the Act), inserted in the principal Act by Haryana Act No. 16 of 1978, and came into force with effect from May 8, 1978. In the written statement, it was pleaded that the premises were leased out for carrying on business and even now, business was being carried on and, thus, there was no change of user. On the question of personal requirement, it was stated that the landlord had already in his possession a shop of utensils in Moti Bazar, Hissar, and a godown nearby. The mother and sisters of the landlord had also let out several shops to other persons and as such, the landlord did not require the shop, in dispute, for his personal necessity. The date of birth of the landlord which was claimed to be June 8, 1958, was also disputed. It was pleaded that the ejectment application was time-barred in view of the provisions of sub-section (3-A) of S. 13 of the Act. The learned Rent Controller found that the landlord bona fide required the premises For his personal use. As regards the age of the landlord, it was held that his date of birth was June 8, 1958. Therefore, the eviction application filed on June 7, 1979, was within limitation under sub-section (3-A) of S. 13 of the Act. The ground of change of user also raised by the landlord, was negatived. Consequently, the ejectment application was allowed and the eviction order was passed against the tenant. In appeal, the learned Appellate Authority affirmed the said findings of the Rent Controller and, thus, maintained the order ejecting the tenant from the demised premises. Dissatisfied with the same, the tenant has filed this revision petition in this Court.

During the pendency of this revision petition, the tenants moved Civil Miscellaneous Application No. 2483-CII of 1987, to bring on record the subsequent events which have taken place during the pendency of this revision petition. According to the allegations made therein, the landlord had constructed eight commercial shops on the property purchased in the name of his wife Sushila Devi and his minor son Deepak Kumar who is aged about 10 years. Each shop measures about 9'' X 141/4''. Out of those shops, two shops have been let out recently. There are about 30 shops in between the disputed shop and the 8 newly constructed shops. According to the tenants, out of the said eight shops, six are still lying vacant. In the reply filed thereto by the landlord by way of an affidavit, the allegations made by the tenants have been controverted. It has been stated by him that the said shops had not been constructed by him as alleged; rather the same had been constructed by his wife Sushila Devi and son Deepak Kumar. It has been further stated that the said shops had been built by her and his son by utilising their own funds. He himself did not contribute a single panny for the construction of the said shops. However, it was clarified that in reality there were seven shops and not eight shops as mentioned in the application by the tenants. It was denied that any shop was let out to anybody. As regards the sale of two shops earlier to the filing of the ejectment application, it was stated that they were located in residential area and the agreement to sell was entered into on Dec. 13, 1977, in order to. raise some funds for his and his family''s survival. This was done when sub-section (3-A) of S. 13 had not been incorporated in the Act.

The learned counsel for the petitioners vehemently contended that the date of birth claimed by the landlord to be June 8, 1958, was not proved by any cogent and admissible evidence. According to the learned counsel, the entry in the school register when he was admitted for the first time in the Yashodha High School, Hissar, was never produced. Neither any birth entry was brought on the record. Therefore, in the absence of this evidence, it could not be taken that the date of birth of the landlord was June 8, 1958. Not only that, argued the learned counsel, in the Voters'' List, Exhibit R. 14, the age of the landlord given is 21 years in the year 1978. Therefore, it being so, June 8. 1958, could not be held to be the date of birth of the landlord. It was next contended that in any case, the requirement of the landlord could not be held to be bona fide. Admittedly, the landlord has sold two shops vide sale deed, copy, Exhibit AX. dt. Nov. 15, 1978, for a sum of Rs. 17,000/- prior to the filing of the ejectment application. Therefore, the ejectment application could not be held to be bona fide as required under sub-section (4) of S. 13 of the Act. Besides, the subsequent event of the construction of eight shops by the landlord through his wife and son further proves that though the shops were available to the landlord for occupation, yet the shop, in dispute, was no more required for his personal use. According to the learned counsel, the approach of the authorities below in this behalf was wholly wrong and misconceived. The tenant is occupying the demised premises since the year 1947 and by ejecting him from the shop, in dispute, his whole business would be dislocated whereas the landlord is already occupying a shop though on rent, but in addition, the shops, recently constructed by him through his wife and minor sons are also available for his occupation. An argument was also raised that. the landlord being the adopted son of the original landlord was not entitled to claim the benefit of sub-section (3-A) of S. 13 of the Act. Moreover, argued the learned counsel, the said provision was not retrospective in operation.

On the other hand, the learned counsel for the landlord vehemently contended that on the appreciation of the entire evidence, it has been concurrently found that the date of birth of the landlord was June 8, 1958, and that the requirement of the landlord was bona fide. That being a finding of fact could not be interfered with in this revision petition. According to the learned counsel under sub-section (3-A) of S. 13, the only ingredient to be proved was that the landlord required the demised premises for his personal use and that he had not obtained possession of any non-residential building under the said provisions earlier. The other ingredients as provided under sub-section (3) of S. 13 of the Act, are not there under sub-section (3-A) thereof. Therefore, the selling of the shops prior to the filing on the ejectment application or the construction of the shops by the wife and the son of the landlord subsequently are of no consequence and are not relevant for deciding ''the bona fide requirement of the landlord under sub-sec.(3-A) of S. 13 of the Act.

I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record.

As regards the date of birth of the landlord, as found by the authorities below. I do not find any illegality or impropriety therein as to be interfered with in this revision petition. From the evidence on the record, the finding arrived at by the Courts below could not be said to be perverse in any manner. The main controversy between the parties in this revision petition is as to the scope of sub-section (3-A) of S. 13 of the Act, which reads as under:

"(3-A) In the case of a non-residential 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 of 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 the 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 non-residential building of the same class"

According to the learned counsel for the tenants, the provisions of sub-section (3) of S. 13 should also be invoked to prove the bona fide requirement of the landlord under sub-section (3 A) and for that purpose, the landlord must prove that he was not occupying any other building in the urban area, concerned, nor had vacated any without sufficient cause. However, even from a reading of sub-section (3 A), aforesaid there is no merit in this contention. However sub-section (4) of S. 13 provides that if the Controller is satisfied that the claim of the landlord is bona fide, he shall make an order directing the tenant to put the landlord in possession of the building or rented land. This sub-section controls the provisions of sub-section (3-A) as well. Thus, what is to be seen is whether the application of the landlord under sub-section (3-A), is bona fide or not. Moreover, even under sub-section (3), the landlord can prove that if he had vacated any building, it was for sufficient cause, that there is no such requirements under sub-section (3 A). The only requirement is whether the landlord as specified therein, requires the non-residential building for his personal, use of not; and the only proviso thereto is that the landlord has not obtained possession of a non-residential building under sub-sec: (3-A) earlier, which is not the position in the present case. So, in this case, the only thing to be proved by the landlord was whether he required the premises for his personal use or not. It is no more disputed that at present, the landlord is occupying the shop which is oh rent with him on a monthly rent of Rs. 92.25 and the area of the said shop is 5l square feet only whereas the tenants are paying Rs. 82/- per month for the shop, in dispute, which is in their occupation which has larger area. Thus. prima facie, the requirement of the landlord is bona fide on the facts and circumstances of the case.

Now, what is the effect of the sale made by the landlord prior to the filing of the ejectment application Of course, the said sale was made on Nov. 15, 1978, vide, copy, Exhibit AX, where as sub-section (3-A) to S. 13 has been added with effect from May 8, 1978. According to the landlord, the agreement to sell had already been entered into in the year 1977. Therefore, at that time, there was no occasion for visualising that sub-section (3�A) would be added to S. 13 of the Act. In any. case. since there was no requirement that. there was sufficient cause for not selling the two shops by the landlord vide, copy, Exhibit AX, no evidence need be led by the landlord on that behalf. Thus. it could not be. successfully argued on behalf of the tenants, that the requirement of the landlord was not bona fide.

So far as the construction of the new shops by the wife and the son of the landlord is concerned, an offer was made on behalf of the landlord to take any of the shops on rent to the tenants, but the same was not accepted by them on the ground that they w ere situated away from shop, in dispute. Apart from the above, on the appreciation of the entire evidence, both the authorities below have found that the requirement of the landlord was bona fide and I do not find any illegality or infirmity therein as to be interfered with in the revisional jurisdiction.

Consequently, this revision petition fails and is dismissed with no order as to costs. However, the tenants are allowed three months'' time to vacate the premises; provided all the arrears of rent, if any, are deposited with the Rent Controller, within a month, along with an undertaking in writing, that'' after the expiry of the said period, they shall vacate the premises and hand over the vacant possession to the landlord and the rent for this period shall be paid regularly monthly in advance by the tenth of every month.

Petition dismissed.

* Against order of B. L. Gulati, Appellate Authority, Hissar, D/- 6-11-1985.