Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revision No. 1189 of 2003 (O&M).

Judges

M.M Kumar, J.

Acts

sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity, the Act)
Order 41, Rule 27 of the Code of Civil Procedure, 1908
Order 41 Rule 27 of the Code
Section 2(d)
Section 2(g)

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Smart Summary

Structured Summary of the Opinion (M.M. Kumar, J.)

Factual and Procedural Background

This is a tenant's petition filed under sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 challenging concurrent findings of fact recorded by both lower courts. Both Courts below had held that the demised premises were bona fide required by the landlord-respondent for his personal use and occupation because of the advanced age of the landlord and the ill-health of his wife. The Rent Controller and the Appellate Authority found that the landlord is about 70 years old, had suffered a fractured leg in an accident making it difficult to continue staying on the first floor, and that his wife suffers from heart disease and has been advised not to climb stairs (medical evidence Ex. P1). The Rent Controller also found the demised premises to be part of a residential building and noted that conversion to non-residential use would have required permission under Section 11 of the Act. The tenant filed an application under Order 41, Rule 27 CPC to bring subsequent events on record (two ejectment orders dated 15.10.1999) which the Court refused to admit at the belated stage.

Legal Issues Presented

Whether the landlord-respondent bona fide requires the demised premises for his personal use and occupation within the meaning of Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
Whether the demised premises is a residential or non-residential building for the purposes of the Act and whether conversion (if any) to non-residential use without permission under Section 11 affects the landlord's right to eject the tenant for personal occupation.
Whether subsequent events (two ejectment orders dated 15.10.1999) could be admitted under Order 41, Rule 27 CPC at the late stage and, if admitted, whether they materially affect the landlord's claim of personal necessity.

Arguments of the Parties

Appellant (Tenant) — Mr. O.P. Gupta

The demised premises is a hall measuring 60' × 24' let by rent note dated 14.10.1965 (Ex. D1) for book binding and printing press; thus the premises is non-residential and cannot be occupied by the landlord for personal residential use.
There is no evidence that the demised premises has residential appurtenances such as a bathroom-cum-toilet or a kitchen, which are necessary constituents of a residential building.
Another room on the ground floor was vacant and the landlord owned other premises (opposite State Bank of India, Kabari Bazar, Ambala Cantt), suggesting alternative accommodation was available to the landlord.
The Rent Controller erred in presuming the premises to be residential and in holding that conversion from residential to non-residential required permission under Section 11 of the Act.
An application under Order 41, Rule 27 CPC sought to adduce two ejectment orders dated 15.10.1999 to show additional accommodation had become available to the landlord; these events were relied upon to challenge the landlord's claimed need.

Respondent (Landlord)

The landlord and his wife reside on the first floor; the landlord is about 70 years old and has suffered a fractured leg in an accident, causing difficulty in climbing stairs.
The landlord's wife suffers from heart disease and hypertension and has been under continuous treatment by cardiologist Dr. A.K. Jain (examined as PW1), who certified that she was advised not to climb stairs (medical certificate Ex. P1).
Given their advanced age and illnesses, the landlord bona fide requires the ground-floor premises for his and his wife's residence for their comfort and convenience.
The landlord maintained that he had no suitable alternative residential accommodation that could meet these needs, and the choice of which accommodation to occupy is the landlord's prerogative.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (2) RCR (Rent) 141 (SC)	Analysed the concept of "bona fide requirement" and laid down an objective test to determine whether a landlord's need is genuine; explained that bona fide refers to a sincere, honest felt need and that the court should place itself in the landlord's position to ask whether the need is natural and real.	The Court applied the test set out in this case to the facts (advance age, fractured leg, wife's heart disease and medical evidence) and concluded the landlord's necessity was genuine and bona fide.
M.M. Quasim v. Manohar Lal Sharma, 1981 (3) SCC 36 : 1981 (2) RCR (Rent) 74 (SC)	Expressed a view consistent with the bona fide requirement doctrine (as cited by the Court).	Cited as authority supporting the Court's inclination not to interfere with the lower courts' findings on bona fide necessity.
Ram Dass v. Ishwar (deceased), (1988) 3 SCC 131	Supporting authority on principles related to bona fide requirement and ejectment on that ground.	Referred to as part of the cluster of Supreme Court decisions endorsing the objective approach to bona fide requirement relied upon by the Court.
Sarla Ahuja v. United Indian Insurance Company, 1998 (2) RCR (Rent) 533 (SC) : (1998) 8 SCC 119	Another Supreme Court authority cited on matters relating to landlord's bona fide requirement and related rent-control principles.	Relied upon to support the conclusion that the landlord's claim of personal necessity withstands judicial scrutiny.
Prativa Devi (Smt) v. T.V. Krishnan, (1996) 5 SC 353	Authority consistent with the established principles concerning bona fide requirement and ejectment.	Cited in support of the Court's decision not to disturb the concurrent findings below.
Atma S. Berar v. Mukhtiar Singh, 2003 (1) RCR (Rent) 42 (SC) : (2003) 2 SCC 3	Set out three riders governing the Court's power to take note of subsequent events: (1) promptness in bringing the subsequent event to the court's notice; (2) compliance with procedure and affording the opposite party an opportunity to meet the events; (3) the subsequent event must have a material bearing on the right to relief.	The Court applied these three requirements to refuse the tenant's belated application under Order 41, Rule 27 CPC to bring two ejectment orders (dated 15.10.1999) on record, holding that the application failed the tests (not promptly filed, procedural inadequacy, and no material bearing demonstrated).
Hari Mittal v. B.N. Sikka, 1986 (1) RCR (Rent) 92 (P&H) (Full Bench) : AIR 1986 (Punjab & Har.) 119	Held that a residential building which has a small shop or room used as a shop does not lose its residential character; dominant purpose is the key test.	The Court relied on this Full Bench authority to support the holding that the demised premises retained the character of a residential building despite some non-residential usage.
Hem Raj v. Ramesh Kumar Khosla, 1994 (3) PLR 374	Followed the principle that small non-residential use does not necessarily denude a building of its residential character.	Cited as a supporting decision consistent with the Full Bench view when concluding the premises was residential.
Surjit Singh Arora v. Harbans Singh, (1989-1) 95 PLR 6	Held that a landlord cannot convert a residential building into a non-residential building without permission of the Rent Controller under Section 11 of the Act.	The Rent Controller's observation (quoted in the opinion) relied on this decision to support the view that permission under Section 11 is required for conversion; the High Court endorsed the Rent Controller's approach.
Sarla Arora v. United India Insurance Co., 1999 Haryana Rent Reporter 58/59 (P&H); State of Haryana v. Ved Parkash Gupta, 1999 Haryana Rent Reporter (SC) 96/97	Cited as recent pronouncements that controversies have been settled and that non-residential premises can be got vacated for residential purposes on the ground of bona fide necessity (as per the Rent Controller's note).	The Court referenced these pronouncements as reinforcing the proposition that bona fide necessity may justify vacating even non-residential premises for residential occupation.

Court's Reasoning and Analysis

The Court performed a step-wise application of law to the facts as follows:

Credibility and findings below: The Court began by noting the concurrent factual findings of the Rent Controller and the Appellate Authority that the landlord and his wife are elderly (about 70 years), the landlord had a fractured leg in an accident making stair-climbing difficult, and the wife suffers from heart disease and hypertension and had been advised by her treating cardiologist (Dr. A.K. Jain, PW1) not to climb stairs. The Court held those findings could not be interfered with.
Application of the bona fide test: The Court invoked the Supreme Court's analysis in Shiv Sarup Gupta to apply an objective test for "bona fide requirement" — asking whether the landlord's need was natural, real and sincere rather than a mere pretence. On applying that test to the facts (medical evidence, advanced age, fractured leg), the Court concluded the landlord's need was genuine.
Character of premises — residential vs non-residential: The Court examined statutory definitions in Sections 2(d) and 2(g) of the Act, noting that dominant purpose governs whether a building is non-residential. The Court observed that a small portion being used for business does not denude a building of its residential character if the dominant use is residential. Relying on a Full Bench decision (Hari Mittal) and similar authorities, the Court held that the demised premises is part of a residential building.
Conversion and Section 11: The Court recorded the Rent Controller's finding that to convert a residential building into non-residential use permission under Section 11 was required, and cited Surjit Singh Arora in that context. The Court accepted the lower courts' approach on this point.
Application to admit subsequent events (Order 41, Rule 27 CPC): The Court considered the tenant's belated application to place two ejectment orders dated 15.10.1999 on record. Applying the three riders from Atma S. Berar, the Court found the application defective: the subsequent events were not shown to have been brought promptly, there was no adequate procedural compliance or opportunity shown for the opposite party to meet the events, and the orders did not demonstrate that accommodation had in fact become available to the landlord or materially undermined the landlord's claim. Given these defects and the unsatisfactory explanation for delay, the Court refused to admit the additional evidence.
Overall assessment and deference: The Court emphasized that the landlord is the best judge of his needs and that where bona fide need is proved objectively the landlord's subjective choice of accommodation is to be respected. Considering the facts and precedents, the Court declined to disturb the concurrent findings of the lower courts.

Holding and Implications

HOLDING: The petition is dismissed. The High Court upheld the concurrent findings of the Rent Controller and the Appellate Authority that the landlord-respondent bona fide requires the demised premises for his own use and for the occupation of his wife, and that the premises is a residential building.

Implications:

Direct effect on the parties: The tenant's challenge fails and the landlord's claim of bona fide personal necessity is sustained. The eviction/ejectment decision in favour of the landlord stands as affirmed by this Court.
Evidence and procedural takeaway: The Court refused to admit belated subsequent events under Order 41, Rule 27 CPC because the application did not satisfy the three requirements laid down in Atma S. Berar (promptness, procedural compliance/opportunity to the opposite party, and material bearing on the right to relief).
Broader precedent: The opinion relies on established Supreme Court and High Court authorities to apply settled tests (bona fide requirement and characterisation of residential vs non-residential usage). The opinion does not announce any novel legal principle; it affirms and applies existing precedents and therefore does not set a new precedent beyond those relied upon.

Disposition: Petition dismissed.

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Raj Kumar Gambir Petitioner v. Kanwar Sain Jain

M.M Kumar, J. — This is tenant's petition filed under sub-section (6) of Section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity, the Act) challenging the concurrent findings of facts recorded by both the Courts below holding that the demised premises are bona fide required by the landlord-respondent for his personal use and occupation because of the old age and illness of the wife of the landlord-respondent. It has also been found that the landlord-respondent is about 70 years of age and on account of his fractured leg in an accident it is difficult for him to continue staying on the first floor. He has also proved the fact that his wife has developed heart problem and climbing stairs by her is not possible. The findings recorded by the Rent Controller on the question of personal necessity which are affirmed by the learned Appellate Authority read as under :—

“24. Now the crucial question thus arises for determination is whether evidence placed on the file by the petitioner is sufficient to hold the personal necessity of the petitioner regarding tenancy premises. Petitioner examined Dr. A.K Jain, as PW1 he categorically deposed that Pushpa Jain wife of Kanwar Sain Jain is under his treatment for the last 1/2 years and he placed medical certificate Ex. P1. She was advised not to climb the stairs of the house.”

25. “It has come in the evidence of the petitioner as well as respondent that petitioner along-with his wife is residing on the first floor of the house. Respondent admits in his cross examination that petitioner is residing on the first floor and he is not having any residential accommodation on the ground floor. The case of the petitioner is that he requires the ground floor as his wife is suffering from blood pressure and heart problem, xx xx xx xx xx xx xx.

26. Having gone through the contentions raised by both the counsels and after scanning the evidence placed on file by both the parties, this court is of the view that landlord in the circumstances of the present case, bonafide requires the premises for his own use and occupation. His wife is a heart patient and is suffering from hypertension and she has been advised by the doctor to live on the ground floor, therefore, contention raised by learned counsel for the petitioner that premises in question is required for bonafide necessity, is having sum substance and tenable.”

2. The findings of facts as to whether the demised premises are residential or non-residential, the learned Rent Controller has held that the demised premises is a part of the residential building and even if it was rented out by him for a non-residential purpose, the landlord-respondent is entitled to eject the tenant-petitioner for use of building as his residence.

3. Mr. O.P Gupta, learned counsel for the tenant-petitioner has argued that the demised premises is a hall measuring 60′ × 24′ which was let out by the landlord-respondent to the tenant-petitioner vide rent note dated 14.10.1965 Ex.D1 for the purpose of book binding and printing press. According to the learned counsel, the demised premised is not a residential building and therefore, cannot be occupied by the landlord-respondent for his personal use. The learned counsel has also pointed out that there is no evidence showing that the demised premises is a residential building as there is neither any bath room-cum-toilet nor any kitchen which are necessary constituents of a residential building. The learned counsel has further argued that another room on the ground floor was lying vacant and that the landlord-respondent was in possession of a building opposite to State Bank of India, Kabari Bazar, Ambala Cantt. The learned counsel emphasised that the Rent Controller has raised an unwarranted presumption that the demised premises was a residential building and its conversion from residential to non-residential was in violation of section 11 of the Act. The basis of his submission is the purpose for which the building was let out vide rent note dated 14.10.1965 which specified book binding business and printing press. The learned counsel has also highlighted that in the application filed by the tenant-petitioner under Order 41, Rule 27 of the Code of Civil Procedure, 1908 for adducing additional evidence two ejectment orders dated 15.10.1999 passed by the Rent Controller, Ambala Cantt, would show that additional accommodation has become available to the landlord-respondent.

4. Having heard the learned counsel at considerable length and perusing the judgments of both the Courts below, I am of the considered opinion that the findings of facts on the question of personal necessity of the landlord-respondent cannot be interfered with. It has been categorically held by both the courts that the landlord-respondent had met with an accident and got his leg fractured which must be causing extreme inconvenience to him to climb staircase for going up and down on the first floor. It has also been concurrently found by both the Courts below that the wife of the landlord-respondent is suffering from heart problem and she is under the continuous treatment of a cardiologist namely Dr. A.K Jain who had appeared as PW. 1. Both landlord-respondent as well as his wife are about 70 years of age. In the evenings of their lives it will not be fair to deny them comfort of living in their own house in accordance with their desire and convenience. It is well-settled that the landlord is the best judge of his needs and interest. The tenant does not have much say in that decision of the landlord. In the present case, the circumstances showing illness of both of the landlord-respondent and his wife coupled with the fact that they are in the advance age, would further lead to the conclusion that the necessity of the landlord-respondent is genuine and cannot brook any further delay. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (2) RCR (Rent) 141 (SC), the Supreme Court analysed the concept of bona fide requirement. Laying down the test for objective determination of bonafide requirement of the landlord, their Lordships of the Supreme Court observed as under :—

“13. Chambers 20th Century Dictionary defines bona fide to mean “in good faith; genuine”. The word “genuine” means “natural; not spurious; real; pure; sincere”. In Law Dictionary, Monzley and Whitley define bona fide to mean “good faith, without fraud or deceit”. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by “requires” is much more higher than in mere desire. The phrase “required bona fide” is suggestive of legislative intent that a mere desire which is the outcome of whim of fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny it judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more then one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose. The court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of the life. And approach either too liberal or too conservative or pedantic must be guarded against.”

5. Similar view has been taken by the Supreme Court in the case of M.M Quasim v. Manohar Lal Sharma, 1981 (3) SCC 36 : 1981 (2) RCR (Rent) 74 (SC), Ram Dass v. Ishwar (deceased), (1988) 3 SCC 131, Sarla Ahuja v. United Indian Insurance Company, 1998 (2) RCR (Rent) 533 (SC) : (1998) 8 SCC 119, Prativa Devi (Smt) v. T.V Krishnan, (1996) 5 SC 353 and Atma S. Berar v. Mukhtiar Singh., 2003 (1) RCR (Rent) 42 (SC) : (2003) 2 Supreme Court Cases 3. Therefore, I am not inclined to interfere in the findings of facts recorded by both the Courts below.

6. The question whether the demised premises is a residential or non-residential building, would pale into insignificance if the definition of non-residential building incorporated in Section 2(d) and residential building in Section 2(g) is taken into consideration. Both the definitions read as under :—

“2(d) “non-residential building” means a building being used—

(i) mainly for the purpose of business or trade; or

(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there :

Provided that if a building is let out for residential and non-residential purposes, separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building.

Explanation. - Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence. (Emphasis added)

2(g) “residential building” means any building which is not a residential building :”

7. A perusal of the definition of expression “non-residential building” shows that the dominant purpose for which the building is being used, has to kept in view. The explanation appended to clause (d) of Section 2 further shows that if the small portion of the building is used for residential purposes, the dominant purpose being business or trade, the building will continue to be “non-residential building”. If the facts of the present case are examined in the light of the definition given in clause (g) of section 2, it becomes evident that the dominant purpose for which the building being used, is residential. The landlord-respondent has been residing on the first floor. It is common knowledge that the residential building which has a room on the road side, is used and let out for a small shop but that itself would not denude its character of a residential building. This view has been held by a Full Bench of this Court in the case of Hari Mittal v. B.N Sikka, 1986 (1) RCR (Rent) 92 (P&H) (FB) : AIR 1986 (Punjab & Har.) 119 and it has also been followed in a case from Punjab namely, Hem Raj… v. Ramesh Kumar Khosla…., 1994 (3) PLR 374. Moreover, the findings of both the Courts below are that it is a residential building and in order to convert it to a non-residential house, permission under section 11 of the Act was required to be obtained from the Rent Controller. The observation of the Rent Controller in this regard read as under :—

“It is clear that the residential building is let out by a landlord for non-residential purpose even then landlord is entitled to eject the tenant for his residence. In case Surjit Singh Arora v. Harbans Singh, (1989-1) 95 PLR 6, wherein it was held that landlord cannot convert residential building into a non-residential building without the permission of the Rent Controller as required under Section 11 of the Act. It is also held that where a residential building is let out by a landlord for non-residential purpose, even then landlord is entitled to eject the tenant for his residence. As per the latest pronouncements of Hon'ble Supreme Court and our own Hon'ble High Court recorded in cases titled Sarla Arora v. United India Insurance Co., 1999 Haryana Rent Reporter 58/59 (P&H) and State of Haryana v. Ved Parkash Gupta, 1999 Haryana Rent Reporter (SC) 96/97, controversies have been set at naught and it has been held that even a non-residential premises can be got vacated for residential purposes on the ground of bonafide necessity. There is no evidence on the record that petitioner owns any other house at Ambala which he can occupy. The landlord is the sole arbiter of his choice. It is for the landlord to choose were he will put up. It is not for tenant to impose upon the landlord his choice. It is amply proved on the file that wife of the petitioner is a heart patient and whereas the petitioner has required the ground floor for his personal necessity and bonafide requirement. Apart from this, petitioner had also met with an accident and got his leg fractured and he experiences continuous difficulty in going up and coming down the stairs of the residential portion. The requirement of the petitioner is bonafide. Hence, this issue is decided in favour of the petitioner and against the respondent.”

8. Therefore, I do not find any ground to deviate from the conclusion that the demised premises is a “residential building” and is bona fide required by the landlord-respondent for his own occupation as well as the occupation of his wife.

9. The application filed under Order 41 Rule 27 of the Code for bringing on record subsequent events, cannot be considered at this belated stage because it fails to satisfy the three requirements laid down by the Supreme Court in the case of Atma S. Berar's case (supra). It has been held by their Lordships that “the power of the Court to take note of subsequent events is well-settled and undoubted. However, it is accompanied by three riders; firstly, the subsequent event should be brought promptly to the notice of the court; secondly, it should be brought to the notice of the court consistently with the rules of procedure, enabling the court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events and thirdly; the subsequent event must have a material bearing on rightto relief of any party. None of the two orders dated 15.10.1999 Annexure P.1 and P.2 placed on record alongwith the application would show that the accommodation has become available to the landlord-respondent and the ejectment order passed by the Rent Controller in respect of House No. 62/14, Idgah Road, Ambala Cantt has been occupied by him. No dent has been caused in the claim of the landlord-respondent to occupy the demised premises by the aforementioned two orders of even date passed in his favour. The other requirement that the application should have been filed promptly, has not been satisfied. Both the orders were passed on 15.10.1999 and no substantive explanation has been tendered to explain the delay. It has not been explained as to whether any appeal has been filed against these two orders alongwith their result, such being the unsatisfactory circumstances surrounding the application for additional evidence, I am not inclined to permit adducing of such evidence at this stage especially for the reason that the landlord-respondent and his wife are unwell and old in age. The application therefore, deserves to be dismissed.

For the reasons stated above, this petition fails and the same is dismissed.

Petition dismissed.

Raj Kumar Gambir Petitioner v. Kanwar Sain Jain

Structured Summary of the Opinion (M.M. Kumar, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Tenant) — Mr. O.P. Gupta

Respondent (Landlord)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Raj Kumar Gambir Petitioner v. Kanwar Sain Jain

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