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2003 DIGILAW 384 (PNJ)

Arun Kumar Jain v. Om Parkash

2003-03-05

VIRENDER SINGH

body2003
Judgment Virender Singh, J. 1. Arun Kumar petitioner herein is the landlord. This Revision Petition is directed against the order of Appellate Authority dated March 29, 1989 reversing the judgment of learned Rent Controller dated May 11, 1987 for eviction of the tenant Om Parkash, respondent-herein passed in a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (in short to be referred as "the Act"). 2. The diary of the facts in brief is that the petitioner purchased the shop in dispute from Sudesh Kumar and Rajinder Kumar vide sale deed dated March 29, 1984 (Exhibit P1) and became its owner-landlord. The respondent was already in possession of the said shop as a tenant. The petitioner sought eviction of the respondent on the ground that the demised premises was in dilapidated condition and as such was unfit for human habitation. The respondent, however, refuted the averments made by the petitioner before the Rent Controller. On the pleadings of the parties, besides the other issues, the crucial issue framed was: WHETHER THE PREMISES IN DISPUTE IS IN DANGEROUS CONDITION? 3. The learned Rent Controller by a detailed order dated 11.5.1987 returned the finding in favour of the landlord. The tenant being aggrieved party, filed an appeal against the said order. The learned Appellate Authority vide the impugned judgment, concentrated only on the point of previous litigation between the earlier landlord and the respondent and held that the present application by the petitioner-landlord was not maintainable and as such allowed the appeal of the tenant. 4. I have heard Ms Harsh Rekha, learned counsel for the petitioner and Mr. Arun Jain, learned counsel for the respondent, with their assistance, I have also gone through the entire record. 5. Ms Rekha, learned counsel for the petitioner has assailed the judgment of the Appellate Authority on the ground that the earlier ejectment application, which was dismissed on July 25, 1979 on the basis of compromise between the earlier landlord and the tenant is not binding on the present petitioner as by that time he had not become landlord of the premises which was purchased by him in March, 1984 only. It is then contended that the respondent/tenant had not raised any preliminary objection at the initial stage, as such no issue was even framed in this regard and that no argument was also advanced on this point before the Rent Controller. She has further contended that no reliance can be placed on the alleged compromise as it is of no value. She then submitted that even if the first ejectment application was dismissed, a second one can also be filed subsequently, showing the bona fide cause and that in the present case, there is ample evidence to show that the shop in question has become unfit for human habitation by efflux of time. Picking up the thread here. Ms Rekha has submitted that the learned Appellate Authority in para 12 of its impugned judgment has also observed in a way that the premises in dispute has outlived its utility. In support of her contentions, the learned counsel for the petitioner has relied upon the decisions rendered in Kuldip Kaur and Ors. v. Birj Lal, (1993-1)103 P.L.R. 503, Surajmal v. Radhey Shyam, 1988(1) Rent Law Reporter 784, Ram Nath v. Shri Kanth, (2000-1)124 Punjab Law Reporter 679, Bachh Raj Jain (Died) through LRs. v.. C.R. Trading Co., 2002(2) Rent Law Reporter 484, Ram Lal v. Davinder Kaur and Ors.. (1991-2)100 P.L.R. 576, Narinder Nath and Anr. v. Amarj Singh and Ors., (2000-1)124 Punjab Law Reporter 62. 6. Mr. Arun Jain, learned counsel for the respondent refuting the arguments advanced by Ms. Rekha has strenuously argued that the appeal of the petitioner/landlord has been rightly dismissed by the Appellate Authority on the ground of non-maintainability of the petition as the landlord has not knocked the doors of the Court with clean hands because he had suppressed the factum of the decision of earlier ejectment application moved against the respondent/tenant. Mr. Jain has further contended that since the present landlord has stepped into the shoes of the previous landlord, cannot have a better status than the previous one and that in view of the decision of the previous ejectment application, the present petition on the same cause of action is barred by the principle of resjudicata. Mr. Jain has further contended that since the present landlord has stepped into the shoes of the previous landlord, cannot have a better status than the previous one and that in view of the decision of the previous ejectment application, the present petition on the same cause of action is barred by the principle of resjudicata. Mr Jain has furthermore contended that the respondent/tenant in his written statement had categorically stated that the previous ejectment application was dismissed but despite that the petitioner/landlord did not choose to amend his petition or even to file a replication, so as to highlight the material change in the circumstance after the decision of the first petition on July 25, 1979. According to Mr. Jain, since the petitioner has not pleaded or proved the alleged material change in the circumstance, his ejectment petition must fail. In the same breath, Mr. Jain has contended that the compromise (Mark B) was to the effect that the tenant would carry out all the repairs in the shop in question and consequently, the tenant had been carrying out necessary repairs from time to time and as such the shop is not at all unfit for human habitation. Mr. Jain so contends. In support of his contentions, Mr. Jain has placed reliance on the decisions in Shri Mehtab Singh v. Shri Tilak Raj Arora and Ors., (1988-1)93 P.L.R. 269, Shadi Singh v. Rakha, (1992-2)102 Punjab Law Reporter 663, Ram Sarup Bhalla v. Barkat Singh, (1990-2)98 Punjab Law Reporter 547, Bhim Sain Nardosh Kumar and Ors. v- Raj Pal, (1992-2)102 P.L.R. 683, Ram Avtar v. Murari Lal, (2000-3)126 P.L.R. 131, Sohan Lal (Died) through L.Rs. v. Amar Nath and Ors. of Ludhiana, (1992-2)102 P.L.R. 273. 7. In my view, the primary objection of the tenant that the landlord has not mentioned in the ejectment application that there was previous litigation, is in fact a negative approach to the established rule of pleadings enjoined by the Code of Civil Procedure, which is a Code of natural justice inasmuch as the plaintiff is not obliged to plead the case of the defendant. On the other hand, he is only to state the material facts in support of his claim. On the other hand, he is only to state the material facts in support of his claim. The respondent/tenant is setting store by sub para (iii) of para 2 of his written statement, which is reproduced as under for ready reference:- "2(iii) That sub-para iii of para No. 2 of the petition is totally wrong and denied. No Kari or Shetir is in bad condition and are totally in good condition and it is wrong and denied that any wall is cracked or is out of plump in any way. It is also wrong that the shop is a part of any building and the petitioner is falsified by the reply of his notice and now he has taken this false ground, otherwise the number and portion of the shop is a separate one and is not part of any building. There is no upper storey and has not fallen and the shop was constructed in the year 1979 and the present counsel of the petitioner, who is also relative of the petitioner was counsel in that case and the original petitioner/landlord in that case had withdrawn the petition, where he alleged that the present respondent had totally changed the shop and constructed afresh shop and inspite of that case of reconstruction of the shop, the original landlord had withdrawn his case and this fact again falsified the present petitioner that the shop is in bad condition. The shop is in good condition and no kari or shehtir is eaten or broken and no wall is cracked or is in bad condition. It is a separate shop and needs no reconstruction and the petition has been filed with malafide intention only to get the shop vacated and to get higher rate of rent. The petitioner demands Rs. 30,000/- per shop and wants to get the profit because of his relation with legal minds". 8. The respondent/tenant ought to have recourse to Section 14 of the Act. Instead of that, he made an attempt to clarify his stand only before the Appellate Authority, which felt inclined to subscribe to the view that there was previous litigation on the same point and as such the present petition for ejectment was not maintainable. 8. The respondent/tenant ought to have recourse to Section 14 of the Act. Instead of that, he made an attempt to clarify his stand only before the Appellate Authority, which felt inclined to subscribe to the view that there was previous litigation on the same point and as such the present petition for ejectment was not maintainable. If the object was clear and patent, the respondent should have moved the Rent Controller straight away, asking for the rejection of the petition of the landlord summarily on the ground that the issues raised by the petitioner here are substantially the issues, as have been finally decided in the former proceedings under this Act. Taking an unclear stand in the written statement as stated above, would not amount to discharging the burden. In my view, on the existing un-clear plea by the respondent/tenant there was even no scope for framing the issue in this regard by the learned Rent Controller. It is sheerly a misnomer to treat this plea as preliminary objection, as has been done by the learned Appellate Authority. The judgments relied upon by the learned counsel for the respondent on this crucial controversy are not at all applicable in the present situation on the face of it because the question of pleading the changed circumstance by the landlord does not arise in the existing circumstances. Accordingly, the observations of he learned Appellate Authority in this regard are not warranted. 9. As already stated, the learned Appellate Authority has proceeded on wrong lines. It has not gone into the merits in the expected manner and the impugned judgment is halting and faulting in nature yet it indicates that the premises of the landlord was in a dilapidated condition. The Rent Controller, which is a Court of fact, has exhaustively discussed the factual condition and arrived at a definite conclusion. 10. Keeping in mind the compact picture of the entire case from the pleadings, evidence and the arguments addressed before me. I am of the considered view that the respondent/tenant has failed to establish his stand, whereas the petitioner/landlord has adduced ample evidence to support the case set up by him. The judgments relied upon by Mr. Jain on behalf of the respondent in this regard in Shadi Singh v. Rakha, (1992-2)102 Punjab Law Reporter 163, Ram Avtar v. Murari Lal, (2000-3)126 P.L.R. 131, Sohan Lal (Died) through L.Rs. The judgments relied upon by Mr. Jain on behalf of the respondent in this regard in Shadi Singh v. Rakha, (1992-2)102 Punjab Law Reporter 163, Ram Avtar v. Murari Lal, (2000-3)126 P.L.R. 131, Sohan Lal (Died) through L.Rs. v. Amar Nath and Ors. of Ludhiana, (1992-2)102 P.L.R. 273 (supra) are of no avail in the present circumstances. Likewise, the rulings cited by learned counsel for the petitioner/landlord on this issue are out of tune as not directly applicable to the facts of the present case. But the fact, however, remains patent on record that the building in question is unfit for human habitation. The earlier compromise on which the respondent/tenant is relying very heavily, cannot adversely affect the rights of the present petitioner/landlord, who was not a privy to the compromise, It is pertinent to state here that even the compromise is not legally proved. The position prevalent in 1979 had undergone a change in 1984 and the petitioner landlord, in my view, has been able to establish on the basis of cogent evidence before the Rent Controller that the premises in question was unfit for human habitation and as such issue No. 1 was rightly decided in favour of the petitioner/landlord. 11. As a resume to the aforesaid discussion, the present revision petition succeeds, the impugned judgment of learned Appellate Authority is set-aside, whereas that of the learned Rent Controller maintained. The respondent/tenant is given three months time from today to handover the vacant possession of the shop in question to the landlord. However, the parties are left to bear their own costs.