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2016 DIGILAW 2092 (HP)

Gaurav Sood v. T. L. Sharma

2016-09-28

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. In this petition, order dated 24.6.2015 passed by learned Rent Controller, Court No. (7), Shimla in an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure registered as CMA No. 5105 of 2015 filed in Rent Case No. 134/2 of 2015/11 is under challenge. The petitioner herein is the landlord. He has sought the eviction of the respondent tenant by filing Rent Petition under Section 14 of the HP Urban Rent Control Act on the ground of the respondent-tenant being in arrears of rent and also that the demised premises being in dilapidated condition need reconstruction and rebuilding after demolition. The petitioner landlord has purchased the demised premises on 17.1.2008 from his previous owner. In terms of the provisions contained under sub section (6) of Section 14 of the Act, in the event of the landlord has acquired any premises by transfer, no application for recovery of possession thereof on the grounds specified in sub clause (i) of clause (a) of sub Section (3) can be made unless and until a period of five years has elapsed from the date of such acquisition. The petition when initially instituted in the year 2011 the statutory period of five years was not complete. The said period was over in the month of January 2013, therefore, the application Annexure P-3 hereinabove under Order 6 Rule 17 CPC came to be filed before learned Controller below on the completion of the period of five years i.e. on 6.5.2014. By way of amendment in para 18 (a) of the petition originally filed, the following para has been sought to be added by way of amendment: ?18 (a) (3) That the premises under the occupation along with the premises under the occupation of Sh. S.K. Sharma (now deceased) are also bonafide required by the petitioner after the re-construction of the building on old lines for his own use and occupation and also that of his family member which includes his wife and two daughters. At present the petitioner is residing with his parents in Inder Bhawan, Paras Dass Garden, Shimla 171001 and now he wants to live independently along with his family members. At present the petitioner is residing with his parents in Inder Bhawan, Paras Dass Garden, Shimla 171001 and now he wants to live independently along with his family members. It is significant to mention here that the petitioner is working as contractor and wants to settle himself independently and as such the premises under the occupation of the respondent as well as Sh. S.K. Sharma (now deceased) are most suitable premises keeping in view the status of the petitioner and his present and future requirements. The petitioner is also an income tax assessee. The premises are situated in a posh locality and just near Macchi Wali Kothi/U.S. Club and are on road side leading to the Ridge Shimla. The petitioner is not occupying another residential building owned by him in the urban area of Shimla and also has not vacated such a building without the sufficient cost within 5 years of the filing of the present petition in the Urban area of Shimla.? 2. In reply Annexure P-4 to the application the stand of the respondent-tenant was that the application as framed is not maintainable and filed with malafide intention to deprive him from his right to re-entry in the event of he is ordered to be evicted on the ground of the demised premises required for reconstruction and rebuilding. On merits, it was claimed that the petitioner-landlord has got ample accommodation for his own use and occupation and that on these grounds his eviction from the demised premises cannot be sought. Learned Rent Controller below on consideration of the claims and counter claims has dismissed the application with the observations that in view of the demised premises acquired by the petitioner on 17.1.2008 the application should have been filed immediately on completion of the period of five years and the filing thereof should have not been delayed. Also that no case is made out to arrive at a conclusion that despite exercise of better diligence the petitioner has applied for amendment at the earliest and also that the proposed amendment has been sought merely to deprive the respondent-tenant from his right to re-entry in the event of the petition is allowed on the ground of the building required for reconstruction and rebuilding. 3. 3. The petitioner-landlord aggrieved by the impugned order has questioned the legality and validity thereof in this Court on the grounds inter alia that the dismissal of the application for amendment in the petition is likely to result in multiplicity of litigation and also that the grounds i.e. the building is required for reconstruction and bonafidely for own use and occupation by the landlord are two separate and independent grounds and can be taken simultaneously in one reference petition, of course, by filing separate petitions also. 4. While Mr. Ashok Sood, Advocate, learned Counsel representing the petitioner landlord has strenuously contended that the application filed with a prayer to allow the amendment in the petition has been dismissed contrary to settled legal principles at the same time Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Janesh Gupta, Advocate, has argued that in the event of the amendment in the petition is allowed the same will be from the date of institution of the eviction petition before learned Rent Controller and in that event the eviction of the respondent-tenant on the ground proposed to be incorporated by way of amendment may not be legally admissible. 5. On analyzing the rival submissions and also the case law cited at the Bar, it would not be improper to conclude that the nature of the amendment being sought in the petition is not going to change the nature of the petition at all for the reasons that amongst other grounds the eviction of a tenant can also be sought on the ground of personal boafide requirement. In the Considered opinion of this Court, the amendment if allowed at this stage shall not relate back to the date of institution of the petition for the reasons that the petitioner had an occasion to seek the amendment only on the completion of statutory period of five years i.e. from the date he acquired the demised premises by way of sale from its previous owner. 6. The Apex Court in P. Suryanarayana (D) by Lrs. 6. The Apex Court in P. Suryanarayana (D) by Lrs. versus K.S. Muddugowramma , 2004 (1) RCR 395 a case where provision qua having given a right of immediate possession to a widow-landlady incorporated by way of amendment in Karnataka Rent control Act during the pendency of the revision petition in the High Court, the amendment consequent upon such amended provision sought by the petitioner-landlady during the course of proceedings in the revision petition was allowed by the High Court. The Apex Court has affirmed the judgment passed by the High Court. 7. Be it stated that a Co-ordinate Bench of this Court in Gauri Shankar versus Tilak Raj Sharma, 1988 (2) Sim. L.C. 303 a case where the petition for eviction was filed well before the completion of statutory period of five years has held that the petition was not maintainable. The statutory period of five years in that petition was over during the pendency of that petition resulting in cause of action in favour of the petitioner during the pendency, hence, the petition was not held to be maintainable. That however is not the position in the case in hand because the amendment in this petition has been sought at a stage when the statutory period of five years was already complete. The petition no doubt has been filed well before the completion of said period, however, the eviction of the respondent-tenant was not initially sought on the ground of the demised premises is bonafidely required by the petitioner for his own use and occupation. Being so, the ratio of the judgment in Gauri Shankar's case supra is not applicable in this case. 8. Otherwise also in the considered opinion of this Court, declining the prayer for amendment would definitely result in multiplicity of litigation which as per settled principle is not legally permissible. Mr. Gupta has rightly pointed out that the application for amendment came to be filed at a stage when the case was already at the stage of recording petitioner's evidence and adjourned for the purpose on 6-7 occasions. The intention behind the explanation to Order 6 Rule 17 of the Code of Civil Procedure is to file the application for amendment, if any, before the trial is commenced i.e. settlement of issues. No doubt, the explanation provides for allowing amendment at a later stage also if essentially required for just decision of the case. The intention behind the explanation to Order 6 Rule 17 of the Code of Civil Procedure is to file the application for amendment, if any, before the trial is commenced i.e. settlement of issues. No doubt, the explanation provides for allowing amendment at a later stage also if essentially required for just decision of the case. The amendment no doubt is belated. However, in the opinion of this Court is necessarily required to decide the petition effectively and judiciously. Learned Controller below, therefore, should have allowed the application may be on putting the petitioner-landlord to suitable terms. The dismissal of the application vide impugned order as such is not legally sustainable. The impugned order is, therefore, quashed. The application is allowed. Consequently, the petitioner landlord is permitted to amend the petition to the extent as indicated in this judgment of course subject to payment of Rs. 5000/- as costs to be paid to the respondent-tenant on the next date before learned Rent Controller below. 9. The parties through learned Counsel representing them are directed to appear before learned Controller below on the date fixed next there. 10. This petition is accordingly allowed and stands disposed of. 11. Pending application (s), if any, shall also stand disposed of.