Himachal Pradesh High Court
Prabhdeep Singh vs Kanta And Others on 25 July, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.127 of 2008.
Reserved on : 12th July, 2019.
.
Date of Decision: 25th July, 2019.
Prabhdeep Singh ....Petitioner/Landlord.
Versus Kanta and others. ...Respondents/tenants.
Coram The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Anuj Gupta, Advocate. For Respondents No.1 and 3: Mr. Mehar Chand Thakur, Advocate.
Respondents No. 2, 4 and 5 already ex-parte.
Sureshwar Thakur, Judge.
The instant civil revision, stands directed, by the landlord against the concurrently recorded verdicts, by both, the learned Courts below, wherethroughs, his petition for eviction of the respondents herein, from, the demised premises, hence, stood, dismissed.
2. Briefly stated that facts of the case are that the petitioner herein is a landlord and the respondents herein are tenant qua the premises i.e. One garage (room) in front portion ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 2 of basement of Sidhowal Lodge, The Ridge, Shimla. The tenancy is residential. Respondent No.1 mostly resides out of Shimla at her native place in Tehsil Jubbal, District Shimla, .
where she has got huge agricultural land. Similarly, respondent No.2 has acquired a spacious residential set at Sanjauli, where he is residing along with his family and with his brother Raj Kumar, respondent No.3. Respondents No. 4 and 5 happily married and are living with their in-laws. The rent of the demised premises is Rs.30/- per month. Late Mathu Ram is the original tenant in the one room in the garage portion in the basement floor of building known as Sidhowal Lodge, and, after his death, the respondents have become the tenant of the premises in question. However, no rent note has been executed. The eviction is sought on the following grounds:-
(I) That the premises in question in occupation of the respondents are bonafide required by the petitioner for using the same, as the residence of his servant/driver etc., as no separate servant quarters, which may be used for the said purposes, are available with the petitioner, where he can accommodate his entire staff, i.e. servant and drivers etc. It is pertinent to mention here that the premises in question are situated just below the personal residence of the petitioner, ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 3 from where he can easily contact his servants/drivers in the event of necessity, hence, the premises in question is mot and suitable accommodation to the petitioner for using the same as .
residences for his servants, drivers and cooks etc. (II) That the petitioner is not in occupation of any other residential accommodation in the Urban area of Shimla, which can be used by him for the purposes of residences of his servants, drivers and cooks and the present accommodation is suitable accommodation. The respondents are thus liable to be evicted from the premises in questions.
3. The petition was contested by the respondents/tenants by filing reply, wherein, they have taken preliminary objections qua cause of action, and the petition is hit by the principle of resjudicata. On merits, averments made in paragraphs No.1 to 4 of the petition are admitted. It is denied that the respondent own residential set or plot at Sanjauli. It is submitted in reply to para 18(a) that it is absolutely wrong and false, and, hence the entire averments made in this para are vehemently and categorically denied. It is specifically denied that the premises in dispute is required bonafide by the petitioner for the residence of servants/drivers.
The servants/drivers are residing in the room adjoining to the ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 4 disputed premises. The petitioner has converted the residential set for guest house/Hotel purpose, which set/premises were earlier in his possession, and, so he himself .
has created the need, if there is any, which however the respondent do not admit. There is no personal residence of the petitioner and this personal residence has been converted by him into commercial as stated above. The petition has been filed to harass, torture and humiliate the respondents and to fetch much exorbitant rent from them and in the alternative to compel them to vacate the premises so that it is also converted into commercial one.
4. On the pleadings of the parties, the learned Rent Controller struck following issues inter-se the parties in contest:-
1. Whether the premises in question are bonafidely required by the petitioner, as alleged?OPP.
2. Whether the petitioner has no cause of action to file the present petition?OPR.
3. Whether the petition lacks material particulars and is not maintainable, as alleged?OPR.
4. Whether the petition is barred by the principle of res judicata?OPR.
5. Relief.::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 5
5. On an appraisal of evidence, adduced before the learned Rent Controller, the learned Rent Controller, hence, dismissed the apt petition preferred therebefore by the .
landlord/petitioner herein. In an appeal, preferred therefrom, by, the landlord/petitioner herein, before, the learned Appellate Authority, the latter dismissed the appeal, and, hence, affirmed the verdict, of, the learned Rent Controller concerned.
6. Now the landlord/petitioner herein, has instituted the instant Civil Revision Petition, before this Court, for hence assailing the findings recorded, in its impugned order, by the learned Appellate Authority.
7. The bonafide need, of the landlord, for, seeking eviction, of the respondents/tenants, from, the demised premises,
(i) is, encapsulated in the demised premises, occurring in the basement of the building, (ii) and, given the regal status of the landlord, his requiring them, for housing therein, his servants, and, drivers, (iii) as, the demised premises exist in close proximity, vis-a-vis, his residential abode, and,hence, he would be ably facilitated, to make easy contacts, for, all the relevant purpose, vis-a-vis, the afore staff. The respondents/tenants strived to stain the afore bonafides, of the landlord, (iv) on anvil of his converting, the, residential premises into, a, guest house, and, also with the ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 6 servant quarters attached, to, the building of the landlord rather being available, for, the afore purpose.
8. Be that as it may, the respodnents/tenants, do not, .
contest the facts, vis-a-vis, the landlord holding a regal status.
However, the, evidence adduced by the respondents/tenants, for, therethroughs, theirs striving, to, strip the apt vigour, of, his espousal, qua his bonafidely requiring the demised premises, hence, for the afore purposes, hence is, comprised, in, vacant servant quarters, existing, in a close proximity, vis-a-vis, the residential abode of the landlord, and, the afore rather satiating the afore need of the landlord.
9. The afore striving of the respondents/tenants, to, hence stain, the pleaded bonafide need of the landlord, vis-a-vis, the demised premises, rather for the afore relevant purpose, is an inapt attempt, to, underwhelm the bonafide requirement, of, the landlord, as the latter alone, can befittingly make choice(s), vis-a-
vis, amongst the accommodation(s) to be vacated, or already vacant, is/are or not suitable for the espoused purpose.
Moreover, with the vacant servant quarters, purportedly adjoining the abode, of the landlord not holding, the closest vicinity, vis-a-
vis, his residential premises, than the demised premises, (a) and, when the latter premises would obviously facilitate, his making an easy contact with his staff housed therein, (b) thereupon, the ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 7 landlord, has, wisely, and, befittingly, chosen the demised premises hence for the relevant purpose, and, hence, his need for housing his staff therein, also cannot, be construed to be stained .
with any vice, of, any malafides.
10. Be that as it may, the learned Appelalte Authority, had, while meteing, a, construction, vis-a-vis, the relevant statutory provisions, borne in Section 14 (3)(a)(i) of the Himachal Pradesh Urban Rent Controller Act, the provisions of Section 14, stand extracted hereinafter:-
"14. Eviction of tenants. - (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied-
(i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that If the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid: Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of 6 per cent per annum: Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non-payment of rent due from him, shall not be evicted as ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 8 a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order ; or
(ii) that the tenant has after the commencement of this Act without the written consent of the landlord
(a) transferred his rights under the lease or sublet the entire building or rented land or any portion thereof; or .
(b) used the building or rented land for a purpose other than that for which it was leased ; or
(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land ; or
(iv) that the tenant has been guilty of such acts and conduct as are nuisance to the occupiers of buildings in the neighborhood; or
(v) that the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause;
the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application;
Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate. (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:
(a) in the case of a residential building, if-
(i) he requires it for his own occupation :
Provided that he is not occupying another residential building owned by him in the urban area concerned:
Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area; or
(ii) it was let to the tenant for use as a residence by reason of his being in service or employment of the landlord, and the tenant has ceased, whether before Or after commencement of this Act, to be in such service or employment :
Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947 (14 of 947), he shall not be ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 9 liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord;
(iii) the landlord is a member of the Armed Forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed .
authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925, (4 of 1925) that he is serving under special conditions within the meaning of section 3 of that Act or is posted in a non-family station.
Explanation-I. - For the purposes of this sub-clause- (1) the certificate of the prescribed authority shall be conclusive proof of the fact that the landlord is serving under special conditions, or is posted in a non-family station ;
(2) "family" means parents and such relation(s) of landlord as ordinarily reside with him and is/are dependent upon him ;
(iv) the tenant has, whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirements
(b) in the case of rented land, if
(i) he requires it for his own use:
Provided that he is not occupying in the urban area concerned any other rented land for the purpose of his business:
Provided further that he has not vacated such rented land without sufficient cause within five years of the filing of the application in the urban area concerned;
(ii) he requires rented land for construction of residential or nonresidential building or for establishment of industry;
(iii) the tenant lets out his rented land to some body else on higher rent;
(c) in the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bona fide by him for carrying out repairs which cannot be carded out without the building or rented land being vacated or that the building or rented land is required bona-fide by him for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or rebuilding or addition or ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 10 alteration cannot be carried out without the building or rented land being vacated;
(d) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer, an architect, a dentist, an engineer, a veterinary surgeon or a medical practitioner, .
including a practitioner of Ayurvedic Unani or Homoeopathic System of Medicine or for the residence of his son who is married, if
(i) his son as aforesaid is not occupying in the urban area concerned any other building for use as office consulting room or residence, as the case may be; and
(ii) his son as aforesaid has not vacated such a building without sufficient cause, after the commencement of this Act, in the urban area concerned :
Provided that where the tenancy is for a specified period, agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub- section before the expiry of such period:
Provided further that where the landlord has obtained possession of any building or rented land under the provisions of clause (a) or clause (b), he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land:
Provided further that where a landlord has obtained possession of any building under the provisions of clause
(d), he shall not be entitled to apply again under the said clause for the use of, or for the residence of the same son, as the case may be.
(4) The Controller shall, if he is satisfied that the claim of the landlord is bonafide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application:
Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time not exceeding three months in the aggregate. (5) Where a landlord who has obtained possession of the building or rented land in pursuance of an order under sub-
section (3) does not occupy it himself or if possession was obtained by him for his family in pursuance of an order under sub-clause (iii) of clause (a) of sub-section. (3), his family does not occupy the residential building, or if ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 11 possession was obtained by him on behalf of his son in pursuance of an order under clause (d) of sub-section (3) his son does not occupy it for the purpose for which the possession was obtained, for a continuous period of twelve months from the date of obtaining possession or if possession was obtained under sub-section (2) of section 15 he does not occupy it for personal use for a continuous .
period of3 months from the date of obtaining possession or where a landlord who has obtained possession of a building under clause (c) of sub-section (3) puts that building to any use other than that for which it was obtained or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly.
(6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall be made under this section on the ground specified in sub-clause (i) of clause (a) of sub- section (3) unless a period of five years has elapsed from the date of such acquisition.
(7) Where the Controller is satisfied that any application made by a landlord for the eviction of a tenant is frivolous or vexatious, the Controller may direct that compensation not exceeding five hundred rupees be paid by the such landlord to the tenant."
(a) rather concluded qua with the requirement, of, the landlord being outside the ingredients thereof, thereupon, the statutory ground reared, for housing the landlord's staff, in, the demised premises, upon, their vacation being repellable, theirs falling outside the domain, of, his family members. The afore reason, as meted by the learned Appellate Authority, for hence, non suiting, the, appellant, is, hinged, upon, an extremely narrow construction being rather meted by it, vis-a-vis, the afore statutory provision, whereas, rather, it, also includes within its ambit, and, domain, (b) even a person upon whom the landlord is dependent, and, with ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 12 emergence, of, unrebutted evidence, vis-a-vis, the landlord belonging to, a, regal family, and, thereupon his, for, maintaining, all attendant therewith all comforts, and, luxury (ies), his .
concomitantly requiring , his maintaining employees i.e. drive,r and, servants, and, for whose needs, of housing, in, proximity, to his abode, he has also proven qua hence, upon, the demised premises, being vacated, theirs being lodged therein, (c) and, also when, hence, his regal status makes him dependent upon his staff, thereupon, upon, meteing an expansive, and, wide construction, vis-a-vis, the afore ingredients, borne in the apt statutory provisions, this court concludes, qua, the afore staff falling, within, the ambit, of, the requisite ground. (d) Whereupon, this Court comes, to an unequivocal conclusion, qua the narrow interpretation, made by the learned Appellate Authority, vis-a-vis, the ingredients enunciated, in the apt provisions of the Act, being both inaptly gross, and, also being not amenable, for, acceptance.
In coming to the afore conclusion, this Court, draws succor, from a judgment of the Hon'ble Apex Court, rendered in a case titled as Joginder Pal vs. Naval Kishore Behal , reported in 2002(1) RCR 582, the relevant paragraph No.33 whereof stand extracted hereinafter:-
33. Our conclusions are crystalised as under:
(i) the words 'for his own use' as occurring in Section 13(3)
(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 13 must receive a wide, liberal and useful meaning rather than a strict or narrow construction.
(ii) The expression __ landlord requires for 'his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the .
landlord himself but also of the normal 'emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as inter- relationship and inter-dependence __ economic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong.
(iii) The tests to be applied are : (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) Whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as 'his own' occupation or user? The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as 'his own' and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim.
(iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life.
(v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord 'for his own use' within the meaning of Section 13(3)(a)(ii).
The appeal is dismissed. The tenant is allowed four months time to vacate the premises subject to his clearing all the arrears and filing the usual undertaking in the Executing ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 14 Court to deliver vacant and peaceful possession over the suit premises to the landlord- respondent on expiry of the time allowed. Compliance in four weeks.
The afore view is also reiterated, in a decision, of the Delhi High Court, rendered in a case titled as Dr. Des Raj Bhasin (died) .
through Lrs. vs. M.G. Khanna, reported in 1999(2) RCT 695, the relevant paragraph No. 3 whereof stand extracted hereinafter:-
"3. I have given my careful consideration to the arguments advanced by learned counsel for the parties Addl. Rent Controller fell in an obvious error. In a property which is constructed in a manner where main house has additional block over garage, to hold that as the accommodation available in the main block is available in the hands of the landklord, therefore, the domestic servant, driver, cook, chowkidar and Aaya must stay in the main block is not based on cogent reasons. There is no dispute that the landlord was a doctor, his son is also a practicing surgeon.
Separate rooms are required for the widow of the deceased landlord as well as Dr. Vinay Bhasin a room is also required for the son of Dr. Vinay Bhasin who is 14 years of age and another room is required for the elder son of Dr. Vinay Bhasin who has gone for higher studies to USA. In addition to a drawing-cum-dining room, a room for clinical consultation and a room for guests and relatives are also required. In the same house the tenant cannot compel that a driver, cook, aaya, chowkidar must stay. Addl. Rent Controller while taking ground realities into consideration ought not to have kept the accommodation available in the hands of the landlord sufficient particularly in view of the fact that it was a family of doctors and as professionals they have got a distinct and different life style. It is otherwise not possible ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP 15 to give one or two rooms adjacent to their own room to domestic servants, cook, Aaya or driver."
11. The afore reasons, hence, render unmeritworhty, the .
reason contrary thereto assigned, by both the learned courts below, hence, to non suit the landlord, and, obviously, the, verdicts impugned before this Court, suffer from, a, gross perversity and absurdity of mis-appreciation, and, non appreciation, of, the evidence on record, and, as also suffer from
12.
r to a perversity, of, non application, of, the afore judgments, vis-a-vis, the cogent evidence thereto, existing, on, record.
For the foregoing reasons, the instant petition is allowed, and, the verdicts impugned before this Court are set aside. The respondents/tenants are ordered to be evicted, from, the demised premises. However, they are granted six months' time, to handover the vacant possession of the demised premises, to the landlord. All pending applications also stand disposed of.
Records be sent back forthwith.
(Sureshwar Thakur) th 25 July, 2019. Judge.
(jai) ::: Downloaded on - 29/09/2019 01:16:14 :::HCHP