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2008 DIGILAW 51 (ALL)

MAHARAJ SINGH v. SURENDRA KUMAR SHARMA

2008-01-08

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THE tenant has filed this petition for setting aside the order dated 5th February, 1998 passed by the Prescribed Authority by which the application filed by the landlord under sub-clauses (a) and (b) of section 21 (1) of the U. P. Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972 (hereinafter referred to as the "act) was partly allowed to the extent that the tenant was directed to handover possession of two rooms out of the four rooms that had been given to him on rent by the landlord. The petitioner has also sought the quashing of the judgment and order dated 30th August, 2006 by Which the Appeal filed by the landlord under section 22 of the Act for handing awer the entire tenanted premises was allowed and the Appeal filed by the tenant was dismissed. ( 2 ) SRI M. D. Singh Shekhar learned Senior Counsel for the petitioner con-tended that during the pendency of the Appeal, the landlord Shyam Lal died and in his place his five sons were substituted but the Court below misinter-preted the provisions of section 21 (7) of the Act and allowed the release application of the landlord even though the substituted heirs had not filed any application to amend the release application. He further submitted that the Appellate Court committed an illegality in releasing the entire tenanted premises particularly when the Prescribed Authority, on a proper consideration of the material on record, had released only two rooms in favour of the landlord. ( 3 ) SRI M. D. Mishra learned Counsel appearing for the respondent-landlord, however, submitted that the application had been filed by the landlord under section 21 of the Act showing the need of his five sons and their children and also his five daughters one of whom was a widow and the other four were married who very often visited the applicant and in such circumstances, the two sons in whose share the tenanted premises fell could prosecute the application under section 21 (7) of the Act and these two sons had also filed a detailed affidavit indicating their separate needs. He also submitted that the finding of bona fide need and comparative hardship that has been recorded by the Appellate Court is a finding of fact based on appraisal of evidence which needs no interference under Article 226 of the Constitution. He also submitted that the finding of bona fide need and comparative hardship that has been recorded by the Appellate Court is a finding of fact based on appraisal of evidence which needs no interference under Article 226 of the Constitution. ( 4 ) THE application under section 21 (1) of the Act had been filed both under sub-clauses (a) and (b ). The relevant provisions are quoted below : "section 21 (1 ). Proceedings for release of building under occupation of tenant.- (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely- (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust; (b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction. " ( 5 ) IT was alleged in the application that the building was in a dilapidated condition and was likely to fall down any time. A perusal of the application also shows that the need that had been set up under section 21 (1) (a) of the Act was not for occupation by the landlord but for occupation by his family members. It was stated that the landlord had five sons who were married and were living with him in the house with their wives and sixteen college and school going children and that he had five married daughters out of which one was a widow who was living with him in the house with her two children. The other four daughters also very often visited the landlord. In this connection paragraphs 3 and 4 of the application are reproduced below: " (3) That the applicant has five sons namely, Shri Shiv Kumar who is married and has five children. Shri Brijendra Kumar is also married. He has six children. Shri Surendra Kumar is also married and he has five children. In this connection paragraphs 3 and 4 of the application are reproduced below: " (3) That the applicant has five sons namely, Shri Shiv Kumar who is married and has five children. Shri Brijendra Kumar is also married. He has six children. Shri Surendra Kumar is also married and he has five children. Shri Rajendra Kumar who is also married and has two children. There are sixteen college and school going children in the family. Apart from the said sons the applicant has five married daughters one of them is unfortunately was widow. She has two children and she is also living with the applicant. The other four daughters of the applicant also very often visit the applicant. (4) That for some time huge family have been in accommodation as referred to above which is absolutely insufficient for the bare needs of the family. " ( 6 ) THE Prescribed Authority allowed the application under section 21 (1) (a) of the Act in part by requiring the tenant to part with two out of the four rooms that had been given to him on rent. The application filed under section 21 (1) (b) of the Act was, however, rejected. The order passed by the Prescribed Authority led to the filing of two Appeals under section 22 of the Act. One appeal was filed by the landlord for claiming possession of the entire tenanted premises, while the other Appeal was filed by the tenant for setting aside the order of the Prescribed Authority in so far as it directed for release of the two looms. During the pendency of the Appeals, the landlord died and his legal representatives were brought on record. The two sons, in whose share the tenanted premises fell, filed a detailed affidavit in the Appeal mentioning therein their specific need. A reply to this affidavit was filed by the tenant. ( 7 ) THE contention of the learned Senior Counsel for the petitioner is that since no amendment in the release application was sought, the two sons in whose share the tenanted premises fell, could not have pursued the application in view of the provisions contained in section 21 (7) of the Act and the affidavit that had been filed by them could also not have been taken into consideration in view of the decision of the Supreme Court in Smt. Phool Rani and others v. Sh. Naubat Rai Ahluwalia, air 1973 SC 211 0 . and the decisions of this Court in L. M. Trivedi v. IIIrd Additional District Judge, Allahabad and others;1991 (17) ALR 151. Smt. Tara Devi v. lllrd Additional District Judge, Allahabad and others,1995 (26) ALR 63. ( 8 ) IN order to appreciate the contention of the learned Senior Counsel for the petitioner it may be appropriate to reproduce the provisions of section 21 (7) of the Act and the same are as follows: "21 (7)-Where during the pendency of an application under Clause (a) of sub-section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased. " ( 9 ) LEARNED Senior Counsel for the petitioner is not justified in placing reliance upon the decision of the Supreme Court in Smt. Phool Rani and others (supra) rendered by two Honble Judges as in Shantilal Thakordas and others v. Chimanlal Maganlal Telwala, air 1976 SC 2358 . a Bench of three Honble Judges of the Supreme Court did not subscribe to the view expressed therein. The relevant portion of the judgment in Shantilal Thakordas and others (supra) is quoted below: "the foremost and the first question urged before us by Mr. Dholakia was that Phool Ranis, air 1973 SC 211 0 . case was not correctly decided. We agree with this contention and say with respect that we do no subscribe to the view expressed by the Bench of this Court in that case. The original plaintiff in that case had filed the application* for eviction under section 14 (1) (e) of the Delhi Rent Control Act, 1958. The application was dismissed in the first instance by the Additional Rent Controller, Delhi on the ground that the notices to quit were not valid. Plaintiff filed an appeal but died during its pendency. His widow, son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribunal where the appeal was pending. The case was remanded by the Tribunal and after remand the Additional Rent Controller held that some of the substituted persons require the premises bona fide for their occupation. The tenants appeal to the Tribunal failed. The case was remanded by the Tribunal and after remand the Additional Rent Controller held that some of the substituted persons require the premises bona fide for their occupation. The tenants appeal to the Tribunal failed. The High Court of Delhi on a further appeal by the tenant took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground it dismissed the ejectment application. The case came up to this Court. The view of the high Court was affirmed. The relevant words of personal requirement of the premises in section 14 (1) (e) of the Delhi Act are: "for occupation as a residence for himself and members of his family. " The original plaintiff had pleaded: "the premises are required bona fide by the petitioner for occupation as a residence for himself and members of his family and that the petitioner has no other reasonable suitable residential accommodation. " This Court took the view:"thus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds~we will forget for a moment that the plaintiff is dead the premises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must perish with the plaintiff. " in our considered opinion in face of the wordings of section 14 (1) (e) of the Delhi Act, the view expressed in Phool Ranis, air 1973 SC 211 0 . case as stated above, is not correct. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family," then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family," then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord. " (Emphasis supplied) ( 10 ) THE next decision relied upon by learned Senior Counsel for the petitioner is L. M. Trivedi (supra) in which the Court made the following observations: "after a few months of the filing of the release application landlady died on 6. 8. 1978. On 5. 9. 1979 an application was filed for substitution by respondents Nos. 2 to 5 in place of the landlady. This application was not supported by any affidavit and only substitution of the names was sought In this application no need was set-up on behalf of the heirs, respondents Nos. 2 to 5. In regard to the third submission made by the learned Counsel section 21 (7) of the Act is relevant which reads as follows: "where during the pendency of an application under Clause (a) of sub-section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased. " The above clause clearly lays down that in case landlord dies during the pendency of the release application his legal representatives are entitled to prosecute the same release application further on the basis of their own need in substitution of the need of the deceased. " The above clause clearly lays down that in case landlord dies during the pendency of the release application his legal representatives are entitled to prosecute the same release application further on the basis of their own need in substitution of the need of the deceased. The Legislature consequently contemplated that after the landlord dies and in case legal representatives want to prosecute the same release application they have to setup their own need in place of the need of the landlord so that the defendant gets an opportunity of contesting the need of the heirs before the authorities concerned. In Virendra Nath v. VIth Additional District, Judge, Moradabad and others,1981 ARC 191. a question arose before me as to what is the effect of a release application where the heir substituted in the landlady place who had died did not set-up their own need. Relying upon the case of Phool Rani v. Naubat Rai, air 1973 SC 211 . I took the view that with the death of landlord the cause of action perished and since no need was set up by the heirs the application under section 21 of the Act became incompetent. The principle Lald down in this case would fully apply to the present case. Heirs having not set-up any need as required by section 21 (7) of the Act, the application for release filed by the landlord perished and could not have been continued in law and consequently it is liable to be dismissed. " (Emphasis supplied) ( 11 ) IT is, therefore, clear that in the aforesaid decision affidavit was not filed at all by the substituted heirs after the death of the landlady and the Court also placed reliance upon the views expressed by the Supreme Court in Phool Rani and others (supra) but as noticed above, the Supreme Court in Shantilal Thakordas and others (supra) did not subscribe to the views expressed in that decision. This decision, therefore, is of no benefit to the petitioner. This decision, therefore, is of no benefit to the petitioner. ( 12 ) LEARNED Senior Counsel also placed reliance upon the decision of this Court in Smt. Tara Devi (supra) in which it was observed: "it is settled law that though liberal consideration to the pleadings is to be given so as to allow any question to be raised and discussed covered thereunder yet a relief cannot be granted or refused on the basis of the facts and documents neither stated nor referred to in the pleadings relied upon. It was observed by the Privy Council in the case of Saddik Mohammed Shah v. Mst. Saran and others,1930 PC 57 (1 ). that where a claim has never been made no amount of evidence can be looked into upon a plea which was never put forward. A decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. It should, however, not be lost sight of that consideration of form cannot override the legitimate consideration of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties know that said plea was involved in that event the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. In the circumstances indicated herein above there could be no justification for treating an affidavit filed by a party which could be accepted only as an evidence as a substitute for a reply contemplated under Rule 15 (2) of the Rules framed under the Act which should contain the pleadings in regard to the material facts on which the relief claimed in the application is sought to be opposed. As noticed earlier the scheme underlying the Act and the Rules framed thereunder indicates that the pleadings and the evidence in the proceedings under section 21 of the Act have to be kept apart. As noticed earlier the scheme underlying the Act and the Rules framed thereunder indicates that the pleadings and the evidence in the proceedings under section 21 of the Act have to be kept apart. In the absence of the requisite pleadings in regard to material facts or in a case of total omission to state a material fact the evidence led in support thereof can be of no significance and cannot be looked into for the purposes of deciding an issue which can arise in a case on the pleadings of the parties filed therein. " (Emphasis supplied) ( 13 ) IT is clear from the aforesaid decision that it is only in a case where there is total omission to state a material fact that evidence led in support thereof is of no significance, but if a plea is covered by an issue by implication and the parties know that the said plea was involved then in that event the mere fact that the plea was not expressly taken in the pleadings would not disentitle the parties from relying upon it if it is satisfactorily proved by evidence. ( 14 ) IN Triloki Nath v. Dharm Prakash Gupta and others,2004 (1) ARC 443. this Court examined whether it was necessary to amend the pleadings after the death of the landlord in a case where the need of the family had been pleaded in the original application and it was observed: "learned Counsel for the petitioner has also argued that in view of section 21 (7) of the Act, it was necessary to amend the release application after the death of original landlord Dharam Prakash and as the same was not done, hence release application could not be allowed for the need of legal representatives of the landlord. In the instant case the landlord set up the need of residence for himself and his family. The need for the family having been pleaded and evidence in support thereof having been led, there was nothing wrong in allowing the release application for the need of the family after the death of the original landlord. The authority in, 1991 (1) ARC 65, cited by learned Counsel for the tenant petitioner is not applicable to the facts of this case. The authority in, 1991 (1) ARC 65, cited by learned Counsel for the tenant petitioner is not applicable to the facts of this case. " (Emphasis supplied) ( 15 ) THIS decision is clearly applicable to the facts of the present case as, the release application filed by the landlord was in respect of the need of the five married sons including the two sons Surendra Kumar Sharma and Brijendra Kumar Sharma in whose share the tenanted premises fell on the basis of the family settlement. These two sons had filed a detailed affidavit after being substituted specifically stating their bona fide needs. It is, therefore, clear that the deceased landlord had taken a specific plea about the need of the two sons Surendra Kumar Sharma and Brijendra Kumar Sharma in the release application. The said affidavit was accepted by the Appellate Court by a de-tailed order dated 22nd November, 2002. The affidavit filed by the two sons could have been taken into consideration, as it was not a case of total omission to state a material fact in the pleadings. The tenant knew that this plea was Involved. The tenant had an opportunity to controvert the facts stated in the Affidavit and indeed he did so by filing a reply. In such circumstances, the contention of the learned Senior Counsel for the petitioner that in the absence of any amendment in the release application, the affidavit could not have been taken into consideration cannot be accepted. ( 16 ) LEARNED Senior Counsel for the petitioner then contended that in the facts and circumstances of the case, the Appellate Court was not justified in releasing the entire tenanted premises. ( 17 ) THE Supreme Court in Siddalingamma and another v. Mamtha Shenoy, air 2001 SC 2896 =2002 (46) ALR 18 (SC ). observed: "rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Samp Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 =1999 SCFBRC 330. In Shiv Samp Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 =1999 SCFBRC 330. this Court has held that a bona fide requirement must be an outcome of a sincere, honest desire in contra-dis-tinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord is, whether in the given facts proved by material on record the need to occupy the premises can be said to be natural real, since honest? If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself dwell into lesser premises so as to protect the tenants continued occupation in tenancy premises. In Deena Nath v. Pooran Lal,2002 (48) ALR 259 (SC)= (2001) 5 SCC 705 . this Court has held that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. " (Emphasis supplied) ( 18 ) THE Appellate Court has elaborately examined the needs of Surendra Kumar Sharma and Brijendra Kumar Sharma and has given cogent reasons for releasing the entire tenanted premises. It has found that Brijendra Kumar Sharma had a big family comprising of his wife, his married son Alok Kumar Sharma and two unmarried sons Anil Kumar Sharma and Sanjay Kumar Sharma. His married son Alok Kumar Sharma also had his family comprising of his wife, one daughter and two sons. The two sons of Brijendra Kumar Sharma namely Sanjay Kumar Sharma and Anil Kumar Sharma were of marriageable age. It also found that Surendra Kumar Sharma had also a big family comprising his wife, married and unmarried sons and daughters who were also residing there. The two sons of Brijendra Kumar Sharma namely Sanjay Kumar Sharma and Anil Kumar Sharma were of marriageable age. It also found that Surendra Kumar Sharma had also a big family comprising his wife, married and unmarried sons and daughters who were also residing there. The Supreme Court in Munni Lal and others v. Prescribed Authority and others, air 1978 SC 29 =1981 ARC 470. clearly observed that while examining the findings of bona fide need and comparative hardship of landlord and tenant it is hot for the High Court in the exercise of its jurisdiction under Article 226 of the Constitution to reappraise the evidence and come to its own conclusion which may be different from that reached by the District Judge or the Prescribed Authority. The Appellate Court after examining the need of the aforesaid persons clearly found that the entire tenanted premises was required for the need of the family of Surendra Kumar Sharma and Brijendra Kumar Sharma. These are findings of fact based on appraisal of evidence and learned Senior Counsel for the petitioner has not been able to point out any perversity in the finding. In such circumstances, it is not possible to accept the contention of learned Senior Counsel for the petitioner. ( 19 ) THE writ petition is liable to be dismissed and is, accordingly, dismissed. Petition Dismissed. .