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2016 DIGILAW 1597 (HP)

Raj Kumar Mehra v. Surinder Mohan

2016-08-04

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. This Civil revision petition, at the instance of the petitioners/landlords (hereinafter referred to as 'landlords'), takes exception to the order passed by learned Rent Controller (3), Shimla, whereby the application filed by the respondent (hereinafter referred to as 'tenant') for amendment of the reply came to be allowed. 2. Briefly stated the facts of the case giving rise to this petition are that landlords in the year 2012 filed an eviction petition against the tenant pertaining to 'non residential premises' in occupation and being used by the tenant as Tailor shop under the name and style of M/s. Bhagat Sons and the same is pending adjudication before the learned Rent Controller. 3. During the pendency of the eviction petition, the tenant filed an application under Order 6, Rule 17 CPC for amendment of the reply. It was pleaded that certain new facts had come into existence after the institution of the petition which had necessitated the amendment of the reply. While highlighting the alleged new facts, it was pleaded that after institution of the eviction petition, the landlords had vacated a spacious flat in building No. 36, The Mall, Shimla, that too without any rhyme or reason and without there being any sort of litigation and was thereafter allegedly showing their residence in five storeyed, non residential building, bearing No. 84, The Mall, Shimla (the building in question). It was also contended that had there been any need for the alleged expansion of business, the landlords would have never shifted in that building. It was further pleaded that the alleged need for the expansion of business was malafide with the sole motive to enhance the rent from Rs. 2071/- per annum to Rs. 10,000/- per month which was not affordable by the tenant. 4. The landlords contested the application by filing reply wherein preliminary objections regarding maintainability and the application being filed malafidely with intend to delay the proceedings and the same otherwise being not necessary to decide the controversy between the parties were raised. On merits, it was pleaded that no new facts had come into existence so as to necessitate the amendment. It was also averred that vacation of the premises bearing No. 36, The Mall, Shimla was totally irrelevant for deciding the present petition. On merits, it was pleaded that no new facts had come into existence so as to necessitate the amendment. It was also averred that vacation of the premises bearing No. 36, The Mall, Shimla was totally irrelevant for deciding the present petition. It was further averred that the tenant had failed to plead as to when exactly the landlords had vacated the accommodation in question and it had been falsely pleaded that the entire five storeyed premises was lying vacant except the shop as alleged. It was lastly averred that the proposed amendments were not at all essential for the just decision of the case and accordingly prayer for dismissal of the same was made. 5. The application for amendment came to be allowed by the learned Rent Controller vide its order dated 7.10.2015 which order has been assailed in the instant petition on the ground that the learned Rent Controller has not appreciate that the landlords have filed eviction petition in respect of 'non residential premises', whereas allegation of the tenant is that the landlords have allegedly vacated the 'residential premises' i.e. building No. 36, the Mall, Shimla and building, named, Harkar, Jakhu and, therefore, even if assumed that the allegations are correct, even then, these facts have no relevance in the matter. It is further averred that the learned Rent Controller has exercised the jurisdiction vested in him with material illegality inasmuch as it has not appreciated the controversy between the parties and the same is based on hypothetical consideration, presumptions and assumptions which have no factual or legal basis and, therefore, the impugned order should be set aside. I have heard the learned counsel for the parties and have gone through the material placed on record. 6. At the outset, it may be observed that while passing the impugned order, learned Rent Controller, for some strange reason, has assumed certain facts and then on the basis of these assumed facts, had rendered the impugned findings. This is clearly evident from the following observations: "Though, no details have been mentioned in the application as and when said building No. 36, The Mall was vacated by the petitioner but it can be believed then said developments had taken place after fling of the petition. This is clearly evident from the following observations: "Though, no details have been mentioned in the application as and when said building No. 36, The Mall was vacated by the petitioner but it can be believed then said developments had taken place after fling of the petition. As far as proposed amendment is concerned the said fact could not have been included in the reply at the time of filing reply earlier as it is specifically mentioned that development had taken place after filing of the present petition." 7. After making the aforesaid observation, the learned Rent Controller thereafter referred to the judgments rendered by the Hon'ble Supreme Court in Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626 and Ramesh Kumar Aggarwal v. Rajmala Exports Pvt Ltd (2012) 5 SCC 337 and then proceeded to observe as under: "The ratio of law laid down by the Hon'ble Apex court in the aforesaid judgment clearly shows that if it is shown that proposed amendment will resolve real controversy between the parties, liberal approach in dealing with such applications is to be adopted in case the facts/evidence sought to be introduced by way of amendment are already pleaded earlier. However, if ratio of law is applied to the facts and circumstance of the present case, there are more than one grounds to allow the present application. It is categorically pleaded in the reply dated 1.10.2012 that petitioners are residing in top floor of building No. 36, The Mall, Shimla which is owned by Chander Giri and also at Harkar, Jakhoo, Shimla. Meaning thereby applicant/ respondent had given details of the accommodation in possession of the petitioner at the time of filling reply but now it is contended that petitioners have vacated the said accommodation. No doubt, such contention is subject to the final outcome of the case, but as of now proposed amendment can be termed to introduce the facts in support of contention already pleaded in the reply earlier and the same is necessitated because at the time of filing reply, petitioners were alleged to be in possession of the said accommodation whereas, later on after commencement of the trial, petitioners are stated to have vacated the said accommodation. Thus, proposed amendment could not have been carried out prior to commencement of the trial despite the fact that the exact date of eviction of the aforesaid accommodation by the petitioner is not pleaded. In these circumstances, though the application in hand is filed at belated stage, but since this court find that by allowing the application, real controversy between the parties may be resolved as it will help this court to adjudge whether in fact petitioners are in need of the demised premises for expansion of their business or not." 8. Evidently the order passed by the learned Rent Controller, more particularly, extracted portion(s) would indicate that there is a complete disconnect between the 'reasoning' and the 'conclusion'. 9. Admittedly, case set up by the tenant was that the landlords had vacated certain 'residential premises', as detailed above, but how vacation of the same had some semblance or bearing in the instant case, where admittedly the eviction was sought qua 'non residential premises', has not been spelt out. 10. In such circumstances, I really fail to understand how the learned Rent Controller could have allowed the application by placing reliance on certain judgments of the Hon'ble Apex Court and thereafter conclude by observing that the same would help in resolving the real dispute in controversy. After all the law does not operate in vacuum and cannot be applied without reference to the relevant facts and circumstances of the case. 11. The conclusions and findings cannot be equated to reasons and this position of law was reiterated by this court when it had an earlier occasion, set aside the order of learned Rent Controller vide a detailed judgment rendered in Civil Revision No. 3 of 2015, the relevant portion reads as under: "10. Recording of reasons in cases where the order is subject to further appeal/revision is very important from yet another angle. The revisional or appellate Court or authority ought to have the advantage of examining the reasons that prevailed with the Court or the authority making the order. Conversely, absence of reasons in an appealable or revisional order deprives the appellate or revisional Court or the authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own. Conversely, absence of reasons in an appealable or revisional order deprives the appellate or revisional Court or the authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own. The appellate or revisional Court or authority may in a given case decline to undertake any such exercise and remit the matter back to the lower Court or authority for a fresh and reasoned order. That, however, is not an inflexible rule, for an appellate or revisional Court may notwithstanding the absence of reasons in support of the order examine the matter on merits and finally decide the same. This discretion is vested with the appellate or revisional Court or authority." 12. In view of the aforesaid discussion, the order passed by the learned Rent Controller is clearly not sustainable in the eyes of law and therefore, liable to be set aside. However, learned Rent Controller is directed to pass orders on the application filed by the tenant for amendment of reply afresh by giving proper reasons to its conclusions positively on or before 15th September, 2016. Ordered accordingly. Parties, through their counsel are directed to appear before the learned Rent Controller on 12th August, 2016.