Radhe Sham Vs. Ruchi Rajput - Court Judgment

Excerpt:
tenancy - ejectment - respondent filed suit for ejectment against petitioner seeking his ejectment on ground of personal necessity - rent controller allowed ejectment petition - petitioner filed appeal - appellate court upheld finding of rent controller - hence, present revision filed by petitioner - held, both courts below found that respondent along with her father issued notice to petitioner intimating him that ownership of shop had been transferred to respondent - both courts found that petitioner has been paying rent to respondent through money order - it is well settled that landlord can always seek ejectment of tenant for his own need or need of his family members - respondent is now married - therefore, family settlement cannot be regarded as sham transaction - respondent has been proved to be medical graduate in ayurvedic and unani medical system and there is ample evidence on record proving fact that she is entitled to practice as doctor - therefore view taken by both courts is meritorious and does not require interference - hence, petition dismissed - sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - his father after his retirement also intends to settle at kapurthala and she has better carrier prospectus if she runs clinic at kapurthala. otherwise, also, the landlord is the best judge of his needs. the answer to the aforementioned question has to be in the affirmative because it is well settled that a landlord can always seek ejectment of a tenant for his own need or the need of his family members. it is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent.m.m. kumar, j.1. this is tenant's petition filed under section 15(5) of the east punjab urban rent restriction act, 1949 (for brevity, 'the act') challenging concurrent findings of facts recorded by both the court below holding that the demised shop is required for bona fide personal necessity of the landlady-respondent.2. necessary facts in brief may be noticed in order to put the controversy in its proper perspective. the landlady-respondent ms. ruchi rajput filed an ejectment petition being rent case no. 40 of 26.11.1998 against the tenant-petitioner seeking his ejectment on the ground of personal bona fide necessity. she is a graduate from the board of ayurvedic and unani systems of medicine, punjab (for brevity, 'the board') and is a registered medical practitioner under the punjab ayurvedic and unani practitioners act, 1963 (for brevity, '1963 act') and as such she is entitled to practice as a doctor within the state of punjab. she is otherwise physically handicapped. it has also been conceded that there is relationship landlord and tenant between the parties. it was initially claimed that the tenant-petitioner had agreed to vacate the demised shop at the end of october, 1998. however, he refused to do so. the demised shop is alleged to have fallen to the share of landlady-respondent in a family settlement. the shop is situated in mohalla mohabbat nagar, railway road, kapurthala. it was given to her with the object of accommodating the landlady-respondent at the place where other family members reside and she has social connections. it is admitted position that vide notice dated 23.7.1998, the tenant-petitioner was informed by the landlady-respondent and her father that the ownership of the demised shop stood transferred in the name of landlady-respondent in a family settlement and that he shirked paying rent to her. however, the tenant-petitioner has claimed that the family settlement is a sham transaction and is a pretence to create the ground for his ejectment.3. after framing of issues and adducing of evidence, the rent controller recorded a conclusion that the bona fide of the landlady-respondent could not be doubted as she was a graduate from the board. her father who used to be the landlord-respondent of the tenant-petitioner earlier, in order to help his daughter to settle in her life and secure her future had given this shop in a family settlement. the plea of the tenant-petitioner that the family settlement was a sham transaction has not been accepted by both the courts below for the reason that nothing prevented the father of the landlady-respondent to file an ejectment petition for the personal bona fide necessity of his daughter and for that purpose he was not required to create family settlement. the other family members have not raised any objection nor, the family settlement required any registration. it has been held that the tenant-petitioner has no locus standi to challenge the family settlement. it has also come in evidence that the demised shop has been transferred in the record of the municipal committee in the name of landlady-respondent and that the name of the landlady-respondent in respect of the electric meter has also been changed. the family settlement has been duly proved by her father kashmiri lal who appeared in the witness box as pw-7. the view of the appellate authority with regard to the plea raised by the tenant-petitioner that it was a sham transaction reads as under:-'...from the evidence on record it has been sufficiently proved on record that ruchi who is a handicapped and is a qualified doctor in ayurvedic and unani medicines, was given the shop in dispute in family settlement by her father kashmiri lal, as he was worried about the future of his handicapped daughter.xx xx xx xx xxxx xx xx xxmoreover, it was admitted by the respondent while appearing as rw-4 that after receiving of notice that the shop in dispute has been transferred in the name of ruchi, he started paying rent to ruchi and also sent the rent to her through money order. meaning thereby the respondent has accepted ruchi as the landlady. the trial court has rightly observed that there was no need to enter into any sham family settlement by kashmiri lal, if he only wanted to get the shop in dispute vacated. being father of ruchi also he could have get the shop vacated for the use and occupation of his daughter....'(emphasis added)another plea of the tenant-petitioner that the landlady-respondent did not have sufficient experience to start medical practice has also been rejected by the appellate authority with the following observations:-'it was held by the hon'ble supreme court of india in dattatrayal laxman kamble v. abdul rasul moulali kotkune and anr., : [1999]2scr912 to say any venture of a person in business filed without acquiring past experience reflects his lack of bona fide is a fallacious and upgramatic approach. experience can be earned even while the business is in progress. it is too pedantic a norm to be formulated that 'no experience no venture'. otherwise, also the petitioner has proved on record after getting her degree in b.a.m.s. she took her training from kaushal hospital, kapurthala which is being run by dr. ranbir kaushal. she has also proved on record the register ex.a-3 relating to the patients being attended by her, while she was running a clinic in a room of the house of his uncle ronki ram. so it can not be said that the petitioner is not having sufficient experience to run independent clinic of her own.'the appellate authority also rejected the argument that the landlady-respondent had got married and may not require the demised shop for her own use and occupation. relying on a judgment of this court in gaya prasad v. pradeep srivastava, 2001(1) r.c.r. 221, it has been held as under:-'...it does not matter if during the pendency of the present petition, ruchi had got married. it has been admitted by the respondent while appearing as rw4 that the nucleus of family of the petitioner is at kapurthala and all his near relations are settled at kapurthala. his father after his retirement also intends to settle at kapurthala and she has better carrier prospectus if she runs clinic at kapurthala. it has also been admitted by the respondent that while appearing as rw-4 that except the demised premises the petitioner is having no property in kapurthala of the similar nature. otherwise, also, the landlord is the best judge of his needs. reliance can be placed upon sarla ahuja v. united india insurance company ltd., 1998(2) apex court journal 704 (s.c.) wherein it has been held by the apex court of india that when landlord asserts that he requires building for his own occupation rent controller shall not proceed on presumption that requirement is not bona fide. it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of tenanted premises....'4. mr. padam jain, learned counsel for the tenant-petitioner has vehemently argued that under the hindu law, a female whether major or minor has no share in the property and, therefore, the landlady-respondent did not have any pre-existing right to claim the demised shop from her father. learned counsel has submitted that in the case of hiraji tolaji bagwan (since deceased by l.rs. ) v. shakuntala, : [1990]1scr66 , it has been held that a family settlement created from the ancestral property in favour of the female was held to be a sham transaction and, therefore, the ejectment petition filed by the landlady-respondent is liable to be rejected. it has further been pointed out that such a family settlement was in any case required to be registered as it transfer immovable property worth more than rs. 100/- as has been held by the supreme court in the case of bhoop singh v. ram singh major and ors. a.i.r. 1966 sc 196. it has further been submitted that the landlady-respondent has got married and is happily settled at hoshiarpur and would not any longer be requiring the demised shop for the personal occupation to run a medical clinic.5. mr. c.b. goel, learned counsel for the landlady-respondent has argued that the test for a genuine and sham transaction in the present case could be whether the family settlement was the only mode for seeking ejectment of the tenant-petitioner or that the ground of personal bona fide necessity could have been pleaded even in the absence of such a family settlement. learned counsel has pointed out that judgment of the supreme court in hiraji tolajio bagwan's case (supra) only goes to the extent that a female major or minor is not entitled to any share in the ancestral property. according to the learned counsel, there is no evidence on record to prove the fact as to whether the demised shop is ancestral property or it is self acquired property of the father of the landlady-respondent. according to the learned counsel, a family settlement cannot be challenged by a tenant as has been held in various judgments of the supreme court which have been considered by this court in the case of ashwani kumar rana v. balsharan gautham and anr., (2005-1)139 p.l.r. 389.6. after hearing the learned counsel and perusing the orders of ejectment passed by both the courts below and various judgments on which reliance has been placed by learned counsel for the parties, i am of the considered view that there is no merit in this petition. firstly, the tenant-petitioner has conceded the fact that the landlady-respondent is his landlord after the attornment in her favour. it has been concurrently found by the courts below that the landlady-respondent alongwith her father issued a notice dated 23.7.1998 to the tenant-petitioner intimating him that ownership of the shop had been transferred to the landlady-respondent. it has been categorically held by both the courts below that the tenant-petitioner has been paying rent to the landlady-respondent through money order. in this regard, reference maybe made to paragraph 14 of the judgment of the appellate authority. the relevant extract from paragraph 14 has already been reproduced in the preceding paras. i am further of the view that genuineness or sham nature of a transaction can be adjudged by the test as to whether the transaction was the only mode available to achieve the object of ejectment of the tenant-petitioner from the demised shop. in other words, could it be said that kashmiri lal, father of the landlady-respondent could not have himself field an ejectment petition on the ground that the demised shop was required for the personal bona fide necessity of his daughter, the present landlady-respondent. the answer to the aforementioned question has to be in the affirmative because it is well settled that a landlord can always seek ejectment of a tenant for his own need or the need of his family members. in this regard, reference may be made to the judgment of the supreme court in the case of joginder pal v. naval kishore behalf : [2002]3scr1078 . the supreme court in joginder pal's case (supra) has relied upon the interpretation given to the expression 'himself' used in paragraph (h) of schedule i of the english rent and mortgage interest restrictions (amendment) act, 1933 in the case of richter v. wilson, 1963(2) all.e.r. 335. it has cited with approval the division bench judgment of karnataka high court in the case of syed sibgathullah (dr) v. c.m. abdul aziz khan, i.l.r. (1982) 1 karnataka 463. on the basis of aforementioned judgments and many others, the supreme court in joginder pal's case (supra) has interpreted the expression 'for his own use' as occurring in section 13(3)(a)(ii) of the act in a wider, liberal, and practical way. the observations of their lordships in this regard read as under:-'we are of the opinion that the expression 'for his own use' as occurring in section 13(3)(a)(ii) of the act cannot be narrowly construed. the expression must be assigned a wider, liberal and practical meaning. the requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. the requirement of a member of the family or of a person on whom the landlord is dependent on the landlord can be considered to be the requirement of the landlord for his own use. in several decided cases referred to hereinabove, we have found the pari materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as 'his' or 'his own' requirement and user. keeping in view the social or socio-religious milieyu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. to discharge such obligation the landlord may require the tenancy premises and such requirement would be requirement of the landlord. if the requirement is of actual user of the premises by a person other than the landlord himself the court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. applying the above said tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. it is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent....' (emphasis added). it, thus, becomes evident that kashmiri lal father of the landlady-respondent himself could have instituted an ejectment petition on the ground that the premises was required for personal necessity of his daughter. viewed from that angle, the family settlement cannot be regarded as sham transaction and, therefore, there is no legal infirmity in the view taken by the court below. it is not unnatural that father of a handicapped daughter or even her brother may come forward to surrender their rights so as to secure her future and ensure some income to her. such a step must have also enhanced her married prospects as is obvious that the landlady-respondent is now married. therefore, the family settlement cannot be regarded as sham transaction.7. the landlady-respondent has been proved to be a medical graduate in the ayurvedic and unani medical system and there is ample evidence on record proving the fact that she is entitled to practice as a doctor as she is enrolled registered medical practitioner with the ayurvedic and unani medical council. it has further been proved that she has sufficient experience and the appellate authority has rightly placed reliance in this regard on the judgment in dattatrayal laxman kamble's case (supra). it has also come on record that the landlady-respondent has close social associations with the people as her father and other family members use to reside there. it shows that for medical practice, this place would be a suitable for her. therefore, the view taken by both the courts below is meritorious and does not require interference of this court under section 15(5) of the act. the findings cannot be considered to be perverse, without evidence or suffering from any other legal infirmity. this court will not re-appreciate the evidence in order to record a conclusion other than the one recorded by both the courts below.8. for the reasons above mentioned this petition fails and the same is dismissed. however, there shall be no order as to costs.