Punjab-Haryana High Court
Bimla Paitka (Since Deceased) ... vs Jasneet Inder Kaur on 6 November, 2023
Neutral Citation No:=2023:PHHC:140652
CR-5225-2023 (O&M) 1 2023:PHHC:140652
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-5225-2023 (O&M)
Date of decision: 06.11.2023
Reserved on: 03.11.2023
Bimla Paitka (Deceased) through LR and another
....Petitioners
Versus
Jasneet Inder Kaur
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Vijay Kumar Jindal, Sr. Advocate with
Mr. Arman Goyal, Advocate and
Mr. Pankaj Gautam, Advocate for the petitioners
ANIL KSHETARPAL, J
1. The petitioners herein are the tenants, who have been
ordered to be evicted concurrently by the court of Rent Controller,
which in appeal, has been affirmed by the Appellate Authority. The
tenanted premises is a shop-cum-flat no.34 Sector 18-D,
Chandigarh. The respondent-landlady is one of the co-owners of
the property. Previously, her father and brother filed a petition
seeking ejectment of late Sh.Madan Gopal, predecessor of the
petitioners herein. The aforesaid petition was allowed on
08.08.2023 by the Rent Controller. Late Sh. Madan Gopal filed an
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appeal. During the pendency of the appeal, a settlement was arrived
at between the parties in December, 2005. It is the case of the
petitioners that due to the prolonged litigation, the necessity of her
father and brother came to an end and a fresh registered lease deed
was executed in favour of late Sh.Madan Gopal for a period of 10
years w.e.f 01.01.2006, which has expired on 31.12.2015. It is her
case that she has a bona fide requirement of the premises for her
personal use and occupation as she can use the ground floor for
opening the business in general trade whereas the first and second
floors can be utilized for the residential purposes. The tenants,
while contesting the petition, have pleaded that from the very
beginning, the landlady's father is pressing hard to increase the rent
and in the previous petition also on increase of rent, the matter was
compromised. It is stated that this petition has been filed only with
the intention of enhancing the rent.
2. The Rent Controller as well as the First Appellate
Authority, on appreciation of evidence, have concurrently found that
the requirement of the landlady is genuine.
3. Heard the learned senior counsel representing the
petitioners at length and with his able assistance perused the
paperbook. He has heavily relied upon the pendency of CR-345-
2016, which has been referred to the Division Bench for opinion on
the following question of law:-
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"Whether in the urban area of U.T,
Chandigarh, the entire Shop-cum-Flat is to be
treated as commercial or in a given case, First &
Second Floor thereof could be termed as
residential building for the purpose of eviction
under the Act of 1949?"
4. It has been stated that in this case, the rented premises
is a shop-cum-flat and therefore, the matter should be kept pending.
5. Learned senior counsel further submits that the
respondent-landlady has failed to enter the witness box and she
appeared through her attorney and therefore, an adverse inference
should be drawn for non-appearance of the landlady.
6. This Court has considered the submissions made by the
learned counsel representing the petitioners. It may be noted here
that the eviction petition in the present case has been filed with
respect to the complete Shop-cum-flat including ground floor, first
floor and the second floor. There exists a composite tenancy with
respect to the complete SCF no.34. In CR-345-2016, the eviction of
the tenant was sought from the store/room on the backside of the
first floor of SCF no.35. The eviction was sought on the ground of
non-payment of rent, change of user and apprehension that the
property may be resumed. In that case, the eviction was never
sought on the ground of the personal necessity of the landlady. In
fact, the identical issue came up for consideration before the
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Hon'ble Supreme Court in Shabir Ahmad vs. Sham Lal and
others (2002) 3 SCC 118. The judgment passed by the High Court
was reversed. After examining the provisions of the East Punjab
Urban Rent Restriction Act, 1949, which is applicable to the area of
Chandigarh and the terms and conditions of the allotment letter, the
Court held that the first floor of the shop-cum-flat is a non-
residential building.
7. Still further, it is evident that the eviction which was
being sought on the ground of the personal necessity of the
landlord/landlady is available with respect to residential as well as
non-residential building. As per the law laid down by the Hon'ble
Supreme Court in the case of Harbilas Rai Bansal vs. State of
Punjab and others 1996)1 SCC 1, the eviction of the tenant can be
sought on the ground of the personal necessity of the
landlord/landlady with respect to the residential as well as non-
residential buildings. It is not the case of the tenant that he is not
using the premises for the same purpose for which it was leased out.
In these circumstances, the pendency of CR-345-2016 cannot be
used to keep the petition pending, particularly when the legal issue,
which has been referred, depends upon the facts of that case.
8. As regards the second argument of the learned senior
counsel representing the petitioners, it may be submitted that the
landlady had appeared in the Court through her father, general
power of attorney. She has filed the petition through her father. It
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has come on record that her father is managing the landlady's
property in Chandigarh. It is not necessary that in every case, the
Court must draw an adverse inference for failure to appear in
evidence. It depends upon the facts and circumstances of each case.
The courts can draw an adverse inference only if it is found that the
best evidence has been withheld. In Pandurang Jivaji Apte vs.
Ram Chandra Gangadhar Ashtekar (dead) by LRs and others
(1981) 4 SCC 569, a three Judge Bench of the Supreme Court held
that an adverse inference for non-appearance of a party can be
drawn only when a material evidence available is insufficient or
absent. In this case, the learned senior counsel representing the
petitioners has not drawn the attention of the Court to the statement
of the landlady's father to establish that he has failed to answer the
questions putforth by the tenant's counsel in the cross-examination.
Moreover, in Maan Kaur vs. Hartar Singh Sanga 2011 (1) RCR
(Civil) 189 the Supreme Court has held that the court is required to
closely examine the facts of the case and come to a conclusion that
certain facts were in the personal knowledge of the Principal and the
power of attorney holder has failed to disclose those facts.
9. Keeping in view the aforesaid facts and discussion, this
Court does not find it appropriate to interfere, particularly when the
scope of interference in revision petition is extremely limited in
view of the Five Judges in 'Hindustan Petroleum Corporation
Limited vs. Dilbahar Singh' (2014) 9 SCC 78.
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10. Hence, dismissed.
11. All the pending miscellaneous applications, if any, are
also disposed of.
06.11.2023 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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