Sohan Devi vs Parkash Chander

Gokal Chand Mital, J.—On 15.12.1976, Smt. Sohan Devi filed a petition for ejectment of Parkash Chander tenant from a residential house in Chandigarh on the ground of personal necessity amongst others. The only ground pressed during the trial was of personal necessity. The Rent Controller and the Appellate Authority did not find any merit in the petition and dismissed the same. This is landlady's revision in this Court.

House No. 522, Sector 18-B, Chandigarh was constructed on two Kanal plot measuring 1000 Sq Yards by the landlady whereas she used to live in Jullundur City where her husband was practicing as a Doctor. The house was let out to the tenant originally at the rate of Rs. 195/- per month. The rent was raised to Rs. 310/- per month with effect from 18 1968 then to Rs. 375/- with effect from 1.10.1970 and finally to Rs 425/ with effect from 1.2.1971. Earlier to the present ejectment petition the landlady had filed a petition for ejectment on the ground of personal necessity on 7.12.1973 which application was dismissed by the Rent Controller on 24.9.1974. The husband of the landlady died on 13.2. 1975. In the present ejectment petition, the following facts were stated to seek eviction on the ground of personal necessity:

(b). That the Petitioner is in bonafide need of the kothi in dispute for her own use and occupation and for her family members. (Thereafter, the facts regarding the filing of the first ejectment application were mentioned and the result of the Rent Controller and the Appellate Authority and the circumstances under which the same was dismissed, were stated.) Then it was stated as follows:

4...The circumstances have since been changed as the husband of the Petitioner has died on 13 2.1975 and it is not possible for the Petitioner to continue living in the present state of affairs at Jullundur.

That Sh. Kewal Krishan Ohri son of the Petitioner, who was away to West Germany for the last more than 15 years, is returning to India and he is to live with the Petitioner in the house in dispute. The said son of the Petitioner is returning to India due to the changed circumstance mentioned in the petition, i. e., due to the death of Sh. Shankar Dass Ohri, husband of the Petitioner.

The tenant contested the petition and pleaded about the enhancement of rent from time to time. It was pleaded that the landlady wanted to increase the rent and the previous application for ejectment was dismissed by the Rent Controller on that ground. As regards the changed circumstances, it was mentioned that the death of the husband was wholly immaterial as two sons of the Petitioner were well settled at Jullundur where she was living, one son being Ved Parkash Ohri who was running a Chemist Shop and the other son being Dr. Sudirilran Kumar Ohri who was having a well established Maternity Hospital where his wife was also working. In the absence of the husband at the old age, it was proper for the old landlady to stay with her sons at Jullundur rather than to shift to Chandigarh and live alone in the house On all these facts, it was stated that the application for ejectment was malqfide. In replication filed by the landlady she stated as follows:

4(i) That the applicant requires the building for her own bonafide use and occupation as the applicant was to settle at Chandigarh with her family. The husband and the son of the applicant are highly qualified and competent doctors and are doing their medical practice at Jullundur City. They have decided to start a clinic and a nursing home at Chandigarh as well.

When evidence was led, the reason to shift to Chandigarh from Jullundur City was shifted from the pleas taken in the ejectment petition. This will be clear from the statement of the landlady who appeared as A.W-1. The true translation of the relevant portion of the same is as follows:

My son who works in Germany had fallen ill. Now he has come to India. I want to keep him with me in the house in dispute my daughter-in-law do not behave well with me and, therefore. I do not want to stay there (Jullundur). After the death of my husband, I do not want to stay there.

Cross-examination: It is correct that during the lifetime of my husband, I used to live with him in our Jullundur house. My husband during his lifetime had given the Jullundur house to my son Ved Parkath. In Jullundur sometimes I live with Ved Parkash and sometimes with Dr. Sudarshan. Dr. Sudarshan is separate for the last 12 years whereas Ved Parkath used to live in one portion of my husband's house. My son, who used to live in Germany, had been remaining very ill for the last one year. Before this, he was never ill. He has diabetes and cannot do any work. His wife and children have also now started living with me. I have decided to live in Chandigarh house a year ago because my younger ailing son is neither being kept by his brothers nor is being got treated and I will get him treated after living in the house in dispute. During the last one year, I have net shown my ailing son to any Doctor.

The statement of landlandy's son Kewal Krishan was recorded as A. W-2. The relevant portion of his statement is as follows:

I am in Germany for the last 20 years and have come to India only a few weeks back, i.e., about a months 1 want to stay in India with my mother because my health does not permit me to go abroad again. I am diabetic which disease was diagnosed about (missing) age. It was diagnosed in Germany. I have been told that the diseases which I had, will be more in a cold country like Germany and as such I have decided not to go to Germany now.

Cross-examination I want to reside in India with my mother firstly because I am ill and I have decided finally not to return to Germany; secondly, because after the death of my father my mother remains upset and she does not want to live in Jullundur ami thirdly because her other daughters-in-law are rot cordial. My wife is Indian. At the moment I1 have no work in Jullundur or in Chandigarh and want complete rest My mother has some cash etc. with her from which she will have her source of income. She has no other income from any other immovable property except house in dispute. I am getting treatment at Jullundur. I am getting treatment from one Dr. Sharma. Dr. Sharma, who probably practises near Press Trust of India, Jullundur but I am not sure about his exact place of working. He has examined twice and thrice in the Ohri Maternity Home of my brother because Dr. Sharma is consultant to my brother. My mother had visited me in Germany in July, last year and it was decided at that time that I should live with her in India- These days my mother, myself and my children are also living with Dr. Sudarshan my brother....

From a reading of the averments in the ejectment petition and the realication, it is clear that pleas were different, whereas the evidence led is regarding totally different facts.

It was vehemently argued before me that Kewal Krishan and his family were still in India and were living at Jullundur. The intention of the landlady and of his family to shift to Chandigarh was emphasised during arguments Since six year had elapsed from the date of recording the evidence of the landlady and her son by now, I asked the counsel for the landlady to file an affidavit to the effect that Kewal Krishan alongwith his family was still living in Jullundur and as to what he had been doing for the last six years and what was the condition of his health An affidavit of the landlady dated 26.10.1983 was filed before me wherein it was deposed that Kewal Krishan Ohri on return from Germany was residing at Jullurdur and he had set up export business in the name of M/s. Simi's Navin Exports, of which he was the sole proprietor. The facts regarding the obtaining of Export Code No. etc. were stated and some documents were annexed. It was stated that the deponent's son had no permanent residence at Jullundur and was staying as guest with his brothers or ether relations Opportunity was given to the tenant to file the counter affidavit The tenant filed an affidavit dated 3.11.1983. A reading of the same showed that when the tenant went to Jullundur to make enquiries it revealed that Kewal Krishan Ohri the youngest son of Sohan Devi, was not residing at Jullundur and the averments contained in her affidavit were termed as containing wrong facts. It was further deposed that the enquiry revealed that he was still abroad along with his wife and children. As regards the alleged export business it was stated that a sign board of M/s. Simi's Navin Exports was hung on the boundary wall of Ohri Maternity Hospital which was owned by Sudarshan Kumar Ohri and since Kewal Krishan was not residing there, the question of his carrying on the export business did notarise. In view of the affidavit of the tenant that Kewal Krishan and his family did not reside in Jullundur, the Learned Counsel for the landlady was asked to deny the statement of fact contained in the tenant's affidavit and on denial, to produce at least Kewal Krishan in Court The Learned Counsel for the landlady sought instructions from Sudarshan Kumar Ohri, the other son of the landlady, who was present in Court. After obtaining instructions from him, the Learned Counsel for the landlady stated at the bar that few weeks ago., Kewal Krishan bad gone abroad in connection with his business. Then question was asked as to where his wife and children were living. He again sought instructions and stated at the bar that they had also accompanied him. On further being questioned, no exact date of departure was disclosed, nor could he disclose as to where he had gone. Sudarshan Kumar Ohri tried to give vague instructions to the counsel for the landlady and stated that about six weeks to two monts ago, they had gone abroad but he was not sure as to which country they had gone or which countries they would visit and when they would be back. Obviously, the affidavit dated 26.10.1983 filed by the landlady stating that Kewal Krishan is temporarily residing at Jullundur, is totally false

The concurrent finding recorded by the two Courts below that there is no bonafide need of the landlady to occupy the house, is further strengthened by the aforesaid facts that probably Kewat Krishan came to India temporarily for a couple of months and after making statement in Court, went back. If that is so, then obviously, there is no bonafide need of the landlady to live all alone in Chandigarh, for away from her two married sons at Jullundur with no tuning income to make her both ends meet. It appears that the abetment petition was filed cither to have the rent increased and in case order of ejectment is passed, to sell away the lame at a higher price because in case the sale takes while the tenant is living, that much price would not be fetched.

8 For the reasons recorded above, 1 do not find any merit in this revision petition and the same is hereby dismissed with no order as to costs.