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2017 DIGILAW 261 (PNJ)

Murli Dhar v. Prem

2017-02-01

G.S.SANDHAWALIA

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JUDGMENT : G.S.SANDHAWALIA, J. The tenant is aggrieved against the order dated 09.01.2012 passed by the Appellate Authority whereby, the case was remanded to the Rent Controller after allowing the amendment application regarding the eviction petition of the landlord under Order 6 Rule 17 CPC. Resultantly, it was ordered that the landlord could file an amended petition and the present petitioner could file reply to the same and issue would be framed and proper opportunity was to be given to both the parties to lead evidence and the case was to be decided afresh. It is pertinent to notice that the predecessor-in-interest of the respondent Mange Ram had filed the ejectment application under the Haryana Urban (Control of Rent & Eviction), Act, 1973 in respect of the ground floor of the shop situated at Old Anaj Mandi, Hisar. The ground for eviction was that the arrears of rent had not been paid since 01.10.2002 and that he had three sons namely Prem Kumar, Jai Dev and Nand Kishore and Jai Dev died in the year 1992 leaving behind two sons namely Keshav and Sonu apart from two daughters. The sons were doing business at Sirsa and the grand sons were residing with the petitioner. The younger grand son Sonu had been doing the business of cement in the Old Anaj Mandi and Keshav was unemployed. Resultantly, the shops were required for the two grand sons and the petitioner for carrying on the business of hardware. The defence of the present petitioner was that the grand sons were not residing with the landlord. The Rent Controller held that the landlord failed to prove his bona fide requirement and is not liable to be evicted keeping in view that the said landlord had changed one or two tenants after the year 1980/1988 and the shops had been vacated and, therefore, his need was held not to be bona fide. The rent had been increased by filing applications for fair rent. Resultantly, the petition was dismissed on 25.09.2007. In appeal, as noticed, the application was filed for amendment of para no. 7(ii) of the eviction petition that during the pendency of the appeal, Mange Ram died leaving behind his sons namely Prem Kumar and Nand Kishore being legal representatives, who were brought on record as such. Resultantly, the application for amendment was filed to amend para no. In appeal, as noticed, the application was filed for amendment of para no. 7(ii) of the eviction petition that during the pendency of the appeal, Mange Ram died leaving behind his sons namely Prem Kumar and Nand Kishore being legal representatives, who were brought on record as such. Resultantly, the application for amendment was filed to amend para no. 7(ii) that the shop was now required by Rajesh Kumar s/o Prem Kumar, one of the legal representatives. The amendment was opposed that it would change the whole cause of action and the Court had no power to amend the application at the appellate stage. Resultantly, the impugned order dated 09.01.2012 was passed. As noticed, the Appellate Authority has now proceeded on the basis that the shop is required for Rajesh Kumar for which it has remanded the matter back to the Rent Controller for framing issues and giving opportunities to both the parties to lead evidence. The issue in question before the Appellate Authority which has not been taken into consideration at all is whether at the time of institution of the eviction petition, the bona fide requirement was there qua the grand sons. The said issue has not been addressed at all. Rather, the Appellate Authority has proceeded ahead totally on a different ground by allowing the application and introducing a fresh cause of action in favour of the legal representatives of Mange Ram. It is settled principle that bona fide requirement is a recurring cause of action and it was always open to the legal representatives of Mange Ram to withdraw the appeal as such and file a fresh petition on the subsequent cause of action on account of the requirement of Rajesh Kumar, son of the original landlord. In such circumstances, the order passed by the Appellate Authority is not justified in the facts and circumstances of the case. Rather than shortening the litigation, it has only increased the length of the same. It is pertinent to mention that the impugned order was stayed way back in the year 2012 and none has put in appearance on behalf of the respondents to oppose the revision petition. Accordingly, the present revision petition is allowed. The order of the Appellate Authority dated 09.01.2012 is set aside. Resultantly, the eviction petition stands dismissed.