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2010 DIGILAW 1242 (HP)

Susheela Mohan v. Lakhbir Singh Sethi

2010-11-29

RAJIV SHARMA

body2010
JUDGMENT Rajiv Sharma, J. CMP(M) No. 1011 of 2010. 1. There is a delay of 370 days in filing the revision petition. However, since the tenants had been pursuing the remedy of appeal before the first appellate authority, this period is to be excluded. The tenants had been diligently pursuing their remedy before the appellate authority. They had filed an appeal against the order dated 6.8.2009 on 25.8.2009 and the same was dismissed on 30.8.2009. The certified copy of the order dated 6.8.2009 was applied afresh and the same was prepared on 3.9.2010. Thereafter, the same was attested on 6.9.2010 and supplied on 9.9.2010. In these circumstances, the delay in filing the present revision petition is condoned. Application stands disposed of accordingly. Civil Revision No. 113 of 2009. This petition is directed against order dated 6.8.2009 passed by the learned Rent Controller in rent case No. 91/2 of 2008. 2. Material facts, necessary for adjudication of this revision petition are that the Respondent/landlord (hereinafter referred to as the "landlord" for convenience sake) had instituted a petition before the learned Rent Controller seeking eviction of the Petitioner/tenants (hereinafter referred to as the "tenants" for convenience sake), on the grounds, inter alia, that the suit premises have become unsafe and unfit for human habitation and that the same was bonafide required by him for the propose of rebuilding and reconstruction and that the tenants had made additions and alterations, which are likely to impair the value and utility of the suit premises and the tenants were also in arrears of rent with effect from 1.1.2001. 3. The landlord has mentioned in para 19 of the petition that he had earlier filed eviction petition against the tenants on the grounds that the premises were required for reconstruction. The petition was dismissed for default. The application for restoration of the same was also dismissed on 29.9.2008. 4. Tenants moved an application under Order 9 Rule 9 of the Code of Code of Civil Procedure read with Section 18 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as "the Act" for brevity sake) and averred that the landlord had earlier filed petition seeking their eviction from the demised premises on the same grounds as well, but the said petition has been dismissed in default for non prosecution on 11.1.2005. Thereafter the application filed by the landlord for restoration of the petition was also dismissed in default on 29.9.2008. Therefore, fresh petition seeking their eviction on the same or similar grounds was not maintainable under law. The learned Rent Controller after calling reply of the tenants and hearing the parties dismissed the application on 6.8.2009. Tenants filed an appeal before the learned first appellate authority on 25.8.2009. The same was dismissed by the learned appellate authority on 30th August, 2010. The present petition has been filed against the order dated 6.8.2009 passed by the learned Rent Controller. 5. According to Mr. Suneet Goel, learned Counsel for the Petitioners, the order passed by the learned Rent Controller, dated 6.8.2009 is against the principles of law. According to him, the only remedy available to the landlord was to move an application for restoration of earlier petition which was dismissed for default. Mr. B. C. Negi, learned Counsel for the landlord has supported the order dated 6.8.2009. 6. I have heard learned Counsel for the parties and gone through the pleadings carefully. 7. It is not in dispute that the landlord had earlier filed petition seeking eviction of the tenants on the grounds mentioned hereinabove. The earlier petition bearing Rent Petition No. 44/2 of 2002 was dismissed in default. The application for restoration of the same was also dismissed on 29.9.2008. The grounds taken by the landlord are recurring. The landlord was not precluded from instituting fresh eviction petition on the ground that he required the premises bonafide for the purpose of building or rebuilding. Similarly, the ground of non-payment of rent had become recurring casue of action to the landlord to institute fresh petition. The ground that the premises had become unsafe and unfit for human habitation could also be taken by the landlord in the fresh petition since now according to the landlord, the premises had become more unsafe and unfit for human habitation with the passage of time. He was not precluded from taking the ground that the value and utility of the suit premises had been impaired by additions and alterations by the tenants. Moreover, there was no adjudication on merits of the earlier petition preferred by the landlord. 8. He was not precluded from taking the ground that the value and utility of the suit premises had been impaired by additions and alterations by the tenants. Moreover, there was no adjudication on merits of the earlier petition preferred by the landlord. 8. Their Lordships of Hon'ble Supreme Court in Surajmal v. Radheyshyam (1988) 3 SCC 18 have held that the bonafide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the Plaintiff it has to be assumed that he will not have a bona fide and genuine necessity ever in future. Their Lordships of Hon'ble Supreme Court have held as under (pare 8): The learned Counsel for the Appellant Sunderbai contended that in substance the case of the Plaintiff-Respondent in the earlier eviction suit and in the present suit is the same and since the earlier suit was dismissed the present suit also should be dismissed. The High Court in paragraph 4 of its judgment pointed out that the nature of requirement pleaded in the earlier suit was different from, that in the present suit. The first appellate court while deciding the issue against. the Defendant observed that the bona fide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the Plaintiff it has to be assumed that he will not have a bona fide and genuine necessity ever in future. We are in agreement with the views as expressed by the two courts. 9. Their Lordships of Hon'ble Supreme Court in K.S. Sundraraju Chettar v. M.R. Ramachandra Naidu (1994) 5 SCC 14 have held that cause for eviction is a recurring cause of action and even if the existence of such cause of action had not been found in a previous proceedings for eviction, the same cannot be discarded if such claim is established by cogent evidences adduced by the landlord in subsequent proceedings. Their Lordships of Hon'ble Supreme Court have held as under (para 10): After giving our careful consideration to the facts and circumstances of the case, it appears to us that non-mention of a reasonable ground for eviction in the notice for eviction on the basis of which a claim for eviction is later on founded usually raises a suspicion about the existence of such ground but such non-mention by itself cannot disentitle a landlord to claim eviction on such ground. If a claim for eviction founded on such ground in the petition for eviction is proved to be well-founded and the same is consistent with the grounds on which eviction is permissible in law, the landlord will be entitled to a decree for eviction notwithstanding the fact that such ground was not mentioned in the notice for eviction. In our view, the appellate authority has rightly indicated in the facts of this case, that the partnership business under the name and style of Govindammal and Company was in existence even prior to giving notice for eviction by the landlord. Such partnership business was registered and the licence for the business was obtained and the business had been subjected to assessments made by the income-tax authorities. Hence, such business was not brought into existence only for the purpose of making a foundation for eviction of the tenant with mala fide intention. Hence, in the facts and circumstances of the case, it cannot be reasonably held that the claim of bona fide requirement on account of the said partnership business is per se mala fide and should not be taken into consideration simply because the case for bona fide requirement on that account had not been mentioned in the notice for eviction. There is no manner of doubt that the bona fide requirement is required to be considered objectively with reference to the materials on record and it is necessary to determine the real intention of the landlord on the basis of evidences adduced in a case. If the materials on record clearly justify a case of bona fide requirement, there will be no occasion for the Court to hold that the landlord did not require the premises bona fide simply because on a previous occasion the action of the landlord for bringing an eviction case was not bona fide. If the materials on record clearly justify a case of bona fide requirement, there will be no occasion for the Court to hold that the landlord did not require the premises bona fide simply because on a previous occasion the action of the landlord for bringing an eviction case was not bona fide. It should be borne in mind that cause for eviction is a recurring cause of action and even if the existence of such cause of action had not been found in a previous proceeding for eviction, the same cannot be discarded if such claim is established by cogent evidences adduced by the landlord in a subsequent proceeding. It will not be correct to hold that only because after a tenant was evicted by the landlord on the ground of reasonable requirement for building and reconstruction, the landlord did not make the alleged reconstruction but let out the premises to another tenant after obtaining possession, any subsequent eviction case for the said premises deserves to be dismissed in limine. The landlord, in our view, may bring an action for eviction of the tenant on subsequent cause of action justifying a case of bona fide requirement. Similarly, rejection of a case for building and reconstruction by itself will not disentitle the landlord to get an order of eviction if the eviction on such ground can be founded in a changed circumstance. We may also indicate here that the contention that the Rent Act is a legislation for protecting a tenant will be over simplification of the legislative import of the Rent Act. In our view, it will be more appropriate to hold that the Rent Act regulates the incidence of tenancy and inter se rights and obligations of the landlord and tenant. 10. Their Lordships of Hon'ble Supreme Court in N.R. Narayan Swamy v. B. Francis Jagan, (2001) 6 SCC 473 have held that in eviction proceedings under the Rent Act the ground of bona fide requirement or non-payment of rent is a recurring cause, and therefore, the landlord is not precluded from instituting fresh proceedings. 10. Their Lordships of Hon'ble Supreme Court in N.R. Narayan Swamy v. B. Francis Jagan, (2001) 6 SCC 473 have held that in eviction proceedings under the Rent Act the ground of bona fide requirement or non-payment of rent is a recurring cause, and therefore, the landlord is not precluded from instituting fresh proceedings. Their Lordships of Hon'ble Supreme Court have held as under (para 6): In our view, the High Court ought to have considered the fact that in eviction proceedings under the Rent Act the ground of bona fide requirement or non-payment of rent is a recurring cause and, therefore, landlord is not precluded from instituting fresh proceeding. In an eviction suit on the ground of bona fide requirement the genuineness of the said ground is to be decided on the basis of requirement on the date of the suit. Further, even if a suit for eviction on the ground of bona fide requirement is filed and is dismissed it cannot be held that once a question of necessity is decided against the landlord he will not have a bona fide and genuine necessity ever in future. In the subsequent proceedings, if such claim is established by cogent evidence adduced by the landlord, decree for possession could be passed. [K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu (SCC para 10) and Surajmal v. Radheshyam]. 11. A Single Judge of Punjab and Haryana High Court in Surinder Kaur and Anr. v. Rattan Chand Duggal alias R.R. Duggal 2005(2) RCR 428 has held that when the suit for ejectment of tenant is dismissed for default and not on merits, second suit on same grounds is maintainable and provisions of Order 9 Rule 9 will not apply. He has held as under (para 6): From the perusal of the provisions of Section 14 of the Act, it is apparent that the Rent Controller can summarily reject any application for ejectment filed under Section 13 which raises substantially the issues as had been finally decided in a former proceeding of the Act. The order dated August 4, 1999 passed by the learned Rent Controller does show that the merits of the controversy had not been dealt with and, therefore, it could not be said that the rights of the parties had substantially been decided. Accordingly, provisions of Section of the Act would not be attracted to non-suit the landlords in any manner. The order dated August 4, 1999 passed by the learned Rent Controller does show that the merits of the controversy had not been dealt with and, therefore, it could not be said that the rights of the parties had substantially been decided. Accordingly, provisions of Section of the Act would not be attracted to non-suit the landlords in any manner. The authorities below have placed reliance upon the provisions of Order 23 Rule 1 and Order 9 Rule 9 of the Code of Code of Civil Procedure to non-suit the landlords. I am afraid the aforesaid observations made by the Authorities below are also not justified. 12. Accordingly, in view of the observations made hereinabove, there is no merit in this revision petition and the same is dismissed, so also the pending application(s), if any. The parties are directed to appear before the learned Rent Controller, Shimla on 6.12.2010.