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2017 DIGILAW 592 (HP)

Ramesh Kumar v. Kusum Goel

2017-05-25

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. —By way of this revision petition filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987, the petitioner herein has challenged the judgment passed by the learned District Judge (Appellate Authority) Shimla in Rent Appeal No. 11-S/14 of 2011, dated 17.10.2011, vide which, learned Appellate Authority has dismissed an appeal filed by the present petitioner against the judgment passed by learned Rent Controller, Court No. (7), Shimla in Case No. 22/2 of 2009/06, dated 07.01.2011, whereby learned Rent Controller while allowing an application for eviction filed under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 by the present respondents, ordered the eviction of the present petitioner from the premises in dispute on the ground of arrears of rent, re-building and re-construction. 2. Brief facts necessary for the adjudication of the present case are that an application was filed before the learned Rent Controller under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as "the 1987 Act) by the respondents/landlords (hereinafter referred to as "the landlords") seeking eviction of the present petitioner on the ground that tenanted premises were old and had outlived its life and value and the same were required for the purpose of re-construction and re-building. It was further the case of the landlords that tenant, i.e., the present petitioner (hereinafter referred to as "the tenant") was in occupation of one shop and the ground floor of the building in issue, i.e. 49/2, Lower Bazaar, Shimla (hereinafter referred to as "tenanted premises"), which premises were within the limits of Municipal Corporation, Shimla and were non-residential in nature. Tenant was paying rent @ Rs. 1000/- per annum excluding 8% taxes and was occupying the premises prior to the purchase of the same by the present landlords from their predecessor-in-interest. It was the case of the landlords that from 19.04.1994, the tenant had failed to pay rent despite requests and in addition that the premises were required for the purpose of re-building and re-construction and they had also instituted a similar case against the other tenant of the building, namely, M/s. Ram Dass Salig Ram. As per the landlords, the tenanted premises were old and were required for the purpose of re-building and re-construction. It was not possible to re-build and re-construct the tenanted premises without getting the same vacated from its tenants. As per the landlords, the tenanted premises were old and were required for the purpose of re-building and re-construction. It was not possible to re-build and re-construct the tenanted premises without getting the same vacated from its tenants. It was further the case of the landlords that the tenanted premises besides being 90 years old in the Main Bazaar were having immense commercial value and reconstruction would increase the value and utility of the building and thereafter the same could be put to better use keeping in view its location. 3. The petition so filed by the landlords was resisted by the tenant inter alia on the ground that neither the building was old nor the same was required for the purpose of re-construction. It was further the case of the tenant that he had paid the rent to its previous owner Sh. S. Kuthiala up to August 1994 and thereafter the present landlords were refusing to accept the same despite the rent having been tendered by him. It was further the case of the tenant that the tenanted premises were situated in the core area of Shimla where no construction was permitted and it was incorrect that the tenanted premises were 90 years old or had outlived their life. As per the tenant, the petition had been filed with a malafide intention and the same therefore deserved dismissal. 4. By way of rejoinder, the landlords reiterated their contentions raised in the rent petition. 5. On the basis of pleadings of the parties, learned Rent Controller framed the following issues on 14.09.1998 and 17.10.2006: "1. Whether the petitioner is entitled to the arrear of rent as prayed? OPP 2. Whether the premises in question is required bonafide for building and rebuilding by the petitioner, which cannot be carried out without the premises being vacated? OPP 3. Whether the petitioner is not maintainable? OPR 4. Whether the petition is bad for non-joinder of necessary parties as alleged OPR 5. Relief. 6. On the basis of evidence produced on record by the respective parties, the following findings were returned to the issues so framed by the learned Rent Controller: "Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: No. Issue No. 4: No. Issue No. 5 (Relief) The respondent is evicted as per operative part of my judgment. 7. 6. On the basis of evidence produced on record by the respective parties, the following findings were returned to the issues so framed by the learned Rent Controller: "Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: No. Issue No. 4: No. Issue No. 5 (Relief) The respondent is evicted as per operative part of my judgment. 7. Vide judgment dated 07.01.2011, learned Rent Controller allowed the petition so filed by the tenant in the following terms: "35. In view of my above discussion, the respondent is liable to be evicted on the ground of arrear of rent as he has unable to pay the rent amount to the tune of Rs. 20597/-. Further, if he deposit the rent within 30 days of passing of the order he would not be evicted on this ground. Further, tenant is liable to vacate the tenanted premises on the ground of re-building and reconstruction. The petition of the petitioner is allowed and the tenant is vacated on the ground of arrear of rent and re-building and reconstruction. Memo of cost and decree sheet be prepared accordingly. There shall be no orders as to cost." 8. It was held by the learned Rent Controller that the landlords had been able to satisfy the Court that tenanted premises were required to be vacated on the grounds of non-payment of arrears of rent and building was required for re-construction and re-building which could not be carried out without getting the premises vacated. Learned Rent Controller also held that evidence regarding non-payment of rent had remained un-challenged and as far as the ground of re-building and reconstruction was concerned, PW-1 had placed on record the sanctioned map Ex. PW-4/B as well as sanction letter Ex. PW4/A, which were issued on 18.03.2003 as well as extension to the sanction plan which was granted vide Ex. PW4/C for a period of one year. Learned Rent Controller also held that another application for extension of time also stood moved by the landlords, which was under consideration. Learned Rent Controller also held that landlords had placed on record F.Ds. Ex. P-8 to Ex. P-11 showing their bonafides and financial capacity to undertake the re-construction and re-building of the premises in issue. Learned Rent Controller also held that another application for extension of time also stood moved by the landlords, which was under consideration. Learned Rent Controller also held that landlords had placed on record F.Ds. Ex. P-8 to Ex. P-11 showing their bonafides and financial capacity to undertake the re-construction and re-building of the premises in issue. It was also held by the learned Rent Controller that the tenant had failed to substantiate their defence that no re-construction of the demised premises could be undertaken as the same was in the core area. 9. In appeal, the learned appellate Court upheld the findings so returned by the learned Rent Controller. It was held by the learned appellate Court that evidence of landlords demonstrated that they were possessed of sufficient funds to undertake re-construction of the building in issue and that construction of RCC building shall undoubtedly augment the income of the owners and shall be profitable to them. It was further held by the learned appellate Court that tenant could not prove that re-construction of the building could be carried out without the eviction of the tenant. It was further held by the learned appellate Court that records revealed that demised premises were being used for business but this did not prove that tenancy qua the demised premises was not of the defendant, but of a firm, i.e., M/s. Mani Ram Ramesh Kumar. On these bases, learned appellate Court while dismissing the appeal filed by the present petitioner, upheld the judgment passed by the learned Rent Controller. 10. Feeling aggrieved, the petitioner has filed the present revision petition. 11. I have heard the learned counsel for the parties and have also gone through the records as well as the judgments passed by the learned Rent Controller and learned Appellate Authority. 12. A five Judge Bench of the Hon''ble Supreme Court in Hindustan Petroleum Corporation Limited v. Dilbahar Singh, (2014) 9 SCC 78 has held: "43..........................The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that 30 Page 31 event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." 13. The tests laid down by the Hon''ble Supreme Court are squarely applicable in the facts and circumstances of this case, as this Court has not undertaken the exercise of re-appreciating the evidence, but it has gone through the evidence to satisfy its judicial conscious as to whether there was any procedural illegality or irregularity and further whether the conclusions arrived at by the learned Courts below were borne out from the records or perverse. It cannot be said that the findings recorded by the learned Courts below have been arrived at without considering the material evidence or by misreading the same. 14. In the present case, both the learned Courts below have returned findings in favour of the landlords and against the tenant to the effect that the demised premises in fact were required for the purpose of re-construction and re-building and that the landlords were having requisite sanctions in their favour from the authority concerned and they were also having sufficient funds which demonstrated their bonafide to undertake re-building and re-construction activity. Both the learned Courts below have also held in favour of the landlords and against the tenant that it stood proved from the records that re-building and reconstruction of the demised premises could not be undertaken without the tenanted premises being vacated by the tenant. Besides this, it has also been held by both the learned Courts below on the basis of evidence led before the learned Rent Controller by the parties that the tenant had not been able to prove that it was not he who was inducted as tenant of the tenanted premises but the tenant was one firm, i.e. M/s. Mani Ram Ramesh Kumar. 15. A perusal of the records of the case demonstrates that the findings so returned by both the learned Courts below are duly borne out from the records of the case. Therefore, it cannot be said that the findings of fact recorded by the learned Courts below are perverse or are not borne out from the records of the case. Learned counsel for the petitioner also could not point out from the records of the case that the findings so returned by the learned Courts below were arrived at erroneously as a result of misreading of evidence. On the contrary, at the cost of repetition, I am reiterating that the findings so returned by the learned Courts below are duly borne out from the records of the case. Therefore, here it is not a case where the judgment and order impugned are not sustainable in the eyes of law. 16. In my considered view, neither the order passed by the learned Rent Controller nor the judgment passed by the Appellate Authority suffer from any error of law. Learned Senior Counsel for the petitioner during the course of argument could not point out any procedural illegality or irregularity committed either of the learned Courts below while arriving at their respective decisions. Therefore, it cannot be said that the impugned decisions are not legal or proper or that the findings returned by the learned Courts below are perverse or result of misreading of evidence. 17. In view of the discussion held above, as there is no merit in the present revision petition, the same is dismissed, so also miscellaneous applications, if any. No order as to costs.