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2019 DIGILAW 145 (HP)

BHAI LAL v. JUNG BAHADUR SINGH BAWA

2019-01-11

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The tenant is the petitioner, who aggrieved by the order of eviction as passed by the learned Rent Controller and affirmed by the learned Appellate Authority, has filed the instant petition. 2. The premises comprised of Shop No.5, situated in the ground floor of 'Bawa Building' and also known as 'Bawa Market', 'Bawa Estate', AG Chowk, Shimla. The eviction thereof was sought by the landlord-respondent on the ground of bonafide requirement and arrears of rent. It was averred that father of landlord Dr. Rattan Singh Bawa had rented out the premises to the tenant in the year 1983, but the tenant was a chronic defaulter in making of the payment and had not paid the rent from October, 2014 upto the filing of the petition on 21.05.2015. Further, the tenant was also liable to pay the rent along with statutory interest at the rate of 10%. According to the landlord, he is a Senior Citizen and is not capable of doing any physical work and, therefore, in order to increase his income, he wanted to demolish the demised premises and construct a compact shop to run the business of confectionery and daily needs in order to generate more income. 3. The petitioner-tenant contested the petition raising preliminary objections regarding maintainability, estoppel, suppression of material facts and petition being filed to harass the tenant etc. On merits, the description of the premises was not disputed and it was stated that the tenant was running a 'Pan Shop' in the premises at monthly rent of Rs. 500/-. However, it was denied that the premises were required by the landlord for his personal use and it was averred that the landlord was having many shops in and around these premises. 4. Out of the pleadings of the parties, the learned Rent Controller on 28.03.2016 framed the following issues:- "1. Whether the respondent is in arrears of rent from October 2014 at the rate of Rs.500/- per month qua the demised premises? OPP. 2. Whether the demised premises is bonafidely required by the petitioner for running business? OPP. 3. Whether the petition is not maintainable? OPR. 4. Whether the petitioner has not approached the court with clean hands? OPR. 5. Whether the petitioner is estopped from filing the present petition by way of his acts, deed, omissions and acquiescence? OPR. 6. OPP. 2. Whether the demised premises is bonafidely required by the petitioner for running business? OPP. 3. Whether the petition is not maintainable? OPR. 4. Whether the petitioner has not approached the court with clean hands? OPR. 5. Whether the petitioner is estopped from filing the present petition by way of his acts, deed, omissions and acquiescence? OPR. 6. Whether the petition is barred by principle of res-judicata? OPR. 7. Relief." 5. After recording evidence and evaluating the same, the petition for eviction was allowed and the landlord was held entitled to rent at the rate of Rs.500/- per month from the month of October, 2014 with interest at the rate of 12% and the same was ordered to be paid within 30 days from the date i.e. 29.04.2017. It was further held that the demised premises were bonafidely required by the landlord for his personal use and occupation, therefore, the tenant was directed to hand over vacant possession of the premises to him within a period of two months. 6. Aggrieved by the order of eviction, the tenant assailed the order passed by the learned Rent Controller before the learned Appellate Authority, who too dismissed the same vide its judgment dated 28.02.2018, constraining the tenant to file the instant revision petition. 7. It is vehemently argued by Shri Adarsh K. Vashista, learned counsel for the petitioner-tenant that both the authorities below have erred in not taking into consideration the fact that the landlord is owning other shops in the same premises and, therefore, his requirement is not bonafide. 8. On the other hand, Shri Sanjay Ranta, learned counsel for the landlord-respondent, would vehemently argue that the instant petition is nothing but an abuse of the process of the Court as the tenant is only trying to take advantage of the advanced age of the landlord and being a gross abuse of the process of the Court, the petition should be dismissed with heavy costs. I have heard the learned counsel for the parties and have gone through the records of the case. 9. I have heard the learned counsel for the parties and have gone through the records of the case. 9. At the outset, the scope of revisional jurisdiction which Court can exercise must borne in mind, as the Constitution Bench of the Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78 laid down certain broad principles for exercise of revisional jurisdiction which can be summarized as under: (i) The term 'propriety' would imply something which is legal and proper. (ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority. (iii) Such power cannot be exercised as the cloak of an appeal in disguise. (iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority. (v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246 . (vi). The meaning of the expression "legality and propriety" so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be "according to law". (vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below. (viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on re-appreciation of the evidence it may have a different view thereupon. (ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law. (x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal. (xi) Even while considering the propriety and legality, high Court cannot re-appreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order. (xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence." 10. In the aforesaid decision, the Hon'ble Supreme Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the Hon'ble Supreme Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could re-appreciate the evidence or not. Finally the Hon'ble Supreme Court answered the reference by making the following observations:- "43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on re-appreciation of the evidence, its view is different from the court/authority below. Finally the Hon'ble Supreme Court answered the reference by making the following observations:- "43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on re-appreciation of the evidence, its view is different from the court/authority below. 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 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 as to 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 reassess 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." 11. By now, it is well settled that the landlord is the best judge to determine as to what is his requirement and how best he should use the premises. He has complete freedom in the matter. It is no concern of the Court to dictate to the landlord how and in what manner he should live or utilize the premises which otherwise belongs to him. 12. He has complete freedom in the matter. It is no concern of the Court to dictate to the landlord how and in what manner he should live or utilize the premises which otherwise belongs to him. 12. In Ragavendra Kumar versus Firm Prem Machinery & Co., (2000) 1 SCC 679 , the Hon'ble Supreme Court held that the landlord is the best judge of his requirement for his residential or business purpose and he has complete freedom in that matter. However, it has still to be remembered that the bonafide need of the landlord has to be genuine, honest and conceived in good faith. 13. In Bhupinder Singh Bawa versus Asha Devi, (2016) 10 SCC 209 , the Hon'ble Supreme Court held that the bonafide requirement has to be seen from the point of view of the landlady and cannot be dictated by the tenant. 14. In order to see and adjudge whether there is perversity in the findings recorded by the learned Courts below, it will be necessary to have a cursory look into the evidence that has come on record. 15. The landlord appeared as PW-1 and reiterated his pleas as contained in the petition. In addition thereto, he tendered in evidence copy of the site plan Ex. PW-1/A, photographs Ex. PW-1/B, copy of the rent petition Ex.PW-1/E filed against another tenant Kundan Lal and copy of rent petition Ex. PW-1/F filed by him against another tenant Inder Pal. 16. Even, the landlord was cross examined at length, but there was hardly anything to impeach and discredit his testimony. Rather, the landlord remained firm and specifically and categorically denied that on the basis of Ext. PW-1/C, copy of order, he was not competent to file the present petition and had made a sale agreement qua the building. He, rather, denied the suggestion that he was not the owner of the building in which the demised premises were situated and further denied that for the last five years and after filing of the present petition, several shops had been vacated and rented by him and he had no experience of running business and in fact did not want to run any business. 17. 17. The landlord also examined Krishan Kumar as PW-2, who stated that he has been on visiting terms with the landlord and is aware that vacation of the premises in question was sought by the landlord from the tenant on the ground of bonafide requirement. 18. In cross-examination, this witness admitted that the landlord had not filed any rent petition against him and he is paying rent to the landlord every month, but beyond that nothing has come in the testimony of this witness so as to be of any assistance to the tenant. 19. On the other hand, tenant Bhai Lal appeared as RW-1 and stated that he was tenant in the premises for the last 30 years. Initially, he had been paying Rs. 250/- as rent and now the same has been increased to Rs.500/- per month. He further stated that he was paying rent regularly to the landlord and paid the rent to the landlord up to March, 2015 and thereafter he refused to accept the same. He also deposed that the landlord did not want to run the shop and did not require the same for his own use and occupation as he had no business experience. He further stated that the landlord did not want the demised premises as store and had no bonafide requirement. 20. However, when cross examined, he admitted that the present petition has been filed by the landlord on the ground that he needs the shop for running business. He also admitted that he had not produced any receipt qua payment of rent nor he has filed the same with the reply. He further admitted that the landlord had become aged person. 21. Thus, what stands proved and established on record in the wake of the oral and documentary evidence that has come on record is that the landlord has been able to prove and establish his bonafide requirement. 22. There is nothing on record to even remotely suggest that the need of the landlord is not bonafide or to put it other way is malafide. The landlord is a senior citizen, who is aged about 78 years and there is nothing on record to suggest that he has acquired other accommodation in the premises. 22. There is nothing on record to even remotely suggest that the need of the landlord is not bonafide or to put it other way is malafide. The landlord is a senior citizen, who is aged about 78 years and there is nothing on record to suggest that he has acquired other accommodation in the premises. Even if, it was so, yet the same will make no difference as it is the landlord, who is the best judge of his requirement for his residential or business purpose and it is not for the tenant and even for that matter for the Court to dictate the terms to the landlord for his requirement. 23. The tenant has not led any evidence whatsoever to show or even remotely indicate or pleaded any fact which may doubt the bonafides of the landlord, who as observed above, is a senior citizen. The findings recorded by the learned Courts below are pure finding of fact and based upon correct appreciation of the pleadings as also oral and documentary evidence on record and cannot, therefore, even be termed to be perverse, so as to call for any interference by this Court. 24. The records reveal that the tenant has only tried to prolong this litigation with the hope that the landlord, who is more than 78 years of age would tire and that would ultimately facilitate the tenant to enter in an unconscionable bargain with him. This obviously has to be avoided as pure fountain of justice cannot be permitted to be polluted by the tenant. 25. In view of the aforesaid discussion, I find no merit in this revision petition and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.