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Himachal Pradesh High Court · body

2015 DIGILAW 158 (HP)

Ashok Sharma v. Kanta Bhagat

2015-03-09

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The petitioner herein is a tenant under the respondent in the demised premises. An application under Order 7 Rule 11 of the CPC read with Section 14 (6) was filed before the learned Rent Controller for rejection of the petition on the score of the demised premises having been purchased in the year 2010 and as such in view of the prohibition engrafted in Section 14 (6) of the H.P.Urban Rent Control Act, 1987 against the institution of an eviction petition on the grounds specified in Section 14 (3) (a) (i) inasmuch as, an eviction petition being not institutable unless a period of five years stands elapsed from the date of purchase by the landlady/respondent herein of the demised premises. Consequently, when given the purchase of the demised premises by the respondent herein in July, 2010, as such, the eviction of the tenant from the demised premises sought through an eviction petition instituted prior to the elapse of five years necessitated its being rejected or thrown out. Even though, the learned Rent Controller before whom the application under Order 7 Rule 11 of the CPC read with Section 14 (6) of the H.P.Urban Rent Control Act, 1987 was laid, concurred with the submission made before her by the learned counsel for the petitioner herein, nonetheless the appellate authority disaffirmed the conclusions and findings recorded by the learned Rent Controller, hence set-aside the orders of the learned Rent Controller impugned before it. Now, the instant revision petition before this Court. 2. Before proceeding to render a conclusion qua the sinew and tenacity of the findings recorded by the learned Appellate Authority it is pertinent to extract the relevant portion of the apposite pleadings, comprised in paragraph 18 (a), which are extracted hereinafter:- ?1) That the premises in question is bonafide required by the respondent for her son Shri Rajesh Bhagat son of Sh. K.L.Bhagat who intends to start software compute business as he has done Post Graduate Diploma in Computer Applications and Post Graduate Diploma in Business Management. Photo copies attached. 2. That the son of the petitioner has experience in the software computer business as he has done Post Graduate Diploma in Computer Applications and Post Graduate Diploma in Business Management. At present he is serving with Havell's Pvt. Ltd. at Jabbli, District Solan. H.P.? 3. Photo copies attached. 2. That the son of the petitioner has experience in the software computer business as he has done Post Graduate Diploma in Computer Applications and Post Graduate Diploma in Business Management. At present he is serving with Havell's Pvt. Ltd. at Jabbli, District Solan. H.P.? 3. The learned appellate authority had while disconcurring with the conclusions and findings arrived at by the learned Rent Controller qua the applicability of sub section 6 of Section 14 of the H.P. Urban Rent Control Act, had focused and emphasized upon the factum of the petition for eviction of the petitioner herein having been instituted by the respondent herein before the learned Rent Controller within the purview and scope of the mandate enshrined in Clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act to which the statutory embargo envisaged in sub Section 6 of Section 14 of the H.P.Urban Rent Control Act has been made inapplicable. The son of the respondent herein claims to be a computer engineer. There is lack of specificity in clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act of a computer engineer constituting the ordained categories of professionals, for whose use as an office, consulting room or for whose carrying out practice therein, the son of the respondent is then invested with a statutory right through his mother, the landlady, to seek eviction of the petitioner herein. Now, an advertence to the pleadings comprised in paragraph 18 (a) of the eviction petition is of significance, inasmuch as in para 1 thereof it is pleaded that the demised premises are bonafide required by the respondent herein for her son Sh. Rajesh Bhagat, who intends to start software computer business. The counsel for the petitioner contends that clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act for its invocation statutorily mandates the enjoined pleaded fact of the demised premises being required by the respondent for her son to start =practice' as an engineer. Rajesh Bhagat, who intends to start software computer business. The counsel for the petitioner contends that clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act for its invocation statutorily mandates the enjoined pleaded fact of the demised premises being required by the respondent for her son to start =practice' as an engineer. He urges when the aforesaid apposite pleadings comprised in paragraph 18 (a) (1) of the petition for eviction of the petitioner from the demised premises omit to enunciate or articulate a phraseology in conformity with the statutory requirement enshrined in clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act, as such, the petition necessitated its being rejected outright. However, the learned counsel for the petitioner has been unable to portray before this Court that when clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act also includes the category of a lawyer, an architect, a dentist, a veterinary surgeon or a medical practitioner alongwith an =engineer' who when personally or while being the offspring of the landlord require the demised premises, as an office or a consulting room and on eviction of the tenant therein on initiation of his =practice' in the aforesaid capacities proceeds to rear earnings therefrom, hence even though professionals their =practice' does not as such acquire the element of an inherent profiteering motive which constitute the sinequanon of a =business'. Obviously then consequently the factum of even if there is no occurrence in paragraph 18 (a) (1) and (2) of the petition for eviction laid by the respondent for eviction of the petitioner herein requiring the eviction of the petitioner herein from the demised premises for using it as an office or a consulting room to start =practice' as a computer engineer, it rather having articulated the factum of the bonafide requirement of the demised premises by the son of the respondent to start software computer business the aforesaid omission of recital of the statutory phraseology of the requirement of the demised premises for use as office or consulting room by the son of the respondent herein to start software computer =practice' who has obtained post graduate diploma in computer application and post graduate diploma in business management, however, does not render the petitioner herein to not acquire the capacity of the statutorily envisaged or contemplated category of an =engineer' or of a =computer engineer' as projected by the learned counsel for the respondent herein nor does it render the averments to be stripped of legal tenacity for want of strict conformity with the statutory phraseology. Consequently, even if this Court concurs with the findings recorded by the learned appellate authority that the occurrence of the word =business' in paragraph 18 (a) (1) of the petition for eviction of the petitioner herein from the demised premises in detraction of the statutory phraseology of it being required as office or consulting room to start practice in the various capacities as recited therein does not constitute a dire and open infringement of the mandate enshrined in clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act. Nonetheless, in the face of their being also wholly inapposite pleadings in paragraph 18 (a) (1) of the petition for eviction laid before the learned Rent Controller of the son of the petitioner for whose bonafide requirement the petition for eviction is laid not acquiring any of the ordained statutory contemplated capacities, inasmuch as, his being not recited therein to be an =engineer', there was gross inaccurate depiction of his capacity, hence a flagrant transgression of the mandate of clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act, has arisen, as such, the learned counsel for the petitioner herein contends that given the aforesaid infirmity in pleadings the eviction petition on that score too necessitates it being thrown out. 4. The above stress before this Court by the learned counsel for the petitioner would gather weight and succour only in the event of an application as instituted at the instance of the petitioner herein before the learned Rent Controller under Order 7 Rule 11 of the CPC read with Section 14 (6) of the H.P. Urban Rent Control Act, for rejection of the petition did also spell out a ground in conformity with the aforesaid submission. However, a reading of application under Order 7 Rule 11 of the CPC, as instituted by the petitioner before the learned Rent Controller omits to divulge therein the factum of the petitioner having sought the rejection of the petition on the score of the respondent herein having omitted to disclose any relevant/apposite grounds as amiss in paragraph 18 (a) (1) and (2) of the petition for eviction of the petitioner from the demised premises devolving upon the factum of his not being an =engineer'. For the lack of enunciation in the application Under Order 7 Rule 11 of the CPC qua the aforesaid aspect also renders hence the contention addressed by the learned counsel for the petitioner herein to fall apart. For the lack of enunciation in the application Under Order 7 Rule 11 of the CPC qua the aforesaid aspect also renders hence the contention addressed by the learned counsel for the petitioner herein to fall apart. Even if there is no enunciation inconfirmity with the prescription in clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act of the respondent herein being an =engineer' nonetheless the factum of his possessing a post graduate diploma in computer application/post graduate diploma in business management which may also render him to be equipped to prove during the course of adduction of evidence the factum of his hence also falling within the statutorily ordained/contemplated category of an =engineer' envisaged in clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act. In aftermath, it would be insagacious to thwart her at this stage from adducing evidence qua the aforesaid aspect. As such, there is no merit in the contention of the learned counsel for the petitioner herein. The impugned order of the appellate authority is maintained and affirmed. The petition is dismissed. No costs.