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Daulat Ram Vs. Girdhari Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 947 of 1975
Judge
Reported inAIR1980P& H131
ActsEast Punjab Urban Rent Restriction Act - Sections 13 and 13(3); Transfer of Property Act - Sections 106; Code of Civil Procedure (CPC), 1908
AppellantDaulat Ram
RespondentGirdhari Lal
Cases Referred and Mst Bega Begum v. Abdul Ahmad Khan
Excerpt:
.....in banks ram's case (supra). 12. the finding of the appellate authority regarding bona fide requirement of the landlord has been strenuously assailed by the learned counsel for the petitioner and it has been urged that the appellate authority went out of the way to reverse the well reasoned finding of the rent controller. the petitioner further stated that he was not keeping well and required a separate room for his residence which was being denied to him by the said amar nath. in the evidence of the respondent including the statement of the respondent himself, it was clearly brought out that the contention of the landlord that he was living in the house of his sister's son was not disputed. however, the case of the respondent was that he was being looked after well by his sister..........of these experts are excluded from consideration, the finding that the payment of advance rent as evidenced by the receipt, exhibit r. 4, is not satisfactorily proved and that the said receipt, exhibit r. 4, is a forged document is a concurrent finding of fact by both the courts below which is based on correct assessment of the entire evidence on the record and objective circumstances. i have no reason to disagree with the same.7. the important question, in the present case, relates to the contention regarding bona fide requirement of the premises, in dispute, by the petitioner. regarding the same, a preliminary objection was raised by the learned counsel for the respondent, that the eviction petition ought to be thrown out on the ground that all the ingredients of sub-clauses.....
Judgment:
ORDER

1. The petition, under Section 13 of the East Punjab Urban Rent Restriction Act, (hereinafter to be called the Act), by the landlord-petitioner was allowed by the Rent Controller Barnala, vide his order dated August 31, 1973, and the tenant-respondent was directed to vacate the house (hereinafter to be called the premises, in dispute). Appeal against the said order was, however, accepted by the Appellate Authority and the eviction petition was dismissed by order, dated June 7, 1976, which has been challenged in the present revision petition.

2. The facts, in brief, are that the landlord-petitioner filed the eviction petition through his Mukhtiar-i-am, Ravinder Singla. for evicting the tenant-respondent from the premises, in dispute, situated in Barnala on the grounds that the arrears of rent at the rate of Rs. 33/- per mensem had not been paid by the respondent with effect from June l, 1971 till the date of the filing of the eviction petition and that the petitioner required the premises in dispute, bona fide for his own occupation, It was also averred that the notice for vacation of premises, in dispute, had also been served. In reply, the case of the respondent was that advance rent for five years for the period from June l, 1971 to May 31, 1976 had been already Paid in the petitioner and a duly executed receipt, Exhibit R. 4, had been obtained, that the lease of the premises, in dispute, was for an indefinite period and no legally valid notice terminating the tenancy had been served perior to the filing of the eviction petition and that the petitioner did not require the premises bona fide for his own occupation

3. After the evidence had been adduced on both sides, the Rent Controller came to the conclusion that the lease was not for indefinite period but was for one year which had expired prior to the filing of the eviction petition and a valid notice as required under the law had also been served and that the requirement of the petitioner for self-occupation of the premises, in dispute, was bona fide. As regards the payment of advance rent, a categorical finding was returned that the advance rent had not been paid and that the receipt, Exhibit R, 4, relating thereto was a forged one, So far as the arrears of rent were concerned, the respondent had paid the same along with costs and interest on the first date of hearing and as such, the ground relating thereto did not survive. In appeal, the Appellate Authority concurred with the findings of the Rent Controller regarding the payment of advance rent and that the receipt, Exhibit R, 4, was a forged document, However, it was held that the lease was for an indefinite period and the tenancy had not been terminated by a valid notice prior to the filing of the eviction petition and as such, the petitioner had no locus standi to file the same, The finding of the Rent Controller regarding bona fide requirement by the petitioner was also reversed and it was concluded that it was not proved that the alleged requirement by the petitioner was bona fide.

4. As regards the notice to be served on the respondent, it was conceded by the learned counsel for the respondent that the legal position has been finally settled by their Lordships of the Supreme Court that prior service of notice under Section 106, Transfer of Property Act, before filing the eviction petition was not necessary so far as the eviction petitions under the Act, were concerned. As to the question whether the lease was for a definite period, the lease deed was not produced by the petitioner. The application by the respondent for permission to lead secondary evidence relating to the said lease deed was allowed by the Rent Controller, but in spite of the same, the statement was made by the counsel for the respondent that he did not want to press his objection regarding the legality and validity of the notice. The Appellate Authority. however, still gave a finding that the notice to terminate the tenancy was necessary and that the respondent was not debarred from raising this legal objection, though the counsel for the respondent had made the statement before the Rent Controller withdrawing the objection. This finding of the Appellate Authority cannot be sustained on any ground whatsoever. When the respondent himself had given up the objection at the stage of the Rent Controller, the same could not be revived. Besides, the respondent did not adduce any evidence by way of secondary evidence to prove that the lease was not for a year as contended by the petitioner in his statement, but for an indefinite period. In view of all these circumstances, the finding of the Appellate Authority is set aside and it is held that no notice was necessary for the purpose of filing the eviction petition.

5. As regards the question whether the respondent had paid the advance rent for five years and the receipt, Exhibit A. 4, regarding thereto was genuine or a forged one, the finding of both the Courts below is categorical that the payment of advance rent was not proved and further that the said receipt was a forged document, The petitioner categorically stated in his statement that he had not received my rent for the period from June 1 1971 to May 31, 1976, and that he had not executed the receipt, Exhibit R. 4, relating thereto, The receipt, Exhibit R. 4 according to which Rs. 1,980/- were paid by the respondent to the petitioner as advance rent for five years from 1971 to 1976 is alleged to be scribed by the respondent himself and attested by two witneses, Out of them, only one, namely, Bharpur Singh, R. W. 1, was produced on behalf of the respondent. According to his deposition, advance rent had been paid !or the period from 1972 to 1976. In cross-examination, he had also admitted that he had already appeared as a witness in favour of the respondent in another eviction petition filed by one Kasturi Lal against the present respondent with regard to a shop. The other attesting witness Ram Kumar was also admitted by the respondent in his statement to have appeared in his favour in the said eviction petition by Kasturi Lal, From this circumstance, both the courts below, came to the unanimous conclusion that both the attesting witnesses could not be treated as disinterested and that they had placed themselves at the disposal of the respondent to be a party to the fabrication of the receipt, Exhibit R. 4. Besides, it is also significant to note that from a close perusal of the receipt, Exhibit R, 4, it is evident that immediately at the end of the body of the receipt, the..... (Illegible--Ed,) had affixed his signature and it was after the said signature that at a little distance, both the witnesses were made to affix their signatures as attesting witnesses. From these signatures, no doubt is left that these witnesses could affix their signatures for the purpose of becoming attesting witnesses even subsequent to the execution of the receipt and the affixation of the signature by the landlord. Besides, there are three other receipts on the record. Exhibit R. 1, is the receipt by which the arrears of rent for six months from June 1, 1969 to November 30, 1969, were paid on December 23, 1969, when the receipt was executed. Similarly, Exhibit A, 2, evidences the payment of arrears of rent for three months from December 1, 1967 to February 29, 1968; and the receipt Exhibit R. 3 for the period from March 1, 1968 to May 31, 1968. Both these receipts were also executed on March 11, 1968 and June 19, 1968, respectively A11 these three receipts bring to light two important factors; (1) that none of these receipts bears the attestation of any witness; and (2) that each time it was not the advance rent, but the arrears of rent for the period of six or three months gone-by paid. Thus, the conduct of the respondent before. the alleged execution of the receipt, Exhibit R. 4, was to pay the rent not even for the current month what to say of the rent in advance, but the same was in arrears for a period of three to four months at a stretch There is absolutely no evidence on the record to show as to the special circumstances which existed for the payment of the advance rent for a long period of five years by the respondent. The respondent made a crude attempt to warrant the execution of this receipt by deposing that the petitioner had pressurised him to pay the advance rent on the threat that otherwise, rent be increased. However, this plea was not taken in the written statement.

6. Both sides also produced expert evidence in support of their contentions, Rattan Lal A.W. 3, lent corroboration to the case of the petitioner that the signature on the receipt, Exhibit R. 4, did not tally with the specimen signature of the landlord. On the other hand, Karam Chand Jaidka, R. W. 3, supported the case of the respondent by saying that the receipt, Exhibit R. 4, bore the signature of the landlord himself. According to the finding of the Rent Controller, the evidence of the expert, produced on behalf of the petitioner was more convincing as compared to the evidence of the expert produced by the respondent. For coming to this conclusion, the Rent Controller also perused the signature on the receipt., Exhibit R. 4, as well as the specimen signature of the petitioner himself. As against this, the Appellate Authority ignored the two statements on the usual ground by the Courts that with regard to the signatures, the experts are likely to depose in favour of the party on whose behalf they are examined, though I am Inclined to agree with the finding of the Rent Controller after perusing the disputed signature and the specimen signature of the landlord that the statement of Rattan Lal, expert, A. W. 3, deserves credence as against that of the other expert. However, even if the statements of these experts are excluded from consideration, the finding that the payment of advance rent as evidenced by the receipt, Exhibit R. 4, is not satisfactorily Proved and that the said receipt, Exhibit R. 4, is a forged document is a concurrent finding of fact by both the Courts below which is based on correct assessment of the entire evidence on the record and objective circumstances. I have no reason to disagree with the same.

7. The important question, in the present case, relates to the contention regarding bona fide requirement of the premises, in dispute, by the petitioner. Regarding the same, a preliminary objection was raised by the learned counsel for the respondent, that the eviction petition ought to be thrown out on the ground that all the ingredients of sub-clauses (a)(b) and (c) of Section 13(3)(a)(i) of the Act were not pleaded in the eviction petition. Reliance in support of the proposition that it was imperative for the landlord-petitioner to implead all there ingredients was placed on a Full Bench Judgment of this Court in Banke Ram v. Smt. Sarasti Devi. (1977) 1 Ren CJ 332 and a decision of their Lordships of the Supreme Court as reported in Onkar Nath v. Ved Vyas (1979) 2 Rent LR 226.

8. In the Full Bench judgment, above referred to, which was rendered by me, it was held that a landlord for the purpose of evicting a tenant under Section 13 of the AM, on the ground of his own use and occupation of the demised premises must specifically plead in his eviction application all the ingredients contained in sub-clauses (b) and (c) of para. (1) of Section 13(3)(a) of Act, and the conflict of opinion with regard to the same was set at rest by this judgment so far as this Court is concerned. But this categorical opinion was returned as a principle of law. In cases where all the ingredients are not impleaded in the eviction application, but both the parties lead evidence on the assumption as if the same had been impleaded. the tenant cannot be held to have been taken by surprise. In that case, it was held,--

'In the present case, we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of sub-clauses (b) and (c) and not the question that if in a particular case these ingredients are not pleaded, but the parties have led evidence with regard to them, what will be the effect In any given case, where facts have not been averred in the pleading, a number of questions can arise as to whether proper evidence has been adduced by the landlord regarding those facts which do not find place in the pleadings and secondly, whether such evidence will be admissible or not and lastly, whether the tenant was taken by surprise or not and had led evidence with full knowledge of the requisite contentions raised by the landlord and whether the tenant has in those circumstances been prejudiced or not. The Court will be required to give full consideration to the contentions raised by the respective Parties and the facts and circumstances of each case before giving its decision in favour of the landlord or the tenant. but the decisions of the High Courts or the Supreme Court, in this regard. cannot be of any avail to detract from the validity of the proposition that it is necessary for the landlord to make averments regarding the ingredients of sub-clauses (b) and (c). However, it may be made clear that when it is held that it is essential to plead the ingredients of sub-clauses (b) and (c) in the eviction application by the landlord, it should not be understand that under no circumstances, in the absence of pleadings. the evidence regarding the ingredients envisaged in sub-clauses (b) and (c) can be looked into. This is not peculiar to the eviction applications. Similar considerations come into operation even in the case of suits which are governed by the specific and detailed provisions of the Code of Civil Procedure regarding pleadings.'

9. In Onkar Nath's case (supra) while their Lordships of the Supreme Court took a specific notice of the legislation with regard to the two conditions as contained in sub-clauses (b) and (c), as referred to above, but came to the conclusion that that was not only a case of inadequacy of pleadings sufficient to make out a cause of action, but also of a complete absence thereof. It was held,--

'It is common ground that there are three requirements to make out a case of action for eviction under that provision, and indeed this is apparent from a bare reading of the sub-section. In the present case the finding is to the effect that the landlord requires the residential building for hie own occupation. But, the legislation has taken care to insist upon two more conditions. namely. (a) that the landlord is not occupying any other residential building in the area concerned; and (b) that he has not vacated such v building without sufficient cause, There is not a scintilla of evidence nor indeed there is any averment in. compliance with these latter conditions. The necessary consequence follows that not merely is there inadequacy of pleadings sufficient to make out a cause of action but total absence of proof of two vital requirements.

10. So far as the present case is concerned, undoubtedly, the only averment 'm the eviction petition in to the effect that the landlord requires the premises, in dispute, for his own residence and that he had no other premises in Barnala for the purpose. In the written statement filed by respondent, no objection was raised regarding the non-impleading of other ingredients as required under the law. A close perusal of the judgments by the Rent Controller and the Appellate Authority also leaves no manner of doubt that no such objection was raised on behalf of the respondent at any stage before the Rent Controller or the Appellate Authority. Daulat Ram, landlord-petitioner, when he appeared in the witness box as A. W. 1, deposed that he had been living with Amar Nath, his sister's son at Barnala who was pressing him to live separately in his own house. 1n cross-examination, it was made clear that he had not purchased any other house in Barnala, nor did Se take any other house on lease. The same position was brought out in the deposition of Bhan Chand, A. W. 2. Kulwant Rai, R. W. 6, produced on behalf of the respondent also deposed to the effect that the landlord-petitioner was unmarried and had been throughout living in the house of his sister at Barnala. Even Girdhari Lal, respondent, who appeared as R. W. 5, himself in his statement admitted that the landlord-petitioner had no other house except the premises, in dispute, in Barnala and that the latter had been living throughout m the house of his sister. The evidence produced on both sides and the trend of cross-examination directed against the landlord-petitioner or his witnesses, on behalf of the respondent, as is disclosed from their depositions, leaves no manner of doubt, that the respondent was quite alive to the essential ingredients of sub-clauses (b) and (e) of paragraph (i) of Section 13(a)(e) of the Act, and opportunity was utilised in cross-examination to elicit the true state of affairs.

11. From the above discussion it is clear that though the landlord-petitioner had omitted to fully implead the ingredients of sub-clauses (b) and (c), as referred to above, yet thereby the respondent was not in any manner prejudiced and the evidence on both sides was led as being fully aware of these ingredients. From this evidence, it is crystal clear that the case of both the parties was that the landlord-petitioner had only one house, namely, the premises, in dispute, which were given to the respondent on lease in 1967. He had no other residential premises in the town of Barnala where the premises, in dispute. were situated and he had not taken any other premises on lease for occupation. Therefore, the question of vacating the same without any sufficient cause did not arise. Beside, the landlord was living in the house of his sister and according to him, he was under pressure from his sister's son to vacate the same. In view of this situation, the mere fact of non-impleading of some of the essential ingredients in the eviction application cannot be held to be fatal so as to warrant the dismissal of the eviction application on this ground alone. There can be no dispute that on August 9, 1971, when the eviction petition was filed, the interpretation of law relating to the impleading of the essential ingredients, as envisaged in sub-clause (b) and (e) was not finally settled and the final position relating thereto emerged only after the Full Bench judgment in Banks Ram's case (supra).

12. The finding of the Appellate Authority regarding bona fide requirement of the landlord has been strenuously assailed by the learned counsel for the petitioner and it has been urged that the Appellate Authority went out of the way to reverse the well reasoned finding of the Rent Controller. According to the deposition of the landlord-petitioner himself, he was living with his sister's son, Amar Nath, at Barnala who was pressing him to leave his house and to reside in his house which had been rented out to the respondent. The petitioner further stated that he was not keeping well and required a separate room for his residence which was being denied to him by the said Amar Nath. This was corroborated by Bhan Chand, A. W. 2. The only discrepancy in his deposition which was highlighted by the Appellate Authority in its judgment is that the said sister's son of the landlord had been pressing the petitioner to leave the house for the last seven years. As this statement was made in April, 1972, according to the Appel1ate Authority, the landlord was under pressure for vacating the house of his sister's son since 1965 though the house had been rented out to the respondent in l967. In the evidence of the respondent including the statement of the respondent himself, it was clearly brought out that the contention of the landlord that he was living in the house of his sister's son was not disputed. It was also conceded in cross-examination of the respondent himself that both the sister and the sister's husband of the landlord had died. It was also conceded that the landlord remained generally ill. However, the case of the respondent was that he was being looked after well by his sister and that he could not live alone on account of his illness. It is a matter of common knowledge that after the death. of his sister and sister's husband, the landlord cannot expect the same respectful treatment, co-operation and good-will at the hands of his maternal nephew, The contention of the landlord-petitioner was that he needed a separate room account of his illness, but the same was not being provided to him by his maternal nephew. According to the deposition of Grdhari Lal, respondent, the house of the maternal nephew of the petitioner was quite spacious and comprised of a matter of rooms, but to lend corroboration to this fact, no evidence whatsoever was adduced. From the evidence on record, it is not possible to hold that the plea of the landlord that he required the premises, in dispute, for his own occupation was not bona fide or genuine.

13. According to the leamed counsel for the respondent, the concept of law with regard to the bona fide requirement of the landlord has undergone a change, Reliance in support of this contention has been placed on a Division Bench judgment of this Court in Roop Lal Mehra v. Kamla Soni, ILR (1967) 1 Punj and Har 479, in which it was held that the provision regarding bona fide requirement of the landlord did not make the landlord the sole arbiter of subjectively deciding the question of his requirement and is was for the Court to determine if the requirement of the landlord was bona fide and whether the premises already in possession of the landlord provided a reasonably suitable alternative accommodation, In the abovesaid case, it was held that the landlady had e fairly commodious and independent accommodation available to her on the ground floor and was not entitled to get her tenant ejected on the ground floor simply on the ground that she was not accustomed to living in a place where somebody else was living. Support was also sought by the learned counsel for the respondent for his contention, from the decision in Phiroze Bamanji Desai v. Chandrakant M. Patel, AIR 4974 SC 1059 and Mst Bega Begum v. Abdul Ahmad Khan, AIR 1979 SC 272,

14. In Phiroze Bamanji Desai's case (supra) for the purpose of assessing the requirement of landlord for the premises, in question, as reasonable and bone fide the following test was laid down:

'For the Purpose of determining whether the requirement of the landlord for the premises in question is reasonable and bona fide, what is necessary to be considered is not whether the landlord is juridically in possession of other premises, but whether they were available to him for occupation so that he cannot be said to need the premises in question. If s person is in occupation of the other premises on leave and licence, they are obviously not available to the landlord for occupation and cannot be taken into account for negativing the need of the landlord for the premises in questions.'

15. In Mst. Bega Begum's case (supra), it was held that for the purpose of judging the requirement of the landlord there must be an element of need as opposed to a mere desire or wish, but it was also observed.

'The connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make as impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the vary purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds,'

16. Keeping in mind the ratio of the decisions in the above two Supreme Court cases, it cannot but be held that requirement of the landlord-petitioner to occupy the premises, in dispute, genuine and bona fide one. Indisputably, the petitioner had no other house his own except the premises, in dispute and he was living with his sister's son. Thus the only conclusion is that he cannot claim to live in the house of his sister's son as a matter of right. His continuance to live there is patently at their mercy. There is no evidence to rebut the contention of the landlord that his sister's son was pressing him to leave the premises and he was also being denied use of a separate room, In these circumstances, the plea of the landlord that requires the premises, in dispute, for own occupation cannot be brushed aside merely as a desire as distinct from need or requirement,

17. It was lastly contended by the learned counsel for the respondent, relying on Phiroze Bamenji Desai's case (supra) that the conclusion of the Court below regarding the bona fide requirement of the landlord could not be interfered with by re-appraisal of evidence, The same has also no merit, The Rent Controller came to the positive finding that the requirement of the landlord-petitioner was bona fide and genuine. In fact, there was no substantial material for the Appellate Authority to reverse that finding.

18. For the reasons mentioned above, I allow this revision petition and set aside the order of the Appellate Authority, The consequence is that the eviction petition is allowed and the eviction order passed by the Rent Controller is restored. The respondent may vacate the premises within two months from today, provided he pays all the arrears of rent which may have fallen due till today within a fortnight. In the circumstances of the case, there will be no order as to costs.

19. Revision allowed.


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