Punjab-Haryana High Court
Raj Kumar vs Budha Mal on 4 August, 2010
Author: Alok Singh
Bench: Alok Singh
CR No. 7665 of 2009 1
In the High Court of Punjab and Haryana, Chandigarh.
CR No. 7665 of 2009 (O&M)
Date of Decision: 04.08.2010
Raj Kumar
....Petitioner
Versus
Budha Mal
....Respondents.
Coram:- Hon'ble Mr. Justice Alok Singh
1.Whether reporters of local news papers may be allowed to see
judgement ?
2. To be referred to reporters or not ?
3. Whether the judgement should be reported in the Digest ?
Present: Mr. D.S. Pheruman, Advocate
for the petitioner.
Mr. A.S. Kakkar, Advocate
for the respondent.
...
Alok Singh, J.
Tenant - petitioner has filed present petition under Section 15 (5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 1949 Act), challenging the order dated 20.5.2009 passed by the Rent Controller as well as the order dated 29.10.2009 passed by the Appellate Authority, whereby the eviction petition filed by the landlord - respondent herein was allowed and eviction of the petitioner - tenant was directed on the ground of personal bonafide requirement of the landlord - respondent.
CR No. 7665 of 2009 2
Brief facts of the present case are that the landlord - respondent has filed petition under Section 13 of the Act for the ejectment of the tenant from the shop situated in Ghatti Bazar, at Patti, District District Amritsar now at Tarn Taran, initially on three grounds (i) non-payment of arrears of rent; (ii) tenant has not maintained the shop in question as well as its furniture and has decreased the utility of the shop; and (iii) the landlord requires the shop in question for his personal bonafide necessity.
The Rent Controller did not agree with the plaintiff on two grounds i.e. the tenant has decreased the utility of the shop and he is arrears of rent. However, the Rent Controller allowed the eviction petition on the ground that the landlord has personal bonafide necessity of the tenanted shop to start business therein. The Appellate Authority also agreed with the finding recorded by the Rent Controller and dismissed the appeal.
Learned counsel for the petitioner -tenant argued that eviction petition is liable to be dismissed on the ground that the petitioner has failed to plead in the ejectment petition contents of sub-section (b) and (c) of Section 13(3)(a)(i) of the 1949 Act to the effect that the landlord is not occupying any other building in the urban area concerned and he has not got vacated any other shop after the commencement of the Act. Learned counsel for the petitioner placed reliance on the judgement of the Full Bench of this Court in the matter of Banke Ram Vs. Smt. Sarasti Devi, reported in 1977 All India Rent Control Journal 332. Learned counsel for the petitioner argued that the landlord has issued notice under Section 106 of the Transfer of Property Act, 1982 (hereinafter referred to as the 1982 Act) prior to the filing of the ejectment petition but in the notice no mention was made of his bonafide personal necessity. The further contention of the CR No. 7665 of 2009 3 learned counsel for the petitioner is that the landlord has not disclosed in the eviction petition the nature of the business he intends to start in the tenanted shop.
Learned counsel for the landlord - respondent stated that both the parties have led evidence on the question as to whether the landlord was occupying any other building in urban area and on the question that landlord has got vacated any such building after commencement of the 1949 Act. Learned counsel for the landlord- respondent further stated that in view of the fact that both the parties have led evidence knowing well the requirement of sub-section (b) and (c) of Section 13(3)(a)(i) of the 1949 Act, hence not mentioning of the same in the petition is not fatal. He further stated that there was no need for the landlord to take the plea of bonafide need in the notice under Section 106 of the 1982 Act. It is further stated that in the evidence led by the landlord, it has been mentioned by the landlord that earlier he was selling cloth on Daggy and now at this stage he was not able to sell the cloth by Daggy and wanted to sit on the shop and carry out his business. Learned counsel for the respondent - landlord further stated that there is concurrent finding of fact on the question of personal bonafide necessity of the landlord and hence, while exercising revisional jurisdiction, concurrent finding of fact recorded by both the Courts below should not be disturbed.
In the matter of Banke Ram (supra), the Full Bench of this Court, while over-ruling the judgement of a Division Bench of this Court in the matter of Krishan Lal Seth Vs. Smt. Pritam Kumari, 1961 PLR 865, has held that ingredients of sub-section (b) and (c) of Section 13(3)(a)(i) of the 1949 Act are essentially to be pleaded by the landlord and there is no CR No. 7665 of 2009 4 escape from the proposition of law that these ingredients have to be pleaded before any evidence is led on the same. However, in paragraph 12 of the judgement rendered in the case of Banke Ram (supra), the Full Bench has held as under: -
"The 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 the tenant, tout the decisions of the High Courts or the Supreme Court, in this regard, cannot 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 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."
Having perused the judgement in Banke Ram's case (supra), this Court is of the opinion that of course ingredients of sub-section (b) and
(c) of Section 13(3)(a)(i) of the 1949 Act are to be necessarily pleaded in the eviction petition, however, as held by the Full Bench in paragraph 12 of the CR No. 7665 of 2009 5 judgement, this Court is of the opinion that it should not be understood that under no circumstances, in the absence of pleadings, the evidence regarding the ingredients envisaged under sub-section (b) and (c) can be looked into. Hence, in the opinion of this Court, if parties were fully aware about the ingredients of sub-section (b) and (c) at the time of leading evidence and both the parties have led evidence on these issues, then petition cannot be thrown out merely because the landlord has failed to plead ingredients of sub-section (b) and (c) in the eviction petition.
Before the Rent Controller, it was stated by the tenant as RW1 that the landlord has got vacated_many adjacent shops to the shop in dispute after the commencement of the 1949 Act and even he was power of attorney of his daughter-in-law Subhash Rani whose shop has also been got vacated and he has given these shops on rent. Once, tenant has made statement about the ingredients of sub-section (b) and (c) while appearing in the witness box, then it cannot be said that the tenant was taken by surprise during the trial by not pleading the ingredients of sub-section (b) and (c) in the eviction petition. Before both the Courts below, tenant - revisionist herein failed to prove that the landlord ever got vacated any other building in the urban area after the commencement of the 1949 Act. On the other hand, landlord in his statement said that he never got vacated any other building in the urban area after the commencement of the 1949 Act. Landlord has successfully proved by way of sufficient material before the Rent Controller that earlier he used to sell clothes on Daggy and now he wants to start his business of cloth in the shop in question.
In the opinion of this Court, non-mentioning of the bonafide personal necessity in the notice issued under Section 106 of the 1982 Act is CR No. 7665 of 2009 6 not fatal. In the opinion of this Court, even non-mentioning about the nature of the business intended to be established in the tenanted shop in an eviction petition is also not fatal, especially when the nature of the business is disclosed in the evidence.
From the perusal of the record, this Court is of the opinion that the landlord has successfully proved that earlier he was selling cloth on Daggy and now he wants to start his business of cloth in the tenanted shop. No illegality or perversity in the findings of both the Courts below is pointed out and both the Courts below have recorded concurrent finding of fact that the landlord has bonafide personal requirement of the shop in dispute.
Petition is dismissed. However, petitioner - tenant is granted two months' time to vacate the shop in question and hand over vacant and peaceful possession of the same to the landlord.
( Alok Singh ) Judge 04.08.2010 sk.