Judgment:
Surya Kant, J.
1. This Revision Petition is directed by the tenant against whom an eviction order dated 12.12.2008 passed by the Rent Controller, Chandigarh, has been further up-held by the Appellate Authority, Chandigarh vide its judgment dated 2.4.2009. The petitioner has been ordered to be evicted from the ground floor of the Shop-cum-Flat No. 28 situated in Motor Market and Commercial Complex, Mani Majra, U.T., Chandigarh.
2. The respondent-landlady filed an eviction petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, as applicable to U.T., Chandigarh, inter-alia, averring that the Shop-cum-Flat - the demised premises, was earlier owned jointly by her and her husband, who unfortunately expired on 14.06.2006 and thereafter she is the sole owner of the afore-stated SCF. The petitioner was inducted as a tenant w.e.f. 1.8.2002 for a period of 36 months vide registered lease-deed dated 30.7.2002 and that he is liable to be evicted on the grounds of: (i) non-payment of arrears of rent and (ii) she requires the demised premises for her personal use and occupation as she wants to earn her own livelihood by dealing in the Ready made Garments. She further averred that she is a 65 years old Senior Citizen of sound health but suffers from Arthritis and Asthma which has made it difficult for her to climb the stairs frequently to approach the first and second floors of the premises, which are although lying vacant and are in her possession. The respondent averred that she requires the ground floor to be used as a Shop for the sale of Ready made Garments whereas the basement is to be used as a store-house. The respondent further averred that she has necessary funds to commence the said business.
3. The petitioner contested the eviction petition, inter-alia, questioning the bona-fide of the alleged necessity of the respondent and claimed that in fact she wanted to sell the premises after getting it vacated. The petitioner further alleged that it was near impossible for the respondent to start a new business at the age of 65 years when she has no family responsibilities to be discharged as her daughter is already married, one of her sons is settled abroad and the second one is a Senior Government Officer posted in Gujarat. He further alleged that the eviction petition has been filed mala-fidely to harass the tenant as earlier also the respondent had filed an eviction petition.
4. Since the petitioner tendered the arrears of rent, the first ground of eviction was no longer available to the respondent. As regards the second ground, namely, the bona-fide personal necessity, the respondent herself entered the witness box (AW1) and deposed that bat for the Arthritis and Asthma she was otherwise enjoying a good health even at the age of 67 years; she wanted the Showroom for her personal use to start a business; she denied the suggestion that she did not know any ins and outs of the business. She admitted that one of her sons is settled in New York; the other son is an IPS Officer of Gujarat Cadre while her daughter is married and settled in Bombay. She, however, reiterated that as soon as the Showroom was vacated, she would decide whether to start the retail business or take some franchise. The respondent also placed on record the lease deed (Ex.Pl), the medical record of the PGIMS, Chandigarh and of INSCOL Hospital, Chandigarh (Ex.P3 to P5) and death certificate of her husband (Ex.PX). The petitioner-tenant also appeared in the witness box (DW1) and examined one Abhishek Garg (RW2) and tendered the documents (Ex.R1 to R3) in evidence.
5. On consideration of the afore-stated evidence, the Rent Controller allowed the eviction petition after holding that the respondent is the best judge of her need and interest and since she has decided to run her own business in the demised premises, there is nothing to doubt her bona-fide. It was also explained that the respondent can not utilize the first and second floors of the premises as the demised premises is a Shop-cum-Flat and the first and second floors can not be used for running the business activities besides the fact that the respondent-landlady is suffering from Arthritis and Asthma and can not frequently climb the stairs. The petitioner's plea that the respondent is not expected to start the business in the evening of her life, has also been turned down after observing that her children being settled at different places, the respondent appears to be keen to earn her own livelihood by keeping herself busy in the business activities.
6. The petitioner went in appeal re-agitating his plea that in the absence of any expertise or experience possessed by the respondent, she was not expected to start the business at this age and that the respondent in fact wanted to sell the premises for which she-was in negotiations with some Property Dealers. The Appellate Authority, after referring to various judicial precedents close to the facts and circumstances of the case in hand, dismissed the appeal and held that the need of the respondent-landlady is genuine, immediate, bona-fide and urgent. It has been held that the respondent can not be deprived of her desire of doing business to earn an independent income on the ground of her advance age.
7. Aggrieved, the petitioner has approached this Court.
8. Reiterating the contentions, it is urged by Shri Palli, that the respondent is now more than 68 years old and it will be too presumptuous to believe that she will start some business at this juncture of life. He referred to the respondent's deposition to contend that her children are well settled and there are no financial constraints to force her to start any business at this advanced age.
According to the counsel, the entire effort was put forth apparently to rent out the premises at a higher rate and/or to sell the same at the maximum premium and the petitioner was ready and willing to exercise any of the two options. He argued that the stand taken by the respondent was self-contradictory as on one hand she did not want to run her business from the first and second floors on the plea that she can not climb the upstairs due to Arthritis and Asthma, but on the other she was seeking eviction from the basement which she will reach through stairs only. The counsel cited the following decisions in support of his contentions:
(i) Amarjit Singh v. Smt. Khatoon Quamarain : 1986(4) S.C.C. 736;
(ii) Ms Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon : 1998(4) S.C.C. 49;
(iii) Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta : 1999(6) S.C.C. 222;
(iv) Pratap Rai Tanwani v. Uttam Chand : 2004(8) S.C.C. 490.
9. Per contra, counsel for the respondent refuted the allegations that she wanted to sell the demised premises or rent it out at a higher rate. He reiterated that the respondent wanted to start her own business for which she was physically fit and financially sound and capable.
10. Having heard learned Counsel for the parties and on perusal of the records, I do not find any merit in this revision petition. What emerges from the record is that the children of the respondent are well settled at far away places. Her husband was an IAS Officer, who, after retirement, joined the legal profession but unfortunately passed away. It appears that till her husband was alive or busy in legal profession, the respondent did not seem keen to involve herself in any business. The loneliness that cropped up after the death of her husband might have prompted her to keep herself busy in some avocation. It is not necessary that a landlord/landlady has to start business only to earn livelihood or ease out financial constraints. One can decide to start a business or some vocation to improve the standards of one's living and to generate self-earned income and respect both. The respondent does not want to sustain on the family pension or the rental income as both incomes can not take away the feeling of idleism from her life. The respondent appeared before this Court at least on two occasions along with her counsel. The Appellate Authority has rightly observed that the respondent is hale and hearty and possesses modest health and is physically and mentally capable of starting a business. In fact, but for the Arthritis or Asthma, as has been proved from the medical evidence, there is nothing on record to suggest that the respondent can not start a stress-free business like sale of Readymade Garments. In a catena of decisions, it has been consistently held that mere advancement in age is no ground to dislodge the claim of a landlord that he needs the premises to start his own business. The respondent is an educated lady and from the very inception, has come up with a positive stand that she possesses sufficient means to infuse investment in the business. Both the courts below have observed and rightly so that since the respondent is suffering from Arthritis and Asthma, she can not be forced to start her business on the first and second floors of the premises, though these two floors of the SCF can not otherwise be used for trade activities, as noticed by the Hon'ble Supreme Court in Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. : (2005-3) 141 PLR 676 (SC) : (2005)8 S.C.C. 504 to the following effect:
Section 4 makes provisions for pending cases, which is not relevant for the purpose of the present case. The important amendment brought about by this Act is that a 'non-residential building' would also mean a building let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence.
It appears that there are many such buildings in Chandigarh where the ground floor is used as a shop and the first floor is used for residential purpose and they are known as Shop-cum-Flats (SCF). The premises in dispute in the present case is a Shop-cum-Flat and, therefore, as a result of the aforesaid amendment brought about by the East Punjab Urban Rent Restriction (Chandigarh Amendment) Act, 1982 it became a nonresidential building.
11. Otherwise, the tenant can not dictate his landlord regarding the needs and requirements of the latter or how the landlord should adjust himself in this regard.
12. The plea that the respondent-landlady ought to have some experience in running the business has been rightly repelled by the Appellate Authority after following the Apex Court decision in Mohinder Kumar Jain v. Manohar Lal (2006)4 S.C.C. 724.
13. The contention that the respondent-landlady has planned or decided to dispose of the demised premises after getting it vacated, has no factual basis except the statement of Abhishek Garg (RW2) produced by the petitioner-tenant. In fact, an offer made by the counsel for the petitioner that he is ready and willing to buy the demised premises at the current market price has been outrightly rejected by the respondent-landlady. She also refused the offer of the tenant to pay the enhanced rent. Had it been the intention of the respondent to sell and/or increase the rent, she would have agreed to the offer made by the petitioner. She has throughout reiterated [through her counsel] that she wants to start the business to keep herself busy.
14. Be that as it may, Section 13(4) of the Act expressly takes care of an eventuality where a landlord after getting the premises vacated on the ground of personal necessity does not use the same for his own use and occupation. The tenant in such a case is entitled to apply to the Rent Controller for restoration of the possession of the rented premises.
15. In Shamshad Ahmad and Ors. v. Tilak Raj Bajaj [Deceased] through Lrs. and Ors. : (2008) 9 SCC 1 : (2008) 152 DLR 301, the Supreme Court ruled that the eviction petition of a landlady requiring the shop for business of her husband who had re-fired from service, can not be rejected on the ground that the landlords belong to the upper class of the society having facilities of a car and/or have been enjoying all amenities of life. It was held that for the start of a business of Readymade Garments, no technical education or expertise was required by the landlord. Similarly, there can be no presumption that a pensioner can not have any bona-fide necessity to start his business after the retirement or because of advance age. The respondent having enjoyed good time during the most part of her life, is therefore, not only entitled to keep herself busy in some creative activity but would also fetch some additional income to her and, thus, no fault can be found with her projected requirement.
16. In Pratap Rai Tanwani's case (supra), their Lordships of the Supreme Court have reiterated that 'reasonable requirement' postulates an element of need as opposed to mere desire or wish. In Shiv Sarup Gupta's case (supra), the need of the landlord for additional accommodation on the first floor of the residential house was upheld while emphasizing that the words 'need' and 'require' denote a certain degree of want with a thrust within demanding fulfillment. In M/s Rahabhar Productions' case (supra) also it was reiterated that the landlord has to establish his requirement which should be real and not feigned. In Amarjit Singh's case (supra), both the ground and first floor were occupied by the tenants. However, the ground floor fell vacant during the pendency of the eviction proceedings filed against the tenant on the first floor. The landlord did not occupy the same and insisted on the eviction of the tenant from the first floor. It was held that comfortable living is no ground to seek eviction of the tenant.
17. The afore-cited decisions are, thus, distinguishable on facts, though the principles laid down or reiterated undoubtedly apply and guide the Courts in each case. In the case in hand and as observed earlier, it is not for the sake of comfort alone that the respondent wants the ground floor to be vacated.
18. For the reasons afore-stated, I do not find any merit in this revision petition and dismiss the same, without any orders as to costs.