Arvind Kumar and Another vs Sudesh Kumari

Jaswant Singh, J.—Petitioners(tenants) are in revision u/s 15(6) of Haryana Ur-ban(Control of Rent & Eviction) Act 1973(here-in after referred to as the "Act") against the concurrent findings returned by both the Authorities below, whereby ejectment application filed by the respondent-Sudesh Kumari-landlady on the ground of personal necessity to start a restaurant has been allowed by the learned Rent Controller, Panchkula vide its order dated 19.12.2011 and the findings thereof have been affirmed by the learned Appellate Authority, Panchkula vide its judgment dated 20.12.2012. In brief, facts of the case are that respondent(landlady) Sudesh Kumari filed an ejectment application of the petitioners(tenants) from the demised premises being a portion of the basement and ground floor of SCF No. 52, Sector 8, Panchkula on the ground that the same was required for personal requirement of herself, her husband Ashok Kumar as well as son Kunal Kharbanda because husband of landlady is not doing any job or business and was earlier a government contractor. It was also stated that her son Kunal Kharbanda is doing Hospitality and Commerce Cookery course from Australia after taking rupees 15 lacs as educational loan and thus the demised premises is required by the landlady and her family for running a restaurant business. It was also claimed that neither she nor her husband nor her children are occupying any other commercial non residential property in the urban area of Panchkula nor any suit property has been vacated. Thus, the present ejectment petition.

Upon notice, petitioners(tenants) appeared and filed written statement whereby it was stated that the husband of landlady is carrying on business in UP and the landlady along with her family members owned a showroom at Panchkula which was purchased by them in the year 2001 and same has not been disclosed in the ejectment application. Thus, there is concealment of facts. The necessity as alleged in the ejectment application was denied and prayer was made for dismissal of the ejectment application.

From the pleadings of the parties issues were framed. Both sides lead evidence and after appreciating their evidence learned Rent Controller, Panchkula allowed the ejectment application and the findings thereof were affirmed in appeal by the learned Appellate Authority, Panchkula. Hence the present revision petition.

I have heard learned Counsel for the petitioners(tenants) and have gone through the case file carefully with his able assistance.

Learned Counsel for the petitioners(tenants) has argued that the learned Courts below have failed to appreciate the fact that it was a specific case set out by the petitioners(tenants) in their written statement to the effect that the landlady along with her family owns a showroom in Sector 20, Panchkula which has not been disclosed by her in her ejectment application and thus, there is concealment of fact. It was also argued that as per the mandate of Section 13(3) of the Act, a positive pleading has to be there in the ejectment application qua the properties that are owned by the landlords/landlady and if the same have not been mentioned in the ejectment application, the ejectment application itself is bound to fail being not maintainable. It was also argued that the landlady has not lead any evidence so as to show that she is not the owner of a showroom in Sector 20, Panchkula. In support of his contention learned Counsel for the petitioners(tenants) has placed reliance upon Shankar Lal Vs. Madan Lal and Others, .

The next argument that has been raised by the learned counsel for the petitioners(tenants) is that in view of the ownership shown by the tenants in her written statement, it is presumed that the landlady was in occupation of a showroom in Sector 20, Panchkula and the said fact has been proved by the allotment letter Ex. P-16. Thus, it was argued that in view of the above mentioned facts, both the courts below ought to have dismissed the ejectment application and thus, the findings of both the courts suffers from perversity.

After hearing learned Counsel for the petitioners(tenants) and having gone through the case file carefully, this Court is of the considered opinion that present petition is devoid of any merit and the same deserves to be dismissed.

The first argument regarding non pleading of necessary ingredients as required u/s 13(3) of the Act is concerned, the same is absolutely misconceived because a perusal of Section 13(3) would show that the sole requirement under the said Section is to mention that the landlady is not in use and occupation of any other building. There is no requirement under the said Section that Landlord/landlady has to mention regarding buildings that are owned by the landlord. Thus in view of the clear cut provisions of Section 13(3) of the Act, the first argument is bound to fail and same is not tenable.

As far as the second argument regarding the landlady being in occupation of a showroom in Sector 20, Panchkula is concerned, on a specific query having been put by this Court to the counsel for the petitioners(tenants), Ex. P-16 was shown, whereby it is written in the said document that it is only an offer of allotment and as per Clause 6 of the said document, an offer of taking possession was given to the respondent (landlady). Furthermore, learned Counsel for the petitioners(tenants) has also made me go through the cross examination of the landlady, who has stated that the showroom in Sector 20, Panchkula was resumed for non payment of installment and it is a vacant site whose possession has not been delivered till date. In view of the categoric explanation given by the respondent(landlady) in her cross examination, coupled with the fact that there is no proof to the effect that the respondent(landlady) is in possession of the property in Sector 20, Panchkula, this Court has no hesitation in holding that the respondent(landlady) had rightly pleaded in her ejectment application of being not in possession of any other premises in the urban area of Panchkula and thus, no concealment of any material fact can be alleged on the part of the respondent(landlady).

As far as the judgment that has been relied upon by the learned Counsel for the petitioners(tenants) is concerned regarding non mentioning of shops under ownership of landlord in his ejectment application, thereby making himself liable for concealment, the said judgment is not applicable to the facts and circumstances of the case in hand and is also distinguishable on the law point itself. It has been held by a Co-ordinate Bench of this Court in Banwari Lal v. Ram Parkash & Anr. 2009 (2) RCR (Rent) 160 that a landlord can always prove the ingredients of Section 13(3) of the Act in evidence and if it is shown that no prejudice is caused to the tenant on account of non pleading of Section 13(3) of the Act, then petition cannot be rejected. Thus, the strict proposition of pleading of the ingredients in an ejectment petition has been diluted to a larger extent and the landlord is at liberty to prove the ingredients of Section 13(3) of the Act in its evidence itself, if it is shown that no prejudice is caused to the tenant.

In the present case, it can be seen, as has been discussed above that no prejudice whatsoever has been caused to the petitioners(tenants) on the ground of non pleading of ownership of a showroom in Sector 20, Panchkula and thus, the judgment relied upon by the learned Counsel for the petitioners(tenants) is not applicable to the facts and circumstances of the case in hand.

No other point was urged before me during the course of arguments. In view of the above, finding no merit in the present revision petition the same is hereby dismissed.