Himachal Pradesh High Court
Naresh Goyal vs Hemlata Sharma on 27 December, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 33 of 2023
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Date of decision: 27.12.2023
Naresh Goyal. ...Petitioner/Tenant.
Versus
Hemlata Sharma. ...Respondent/Landlord.
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Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioner:
rt Mr.Navneet K. Bhalla, Advocate.
For the Respondent: Mr.Sudhir Thakur, Senior Advocate, with
Mr.Somesh Sharma, Advocate.
Vivek Singh Thakur, Judge
Present Revision Petition, invoking provisions of Section 24 (5)
of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the
'Rent Act'), has been preferred against judgment dated 4.1.2023 passed by
Appellate Authority-III, Solan in Rent Appeal No. 4ADJ-II/14 of 2022, titled
as Naresh Goyal Vs. Hemlata Sharma, whereby order of eviction dated
14.6.2022, passed by Rent Controller, Solan in Rent Case No. 20/2 of 2014,
titled as Hemlata Sharma Vs. Naresh Goyal, ordering eviction of tenant from
the demised preemies, has been affirmed.
2. For convenience, parties hereinafter shall be referred
according to their status before the Rent Controller, i.e. respondent herein
as landlord and petitioner herein as tenant.
3. Landlord preferred a Rent Petition seeking eviction of tenant
from non-residential premises, on the ground that she was owner in
possession of two storied building, first floor whereof was being used by her
for residential purposes, whereas two shops in ground floor were rented out
to two different persons, one shop to present tenant Naresh Goyal and
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
another to Vineet Goyal. Landlord had preferred two different Eviction
Petitions against both tenants on the ground that she and her husband
alongwith their son Sanjeev, were intending to do business of readymade
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garments by using experience of her son in association with son and
husband, for which both commercial shops were required by landlord and
her family members for own use and occupation. Landlord, at the time of
filing Rent Petition, in the year 2014 was 67 years old and her husband was
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75 years old. There was no one to look after them, who were old and ailing
and in these circumstances their son Sanjeev had to shift to Solan from
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Delhi, who earlier was doing the business of readymade garments in Mexico
since 1997 till 2013 and had left the place to join the company of his parents
to look after them because another son Sanjay Sharma was working in
Nokia Siemens as Manager at Gurgaon and was residing there. It was
further stated that landlord had not acquired any such building without
sufficient cause within five years after commencement of the Act in the
same urban area and was not occupying any other commercial building,
except two shops referred supra and thus landlord was in bonafide need for
the purpose of carrying out her own business as proposed.
4. It was also stated that Tenant was owner of three storied
building at Jaunaji Road, Solan, had taken five stores/shops on rent in Solan
town out of which two were in Jaunaji Road, one in Kasai Galli and two
Godowns in Sanatan Dharam Mandir Market Complex Solan and all these
stores cum shops were near to the premises in reference and thus Tenant
was having sufficient accommodation for his own occupation.
5. In response, Tenant had claimed that landlord was having four
other shops in the same floor of the building in reference and thus was
having sufficient accommodation to run her business as proposed and thus
it was denied that the shop in reference was best suited for the business to
be run by the landlord. It was contended on behalf of tenant that building
owned by him is residential and was not located in the commercial area of
Bazar with further averments that having rented accommodation for
Godowns at various places, did not mean that tenant was having sufficient
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accommodation for running his business.
6. After taking into consideration pleadings and evidence on
record, Rent Controller had passed eviction order against the tenant on the
ground of bonafide requirement, for personal use and occupation.
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7. In instant Revision Petition, it has been contended on behalf of
tenant that both the Courts below have committed illegality by appreciating
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and preferring oral evidence over the documentary evidence by ignoring Ex.
PW-2/B, which was showing that there were no Godowns, but shops were
available with the landlord in the ground floor; that landlord did not appear in
evidence in person, but her husband being her General Power of Attorney
Holder had appeared in evidence; that landlord has made false averments
related to provisions contained in Section 14(2) and 14(3) of the Rent Act;
the son for whose requirement premises is required, was not examined;
ingredients of Section 14(3)(d) of the Rent Act were not pleaded; principle
that landlord is best judge of his need has been applied in mechanical
manner, ignoring the fact that landlord did not disclose other alternative
accommodation in her possession with equal amenities and facilities; that
landlord did not disclose that landlord was occupying four shops in the same
building and such shops could not be used as shops and such shops were
Godowns; and further that landlord had intentionally concealed about four
shops, despite that it was highlighted by the Tenants.
8. It is true that landlord did not appear in person, but her
husband appeared on her behalf as her General Power of Attorney holder,
however, non-appearance of landlord in present case is not fatal to the
landlord because her General Power of Attorney, has narrated each and
every thing in his examination and cross-examination and he did not refuse
to answer any question for want of knowledge, rather he has answered each
and every question and there is no denial of any question on the ground that
he is only General Power of Attorney holder.
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9. Plea with respect to non disclosure of other shops in the
building also does not appear to be concealment of facts intentionally
because the map Ex. PW-2/B has been proved on record by the landlord
which established existence of other shops in the same building. Had there
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been intention to hide this fact, there was no necessity or compulsion for the
landlord to produce and prove Ex. PW-2/B in evidence.
rt The said
documentary evidence led by landlord is to be read with oral evidence
related thereto. A piece of evidence cannot be picked up for consideration
in isolation ignoring other evidence on record including the oral evidence. In
oral evidence PW-1 has categorically explained that other shops are in the
shape of Godowns and there are two shops only in the ground floor. These
two shops, admittedly, have been rented out to tenants one to present
Tenant Naresh Goyal and other to Vineet Goyal. Admittedly, tenant is also
in possession of various shops in the same urban area but, according to
him, these shops are not suitable for his business and are being used as
Godowns. In case each and every shop is to be considered as a shop
useful for running business as being contended on behalf of Tenant with
respect to the shops owned by landlord in the ground floor, then other shops
which are being used by the Tenant as Godowns with claim that these
shops are not suitable to run business, but only can be used Godowns, runs
contrary to the stand of the Tenant.
10. Landlord in his evidence has produced Ex. PW-2/B. Therefore,
it cannot be said that landlord had intentionally and deliberately withheld the
information and concealed the material facts. For pleadings landlord was
depending upon the Advocate and under whose advise evidence has been
led and, therefore, it also cannot be said that Advocate was intending to hide
the complete facts from the Court. Therefore, objection in this regard is not
sustainable.
11. It is settled that landlord is best judge of his suitability and to
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decide his bonafide requirement. Different shops located in the same
building may have different potential and scope of running business in such
shops. Each and every shop, on account of different location in the building,
has different potential of use and yield. Some shops may good to be used
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as Godowns only, whereas a shop on other corner of the same building may
have a good potential to run a business. Therefore, the declaration by the
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landlord that she has not vacated "such accommodation" or is not in
occupation of "such accommodation", is to be read and considered with
reference to her requirement of shop to run business. Landlord has filed
eviction petition on account of bonafide requirement to run business by
opening shop and such business definitely cannot be carried out from a
shop which can only be used for Godown purpose. No doubt a shop kept
for Godown purpose can also be used as a shop, but in such eventuality the
yield from such business may not be of required expectation for
disadvantageous location, and accommodation in a disadvantageous
location cannot be equated with another accommodation in possession of
Tenant located at a advantageous or better location. For these reasons,
declaration required to be made under Sub Sections (2) and (3) of Section
14 of the Act, is to be appreciated with reference to the given facts and
circumstances. In the given facts and circumstances of present case, plea
in this regard raised by Tenant is not sustainable.
12. The averments and ingredients of Section 14(3)(d) of the Rent
Act, in my opinion, were not required to be pleaded in present case,
because there is specific pleading that premises in reference is required by
the landlord for her own bonafide requirement to run business in association
with her son and husband. Even otherwise, essence of pleadings are to be
seen because landlord had filed the Rent/Eviction Petition with aid and
advise of the counsel, who is expert in his field and it is to be kept in mind
that way of expression differs from man to man and the averments are not to
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be expected in stereo type manner. In present case, it is not a case that
requirement under Section 14(2) and 14(3) of the Rent Act is not depicted at
all. The pleadings in this regard are specific and clear.
13. It has come in evidence, as admitted by tenant in cross-
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examination and also evident from documents Ex. Px1, Px2, Px3, Px4 and
Ex. RX that Tenant was having building in Lower Bazar, Solan, his wife was
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having flat in Lower Bazar, Solan and his wife was running a hotel in
Deoghat and his two sons Navrattan Goyal and Navjot Goyal were having
two shops on rent. Tenant is also having shops on rent owned by Sanatan
Dharam Sabha, which, according to Tenant, are being used as Godowns. It
is stand of Tenant that the shops used by him as Godowns cannot be
equated with the shop where from business can be run, but with respect to
landlord, he has taken a contrary stand and is breathing hot and cold at one
and the same time. If all shops are having equal potential, then Tenant
would have agreed to run his business from shop suitable for godown.
14. In given facts of the case, I do not find that examination of son
of landlord was necessary. Otherwise also his non-examination is not fatal
for the case of landlord.
15. It has also come in evidence that tenant Vineet Goel,
occupying other shop, after filing Eviction Petition against him, has already
handed over the possession to the landlord.
16. In view of above discussion, I am of the opinion that material
available on record has been rightly appreciated by the Courts below and
keeping in view the ambit and scope of revision under Section 24(5) of the
H.P. Urban Rent Control Act, I do not consider it a fit case warranting
interference of this Court by exercising the revisional jurisdiction under the
Act.
17. In my considered view, no illegality, judicial impropriety or
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perversity is there in the impugned order and judgment. Accordingly,
Revision Petition is dismissed being devoid of any merits.
18. The Revision Petition stands disposed of in the above terms,
so also pending application(s), if any. Interim order stands vacated.
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Records of the Courts below be sent back forthwith.
rt (Vivek Singh Thakur),
27th December, 2023 Judge.
(Keshav)
