Sh. Raj Kumar Gambir Vs. Sh. Kanwar SaIn Jain - Court Judgment

M.M. Kumar, J.

1. This is tenant's petition filed under Sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity, the Act) challenging the concurrent findings of facts recorded by both the Court's below holding that the demised premises are bona fide required by the landlord-respondent for his personal use and occupation because of the old age and illness of the wife of the landlord-respondent. It has also been found that the landlord-respondent is about 70 years of age and on account of his fractured leg in an accident it is difficult for him to continue staying on the first floor. He has also proved the fact that his wife has developed heart problem and climbing stairs by her is not possible. The findings recorded by the Rent Controller on the question of personal necessity which are affirmed by the learned Appellate Authority read as under;-

'24. Now the crucial question thus arises for determination is whether evidence placed on the file by the petitioner is sufficient to hold the personal necessity of the petitioner regarding tenancy premises. Petitioner examined Dr. A.K. Jain as PW1 he categorically deposed that Pushpa Jain wife of Kanwar Sain Jain is under his treatment for the last 1/2 years and he placed medical certificate Ex.P1. She was advised not to climb the stairs of the house.'

25. It has come in the evidence of the petitioner as well as respondent that petitioner alongwith his wife is residing on the first floor of the house. Respondent admits in his cross examination that petitioner is residing on the floor and he is not having any residential accommodation on the ground floor. The case of the petitioner is that he requires the ground floor as his wife is suffering from blood pressure and heart problem, xx xx xx xx xx xx xx.

26. Having gone through the contentions raised by both the counsels and after scanning the evidence placed on file by both the parties, this court is of the view that landlord in the circumstances of the present case, bona fide requires the premises for his own use and occupation. His wife is a heart patient and is suffering from hypertension and she has been advised by the doctor to live on the ground floor, therefore, contention raised by learned counsel for petitioner that premises in question is required for bona fide necessity, is having sum substance and tenable.'

2. The findings of facts as to whether the demised premises are residential or non-residential, the learned Rent Controller has held that the demised premises is a part of the residential building and even if it was rented out by him for non-residential purpose, the landlord-respondent is entitled to eject the tenant-petitioner for use of building as his residence.

3. Mr. O.P. Gupta, learned counsel for the tenant-petitioner has argued that the demised premises is a hall measuring 60'x24' which was let out by the landlord-respondent to the tenant-petitioner vide rent note dated 14.10.1965 Ex. D1 for the purpose of book binding and printing press. According to the leaned counsel the demised premises is not a residential building and therefore, cannot be occupied by the landlord-respondent for his personal use, The learned counsel has also pointed out that there is no evidence showing that the demised premises is a residential building as there is neither any bath room-cum-toilet not any kitchen which are necessary constituents of a residential building. The learned counsel has further argued that another room on the ground floor was lying vacant and that the landlord-respondent was in possession of a building opposite to State Bank of India, Kabari Bazar, Ambala Cantt. The learned counsel emphasised that the Rent Controller has raised an unwarranted presumption that the demised premises was a residential building and its conversion from residential to non-residential was in violation of Section 11 of the Act. The basis of his submission is the purpose for which the building was let out vide rent note dated 14.10.11965 which specified book binding business and printing press. The learned counsel has also highlighted that in the application filed by the tenant-petitioner under Order 41, Rule 27 of the Code of Civil Procedure, 1908, for adducing additional evidence two ejectment orders both dated 15.10.1999 passed by the Rent Controller, Ambala Cantt, would show that additional accommodation has become available to the landlord-respondent.

4. Having heard the learned counsel at considerable length and perusing the judgments of both the Courts below, I am of the considered opinion that the findings of facts on the question of personal necessity of the landlord-respondent cannot be interfered with. It has been categorically held by both the courts that the landlord-respondent had met with an accident and got his leg fractured which must be causing extreme inconvenience to him to climb staircase for going up and down on the first floor. It has also been concurrently found by both the Courts below that the wife of the landlord-respondent is suffering from heart problem and she is under the continuous treatment of a cardiologist namely Dr. A.K. Jain who had appeared as PW.1, Both landlord-respondent as well as his wife are about 70 years of age. In the evenings of their lives it will not be fair to deny them comfort of living in their own house in accordance with their desire and convenience. It is well-settled that the landlord is the best judge of his needs and interest. The tenant does not have much say in that decision of the landlord. In the present case, the circumstances showing illness of both of the landlord-respondent and his wife coupled with the fact that they are in the advance age, would further lead to the conclusion that the necessity of the landlord-respondent is genuine and cannot brook any further delay. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999)6 S.C.C. 222, the Supreme Court analysed the concept of bona fide requirement. Laying down the test for objective determination of bona fide requirement of the landlord, their lordships of the Supreme Court observed as under;-

'13. Chambers 20th Century Dictionary defines bona fide to mean 'in good faith: genuine', The word 'genuine' means 'natural' not spurious' real' pure' sincere'. In Law Dictionary, Monzley and whitely define bona fide to mean 'good faith, without fraud or deceit'. Thus the term bona fide 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 bona fide' is suggestive of legislative intent that a mere desire which is the out come 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 the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the armchair 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 bona fide. The failure on the part of the landlord to substantiate the pleaded need, or in a give 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 it judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more then 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 bona fide and or genuine requirement needs a practical approach instructed by the realities of the life. And approach either too liberal or too conservative or pendantic must be guarded against.'

5. Similar, view has been taken by the Supreme Court in the case of M.M. Quasim v. Manohar Lal Sharma, (1981)3 S.C.C. 36, Ram Dass v. Ishwar (deceased), (1968)3 S.C.C. 131, Sarla Ahuja v. United India Insurance Company, (1999-1)121 P.L.R. 805 (S.C.), Prativa Devi v. T.V. Krishnan, (1996)5 S.C.C. 353 and Atma S. Berar v. Mukhtiar Singh, (2003-1)133 P.L.R. 371 (S.C.). Therefore, I am not inclined to interfere in the findings of facts recorded by both the Courts below.

6. The question whether the demised premises is a residential or non-residential building, would pale into insignificance if the definition of non-residential building incorporated in Section 2(d) and residential building in Section 2(g) is taken into consideration. Both the definitions read as under;-

'2(d) 'non-residential building' means a building being used-

(i) mainly for the purpose of business or trade; or

(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there:

Provided that if a building is let out for residential and non-residential purposes separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building. Explanation.- Where a building is used mainly for the purpose of business ortrade, it shall be deemed to be a non-residential building even though a small portionthereof is used for the purpose of residence:

2(g) 'residential building' means any building which is not a 'non-residential building':

7. A perusal of the definition of expression 'non-residential building' shows that the dominant purpose for which the building is being used, has to be kept in view. The explanation appended to Clause (d) of Section 2 further shows that if the small portion of the building is used for residential purposes, the dominant purpose being business or trade, the building will continue to be 'non-residential building'. If the facts of the present case are examined in the light of the definition given in Clause (g) of Section 2, it becomes evident that the dominant purpose for which the building being used, is residential. The landlord-respondent has been residing on the first floor. It is common knowledge that the residential building which has a room on the road side, is used and let out for a small shop but that itself would not denude its character of a residential building. This view has been held by a Full Bench of this Court in the case of Hari Mittal v. B.N. Sikka, (1986-1)89 P.L.R. 1 (F.B.) and it has also been followed in a case from Punjab namely, Hem Raj v. Ram Kumar Khosla (1994-3)108 P.L.R. 374. Moreover, the findings of both the Courts below are that it is a residential building and in order to convert it to a non-residential house, permission under Section 11 of the Act was required to be obtained from the Rent Controller. The observation of the Rent Controller in this regard as under:-

'It is clear that the residential building is let out by a landlord for non-residential purpose even then landlord is entitled to eject the tenant for his residence. In case Surjit Singh Arora v. Harbans Singh, (1989-1)95 P.L.R. 6, wherein it was held that landlord cannot convert residential building into a non-residential building without the permission of the Rent Controller as required under Section 11 of the Act. It is also held that where a residential building is let out by a landlord for non residential purpose, even then landlord is entitled to eject the tenant for his residence. As per the latest pronouncements of Hon'ble High Court and our own Hon'ble High Court recorded in cases titled Sarla Arora v. United India Insurance Co., (1999-1)121 P.L.R. 805 (S.C.) and State of Haryana v. Ved Par/cash Gupta, 1999 Haryana Rent Reporter (S.C.) 96/97, controversies have been set at naught and it has been held that even a non residential premises can be got vacated for residential purposes on the ground of bona fide necessity. There is no evidence on the record that petitioner owns any other house at Ambala which he can occupy. The landlord is the sole arbiter of his choice. It is for the landlord to choose where he will put up. It is not for tenant to impose upon the landlord his choice. It is amply proved on the file that wife of the petitioner is a heart patient and whereas the petitioner has required the ground floor for his personal necessity and bona fide requirement. Apart from this, petitioner had also met with an accident and got his leg fractured and he experiences continuous difficulty in going up and coming down the stairs of the residential portion. The requirement of the petitioner is bona fide. Hence, this issue is decided in favour of the petitioner and against the respondent.'

8. Therefore, I do not find any ground to deviate from the conclusion that the demised premises is a 'residential building'' and is bona fide required by the landlord-respondent for his own occupation as well as the occupation of his wife.

9. The application filed under Order 41 Rule 27 of the Code for bringing on record subsequent events, cannot be considered at this belated stage because it fails to satisfy the three requirements laid down by the Supreme Court in the case of Atma S. Berar's case (supra). It has been held by their Lordships that 'the power of the Court to take note of subsequent events is well-settled and undoubted. However, it is accompanied by three riders' firstly, the subsequent event should be brought promptly to the notice of the court; secondly, it should be brought to the notice of the court consistently with the rules of procedure, enabling the court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events and thirdly; the subsequent event must have a material bearing on right to relief of any party. None of the two orders dated 15.10.1999 Annexure P.1 and P.2 placed on record alongwith the ap-plicttion would show that the accommodation has become available to the landlord-respondent and the ejectment order passed by the Rent Controller in respect of House No. 62/14 Idgah Road, Ambala Cantt has been occupied by him. No dent has been caused in the claim of the landlord-respondent to occupy the demised premises by the aforementioned two orders of even date passed in his favour. The other requirement that the application should have been filed promptly, has also not been satisfied. Both the orders were passed on 15.10.1999 and no substantive explanation has been tendered to explain the delay. It has not been explained as to whether any appeal has been filed against these two orders alongwith their result. Such being the unsatisfactory circumstances surrounding the application for additional evidence. I am not inclined to permit adducing of such evidence at this stage especially for the reason that the landlord-respondent and his wife are unwell and old in age. The application therefore, deserves to be dismissed.

10. For the reasons stated above, this petition fails and the same is dismissed.