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2001 DIGILAW 178 (HP)

R. C. VERMA v. PUSHPA RANI

2001-08-02

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J,—The present petition at the instance of the tenant under Section 24(5), H.P. Urban Rent Control Act, 1987 (for short, the Act) has been directed against the order dated 29.5.1999 of the learned Appellate Authority (II), Shimla, setting aside the order dated 7.5.1994 of the learned Rent Controller (2), Shimla, and thereby directing the eviction of the tenant under Section 14(3) (d) of the Act. 2. The tenanted premises consist of a residential portion comprising of two living rooms, a kitchen, bath and latrine, and a covered verandah in the building known as Pushap Cottage, in Lakkar Bazar, Shimla. 3. The respondents, hereinafter referred to as the landlords, sought ejectment of the tenant from the tenanted premises under Section 14(3)(d) of the Act on the ground that the same were required for the residence of his married son Vijay Kumar. It was pleaded in para 18(a) of the petition as under: "Eviction of the respondent is sought on the grounds that the demised premises are bona fide required by the petitioners for the separate and independent residence of their married son Shri Vijay Kumar and his family. The said Sh. Vijay Kumar married son of the petitioners is not occupying any other residential or scheduled building, as the case may be owned or even tenanted by him in the Urban area of Shimla nor the said Sh. Vijay Kumar has vacated any such residential building in the Urban area of Shimla after the commencement of H.P. Urban Rent Control Act, 1971 or 1987. The said Shri Vijay Kumar works as a Government Contractor at Shimla and has various Government Contracts in hand. Presently, said Shri Vijay Kumar and his family is living with the petitioners. The petitioners are the owners of three storyed building with an attic. The entire ground floor is occupied by tenants. The first floor is occupied by the petitioners and the said Sh. Vijay Kumar. The second floor is occupied by another son of the petitioners namely Dr. Ashwani Kumar and his wife Dr. Anita Kumari and another unmarried son of the petitioners Shri Ajay Kumar is also occupying room in the said second floor. The said Shri Ajay Kumar is also doing his business of contractor at Shimla. The elder son of the petitioners Dr. Ashwani Kumar, was married to Dr. Ashwani Kumar and his wife Dr. Anita Kumari and another unmarried son of the petitioners Shri Ajay Kumar is also occupying room in the said second floor. The said Shri Ajay Kumar is also doing his business of contractor at Shimla. The elder son of the petitioners Dr. Ashwani Kumar, was married to Dr. Anita Kumar in October, 1987 and immediately after the marriage they were allotted two rooms in the second floor which are now in their exclusive occupation and possession. In the attic there is one room which is used for evidence of the servants as also for storing the households goods of the family. The said Shri Vijay Kumar for whom the premises in question are required was married in January 1989 and after marriage his wife has not been able to pull on well with the petitioners. Therefore, with a view to avoid daily bickerings and quarrels, the petitioners have decided to provide separate and independent accommodation to the said married son Shri Vijay Kumar." 4. The tenant while resisting the petition averred that the tenanted premises were not required bona fide by the landlords as claimed. Their son Vijay Kumar along with his family was permanently residing at Theog and that the accommodation available with the landlords in the building "Pushap Cottage" was sufficient for their need. 5. On the pleadings of the parties, following issues were framed by the learned Rent Controller: 1. Whether the premises in dispute are bona fide required by the petitioners for his son as alleged? OPP. 2. Whether the petition is mala fide as alleged? OPR. 3. Whether the petition lacks material facts, if so, its effect? OPR. 4. Whether the petition is not maintainable as alleged? OPR. 5. Whether the petitioners are estopped from filing the present petition due to their acts, conduct and deed as alleged? OPR. 6. Whether the petition has not been properly verified if so, its effect? OPR. 7. Relief. 6. The learned Rent Controller found issue No. 1 against the landlords and issues No. 2 and 4 in favour of the tenant. Issues No. 3 and 5 to 7 were decided against the tenant. Consequent upon such findings, the eviction petition preferred by the landlords was dismissed by the learned Rent Controller vide order dated 7.5.1994. OPR. 7. Relief. 6. The learned Rent Controller found issue No. 1 against the landlords and issues No. 2 and 4 in favour of the tenant. Issues No. 3 and 5 to 7 were decided against the tenant. Consequent upon such findings, the eviction petition preferred by the landlords was dismissed by the learned Rent Controller vide order dated 7.5.1994. The learned Rent Controller came to the conclusion that the requirement of the landlords was no bona fide and that the petition had been filed with mala fide intention. 7. The learned Appellate Authority vide its impugned order dated 29.5.1999 allowed the appeal of the landlords and after setting aside the findings of the learned Rent Controller, allowed the petition and passed an order of ejectment against the tenant under Section 14(3)(d) of the Act. 8. Feeling aggrieved by and being dissatisfied with the impugned order dated 29.5.1999 of the learned Appellate Authority, the tenant has approached this Court by way of the present revision petition under Section 24(5) of the Act. Section 14(3)(d) of the Act provides : "14(1)..............................................................................................; (2).......................;..........................................................................; (3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession— (a).................................................................................................... (b)................................................................................................... (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 commencement of this Act, in the urban area concerned." 9. Dealing with the similar provision contained in Section 14(3)(a)(iv) of the H.P. Urban Rent Control Act, 1971, it has been held by a learned Single Judge of this Court in Smt. Mastu Devi v. Shri Harish Chander, 1980 Shim. Dealing with the similar provision contained in Section 14(3)(a)(iv) of the H.P. Urban Rent Control Act, 1971, it has been held by a learned Single Judge of this Court in Smt. Mastu Devi v. Shri Harish Chander, 1980 Shim. L.C. 376, that before a landlord can get the premises vacated for the residence of his married son, the landlord must prove two things, namely : (a) the son is not in occupation of any other building as residence in the urban area concerned; and (b) the son has not vacated any such building without sufficient cause after the commencement of the Act in the Urban area concerned. 10. It was further held that both the above conditions must be satisfied before a tenant can be asked to vacate. The landlord must plead these facts in his application and to prove them. 11. The scope and ambit of the provision contained in Section 14(3)(d) of the Act also came up for consideration before another leaned Single Judge of this Court in Miss Kamlesh Khanna v. Smt. Rupwanti, 1995 (1) Sim. L.C. 93. It was held : "In the opinion of this Court sub-clause (i) and (ii) of Clause (d) of sub-section (3) of Section 14 of the Act put two riders on the right of landlord to get a building vacated for the residence of his married son; firstly, the married son must not occupy in the urban area concerned any building, may be his own or tenanted, and secondly, he must not have vacated in the urban area concerned any building, may be his own or tenanted, without sufficient cause after the commencement of the Act. These riders will apply jointly or separately depending upon the facts of each case. This interpretation is conformity with the objects of the Act to give protection to the tenant from eviction if the married son of the landlord is already in occupation of a building and/or he has vacated such a building after coming into force of the Act. The married son does not come within the definition of family as per explanation (2) given under Clause (a) of sub-section (3) of Section 4 of the Act> if he does not ordinarily reside with the landlord and is not dependent upon him. The married son does not come within the definition of family as per explanation (2) given under Clause (a) of sub-section (3) of Section 4 of the Act> if he does not ordinarily reside with the landlord and is not dependent upon him. The requirement for the residence of married son is not equivalent to the requirement of landlord himself for which the restrictions are less stringent, as put by first and second provisions to sub-clause (i) of Clause (a) of sub-section (3) of Section 14 of the Act. The landlord can seek eviction for his personal requirement if he is occupying a tenanted building but not for the residence of his married son if the married son is in occupation of tenanted or any sort of building in the urban area concerned. Similarly, landlord can seek eviction for his personal use if he has not vacated the building owned by him without sufficient cause within five years of the filing of the application in the urban area concerned, whereas, for the requirement of residence of married son, the married son must not have vacated any sort of building without sufficient cause after commencement of the Act in the urban area concerned." 12. In the present case, the landlords are seeking ejectment of the tenant on the ground that the tenanted premises are required for the residence of their married son Vijay Kumar. They have specifically pleaded in para 18(a) of the petition, quoted above, that there son Vijay Kumar is not occupying any other residential or scheduled building either as owner or as tenant in the Urban area of Shimla, and, that their son Vijay Kumar has not vacated any such residential building in the Urban area of Shimla after the coming into force of the Act. 13. The landlord, Dev Raj, while appearing as PW 1, has deposed that his son Vijay Kumar is living with him and that the accommodation available with him is not sufficient. He has further deposed that his son Vijay Kumar since 1980 has not vacated any house. There is nothing in the statement of the landlord that his son was not in possession of any other residential accommodation within the Urban area of Shimla. 14. PW 2 Dr. Ashwani Kumar is another son of the landlords. He has deposed that his brother Vijay Kumar is residing with his parents. There is nothing in the statement of the landlord that his son was not in possession of any other residential accommodation within the Urban area of Shimla. 14. PW 2 Dr. Ashwani Kumar is another son of the landlords. He has deposed that his brother Vijay Kumar is residing with his parents. This witness also has not stated even a single word to the effect that Vijay Kumar is not in possession of any other residential accommodation in the urban area of Shimla and/or that the said Vijay Kumar has not vacated any residential accommodation in the urban area of Shimla without a sufficient cause since after the coming into force of the Act-. 15. Vijay Kumar, the son of the landlords for whose residence the tenanted premises are alleged to-be required has been examined as PW 3. He has simply deposed that he is living with his parents and that the tenanted premises are required for his use and occupation. He has nowhere deposed that he is not in possession of any other residential accommodation within the urban area of Shimla and/or that he has not vacated any such accommodation without a sufficient cause after the coming into force of the Act. 16. From the evidence coming on record the landlords have failed to prove and establish the two requirements required to be established before an order of eviction can be passed against the tenant under Section 14(3)(d) of the Act. Therefore, the ejectment petition preferred by them is liable to be dismissed on this short ground alone. 17. In Girdhari Lal Jain v. Smt. Sushil Rani, 1980 (2) Rent Control Reporter 117, the landlady sought ejectment of the tenant under Section 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act, 1949, on the ground that she wanted separate accommodation as she could not pull on amicably in the joint family house. She pleaded in her petition in the following terms : "That the petitioner bona fide requires the house in dispute for her personal use and occupation as well as for her husband and her three children aged nearly 5 years and two years. The petitioner and her husband want to live separately from the other family members as they cannot pull on amicably and live in peace in the old joint family house." 18. The petitioner and her husband want to live separately from the other family members as they cannot pull on amicably and live in peace in the old joint family house." 18. Evidence led in the case, however, was to the effect that the said old joint family house contained accommodation which was insufficient for all the members of the family. The High Court of Punjab and Haryana ignored such evidence as being contrary to the pleadings and held that the landlady was not entitled to seek ejectment of the tenant on the ground put forth. 19. In the present case as well the landlords have averred that the tenanted premises are required for the residence of their married son Vijay Kumar by pleading that since after the marriage, which took place in January 1989, the wife of Vijay Kumar has not been able to pull on well with the landlords, and, therefore, with a view to avoid daily bickerings and quarrels, the landlords have decided to provide separate and independent accommodation to their said married son Vijay Kumar. However, evidence led in the present case is to the effect that the accommodation available with the landlords is not sufficient for the family. Such evidence being contrary to the pleadings has to be ignored. 20. Even otherwise, the landlords have not been able to show that accommodation available with them is not sufficient. PW 3 Vijay Kumar, the son of the landlords, has admitted that the landlords are in possession of seven rooms, two kitchens and two bath rooms. 21. The Honble Supreme Court in Gaya Prasad v. Pradeep Srivastava, (2001) 2 SCC 604, has held that the crucial date for deciding the bona fides of the requirement of the landlord is the date of his application for eviction. 22 The eviction petition in the present case was made on 2.6.1989. According to the landlords, the second floor of the building "Pushap Cottage" is in possession of his another married son Dr. Ashwani Kumar and the third unmarried son. It has been pleaded that the son of the landlords Dr. Ashwani Kumar (PW 2) was married in October 1987 and immediately after marriage he was allotted two rooms on the second storey for their residence. 23. Ashwani Kumar and the third unmarried son. It has been pleaded that the son of the landlords Dr. Ashwani Kumar (PW 2) was married in October 1987 and immediately after marriage he was allotted two rooms on the second storey for their residence. 23. Evidence has come on the record on behalf of the landlords that both Ashwani Kumar and his wife are doctors and at the relevant time were posted in District Bilaspur where they were residing in Government residential accommodation. Therefore, they cannot be said to be residing in the second floor of the building at Shimla. The entire second storey was thus available with the landlords. 24. Admittedly, there is one room on the attic floor. Though the landlords have pleaded that such room is being used for the residence of the servants, no evidence worth the name has come on the record to show that the landlords had a servant at any time or that the room on the attic floor was being used for the purpose of residence of servant(s). 25. The landlord Dev Raj while appearing as PW 1 has admitted that on the previous occasion as well he had filed an ejectment petition against the tenant which was dismissed and lhat the appeal preferred by him was also dismissed. He has also admitted that a petition for enhancement of rent was also preferred by him against the tenant which has been dismissed. The appeal against such dismissal was stated to be pending as on the date of his examination as PW 1. These facts show that the landlords requirement is not bona fide. The same appears to be mala fide in order to force and coerce the tenant to enhance the rent. 26. For the foregoing reasons, the present petition is allowed. The impugned order dated 29.5.1999 of the learned Appellate Authority is set aside and that of the learned Rent Controller dated 7.5.1994 dismissing the eviction petition is restored. The parties are left to bear their own costs. Petition allowed.