Ajay Kumar and another vs Jagmohan Singh Bains

G.S. Sandhawalia, J.

C.M. No. 4798-CII of 2012

Application u/s 5 of Limitation Act for condonation of delay of 51 days in filing the recalling/restoration application is allowed in view of the averments made in the application which is duly supported by an affidavit.

CM. No. A799-CII of 2012

Application under Order 9, Rule 9 read with Section 151 CPC for recalling order dated 03.10.2011 and restoring the revision petition to its original number is allowed in view of the averments made in the application which is duly supported by an affidavit. Civil Revision petition is restored to its original number and the same is ordered to be heard on merits.

C.R. No. 2441 of 2011

The present revision petition filed by the tenant is directed against the order of the Rent Controller, Hoshiarpur dated 02.02.2010 and the Appellate Authority dated 08.02.2011 in which the ejectment petition was allowed on the ground of personal necessity of the landlord in the shop in question. The said order, as noticed above, was upheld in appeal. The case of the landlord-respondent was that the shop in question was let-out in the year 1973 for Rs. 100/- per month, and thereafter, the rent was enhanced lastly in October, 2002 to Rs. 400/- per month. The original tenant, Rattan Chand has died and the respondents were his sons, and therefore, there was a relationship of landlord and tenant. The ground of ejectment was that the landlord required the shop in question for setting up an academy of Foreign Language in the shop in dispute which was situated at Mahilpur and the landlord was originally resident of the said village. He was having a residential house at Village Mahilpur and had 4 shops in the same village which are now owned by Deepak Kumar in 2004 as he wanted to send his son to Canada. It is alleged that the landlord was employed in Punjab Agricultural University, Ludhiana as Assistant Professor in Foreign Language and retired on 31.12.2007 and wanted to set up an academy of Foreign Language as noticed above which would be of great utility for the residents of the area and knowledge of foreign language would be much helpful to them. He was owner of 3 shops near the bus stand. One shop in the possession of the respondents and the other 2 were let-out to Prem Sagar and Balram Krishan. An ejectment petition filed by the petitioner against Prem Sagar and Balram Krishan was allowed by the learned Rent Controller, Hoshiarpur. The appeal against the same has been dismissed by the Appellate Authority, Hoshiarpur and revision petition is pending in the High Court. Another shop was let out to Balram Krishan and on the 1st floor of these shops, there are 3 rooms, a kitchen and a bathroom. Two rooms were in possession of Ganesh Maghi and the third room and kitchen are in possession of the landlord. The said premises were let-out long time ago when the landlord did not require the same for his personal use. It is, accordingly, alleged that he is not in possession of any other premises nor vacated any such premises and sold the shop to Deepak Kumar for sending his son abroad.

The petition was contested on the ground that the applicant had never lived at Mahilpur or village Phalahi and since more than 35 years, he was living at Ludhiana where he owns a big kothi and he did not have any residential house at village Mahilpur or village Phalahi. It is, therefore, alleged that the shop had been sold to Deepak Kumar and he had retired from service more than 4 years back and never lived at the village Mahilpur and it is the only ground to get the shop vacated and such like academy does not run well in small town like Mahilpur.

The Rent Controller, Hoshiarpur, after taking into account evidence on the record, came to the conclusion that the landlord required the premises in question for his own personal necessity and the landlord being the best judge of his needs, it is not for the tenant to dictate the terms to him. The evidence has been brought on record that he had retired as Assistant Professor in Foreign Languages from Punjab Agricultural University, Ludhiana and after retirement he wanted to use his expertise in that field and serve the people of the area by opening an academy of Foreign Language and his bona fide should not be doubted. Accordingly, the ejectment application was allowed. The tenant filed an appeal before the Appellate Authority which was dismissed on 08.02.2011 and resultantly, the present revision petition has been filed.

Counsel for the petitioner contends that there was no bona fide since the landlord has sold one of the shops, and therefore, it would be clear that he does not require the premises in question. This submission is without any basis. The landlord has been very categorical in stating the fact that he sold one of the shops since he needed money for sending his son abroad. The said sale was in the year 2004 and present ejectment petition has been filed in February, 2007. The date of retirement, as noticed above, is 31.12.2007 from the Punjab Agricultural University. The intention of the landlord is to use the premises which is situated opposite to the main gate of Guru Gobind Singh Khalsa College for opening an academy of Foreign Language. The Courts below have noticed that there is a craze of people going abroad and wanting to learn foreign language and the bona fides of the landlord cannot be doubted. To prove his case, the landlord has examined as many as 9 witnesses. The fact remains that the landlord has all the qualifications to open an academy for which he needs the shop in question. The Appellate Authority has relied upon the judgment of the Hon''ble Supreme Court in ADIL Jamshed Frenchman (D) by LRs. Vs. Sardar Dastur Schools Trust and Others, to up-hold the ejectment order. The relevant observations of the Hon''ble Apex Court reads as under:

The decree of the trial court is based on the landlords'' bona fide requirement of the accommodation. In appeal, the question before the Court for adjudication is whether the trial court was justified in passing the decree in favour of the landlords on the ground of bona fide need and the tenants obviously are within their rights to show that the need of the landlords is not genuine. The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of landlords. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath Vs. Pooran Lal, this Court reiterated that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire.

Keeping in view the principles laid down in the above citations and perusing the judgments of the Courts below which would go on to show that the Courts below have taken into consideration the bona fide requirement of the landlord and it cannot be held that it was a mere pretext for evicting the tenant. It has also been noticed that during the pendency of the appeal, mesne profits had been fixed and the tenant failed to deposit the arrears of rent. The order dated 04.02.2011 fixing the mesne profits was not complied with and order passed by the Rent Controller, Hoshiarpur was up-held by the Appellate Authority, Hoshiarpur. It is now pleaded that the said amount will be deposited. It is too late in the day now to say that the said order will be complied with after more than one year has expired. Thus, on this account also, the tenant is not entitled for any further extention for vacating the shop in question. Accordingly, the present revision petition is dismissed.