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Jijai Kumar Vs. Indian Coffee House - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 41 of 1968
Judge
Reported in5(1969)DLT296
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 13(3); Transfer of Property Act, 1882 - Sections 106
AppellantJijai Kumar
RespondentIndian Coffee House
Advocates: A.C. Sud,; K.D. Sood and; S.Malhtora, Advs
Cases ReferredB. K. Khanna v. M. R. Bitra
Excerpt:
.....upon by the petitioner herein as he has failed to prove that the society was occupying antoher residential building in simla which they have vacated after the commencement of this act without sufficient cause. if his needs in fact exist and are commensurate with his circumstances and it is found that the landlord has sought eviction of the tenant in good faith, then it is acasein which he requires the residential building from which he seeks eviction of the tenant for his own occupation. ram parkash :thequestion of the requirement of the landlord has in this connection to be looked at from a practical point of view and in the background of our social conditions ;and the expression 'his own occupation' does nto call for an unreasonably narrow, dogmatic or technical legalistic approach..........stated in para 4 of the petition are nto admitted; the application for the requirement of the premises in occupation of the respondent is nto bona fide in asmuch as recently on purchase of the building viz. 1, north brook terrace, the mall, simla of which the respondent occupies only the top flat, the applicants gto two vacant residential flats for residence of the staff besides the accommodation the applicants had in their possession as tenants for the last more than seven years: the staff of the applicants could and can be accommodated very conveniently in those two flats and the previously occupied premises; the application is made to harass the respondent at the instance of some interested agent of the previous owner: two applications were made by the previous owner regarding.....
Judgment:

S.N. Andley, J.

(1) This is a civil revision under sub-section (5) of saction 15 of the East Punjab Urban Rent Restriction Act 1849 (Act 111 of 1949) against the judgment dated August 9, 1968, of the Appellate Authority constituted under sub-section (1) (a) of the said section of the said Act. The appellate Authority who is the District Judge, Simla District, Simla, allowed the application of the respondent herein which had been filed in the Court of the Rent Controller under section 13(3) (a)(i) of the said Act for the eviction of the petitioner herein from the top floor of the building known as North Brook Terrace, The Mall, Simla.

(2) The undisputed facts are that the third, fourth a fifth floors of the North Brook Terrace were on tenancy with the respondent society. The fifth floor of the building opens on the Mall Road and the society was running a coffee house on this floor. The fourth and third floors were being utilized by the society as its kitchen and godown. The sixth floor was in the possession of the previous owner Mr. Jaweri who was utilizing it as his residence. The society purchased the building in September 1966 and possession of the sixth floor was delivered to it. The society converted the sixth floor also for the purpose of its business of runing a coffee house. The petitioner herein was a tenant of the previous owner in the seventh floor and continued to occuppy it even after the purchase of the entire building by the society. Shortly after the purchase, the managing Committee of the society passed a resolution (Exhibit A-2) recording the fact of the purchase and resolving that the premises in the occupation of the petitioner herein were required by it for the residence of its officers and staff. It was further resolved that action be taken against the petitioner herein for his eviction. In the meantime, it appears from the pleadings, a ntoice was served by the society upon the petitioner herein to vacate and hand over possession of the seventh floor and, by his reply dated November 4, 1966, the petitioner herein refused to do so.

(3) Thereupon, the society filed the requisite petition before the Rent Controller. Simla, wherein it was stated that the society had purchased the aforesaid premises in September 1966 the top floor of which comprising of three rooms, two attached bath rooms with flush, attic and a shed, were in the occupation of the petitioner herein as a tenant. In paragraph 4 of the petition, it was stated :-

'4.That the premises with the Respondent are bona fide required by the applicant for the occupation and residence of their officers and staff. The applicant has rented two rooms in Simla at the rat' of Rs. 180.00 per month from Shri Amar Chand of Messers. Gobind Lal Ghuha Ram of Simla where 12 members of the staff who are residing therein are almost packed like sardines. The accommodation in North Brook Terrace No. 1 The mall Simla in occupation of the applicant does nto meet their requirement and is nto adequate for the needs of the applicant's society who has 19 branches spread over India and who pay Rupees twelve lakhs as yearly emoluments to their staff. The applicant has nto vacated any premises in the urban area of Simla since operation of this Act (Act 111 of 1949).'

In paragraph 5 of the petition it was alleged that the petitioner herein had been served with a registered ntoice to vacate and hand over possession but had refused to do so by his reply dated November 4. 1966.

(4) The petitioner herein filed his reply to paragraph 4 as so stated:-

'4.Facts stated in para 4 of the petition are nto admitted; the application for the requirement of the premises in occupation of the respondent is nto bona fide in asmuch as recently on purchase of the building viz. 1, North Brook Terrace, The Mall, Simla of which the respondent occupies only the top flat, the applicants gto two vacant residential flats for residence of the staff besides the accommodation the applicants had in their possession as tenants for the last more than seven years: the staff of the applicants could and can be accommodated very conveniently in those two flats and the previously occupied premises; the application is made to harass the respondent at the instance of some interested agent of the previous owner: two applications were made by the previous owner regarding these premises for eviction on the ground of self requirement and subletting btoh of which were dismissed against the respondent : and thus the application on those grounds is nto competent.'

In so far as the allegation with regard to the service of ntoice was concerned, it was stated in paragraph 5 of the reply that the ntoice had been replied to.

(5) It appears from the evidence that the society had taken on rent two rooms in Amar Niwas in or about 1964 which were occupied by some members of the society. In addition to this accommodation, it was alleged by the petitioner herein that two rooms above Snow-White were also with the society which they had given up and there was some toher accommodation which the society had taken on rent and which they had vacated after the comming into force of the said Act. As to the rooms above Snow-White, the contention of the Society was that they had been taken on rent nto by the society itself but by two of its managers in their individual capacity. With regard to the toher acco- mmodation alleged to have been vacated by the society, the society denied having taken on rent any toher premises except the aforesaid two rooms in Amar Niwas which were still in its tenancy. S. S. Negi, President of the society appeared before the Rent Controller as A. W. 1. Inter alia, he stated :-

'THEtwo rooms of accommodation which is at present on rent with the society for residence was taken on rent 3 or 4 years back prior to that the society had taken on rent some toher residence which is vacated at the time of taking the present accommodation No. legal proceedings were instituted against the society for ejectment from that accommodation.'

The Rent Controller, by his order dated April 1, 1968, dismissed the application filed by the society. He held that the fact that the sixth floor which had been used previously by the previous owner for his residential purposes had been converted for non-residential purposes by the society after the purchase would nto establish that the requirement of the society of the seventh floor in the occupation of the petitioner therein would nto be bona fide. He, however, relied upon the afore-qutoed statement of S. S. Negi and held that the society was disentitled to an order for eviction by reason of section 13 (3) (a) (i) (c) of the said Act.

(6) At the time of hearing of the appeal, it was contended on behalf of the society before the Appellate Authority that the petitioner herein had nto alleged in his written-statement that the society had vacated any premises after the coming into force of the said Act, nor had he made any statement to that effect before the Rent Controller and, thereforee, fresh evidence should be taken on this aspect of the case. The Appellate Authority accepted this contention and framed the following additional Issue:-

'DIDthe petitioner vacate any premises in Simla after the coming into force of the Act without any reasonable ground ?.'

and recorded evidence thereon. Before dealing with the evidence recorded by the Appellate Authority, I may state that the challenge to the framing of this additional issue by the Appellate Authority by the petitioner herein failed as his petition for revision was dismissed by this Court.

(7) In support of this additional issue, the society produced the said S. S. Negi and C. K. Kuruvella who had been examined before. In his evidence, S. S. Negi stated that he had nto made the impugned statement before the Rent Controller. Further, he as well as Kuruvella deposed that the society had nto vacated any premises after the coming into force of the said Act. The petitioner herein did nto produce any evidence on this additional issue.

(8) Thereupon, the Appellate Authority gave its final judgment on August 9, 1968, and came to the following findings :-

1.That the respondent society had taken three floors of North Brook Terrace on rent and the society was utilizing these three floors for their business of running a coffee house. 2. In 1964, the society took two rooms in Amar Niwas on rent where some of the workers of the society lived. 3. The premises above Snow-White had nto been taken on rent by the society but by its first two managers privately. 4. The society did nto vacate any premises in Simla after the coming into force of the Act.

(9) In the absence of any evidence on behalf of the petitioner herein pointing out the particular premises which the society had taken on rent and had vacated after the coming into force of the said Act, I am nto able to come to a conclusion different from the one arrived at by the Appellate Authority. The result, thereforee, is that it has nto been established on the record either that the society had taken the two rooms above Snow White on rent or that it had taken any toher premises and had vacated the same after the coming into force of the Act.

(10) I am, thereforee, left only with consideration of the question whether the society needs the seventh floor for its own occupantion. It is nto doubt true that the said Act has been passed for the prtoection of tenants. Nevertheless, a landlord can evict his tenant if he satisfies the conditions specified in section 13 of the said Act. I am concerned with a part of sub-section (3) of section 13 of the said Act which is in these terms:-

'(3)(A)A landlord may apply to the Controller for an order directing the tenant to put the landlord in posession- (i) in the case of a residential building, if- (a) he requires it for his own occupation ; (b) he is nto occupying antoher residential building in the urban area concerned; and (c) he has nto vacated such a building without sufficient cause after the commencement of this Act in the said urban area'

According to my findings recorded above, clauses (b) and (c) of sub- section(3)(a)(i) of section 13 cannto be relied upon by the petitioner herein as he has failed to prove that the society was occupying antoher residential building in Simla which they have vacated after the commencement of this Act without sufficient cause.

(11) In so far as clause (a) of sub-section (3) (a)(i) of section 13 is concerned, it merely provides that the landlord should require it for his own occupation. There is no doubt upon the evidence that the society requires the seventh floor of the building for their own occupation as as they state that their managers are going to live in it. The contention of the petitioner herein, however, is that this is nto a bona fide requirement because this requirement could have been fulfillled if the society had utilized the sixth floor which was a residential building and of which possession was given by the previous owner for the residence of their managers. It is further contended that the society nto only did nto utilize the sixth floor for the residence of their mamagers but they converted the sixth floor into a non-residential building. This conversion, according to the petitioner herein, shows that the claim of the society that it requires the seventh floor for the residence of its managers is nto bona fide. The contention on behalf of the society is that they have converted the sixth floor into a non-residential building and this they are utilizing for the purpose of their business of running a Coffee house and and by way of extension of its business. The fact is that the society is utilizing the sixth floor also for the purpose of its business. I have, thereforee, to proceed on the fotoing that the society had two requirements contemporaneously -(1) for the extension of its business which has in fact been extended to the sixth floor and (2) the toher for the residence of its managers. In this situation, is the requirement of the society in respect of the seventh floor to he subordinated to the need of the petitioner herein and can it be said that this requirement of the society is nto bona fide ?. It is ntoiceable that the said sub clause (a) has nto used the word 'bona fide' as it has been used in some toher Rent Acts e.g. the Delhi Rent Control Act 1958 but that omission does nto, to my mind, make any difference. What the landlord has to prove in his requirement or in toher words his necessity or need. On the evidence, his necessity or need cannto be doubted merely because he had also the necessity or need or even a wish to extend his business to toher portions of the premises. In Chattar Singh v. M/s Jamboo Parsad a Division Bench of the Punjab High Court observed :-

'ITmust be held that it is nto competent for a Rent Controller nto to order the eviction of tenants merely because the landlord has antoher building in his own occupation which is bona fide being used By Him For NON-RESIDENTIAL Purposes resulting in his need for residential building. It cannto be the intention of the Act to deprive a landlord of the legitimate use of his own building now in the hands of the tenants and the rights of the tenants are sufficiently prtoected by the Act.'

A Full Bench of the Punjab High Court has held in M/s Sant Ram Dass Raj Ka/ka v. Karam Chand Mangal Ram, that the word 'requires' involves something more than a wish and it has in it an element of need to an extent at least. If his needs in fact exist and are commensurate with his circumstances and it is found that the landlord has sought eviction of the tenant in good faith, then it is acasein which he requires the residential building from which he seeks eviction of the tenant for his own occupation. Mahajan J. of the Punjab High Court observed in the case reported in Arjan Singh v Jogindar Singh ;

'HOWcan the Rent Controller or the Appellate Authority enter the mind of an owner who wants his premises for his residence and find out if the need is there. They can only infer from facts. All that they are called upon to judge is whether the claim is genuine. and is nto merely a cloak to get the premises vacated. The owner is the true judge of his needs and no one candictate to him to stay at one place or antoher or to do business at one place or antoher.'

Dua J (as his Lordship then was) has held in the case reported in Bishan Singh v. Ram Parkash :

'THEquestion of the requirement of the landlord has in this connection to be looked at from a practical point of view and in the background of our social conditions ; and the expression 'his own occupation' does nto call for an unreasonably narrow, dogmatic or technical legalistic approach ; provided of course the claim of the landlord is genuine, honest and in good faith, nto inspired by a collateral or an oblique mtoive.'

In the case reported in Roop) Lal Mehra v. Smt. Kamla Soni, a Division Bench of the Punjab High Court dealing with the Delhi Rent Control Act of served:

'SOlong as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuinnes is of a reasonable man, it would nto be open to the Controller to weigh the claim of the landlord in a fine scale.'

In the case reported in B. K. Khanna v. M. R. Bitra there was only an intention of the landlord to use the residential accommodation in his possession as business premises resulting in a requirement for the premises which were in possession of the tenant. It was stated that merely because the landlord wanted to use the accomnodation in his possession for professional purposes could nto debar him from claiming the benefit of the provisions contained in clause (e) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958 The paramount consideration, thereforee, is whether the landlord needs the premises which are in the occupation of the tenant and his action against the tenant should nto be prompted by oblique mtoives. Upon the evidence in this case I am of the opinion that the society has established their necessity or need which does nto apppear to be prompted by any oblique mtoives and I am satisfied that if the society obtains possession of the seventh floor of the building, it will be used for the occupation of its managers.

(12) The learned counsel for the petitioner herein contended that the tenancy had nto been terminated by a ntoice as required by section 106 of the Transfer of Property Act. From the facts stated above it is apparent that a ntoice was served upon the petitioner herein and. in reply, he refused to comply with it. No specific plea has been raised in the written-statement with respect to section 106 of the Transfer of Property Act. In fact no issue was claimed upon it. The petitioner herein had, however, made an application before the Appellate Authority that in asmuch as no ntoice under section 106 of the Transfer of Property Act had been served, the petitioner herein could nto be ejected. The Appellate Authority had dismissed this application as having no substance. In the absence of any specific plea in this behalf, the Appellate Authority was justified in dismissing this application and I have nto permitted the counsel for the petitioner herein to raise this point in this revision.

(13) Under the circumstances, I dismiss the revision with costs. I, however, grant the petitioner herein three months time from today to vacate the premises in question.


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