Punjab-Haryana High Court
Shankar Lal vs Madan Lal & Others on 26 July, 2010
C.R. No. 2648 of 2007
-1-
******
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 2648 of 2007 (O&M)
Date of Decision : 26.07.2010
Shankar Lal
.......... Petitioner
Versus
Madan Lal & others
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Arun Jain, Sr. Advocate with
Mr. J.S. Chandail, Advocate
for the petitioner.
Mr. Arun Palli, Sr. Advocate with
Mr. K.V.S. Kang, Advocate
for the respondent(s).
****
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not? Yes.
3. Whether the judgment should be reported in
Digest? Yes.
*****
VINOD K. SHARMA, J.
This is tenants' revision petition against the order dated 28.4.2007, passed by the learned Appellate Authority, Sirsa, allowing a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as "the Act").
The respondent / landlord filed a petition against the petitioner and respondents No. 2 to 6 being the tenant by inheritance from late Sh. Suraj Bhan and Mahabir Parshad. Sh. Suraj Bhan and C.R. No. 2648 of 2007 -2- ****** Mahabir Parshad, tenants were said to be in possession of the ground floor of shop shown in the heading of the petition, whereas the respondent was landlord, who was in possession of the first floor. The rate of rent of the tenanted premises was Rs. 1615/- (Rupees one thousand six hundred and fifteen only) per annum.
The case of the landlord was, that the tenants had not paid the rent since 11.6.1996, therefore, were liable to be evicted for non-payment of rent.
The second ground of eviction pleaded was, that the shop in question was required by the landlord / respondent for business of his son Sanjeev Kumar, who had already passed his matriculation examination.
The case set up by the landlord was, that he has no other shop, except the shop in question, for business of his younger son Sanjeev Kumar.
The third ground, on which the eviction sought, was that the shop was unfit and unsafe for human habitation, as its structure was old one, and it could collapse at any time having outlived its age. The ceiling of the shop was made of wooden batons which had many bends, besides there being cracks in the walls.
The ground of impairing the value and utility of the shop by misuse was also taken.
The petition was contested by the tenants by filing joint written statement, wherein factum of tenancy was admitted.
The stand taken by tenants was, that the petitioner, C.R. No. 2648 of 2007 -3- ****** Shankar Lal alone was doing business in the capacity of tenant in the shop in question. It was also denied, that the tenancy of the tenants was only on the ground floor portion rather, it was pleaded, that roof was also part of the tenancy, and was in possession of the tenants. It was the stand of the tenants, that respondent No.6 Hari Krishan son of Mahabir Parshad never occupied the shop, in any capacity, and was doing his business separately. The tenant tendered the rent upto 10.1.2000, along with interest and costs, which was accepted by the landlord. The tenants denied, that the shop in question was required by the landlord for his personal necessity, as his son Sanjeev Kumar had other suitable premises to start business.
It was further the case of the tenants, that both the sons of the landlord were doing optical business in the premises owned by them, therefore, the requirement of the landlord was not genuine or need based. A specific plea was taken, that the petition lacked necessary particulars, as required under Section 13 of the Act.
The plea of building being unfit and unsafe was also denied, and it was also denied, that the tenant had impaired the value and utility of the building. In view of the stand taken in the written statement, it was asserted, that the petition deserved to be dismissed with costs.
Respondent No.6-Hari Krishan despite service did not appear and was proceeded ex parte.
In the replication, the stand taken in the petition was reiterated, and the averments made in the written statement were C.R. No. 2648 of 2007 -4- ****** denied.
On the pleadings of the parties, the learned Rent Controller, framed the following issues :-
"1. Whether the respondent is liable to be evicted under Section 13 of the Haryana Urban (Control of Rent and Eviction ) Act, 1973 from the ground floor shop bearing House Tax No. 5/586 (old No. 8550 as mentioned in the petition? OPP
2. Whether the petitioner has no cause of action to file the present petition ?OPR
3. Relief."
The landlord in support of his case examined Sh. O.P. Madaan as AW-1, Sanjeev Kumar as AW-2, Ram Kishan Goyal as AW-3 (General Attorney of the petitioner). Report of the Architect / Surveyor was placed on record as Ex. P-1 site plan Ex. P-2, photographs Ex. P-3 to P-9 and certified copy of the General Power of Attorney as Ex. PW3/1.
The tenant / petitioner examined Bishamber Dayal Singh as RW1, Sanjay Kumar as RW-2, Kamlesh alias Pappu as RW-3, who besides his deposition proved Ex. R1 report of the Administrator, site plan Ex. R-2, Photographs Ex. R-3 to Ex. R-7, negatives Ex. R-8 to Ex. R-12, cash receipt Ex. R-13, special power of attorney Ex. R- 14, and extract from the House Tax Assessment Register Ex. P-15.
At the time of arguments, the landlord pressed the C.R. No. 2648 of 2007 -5- ****** petition only on two grounds i.e. the shop in dispute was required for bona fide personal need to set up business of his son Sanjeev Kumar; and that the shop had become unfit and unsafe for human habitation.
In support of the plea, that the building had become unfit and unsafe for human habitation, Sh. O.P. Madaan, Licensed Surveyor and Assessor, Architect was examined as AW-1, who deposed, that he had inspected the shop on 22.3.2003, prepared the report Ex. P-1, and site plan Ex. P-2. He also proved photographs along with the negatives Ex. P-3 to Ex. P-9.
In the report it was mentioned, that the building was about 90 years old, at lower level than surrounding buildings, and in a un- maintained condition. Walls were weak, curved, cracks patch filled, roof in poor and leaking condition, leaking / holed at various points, shop floor 10" under the road level and 2'4" below the foot path, roof of poor quality, old moth eaten, wooden balas/ karris in cracked cut condition. He opined the building to be in dilapidated and very poor condition, therefore, unfit and unsafe for human habitation.
The photographs were also pressed into service, in view of the opinion referred to above, the statement of AW-2 Sanjeev Kumar was pressed into service. In support of this pleas, he deposed, that the shop in question was 100 years old, there were cracks in the walls. He further deposed, that roof during the rainy season leaked, and there was possibility of the shop crumbling down at any time.
C.R. No. 2648 of 2007-6-
****** AW-3 Ram Kishan Goyal, Attorney of the landlord appeared and deposed, that as the landlord was an old man, therefore, was unable to move around. He also deposed regarding the building being unfit and unsafe, as per the evidence of Sanjeev Kumar.
In view of the evidence, referred to above, and by placing reliance on the judgment of this Court in the cases of Krishan Lal Vs. Madan Gopal 1990(2) P.L.R. 464, Bal Kishan Vs. Raj Kumar 1997(2) P.L.R. 613, it was contended that the issue of building being unsafe and unfit deserved to be decided in favour of the landlord.
In support of the contention, that the building being 100 years old would be deemed to have out lived its life, reliance was placed on the judgment of this Court in the case of Puram Chand Vs. Kailash Chand and others 2000 HRR 225 (P&H). Besides this, reliance was also placed on the judgment of this Court in the case of Sita Ram Bansal Vs. Niranjan Dass and another 2003 HRR 277.
In support of the contention, that the building was required for personal necessity of the petitioner to settle his own son Sanjeev Kumar, in separate business, in the demised premises, reference was made to the statements of the witnesses, who had deposed, that besides the shop in question the landlord did not own any other shop.
The petitioner himself was said to be an agriculturist, whereas other son Ram Kishan Goyal, attorney, was having his own business in Hissaria Bazar.
C.R. No. 2648 of 2007-7-
****** The contention on the basis of the evidence, referred to above, was that the landlord being the best judge of his need and requirement, was entitled to order of eviction.
The learned counsel for the landlord in support of the contention, that in absence of pleading of necessary ingredients of the Act in the petition, eviction could still be ordered, placed reliance on the judgment of this Court in the case of Joginder Pal Vs. Naval Kishore Behal 2002(2) P.L.R. 625.
Thereafter, by placing reliance on the judgment of this Court in the case of P.L. Chopra Vs. Arun Aggarwal 2002(3) P.L.R. 642, it was contended, that the bona fide requirement of the landlord could not be doubted.
Reference was also made to the judgment in the case of Kedar Nath Bhatnagar Vs. Dharam Paul 1978(1) All India Rent Control Journal 1159 to contend, that the landlord was the final judge about his need, and the Court could not question this unless the landlord's claim was very much exaggerated and prompted by extraneous consideration.
As already observed above, in addition the judgments referred above in support of the contention, that the landlord was the best judge of his personal necessity, reliance was also placed on the judgment in the case of Triloki Nath Vs. Vinod Kumar 2001 HRR
513. Reliance was also placed on the judgment in the case of Dev Raj Mittal Vs. Vidya Sagar 1994(2) P.L.R. 451 to contend, that C.R. No. 2648 of 2007 -8- ****** owning of other properties was not a bar to seek ejectment from residential building.
The contentions referred to above, were rebutted by the tenant by contending, that AW-1 Sh. O.P. Madaan, could not be treated to be expert, as he did not possess the requisite qualification. The contention was, that Sh. O.P. Madaan, was not an Architect as he did not possess any qualification i.e. the Diploma or Degree in Architecture.
It was also the contention of the tenant, that AW-1 was unable to support the view of the building being unfit and unsafe, in the cross-examination, for want of any chemical and mechanical test.
The plea was also raised, that it was admitted fact, that the building on the three sides of the shop in question was newly constructed, and the walls, which were common with the shop in question, had also been reconstructed, meaning thereby, that the walls have become more strong and its load bearing capacity increased.
In support of the plea, that the building was fit and safe for human habitation reliance was placed on the evidence of RW-1 Bishamber Dayal, retired S.D.E. who had opined, that the disputed shop was fit for human habitation at least for another 30/40 years.
The contention was, that the report given by RW-1 inspires more confidence, as it was based on scientific proof. The reliance was placed on the photographs Ex. R-3 to R-7 to prove, that the shop in question was perfectly safe and fit for human habitation. C.R. No. 2648 of 2007 -9-
****** Reliance was placed on the statement of Sanjay Kumar, who appeared as Special Power of Attorney on behalf of Shankar Lal, wherein he had deposed, that shop was in perfect condition, and there were no cracks and holes in the roof.
Reliance was placed on the statement of RW-3 Kamlesh alias Pappu, in support of the plea, that the shop was in good condition. The reliance was also placed by the tenant on the judgment of this Court in the case of Surinder Singh Babra Vs. Bhushan Kumar Sharma 2003 HRR 515, wherein it was held, that existence of cracks by themselves do not per se prove, that the building in question has become unfit and unsafe for human habitation.
Finally, reliance was placed on the following judgments to contend, that even if part of the roof had fallen, the tenant was not liable to be evicted from the premises i.e. Trilok Chand Vs. Smt. Dropati Devi and Ors. 1990(1) R.L.R. 31, Ram Avtar Vs. Murari lal and Anr. 2000 HRR 262, Daulat Ram Vs. Laxmi Narain 2003(2) RCR (Rent)353 and Pritam Singh Vs. Om Parkash Adya 1999(2) RCR (Rent) 282.
Finally, the contention raised was, that as the landlord had failed to allege and prove that he wanted to reconstruct the building, the ground of unfit and unsafe was not maintainable, in view of the law laid down by this Court in the case of Smt. Raj Kumari Vs. Shadi Lal 1969 P.L.R. 245.
It was contended before the learned Rent Controller, that C.R. No. 2648 of 2007 -10- ****** when there were two contradictory opinions, the finding can not be based on the photographs alone. the main plank of argument was, that the similar petition for ejectment earlier filed by the landlord was dismissed, therefore, the subsequent petition on the same ground was not maintainable, for not disclosing this fact. In support of this contention, reliance was placed on the judgments of this Court in the cases of Banwari Lal Vs. Smt. Tulsan Devi 2003 HRR 661 and Ram Sarup Bhalla Vs. Barkat Singh 1990(2) P.L.R. 547.
Finally, it was pleaded that for want of the landlord stepping into the witness box, no reliance could be placed on the evidence led by the attorney.
On the plea of personal necessity, the stand of tenant was, that the eviction petition was liable to be rejected for want of the pleadings, that the landlord had not vacated any other building without just cause after the commencement of the Act as envisaged under Section 13(3)(a) of the Act. The contention was that in order to seek eviction on the ground of personal necessity, these averments are essential to be pleaded, and proved as given in Section 13(3)(a)
(i)(b) and (c) of the Act. In support of this contention, reliance was placed on the judgment of this Court in the case of Joginder Singh Vs. Harbans Lal 2003 HRR 291.
The contention was also raised, that these averments were not deliberately made by the landlord in the petition, as he had other premises, where he could easily adjust his second son.
The reference was also made to the cross-examination of C.R. No. 2648 of 2007 -11- ****** AW-2 Sanjeev Kumar, who admitted that adjacent to the shop of Rama Opticals there were two more shops, where in one of the shops Generator set was placed and the other shop is being used for car parking.
It was also pointed out, that AW-3 Ram Kishan Goyal also admitted, that there were two vacant premises, out of which one is being used as garage and other for generator set. It was admitted in cross-examination, that the premises being used as a garage is 8 ½ x 17' and the premises used for generator is 8 x 3'. Thus, it was pleaded, that sufficient accommodation was available with the landlord to adjust his son.
The plea, that the second petition, on the same ground was not competent, was not accepted, for want of objection of res judicata, which is a plea of facts and law.
After considering the arguments, referred to above, the learned Rent Controller, came to the conclusion, that the landlord failed to prove, that the building was unfit and unsafe for human habitation.
On the question of bona fide requirement, the learned Rent Controller, held that it was not for tenant to dictate, qua the personal need of the landlord. In view of the settled law, that the landlord was the best judge of his requirement and also that it was for landlord to decide where he wants to start a business, of his son in a shop.
The learned Rent Controller also did not accept the C.R. No. 2648 of 2007 -12- ****** contention, that the eviction petition was liable to be dismissed for want of fulfilling of the mandatory provisions of Section 13(a)(ii) of the Act, as there was no concealment of facts which could be attributed to the landlord, as it was mentioned in the petition, that his son Ram Kishan was doing his business in his shop situated at Hissaria Bazar, and that the present shop was required by the second son Sanjeev Kumar for setting up his business. It was also proved, that other shops were being used for generator set and parking of car.
The learned Rent Controller accepted the plea, that the landlord was to set up the business of his second son. The learned Rent Controller also took note of the fact, that the family of the tenants was occupying at least five shops in the city as admitted by RW-2, in his cross-examination, which were rented out to different tenants.
The learned Rent Controller also came to the conclusion, that Sanjeev Kumar had appeared in the witness box, and deposed in proof of his personal necessity, and his stand was further supported by the attorney of the landlord.
The learned Rent Controller did not accept the plea, that the evidence of the attorney was required to be rejected for the reason, that attorney in this case had personal knowledge, to depose being brother of Sanjeev Kumar and son of the landlord.
The learned Rent Controller, thereafter took note of the provisions of the Rent Act to hold, that there was a procedure to check the frivolous applications of eviction on the ground of bona fide C.R. No. 2648 of 2007 -13- ****** requirement. The issue of personal necessity was decided in favour of the landlord and consequently, the petition was allowed.
The petitioner preferred an appeal, wherein the landlord filed cross-objections. The learned Appellate Authority did not accept the plea raised by the petitioner, that the petition framed was liable to be rejected for want of ingredients of sub-clause (b) and (c) of paragraph (i) of Section 13(3)(a) of the Rent Act, for the reason that the learned Appellate Authority came to the conclusion, that in para 3
(b) of the petition the landlord had pleaded, that the shop in question was required by him for the business of his son Sanjeev Kumar who had already passed his matriculation examination; and that the petitioner has no other shop except the shop in dispute, for starting the business of his younger son namely Sanjeev Kumkar, who was recently married, and further in the replication, the landlord had pleaded that his younger son namely Sanjeev Kumar had no business, and did not own any other shop except the shop in question.
The learned Appellate Authority, in view of the averments made in para 3(b) of the petition, and replication came to the conclusion, that the landlord had substantially pleaded the facts required as per the provisions of the Rent Act.
The learned Appellate Authority held, that the landlord had examined two witnesses to prove his need, and came to the conclusion, that the learned Rent Controller was right in coming to the conclusion, that the premises was required bona fide by the C.R. No. 2648 of 2007 -14- ****** landlord, specially, in view of the fact, that on failure of landlord to occupy the building, it was open to regain the possession under Section 13(6) of the Rent Act.
The learned Appellate Authority affirmed the finding of the learned Rent Controller holding, that the landlord had failed to prove, that building was unfit and unsafe for human habitation for the reason, that Sh. O.P.Madaan, RW-1 could not be considered to be expert witness.
The learned Appellate Authority, however, affirmed the finding of the learned Rent Controller, on the ground of personal necessity and dismissed the appeal.
Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner challenged the finding of the learned Rent Controller and learned Appellate Authority, on the ground of personal bona fide requirement, by referring to the provisions of Section 13(3)
(a)(ii)(b) and (c) of the Act, which read as under :-
"13. Eviction of tenant -
(3)(a) A landlord may apply to the controller for an order directing the tenant to put the landlord in possession;
(i)...................................
(ii) in the case of non-residential building or
rented land, if
(a) he requires it for his own use;
(b) he is not occupying in the urban area
concerned for the purpose of his business any other such building or rented land as the case may be; and C.R. No. 2648 of 2007 -15- ******
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Act,in the urban area concerned;"
The contention of the learned senior counsel was, that in order to succeed in a plea of personal necessity, it was necessary for the landlord to plead and prove, that he was not occupying any other building in the urban area concerned, and that he had not vacated such a building without sufficient cause after the commencement of this Act in the said urban area.
The learned senior counsel for the petitioner referred to the pleading in the petition under Section 13 of the Act in this regard, wherein the only pleading regarding personal necessity was as under :-
"b) That the shop in question is required by the petitioner for the business of his son-
Sanjeev Kumar who had already passed his matriculation examination. The elder son Ram Krishan is already doing his own business in his shop situated at Hissaria Bazar, Sirsa and the petitioner has no other shop except the shop in dispute for the business of his younger son namely Sanjeev Kumar who has recently been married."
Even in the replication, the ground with regard to personal need reads as under :-
"3(b) That this sub para of the written statement is wrong and incorrect; hence denied and that of the petition is correct and C.R. No. 2648 of 2007 -16- ****** reiterated. It is wrong to allege that the requirement of the petitioner is not genuine. Though it has been admitted in this para by the respondents that both sons of the petitioners are doing opticals business in the premises but infact the younger son of the petitioner namely Sanjiv Kumar has no business and does not own any other shop except the shop in dispute, which is required by the petitioner for settling his son Sanjiv Kumar in some other business. Sanjiv Kumar is sitting with his elder brother Ram Kishan temporarily because he is in the dire need of the shop in dispute for his own separate business. The opticals business is being run by Ram Kishan elder son of the petitioner under the name and style Rama Opticals, Sirsa who is the sole proprietor of the same. Sanjiv Kumar has no concern with the said shop."
The contention of the learned senior counsel for the petitioner, therefore, was that this was a case of total lack of pleading of ingredients, therefore, the learned Rent Controller, as well as the learned Appellate Authority committed an error in law in coming to the conclusion, that though the pleadings as required under Section 13(3)(a)(i)(b) and (c) were not specifically pleaded, but there were substantially pleaded in the replication.
The contention of the learned senior counsel for the petitioner, therefore, was that this finding is outcome of misreading of pleadings of the respondent / landlord.
C.R. No. 2648 of 2007-17-
****** The learned senior counsel for the petitioner thereafter referred to the judgment of the Full Bench of this Court in the case of Banke Ram Vs. Smt. Sarasvati Devi 1977 R.C.R. (Rent) 595, wherein the Hon'ble Full Bench of this Court in para Nos. 8 & 12 was pleased to lay down as under :-
"8. It was contended by the learned counsel for the respondent that the decision in Rajender Singh Nanda's case (supra),is based on the Full Bench decision of this Court in Sant Ram Das's case (supra) and that of the Supreme Court in Attar Singh's case (supra), wherein it was not in controversy whether the ingredients of sub- clauses (b) and (c) are required to be pleaded or not. It is true that in both these cases it was not specifically in controversy whether the ingredients of sub-clauses (b) and (c) of section 13(3)(a)(i) are essential to be pleaded by the landlord or not, but it was clearly and expressly held therein that it was essential to prove the ingredients of sub- clauses (b) and (c). Once it is so held, there is no escape from the proposition of law that these ingredients have to be pleaded before any evidence is led on the same. In Krishan Lal Seth's case (supra) the Division Bench while agreeing with the principle that any matter in controversy must find place in the pleadings of the parties however, came to the conclusion that ingredients of sub-
clauses (b) and (c) may not be pleaded because they are only statutory conditions C.R. No. 2648 of 2007 -18- ****** and the tenant is expected to have knowledge of the same and will not be taken by surprise. There can be no doubt that the conditions laid down in sub-clauses (b) and
(c) are statutory conditions in as much as they are provided by the statute, but to fulfil those conditions the landlord must lead evidence to prove the facts constituting those conditions. Under sub-clause (b) the landlord is required to prove that he is not occupying any other residential building in the urban area concerned. Under sub clause
(c), it is incumbent on the landlord to bring on the record that such a building had not been vacated by him without sufficient cause. If the landlord is to satisfy those essential conditions, he must lay foundation regarding the same and proper issues are also framed. It is difficult to visualise how a tenant will not be taken by surprise if there is no pleading in this regard, it may be a different matter if the statutory conditions are in relation to question of law but in case of statutory conditions are in relation to question of law but in case of statutory conditions pertaining to questions of fact, the landlord must take specific averments, otherwise, prejudice is very likely to ensue to the opposite party.
12. In the present case, we are concerned only with the question as a principle of law as to whether it is essential to plead in an eviction application the ingredients of sub- clauses (b) & (c) and not the question that if C.R. No. 2648 of 2007 -19- ****** in a particular case these ingredients are not pleaded, but the parties have led evidence with regard to them, what will be the effect? In any given case, where facts have not been averred in the pleading, a number of questions arise as to whether proper evidence has been adduced by the landlord regarding those facts which do not find place in the pleadings and secondly regarding those facts which do not find place in the pleadings whether the tenant was taken by surprise or not and had led evidence with full knowledge of the requisite contentions raised by the landlord and Court would be required to give full consideration to the contentions raised by the respective parties and the facts and circumstances of each case before giving its decision in favour of the landlord or tenant, but the decisions of the High Courts or the Supreme Court, in this regard, can not be of any avail to detract from the validity of the proposition that it is necessary for the landlord to make averments regarding the ingredients of sub- clauses (b) and (c). However, it may be made clear that when it is held that it is essential to plead the ingredients of sub- clauses (b) and(c) in the eviction application by the landlord, it should not be understood that under no circumstances in the absence of pleadings, the evidence regarding the ingredients envisaged in sub-clauses (b) and
(c) can be looked into. This is not peculiar to the eviction applications. Similar C.R. No. 2648 of 2007 -20- ****** considerations come into operation even in the case of suits which are governed by the specific and detailed provisions of the Code of Civil Procedure regarding pleadings." (Para 12 of the judgment is being reproduced in order to decide the arguments raised by Mr. Arun Palli, learned senior counsel appearing on behalf of the respondent / landlord to the effect, that though conditions stipulated in Section (b) & (c) and Section 13(3)(a)(i) of the Act are mandatory in nature, but no particular form is prescribed therein.) The learned senior counsel appearing on behalf of the petitioner, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ajit Singh & Anr. Vs. Jit Ram & Anr. 2008(2) RCR (Rent) 328 to contend, that in case the landlord requires the premises for use of his son for business, in that case it is mandatory for the son also to plead and prove, that he was not occupying any such other building, and has not vacated such building without sufficient cause. The Hon'ble Supreme Court in the case of Ajit Singh & Anr. Vs. Jit Ram & Anr.(supra) was pleased to lay down as under :-
"11. From the aforesaid decision of this Court, it is therefore, clear that this Court had laid down authoritatively that a non- residential premises, if required by a son for user by him would cover the requirement of words used in the Section , i.e. " for his own C.R. No. 2648 of 2007 -21- ****** use" in reference to a landlord. Therefore, if "his own use" has been interpreted by this Court in the above-said manner, then the requirements as laid down in Section 13(3)
(a)(ii)(b) and (c) of the Act has to be interpreted in the same manner to hold that
(a) the son of the landlord has to plead in the eviction petition that, (b) he is not occupying in the urban area concerned for the purpose of his business any other such building or rented land as the case may be; and (c) he has not vacated such a building or rented land without sufficient cause after the commencement of the Rent Act, in the urban area concerned.
12. In the present case, it was pleaded and proved that the said shop was required for the use of the son and, therefore, the pleadings of the son in regard to the aforesaid requirement, being mandatory, were satisfied, otherwise it would make the requirement laid down under the said provisions nugatory in view of the interpretation given by this Court in the aforesaid decision, with which we are in full agreement.
13. Applying the principles as laid down by the aforesaid decision namely, Joginder Pal (Supra) which also deals with commercial premises, as in the present case, we are of the view that a plain reading of Section 13(3)
(a)(ii)(a) to (c) in conjunction with Section 13 (3)(a)(iv)(a) & (b) of the Rent Act, would make it ample clear when the said shop is C.R. No. 2648 of 2007 -22- ****** being got vacated on the ground of user for the son of the landlord, then in the eviction petition, the son (appellant No.1) must plead that he was not occupying any other building and that he had not vacated such a building without sufficient cause. It is well settled that while interpreting a provision of a statute, the same has to be interpreted taking into consideration the other provisions of the same statute. In the aforesaid decision, namely, Joginder Pal (Supra), this Court has clearly laid down that a balanced interpretation has to be given in regard to the rent legislation and the provisions itself contemplate a case in regard to user of non-
residential building by a professional and the statute itself lays down requirement in that regard within the same requirements will have to be read in regard to shop required to be used by the son of the landlord for business purpose. Accordingly, we are of the view that the impugned decision of the High Court is in direct conflict with the Judgment of this Court in Joginder Singh's case (supra) and therefore, the said Judgment cannot be sustained."
The learned senior counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of Onkar Nath Vs. Ved Vyas 1980(1) RCR (Rent) 304 to contend, that the ingredients of Section 13(3)(a)(i) of the Act were required to be pleaded and proved, and an affidavit filed later would not be adequate to meet the requirement. The Hon'ble Supreme Court in C.R. No. 2648 of 2007 -23- ****** the case of Onkar Nath Vs. Ved Vyas (supra) was pleased to lay down as under :-
"2. The statute benignly designed to protect tenants from unreasonable evictions has taken care to put restrictions which must be rigorously construed to fulfil the purpose of the statute. A mere affidavit at a late stage of the litigative process can hardly be adequate to meet the mandate of Section 13 (3) of the Act. In these circumstances, we are constrained to allow the appeal. It is unfortunate that the respondent who moved for eviction is himself an advocate and, at least for that reason, cannot plead ignorance of law. The appeal is allowed but as a special extenuation in favour of his ignorance of law, we allow him to file proceedings for eviction denovo if so advised making it clear that the allowance of the present appeal will not stand in his way.
The appeal is allowed with costs quantified at Rs. 1,000."
The learned senior counsel for the petitioner, in view of the settled law, contended, that the petition on the ground of personal necessity was liable to be rejected for not pleading and proving the necessary ingredients of Section 13(3)(a)(i)(b) & (c) of the Act.
The learned senior counsel for the petitioner made reference to the evidence of the petitioner in support of the bona fide requirement to contend, that in this case the non-mentioning of C.R. No. 2648 of 2007 -24- ****** ingredients of clauses (b) & (c) of Section 13(3)(a)(i) of the Act was not a bona fide omission, but a deliberate attempt to mislead the Court, as would be clear from the fact, that in the evidence stand taken by the petitioner / tenant stood proved, as the witness appearing on behalf of the landlord had to admit, that there were two other shops belonging to the landlord, which were vacant, and were in possession of the respondent / landlord.
The contention of the learned senior counsel for the petitioner was, that an attempt made in the evidence to prove that mentioning of other shops was not necessary, as it was for the landlord to decide as to which premises, was required by him.
Mr. Arun Palli, learned senior counsel for the respondent / landlord very fairly conceded, that the pleading in the strict form do not meet the requirement of 13(3)(a)(i)(b) & (c), but he supported the judgment of the learned authorities to contend, the pleadings of the ingredients of Section 13(3)(a)(i)(b) & (c) are not required to be in strict form, and if from the averments, it is proved, that the conditions stood fulfilled, in that event the eviction order could be passed against the tenant, this is what has been done.
The learned senior counsel appearing on behalf of the landlord / respondent, referred to the Hon'ble Full Bench judgment of this Court in the case of Banke Ram Vs. Smt. Sarasvati Devi (supra), where in para 12, it was mentioned that it should not be understood that under no circumstances in absence of the pleading, the evidence regarding ingredients envisaged in sub-clauses (b) & C.R. No. 2648 of 2007 -25- ******
(c) can not be looked into.
The contention of the learned senior counsel, therefore, was, that in the present case, if the rent petition is read with the replication filed an inference can be drawn, that the ingredients of Section 13(3)(a)(i)(b) & (c) stood fulfilled, as the landlord had specifically pleaded, that the other shop was in possession of his another son, whereas Sanjeev Kumar for whom the eviction is sought, was not having any share in his possession.
The learned senior counsel for the respondent / tenant placed reliance on the judgment of this Court in the case of Banwari Lal Vs. Ram Parkash & Anr. 2009(2) RCR (Rent) 160, wherein this Court was pleased to lay down as under :-
"(i) The ingredients of Section 13(3) are mandatory in nature though no specific performa is required to be given.
(ii) It is always open to the parties to plead the ingredients of Section 13(3) of the Act in any form given under the Act.
(iii) Landlord can always to prove the said ingredients in evidence and if it is shown that no prejudice is caused to the tenant on account of non-pleading of ingredients of Section 13(3) of the Act, then petition cannot be rejected."
The contention of the learned senior counsel for the respondent, therefore, was, that in view of the law laid down by this C.R. No. 2648 of 2007 -26- ****** Court, it was open to the landlord to prove the ingredients in the evidence, if it is shown, that no prejudice was caused to the tenant due to non-pleading of ingredients of Section 13(3) of the Act.
On consideration, I find force in the contentions raised by the learned counsel for the petitioner. The reading of the pleadings in the rent petition as well as in the replication clearly shows, that the ingredients of Section 13(3)(i)(b) & (c) have not been pleaded.
Even in the evidence the landlord / respondent did not take steps to prove the pleading, but had to admit the factum of owing other shops in the cross-examination. Thus, there is force in the contention of the learned senior counsel for the petitioner, that this was a deliberate attempt to seek eviction and by non-pleading this ingredient the tenant was specifically prejudiced.
The landlord has further failed to plead and prove the fact, that his son for whose occupation premises were sought was not occupying any other building, and has not vacated such building without sufficient cause, as held by the Hon'ble Supreme Court in the case of Ajit Singh & Anr. Vs. Jit Ram & Anr. (supra).
This fact also assumes importance, as evidence was brought on record showing ,that there was shop under the ownership of Sanjeev Kumar also which fact was also concealed by the landlord in the pleading. Not only that the respondent / landlord had failed to prove the mandatory provisions but was also guilty of concealment.
The contention of the learned senior counsel for the respondent / tenant that the substantive ingredients stand fulfilled, C.R. No. 2648 of 2007 -27- ****** therefore, can not be accepted. It is held, that the finding of the learned Rent Controller and the learned Appellate Authority was outcome of misreading of pleadings of the parties in holding, that the substantial compliance of Section 13(3)(a)(i)(b) & (c) of the Act was made.
For the reasons stated above, the finding recorded by the learned Rent Controller, as affirmed by the learned Appellate Authority, on the ground of personal necessity is reversed, and it is held, that the respondent / landlord has failed to prove, that the premises were bona fide required for his personal need and occupation.
This revision is accordingly allowed. The judgment passed by the learned Rent Controller as affirmed by the learned Appellate Authority is set aside, and the petition filed by the respondent / landlord is ordered to be dismissed, but with no order as to costs.
26.07.2010 (VINOD K. SHARMA) 'sp' JUDGE