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2016 DIGILAW 242 (HP)

Pradeep Kumar Bhandari v. Manohar Lal

2016-03-14

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Challenge herein is to the judgment dated 26.8.2008 passed by learned Appellate Authority under H.P. Urban Rent Control Act, whereby the order of eviction of the petitioner herein (respondent-tenant before the Rent Controller) from the demised premises has been affirmed and the appeal dismissed. 2. The respondent is owner of House No. 23, Ward No. 2, Lohali, Post Office, Dalhousie, District Chamba. The house is two storeyed. The respondent was inducted as tenant in the two room set situate in the 1st floor of the building, whereas, a two room set in the same floor was rented out to one Mr. Vijay Deep Singh. The ground floor was leased out to one Sh. Raj Kumar Mehra (since dead). The petitioner-landlord himself was residing in his ancestral house comprising one room and glazed verandha situate in village Lohali itself. On the marriage of his son, he felt necessity of more accommodation and as such, sought the eviction of the respondent-tenant and also of Vijay Deep Singh on the ground of personal bonafide requirement, as according to him the accommodation on 1st floor in the building with them is required by him for providing the same to his married son for residential purposes and also his three daughters though married, however, visiting him off and on at the occasion of festivals and other celebrations with other members of their families. 3. The respondent-tenant has resisted and contested the petition on several grounds, however, mainly that sufficient accommodation is available with the petitioner-landlord in his ancestral house and that the demised premises are not required by him for his personal use. Learned Rent Controller has framed the following issues: 1. Whether premises in question is required by the petitioner for bonafide use as prayed for? OPP. 2. Whether petition in the present form is not maintainable as alleged? OPR. 3. Whether petitioner has no cause of action to file the present petition as alleged? OPR. 4. Whether petition is barred by principle of res judicata as alleged? OPR. 5. Whether petition is barred under Order 2 R. 2 CPC as alleged? OPR. 6. Whether petitioner is estopped from filing the present petition as alleged? OPR. 7. Relief. 4. The petitioner-landlord has himself stepped into the witness box as PW-3 and examined Sh. Praveen Kumar, Patwari, Patwar Circle, Dalhousie to prove certificate Ext. OPR. 5. Whether petition is barred under Order 2 R. 2 CPC as alleged? OPR. 6. Whether petitioner is estopped from filing the present petition as alleged? OPR. 7. Relief. 4. The petitioner-landlord has himself stepped into the witness box as PW-3 and examined Sh. Praveen Kumar, Patwari, Patwar Circle, Dalhousie to prove certificate Ext. PW-1/A regarding other house of the wife of the petitioner-landlord namely =Mayur Guest House' situate at village Jikkar under Gram Panchayat Jiyunta, District Chamba and Sh. Rajinder Kumar, Dealing Clerk, Municipal Council, Dalhousie to prove that the house where the demised premises situate and his ancestral house situate at Lohali, Ward No. 2, Municipal Council, Dalhousie. PW-4 is Rajesh Chauhan, son of the petitioner-landlord. 5. On the other hand, respondent-tenant has himself stepped into the witness box as RW-1 and examined S/Sh. Jarnail Singh and Chaman Lal to establish that the petitioner-landlord is residing in a residential house at village Jikkar under the jurisdiction of Gram Panchyat, Jiyunta. RW-4 Sh. Raj Kumar Mehra has been examined to establish that the ground floor of the building in question has been rented out to him and that he has not been asked to vacate the same. 6. Learned Rent Controller on appreciation of the evidence has arrived at a conclusion that the petitioner-landlord has successfully pleaded and proved the factum of the demised premises are required by him for his bonafide personal use, as such, the eviction of the respondent-tenant was ordered from the demises premises. Learned Appellate Authority has dismissed the appeal and affirmed the order of eviction passed by learned Rent Controller. 7. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the same is against the law and facts of the case. Learned Rent Controller and for that matter the Appellate Authority both have acted beyond its jurisdiction and passed the order of eviction on surmises and conjectures. The factum of dismissal of earlier eviction petition (Rent Case No. 7/1999) filed by the petitioner-landlord against the respondent is stated to be not taken into consideration. It has been pointed out that in the judgment passed in the said rent petition, the accommodation with the petitioner-landlord in his house at village Lohali was found sufficient. The appeal he preferred was also dismissed by the Appellate Authority. It has been pointed out that in the judgment passed in the said rent petition, the accommodation with the petitioner-landlord in his house at village Lohali was found sufficient. The appeal he preferred was also dismissed by the Appellate Authority. Therefore, the present eviction petition being barred under Order 23 Rule 1 and 4 of the Code of Civil Procedure should have not been entertained. The ingredients essentially required for seeking eviction under Section 14 (3) (a) (i) of the Act were neither pleaded not proved. On the other hand, he having sufficient accommodation in the shape of guest house adjoining to the limits of Municipal Council, Dalhousie is not taken into consideration. It is also pointed out that another tenant Sh. Vijay Deep Singh who also suffered order of eviction from the demised premises under his use and occupation had vacated the same after his eviction and not chosen to prefer an appeal. The petitioner-landlord must have used such accommodation for his own requirement. The subsequent events are also stated to be not taken into consideration. The petition, therefore, is stated to be filed not for bonafide personal requirement, however, for extraneous considerations and, as such, should have been dismissed. 8. During the pendency of this petition, applications bearing registration No. 279/12 and 15033/13 were filed by the respondent-tenant with a prayer to allow him to place on record the subsequent events i.e. another tenant Sh. Vijay Deep Singh has vacated two room set under his use and occupation and that on the death of Raj Kumar Mehra, during the pendency of this petition, the ground floor also fell vacant for being occupied and used by the petitioner-landlord for his own requirement. In reply to these applications, there is no denial so as to Vijay Deep Singh has vacated the accommodation i.e. two room set, on his eviction by the Rent Controller during the pendency of this petition. There is also no dispute so as to death of Sh. Raj Kumar Mehra aforesaid, however, according to the petitioner-landlord the ground floor of the building in question is still under the use and occupation of his family members. 9. The above subsequent events goes to the very root of the case and as such, it is this aspect of the matter, which need determination at first and thereafter, to examine the dispute on merits, if need so arises. 10. Mr. 9. The above subsequent events goes to the very root of the case and as such, it is this aspect of the matter, which need determination at first and thereafter, to examine the dispute on merits, if need so arises. 10. Mr. Ashwani K. Sharma, learned Senior Advocate representing the respondent-tenant while submitting that the subsequent events are required to be taken on record till the final decree is passed in a rent petition has placed reliance on the judgment of the Apex Court in Kedar Nath Agrawal (dead) and another v. Dhanraji Devi (dead) by LRs and another, (2004) 8 Supreme Court Cases, 76. In the case before the apex Court, the landlady and her husband who initially filed the petition for eviction of the appellant-tenant on the ground of personal bonafide requirement have died during the pendency of the writ petition in the High Court. The appellant-tenant though sought to bring on record the subsequent developments so taken place, however, the High Court did not incline to the prayer so made. The Apex Court after taking note of the entire case law has concluded that in a case of eviction of a tenant on the ground of personal requirement, the requirement so pleaded by the land-lord should not exist on the date of institution of the petition alone but till the final decree or an order of eviction is made. The judgment under challenge was, therefore, quashed and set aside and the case remanded to the High Court to decide the same afresh in accordance with law and till then the parties were directed to maintain status quo as on that day when judgment was passed. The Apex Court in Prabha Arora and another v. Brij Mohini Anand and others (2007) 10 Supreme Court Cases 53 while placing reliance on the judgment of the Apex Court in Kedar Nath Agrawal?s case supra has quashed the order passed by the High Court and also the Appellate Court without taking note of the subsequent events. 11. On behalf of the petitioner-landlord, no doubt on the strength of the ratio of the judgment of the Apex Court in Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604 , Mr. 11. On behalf of the petitioner-landlord, no doubt on the strength of the ratio of the judgment of the Apex Court in Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604 , Mr. Imran Khan, learned counsel has urged that the subsequent developments having taken place need not to be taken into consideration and the requirement on the day of the institution of the rent petition has only to be taken into consideration, however, unsuccessfully, because the latest judgments of the Apex Court cited on behalf of the respondent-tenant are binding precedents. An effort has been made to draw support to the case of the petitioner-landlord from the ratio of the judgment of a co-ordinate Bench of this Court in Bhagat Ram Thakur v. Smt. Enakshi Mahajan, 1999 (3) Shimla Law Cases, 175, however, again unsuccessfully as the proposition of law settled in this judgment was that the land-lady cannot be forced to live with her husband, a Government servant in the accommodation provided to him by the Government. 12. On analyzing critically the submissions made by learned counsel representing the parties and also law laid down by the Apex Court, the only inescapable conclusion would be that the subsequent events in a case of eviction of tenant on the ground of personal bonafide requirement are required to be taken into consideration till the final decree is passed in the rent petition. The ratio of the judgment in Kedar Nath Agrawal's case supra reads as follows: ?16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances: (i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) It is necessary to take notice of subsequent events in order to shorten litigation; or (iii) It is necessary to do so in order to do complete justice between the parties.? 13. After taking note of the case law, the Apex Court has further held as under: ?30. We must now refer to Hasmat Rai. As already noted, notice was issued by this Court on October 29, 1999 in view of the decision of this Court in Hasmat Rai. In the said decision, the three Judge Bench of this Court held that when eviction was sought on the ground of personal requirement of the landlord, such requirement must continue to exist till the final determination of the case. Following the ratio laid down in Pasupuleti Venkateswarlu, Desai J. stated; "It is now convertible that where possession is sought for personal requirement, it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but also subsist till the final decree or order for eviction is made. If in the meantime events have crept up which would show that the requirement of the landlord is wholly satisfied then in that case his action must fail and in such a situation it is not incorrect to say that such decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration the subsequent events." (emphasis supplied). 31. In view of the settled legal position as also the decisions in Pasupuleti Venkateswarlu and Hasmat Rai, in our opinion, the High Court was in error in not considering the subsequent event of death of both the applicants. In our view, it was power as well as the duty of the High Court to consider the fact of death of the applicants during the pendency of the writ petition. In our view, it was power as well as the duty of the High Court to consider the fact of death of the applicants during the pendency of the writ petition. Since it was the case of the tenant that all the three daughters got married and were staying with their-inlaws, obviously, the said fact was relevant and material. The ratio laid down by this Court in Rameshwar, would not apply to the facts of this case as it related to agrarian reforms. Likewise, Gaya Prasad, does not carry the matter further. There during the pendency of proceedings the son for whom requirement was sought had joined Government Service. In the instant case, the requirement was for the applicants, who died during the pendency of writ petition. Gaya Prasad is thus clearly distinguishable. 32. There is yet another reason on which the order passed by the High Court is liable to be set aside. As stated earlier, notice was issued by this Court on October 29, 1999 in view of provisions of sub- section (7) of Section 21 of the Act. Subsection (1) of the said section enables the landlord to get possession of the tenanted properly on certain grounds. One of such grounds is bona fide requirement by the landlord for residential purposes or for purposes of any profession, trade or calling. Sub-section (1) has to be read with sub-section (7) of Section 21. The relevant part of Section 21 reads as under; "21. Proceedings for release of building under occupation of tenant. One of such grounds is bona fide requirement by the landlord for residential purposes or for purposes of any profession, trade or calling. Sub-section (1) has to be read with sub-section (7) of Section 21. The relevant part of Section 21 reads as under; "21. Proceedings for release of building under occupation of tenant. (1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust ; (7) Where during the pendency of an application under clause (a) of sub-section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased." 33. Conjoint reading of clause (a) of sub-section (1) and sub- section (7) of Section 21 makes it clear that where the possession is sought by the landlord on the ground of bona fide requirement and during the pendency of the application, the landlord dies, his legal representatives can prosecute such application on the basis of their own need in substitution of the need of the deceased. 34. In the light of decisions referred to by us, particularly in Hasmat Rai and the provisions of sub-section (7) of Section 21 of the Act, the High Court has to consider the matter and record a finding. 35. For the reasons aforesaid, the appeal deserves to be allowed by setting aside the order passed by the High Court. The matter is remitted to the High Court with a direction that the High Court shall consider the subsequent event of death of both the applicants and also the provisions of sub-section (7) of Section 21 of the Act in the light of observations made hereinabove and pass an appropriate order in accordance with law after hearing the parties. 36. The matter is remitted to the High Court with a direction that the High Court shall consider the subsequent event of death of both the applicants and also the provisions of sub-section (7) of Section 21 of the Act in the light of observations made hereinabove and pass an appropriate order in accordance with law after hearing the parties. 36. Regarding possession, as already noted earlier, according to the respondents, after the dismissal of the appeal in default and before restoration, they have already taken over possession of the shop. According to the appellants, however, possession has remained with them. We express no opinion. When we are remitting the matter to the High Court with a direction that the High Court will decide the matter afresh according to law, appropriate order will be passed in consonance with the final decision by the High Court. Till then status quo as of today shall continue. There shall be no order as to costs. 14. In view of what has been said hereinabove, the parties on both sides area entitled to avail an opportunity to produce the evidence to find out that in view of subsequent events having taken place during the pendency of this petition the ground of eviction i.e. personal bonafide requirement still subsists in favour of the petitioner-landlord or not. It is the Rent Controller, the appropriate authority to whom the petition deserves to be remanded on reversal of the judgment under challenge in this petition with a direction to take on record the evidence, if any, to be produced by the parties in the changed circumstances and to decide the same afresh, after affording them due opportunity of being heard. Till the additional evidence is produced by the parties on both sides, in the light of subsequent developments having taken place, the status quo as of today with regard to occupancy of the demised premises also deserves to be maintained. 15. Therefore, the judgment under challenge is quashed and set aside. The case is remanded to learned Rent Controller, Dalhousie, District Chamba for fresh decision after taking on record the evidence to be produced by the parties on both sides. It is the respondent-tenant who shall produce the additional evidence first in support of the subsequent developments so having taken place and the petitioner-landlord shall produce the evidence in rebuttal thereto. The case is remanded to learned Rent Controller, Dalhousie, District Chamba for fresh decision after taking on record the evidence to be produced by the parties on both sides. It is the respondent-tenant who shall produce the additional evidence first in support of the subsequent developments so having taken place and the petitioner-landlord shall produce the evidence in rebuttal thereto. In view of the present is an old matter, it is expected from learned Rent Controller to decide the petition afresh on or before 30th June, 2016. Till then, status quo with regard to occupancy of demised premises as of today shall continue. The parties through learned counsel representing them are directed to appear before learned Rent Controller, Dalhousie, District, Chamba on 28th March, 2016. The record be sent at once so as to reach in the Court of learned Rent Controller well before the date fixed. 16. The petition stands disposed of accordingly. Pending application (s), if any, shall also stand disposed of.