Y P AURORA Vs. MANPHOOL DHIMAN

JUDGEMENT

(1.) This revision has been filed against the concurrent orders of the Courts below declining eviction of the respondent-tenant from the shop in dispute on the ground of person necessity of the petitioner-landlord.

(2.) As per the case set up by the petitioner-landlord, he had retired as a Doctor from the Hindustan Machine Tools (HMT), Pinjore on 31.01.1996 and after retirement had started operating his clinic in the adjoining premises owned by him and required the shop in dispute for establishing Nursing Home and also wanted to instal X-Ray machine and Ultrasound machine because his son was also in the final year of MBBS and was going to qualify as doctor. Therefore, the petitioner filed an eviction petition 17 years ago i.e. in the year 1999. During the pendency of the petition the son of the petitioner qualified as a doctor and got married to a qualified doctor and joined service. Both the Courts below held that since neither the petitioner nor his son were qualified Radiologists they could not set up an X-Ray machine and that the Nursing Home could not be run in an area where there was no sewerage and water system and apart from radiology there were no specialists in pathology and cardiology, The Appellate Authority also held that since neither the petitioner nor his children were specialists in any field of medicine, they were not qualified to open a clinic and consequently rejected the plea of bonafide necessity.

(3.) Learned senior counsel for the petitioner has argued that the Courts below have taken an unduly pedantic approach and a qualified doctor can well install X-Ray machine with a consulting radiologist. Further he has relied upon the judgment of the Hon'ble Supreme Court in the matter of Sarla Ahuja vs. United India Insurance Company, 1999 AIR(SC) 100, to contend that unless shown to the contrary the presumption of bonafide need would be in favour of the landlord and a heavy burden lies on the tenant to rebut the same. As per the learned senior counsel, merely by pointing out that the petitioner is not a qualified radiologist a presumption that he would install an X-Ray machine can hardly be said to be rebutted. As regards the fact that the son of the petitioner had joined service, the learned senior counsel has relied upon the judgment of the Hon'ble Supreme Court in the matter of M/s Sait Nagjee Purushotham and Company Limited vs. Vimalbai Prabhulal and others, 2005 2 RCR(Rent) 436, wherein it was held as follows:-