Himachal Pradesh High Court
Sh. Ram Krishan Melu vs Of on 3 November, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.R. No. 148 of 2005.
Reserved on: 12.10.2015.
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Decided on : 3rd November, 2015.
Sh. Ram Krishan Melu .....Petitioner.
Versus
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Smt. Kusum Bhasin ....Respondent.
Coram:
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The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners: Mr. Ashok Sood, Advocate.
For the Respondent: Mr. Bhupinder Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate.
Sureshwar Thakur, Judge The landlord/respondent herein had preferred a petition before the learned Rent Controller (V), Shimla, Himachal Pradesh for eviction from the demised premises of the petitioner herein/tenant on the ground of the demised premises being bonafidely required by the landlord/respondent herein to satiate her bonafide requirement of increased accommodation arising from a 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 2spurt in the numerical strength of her family members named in the petition for eviction to be residing with her, especially with the extant accommodation available with .
the respondent herein/landlord being insufficient besides unsuitable to accommodate the landlord/respondent herein and her family members as depicted in the eviction petition.
2. The petition for eviction preferred by the of landlord/respondent herein before the learned Rent Controller (V), Shimla rt was dismissed by the latter. An appeal was preferred by the respondent herein/landlord before the Appellate Authority. The latter in his judgement impugned before this Court reversed the order of the learned Rent Controller (V), Shimla. The tenant/petitioner herein standing aggrieved by the rendition of the learned Appellate Authority has instituted the instant revision petition before this Court assailing the judgement recorded by it, in favour of the landlord/respondent herein.
3. Briefly stated the facts of the case are that the landlord Kusum Bhasin preferred a petition under Section 14 of the H.P. Urban Rent Control Act against the tenant Shri Ram Krishan Melu, petitioner herein on the ground of his being in arrears in rent since 10.09.1992 and the premises comprised in 56/10 Jutogh Cantt, Shimla was required by ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 3 her for her bonafide occupation. It was averred that she purchased the demised premises through sale deed and demised premises remained under the tenancy of tenant .
Ram Krishan Melu. The rent was Rs.100/- per month and on acquiring right, title, interest in the demised premises, the tenant-petitioner herein was required to make payment of rent to her. It was also averred that she has a large family of which included her husband, children, two brothers-in-law, their families and mother-in-law i.e. 12 members and rt premises available with her is insufficient to accommodate the members of the joint family, as such, she required the demised premises for her own occupation. It is further averred that after her acquiring title to the demised premises she had not vacated any premises in her possession within the Municipal Corporation area immediately preceding 5 years from the filing of the present petition without any sufficient cause.
4. Tenant Ram Krishan Melu filed written reply disputing the title of the petitioner and claimed that there existed no relationship of landlord and tenant. He admitted to have been in possession of set No.56/10 situated within the cantonment area of Jutogh. It was claimed that petitioner has suppressed the existence of other residential ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 4 accommodation available with her comprised in Set No.56/3. He had denied that accommodation with the petitioner was insufficient and there existed joint family i.e. .
her brothers-in-law and others. She had got vacated numbers of sets in Shimla within 5 years. Respondent had preferred a suit challenging the title of the petitioner and the civil suit was dismissed by the trial Court. The appeal of preferred by the petitioner herein was accepted and sale deed was ordered to be cancelled by the appellate Court.
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5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:-
1. Whether the petitioner requires the premises for her bonafide requirement?
OPP
2. Whether the respondent is in arrears of rent as alleged? OPP
3. Whether the petition is not maintainable as alleged? OPR
4. Whether there is no relationship of landlord and tenant? OPR
5. Whether the petition is liable to be stayed under Section 10 of the C.P.C.? OPR
6. Relief.
6. On an appraisal of the evidence, adduced before the learned Rent Controller, the learned Rent Controller dismissed the Rent Petition. In an appeal, preferred before ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 5 the learned Appellate Authority by the landlord/respondent herein against the order of the learned Rent Controller, the learned Appellate Authority allowed the appeal.
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7. Now the petitioner herein/tenant has herein instituted the instant revision petition, assailing the findings, recorded by the learned Appellate Authority, in, its impugned judgement.
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8. In the petition preferred by the respondent herein/landlord before the learned Rent Controller rt for eviction of the petitioner herein/tenant from the demised premises, it was expatiated therein of landlord/ respondent herein under a registered deed of conveyance constituted in Ex. RW1/A having purchased the shares of the vendors therein in the built up property christened as 56 Jutog Cantt Shimla. The respondent herein/landlord had espoused before the learned Rent Controller that she is in possession of two rooms, one kitchen and one bathroom comprised in set No.56/15. She had also espoused before the learned Rent Controller that her husband is carrying out business in a shop comrpised in a portion of the undemised premises.
The aforesaid residential accommodation comprising of two rooms, one kitchen and bathroom as extantly available for the habitation of the landlord/respondent herein was ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 6 canvassed by her to be incommodious arising from the factum of her family members depicted in the eviction petition to be also residing with her, carrying a numerical .
strength of 12. She in her recorded deposition on oath has corroborated the aforesaid averment cast in her petition for eviction. She has also voiced in her testimony recorded on oath that she had not within five years vacated any of accommodation. Her testimony on oath portraying the factum aforesaid of 12 members of her family residing rt along with her in the meagre incommodious accommodation comprising of two rooms, one kitchen and bathroom stands supported by the deposition of PW-2.
9. The tenant/petitioner herein in his recorded deposition on oath has divulged therein the fact of the landlord/respondent herein being in occupation of set No.56/15 comprising of a shop, three rooms along with one lobby, kitchen and two bathrooms. Furthermore, he has testified on oath that the aforesaid accommodation along with the accommodation comprised in sets No.56/3 and 56/4 depicted in site plan Mark-X while up-surging the factum of therein existing two rooms each, bathrooms and latrine, as a corollary, rendered the accommodation comprised both in set No. 56/15 as well as in sets No.56/3 ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 7 and 56/4 depicted in site plan Mark-X to be both sufficient besides suitable to accommodate the family of the respondent herein/landlord. Apart therefrom, the .
tenant/petitioner herein contested the factum of persons/individuals numbering 12 as depicted in the eviction petition while being persons/individuals staying along with her while theirs constituting a joint family with of her for whose needs for accommodation, she could stake a claim for the demised premises being bonafide reclaimable rt by her from the petitioner herein/tenant, on his eviction therefrom other than the husband of the landlord and her children. In other words, he contested the factum of theirs while being persons other than the husband and children of the respondent herein/landlord theirs hence not constituting a joint family with the former for whose bonafide need for accommodation she could reclaim possession of the demised premises on his eviction therefrom.
10. Initially it has to be determined whether the thrust of the claim of the respondent herein/landlord being invested with an indefeasible legal right, to bonafide reclaim the demised premises from the tenant/petitioner herein on his eviction therefrom, anvilled upon the factum of the accommodation comprised in sets No.56/15, 56/4 ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 8 No.56/3 depicted in site plan Mark-X being incommodious besides unsuitable to accommodate her as well as the other members of her family residing along with her, who too .
while being dependent upon her require residential accommodation for their habitation, derives any legal leverage from evidence existing on record of probative tenacity or whether there is veracity in the propagation of of the tenant that given the accommodation in possession of the landlord/respondent herein comprising of sets No.56/3 rt and 56/4 consisting of two rooms each, kitchen and bathroom and of 56/15, comprising of a shop, lobby, two rooms, kitchen and bathroom is both suitable as well as sufficient to accommodate the landlord/respondent herein.
Apart therefrom it has to be determined whether there is truth besides accuracy in the deposition of the landlord/respondent herein of the members of her family depicted in the petition for eviction and deposed by her on oath to be not only constituting a joint family along with her besides, residing along with her hence entitling the respondent herein/landlord to for also satiating their needs for residential accommodation hers hence carrying an inherent legal right to bonafide seek the eviction of the tenant/petitioner herein from the demised premises.
::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 911. Initially it has to be determined whether the testimony of RW-2 that apart from the accommodation available with the respondent/landlord comprised in set .
No.56/3 depicted in site plan Mark-X, there is additional accommodation available with her in sets Nos. 56/15 and 56/4 which accommodation while being both suitable as well as sufficient renders the claim of the respondent of herein/landlord to reclaim possession of the demised premises from the tenant on his eviction therefrom, to be rt oustable, is borne out by the documentary evidence existing on record. For determining the factum aforesaid whether the accommodation aforesaid comprised in sets Nos. 56/3, 56/4 and 56/15 is suitable as well as sufficient to accommodate her, it is apt to refer to site plan Mark-X, correctness whereof has been admitted by the petitioner herein/tenant. Given the factum that the petitioner herein/tenant has admitted the correctness of site plan Mark-X, necessarily then, when Mark-X unfolds the factum of set No. 56/3 comprising of godowns, besides set No.56/4 also consisting of two godowns, constrains this Court to conclude that accommodation depicted in Mark-X available with the respondent herein in both sets Nos. 56/3 and 56/4 is both incommodious as well as unsuitable for habitation ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 10 while its uncontrovertedly consisting of godowns. More so given the factum that 12 members i.e. her two brothers-in-
law along with their respective families residing along with .
her which factum of theirs residing for the reasons to be afforded hereinafter garners sustenance from the evidence germane to it existing on record, besides when for the reasons to be assigned hereinafter their need for habitable of accommodation with the respondent herein/landlord is encompassed within the contemplation of the parlance rt borne by the phrase "his own occupation" occurring in sub caluse (I) of clause (a) of sub section (3) of Section 14 of the H.P. Urban Rent Control Act (hereinafter referred to as "the Act") for giving legal sustenance to her claim of hers bonafidely requiring the demised premises. In face thereof, the espousal by the tenant/petitioner herein that the accommodation comprised in set Nos. 56/4 and 56/3 is habitable as well as suitable for satiating the needs of residence of the landlord/respondent herein cannot be countenanced, especially when even the accommodation comprised in set No.56/15 is incommodious vis-a-vis the numerical strength of the members of the families of her brothers-in-law who while constituting a joint family with her, are residing therein with the respondent ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 11 herein/landlord. In aftermath, the findings recorded by the learned Appellate Authority that the accommodation available with the respondent herein/landlord in set .
No.56/15 is incommodious to house her as well as her family members is not liable for interference.
12. Now the strength of the espousal by the tenant/petitioner herein disclosed in his deposition on oath, of of the members of the family of the landlord/respondent herein not residing with her hence she being not entitled to rt seek on their behalf any bonafide need of theirs while not residing along with her, the eviction of the petitioner herein/tenant from the demised premises, has to be gauged as well as tested. For determining its legal potency, an advertence to the testimony of PW-2 is imperative. He, in his recorded deposition on oath has categorically deposed that along with the respondent herein/landlord 12 members of her family are residing. Apart therefrom, he has divulged therein that the landlord/respondent herein along with 12 persons residing alongwith her constitute a joint family. The aforesaid deposition of PW-2 of 12 members of the family of the landlord/respondent herein depicted in the petition for eviction to be residing along with the respondent herein/landlord besides his having deposed ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 12 on oath of theirs along with her constituting a joint family as well as residng with her, has remained unshattered during the course of ordeal of PW-2 having been subjected .
to an exacting cross-examination. In face thereof, probative tenacity is to be imputed to the testimony of PW-2 qua the fact of 12 members of the family of her brothers-in-law residing along with her and she along with them of constituting a joint family. Even though, the fact aforesaid stands repudiated in the deposition of RW-2 Ram Krishan, rt the petitioner herein/tenant, yet the testimony of RW-2 in repudiation to the fact aforesaid deposed by PW-2 cannot be construed to be garnering any tenacity or legal vigour, especially when he in his cross-examination has feigned ignorance qua the identity of the members of the family of the landlord/respondent herein. His feigning ignorance qua the identity of the family members of the landlord/respondent herein, undermines the efficacy of his testimony existing in the last portion of his cross-
examination wherein he has repulsed besides repudiated the fact of theirs not staying alongwith the respondent herein/landlord. In other words, with the lack of familiarity of the petitioner herein/tenant with the identity of the family members of the landlord/respondent herein, dis-empowers ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 13 him to deny the fact that they, as espoused by the landlord/respondent herein in her petition for eviction of the petitioner herein/tenant from the demised premises as well .
as in her recorded deposition recorded on oath, are residing along with her.
13. The petitioner herein/tenant has contested the factum of the landlord/respondent herein being entitled of to reclaim the possession of the demised premises for satiating the requirement of residential accommodation of rt 12 members of the family of her brothers-in-law who constitute a joint family with her, on the ground that the landlord/respondent herein can claim/rear a bonafide requirement for reclaiming the demised premises on eviction therefrom of the petitioner herein/tenant, only for satiating the residential requirement for herself, her husband and her children, which requirement of sufficiency of accommodation stands satiated, she being in possession of two rooms, one kitchen and one bathroom comprised in set No. 56/15. This Court has held that the propagation by the landlord/respondent herein of 12 members of the family of the respondent herein/landlord depicted in the petition for eviction besides, deposed by her on oath to be residing along with her, standing for the reasons afforded ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 14 hereinabove to receive reverence. Now for determining the fact whether the respondent herein/landlord is entitled to reclaim the possession of the demised premises from the .
petitioner herein/tenant on his eviction therefrom even for satiating the need for habitable accommodation of 12 members of the family of her brothers-in-law, an advertence of the apposite provisions of the Act is imperative.
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14. Even though, the Act does not define "family" so as to take within its ambit members of the rt family of the landlord other than her husband and children, yet with the Hon'ble Apex Court in its decision reported in Kailash Chand vs. Dharam Dass, 2005(1) RCR (Rent) (SC) 551 having extended the signification borne by the phrase "his own occupation" as occurring in sub clause (I) of clause (a) of sub section (3) of Section 14 of the Act for enabling besides facilitating it to take within its ambit not only the bonafide requirement of the landlord alone rather its encompassing within its ambit, the need for residential accommodation of those members of the family of the landlord, who are dependent upon him/her. Consequently, with there being an emanation from the evidence on record of 12 members of the family of the respondent/landlord while being her close relatives inasmuch as theirs being her ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 15 brothers-in-law as well as their children, in capacity whereof they are residing along with her, as a corollary dependent upon her for their respective needs for .
residential accommodation, entitles the landlord/respondent herein to, for satiating their conjoint/cumulative needs of residential accommodation along with her, hence justifiably reclaim for hence satiating their bonafide requirement of a of commodious suitable residential accommodation with her, which accommodation for reasons aforesaid is extantly rt unavailable with them, possession of the demised premises on eviction therefrom of the petitioner herein/tenant. In aftermath, the contention of the learned counsel for the petitioner herein/tenant that the landlord/respondent herein is entitled to institute a petition for eviction of the tenant/petitioner herein from the demised premises only when she is suffering from paucity or is extantly possessed of incommodious accommodation to house herself, her husband and her children, in eventuality and contingency whereof alone, she is to be construed to be bonafidely entitled to reclaim possession of the demised premises from the petitioner herein/tenant on his eviction therefrom, cannot come to be countenanced. Contrarily with, on a close and circumspect reading of the deposition ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 16 of PW-1, evidence forthcoming that the landlord/respondent herein along with her brothers-in-law and their children, who along with her are residing, since the past 22 years and .
she along with them constituting a joint family, is construed in entwinement with the factum of there being a denial in her cross-examination of her brothers-in-law being engaged in a separate business, hence not dependent upon her of constrains this Court to conclude that her brothers-in-law as well as their children constitute a joint family along with the rt respondent herein/landlord besides are also hence dependent upon her for their need for a suitable and commodious residential accommodation along with her. In sequel, the propagation by the landlord/respondent herein both in the petition for eviction as well as in her sworn deposition on oath, of hers extantly possessing incommodious and unsuitable accommodation for housing herself as well as her brothers-in-law and their children who cumulatively while carrying a numerical strength of 12, when for the reasons aforesaid stands countenanced besides when this Court has accepted the factum of theirs being dependent upon her, necessarily then in tandem with the verdict of the Hon'ble Apex Court reported in Kailash Chand (supra) wherein the signification borne by the ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 17 phraseology "his own occupation" of sub clause (I) of clause
(a) of sub section (3) of Section 14 of the Act has been extended to be encompassing within its ambit the bonafide .
need of residential accommodation of not only the landlord, her husband and children but also of his/her dependants, as a corollary then the petition for eviction instituted by the landlord/respondent herein for eviction of the petitioner of herein/tenant from the demised premises on the score of theirs along with her while theirs being dependent upon her rt besides, residing along with her, theirs hence too bonafide requiring the demised premises for satiating their demand/requirement of a suitable as well as commodious accommodation, which they are extantly not possessed of, cannot be said to be out side the purview or scope of the import or signification borne by the expression "his own occupation" as occurring in sub clause (I) of clause (a) of sub Section (3) of Section 14 of the Act, so as to dis-entitle or oust the respondent herein/landlord to recover possession of the demised premises from the petitioner herein/tenant on his eviction therefrom.
15. Even though the petitioner herein/tenant contended that the landlord/respondent herein had obtained vacant possession of many residential ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 18 accommodations yet no cogent proof in support thereof has come to be adduced. In sequel, the inference which is marshable from the aforesaid discussion is that the .
respondent herein/landlord is entitled to reclaim possession of the demised premises from the petitioner herein/tenant on his eviction therefrom, as she bonafide requires it, for satiating her need for residential accommodation besides of of her dependant family members who along with her constitute a joint family.
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16. With this Court having allowed RSA No.361 of 2002 reversing the judgment and decree of the learned First Appellate Court whereby it declared sale deed "Mark-
B" therein to be nonest qua the conveyance therein of the share of the successors-in-interest of deceased Ram Krishan Gupta, concomitantly, the respondent herein/landlord holds absolute title to the demised premises for hers being empowered to seek eviction therefrom of the petitioner herein/tenant.
17. The above discussion unfolds the fact that the conclusions as arrived at by the learned Appellate Authority are based upon a proper and mature appreciation of the evidence on record. The findings are anchored upon admissible evidence. While rendering the findings, the ::: Downloaded on - 15/04/2017 19:18:11 :::HCHP 19 learned Appellate Authority has not excluded germane and apposite material from consideration not taken into consideration discardable material. Moreover, a perusal of .
the record demonstrates that the learned Appellate Authority has neither exceeded the jurisdiction vested in it nor exercised jurisdiction with material illegality, impropriety and irregularity.
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18. In view of the above discussion, the present civil revision petition is dismissed being devoid of merits. The rt judgement rendered by the learned Appellate Authority is affirmed and maintained. All pending applications also stand disposed of. No order as to costs.
3rd November, 2015. (Sureshwar Thakur ), (jai) Judge.
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