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2019 DIGILAW 256 (HP)

Bharat Bhushan v. Ram Prashad Sharma

2019-03-13

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. This revision has been filed by the tenant against the order of his eviction, concurrently passed by both the learned authorities below, from the demised premises comprising of a shop, situated in Ward No.7, Up Mohal Bhawan, Mauja Ujjain, Tehsil and District Kangra, H.P. 2. The parties shall be referred to as the landlord and tenant. 3. The landlord filed an eviction petition against the tenant mainly on the three grounds - (i) arrears of rent (ii) subletting and (iii) bonafide requirement of his son, who is an Advocate. 4. It is not in dispute that the only subsisting ground for eviction is the bona fide requirement, which has been upheld by both the learned authorities below. 5. The premises in question were let out to the tenant on monthly rental of Rs.500/- in September 1992, which was subsequently enhanced to Rs.680/- w.e.f January 2017. It was averred that son of the landlord Mr. Rajnish Sharma is an Advocate by profession and working with one Mr. S.C.Uppal, Advocate and, thus, the demised premises were required for setting up of office of Mr. Rajnish Sharma. 6. The tenant contested this ground that son of the landlord was having an office in the same complex behind the shop of the landlord and therefore, his requirement was not bona fide. 7. It is vehemently argued by Mr. Satyen Vaidya, learned Senior Advocate assisted by Mr. Vivek Sharma, Advocate representing the tenant, that no satisfaction and reasons have been recorded by the learned authorities below before ordering his eviction that the requirement of the landlord was bona fide, as was mandatorily required to be recorded under Section 14 of the H.P. Urban Rent Control Act (in short, "the Act"). On the other hand, Mr. B.C. Negi, learned Senior Advocate assisted by Mr. Nitin Thakur, Advocate, representing the landlord, would argue that the rent legislation nowhere contemplates that the authorities must specifically state that the requirement of the landlord is "bona fide" once the same is otherwise borne out from the reasoning and conclusions of the order of eviction. 8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 9. 8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 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. Bearing in mind the law propounded in the aforesaid decision, this Court will now proceed to answer point-wise contentions raised by the tenant. 12. 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. Bearing in mind the law propounded in the aforesaid decision, this Court will now proceed to answer point-wise contentions raised by the tenant. 12. As regards the eviction of the tenant on the ground of bona fide requirement, the same has been set out under Section 14(3)(d) of the Act, which reads thus:- "in the case of any [residential and non-residential building],if he requires if for use as an office, or consulting room by [his son or daughter] who intends to start practice as a lawyer, an architect, a dentist, an engineer, a veterinary surgeon or a medical practitioner, including a practitioner of Ayurvedic Unani or Homeopathic System of Medicine or for the residence of [his son or daughter] who is married, if (i) his son as aforesaid is not occupying in the urban area concerned any other building for use as office consulting room or residence, as the case may be; and (ii) his son as aforesaid has not vacated such a building without sufficient cause, after the commencement of this Act, in the urban area concerned : Provided that where the tenancy is for a specified period, agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period: Provided further that where the landlord has obtained possession of any building or rented land under the provisions of clause (a) or clause (b), he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land: Provided further that where a landlord has obtained possession of any building under the provisions of clause (d), he shall not be entitled to apply again under the said clause for the use of, or for the residence of the same son, as the case may be." 13. What is required of the learned Rent Controller in dealing with such kind of petitions is provided under sub-section 4 of Section 14 of the Act, which reads thus:- "(4) The Controller shall, if he is satisfied that the claim of the landlord is bonafide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time not exceeding three months in the aggregate." 14. It would be noticed that sub-section 4 of Section 14 of the Act clearly envisages and stipulates that the Rent Controller can only order eviction on the ground of bona fide requirement, if he is satisfied that the claim of the landlord is bona fide, directing the tenant to put the landlord in possession of the building or rented land, as the case may be. 15. Therefore, in this back ground it is necessary to understand the term "bona fide requirement". 16. Though the term "bonafide requirement" has not been defined in the Act, but in Raghunath G. Panhale Vs. M/s Chaganlal Sundarji & Company, the Hon'ble Supreme Court has enumerated the following guidelines:- "(i) The requirement of the landlord must be both reasonable and bonafide. (ii)The word 'reasonable' in our view, connotes that the requirement is not fanciful or unreasonable. It cannot be a mere desire. (iii) The word requirement coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. (iv) A reasonable and bonafide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other hand. It may be a need in presenti or within reasonable proximity in the future. (v) The word 'bonafide' means that the need must be honest and not to be tented with tainted with any oblique motive. (vi) Language of the provision cannot be unduly stretched or strained as to make it impossible for the landlord to get possession. It may be a need in presenti or within reasonable proximity in the future. (v) The word 'bonafide' means that the need must be honest and not to be tented with tainted with any oblique motive. (vi) Language of the provision cannot be unduly stretched or strained as to make it impossible for the landlord to get possession. Construction of the relevant statutory provisions must strike a balance between the rights of landlord and rights of tenant. (vii) Court shall not proceed on assumption that the requirement of landlord was not bonafide and that the tenant could not dictate to the landlord as to how he should adjust himself without getting possession of the tenant premises. " 17. The bonafide requirement of the landlord depends on facts and circumstances of each case and there cannot be a straitjacket formula. The burden lies upon the landlord to establish that the accommodation is bonafidely required by him for his and his families use. While adjudicating whether the requirement is bonafide or not, it is only to be seen objectively and not subjectively by the Court, though the landlord is the best judge of his requirement. 18. When this case is tested on the aforesaid parameters and principles, it is more than clear that it is not a mere wish or desire of the landlord to evict his tenant, but it is his bonafide requirement that has driven him to the Court. 19. The landlord, Mr. Ram Prashad, appeared in the witness box as AW1 and categorically deposed that his son had no office/consulting room for carrying on his legal profession. Even though, he admitted in his cross examination that there was one room available behind his shop, but he then clarified that the said room was small and was being used as godown of a shop where his younger son was carrying on his business. 20. Similar version has come up in the statements of other witnesses of the landlord. 21. Aw2 Mr. Bhuvnesh and AW3 Mr. Rajnish Sharma, Advocate, have categorically deposed that room adjoining to the demised premises was small and was being used as godown/store. 22. In addition to the aforesaid witnesses, landlord also examined Mr. S.C. Uppal, Advocate, as AW4, who categorically deposed that son of the landlord had been working with him as junior since 2004 and now he wanted to start his independent practice. 22. In addition to the aforesaid witnesses, landlord also examined Mr. S.C. Uppal, Advocate, as AW4, who categorically deposed that son of the landlord had been working with him as junior since 2004 and now he wanted to start his independent practice. He further deposed that son of the landlord had got no independent office or consulting room in Kangra Town. 23. Not only this, the landlord also examined Mr. K. K. Chaudhary, Advocate, the then President Kangra Bar Association, as AW5, who had issued certificate, Ext. PW5/A to prove that son of the landlord was practicing lawyer at Kangra. 24. On the other hand, the tenant stepped into witness box as RW3 and made general statement that there was one room available to the son of the landlord to carry on his legal profession and the same was situated behind the shop of the landlord, but he failed to reveal the measurement of the room. 25. The brother of the tenant, Medni Kumar, appeared as RW4 and deposed that there was one room available adjoining to the shop of the landlord, but he also failed to give dimensions of the said room. 26. From the statements of the tenant and his witnesses, it is clear that the tenant was out to prove and establish that the landlord was having one room where his son could conveniently carry on his profession by converting the same into an office. However, the tenant has miserably failed to establish that the room could in fact be used as an office. Even if it is assumed that there was a room, even then reasonableness of the accommodation has to be seen from the landlord's perspective because it is the landlord alone, who is the best judge of his requirement and suitability and the tenant cannot dictate to him the manner in which he should utilize the premises. 27. 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. 28. 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. 28. 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. 29. 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. 30. Not doubt, the choice or proclaimed need cannot be whimsical or merely fanciful yet certain amount of discretion has to be allowed in favour of the landlord too and the courts must not impose its own wisdom forcibly upon the landlord to arrange his own affairs, according to his own perception carried away only by the interests or hardship of the tenant and inconvenience that may result to him in passing an order of eviction. In adjudging the claim under Section 14-D what is required to be substantiated is that the requirement of the landlord is bona fide and not a feigned one. 31. No material has been brought on record and no proof has been made by the tenant by any positive material that the requirement of the landlord is neither genuine nor bona fide or reasonable, but a mere excuse or pretence to get rid of the tenant. 32. It is vehemently contended by learned senior counsel for the tenant that the landlord is having sufficient accommodation both residential and non-residential, therefore, the requirement put-forth is not bona fide and it is rather mala fide. 33. Strong reliance is placed on the judgment of this Court in R.C. Verma vs. Pushpa Rani and another, (2001) 3 ShimLC 224 . 34. 33. Strong reliance is placed on the judgment of this Court in R.C. Verma vs. Pushpa Rani and another, (2001) 3 ShimLC 224 . 34. I have considered the aforesaid judgment and find that the same was given in the peculiar facts situation obtaining in that case, wherein eviction of the tenant was sought on the ground that the demised premises were bona fide required by the landlords for the separate and independent residence of their married son Vijay Kumar and his family, as pleaded in para 18(a) of the petition, which reads thus:- "Eviction of the respondent is sought on the grounds that the demised premises are bona fide required by the petitioners for the separate and independent residence of their married son Shri Vijay Kumar and his family. The said Sh. Vijay Kumar married son of the petitioners is not occupying any other residential or scheduled building, as the case may be owned or even tenanted by him in the Urban area of Shimla nor the said Sh. Vijay Kumar has vacated any such residential building in the Urban area of Shimla after the commencement of H.P. Urban Rent Control Act, 1971 or 1987. The said Shri Vijay Kumar works as a Government Contractor at Shimla and has various Government Contracts in hand. Presently, said Shri Vijay Kumar and his family is living with the petitioners. The petitioners are the owners of three storyed building with an attic. The entire ground floor is occupied by tenants. The first floor is occupied by the petitioners and the said Sh. Vijay Kumar. The second floor is occupied by another son of the petitioners namely Dr. Ashwani Kumar and his wife Dr. Anita Kumari and another unmarried son of the petitioners Shri Ajay Kumar is also occupying room in the said second floor. The said Shri Ajay Kumar is also doing his business of contractor at Shimla. The elder son of the petitioners Dr. Ashwani Kumar, was married to Dr. Anita Kumar in October, 1987 and immediately after the marriage they were allotted two rooms in the second floor which are now in their exclusive occupation and possession. In the attic there is one room which is used for evidence of the servants as also for storing the households goods of the family. Ashwani Kumar, was married to Dr. Anita Kumar in October, 1987 and immediately after the marriage they were allotted two rooms in the second floor which are now in their exclusive occupation and possession. In the attic there is one room which is used for evidence of the servants as also for storing the households goods of the family. The said Shri Vijay Kumar for whom the premises in question are required was married in January 1989 and after marriage his wife has not been able to pull on well with the petitioners. Therefore, with a view to avoid daily bickerings and quarrels, the petitioners have decided to provide separate and independent accommodation to the said married son Shri Vijay Kumar." 35. It was in this background that the eviction petition was dismissed by the Court by observing as under: 22. The eviction petition in the present case was made on 2.6.1989. According to the landlords, the second floor of the building "Pushap Cottage" is in possession of his another married son Dr. Ashwani Kumar and the third unmarried son. It has been pleaded that the son of the landlords Dr. Ashwani Kumar (PW 2) was married in October 1987 and immediately after marriage he was allotted two rooms on the second storey for their residence. 23. Evidence has come on the record on behalf of the landlords that both Ashwani Kumar and his wife are doctors and at the relevant time were posted in District Bilaspur where they were residing in Government residential accommodation. Therefore, they cannot be said to be residing in the second floor of the building at Shimla. The entire second storey was thus available with the landlords. 24. Admittedly, there is one room on the attic floor. Though the landlords have pleaded that such room is being used for the residence of the servants, no evidence worth the name has come on the record to show that the landlords had a servant at any time or that the room on the attic floor was being used for the purpose of residence of servants. 25. The landlord Dev Raj while appearing as PW 1 has admitted that on the previous occasion as well he had filed an ejectment petition against the tenant which was dismissed and that the appeal preferred by him was also dismissed. 25. The landlord Dev Raj while appearing as PW 1 has admitted that on the previous occasion as well he had filed an ejectment petition against the tenant which was dismissed and that the appeal preferred by him was also dismissed. He has also admitted that a petition for enhancement of rent was also preferred by him against the tenant which has been dismissed. The appeal against such dismissal was stated to be pending as on the date of his examination as PW 1. These facts show that the landlords requirement is not bona fide. The same appears to be mala fide in order to force and coerce the tenant to enhance the rent. 36. As regards contention that there is no satisfaction recorded in the order and judgment rendered by both the learned authorities below qua claim of the landlord being bona fide, to say the least, I find this argument to be fallacious and mis-conceived. 37. The learned Rent Controller has passed a detailed order, running into 28 pages consisting of 42 paragraphs, wherein he has not only discussed the pleadings, in detail, but has also discussed the evidence threadbare and then after applying the law on the subject ordered the eviction of the tenant. The findings regarding the bona fide requirement of the landlord have been specifically dealt with in paragraphs 37 to 39 of the order, which specifically deal with the issue as to whether the requirement of the landlord is bona fide or not. 38. As regards the learned appellate authority, it has in para 14 of its judgment specifically discussed this question of bona fide requirement in detail. 39. Thus, it cannot be said that both the learned authorities below have. without satisfying themselves regarding claim of the landlord being bona fide or not, simply ordered the eviction of the tenant. 40. Lastly and more importantly, the tenant in the instant case has not even disputed that AW3 Mr. Rajnish Sharma, Advocate, is practicing regularly in the courts at Kangra and such fact stand duly substantiated and proved on record not only by AW3 himself, but even by AW4 Mr. S.C.Uppal with whom AW3 is practicing and AW5 Mr. K. K. Chaudhary, Advocate, the then President Kangra Bar Association. 41. It has been proved and established on record that AW3 Mr. S.C.Uppal with whom AW3 is practicing and AW5 Mr. K. K. Chaudhary, Advocate, the then President Kangra Bar Association. 41. It has been proved and established on record that AW3 Mr. Rajnish Sharma, Advocate, does not have an office or consulting room and if that be so, then nothing more is required to be proved or established by the landlord in furtherance of his claim. 42. As observed above, the tenant has failed to lead any evidence or produce on record any positive material to show and establish that the requirement of the landlord is neither genuine nor bona fide. 43. In view of the aforesaid discussion, no interference is warranted on the findings rendered by both the learned authorities below. There is neither any illegality nor any perversity in the same. The testimonies of the witnesses stand correctly and completely appreciated. The oral and documentary evidence also stand considered in its right perspective and even the provisions of law have been correctly applied to the given facts and circumstances of the case. This petition is devoid of any merit and is dismissed as such along with all pending applications, leaving the parties to bear their own costs.