- (1.) The only question involved in this revision under Section 15 of the East Punjab Urban Rent Restriction Act, 1949 is as to whether the concurrent finding of the two courts below on the personal requirement of the landlord can be sustained on the facts proved on the record.
(2.) The landlord pleaded that he required the rented land for his own occupation and for his business and trade. The nature of the business or the trade which the landlord wanted to start was not specified in the application. In the witness box all that he stated was that he was not carrying on any business at that time and wanted to set up a firewood stall on the land in dispute. This statement of the landlord was accepted by the learned Rent Controller and the ejectment of the petitioner ordered. The finding of the Rent Controller was upheld by the learned Appellate Authority on the following reasoning :- "Normally, the personal requirement of the landlord if it is based on bonafide necessity has to be accepted by the Rent Courts. It can only be refused if it is found as a fact that the landlord had tried to overreach the Court or had made the demand of eviction because of certain malafides. If the malafides are not proved then the personal necessity of the landlord cannot be restricted and he cannot be non-suited on surmises. In the instant case, no effective cross-examination was attempted on the petitioner to show that he had made the demand of a personal use and occupation only as a clock to see the tenant out of the demised premises". From the perusal of the above observations it is clear that the Appellate Authority proceeded entirely on wrong premises. The Rule of law, laid down in several authorities of this court that the statement of the landlord has to be accepted unless it is shown that he had some ulterior motive in claiming the eviction of the tenant is no longer a good law because of the decision of the Supreme Court in Phiroze Bamanji Desai v. Chandrakant M. Patel and others, 1974 AIR(SC) 1059 While interpreting the word, required in Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 P.N. Bhagwati, J. held that there must be an element of need and not mere desire before a landlord can be said to require the premises for his own use and occupation. Consequently, mere ipsidixi of the landlord would not be enough to uphold his averment of personal need unless he discloses the other attending circumstances which can convince the Court that the landlord bonafide needs the premises for his own use and occupation. Again in Mattulal v. Radhe Lal,1974 2 SC 365, the same learned Judge with respect to the claim of a landlord respecting a non-residential building for setting up his own business held :- "The mere assertion on the part of the Landlord that the requirest he non-residential accommodation in the occupation of that tenant for the purposes of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bonafide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of standing or continuing his own business that would not be enough to establish that he requires it for that purpose and that his requirement is bonafide. The word, 'required', signifies that mere desire on the part of the landlord is not enough but there should be an element of need, and the landlord must show - the burden being upon him - that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business." In the present case, apart from the bald averment in the petitioner that he wanted to use the rented land for the purpose of his own business and trade, nothing was said which could show that the landlord had the genuine need to start some business. In his statement also he never disclosed any fact or circumstance which could show that he had the genuine need to start some business or trade and the only fact which was disclosed, apart from the averment in the petition was that he wanted to start firewood stall on the demised premises. The landlord, as is evident from his statement, is an agriculturist by occupation and about 50 years of age. Nothing was stated by him in his statement as to why he wanted to leave his occupation and enter into the business of sale and purchase of fire wood. His bald assertion in this respect, therefore, could not be accepted to hold that there was the genuine need on the part of the landlord for which he required the demised premises for his own use and occupation.
(3.) The other reason advanced by the learned by the learned Appellate Authority to accept the statement of the landlord that no effective cross-examination was attempted on the petitioner to show that his assertion of personal use and occupation was only a clock to evict the tenant is also not borne out from the record and, therefore, unsustainable. The landlord in the cross-examination was asked if he had acquired a licence for running firewood stall and whether he knew wherefrom the firewood is purchased for sale in the city of Amritsar. These questions obviously were directed to test the averment of the landlord if he really intended to start the firewood stall. The answers given by the landlord further go to show that he had never applied his mind or tried to collect the necessary information for setting up of a firewood stall. It cannot therefore, be said that either the statement of the landlord respecting his averment of the setting up of firewood stall went unchallenged or that no effective cross-examination was directed to show that the landlord had no bonafide intention to start the said business. That apart, when the landlord had failed to make out a case in his statement of bonafide requirement of the demised premises for his own use and occupation, the tenant was under no obligation to cross-examine him in this regard. Such a course on the part of the tenant would be extremely hazardous and more often than not provide another opportunity to the landlord to fill up the locuna in his statement left over in the Examination-in-Chief. There is no rule of law which requires a party to take such a course and dig his own grave. The rule of appreciation of evidence developed by various judicial decisions, that the statement of party on a fact in issue if unchallenged in cross-examination should normally be accepted by the Court, is applicable only where the statement is such that is can be reasonably acted upon and made the basis of a finding by the Court. But where the statement falls short of such probative value, it would not acquire any sancuty because no cross-examination is directed to challenge its correctness. There is thus no material on the record to sustain the concurrent finding of the Rent Controller and the Appellate Authority that the landlord requires the demised premises for his own use and occupation and the finding recorded by them is consequently set aside.;