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2018 DIGILAW 1391 (HP)

Sita Ram v. K. P. Sood

2018-07-26

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Petitioner Sita Ram, hereinafter referred to as respondent No.1-tenant is aggrieved by the judgment dated 17.5.2012 passed by learned District Judge (Appellate authority), Shimla under the Urban Rent Control Act, Shimla, whereby on reversal of the order dated 30.5.2011, passed by learned Rent Controller in Rent Petition No. 31/2 of 2006, the eviction petition has been allowed and the eviction of respondent No. 1-tenant ordered from the demised premises on the ground of the same required bonafidely by respondent No. 1, hereinafter referred to as the petitioner-landlord, for reconstruction and rebuilding. 2. The petitioner-landlord is owner of the building “Shree Niwas East”, New Block, Lal Pani, Shimla. Respondent No.1-tenant is residing in the two rooms accommodation having kitchen, bathroom etc. The rent is Rs.250/- per month inclusive of all taxes. According to the petitioner-landlord, the building is 35- 40 years old. He had to occupy the same along with his other members of his family after reconstruction of the same in a manner to make provision of modern amenities therein. It is not possible to do so without getting the demised premises vacated. He has already taken steps to get the plan sanctioned from the competent authority. Besides, he has sufficient resources at his own required for reconstruction of the building. The respondent No. 1-tenant is also stated to be in arrears of rent w.e.f. 1.5.2006 @ Rs.250/- per month. On due and admissible amount towards arrears of rent, he has also claimed the interest @ 9% per annum. Since respondents No. 2 to 4 have also been shown to be owners of the building in the revenue record, hence impleaded so in the petition. The eviction of the respondent No. 1-tenant, as such, has been sought on the ground of he being in the arrears of rent and the demised premises is required for reconstruction and rebuilding. 3. In reply, the response of respondent No. 1-tenant is that the petition has been filed with malafide intention to harass him. The respondent No. 1-tenant is 61 years of age and suffering from various diseases. The demised premises occupied by him being ideally situated, facilitate him in his day to day life. On the other hand, the petitioner-landlord is not the only owner of the demised premises but proforma respondents No. 2 to 4 are also owners thereof. The respondent No. 1-tenant is 61 years of age and suffering from various diseases. The demised premises occupied by him being ideally situated, facilitate him in his day to day life. On the other hand, the petitioner-landlord is not the only owner of the demised premises but proforma respondents No. 2 to 4 are also owners thereof. He is having huge property not only at Shimla but Delhi also where he settled for the last more than 40 years. He visits Shimla casually after the gap of 2-3 years. The demised premises is comprising of two rooms kitchen, bathroom, latrine, store and verandah. The store, however, is stated to be not in his possession and rather in the possession of respondents No. 2 and 3. The same is stated to be rented out to one Rattan Chand by proforma respondents No. 2 and 3. The building is not very old. The same rather is on RCC pillars. The demised premises is being maintained and repaired as and when required. The same need no reconstruction. The further construction on the first and subsequent floors can be raised without getting the demised premises vacated. In case he intend to make provision for modern amenities in the building, can easily do so on the first floor and the subsequent floors. It is also denied that the respondent No. 1-tenant is in arrears of rent. The rent rather stand paid up to date. 4. On such pleadings of the parties, learned Rent Controller has framed the following issues: 1. Whether the suit premises is bonafide required by the petitioner for rebuilding and reconstruction on old lines which is not possible without getting the same vacated as alleged? OPP 2. Whether the respondent is in arrear of rent if so to what amount as alleged? OPP 3. Whether the petition is not maintainable as alleged? OPR 4. Whether the petition is collusive as alleged? OPR 5. Whether the petitioner is estopped from filing the petition as alleged? OPR 6. Whether the petitioner has no cause of action as alleged? OPR 7. Relief. 5. The petitioner-landlord has himself stepped into the witness box as PW1 and examined Engineer B.C. Sharma PW2, Yashwant Singh Clerk, Municipal Corporation (AP Branch) Shimla PW3. OPR 5. Whether the petitioner is estopped from filing the petition as alleged? OPR 6. Whether the petitioner has no cause of action as alleged? OPR 7. Relief. 5. The petitioner-landlord has himself stepped into the witness box as PW1 and examined Engineer B.C. Sharma PW2, Yashwant Singh Clerk, Municipal Corporation (AP Branch) Shimla PW3. On the other hand, respondent No. 1-tenant has stepped into the witness box as RW1 and examined Shri Des Raj, Proprietor of D.R. Sharma & Associates Architects and Consultant Engineer, Shimla as RW2. RW3 is Diwan Chand, Tax Inspector, Municipal Corporation, Shimla, who has produced the record and stated that one Shri Gian Chand is the owner of the demised premises who has inducted the respondent No. 1 as tenant. Shri Purshotam Ram, Draftsman, Municipal Corporation (AP Branch), Shimla is RW4. Besides reliance has also been placed on the technical report Ext.PW2/B and the photographs Ext.PW2/C-1 to C-7 and Ext.PW2/A to Ext.PW2/G. The respondent No. 1-tenant has also relied upon the pay-in slips Ext.RW1/B and Ext.RW1/C and also the technical report Ext.RW2/G. The location plan is Ext.PW2/H. 6. Learned Rent Controller on holding full trial has concluded that neither any case qua the building is bonafidely required by the petitioner-landlord for reconstruction and rebuilding is made out nor the respondent No. 1-tenant is in arrears of rent. Issues No. 1 and 2 have, therefore, been answered against the petitioner-landlord. While answering issues No. 3 and 5 it is held that the petition is neither maintainable nor the petitioner-landlord has any cause of action to maintain the same. Issues No. 4 and 6 have, however, been answered against the petitioner-landlord. Consequently, the eviction petition has been dismissed. 7. In appeal, learned Appellate Authority has reversed the order passed by learned Rent Controller and ordered the eviction of the respondent No. 1-tenant on the grounds of the demised premises required bonafidely by the petitioner-landlord for reconstruction and rebuilding. The appeal is accordingly allowed subject to payment of cost of Rs.5000/-. 8. The respondent No. 1-tenant aggrieved by the impugned judgment has questioned the legality and validity thereof on the grounds, inter alia, that the evidence available on record has not been appreciated in its right perspective and to the contrary the well reasoned judgment passed by learned Rent Controller has been quashed and set aside illegally. 8. The respondent No. 1-tenant aggrieved by the impugned judgment has questioned the legality and validity thereof on the grounds, inter alia, that the evidence available on record has not been appreciated in its right perspective and to the contrary the well reasoned judgment passed by learned Rent Controller has been quashed and set aside illegally. The petitioner-landlord allegedly has failed to prove that the demised premises was bonafidely required by him for reconstruction and rebuilding. Also that, the building a pucca RCC structure could have otherwise been altered and modified to provide modern amenities therein without seeking the eviction of the respondent No. 1-tenant there from. As per the evidence available on record, the petitioner-landlord has no intention to settle in Shimla and on this ground also, neither any provision of modern amenities required to be made therein nor the same need reconstruction and rebuilding. 9. On hearing Mr. Romesh Verma, Advocate for respondent No. 1-tenant and Mr. Ashok Sood, Advocate for the petitioner-landlord and going through the record, it would not be improper to conclude that learned Appellate Authority has rightly ordered the eviction of respondent No. 1-tenant from the demised premises on the ground that the same is bonafidely required by the petitioner-landlord for reconstruction and rebuilding. 10. Learned Rent Controller while dismissing the rent petition has misconstrued and misunderstood the evidence as has come on record by way of the testimony of the petitioner-landlord because even if his son is residing at Bombay whereas his daughter in New york (USA) does not mean that the petitioner-landlord had no intention to settle in Shimla. The own testimony of respondent No. 1-tenant reveal that the petitioner-landlord is the owner of the building in question. It cannot be said by any stretch of imagination that his son is residing at Bombay and that he will also settle with his son there for the reasons that the son otherwise is residing at Bombay in connection with his job. It is not the case of either party that he has his own house/property there, hence after his retirement he will settle at Bomaby alone. The building as per own admission of respondent No. 1-tenant is 40 years of age. It is not the case of either party that he has his own house/property there, hence after his retirement he will settle at Bomaby alone. The building as per own admission of respondent No. 1-tenant is 40 years of age. Therefore, even if it is presumed that the same is on RCC structure, it can reasonably be believed that the modern amenities as required in a residential house in the present era are lacking therein. The petitioner-landlord if intend to raise new construction make provision of such amenities therein, the respondent No. 1-tenant cannot be said to be aggrieved thereby in any manner whatsoever for the reasons that in that event he will have the right of his re-induction in the similar area as is presently in his occupation. The plea that the petitioner-landlord has not persuaded the matter qua sanction of the building plan and also not produced any evidence qua the availability of sufficient funds with him for raising construction is also not available to respondent No. 1-tenant. Anyhow, the petitioner-landlord has proved by producing evidence that he has submitted the building plan to Municipal Corporation, Shimla for sanction. The same, no doubt, has been returned to him as has come in the statement of PW3 Yashwant Singh. True it is that as per the testimony of RW4 Purshotam the plan so submitted by the petitioner-landlord was returned to him on 28.10.2009 for removal of certain objections raised by the Municipal Corporation, Shimla. As per his further version the plan has not yet been resubmitted by the petitioner-landlord after removal of the objections. The facts, however, remain that the petitioner-landlord had already submitted the plan of building to Municipal Corporation, Shimla which, however, has been returned to him for removal of objections. Otherwise also, no such objection can be raised by respondent No. 1-tenant. 11. The evidence produced by the parties on both sides, therefore, lead to the only conclusion that the reconstruction of the building is required and the petitioner-landlord has already taken steps for the same. The Appellate Authority though has rightly ordered the eviction of respondent No. 1-tenant from the demised premises. However, the eviction order should have been made executable only after the petitioner-landlord obtains the approval of the building plan from the Municipal Corporation, Shimla and ensure that the construction work is completed in a time bound manner. 12. The Appellate Authority though has rightly ordered the eviction of respondent No. 1-tenant from the demised premises. However, the eviction order should have been made executable only after the petitioner-landlord obtains the approval of the building plan from the Municipal Corporation, Shimla and ensure that the construction work is completed in a time bound manner. 12. Therefore, it is now clarified that respondent No. 1- tenant shall handover the vacant possession of the demised premises to the petitioner-landlord within two months from the date of sanction of the building plan by the competent authority. The petitioner-landlord thereafter shall start the demolition/construction work and to complete the same within two years from the date of delivery of possession by respondent No. 1-tenant. On the completion of construction work, respondent No. 1-tenant shall be inducted in equal area as presently is in his possession in the newly constructed building, of course, on settlement of the rent as per the rates prevalent in the market and in adjoining area. 13. The parties on both sides shall adhere to the time schedule as prescribed hereinabove and any deviation there from shall entail in penal consequences including to compensate each other i.e. in case respondent No. 1-tenant failed to handover the vacant possession to the petitioner-landlord as directed, the payment in the form of damages i.e. the difference on account of escalation in the prices of construction to the petitioner- landlord. Similarly, the petitioner-landlord will have to compensate respondent No. 1-tenant by way of payment of the rent of the accommodation if hired by him in the interregnum from the expiry of the period of two years as granted till his induction in the newly constructed building. 14. The impugned judgment, as such, is upheld, however, with the modification as indicated hereinabove. This petition is accordingly disposed of. 15. Pending applications, if any, shall also stand disposed of.