Himachal Pradesh High Court
M/S Som Nath Swaran Lal vs Dr. Shashi Pal Sood on 19 June, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 250 of 2022
Decided on: June 19, 2023
________________________________________________________
.
M/s Som Nath Swaran Lal ...........Petitioner
Versus
Dr. Shashi Pal Sood ....Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1No.
For the Petitioner : Mr. Ravi Tanta, Advocate.
For the Respondent : Mr. B. Nandan Vashishta, Advocate.
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Sandeep Sharma, Judge (oral):
Being aggrieved and dissatisfied with order dated 7.5.2022 passed by learned Additional District Judge (II), Shimla exercising powers of appellate authority (IV) under the Urban Rent Control Act in CMP No. 1404 of 2021 in an appeal filed by the petitioner, whereby an application, filed by the petitioner-tenant (hereinafter, 'tenant') under Order 41 rule 25 read with 151 CPC t praying therein to frame additional issue, came to be rejected,, petitioner/tenant has approached this court in the instant proceedings under Art. 226, praying therein to set aside the impugned order and allow the application filed by it for framing additional issues.
2. Facts as are necessary for the adjudication of the present petition are that the respondent-landlord filed an eviction petition under Urban Rent Control Act against petitioner-tenant on the ground of bonafide requirement by the landlords for installation of X-ray machine for himself and his wife (now deceased), since both were practising 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/06/2023 20:31:51 :::CIS 2doctors as well as for settling their son, who has done course of occupational therapy. Aforesaid ground set up by the landlord came to .
be refuted by tenant, who in its reply denied specifically denied factum if any of bona fide requiremenet of the present respondent/landlord and his deceased wife.
3. After having framed issues on the basic pleadings adduced on record by respective parties, learned Rent Controller recorded evidence of both the parties and vide judgment dated 20.10.2021 allowed the rent petition bearing No. 74-2 of 2017, Annexure P-3.
4. Being aggrieved and dissatisfied by the order of eviction passed by learned Rent Controller, petitioner-tenant filed an appeal under S.24 of the Urban Rent Control Act before learned Additional District Judge-
II, Shimla (exercising power of appellate authority under Urban Rent Control Act). Alongwith appeal, tenant also filed an application under Order 41 rule 25 CPC praying therein to frame additional issue to the following effect:
"Whether upon death of petitioner Smt. Monika Sood, the demised premises is still bonafidely required by now surviving petitioner and his son for their own use and occupation as alleged?
5. Tenant averred in the application (Annexure P-5), that since wife of the surviving respondent, who too was one of original petitioners at the time of filing the eviction petition, had died during pendency of the rent petition and sole case of the non-applicant and his deceased wife that they bonafidely require demised premises for setting up X-ray room/machine, ground of bona fide requirement has become ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 3 'inappropriate'. Tenant by way of application set up a case that x-ray machine, if any, is not required for medical practice rather same was .
required by deceased wife of respondent-landlord because, she was a surgeon and gynaecologist as per evidence led on record. Tenant also averred in application that occupation of son of the respondent/land lord is of not such nature, where installation of x-ray machine is required. In totality of averments contained in the application, it came to be pleaded on behalf of the tenant that ground taken by respondent r to landlord of bona fide requirement of demised premises for setting up X-
ray machine/room has become inappropriate and as such, an additional issue is required to be framed as detailed herein above
6. Aforesaid application made by tenant came to be resisted by the respondent landlord by way of reply to the application, wherein though landlord admitted factum with regard to death of Monika Sood, petitioner No.2 in the original rent petition but specifically claimed that he being doctor practicing in medicine side also requires x-ray machine and as such, ground of bonafide requirement of demised premises for setting up x-ray machine has not become 'inappropriate'.
7. On the basis of pleadings and evidence led on record by respective parties, learned appellate authority exercising power under the Urban Rent Control Act rejected the application made on behalf of the tenant.
8. Being aggrieved and dissatisfied with aforesaid order passed by learned appellate authority below, petitioner-tenant has approached ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 4 this court in the instant proceedings, praying therein to set aside the impugned order .
9. Having heard learned counsel for the parties and perused material available on record this court finds that there is no dispute that initially rent petition was filed by the respondent/landlord Dr. Shashi Pal Sood and Dr.Monika who has expired, on the ground of bonafide requirement of demised premises, for setting up of x-ray room. It is also not in dispute that surviving landlord. Shashi Pal Sood is also a doctor of medicine
10. If the petition filed by the landlord is read in its entirety, it never came to be pleaded by the landlords that x-ray machine sought to be installed in demised premises is only required by deceased landlord, Dr.Monika Sood rather, both the landlords being doctors claimed before learned Rent Controller that they being doctors require to install x-ray machine. Though landlord also set up a case that their son, who is an occupational therapist, also requires demised premises, who has done course of occupational therapy but that may not have much relevance so far adjudication of the controversy at hand is concerned.
11. Learned counsel for the petitioner tenant vehemently argued that the evidence led on record by landlords clearly reveals that X-ray machine sought to be installed in demised premises was required bona fide by deceased doctor Monika Sood and after her death ground of bona fide requirement taken by landlord has ceased to exist /become inappropriate, as such, learned court below ought to have allowed the application thereby directing the framing of additional issue ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 5 as detailed herein above. He submitted that provision contained under Order 41 rule 25 itself suggests that prayer for framing additional issue .
can be accepted on the basis of subsequent developments, which may be relevant for adjudication of the case at hand.
12. In this regard, learned counsel for the petitioner placed reliance upon judgment passed by Hon'ble Apex Court in Kedar Nath Agrawal v. Dhanraji Devi (2004) 8 SCC 76, which has been otherwise taken note by the learned appellate authority below while passing impugned order.
13. While refuting aforesaid submission made by learned counsel for the petitioner, Mr. B.N. Vashishta, Advocate appearing for the landlord argued that since it was pleaded in rent petition that X-ray machine is required for practice of both the landlords, ground of bona fide requirement of demised premises for installation of X-ray still is appropriate. He submitted that there is no dispute to the effect that surviving landlord Shashi Pal practices on medical side and as such, it cannot be said that there is no requirement of X-ray machine rather being doctor he can always install machinery and equipment in his clinic for clinical and physical diagnosis of the patients.
14. He submitted that by now it is well settled that bona fide requirement is to be seen on the date of filing of the petition. In this regard, he placed reliance upon judgment passed by Hon'ble Apex Court in Gaya Prasad v. Pradeep Srivastava, (2001) 2 SCC 604.
15. Having carefully perused the material available on record, especially the rent petition filed by respondent /landlord, this court is ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 6 not persuaded to agree with Mr. Ravi Tanta learned counsel for the petitioner /tenant that X-ray machine was sought to be installed solely .
for deceased respondent landlord Monika Sood, who admittedly at the time of filing of petition was a gynaecologist, rather, it has been specifically pleaded that the landlords, who are doctors need to install X-ray machine in demised premises. Since there is no evidence available on record that after demise of one of the landlords i.e. Dr.Monika Sood, Dr. Shashi Pal the surviving landlord has stopped practice or is not require X-ray machine, no illegality can be said to have been committed by learned authority below, while rejecting prayer made on behalf of the petitioner for framing of additional issues.
16. No doubt careful perusal of judgment in Kedar Nath Agrawal supra, pressed into service by learned counsel for the petitioner suggests that the court, while considering prayer made by applicant for framing of additional issues should take into consideration following facts:
(i) Relief claimed originally by reason of subsequent change of circumstances has become inappropriate; or
(ii) it is necessary to take notice of subsequent events in order to shorten the litigation
(iii) It is necessary to do so in order to do complete justice between the parties.
17. However, in the instant case, all the aforesaid circumstances do not exist. On account of subsequent change, which, in the case at hand, is death of one of landlord Monika Sood, original relief claimed has not become inappropriate. Even if court takes notice of subsequent events, which is death of landlord Monika Sood, that would not shorten ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 7 the litigation. In case, prayer made for additional issue framing is accepted in the present petition, it would not help the court to do .
complete justice rather, respondent/ landlord would be burdened unnecessarily to prove the fact, which otherwise stands proved on record. By now it is well settled that bonafide requirement of landlord is to be seen on the date of filing of rent petition on the ground of bona fide requirement.
18. During pendency of the case, many subsequent developments may take place but in case, having taken note of such subsequent development, case filed by one party is permitted to be prolonged, case would never come to an end and as such, Hon'ble Apex Court as has held in Kedar Nath Agrawal, application if any, for amendment of pleadings or framing of additional issues on ground of subsequent developments can be allowed, if relief claimed originally becomes inappropriate on account of changed circumstances. In the instant case, as has been discussed in detail. ground of bona fide requirement of demised premises for installation of X-ray machine has not become inappropriate with the death of one of landlord Monika Sood, especially when surviving landlord is himself a doctor. Hon'ble Apex Court in Gaya Prasad supra, has held as under:
"10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 8 for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process .
system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.
11. We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. In Remesh Kumar vs. Kesho Ram [1992 Suppl. (2) SCC 623] a two-Judge Bench of this Court (M.N. Venkatachalia, J., as he then was, and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 9 were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events .
provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is this:
"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief."
12. This Court reiterated the same principle in Kamleshwar Prasad vs. Pradumanju Agarwal [1997 (4) SCC 413] that the crucial date normally is the date of filing the petition. In that case, a two-Judge Bench (K. Ramaswamy and G.B. Pattanaik, JJ) has held that even the subsequent event of death of the landlord who wanted to start a business in the tenanted premises is not sufficient to dislodge the bona fide need established by him earlier.
This is what Pattanaik J. has observed for the Bench:
That apart, the fact that the landlord needed the premises in question for starting a business which fact has been found by the appellate authority, in the eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son.""
19. Consequently, in view of above, this Court finds no merit in the petition and the same is dismissed. Impugned order is upheld. Interim orders, if any, stand vacated. Record, if received, be sent back. Parties ::: Downloaded on - 21/06/2023 20:31:51 :::CIS 10 through counsel undertake to appear before learned appellate authority below on 4.7.2023, enabling it to proceed with the matter further. Since .
matter is hanging in fire for a long time, this court hopes and trusts that the appeal shall be decided by the appellate authority below expeditiously, preferably within a period of six months from the date of this order.
(Sandeep Sharma) Judge June 19, 2023 (vikrant) ::: Downloaded on - 21/06/2023 20:31:51 :::CIS