Sunday, 29 October 2017

Whether eviction suit can be dismissed if landlord fails to disclose properties possessed by his son?

It may be pointedly mentioned that in terms of the statutory requirement, landlord was not only to plead such facts about himself but was also to plead such facts qua his son Surinder Vir Jain as well for whose need as well, he had set up a case of personal necessity. It is a conceded fact that there is complete black out in the petition that Surinder Vir Jain son of the petitioner was not in possession of any other non-residential premises and had not vacated any such premises in the town of Nabha after coming into force of the Act. Reference may be made to authority Ajit Singh Vs. Jit Ram and another MANU/SC/4390/2008 : 2008(2) RCR (Rent) 328 (SC) wherein it was held that when personal necessity, interalia, of son had also been pleaded as a ground for eviction of the tenant, such pleadings in compliance with statutory requirements regarding non-possession of any other residential premises as also non-vacation of such premises within the town concerned, were mandatory. This fault of the petitioner-landlord in non-compliance with the statutory requirements in terms of Section 13(3)(a)(i) of the Act is fatal for the case of the landlord.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 2320 of 2014

Decided On: 11.08.2014

 Manmohan Lal Vs. Shanti Parkash Jain

Hon'ble Judges/Coram:
Dr. Bharat Bhushan Parsoon, J.
Citation: 2014 ( 2 ) RCR(Rent) 222

1. In this revision petition, the petitioner-tenant has impugned judgment of the Appellate Authority under the East Punjab Rent Restriction Act, 1949 (hereinafter mentioned as the Act) whereby judgment of the Rent Controller dismissing petition of the landlord seeking ejectment of the tenant was reversed and the petitioner-tenant was ordered to be evicted, interalia, on the ground of personal necessity of the landlord.

2. Landlord Shanti Parkash Jain of Nabha (District, Patiala) had sought ejectment of tenant Mohan Lal from the shop in litigation, interalia, on the ground of personal necessity. Finding it to be a case of concealment of facts and having noticed that the landlord was in possession of other shops as well, the Rent Controller had dismissed the petition on 5.12.2012. The Appellate Authority disagreeing with the findings of the Rent Controller on appreciation of facts and evidence had concluded that it was not a case of concealment of facts. Concomitantly, the Appellate Authority had also concluded that ground of personal necessity was proved in favour of the landlord. Sequelly, ejectment of the tenant was ordered.

3. Challenging said order of the Appellate Authority, it is claimed by the petitioner-tenant that neither the pleadings preferred by the landlord were in consonance with the statutory requirements nor ground of personal necessity had been proved as a fact but the Appellate Authority had reversed the findings of the Rent Controller without any sound foundation for the said reversal. By way of acceptance of this revision petition, seeking reversal of the judgment of the Appellate Authority, restoration of the order passed by the Rent Controller has been sought.

4. The respondent-landlord, on the other hand, has claimed that neither in the pleadings nor in evidence, there is any mis-statement nor there is any concealment of facts. It is claimed that he was in bonafide need of the shop and thus, he required it and there is sufficient evidence and material to sustain his plea, which was rightly accepted by the Appellate Authority.

5. Counsel for the parties have been heard while going through the grounds of revision, impugned judgment of the Appellate Authority in relation to the findings of the Rent Controller as also the evidence and other attending circumstances.

6. At the outset, it would be appropriate to refer to pleadings of the landlord put forth by him in his eviction petition against the tenant. Ground of bonafide necessity has been pleaded by the landlord for himself as well as for his named son. For ready reference, said pleadings contained in para 3 of the ejectment petition preferred under Section 13 the Act are reproduced as below:

"That the petitioner require the shop in question himself and his son namely Surinder Vir Jain, who retired from Printing and Stationary Department, U.T. Chandigarh under the Scheme of Voluntary Retirement on 1.9.2002 (Premature Retirement) Rules, 1975. The petitioner and son of the petitioner are doing nothing now a days. The petitioner and his son will start the business of Ready-made Garments. The petitioner and his son have sufficient funds to start the above said business in the shop in question."
7. Perusal of this part of the petition of the landlord reveals that personal bonafide necessity for the landlord as also of his son Surinder Vir Jain has been pleaded claiming that both of them are doing nothing and wanted to start business of ready-made garments.

8. Knowing it well that they were required to plead and prove that they were neither in possession of any other non-residential premises within the concerned town nor had vacated any other premises located therein after coming into force of the Act, had also put forth their pleadings as below:

"The petitioner is not in possession of any other non-residential premises within the Nabha Municipal limits and the applicant has not vacated any other such premises within Nabha Municipal limits after coming into force of the impugned Act."
9. It may be pointedly mentioned that in terms of the statutory requirement, landlord was not only to plead such facts about himself but was also to plead such facts qua his son Surinder Vir Jain as well for whose need as well, he had set up a case of personal necessity. It is a conceded fact that there is complete black out in the petition that Surinder Vir Jain son of the petitioner was not in possession of any other non-residential premises and had not vacated any such premises in the town of Nabha after coming into force of the Act. Reference may be made to authority Ajit Singh Vs. Jit Ram and another MANU/SC/4390/2008 : 2008(2) RCR (Rent) 328 (SC) wherein it was held that when personal necessity, interalia, of son had also been pleaded as a ground for eviction of the tenant, such pleadings in compliance with statutory requirements regarding non-possession of any other residential premises as also non-vacation of such premises within the town concerned, were mandatory. This fault of the petitioner-landlord in non-compliance with the statutory requirements in terms of Section 13(3)(a)(i) of the Act is fatal for the case of the landlord.

10. Even on the count of the landlord himself, the things are not bright for him. Notwithstanding clear assertion of the petitioner that he was not in possession of any other non-residential premises and had not vacated any in the town of Nabha after coming into force of the Act, there is a strong contest to such plea of the landlord and the case of the tenant is that the petitioner as also his sons have many other properties in the town of Nabha, thus, averring that there is concealment of facts. Pleadings of the tenant in response to para 3 of the ejectment petition are as below:

"3. Para No. 3 is wrong and denied. It is denied that the petitioner needs the suit shop for himself and his son Surinder Vir Jain or that both of them are doing nothing or that both of them will start the business of ready-made garments or they have got sufficient funds to start the same in the suit shop. It is denied that petitioner is now in possession of any other nonresidential premises within the Nabha Municipal limits or that the petitioner has not vacated any such premises within the Nabha Municipal limits after coming into force of the Rent Act. In fact the petitioner and his sons have 4 shops in Sadar Bazar, Nabha and 2 shops in Bank Street, Nabha and another shop in Appo-App Street, and several other commercial premises within the Nabha Municipal Limits. All these non-residential premises are in their possession. The petitioner is running the business with his sons in the 2 shops in Bank Street, Nabha. Mr. Surinder Vir Jain is settled at Chandigarh since a pretty long period alongwith his family and he has no intention to shift from Chandigarh to Nabha and start business at a small place like Nabha. His son is doing the work at Chandigarh and cannot come to Nabha. Surinder Vir Jain has rejoined service and is no longer an idle person. All the allegations made in this regard are totally false and baseless."
11. The case set up by the tenant thus completely denounces the claim of the petitioner.

12. Even when landlord Shanti Parkash Jain appeared as his witness, he has made his examination-in-chief by way of affidavit which not only uses a highly guarded language but also reveals that he was not coming before the Rent Controller truthfully. Instead of mentioning straightaway that he was not having any non-residential premises in the town of Nabha, he makes deposition by way of affidavit only qua certain 'Bazars' and 'localities' of Nabha, thus, clearly revealing that the landlord instead of coming truthfully before the Rent Controller was hiding more than he was revealing. Relevant portion of his examination-in-chief by way of affidavit is as under:

"That I further state on oath that I do not own another shop either in Sadar Bazar or in the Bank street or in Appoaap street, Nabha."
13. After appreciation of evidence and attending circumstances, conclusion of the Rent Controller was to the following effect:

"After appreciating the evidence led by the parties from all the corners and in view of the ratio of case law cited this court is of the considered view that petitioner has failed to prove that the premises in question are required by him and his son for their personal use and occupation. Respondent has taken the plea that petitioner is also in possession of other shops and has led convincing evidence in the form of copies of assessment register to prove the existence of other shops. Petitioner has further failed to prove that he has not vacated any such building within Nabha Municipal limits. Hence, it decide issue No. 1 against the petitioner and in favour of respondent"
14. To arrive at such finding not only evidence was referred but even pleadings of the parties and law on this aspect was duly considered. Statement of Munish Bansal (RW1) needs to be specifically referred to wherein he had deposed that Surinder Vir Jain and his brother Parveen were having one big shop in the same street where the shop in dispute is located. His further deposition is that yet another shop adjacent to the shop in dispute hitherto in possession of one Dinesh Jain was also vacated by him and after remaining in possession of the landlord for few years, it was later let out to one Baljit Singh goldsmith. Not only this, he further stated that two other shops situated in Ghas Mandi, Nabha (opposite to Gagan Dhaba) were also owned by the landlord.

15. The Appellate Authority without meeting the appreciation of evidence, facts and attending circumstances done by the Rent Controller and findings arrived at on such appreciation, sweepingly reversed the finding of the Rent Controller.

16. Looking the matter from yet another angle, there is documentary evidence of neutral character. The House Tax Assessment Register (Ex. R1) even if is taken to be not a sufficient proof qua ownership, it is definitely proof of possession of the shops as depicted therein. No question, entries in Assessment Register of the local authorities would not be construed as documents of title but these do reveal certain facts about which probably no other document would be commensurately effective. Location of the property as also identity of its possessor are the facts which very prominently emerge from such entries. Even when landlord appeared as AW4, he has not been able to wriggle out of effect of such entries.

17. The petitioner being in possession of other commercial properties in the town of Nabha by now, is a proven fact. Landlord Shanti Parkash Jain has also conceded that yet another shop had been got vacated by him from its earlier tenant but has stated then that later, the same due to its dilapidated condition had turned into debris. Even if it be so, it was required by the landlord to specifically state so as to when the same was got vacated and when it had turned into debris. It cannot be presumed that on the date of filing of the petition such shop having earlier been got vacated by the landlord from the possession of his earlier tenant, had become a non-descript structure. It cannot be denied that structure of the commercial premises continued on the date of filing of the petition. There is no reason why the same should not have found part of pleadings of the landlord.

18. Learned counsel for the petitioner-tenant referring to Shankar Lal Versus Madan Lal and others MANU/PH/3909/2010 : 2011(1) RCR (Rent) 139 (P&H) has urged that when landlord failed to plead and prove that his son for whose occupation, eviction is sought, was not occupying any other building and had not vacated any, it is a case of failure to plead and prove mandatory provisions of the Act.

19. In the cited authority, where landlord had sought the shop in dispute on the ground of running a business for his son but landlord had been in possession of two other shops but had concealed this fact, it was held that landlord was guilty of concealment. Even Hon'ble Supreme Court of India in Kishan Chand Versus Jagdish Pershad and others MANU/SC/1525/2001 : 2002(1) Rent LR 20 has held that suppression of material fact by landlord in ejectment petition particularly where such petition was sought on the ground of bonafide requirements, is a case of concealment. Support has also been sought by the counsel for the petitioner-tenant from Murti Laxmi Narain of Mandir Shri Laxmi Narain Versus Phul Singh 1977(2) Rent LR 138 (P&H), Jaspreet Takhar Versus Ghai Enterprises MANU/PH/0247/2013 : 2013(1) RCR (Rent) 469 (P&H), Baljit Kumar Sharma Versus Ramesh Kumar Aggarwal and another MANU/PH/3164/2012 : 2013(1) RCR (Rent) 260 (P&H) and M.R.F. Limited and another Versus S. Major Singh Purewal MANU/PH/0640/2009 : 2009(1) RCR (Rent) 624 (P&H).

20. On the other hand, counsel for the respondent-landlord citing Srinivasiah Versus Sri Balaji Krishna Harware Stores MANU/SC/0730/1998 : 1998(2) RCR (Rent) 658 (Supreme Court) has urged that when landlord requires the commercial premises for business of his son, need of the landlord is to be evaluated in the context of his requirements. In the cited authority, godown behind the shop fell vacant. It was held that it was for the landlord to plead and prove his case and need, as also choice of the landlord cannot be substituted with that of the tenant. In the cited authority, the shop had fallen vacant during the period of litigation.

21. In our case, the shop had fallen vacant earlier to filing of the petition but no such plea has been put forth in the pleadings. Even though effort was made to take shelter of the witness box by the landlord but even there, he did not emerge truthful and had made concealment of facts which stood proved against him from the statement of Munish Bansal (RW1) as also from the House Tax Assessment Register (Ex. R1).

22. So far as non-examination of son of landlord whose personal necessity has also been claimed is concerned, authority titled Mahesh Chand Versus Firm Hindu Khandan Mustarka Kripa Ram and Sons MANU/PH/0065/2006 : 2006(1) Rent LR 708 (P&H) cited by the counsel for the respondent-landlord does not help him. No doubt, if statement of landlord is all pervasive, complete and believable, there is no need for examination of the son but it is not the case. Statement of the landlord was even more evasive than his pleadings and does not clinch the issue. Landlord Shanti Parkash Jain (AW4), as has already been noticed, tried to hide things from the Tribunal and did not approach the Rent Controller truthfully.

23. Keeping in view the totality of facts and evidence discussed hereinabove, findings of the Appellate Authority reversing those of the Rent Controller on the ground of non-compliance with the statutory provisions of the Act as also on the ground of personal necessity are not based on sound reasoning of facts as also of law. Findings of the Appellate Authority do not take into account detailed discussion, appraisal of evidence and attending circumstances whereby the Rent Controller had come to the conclusion that no bonafide personal necessity of the landlord and his son has been proved. Non-compliance of statutory provisions by the landlord had also been pointedly mentioned by the Rent Controller. Findings of the Appellate Authority reversing those of the Rent Controller are not founded on evidence and, rather, are conjuctural.

24. Sequelly, accepting the revision petition, reversing the impugned order dated 14.1.2014 of the Appellate Authority, order dated 5.12.2012 passed by the Rent Controller is restored.


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