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2008 DIGILAW 1583 (PNJ)

Banwari Lal v. Ram Parkash

2008-09-16

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This revision is directed against the order passed by the learned Appellate Authority, Ludhiana accepting the appeal filed by the tenant against the order of eviction passed by the learned Rent Controller. 2. The respondent-landlord filed an ejectment application Section 13 of the East Punjab Control of Rent & Eviction Act seeking eviction on the ground that one room out of House No. B-III-574 situated in Mohalla Saidan Ludhiana, was rented out to the tenant Ram Parkash at a monthly rent of Rs. 90/- per month besides house tax @ 15%. 3. The eviction was sought on the ground that the tenant has neither paid nor tendered the arrears of rent w.e.f. 1.4.1982; that the, premises in dispute was bona fide required for personal use and occupation. The ground of subletting was also raised. 4. The petition was contested and it was pleaded that the rent petition was barred on the principle of res judicata. It was also claimed that the petition was not maintainable under Order 23 Rule 4 sub-rule 1 C.P.C.. The rent was tendered on the first date of hearing. However the liability to pay house tax was denied. The respondent-tenant also denied that the premises was sublet. He also denied that the room was bona fide required by the petitioner-landlord. On the pleadings of the parties, following issues were framed : "1. Whether the tender made by the respondent is invalid ? OPA 2. Whether the respondent is liable to pay house tax ? If so, at what rate and from what effect ? OPP 3. Whether the application is barred by principle of res-judicata as per allegations in para No. 1 of the preliminary objection of the written reply ? OPR 4. Whether the application is barred by Order 23 of the CPC ? OPR 5. Whether the applicant bona fide required the demised premises for his personal use and occupation ? OPA 6. Whether the respondent No. 1 has sublet the demised premises in favour of the respondent No. 2 without written consent of the applicant ? OPA 7. Relief. " 5. The learned Rent Controller decided issue No. 1 in favour of the tenant and held that tender made was valid. The learned Rent Controller also held that the house tax was not payable by the respondent tenant. OPA 7. Relief. " 5. The learned Rent Controller decided issue No. 1 in favour of the tenant and held that tender made was valid. The learned Rent Controller also held that the house tax was not payable by the respondent tenant. However, issues No. 3 & 4 were decided against the tenant. The learned Rent Controller, however, ordered eviction of the petitioner on the ground of personal necessity. Issue No. 6, with regard to the subletting was also decided against the landlord. The eviction was, thus, ordered on the ground of bona fide necessity. The respondent-tenant challenged the said order by way of appeal before the learned Appellate Authority. 6. The learned Appellate Authority noticed that Radhe Sham, who had appeared as a witness of the landlord admitted that the room in dispute was rented out to the respondent-tenant about 15-20 years where he was running hosiery business in the property. Similarly AW-3 also admitted the factum of tenant running hosiery business in the said room. Similarly AW-1 landlord himself also admitted that the premises in dispute was being used to prepare hosiery goods. The room does not have any latrine or bath-room attached. 7. It was claimed by the respondent tenant that building was not residential and, therefore, eviction cannot be ordered on the ground of personal necessity. 8. However, the learned Appellate Authority did not accept the contention that the building was a non-residential building for the reason that the room rented out to the respondent-tenant forms integral part of the remaining building which was used for residential purposes. 9. The learned Rent Controller had come to the conclusion that the petitioner could seek eviction of the respondent-tenant on the ground of personal necessity. However, the learned Appellate Authority came to the conclusion that the appeal was likely to be accepted as the landlord has failed to plead or prove the ingredients of Section 13 sub-section 3 of the Act. The petitioner failed to plead or prove that he was not in occupation of other residential building in the urban area nor he has vacated such building without sufficient cause after the commencement of the Act in the said Urban area. 10. The petitioner failed to plead or prove that he was not in occupation of other residential building in the urban area nor he has vacated such building without sufficient cause after the commencement of the Act in the said Urban area. 10. The learned Appellate Authority thereafter referred to the pleadings made in para 2(b) of the rent petition and also the statement recorded by the petitioner-landlord, and recorded a finding that the petitioner has failed to prove the ingredients of Section 13 sub-section (3) of the Act and thus came to the conclusion that the petition filed by the petitioner-landlord was liable to be dismissed. The Appellate Authority also noticed that in the present case a specific objection was taken by the tenant with regard to non-pleading of ingredients of Section 13(3) of the Act. The plea that no prejudice was caused to the tenant was also rejected. 11. The learned counsel for the petitioner vehemently contends that the order passed by the learned Appellate Authority cannot be sustained in law as evidence was led by the petitioner to show that the room in dispute, which form part of the residential building, was bona fide required. It is the case of the petitioner that when the petitioner appeared as witness he has stated about the accommodation available with him and keeping in view the number of his family and grand-children it could not be said that requirement of small room was not bona fide. It is also the case of the petitioner that in para 2(b) of the petition it was stated that the house in dispute is required by the petitioner for his own use and occupation. The learned counsel for the petitioner further contends that it was also mentioned in the petition that the petitioner has no room to live in and there is no privacy for the petitioner as the petitioner lives with son Radhey Sham, who is having only one room with him. The evidence led by the petitioner, therefore, does meet to the requirement of Section 13(3) of the Act, therefore, the learned Appellate Authority was in error in accepting the appeal and rejecting the well reasoned judgment of the learned Rent Controller. 12. The evidence led by the petitioner, therefore, does meet to the requirement of Section 13(3) of the Act, therefore, the learned Appellate Authority was in error in accepting the appeal and rejecting the well reasoned judgment of the learned Rent Controller. 12. I find no force in the contention raised by the learned counsel for the petitioner, though, it is always open to the parties to plead the ingredients of Section 13(3) of the Act in any form given under the Act and it is also settled that landlord can always to prove the said ingredients in evidence and if it is shown that no prejudice is caused to the tenant on account of non-pleading of ingredients of Section 13(3) of the Act, then petition cannot be rejected. However, it is also held that the ingredients of Section 13(3) are mandatory in nature though no specific performa is required to be given. 13. In the present case, it may be noticed that there was no total lack of pleadings with regard to Section 13(3) of the Act nor any evidence was led in this regard, therefore, the findings recorded by the learned Appellate Authority do not suffer from any error which may call for any interference by this Court.