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2019 DIGILAW 858 (HP)

Mohammad Gulzar v. Yaseen

2019-07-04

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. The parties shall be referred to as the "landlord" and "tenant". 2. The premises in question comprises of two rooms set and one shop in a building known as Hussain Niwas, near Didigar, Meat Market, Ward No.4, Rohru. The eviction thereof was sought by the landlord on the grounds of bonafide requirement and arrears of rent. 3. The tenant contested the petition by raising preliminary objections regarding maintainability, grounds taken in the eviction petition being not available to the landlord and the rent having already been paid to the landlord. In reply, on merits, the preliminary objections so raised were elaborated. 4. Out of the pleadings of the parties, the learned Rent Controller on 28.12.2013 framed the following issues:- "1. Whether the respondent is liable to be evicted on the ground of arrears of rent, as alleged? OPP. 2. Whether the respondent is liable to be evicted on the ground of bona fide by the petitioner, as alleged? OPP. 3. Whether the petition is not maintainable in the present form, as alleged? OPR. 4. Relief. 5. After recording the evidence and evaluating the same, the petition for eviction was allowed on both the grounds by the learned Rent Controller, vide order dated 9.12.2016. 6. Aggrieved by the order of eviction, the tenant, in appeal, assailed the order passed by the learned Rent Controller before the learned Appellate Authority, however, the same came to be dismissed vide judgment dated 14.12.2018, constraining the tenant to file the instant revision petition. 7. It is vehemently argued by Mr. V. S. Chauhan, Senior Advocate, assisted by Mr. Vivek Dharel, Advocate, appearing for the tenant, that both the authorities below have erred in not taking into consideration the fact that the landlord is owning other shops in the premises in question, and, therefore, his requirement cannot be termed to be bonafide. On the other hand, Mr. Neeraj Gupta, learned Senior Advocate, assisted by Mr. Vivek Dharel, Advocate, appearing for the tenant, that both the authorities below have erred in not taking into consideration the fact that the landlord is owning other shops in the premises in question, and, therefore, his requirement cannot be termed to be bonafide. On the other hand, Mr. Neeraj Gupta, learned Senior Advocate, assisted by Mr. Ajit Pal Singh Jaswal, Advocate, appearing for the landlord, would vehemently argue that the instant petition is nothing but an abuse of the process of the Court as the tenant being in occupation of the premises is only trying to delay the proceedings, therefore, this petition should be dismissed with heavy costs. 8. I have heard the learned counsel for the parties and have also 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". (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. (viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation 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 reappreciate 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. 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 reappreciate 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 reappreciation 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 reappreciate or reassess the evidence for coming to a different finding on facts. 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 reappreciate 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. In Ragavendra Kumar versus Firm Prem Machinery and 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. Coming to the merits of the case, first question which is required to be determined is as to whether the requirement of the landlord is bonafide or not. In order to decide this question, it would be necessary to advert to oral as well as documentary evidence that has come on record. 15. The landlord in support of his case appeared as PW1 and tendered in evidence his affidavit, Ext.PW1/A, wherein he affirmed on oath the averments made in the eviction petition. He also placed reliance on the documentary evidence, Ext.PW1/B to Ext.PW1/S. In cross-examination, he admitted that Mohammad Gulzar was inducted as a tenant in 1996. 15. The landlord in support of his case appeared as PW1 and tendered in evidence his affidavit, Ext.PW1/A, wherein he affirmed on oath the averments made in the eviction petition. He also placed reliance on the documentary evidence, Ext.PW1/B to Ext.PW1/S. In cross-examination, he admitted that Mohammad Gulzar was inducted as a tenant in 1996. He further admitted that in the year 2015, he sought eviction of the tenant, however the same was decided in 2007 in favour of the tenant. He denied that the tenant had paid the rent. He stated that his sons wanted to run their own business. He further admitted that he had not filed similar petition on the ground of bona fide requirement against the other tenants. However, he volunteered to state that the other tenants were willing and ready to vacate the premises. 16. Vinod Kumar, Secretary Gram Panchayat, Karalash, appeared as PW2 and proved on record Pariwar Register of the landlord, Ext.PW2/A and further proved that the landlord had three married sons, namely, Mohammad Jakir, Jahir Khan and Mohammad Zafar. 17. PW3, Bimla Kapta, Pradhan, Gram Panchayat Karalash, proved certificate of un-employment of the sons of the landlord, Ext.PW3/A. In cross-examination, she admitted that the landlord was a government contractor. However, she feigned ignorance regarding the landlord's sons also being the contractors, as suggested by the tenant. 18. PW4, Padam Singh, official from the UCO Bank, placed on record statement of accounts of the tenant vide Ext. PW4/A. 19. On the other hand, the tenant stepped into the witness box as RW1 and tendered in evidence his affidavit, Ext.RW1/A. He also tendered in evidence copy of judgment dated 23.9.2005, Mark X and copy of judgment dated 6.6.2007, Mark Y. In his affidavit, he stated that he was tenant in the premises since 1996. In cross-examination, he admitted that he was residing in the residential premises along with five family members. However, he denied that he was in arrears of rent and that the requirement of the landlord was bona fide. 20. RW2, Rattan Dass claimed to know both the parties. According to him, the tenant was in occupation of the premises since 1996 and the building was consisting of 5 stories having 30-35 rooms. There were six shops, out of which three shops were vacant and remaining shops were rented out. 20. RW2, Rattan Dass claimed to know both the parties. According to him, the tenant was in occupation of the premises since 1996 and the building was consisting of 5 stories having 30-35 rooms. There were six shops, out of which three shops were vacant and remaining shops were rented out. In cross-examination, he admitted that the landlord was having large family consisting of three sons and one daughter and all his sons were unemployed. 21. This in entirety is the evidence led by the parties. 22. It has come on record that the building in question consists of 30-35 rooms and six shops and out of which three shops are vacant, but then there is nothing on record to suggest the location of these shops and mere fact that these shops are still vacant would not in any manner cast a doubt on the bona fides of the landlord. 23. That apart, in case, it is assumed or even presumed that the requirement of the landlord is not bona fide or later on is not proved to be bona fide, then interest of the tenant is adequately safeguarded under Section 14(5) of the H.P. Urban Rent Control Act, 1987. Even otherwise, there is no whisper in the pleadings or statements of RW1 and RW2 that the landlord had taken possession during the pendency of the rent petition or at any time thereafter. 24. Apart from above, RW2 has categorically stated that the landlord has large family to accommodate as he is having three married sons and one daughter and all the sons are unemployed. 25. 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. 26. There is nothing on record to even remotely suggest that the requirement of the landlord is not bonafide or to put it other way is malafide. 27. 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. 26. There is nothing on record to even remotely suggest that the requirement of the landlord is not bonafide or to put it other way is malafide. 27. 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. The findings recorded by the learned authorities below are pure findings 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. 28. The learned Rent Controller has passed a detailed order, wherein it has not only discussed the pleadings in detail, but has also discussed the evidence threadbare and ordered the eviction of the tenant. 29. As regards, the learned Appellate Authority, it has again not only discussed the entire pleadings and evidence, but has also correctly applied the law while affirming the findings recorded by the learned Rent Controller. 30. Thus, it cannot be said that both the learned authorities below have, without satisfying themselves regarding claim of the landlord being bona fide, simply ordered the eviction of the tenant. 31. The second ground on the basis of which the eviction has been ordered is the arrears of rent. Admittedly, the arrears of rent were not paid to the landlord as directed by the learned Rent Controller and were rather deposited before the learned Rent Controller, which according to the learned Appellate Authority was not in consonance with the judgment rendered by a coordinate bench of this Court in Hans Raj Khimta vs. Kamaljit Kaur @ Sardarni Babli, 2016 LatestHLJ 303 (HP) . However, this question need not to be gone into as the eviction of the tenant has already been upheld on the ground of bona fide requirement. 32. At this stage, a faint attempt is made by Mr. V.S. Chauhan, learned Senior Advocate, to canvass that though the landlord may have succeeded to some extent in proving his bona fide requirement qua the residential premises, but the same is not proved qua non-residential premises. 33. 32. At this stage, a faint attempt is made by Mr. V.S. Chauhan, learned Senior Advocate, to canvass that though the landlord may have succeeded to some extent in proving his bona fide requirement qua the residential premises, but the same is not proved qua non-residential premises. 33. Even this contention is equally without merit as accepting such contention would amount to splitting up single tenancy by ordering partial ejectment of the tenant from the premises let out to him, which is not permissible in law as it is more than settled that it is not permissible for the court to split up a contract of tenancy in an eviction proceedings. (See, Dr. T.S. Subramanian vs. The Andhra Bank Ltd., (1989) Supp2 SCC 252, Firm Panjumal Daulatram vs. Sakhi Gopal, (1977) 3 SCC 284 and Miss. S. Sanyal vs. Gian Chand, 1968 SCR 1 and Nilesh Nandkumar Shah vs. Sikandar Aziz Patel, (2002) 6 SCC 678 ) 34. In S. Sanyal's case (supra), it was held by the Hon'ble Supreme Court that where a contract of tenancy was a single indivisible contract, then in the absence of statutory provisions to that effect, it is not open for the court to split up the tenancy. Law, therefore, is that where there is a single indivisible contract of tenancy, it cannot be split by a court unless there is statutory provision to that effect. 35. Thus, 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. 36. Accordingly, there is no merit in this petition and consequently the same is dismissed along with all pending application(s), if any, leaving the parties to bear their own costs.