Himachal Pradesh High Court
Vijay Kapoor And Anr. vs Maya Ram on 8 January, 1997
Equivalent citations: AIR1998HP15
Author: R.L. Khurana
Bench: R.L. Khurana
ORDER R.L. Khurana, J.
1. The petitioner before this Court is the tenant while the respondent is the landlord of the tenanted premises comprising of Western Set in the lower flat of the building known as "Sharan Ashram" Lower Kaithu Shimla. The parties are being hereinafter referred to accordingly as tenant and landlord.
2. The landlord sought eviction of the tenant under Section 14 of the H.P. Urban Rent Control Act from the tenanted premises on the following grounds:--
(a) that the tenanted premises are required bona fide by the landlord for his own use and occupation; and
(b) that the tenant has been misusing the tenanted premises and is guilty of such acts as to diminish the value and utility of the tenanted premises.
3. The petition for eviction of the tenant was allowed by the learned Rent Controller (I), Shimla vide order dated 16-6-1977. The learned Rent Controller came to the conclusion that the tenanted premises were bona fide required by the landlord for his own use and occupation. The other ground of ejectment did not find favour with the Rent Controller. The tenant was accordingly directed to put the landlord in possession of the tenanted premises within 60 days of the order.
4. On an appeal having been carried before the learned Appellate Authority (Sessions Judge Forests), Shimla, by the tenant, the order of ejectment passed by the learned Rent Controller was affirmed vide order dated 8-3-1995. Consequently, the appeal of the tenant was dismissed.
5. Feeling aggrieved, the tenant has come up before this Court by way of the present petition under Section 24(5), H.P. Urban Rent Control Act, 1987 hereinafter referred to as the Rent Act, assailing the concurrent findings of the two Courts below holding that the tenanted premises are bona fide required by the landlord for his own use and occupation.
6. At the very outset it has been contended on behalf of the landlord that this Court may not interfere with the concurrent findings of fact recorded by the two Courts below in exercise of its revisional jurisdiction which is not wide enough to enable this Court to examine the same as an appeal. It has further been contended that reappraisal of evidence was not permissible nor concurrent findings of fact could he set-aside by this Court in its revisional jurisdiction.
7. Section 24(5) of the Rent Act, reads :--
"(5). The High Court may at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in 'relation thereto as it may deem fit."
8. In Dev Kumar v. Smt. Swaran Lata, 1996 (1) RCR 40 : (AIR 1996 SC 510), the apex Court had the occasion to deal with the scope of revisional power of the High Court under Section 15(5), East Pubjab Urban Rent Restriction Act, 1949 which provision is similar to the provision contained in Section 24(5) of the Rent Act. (quoted above). It was held :--
"..... The jurisdiction of the High Court under Sub-section (5) of Section 15 of the Act, therefore, would entitle the Court to examine the legality and propriety of a conclusion of the Appellate Authority and is thus much wider than the revisional jurisdiction under Section 115 of the Code of Civil Procedure. But it has to be exercised subject to the well known limitations inherent in all revisional jurisdictions and cannot be equated with an Appellate jurisdiction. This being the position, unless there is a perversity in the matter of appreciation of evidence by the Appellate Authority or unless the Appellate Authority has arrived at a conclusion which on the materials, no reasonable man can come, the High Court will not interfere with the same."
9. Keeping the above limitations in mind, this Court has proceeded to examine the evidence in order to satisfy itself if the findings of the two Courts below suffer from any illegality or impropriety.
10. It will not be out of place to mention here certain admitted facts. The appeal filed by the tenant against the ejectment order dated 16-6-1977 was initially dismissed by the Appellate Authority on 17-5-1980. The tenant filed a revision petition, being C.R. No. 95 of 1980 before this Court. During the pendency of such petition before this Court, certain subsequent events were brought to the notice of the Court by the tenant pointingout that the landlord no longer was in bona fide need of the tenanted premises for personal use and occupation since a number of sets had fallen vacant and became available to the landlord. Noticing such facts, the revision petition was allowed by this Court on 12-6-1989 without going into the merits of the case and the matter was remitted to the Appellate Authority for disposal a fresh after taking into consideration such submissions as the parties may like to make before it.
11. On the matter having been remanded to the learned Appellate Authority, it was reheard. The appeal filed by the tenant against the ejectment order dated 16-6-1977 again came to be dismissed on 14-9-1992. The tenant again approached this Court by way of arevision petition under Section 24(5) of the Rent Act, being C.R. No. 225 of 1992. An application for permission to lead additional evidence under Order 41, Rule 27, Code of Civil Procedure read with Section 24(3) of the Rent Act was also made by the tenant. Vide order dated 4-6-1993, while the application made by the tenant for additional evidence was dismissed, the revision petition of the tenant was allowed, the order dated 14-9-1992 of the learned Appellate Authority was set aside and the appeal was again remanded to the Appellate Authority for disposal afresh on merits on the basis of the evidence adduced by both the parties but without affording any other opportunity to them to lead any additional evidence.
12. On the appeal having again been remanded to the learned Appellate Authority, the tenant applied under Order 6, Rule 17, Code of Civil Procedure, for the amendment of his written statement. By virtue of such proposed amendment the tenant intended to deny the title of the landlord qua the tenanted premises by averring that as per the revenue record of the State of Himachal Pradesh is the owner thereof, Vide the impugned order dated 8-3-1995, the application for amendment of the written statement as well as the appeal of the tenant were dismissed and the order of ejectment dated 16-6-1977 passed by the Rent Controller was affirmed.
13. Section 14(3)(a)(i) of the Rent Act provides -
"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."
14. The Apex Court in Phiroze Ramanji Desai v. Chandrakant M. Patel, AIR 1974 SC 1059 had the occasion to deal with the meaning of the word "requires" appearing in Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act. It was held that the word "requires" means 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. Therefore, to prove his bona fide intention to occupy the tenanted premises, the landlord must show that there was bona fide necessity or need to occupy the premises.
15. The landlord in the present case while pleading that he required the tenanted premises for his own use and occupation, has averred in para 3 of his petition in the following terms :--
"That at present the petitioner has got only one room and a kitchen and the same accommodation is riot sufficient to house his two wives and five school going children. Moreover, the wives of the petitioner do not live together peacefully and therefore, they are to be kept separately. The set which is at present with the petitioner does not get any sun and is not conducive for the health of the family and the children, who as a result of which remain always ill."
16. The case set up by the tenant, on the other hand, is that the landlord, in fact, wants to increase the rent. It is pleaded that the landlord occupying the entire ground floor consisting of four rooms. Besides, he has constructed a building known as "Gopal Ashram". He has been letting out the sets in Gopal Ashram to different tenants. Moreover, there is a vast area of land falling in between his two buildings, namely, "Saran Ashram" and "Gopal Ashram". He has constructed four rooms in the year 1970 in the form of a single storeyed building in such open area which rooms are in his own use and occupation. It is also pleaded that since after the making of the eviction petition, a new tenant was inducted on 1-5-1972 in a portion of the building by the landlord.
17. In the replication filed by him, the landlord while denying the other averments admitted having constructed a building in the year 1970. It was averred that the same is a cattle-shed in which he is keeping his cattle for the protection and maintenance of his land and orchard located near the building. In addition there is a store in this building in which his servant resides and also in which some other material has been stored.
18. Admittedly, the existence of this building (which was constructed by the landlord in the year 1970 and alleged to be in use as a cattle shed and store) and its availability and possession being with the landlord has not been disclosed in the petition filed under Section 14(3)(a)(i) of the Rent Act.
19. In Onkar Nath v. Ved Vyas, ILR (1979) HP 1 : (AIR 1980 SC 1218), a case in which provision of Section 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act, 1949, akin to the provision contained in Section 14(3)(a)(i) of the Rent Act, came up for consideration. The Apex Court held :--
"It is common ground trial there are three requirements to make out a cause of action for eviction under that provision, and indeed this is apparent from a bare reading of the sub-section.
In the present case the finding is to the effect that the landlord requires the residential building for his own occupation. But, the legislation has taken care to insist upon two more conditions, namely;
(a) that the landlord is not occupying any other residential building in the area concerned; and
(b) that he has not vacated such a building without sufficient cause. There is not a scintilla of evidence nor indeed there is any averment in compliance with these latter conditions. The necessary consequence follows that not merely is there inadequacy of pleadings sufficient to make out a cause of action but total absence of proof of two vital requirements....."
The Apex Court further observed that 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.
20. A Single Bench of this Court in Tara Chand Sharma v. Baij Nath, 1992 (2) RCJ 323, while dealing with a similar question of the requirement of making full and complete disclosure of the relevant facts under Section 14(3)(a)(i) of the Rent Act has held :--
"That the landlord should make a full disclosure of the relevant facts, pertaining to the requirements of Sub-section (3)(a)(i) and the two provisos, becomes all the more necessary because the satisfaction of the Rent Controller in regard thereto is the condition precedent for the making of an order in favour of the landlord. It is not difficult to envisage a case where a tenant, for lack of alertness or resources, may not be in a position to know the facts relating to the occupation by the landlord of another residential building owned by him in an urban area or the vacation by him of any such building without sufficient cause within a period of five years of the date of filing the application. The tenant, for example, may be a person from a place outside the urban area and may not be resourceful enough or be able, for other handicaps, to find out the truth of the matter with reasonable efforts."
21. It was further held :--
"Suppression of material facts should disentitle a party from seeking aid of the Court. This is necessary to maintain the purity of judicial proceedings and for preventing miscarriage of justice. The principle must be held applicable equally whether the relief is in the discretion of the Court or may be claimable as a matter of course. No party can be permitted to take advantage of its own unfair action in this regard and if it is found to have done so, it should be held liable to forfeit the right to get the assistance of the Court....."
21A. Allowing the tenants' objection with regard to non-disclosure of full and fair disclosure of material facts by the landlord, it was held :--
".....the Courts should insist upon full and fairdisclosure of the material facts by the landlord in the petition made by him to the Rent Controller for seeking eviction of a tenant from residential premises. The requirement of law should not be held to be fulfilled by a mere reproduction of the words of the statute. The landlord should not be given the option of getting an order in his favour by not disclosing the relevant facts fully in his petition in a case where the tenant may not be in a position, even with reasonable effort to find out the truth, particularly in regard to the fact whether the landlord was occupying another residential building owned by him or had not vacated such a building without sufficient cause within five years of the filing of the application in the urban area concerned. The primal burden of disclosing full facts, as observed earlier, always rests upon the landlord, for, he alone can be said to have special knowledge of the true facts in this regard."
22. In the present case as well the landlord has failed to make a full and fair disclosure of all the material facts inasmuch as he did not disclose the full accommodation available with him. Therefore, his eviction petition is liable to be dismissed on this short ground alone by setting aside the orders of the two Courts below.
23. Even on merits, the landlord has not been able to prove his bona fide requirement.
24. It is well settled that the bona fide requirement pleaded by the landlord must not only exist on the date of making of the petition but the same must subsist till the date of the making of the final order of ejectment. If in the meantime events have cropped up which would show that the requirement of the landlord no longer subsists, then the action brought by the landlord for eviction of his tenant must fail. Once an appeal against the order of eviction is filed, the appeal being continuation of the original proceedings, the landlord's requirement must be shown to exist even at the appellate stage. If the tenant is in a position to show that the need or requirement of the landlord no more exists due to the subsequent events, it would be open to him to point out such events and the Court has to examine and evaluate such subsequent events before arriving at a conclusion whether the need of the landlord exists or not.
25. Admittedly, the landlord owns two buildings in the same urban area of Shimla, known as, "Gopal Ashram" and "Saran Ashram". Besides he also owns and possesses one single storey building falling in between the abovesaid buildings and which was constructed by him in the year 1970. This building us per the landlord is being used as a cattle-shed, store and residence of the servant.
26. The building known is "Gopal Ashram" consists of four sets, that is, two sets on the ground and two sets on the first floor. Each of these sets comprises of two rooms. One of the set on the ground floor, at the time of making of the eviction petition, was in occupation of the landlord while the remaining three wore in occupation of the tenants.
27. The building "Sharun Ashram" also is double storeyed. It also consists of four sets, that is, two on the ground floor and two on the first floor. One set each on the ground floor and on the first floor consists of three rooms while the other sets are having two rooms each. One two rooms set in this building is in occupation of the tenant in the present case, while the remaining three sets were in possession of other tenants at the time of the making of the eviction petition.
28. The landlord in has statement while appearing as his own witness on 8-1-1992 before the learned appellate Court, has stated to the following facts:--
(a) At the time of the filing of the eviction petition, his family consisted of himself, his two wives and five children. Eldest child,' a son, at that time was of about 17 years of age.
(b) His eldest son, Bhagat Ram, was married in the year 1983. His family consists of himself, wife, two children and one maid servant.
(c) His second son Keshav Ram aged about 30 years is a bachelor.
(d) His third son Devi Ram was married in the year 1988 and his family consists of his wife and a daughter.
(e) His fourth son Man Mohan was married in 1986 and he has three children.
(f) His fifth son Balak Ram aged about 26 years is unmarried.
(g) The family of the landlord presently consists of 17 members.
(h) He is presently in occupation of three rooms and three kitchens in "Gopal Ashram" and one set in "Saran Ashram".
(i) During the pendency of the case, one set in possession of one Dewan Chand fell vacant which he has given to his son Devi Ram and his family for the purpose of residence.
(j) Again during the pendency of the case, one set in possession of tenant Shri H. K. Bhargav fell vacant, which he has given to his son Man Mohan for residence.
29. In addition to the above admissions coming during the examination-in-chief, the landlord during the course of cross-examination has further admitted to the following facts :--
(i) He is residing in the building "Gopal Ashram" since 1947 and the entire accommodation in this building with the exception of one room and a kitchen is available with him.
(ii) Smt. Malti Devi, one of his wives died during the pendency of the proceedings.
(iii) His ration card is in respect of only eight family members.
(iv) In the year 1988 one set consisting of three rooms, a kitchen and a smalt bath room fell vacant which he has given to his son Bhagat Ram.
(v) There is a pucca cow-shed adjacent to "Gopal Ashram" which was constructed in the year 1969 and it consists of three rooms.
30. Examining the statement of the landlord himself, it becomes evident that the three married sons of the landlord have been given separate accommodation wherein they are living separately with their respective families. One of the wives of the landlord has died. At present the family of the landlord consists of himself, his wife and two unmarried sons, that is, only four members. The accommodation, admittedly available with him, in no terms can be said to be insufficient. The subsequent events brought on the record show that the bona fide requirement, if any, existing as on the date of filing of the eviction petition no longer subsists. Therefore, the landlord is not entitled to seek ejectment of the tenant.
31. Consequently, the revision is allowed and the order of eviction passed against the tenant by the Rent Controller and affirmed by the Appellate Authority is set aside and the eviction petition filed by the landlord is dismissed.
32. No orders as to costs.
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