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Himachal Pradesh High Court · body

2001 DIGILAW 192 (HP)

SHAM LAL v. COL. SOM DUTT SHARMA

2001-08-14

R.L.KHURANA

body2001
JUDGMENT R.L; Khurana, J.—The petitioner before this Court is the tenant while the respondent \s the landlord of the tenanted premises comprising of a residential Set No. 104 on the ground floor of the building known as Kanwar Niwas, at Chhota Shimla. The parties are being referred to as the tenant and landlord, respectively, hereinafter. 2. The landlord claiming himself to be a "specified landlord" filed a petition claiming ejectment of the tenant from the tenanted premises under Section 15(2), H.P. Urban Rent Control Act, 1987 (for short the Act). In seeking the ejectment of the tenant, the landlord has averred in para 18(a) of the petition as under:— "That the premises, in the tenancy of the respondent (Tenant), is bona fide required by the petitioner, for his own use and occupation and for the use and occupation of his family members which consists of his wife, two major sons (one of whom is doing law, in Shimla) and his aged Mother (who is dependent on him, for the purpose of residence etc.). That the petitioner is the Specified Landlord, as defined in Section 2(i) of the Himachal Pradesh Urban Rent Control Act, 1987. He is at present staying and occupying the Government allotted accommodation, in Knollswood Lodge (Upper Floor), Chhota Shimla. He is posted as Colonel in the Army, stationed at Shimla and is retiring from the Army, on 15.5.1998 and has to vacate the said allotted accommodation, on his retirement. He purchased the premises in question, from its previous owner Dr. Roshan Lai Kanwar, on 21st August, 1997, vide Sale Deed, duly registered, in the office of Sub Registrar, Shimla and became entitled to receive rent from 21st August, 1997. He has to vacate the Government allotted accommodation, on his retirement, on 15.5.1998 as such, his need and requirement to occupy the premises in question (in the tenancy of the respondent), is bona fide, as he wants to settle in Shimla, after his retirement. That he is filing the requisite certificate of his retirement, from the Army and also the requisite affidavit, to the effect that he or his spouse (wife), does not own and possess, any other suitable accommodation, within the urban area of Shimla, as he wants to reside in Shimla, after his retirement." 3. That he is filing the requisite certificate of his retirement, from the Army and also the requisite affidavit, to the effect that he or his spouse (wife), does not own and possess, any other suitable accommodation, within the urban area of Shimla, as he wants to reside in Shimla, after his retirement." 3. On the notice having been served upon the tenant, he approached the learned Rent Controller under Section 16(4) of the Act seeking leave to contest the eviction petition, inter alia, on the grounds that the landlord was not a "specified landlord", no certificate as required under Section 15(2) of the Act had been filed; the eviction petition was mala fide and filed at the instance of Roshan Lai Kan war, the previous owner of the building; the transaction of sale between the earlier owner and the landlord was a sham transaction and that the requirement of the landlord was not bona fide. 4. The requisite leave to contest the eviction petition was granted by the learned Rent Controller on 31.12.1998 to the tenant. Thereafter evidence was recorded and vide the impugned order an order of ejectment came to be passed against the tenant. 5. Feeling aggrieved by the impugned order, the tenant has approached this court by way of the present revision petition under the proviso to sub-section (8) of Section 16 of the Act. 6. At the very out set it was contended by the learned Counsel for the tenant that the impugned order is bad and cannot be sustained inasmuch as the learned Rent Controller has failed to follow the special procedure prescribed under Section 16 of the Act. It has further been contended that no opportunity was afforded to the tenant to file a reply on merits of the eviction petition. Nor any issue(s) arising from the pleadings of the parties have been framed. Therefore, a great prejudice has been caused to the tenant. 7. The learned Counsel for the landlord while supporting the impugned order has contended that procedure laid down in Section 16 of the Act was properly followed. Ample opportunity was given to the tenant, who also led evidence. The impugned order is perfectly legal. 8. The special procedure for the disposal of eviction petition on the ground of bona fide requirement of the "specified landlords" is laid down in Section 16 of the Act. Ample opportunity was given to the tenant, who also led evidence. The impugned order is perfectly legal. 8. The special procedure for the disposal of eviction petition on the ground of bona fide requirement of the "specified landlords" is laid down in Section 16 of the Act. Once leave to contest the eviction petition is granted to the tenant, the Rent Controller under sub-section (6) of Section 16 of the Act is to commence the hearing of the eviction petition as early as practicable. Sub-section (7) provides that notwithstanding anything contained in Section 14, the Controller shall, while holding an inquiry in a proceeding, following the practice and procedure of a Court of Small Causes, including the recording of the evidence. Sub-section (10) further provides that save as otherwise provided in Section 16, the procedure for the disposal of an application for eviction on the grounds specified in Section 14(3)(a)(iii) or in Section 15 shall be the same as the procedure for the disposal of applications by the Controller. 9. In the present case, as stated above, the leave to contest the eviction petition was granted to the tenant by the learned Rent Controller on 31.12.1998. The zimini order dated 31.12.1998 reads:— "Present : Shri S. Punshi, Advocate for the petitioner. Shri Rajesh Kumar Advocate Vice Shri Pawan Thakur, Advocate for the respondent. Application under Section 16(5) of the H.P. Urban Rent Control Act is allowed as per detailed order of even date. Now evidence be produced on 19.2.1999. PR be filed within two days for summoning witnesses." 10. A perusal of the record of the learned Rent Controller shows that after grant of leave on the basis of application and affidavit filed by the tenant under Section 16(4) of the Act no opportunity was given to the tenant to file a written statement/reply to the eviction petition. Nor any issue(s) were framed. The learned Rent Controller, after according leave to the tenant proceeded to record the evidence. In the absence of the pleadings of the tenant and without framing the requisite issues, the learned Rent Controller could not have proceeded to record evidence in the case. 11. In J.D. Mathur v. Smt. Sunita alias Sunita Madhok, 1993 (2) Rent. L.R. 69, the leave to contest was refused by the Rent Controller. In the absence of the pleadings of the tenant and without framing the requisite issues, the learned Rent Controller could not have proceeded to record evidence in the case. 11. In J.D. Mathur v. Smt. Sunita alias Sunita Madhok, 1993 (2) Rent. L.R. 69, the leave to contest was refused by the Rent Controller. In revision the High Court of Punjab and Haryana on the basis of the pleas raised by the tenant in his application seeking leave, after coming to the conclusion that the tenant was able to raise triable issues, granted the leave and remanded the case to the Rent Controller for disposal on merits. While remanding the case it was directed as under:— "This being the mandate of the Act, the Rent Controller would proceed in the manner as per provisions of the Act and decide the petition. The parties are directed to appear before the Rent Controller on 11.6.1993 who thereafter shall frame the triable issues; afford opportunity to the parties to adduce evidence without undue delay. No costs." 12. Similarly in the present case, the learned Rent Controller after having accorded leave to the tenant to contest the eviction petition, ought to have given an opportunity to the tenant to file the written statement/ reply to the eviction petition and then to frame the triable issues arising from the pleadings of the parties. On the failure of the learned Rent Controller to follow the prescribed procedure, a great prejudice has been done to the tenant. 13. As a result, the present petition is allowed. The impugned order of eviction dated 29.6.1999 is set aside and the case is remanded for fresh disposal in accordance with law and in the light of the observations made hereinabove. No orders as to costs. 14. Parties through their counsel are directed to appear before the learned Rent Controller on 10.9.2001. The record be returned forthwith so as to reach well before the date fixed. Petition allowed.-