Punjab-Haryana High Court
Sat Parkash Chaudhary vs Kewal Krishan Malhotra on 6 September, 2010
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.5612 of 2010 (O&M)
Date of Decision : 6.9.2010
Sat Parkash Chaudhary
....Petitioner
Versus
Kewal Krishan Malhotra
...Respondent
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr.Gaurav Mohunta, Advocate
for the petitioner.
.....
MAHESH GROVER, J.
This is a tenant's petition directed against the order of the Appellate Authority, Karnal dated 30.7.2010 vide which the petitioner has been ordered to be evicted from the demised premises.
The respondent-landlord preferred a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Act') seeking eviction of the petitioner on the grounds of bona fide necessity, non-payment of rent and creating nuisance. The petitioner denied all the averments made in the petition and controverted the allegations that he had not paid the rent and that he is creating nuisance.
The Rent Controller after framing the following issues appraised the entire evidence before it and concluded that the petition was liable to be rejected and ordered accordingly:- C.R.No.5612 of 2010 (O&M) -2-
1. Whether the respondent is liable to be ejected from the demised premises on the grounds mentioned in the petition?OPP
2. Whether this court has no jurisdiction to try and entertain the present petition? OPR
3. Whether the petition has not been properly valued for the purposes of court fee and jurisdiction?OPR
4. Relief.
In appeal, the Appellate Authority reversed the findings of the Rent Controller and ordered the eviction of the petitioner which has resulted in filing of the instant revision petition wherein the learned counsel for the petitioner contended that the respondent- landlord failed to plead the requisites of Section 13 of the Act. He referred to the three ingredients which are specifically required to be pleaded by a landlord as enshrined in the statute. He contended that since the respondent-landlord merely pleaded two of the essential ingredients such as his own personal need and that he had not vacated any house in the municipal area where the demised premises is situated, but failed to plead that he was not occupying any other premises in the area, therefore the petition deserves to be rejected on this ground alone. He relied upon a decision of the Full Bench of this Court reported as Banke Ram v. Shrimati Sarasvati Devi 1977(1) I.L.R.(Punjab) 786, wherein in para 9 of the judgment it has been observed as follows :-
"9. One of the main objects of the Act is to protect the tenant from the caprice and whim of the landlord to C.R.No.5612 of 2010 (O&M) -3- eject him without any valid and sufficient reason. It has been specifically provided under section 13(1) that a tenant will not be ejected except in accordance with the conditions laid down in sub-sections (2) and (3). The landlord has been injuncted from evicting the tenant even on the ground of the need of his own occupation unless two other conditions provided in sub-clauses (b) and (c) are also fulfilled. The fulfilment of the conditions is a prerequisite for any order of ejectment. If this objective is to be achieved it is essential that both landlord and tenant must state all the facts specifically and expressly in their pleadings before they enter on evidence. In its absence, the proceedings will be a fertile source of objections that the tenant was taken by surprise because the landlord had not made specific averment in his pleadings and the objection by the landlord that the tenant had not raised specific objection in his reply. In a large number of cases, it has been seen that after a long time, the Appellate Authority or the High Court are required to deal with the question whether amendment of the pleadings by the landlord should be allowed or not. This results in unnecessary prolonged litigation and avoidable burden of expenditure consequent thereto. Such a course is neither in the interest of the landlord nor the tenant. The interest of speedy justice makes it imperative that both the landlord and the tenant must be absolutely clear in their minds from their C.R.No.5612 of 2010 (O&M) -4- respective pleadings as to what case is required to be proved by the landlord and rebutted by the tenant. Viewed from any angle, there is no escape from the conclusion that the landlord must make specific averments in regard to the ingredients contained in sub-clauses (b) and (c). In my considered opinion, the judgment of the Division Bench in Krishan Lal Seth's case (supra) so far as it lays down that it is not necessary for the landlord to plead the ingredients of sub-clauses (b) and (c) in the pleadings does not lay down good law and the same is reversed."
He further contended that the respondent owns another house in the vicinity which was sold during the pendency of the petition and further that the son of the respondent for whose need the demised premises was sought to be got vacated is working in Mumbai where he is getting handsome salary and respondent too is a permanent resident of Mumbai and therefore does not require the premises for his personal need. He contended that these facts have not been properly appreciated by the Appellate Authority and, therefore, the findings recorded by it are liable to be set aside.
I have considered the matter in its entirety.
There is no dispute to the proposition of law as enunciated in the Full Bench judgment relied upon by the learned counsel for the petitioner. But, at the same time, the court cannot be oblivious to the fact that mere non-pleading of a fact, which is enshrined in the statute, can always be rectified if a relevant objection is taken at the initial stage. The petitioner failed to take any such objection in his C.R.No.5612 of 2010 (O&M) -5- reply to the petition. The pleadings have to be considered broadly in a rent petition where it is not captive to the strict law of interpretation which may be the situation in a civil suit. In rent proceedings the Rent Controller is merely obliged to hold an inquiry to look into the averments which have been made in the petition. In view of the fact that the petitioner failed to take such objections and also in view of the fact that the respondent broadly pleaded his personal necessity and also the fact that he had not vacated any house in the municipal area where the demised premises is situated, I am of the opinion that the flaw which has been pointed out by the learned counsel for the petitioner is not fatal to the case of the respondent. The objection, therefore has to be negated.
In so far as the other aspects of the matter that the need of the respondent is not bona fide and that he himself and his son are residing in Mumbai and do not intend to use the demised premises as has been expressed in the petition are concerned, the petitioner always has a remedy under the law in the event of the building for not being put to the use for which it has been got vacated, but the petitioner cannot certainly dictate that the need of the respondent is not bona fide.
It has also come on record that the petitioner is a retired person aged 80 years and his wife is also 78 years of age and now in the evening of their lives they can express a desire to settle down in the demised premises and the need cannot be termed to be a mere wishful thought of the landlord.
The Supreme Court in Sarla Ahuja v. United India C.R.No.5612 of 2010 (O&M) -6- Insurance Company Ltd. 1998(2) RCR 533, made the following observations :
"14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms of the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In Ragavendra Kumar v. Firm Prem Machinary and Co. AIR 2000 Supreme Court 534 it has been observed as under :-
"...It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter..."
Similarly, in Sait Nagjee Purushotham & Co.Ltd. v. Vimalabai Prabhulal and others (2005) 8 SCC 252 the C.R.No.5612 of 2010 (O&M) -7- observations are made :-
".......It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business......"
Consequently, there is no merit in the petition which deserves to be dismissed.
At this stage, learned counsel for the petitioner states that he does not wish to press the present petition in the eventuality of some time being given to him to vacate the demised premises.
Having regard to the prayer, which does not seem to be unjustified, considering that he is in occupation of the demised premises for some time, I deem it appropriate to dispose of this petition as not pressed by accepting the prayer of the petitioner subject to the following conditions :-
i) That the petitioner shall furnish an affidavit before the Rent Controller at Karnal within a period of four weeks from today undertaking to vacate the premises in question and hand over the physical possession of the premises question to the respondent within eight months which shall exclude the period granted by the Appellate C.R.No.5612 of 2010 (O&M) -8- Authority.
ii) That the petitioner shall restore the possession of the premises in question to the respondent without damage to the property and he shall not make any alteration or addition to the property and also continue to pay the rent at the agreed rate by the 7th of each month and shall also pay all the arrears, if any, on account of rent or any other terms of the tenancy while furnishing the undertaking, i.e. within four weeks.
iii) That the petitioner shall also record in the undertaking that he would be bound by the terms of such an undertaking and shall not make any attempt to wriggle out of the same.
6.9.2010 (MAHESH GROVER) JUDGE dss