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2003 DIGILAW 107 (HP)

Shanti Devi v. Kuldeep Maria

2003-05-14

M.R.VERMA

body2003
JUDGMENT : M.R. Verma, J. This revision petition u/s 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereafter referred to as 'the Act') has been preferred by the Petitioners/tenants (hereafter referred to as 'the Petitioners') against the judgment dated 1.11.2000 passed by the learned Appellate Authority, Shimla whereby the order dated 31.8.1992 passed by the learned Rent Controller (2), Shimla dismissing the eviction petition of the Respondent/landlord (hereafter referred to as 'the Respondent) has been set aside and the then tenant now, represented by the Petitioners, had been ordered to be evicted from the demised premises known as "Ground Floor of Building No. 29/1, Tilak Nagar, Boileauganj (hereafter referred to as the tenanted premises)." 2. The relevant facts for the disposal of the present petition are that the Respondent filed an eviction petition u/s 14 of the Act for eviction of John Masih the then tenant from the tenanted premises on the ground that the tenanted premises were bona fide required by him for self use and occupation as at present he is residing in the premises known as "Dhami Cottage 69/1, Ram Bazaar, Shimla" alongwith his mother and married brothers and the said premises, in which he is presently residing, have meagre accommodation to accommodate him, his wife, children married brothers and mother. It is further averred that he is exclusive owner of Building 29/1, Boileauganj, Shimla. A vacant room is in his possession and eviction proceedings had been initiated for ejectment of a tenant residing in the 1st floor of the building on the ground of bona fide requirement for use and occupation by him and his family members. 3. The petition was contested by the deceased tenant on the grounds that one Ram Krishan is the landlord qua the tenanted premises, therefore, the petition is not maintainable, that the Respondent has in his occupation several buildings within the urban areas of Shimla, hence, his plea of bona fide requirement is not bona fide and he has concealed this fact, therefore, the petition is liable to be dismissed. 4. On the pleadings of the parties, the learned Rent Controller framed the following issues: 1. Whether the premises in question are bona fide required by the Petitioner for his own personal use and occupation? OPP 2. Whether the tenancy of the Respondent is yearly and contractual and has not been terminated according to law? OPR 3. 4. On the pleadings of the parties, the learned Rent Controller framed the following issues: 1. Whether the premises in question are bona fide required by the Petitioner for his own personal use and occupation? OPP 2. Whether the tenancy of the Respondent is yearly and contractual and has not been terminated according to law? OPR 3. Whether the petition lacks material particulars, if so, its effect? OPR 3-A. Whether the Petitioner has no locus standi to file the present petition, as alleged? OPR 4. Relief. 5. On consideration of material brought on record by the parties, the learned Rent Controller vide his order dated 31.8.1992 held Issue No. 1 against the Respondent and the remaining issues against the tenant and in view of the findings on Issue No. 1 dismissed the petition. 6. Being aggrieved, the Respondent preferred an appeal before the learned Appellate Authority, Shimla. During the pendency of the appeal the original tenant/Respondent died, therefore, his widow (Petitioner-tenant No. 1) was brought on record. The appeal was finally dismissed by the Appellate Authority vide its judgment dated 23.8.1997. The Respondent then preferred Civil Revision No. 395 of 1997 in this Court. A learned Judge of this Court, while disposing of the revision petition vide judgment dated 6.7.2000, held and directed as follows: 16. In the facts and circumstances of this case, in the absence of all the legal heirs mentioned in Schedule-I to the Rent Act, the revision petition is not properly constituted. It is now well settled that on the death of a tenant, it is the single tenancy which devolves on the heirs. There is no provision of the division of the premises or of the rent payable therefor. The heirs succeed to the tenancy as joint tenants See: H.C. Pandey Vs. G.C. Paul, (1989) 3 SCC 77 , As tenancy, heritable by Shanti Devi and her three sons, subject to the sons being found living with John Masih at the time of his death, is indivisible, therefore, present revision petition is not capable of decision in the absence of all the joint tenants. 17. In the facts and circumstances of this case, the impugned orders of the Appellate Authority dated August 23, 1997 are set aside. 17. In the facts and circumstances of this case, the impugned orders of the Appellate Authority dated August 23, 1997 are set aside. The case is sent back to the learned Appellate Authority with the directions to hear the matter afresh after affording opportunity to the parties to produce such evidence as they like for the purpose of substitution of the deceased tenant John Masih by his legal heirs within the meaning of Section 2(j) of the Rent Act in the light of the observations made hereinabove. 7. After holding inquiry pursuant to the aforesaid directions, the learned Appellate Authority impleaded three sons of the deceased tenants as party Respondents to the appeal in addition to the party Respondent already impleaded therein and allowed the appeal and set aside the order of eviction passed by the learned Rent Controller. Hence, this petition by the Petitioners. 8. I had heard the learned Counsel for the parties and have also perused the records. 9. It was contended by the learned Counsel for the Petitioners that in view of the remand order passed in the revision petition, the Appellate Authority could determine only the question as to who were the legal heirs of the deceased tenant and after having determined the said question and impleading such heirs, the Appellate Authority had no jurisdiction to re-appreciate the material to come to a conclusion contrary to the conclusion arrived at vide its earlier judgment dismissing the appeal of the Respondent. In support of this contention the learned Counsel relied on Mohan Lal Vs. Anandibai and Others, (1971) 1 SCC 813 , and Fauja Singh and Ors. v. Jaswant Singh 1978 PLR 456. 10. On the other hand, the learned Counsel for the Respondent contended that the revisional Court had set aside the judgment dated 23.8.1997 of the Appellate Authority as a whole and the case was remitted for decision afresh. Therefore, the appellate authority was not to stay its hands after impleading the sons of the deceased as party Respondents to the appeal but it was further required to pass a final judgment in the appeal afresh. Therefore, it was duty-bound to appreciate the material on record and decide the appeal afresh which it did. Therefore, the learned Counsel urged that no procedural illegality, as alleged, had been committed by the Appellate Authority. 11. Therefore, it was duty-bound to appreciate the material on record and decide the appeal afresh which it did. Therefore, the learned Counsel urged that no procedural illegality, as alleged, had been committed by the Appellate Authority. 11. The operative part of the judgment remanding the case to the learned Appellate Authority has already been quoted heretofore. It is unambiguously clear from a bare reading of the said part of the judgment that (i) the order dated 23.8.1997 of the Appellate Authority dismissing the appeal was set aside and thus by legal fiction had been rendered non existent, and (ii) the case was remitted to decide as to who are the legal representatives of the deceased first and then to hear the appeal afresh. On requisite inquiry three sons were impleaded as party Respondents to the appeal and as such they have a right of being heard in the appeal after their impleadment. There is nothing in the remand order which required the appellate authority to implead the left out legal representatives as party Respondents and then restore the earlier judgment or not to pass a fresh judgment after hearing the parties and appreciation of the material on record. Thus, the learned Appellate Authority in hearing the parties and disposing of the appeal afresh, acted in accordance with the remand order and within the scope of law. 12. In Mohan Lal Vs. Anandibai and Others, (1971) 1 SCC 813 's case (supra) the Hon'ble Apex Court held as under: 9. ...This is not a correct interpretation of the order, obviously, in directing that findings of the both courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order.... 13. Evidently, the above ratio is not applicable to the facts and circumstances of the case in hand for the simple reason that findings of the Appellate Authority as recorded in the judgment dated 23.8.1997 could not bind Petitioners No. 2 to 4 because they were not party to the appeal before the appellate authority at that time. 13. Evidently, the above ratio is not applicable to the facts and circumstances of the case in hand for the simple reason that findings of the Appellate Authority as recorded in the judgment dated 23.8.1997 could not bind Petitioners No. 2 to 4 because they were not party to the appeal before the appellate authority at that time. They were impleaded as such only after the remand order and had a legal right of being heard in appeal on merits and only then the appeal could be finally disposed of. 14. In Fauja Singh's case (supra) in an appeal against the judgment and decree passed by the trial Court, the Additional District Judge who without hearing the appeal on merits, framed an additional issue, set aside the judgment and decree of the trial Court and remanded the case for fresh trial and re-decision. A question arose before the trial Court as to whether the parties could lead evidence afresh on all the issues or it was to be confined only to the additional issue framed by the appellate Court. The trial Court ruled that the case stood remanded for fresh trial and re-decision, therefore, parties could lead evidence on all the issues. This order was assailed by way of civil revision wherein the Punjab and Haryana High Court held as under: 2. ...In the present case, as already observed above, the learned Additional District Judge neither adverted to the findings of the trial Court on the issues framed nor reversed or confirmed them. The findings on these issues in view of the said judgment of the Supreme Court, cannot be said to have been set aside and consequently the case would be deemed to have been remanded for fresh trial of the additional issue and re-decision of the case. 3. ...As found above, the case has been remanded for fresh trial on the additional issue only and the trial Court had no jurisdiction to reopen the issues already decided and allow the parties to lead evidence thereon. The impugned order is, therefore, clearly without jurisdiction. 15. The above ratio is also not applicable to the case in hand. 3. ...As found above, the case has been remanded for fresh trial on the additional issue only and the trial Court had no jurisdiction to reopen the issues already decided and allow the parties to lead evidence thereon. The impugned order is, therefore, clearly without jurisdiction. 15. The above ratio is also not applicable to the case in hand. Once the Appellate Authority ordered impleadment of Petitioners No. 2 to 4 as party Respondents to the appeal, it was duty-bound to hear them on the merits of the appeal and to pass a judgment afresh on the controversies involved in the appeal. That is what the Appellate Authority did. The contention raised for the Petitioners is, thus, without merit and is rejected as such. 16. It was further contended by the learned Counsel for the Petitioners that the impugned judgment is based on the same evidence on the basis of which the Rent Controller dismissed the petition for eviction and the Appellate Authority dismissed the appeal. Therefore, the contrary findings now recorded by the same Appellate Authority on the same evidence particularly in view of the fact that the Respondent had advertised the premises in question for sale and had concealed the fact about his having other accommodation with him, are apparently absurd and liable to be set aside. 17. On the other hand, the learned Counsel for the Respondent had contended that after hearing the parties, it was permissible to the Appellate Authority to arrive at a conclusion independently of the earlier conclusions. It was further contended that the impugned judgment takes into account the facts and circumstances of the case entirely and the conclusions thereby arrived at are supportable on the basis of evidence on record, therefore, calls for no interference. It was also contended that the act of the Respondent in advertising the tenanted premises for sale having been done in the remote past, cannot be a good ground to disbelieve the bona fide of the Respondent and that the defect in the pleading about non-disclosure of other accommodation which stands rectified by amendment, is not fatal to the case of the Respondent, In support of his contention, the learned Counsel has relied on Shashi Kapila Vs. R.P. Ashwin, (2002) 1 SCC 583 , Ram Narain Arora Vs. R.P. Ashwin, (2002) 1 SCC 583 , Ram Narain Arora Vs. Asha Rani and Others, (1999) 1 SCC 141 , and M.L. Prabhakar v. Rajiv Singal (2001) 2 SCC 355 . 18. In so far as contention of the learned Counsel for the Petitioners that the Respondent concealed the fact about his having other accommodation with him is concerned, it is now not available to the Petitioners to assail the findings of the learned Appellate Authority. There is no dispute that before the Appellate Authority the Respondent moved an application for amendment of the petition for ejectment so as to give the particulars of the buildings owned by him and situated within the urban area of Shimla. The said application was allowed vide order dated 5.10.1993 passed by the learned Appellate Authority and the parties were afforded an opportunity to lead evidence in this regard. Thus, the failure to give particulars of the buildings owned by the Respondent within the urban area of Shimla in the original petition stood rectified and has not resulted in any apparent injustice to the Petitioners. Even otherwise, when each of the parties are aware of the case/defence of the other party and the material in support of such case has been brought on record, non-pleading of the particulars in the petition will be rendered academic and will not have any fatal effect on the petition. 19. In Ram Narain Arora's case (supra) the Hon'ble Apex Court, while dealing with the question of defective or vague pleadings in rent cases, held as under: 11. There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the Court, neither party is prejudiced. If we analyse from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller. 20. In M.L. Prabhakar's case (supra) the Hon'ble Apex Court again held as under: 5. If we analyse from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller. 20. In M.L. Prabhakar's case (supra) the Hon'ble Apex Court again held as under: 5. It has been urged that there was suppression on the part of the landlord inasmuch as he did not disclose the premises which were available at No. 16/57, Gali No. 1, Joshi Road as well as the premises which are available at Basant Road, Pahar Ganj. On the other hand, on behalf of the Respondent, Dr. Singhvi has submitted that the only requirement is to disclose such accommodation as is suitable for residence of the landlord. Dr. Singhvi submitted that if there is no other residential accommodation which is suitable then there is no duty to disclose. Dr. Singhvi relied upon the authority in the case of Ram Narain Arora Vs. Asha Rani and Others, (1999) 1 SCC 141 Vs. Asha Rani and Others, wherein it has been held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. It is held that whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. It is held that whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. It was held that the landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the Court and case of neither party was prejudiced. In this case even though the landlord has not mentioned about, the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused. The parties have squarely dealt with this question. 21. In view of the above position in law and the fact that the Respondent had given the particulars of the buildings owned by him within the urban area of Shimla by amending his petition, the earlier defect of non-pleadment thereof is of no help to the Petitioners. 22. The parties have squarely dealt with this question. 21. In view of the above position in law and the fact that the Respondent had given the particulars of the buildings owned by him within the urban area of Shimla by amending his petition, the earlier defect of non-pleadment thereof is of no help to the Petitioners. 22. Regarding the contention of the learned Counsel for the Petitioners that after the remand the Appellate Authority could not have recorded the findings contrary to the findings already recorded by it in the earlier judgment on the basis of the same material and such findings would be simply absurd, it may be pointed out that as already held hereinabove, the earlier findings were recorded by the learned Appellate Authority in the absence of Petitioners No. 2 to 4. After their impleadment as party Respondents in the appeal, the Appellate Authority was duty bound to hear them on merits of the appeal and to pass a judgment afresh on the controversies involved in the appeal. While doing so, it was not necessary or incumbent on the learned Appellate Authority to arrive at the same conclusion which it had arrived at earlier and could have come to a conclusion independently of the earlier findings. It is evident that while appreciating Ext. P-4 at the time of passing of the earlier judgment, the learned Appellate Authority while examining the premises got vacated by ejectment of Dhani Ram, considered the accommodation measuring 3.8 meters x 3.7 meters as one room whereas subsequently it was found that these are the dimensions of two rooms. A perusal of the plan Ext. P-4 will reveal that the learned Appellate Authority in the earlier decision evidently came to a wrong conclusion about the area of these two rooms stating the area of only one room as 3.8 x 3.7 meters whereas this area is of two rooms. The learned Appellate Authority in the earlier judgment has not even applied its mind to the existence of facilities available in the premises in occupation of the landlord. It was held in the earlier judgment that the Respondent was in occupation of a room in the ground floor, dimensions whereof had not been mentioned, whereas he was in possession of the basement and the ground floor is in possession of the Petitioners. It was held in the earlier judgment that the Respondent was in occupation of a room in the ground floor, dimensions whereof had not been mentioned, whereas he was in possession of the basement and the ground floor is in possession of the Petitioners. The requirement of the Respondent was also not examined in view of his occupation, status and number of the family members and the suitability of the building in question even after vacation of the premises by Dhani Ram. To make the accommodation, the Respondent intends to occupy compact and adequate, the premises occupied by the Petitioners were required to be vacated. In the impugned judgment the learned Appellate Authority had taken all these facts into account and has thus after due appreciation of the material on record come to the conclusion that the premises are bona fide required by the landlord for his own use and occupation. It cannot, therefore, be said that the present conclusion of the learned Appellate Authority is not based on material on record and is absurd simply because at one point of time in the past it came to a different conclusion. 23. The learned Rent Controller while dismissing the eviction petition had taken into account the fact that at one point of time the Respondent had advertised the premises for sale. It is so stated by the then tenant John Masih (RW-4) in his statement. However, the Petitioner (PW-1) in his statement on oath had denied the suggestion that he had put up a board for sale of the premises in question or he had spoken with the prospective purchasers. The statement of RW-4 in this regard is not confidence inspiring for the reason that he has himself admitted that no name of any person was written on the board. Merely telephone number was mentioned and further it was mentioned that "property for sale". In view of this statement of RW-4, the alleged board is neither connected with the Respondent nor with the premises in question. In any case, even if it is believed that sometimes in the year 1986-87 any such board was displayed and the premises were not sold and finally the landlord instituted the petition for eviction, that does not necessarily belie his bona fides to occupy the premises for his personal use. In any case, even if it is believed that sometimes in the year 1986-87 any such board was displayed and the premises were not sold and finally the landlord instituted the petition for eviction, that does not necessarily belie his bona fides to occupy the premises for his personal use. Therefore, the bona fide of the Respondent cannot be questioned solely on the ground that at one point of time he had displayed a board for sale of the property even if it is assumed that he did so. 24. In Shashi Kapila Vs. R.P. Ashwin, (2002) 1 SCC 583 's case (supra), the Hon'ble Apex Court, while dealing with almost a similar question where agreement to sell had been executed, held as under: 5. M/s. Shiva and Co. had filed a suit in 1986 for specific performance of the agreement. The said suit was vehemently resisted by the landlord. At some point of time the said suit was withdrawn by the firm and later in 1989 the same firm filed a second suit for specific performance of the agreement dated 17.4.1986. The landlord opposed the second suit also on all grounds. He contended, inter alia, that the agreement itself could not be acted on as he was deceived by Mr. Yati Kumar who represented the firm and it was never disclosed to the landlord that the Appellant was a partner of that firm. At any rate, it was clear beyond doubt that the landlord was totally opposed to the performance of the terms of the agreement dated 17.4.1986. That stand of the landlord was proclaimed long before he launched the present litigation for eviction of the Appellant on the ground of his need to occupy the building. The above development would indicate that the need of the landlord for occupying the suit building arose only long after 17.4.1986. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the Appellant that the landlord can be non-suited on the basis of the aforementioned agreement. 25. Therefore, he cannot be pre-empted from claiming the relief merely on the ground that six years prior to it he was willing to sell the building. Hence, we are unable to agree with the contention of the Appellant that the landlord can be non-suited on the basis of the aforementioned agreement. 25. Thus, primarily there is no cogent and reliable evidence to prove that the Respondent ever displayed a notice board for sale of the premises and even if it is presumed, in view of the law as cited hereinabove, his petition cannot be dismissed solely on the ground of his having displayed such a board. 26. It may be pointed out that if the requirement of the landlord is reasonable, it is bona fide. It will not be bona fide if it is unreasonable. The landlord is the best Judge to decide as to which premises he must occupy for his personal use and ordinarily Court should not take uncharitable view of the landlord. No doubt, the landlord has to prove that he needs bona fide the premises for his own occupation but there is no initial presumption that his need is not bona fide. Once the initial burden is discharged by the landlord that he requires the premises bona fide for his personal use and occupation, the burden shifts on the tenant and while appreciating the evidence of the tenant, it cannot be lost sight of that it is not the tenant who is to decide about the requirement of the landlord but it is the landlord himself who is to form his choice for use and occupation of the premises by him for his personal use. 27. In Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and Another, (1999) 4 SCC 1 , the Hon'ble Apex Court held as follows: 8. When a landlord says that he needs the building for his own occupation there is no doubt he has to prove it. But there is no warrant for presuming that his need is not bona fide. The statute enjoins that the court should be satisfied of his requirement. So the Court would look into the broad aspects and if the Court feels any doubt about the bona fides of the requirement it is for the landlord to clear such doubts. But there is no warrant for presuming that his need is not bona fide. The statute enjoins that the court should be satisfied of his requirement. So the Court would look into the broad aspects and if the Court feels any doubt about the bona fides of the requirement it is for the landlord to clear such doubts. Even in a case where the tenant does not contest or dispute the claim of the landlord the court has to look into the claim independently albeit the landlord's burden gets lessened by such non-dispute. In appropriate cases it is open to the Court to presume that the landlord's requirement is bona fide and put the contesting tenant to the burden to show how the requirement is not bona fide. 28. In view of the above settled position in law and the above discussion, the conclusions arrived at by the learned Appellate Authority in the impugned judgment, being supportable on the basis of the material on record, calls for no interference by this Court in exercise of its revisional jurisdiction. 29. As a result, this Petition is dismissed.