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2013 DIGILAW 462 (HP)

ANIL KUMAR v. HUKAM CHAND

2013-05-24

SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J 1. SH. Anil Kumar, petitioner herein and Sh. Jagar Nath are tenants with respect to shop/stall No. 2, khasra Nos. 885, 886 and 887, Khalini, District Shimla, H.P. Sh. Anil Kumar, original respondent No. 1 is son of Sh. Jagar Nath. 2. THE present respondents/landlords filed a petition for ejectment under the provisions of Section 14 of the H.P. Urban Rent Control Act, 1987, on the ground of non payment of rent as also rebuilding and reconstruction. The building being an old wooden dilapidated structure, required to be reconstructed for safe human habitation, for which purpose, permission from the municipal body also stands obtained. The petition was contested by the tenant, inter alia, on the ground that the same was filed only to harass and get the rent increased. Even though out of five, three tenants have already vacated their respective portions but there is nothing on record to establish that the fifth tenant namely Sh. Bhagat Ram had given any undertaking to vacate the premises, only when the entire building is vacated, reconstruction can take place. 3. BASED on the pleadings of the parties, following issues were framed: "1. Whether the respondent is in arrears of rent, as alleged? OPP 2. Whether the building in question is bonafide required by the petitioner for re-building and reconstruction, as alleged? OPP 3. Whether the respondents have got their own building within the urban area of M.C. Shimla, as alleged? OPP 4. Whether the building in question is in a dilapidated condition and the rebuilding work cannot be carried out until and unless same is vacated, as alleged? OPP 5. Whether the application is not maintainable? OPR 6. Whether the petitioners are estopped from filing the present application by their own acts, deeds, conduct and acquiescence? OPR 7. Whether the petitioners have no cause of action against the respondent? OPR 8. Whether the application is bad for mis-joinder of necessary parties? OPR 9. Whether the present application is barred under Order 2 Rule 2 of CPC? OPR 10. Relief." 4. OPR 7. Whether the petitioners have no cause of action against the respondent? OPR 8. Whether the application is bad for mis-joinder of necessary parties? OPR 9. Whether the present application is barred under Order 2 Rule 2 of CPC? OPR 10. Relief." 4. THE trial Court, appreciating the testimonies of the relevant witnesses and the material produced by either side, came to the conclusion that not only the tenant was in default of payment of rent but also plans for reconstruction of the building stood sanctioned and the building which was constructed about 80 years ago was in a dilapidated condition, being old wooden structure. As such, the trial Court allowed the petition on both the counts in terms of the following order:- "34. In view of my findings on Issues No. 1 and 2, the petition is hereby allowed and respondent No. 2 is ordered to be evicted from the disputed premises on the following grounds:- (i) That the respondent No. 2 is in arrears of rent since 1.1.2001 till 28th February, 2010 at the rate of Rs. 110/- per annum which comes to Rs. 12,100/- and he is also liable to pay interest @ 9% per annum which comes out to Rs. 5036.62 paise. However, respondent No. 2 shall not be evicted from the demised premises on the ground of arrears of rent in case he pays the amount of rent calculated to be Rs.12,100/- and interest calculated to be Rs. 5036.62 paise within 30 days from the date of order. (ii) That the respondent is also ordered to be evicted from the demised premises on the ground of rebuilding and reconstruction." With the passing of order dated 31.3.2010 by the learned Rent Controller (3) Shimla, H.P. in Rent Petition No. 10/2 of 2007, titled as Hukam Chand & others vs. Anil Kumar & another, the tenant deposited the amount of rent. 5. HOWEVER, with regard to the order of ejectment on the ground of rebuilding and reconstruction, tenants filed an appeal which stands partly allowed by the learned Appellate Authority-II, Shimla, H.P. in terms of judgment dated 29.8.2012 passed in Rent Appeal No. 17-S/13 (b) of 2010, titled as Jagarnath vs. Hukam Chand and others, in the following terms:- "24. As per my findings on point No. 1 above, the appeal of the appellant-tenant is partly allowed. As per my findings on point No. 1 above, the appeal of the appellant-tenant is partly allowed. The impugned order is partly set aside and modified to the effect that the executing Court shall not execute the impugned order of eviction on the ground of rebuilding and reconstruction unless until the petitioners-landlords produce a duly sanctioned building plan before it." 6. STILL aggrieved, tenant has filed the present revision petition. Mr. Nipun Thakur, learned counsel, has invited my attention to the fact that there is nothing on record to establish that the fifth tenant Bhagat Ram has furnished any undertaking to vacate the premises under his occupation. According to him, this fact in itself, would establish malafide intent of the landlord of getting the premises vacated, without having any intention of rebuilding and reconstructing the premises. 7. THE contention, in my considered view, only merits rejection. The authorities below have concurrently come to the conclusion that the building being old, in a dilapidated condition, needs to be reconstructed. Its structure is wooden in nature. It cannot be said to be safe for human habitation. In this regard the landlord has also obtained permission from the authorities. Out of five, landlord has already got vacant possession of premises from three tenants. It is not that he has further inducted a fresh tenant or started using these premises for his personal use. The Courts below have believed the statement of the landlord with regard to his understanding with Sh. Bhagat Ram. There is no reason to differ. It is not a matter of course that against every tenant proceedings in Court have to be initiated. 8. MY attention is also invited to the fact that building plans sanctioned by the Municipal Corporation stands lapsed. This would not make the case any better. Permission and sanction can be renewed. In my considered view, keeping in view the decision dated 29.4.2013 rendered by the Apex Court in Hari Dass Sharma vs. Vikas Sood & others, Civil Appeal No. 4127 of 2013 (Arising out of SLP(C) No. 30 of 2012) alongwith other connected matters, even this contention has to be rejected. No other illegality or infirmity could be found or pointed out in the findings of the authorities below. In view of the aforesaid discussions, present civil revision petition, devoid of any merit, is dismissed. Pending application(s), if any, also stands disposed of.