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2000 DIGILAW 265 (HP)

MOHINDER LAL GUPTA v. KAUSHALYA DEVI VOHRA

2000-09-28

KAMLESH SHARMA

body2000
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioner is tenant whereas, the respondent is landlady of the demised premises comprising two rooms, kitchen, bath room and toilet in the top floor of the building known as 7 Oaks, Sanjauli within the jurisdiction of Municipal Corporation, Shimla. The tenant is aggrieved by the judgment dated 19.8.1996 passed by the Appellate Authority (II), Shimla whereby his appeal was rejected and the eviction order dated 19.10.1994 of the Rent Controller (2), Shimla was affirmed. The Rent Controller had passed the eviction order against the tenant on the ground that the landlady bona fide requires the demised premises for her married son. Now, the tenant has filed the present revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter called the Act). 2. This revision petition was earlier allowed by judgment dated July 8, 1999 passed by learned Single Judge of this Court and the eviction.order dated 19.8.1996 was set aside and the appeal of the tenant was remanded to the appellate authority for deciding it afresh on the basis of the amended pleadings after affording an opportunity to the parties to lead such evidence as they might wish to produce. The appellate authority was also directed to frame such other and further issues, as might arise from the amended pleadings before calling upon the parties to lead evidence. This judgment was passed by the learned Single Judge after allowing the application for amendment of reply of the tenant, which was rejected by the appellate authority. Against the judgment of the learned Single Judge the landlady had filed SLP (Civil) No. 19373 of 1999 in the Supreme Court of India, which was granted, appeal was allowed and the judgment of the learned Single Judge of this Court was set aside holding that the amendment of the reply should not have been allowed and the decision of the lower appellate Court dismissing the amendment application was correct. By its order dated April 24, 2000 the Supreme Court has directed that the revision petition be decided afresh. 3. The scope of the present revision petition is to examine the records of this case in order to satisfy whether the eviction order passed by the Rent Controller and affirmed by the appellate authority is legal or proper. By its order dated April 24, 2000 the Supreme Court has directed that the revision petition be decided afresh. 3. The scope of the present revision petition is to examine the records of this case in order to satisfy whether the eviction order passed by the Rent Controller and affirmed by the appellate authority is legal or proper. In T. Sivasubramaniam and others v. Kasinath Pujari and others, (1999) 7 SCC 275, the learned Judges of the Supreme Court while interpreting almost similar provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 have observed in para 5:— "......Under Section 25 of the Act, the High Court can call for and examine the record of the appellate authority in order to satisfy itself as to regularity of such proceedings or the correctness, legality or propriety of any decision or orders passed therein. The words "to satisfy itself" employed in Section 25 of the Act no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. In the present case what we find is that neither has the landlord set out his need or requirement for the premises for his occupation in his petition nor has he led any evidence to show that his need is bona fide. In the absence of such evidence, the Rent Controller and the first appellate authority acted contrary to law in allowing the petition of the landlord by directing the eviction of the tenants. In such circumstances, the High Court was fully justified in interfering with the findings of the courts below. In the absence of such evidence, the Rent Controller and the first appellate authority acted contrary to law in allowing the petition of the landlord by directing the eviction of the tenants. In such circumstances, the High Court was fully justified in interfering with the findings of the courts below. We, therefore, reject the second submission of learned Counsel." In view of the ratio of the above cited judgment this Court is not required to reappreciated or reassess the evidence for coming its own findings and reject the concurrent findings of fact arrived at by the authorities below. 4. In paragraph 18(a) of the eviction petition it is specifically alleged that:— "......the demised premises along with the adjacent and adjoining premises are bona fide required by the petitioner for the residence of her son Dr. Jai Gopal Vohra, S.M.O., who is married. The aforesaid son of the petitioner is not occupying in the urban area of Shimla any other building as residence. The said son of the petitioner has also not vacated such a residential building, withough sufficient cause, after the commencement of the Himachal Pradesh Urban Rent Control Act, 1987 in the urban area of Shimla..... He has recently been posted at the Himachal Pradesh Health and Family Welfare Centre, Pari Mahal, Kasumpti, Shimla, in September 1991. He and his family are staying with his parents in the rented accommodation in Jagat Niwas, Sanjauli, Shimla-6, where the petitioner and her husband have only two room accommodation with them, which rented accommodation is totally inadequate and insufficient for accommodating the said son of the petitioner and his family. Moreover, the petitioner and her husband are also visited by their other son and four daughters and their respective families when the situation becomes all the more difficult." It is further stated that Doctor Jai Gopal Vohra is entitled to Type IV accommodation consisting of two bed rooms, one drawing room, one dining room, one kitchen, two bath rooms cum toilets and a store room and with a view to acquire this much accommodation two eviction petitions have been filed, one against the tenant herein and another against Smt. Tara Sharma, as two sets occupied by them are in the same floor and are adjoining to each other, and more suitable to meet the requirement of the son of the landlady. 5. 5. The tenant opposed the eviction petition denying the need of the landlady as bona fide alleging that she along with her husband is living at Nalagarh in warm climate where they hav©4heir house and other property and her son is already occupying sufficient accommodation. 6. On the pleadings of the parties the following issues were framed:— 1. Whether the premises in dispute are required bona fide by the petitioner for her son as alleged? OPP. 2. Relief. 7. On the appreciation of the evidence produced by the parties both the Authorities below have concurrently held that the demised premises are bona fide required by the landlady for the residence of her son Doctor Jai Gopal Vohra. The tenanted premises consisting of two rooms and accessories in the occupation of the landlady and her husband having been admittedly shared by her son Doctor Jai Gopal Vohra after his posting in Shimla, has been concurrently held as insufficient to accommodate him and his family consisting of his wife and two grown-up children looking to his status as Senior Medical Officer. Further, both the Authorities below have concurrently rejected the plea of the tenant that number of residential premises had fallen vacant before and even after the institution of the eviction petition, which have either been let out or kept vacant and not occupied by Doctor Jai Gopal Vohra, shows that his need is not genuine and bona fide. On the basis of the material on record the Authorities below have come to the conclusion that some of these premises are in the outhouses and not fit and suitable for the residence of Doctor Jai Gopal Vohra and the other such premises situated in the main building are either dilapidated and not fit for human habitation or on different floors each consisting of one room not suitable to the requirement of Doctor Jai Gopal Vohra. Both the Authorities below have noticed the conduct of the tenant that he had refused the offer made on behalf of the landlady in his cross-examination that he might occupy free of rent the premises vacated by one Man Singh, Bhim Singh RW 2 and Diwakar Kamal RW 3 to observe that he cannot expect the son of the landlady to occupy the premises, which he did not consider fit for his residence being dilapidated, which has been duly proved by the evidence of Hari Ram Sharma PW-4, Tax Inspector Municipal Corporation, Shimla. This Court does not find any reason to interfere with these concurrent findings of fact, as the authorities below have rightly read and appreciated the evidence to consider each instance of vacation and/or let out of the premises in the building of the landlady. 8. Even before this Court, the tenant has moved an application CMP No. 286 of 1997 to bring on record the subsequent event that the Civil Revision Petition No. 267 of 1996 filed by the other tenant Smt. Tara Sharma was dismissed on 7th May, 1997 and her premises have become available to the landlady to fulfill the requirement of her married son Doctor Jai Gopal Vohra. This application is not opposed by the learned Counsel for the landlady on the ground that from the very beginning the case of his client has been that the two sets occupied by Mrs. Tara Sharma and the tenant herein are bona fide required for the residence of the son of the landlady Doctor Jai Gopal Vohra, which has been concurrently upheld by the authorities below. Therefore, this Court allows this application and will consider the effect of the vacation of the set previously occupied by Mrs. Tara Sharma. 9. Learned Counsel appearing for the tenant has urged that in view of the definition of the building as given in Section 2(b) of the Act the eviction of two tenanted premises for the requirement of the son of a landlord under Section 14 of the Act is not permissible. Tara Sharma. 9. Learned Counsel appearing for the tenant has urged that in view of the definition of the building as given in Section 2(b) of the Act the eviction of two tenanted premises for the requirement of the son of a landlord under Section 14 of the Act is not permissible. Section 2(b) of the Act is : "building means any building or part of a building let out for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses or furniture let out therewith, but does not include a room in a hotel, hostel or boarding house." Section 14(3)(a)(b) and (d) of the Act is as under :— "14.(1)......................................... (2) ...................................................... (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, he shall not be 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 Soldier (Litigation) Act, 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. 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 the 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 non-residential building or for establishment of industry; (iii) the tenant lets out his rented land to some body else on higher rent; (c) .......................... (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 Homeopathic 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." 10. In support of his submission the learned Counsel has relied upon the judgment in Molar Mai (dead) through L.Rs. v. M/s. Kay Iron Works (P) Ltd., AIR 2000 SC 1261 In this judgment while interpreting the proviso to Section I3(3}(i)(b) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 identical to second proviso to clause (d) of sub-section (3) of Section 14 of the Act, the learned Judges of the Supreme Court have held in para 12:— "......Therefore, in our opinion, the bar imposed by the proviso is in fact a bar on the right of the landlord to seek actual eviction and not confined to the filing of the application for eviction. On behalf of the landlord, it is contended that while interpreting a statute the courts should apply the rule of literal construction and if it is so interpreted then the wordings of the proviso would show that the restriction imposed by the proviso is restricted to the stage of filing of the application for eviction only. We agree with this contention of the landlord that normally the Courts will have to follow the rule of literal construction which rule enjoins the Court to take the words as used by the Legislature and to give it the meaning which naturally implies. But, there is an exception to this rule. That exception comes into play when application of literal construction of the words in the Statute leads to absurdity, inconsistency or when it is shown that the legal context in which the words are used or by reading the Statute as a whole, it requires a different meaning. In our opinion, if the expression "entitled to apply again" is given its literal meaning, it would defeat the very object for which the legislature has incorporated that proviso in the Act inasmuch as the object of that proviso can be defeated by a landlord who has more than one tenanted premises by filing multiple applications simultaneously for eviction and thereafter obtain possession of all those premises without the bar of the proviso being applicable to him. We are of the opinion that this could not have been the purpose for which the proviso is included in the Act. If such an interpretation is given then the various provisos found in Clause (3) of Section 13 would become otiose and the very object of the enactment would be defeated. Any such interpretation, in our opinion, would lead to absurdity Therefore, we have no hesitation in interpreting the proviso to mean that the restriction contemplated under that proviso extends even up to the stage when the Court or the tribunal is considering the case of the landlord for actual eviction and is not confined to the stage of filing of eviction petition only." Further in para 14:— "......The proviso does not make any such distinction between a land- lord seeking possession of the premises held by more than one tenant occupying the same building or the tenants occupying different independent buildings under the same landlord. As we have observed, the object of the proviso like any other provisions of the Act, is to further restrict the right of the landlord to seek eviction, if that be so, we do not find any justification in reading into the proviso something as conferring a larger right on the landlord to evict more than one tenant if those tenants are occupying different parts of the same premises........" 11. In the above judgment the learned Judges of the Supreme Court have remanded the case to the trial Court for the purpose of recording evidence on the issue framed by them that whether the tenant proves that the landlord has obtained possession of other residential building or rented land of the same class to disentitle him to obtain possession of the premises in dispute, as the applicability of the proviso being mixed question of law and fact and the Court is to come to the conclusion that the premises, eviction whereof has been obtained by the landlord, belongs to the same class of building. 12. Applying the ratio of this judgment to the present case this Court is of the view that though this point has been raised for the first time in the present revision petition yet in view of the peculiar facts and circumstances established on the record that the landlady filed simultaneous eviction petitions against the tenant in the present revision petition and another tenant Smt. Tara Sharma claiming that both the tenanted premises being on the same floor and adjacent to each other are bona fide required for the use of her married son Doctor Jai Gopal Vohra, and though these eviction petitions were not consolidated yet while considering them and passing eviction orders it is kept in view that the requirement of Doctor Jai Gopal Vohra is of both the tenanted premises, the bar under the third proviso to clause (d) of sub-section (3) of Section 14 of the Act is not attracted to deny the possession of the demised premises to the landlady on the ground that she had already taken the possession of the premises of Smt. Tara Sharma. 13. 13. So far the definition of the building is concerned, it means building or part of the building let out for any purpose, which means either for the purpose of residence or for the purpose of business or trade, and does not suggest that each tenanted premises is a separate building. Had it been so, the landlord will not be able to get the eviction of more than one room if the premises consists of one rooms sets only irrespective of his requirement. It is correct that if vacation of one tenanted premises fulfills the requirement of the son of the landlord, another eviction petition either simultaneously or subsequently cannot be filed or if filed, cannot be allowed as per the bar under the provisos to clauses (a), (b) and (d) to sub-section (3) of Section 14 of the Act but in the present case there are concurrent findings of both the authorities below, and upto the High Court in the case of Smt, Tara Sharma that both the premises are bona fide required by the son of the landlady and it is just a chance that the eviction petition of Smt. Tara Sharma has concluded first and its possession has been handed over by her but it would not debar the landlady to get the possession of the demised premises, as in that case her requirement will be half-met. 14. Another submission made by the learned Counsel for the appellant that there is deficiency in the pleadings, has been raised to be rejected. The perusal of paragraph 18 of the eviction petition shows that the complete particulars have been given as required under clause (d)(i) and (ii) of sub-section (3) of Section 14 of the Act. In this view of the matter, the judgment cited by the learned Counsel on this point need not be referred to. 15. In the result, there is no merit in this revision petition and it is dismissed. No costs. Revision dismissed.