R.K. Jain vs Khazan Singh

M.M. Punchhi, J.—This is a revision petition at the instance of a tenant against whom an order of ejectment was passed by the Root Controller, Chandigarh, which has been confirmed in appeal by the Appellate Authority, Chandigarh.

The facts may be stated thus:

Khazan Singh landlord is the owner of House No 1209, Section 18-C, Chandigarh, and R. K. Jain is the tenant On May 25, 1977, the landlord filed an application for ejectment of the tenant on three grounds but ultimately confined his claim to gone ground, namely.-

That the Petitioner wants the demised premises for his personal use and occupation." To the above referred to avetmnent in the petition the tenant in his written statement averred:

It it stated that the Petitioner does not require the premises for his own use and personal occupation. The Petitioner is carrying on business in Ludhiana and settled in Ludhiana. The Petitioner wanted an increase of the rent to Rs. 450/- per month and the res-pondent did not agree to the said increase and as a consequence thereof the Petitioner has presented this petition in this Hon''ble Tribunal seeking....

This solicited replication from the landlord, who counter averred is under:

Petitioner wants himself to live in the house and lead a retired life peacefully. Petitioner is not active partner of any business at Ludhiana. Moreover by living at Chandigarh Petitioner wants to get himself treated at P. G I for his major defect in his right foot, because of which he cannot walk. Petitioner never asked the Respondent to increase the rent." The respective averments of the parties were not only supported by their evidence, but were improved upon. The landlord added that he felt insufficiency of accommodation when his daughters and children came during vacations and that his landlord at Ludhiana was pressing for the vacation of the house. He also added that his son works on his behalf in a factory where he is a sleeping partner and he does not go there personally. The tenant on the other hand stated that he had found the Petitioner to be limping by foot even in the year 1957, when the tenancy commenced tie claimed the application to be not bonafide. On that evidence the Rent Controller ordered eviction of the tenant Petitioner, relying upon the judgments of this Court in Shri Siri Ram Nagpal v. Shri Lal Chand and Anr. 1977 (2) Rent. L. R. 828 and Jagan Nath v. Sat Paul and Anr. 1977 (2) Rent L. R 614, which are to the effect that the landlord is entitled to the exercise of his choice of his living in his own house and with regard to insufficiency of accommodation he is the sole judge. Reliance was also placed on Kedar Nath Bhatnagar v. Shri Dharam Paui 1978 (2) RL. R. 614, wherein It has been held that the landlord is best judge of his requirement, to(sic) the same effect is Ajit Singh v. Tarhchan Singh 1977 (2) RL. R. 678, recognising the entitlement of the landlord to live comfortably in his house and of his being the sole arbitrator of his requirement.

The learned Counsel for the Petitioner vehemently contended that the approach of the Rent Control authorities In deciding the controversy between the parties was erroneous in law. Stressing the point he urged that the items of necessity pointed out by the landlord in bis petition and improved upon in his statement are only reflective of reasons or execuses on his behalf and are not sufficient to come within the ambit of the word "requires" used in Section 13 of the East Punjab Urban Rent Restriction Act. In support thereof he cited a decision of their Lordships of the Supreme Court reported in Phiroze Bamanji Desai v. Chandrakant M. Patel and others A I.R. 1914 S. C. 1059, wherein their Lordships have settled that the word "requirement" of a landlord seeking ejectment of a tenant must reflect an element of need and not a mere wish or want. The decision of their Lordships in Phiroze Bamanji Desai''s case (supra) was taken aid of in repelling a landlord''s contention by S. P. Goyal, J. in decision reported in Shri Rattan Chand Jain v. Shri Charan Singh(6). There the landlord''s assertion that the premises were required for nig grand children and also that he wanted to shift from his village to the town, was considered to be an ''excuse" and not an instance of "need" as laid down by their Lordships of the Supreme Court in Phiroze Bamanji Desai''s case (supra)

On the other hand the learned Counsel for the Respondent-landlord has contended that the Rent Controller as well as the Appellate Authority were conscious of the statutory obligation for the land -lord to prove his need for the premises in dispute. In particular he referred to the findings from the judgments which may be reproduced, one after the other, as under:

Rent Controller:

Learned Counsel for the Respondent cited Rottan Chand Jain v. Chat an Singh 1978 (1) R. C. R. 265, to argue that the statement of the landlord cannot be accepted unless there is element of need and not mere desire. However, in the present case the element of need is proved in as much as the patitioner wants to sad(sic) retired life in Chandigarh His landlord is pressing him hard to vacate the rented accommodation at Ludhiana and the Petitioner wants to get treatment of his fractureo leg in P. G I Chandigarh. I, therefore, hold that the Petitioner requires the demised premises for his own use and occupation."

Appellate Authority

It is true that the Court is not to look to the mere desire or wish of the landlord and it if bindly(sic) relied upon his statement must be satisfied about the bonafide need of the applicant. It is open to the tenant to raise an objection and bring some prima facie material on the record to show that the application is not a bonafide one. The Court cannot proceed with initial assumptions of lack of bonafide on the part of the landlord. In the present case, as already stated, the circumstances put up by the landlord were not assailed in cross examination or rebutted by evidence. The tenant has miserably failed to prove that the applicant even approached him for enhancement of rent.

Learned Counsel for the Appellant argued that the leg of the applicant was already fractured when he gave the house on rent to the Appellant. His client admitted that the applicant had a limping foot. The fact that the applicant took a decision to get himself treated at the P. G I. Hospital somewhat late is no ground to disbelieve him. It is emphasized that he is living in a small rented house along with his son at Ludhiana. It is quite probable that he bonafide wants to shift to his own spacious house at Chandigarh to lead a comfortable life disabled as he is. If the applicant''s witness admitted that sometimes he went to his small factory and did some business for an hour or so it does not show that he is embodied in business there and could not pull himself out. This is particularly so when the business is being managed by bit own son acting as a Manager.

As a result, therefore, I have no reason to doubt the bonafide of the landlord in making this application and seeking the relief....

(Emphasis supplied).

It Is suggested by the learned Counsel for the Petitioner that though the Rent Controller was aware of the element of need to be established by the landlord in order to pass the order of ejectment, the Appellate Authority has not adverted himself to this aspect of the case and has decided the case on mere probabilities and has not come to any certainty. Finding merit in the contention, I deem it proper to go through the pleadings of the parties and their evidence, extracts and indications of which have been reproduced in the earlier part of the judgment.

It requires determination as to what would be the spreading distance of the word "need" as used by their Lordships of the Supreme Court in Phimze Bamanji Desai''s case (supra) and that of the word "excuse" used by S. P. Goyal J. in shri Rattan Chand Jain''s ease (supra) From a given set of facts one court may spell an element of need and another an excuse, making it speculative. The sphere of the two words is obviously overlapping across their dividing line but an attempt has to be made to demarcate the same between the two. If appears that the element of need would signify the existence of such state of affairs that requires relief which cannot be well done without and it is the want of something which cannot be fulfilled except by the course sought to be adopted The degree of need, of courts, will vary from case to case but the absence thereof would make a sought for ejecement to be a mere excuse Thus the question which, necessarily, will in each case arise is whether the landlord wanting resumption of possession is pursuing a course, adoption of which he can or cannot well do without. The principle afore enunciated, has the effect of diminishing the sole judgment or arbitrariness of the choice of the landlord as to his requirements, as has been noted by the decisions of this Court, referred to earlier. As has been observed by S. P. Goyal, J. in Shri Rattan Chand Jain''s case (supra), that view cannot be said to be consistent with the view of the Supreme Court in Phiroze Bamanji Desai''s case (supra). The landlord has to travel a longer distance, much beyond the span of a mere wish, want or excuse, to enter Into the field of need for the possession of the demised premises without which he cannot well do. If this principle is applied to the averments in the pleadings and the statements of the parties, the case of the landlord has to falter. Out of the two grounds, which prevailed with the Rent Controller in deciding in favour of the landlord, one was that the landlord wanted to lead a retired life in Chandigarh. This is only reflective of a wish or desire by the landlord and not reflective of an element of need. The second ground which weighed with the Rent Controller was that the landlord was being pressed hard to vacate the rented accommodation at Ludhiana and the Petitioner wants to get treatment of his fractured leg at P.G.I , Chandigarh. The earlier part which is not In the pleadings, could net be looked into. The latter part that the landlord wanted to get treatment of his fractured leg in the P.G.I. is equally devoid of the element of need as it is in his evidence that bo never came to Chandigarh to seek medical assistance on an earlier occasion or that medical aid was not available at Ludhiana. This too is only reflective of a mere desire and net something with which he cannot do without, necessitating his treatment to let him be in Chandigarh. The Appellace Authority, as observed earlier, is again responsive to the desire of the landlord to get himself treated with the P.G.I. despite the fact that he has been limping of a foot, years ago when the house was given on rent. ''The probability of the landlord'', as observed by the Appellate Authority, ''that he bonafide wants to shift at his house at Chandigarh to lead a comfortable life, disabled as he is'', is again reflective of a wish or an excuse and not reflective of the need which will require disturbance of the tenant, protected under the provisions of the Bast Punjab Urban Rent Restriction Act.

On the evidence and the inferences drawn thereform, there dees not appear to be an adequate reason to the point of need, which would justify the maintenance of the order of the Appellate Authority. Consequently, this petition is allowed and the eviction petition of the land lord is dismissed, but with no order as to costs.