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Himachal Pradesh High Court · body

2015 DIGILAW 518 (HP)

EIH Associated Hotels Ltd. v. Preet Joshi

2015-05-13

SURESHWAR THAKUR

body2015
Judgment : Sureshwar Thakur, Judge. (Oral) The landlord/petitioner herein has instituted a petition under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 before the learned Rent Controller (8), Shimla seeking the eviction of the tenant/respondent herein from the demised premises. The grounds on which eviction of the tenant/respondent herein is sought, are comprised in paragraph No.18(a) of the petition. The said grounds are extracted hereinafter:- “18(a) Grounds on which the eviction of the tenant is sought:- (i) that after the commencement of the Act, Tenant/Respondent has constructed a residential building of about eight rooms known as Spar Lodge at Rock House, Chaura Maidan, Shimla-171004, which accommodation has been converted by her into a guest house that too after she has acquired the vacant and peaceful possession of the same, which accommodation is more than sufficient for her residential needs. Moreover, Block No.8 in which quarter No.8 is situated has been declared unsafe and unfit for human habitation by the Municipal Corporation, Shimla. Notices have been issued to the petitioner as well as to the respondent by the M.C. Shimla, in this regard. (ii) That the premises in question are bonafide required for carrying out repairs and for purposes of building/rebuilding and or making substantial additions and alternations thereto, since the condition of the building is not good, which cannot be carried out without the premises being vacated. (iii) That the petitioner is obliged to provide residential accommodation to their employees, who are working in Shimla. The premises in question are bonafide required by the petitioner for use by its employees after affecting the necessary repairs/additions and alternations and or after rebuilding and reconstructing the same.” 2. On the contentious pleadings of the parties, the learned Rent Controller struck issues for trial inter se the parties at contest. The issues as framed by the learned Rent Controller, too stand extracted hereinafter:- “1. Whether the respondent has acquired a reasonably sufficient accommodation for her requirements as alleged? OPP 2. Whether the suit premises has become unsafe and unfit for human habitation as alleged? OPP. 3. Whether the suit premises is bonafide required for purpose of repairs, building/re-building and for making substantial additions and alterations as alleged ? OPP 4. Whether the suit premises is bonafide required for providing residential accommodation to the employees of the petitioner, as alleged? OPP 5. OPP. 3. Whether the suit premises is bonafide required for purpose of repairs, building/re-building and for making substantial additions and alterations as alleged ? OPP 4. Whether the suit premises is bonafide required for providing residential accommodation to the employees of the petitioner, as alleged? OPP 5. Whether the Major Rajesh Chauhan has no locus standi to file the petition, as alleged? OPD 6. Whether the petition is not maintainable as alleged? OPD 7. Whether the petitioner is not the landlord of the suit premises as alleged? OPD 8. Whether the petitioner has no cause of action as alleged? OPD 9. Relief. “ 3. The apt and germane issues pertinent for putting at rest the controversy qua the permissibility of incorporation of the proposed amendment in the reply of the tenant/respondent herein, are issues No.2 and 3. However, before proceeding to dwell upon the permissibility of incorporation of the proposed amendment in the reply of the tenant/respondent herein, it is deemed apt to extract hereinafter, the amendment proposed to be incorporated in the reply of the tenant/respondent herein:- “(i) That in para 18(a)(ii) of reply in the last after the words occurring” The premises are in good habitable condition.” The following words may be allowed to be added. “without conceding the bonafide of the petitioner for rebuilding and reconstruction of the premises in question it is submitted that if the petitioner/non-applicant rebuilds or reconstructs the premises in question after getting the possession from the applicant and after obtaining appropriate sanction from the competent authority the respondent/applicant is desirous and has a right of re-entry to the premises in rebuilt/reconstructed building, after reconstruction equivalent in area to the original premises for which the respondent is tenant. It is submitted that the petitioner does bonafide require the building including the premises in question for rebuilding and reconstruction, however, if this Ld. It is submitted that the petitioner does bonafide require the building including the premises in question for rebuilding and reconstruction, however, if this Ld. Rent Controller comes to the conclusion that the premises in question are unsafe and unfit for human habitation and that the same are bonafide required by the petitioner/landlord for rebuilding and reconstruction then in that event the tenant/respondent may be given right of reentry to the premises in the rebuilt building equivalent in the area to the original premises qua which the present applicant is a tenant.” (ii) Similarly since the petition has been filed by the petitioner on the ground of bonafide required for carrying out repairs and for purposes of building/re-building and or making substantial additions and alterations thereto, since the condition of the building is not good which cannot be carried out without the premises being vacated and also that the premises in question are bonafide required by the petitioner for use of the same by its employees after effecting the necessary repairs and alterations and or after rebuilding and reconstruction the same and which ground of eviction is taken in Para 18(a)(iii) of the petition. The petition on the said grounds of eviction is liable to be dismissed since both the grounds of eviction are self destructive in nature and accordingly the respondent be allowed to take this objection by way of adding preliminary objection No.6 to the reply filed by her as under:- “6. That the petition as filed is not competent on the grounds of evictions as taken in paras 18(a)(ii) and 18(a)(iii) of the petition as both the grounds are self destructive in nature. Apparently, the petition has been filed by the petitioner on the grounds of bonafide requirement for carrying out repairs and for purposes building/rebuilding and or making substantial additions and alterations there to, since the condition of the building is not good and which work cannot be carried out without the premises being vacated. And also that the premises in question are bonafide required by the petitioner for use of the same by its employees after effecting the necessary repairs and alterations and or after rebuilding and reconstruction the same and which ground of eviction is taken in paras 18(a)(ii) & 18(a)(iii) of the petition. And also that the premises in question are bonafide required by the petitioner for use of the same by its employees after effecting the necessary repairs and alterations and or after rebuilding and reconstruction the same and which ground of eviction is taken in paras 18(a)(ii) & 18(a)(iii) of the petition. The petition on the said grounds of eviction is liable to be dismissed since both the grounds are self destructive in nature.” 4. The issues aforesaid have been struck by the learned Rent Controller on the contentious pleadings apposite to them in the petition for eviction of the tenant/respondent herein from the demised premises. The factum whether the tenant/respondent herein is evictable from the demised premises on the scores of the demised premises having become unsafe and unfit for human habitation as also the factum whether the demised premises is bonafide required for the purpose of repairs, building/rebuilding and for making substantial additions and alterations, all fall within the ambit and contemplation of Clause (c) of Section 14(3) of the H.P. Urban Rent Control Act. However, the proviso to Clause (c) of Section 14(3) of the H.P. Urban Rent Control Act invests or foists in the tenant a right of reentry in the rebuilt building/premises on new terms of tenancy on the basis of a mutual agreement inter se the landlord or tenant. The tenant/respondent herein in the reply had omitted to initially plead the statutory right of reentry in the rebuilt premises as invested in her by the proviso to Clause (c) of Section 14(3). However, when the case had arrived at the stage of adduction of evidence, she moved an application under Order 6, Rule 17 of the CPC before the learned Rent Controller for incorporation in her reply to the eviction petition instituted by the landlord/petitioner herein the amendment as recited therein. However, when the case had arrived at the stage of adduction of evidence, she moved an application under Order 6, Rule 17 of the CPC before the learned Rent Controller for incorporation in her reply to the eviction petition instituted by the landlord/petitioner herein the amendment as recited therein. Even though, she has hence belatedly taken to claim the right of reentry in the rebuilt premises in terms of the proviso to Clause (c) of Section 14(3) of the H.P. Urban Rent Control Act, nonetheless, the said right as invested by the aforesaid Clause in favour of the tenant is a statutory right and its assertion at any stage at the instance of the tenant/respondent herein cannot be either barred nor interdicted merely on the ground that it was belatedly raised, inasmuch as its then acquiring the tinge of the tenant/respondent herein while being indiligent in asserting it, she stands ousted from asserting the inherent statutory right invested in her. In other words, the statutory right invested in the tenant/respondent herein by the proviso to Clause (c) of Section 14(3) of the H.P. Urban Rent Control Act is neither oustable nor the tenant/respondent herein is either debarred or precluded from raising it at any stage by seeking permission of the learned Rent Controller to incorporate it in her pleadings merely on the ground that it is raised belatedly or that respondent/petitioner herein is either indiligent or indolent in canvassing it. Moreover, even if, the said plea was belatedly raised, yet when it stands anchored upon a statutory right, besides when for facilitating consummation of the said right, the spirit of the mandate enshrined in the proviso to Clause (c) of Section 14(3) of the H.P. Urban Rent Control Act, is required to be complied with, as such, only when the necessary compliance with the mandate of the proviso to Clause (c) of Section 14(3), is the indispensable sine qua non, for fructification of the said right in favour of the tenant/respondent herein, hence, the permission for incorporation of an amendment apposite to it in the reply of the tenant/respondent herein was warranted for creating a pedestal, for enabling the fructification of the said right inherent in the tenant/respondent herein in consonance with the spirit of law mandated in the proviso to Clause (c) of Section 14(3) of the H.P. Urban Rent Control Act. In aftermath, the said right cannot be thrown overboard nor prematurely ousted merely on the score that the proposed incorporation of the said statutory right in the reply of the tenant/respondent herein by way of an amendment to it, hence, having been belatedly raised or it being not raisesable given the indolence or indiligence of the tenant/respondent herein. 5. In view of the aforesaid discussion, the impugned order, comprised in Annexure PH, is affirmed and the petition stands disposed of in the above terms. Even if, in case, findings on issues No.2 and 3 anvilled upon clause (c) of Section 14(3) of the H.P. Urban Rent Control Act are answered in the affirmative or in favour of landlord/petitioner herein, for reiteration, such findings may entitle the tenant/respondent herein to claim a right of reentry in the rebuilt premises only in consonance with the mandate of the proviso to Clause (c) of Section 14(3) of the H.P. Urban Rent Control Act. The parties are directed to appear before the learned Rent Controller on 15th June, 2015. All pending applications also stand disposed of.