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2021 DIGILAW 1020 (JHR)

Sharda Devi v. Yashpal Chawla

2021-12-10

RAJESH SHANKAR

body2021
JUDGMENT : The present case is taken up through video conferencing. 2. The present Civil Revision has been preferred against the order dated 05.02.2021 passed by the House Rent Controller-cum-Sub Divisional Magistrate, Sadar, Chaibasa in JBC Case No. 05 of 2018 whereby the eviction suit filed by the plaintiffs/opposite parties under Section 19(1)(c)&(e) read with Section 21 of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2011 (in short, “the Act, 2011”) has been decreed in their favour. 3. The factual background of the case as stated in the writ petition is that the plaintiffs/opposite parties filed a suit for eviction against the defendants/petitioners under the aforesaid provisions of the Act, 2011 stating that Late Kanta Rani Chawla (wife of the opposite party no. 1 and mother of the opposite party nos. 2 to 4) was the absolute owner of the land appertaining to Town Khas Mahal Holding No. 270 bearing Plot No. 2023, Old Ward No. 3, Mohalla Amla Tola, P.O. & P.S Chaibasa, District - West Singhbhum over which she constructed a building where a residential hotel/lodge in the name and style of “Hotel Aakash” was being run on the first floor and a market having several shops was established on the ground floor known as “Chawla Super Market” or “Sri Sai Chawla Super Market”. Kanta Rani Chawla had inducted the father of the defendant Nos. 2 and 3 namely Santosh Lath as a tenant vide agreement dated 01.08.2003 in one of the shops i.e. shop no.-9 wherein he was running business of readymade garments in the name and style of “Kamal Textiles”. The aforesaid agreement was valid for three years and the same expired in July, 2006. Thereafter, the said lease agreement was not renewed even after repeated request of the defendants/petitioners and their predecessor-in-interest. The father of the defendant nos. 2 and 3 died on 23.12.2016 and a pre-mature notice dated 27.11.2017 was issued by the said Kanta Rani Chawla which was suitably replied by the defendants/petitioners on 11.12.2017 denying the claim of the plaintiffs/opposite parties that the right of the defendants had extinguished and expired on completion of one year from the date of death of the original tenant i.e the father of the defendant nos. 2 and 3. In the meantime, Kanta Rani Chawla died on 07.12.2017 leaving behind the plaintiffs as her legal heirs and successors. 2 and 3. In the meantime, Kanta Rani Chawla died on 07.12.2017 leaving behind the plaintiffs as her legal heirs and successors. The plaintiffs/opposite parties instituted suit seeking vacant possession of suit premises after evicting the petitioners/defendants directing them to deposit arrears of rent for last three years as well as monthly rent accruing during the pendency of the suit and for other reliefs to which they were entitled. The plaintiffs claimed in the said eviction suit that they required the suit premises for one Shaashwat Chawla-grandson of plaintiff no. 1 as he was unemployed and wanted to set up his own business for his needs. The defendants appeared and filed written statement stating that there was no relationship of landlord and tenant between the parties as the original landlord-Kanta Rani Chawla had passed away. The defendants further stated that even the suit property was not purchased by Late Kanta Rani Chawla and the plaintiffs had no right, title or interest over the suit property. The defendants further stated that the suit property was not required by the plaintiffs/opposite parties since they had other vacant shop premises which were appropriate to satisfy their requirements. The plaintiffs had recently got possession of two shops vide JBC Case No. 04 of 2015 and JBC Case No. 05 of 2015 which were vacant and ready for their use. However, the court below passed decree for eviction of the defendants vide impugned order dated 05.02.2021. Hence, the present Civil Revision. 4. Learned counsel for the petitioners submits that the court below has passed the impugned order without taking into consideration the relevant facts and circumstances of the case and without appreciating the legal provisions governing the field. It is further submitted that Late Kanta Rani Chawla was never the absolute owner of the premises as the sale deed upon which she claimed her right had a different boundary than that of the instant suit property. The suit premises was used for commercial purpose and from its inception the entire business was handled by the petitioner nos. 2 and 3. Before expiry of the tenancy agreement, the predecessor-in-interest of the petitioners was remitting the rent through postal money order and after his death, the same process continued. The suit premises was used for commercial purpose and from its inception the entire business was handled by the petitioner nos. 2 and 3. Before expiry of the tenancy agreement, the predecessor-in-interest of the petitioners was remitting the rent through postal money order and after his death, the same process continued. The opposite parties/plaintiffs have accepted the rent without demur and as such it cannot be said that the petitioners are liable to be evicted after the death of their father. It is also submitted that on 05.02.2021, the case was posted for leading evidence and if the petitioners had requested for adjournment, then the case should have been posted for hearing and final disposal. However, without granting any further opportunity to the petitioners to lead evidence and without even hearing them, the final order has been passed in undue haste. The petitioners being ready and willing to produce other witnesses, filed an application on 22.12.2020 before the House Rent Controller, Chaibasa seeking examination of the witnesses by furnishing their list. The petitioner no. 3-Kamal Nath also filed an application for examining himself as a witness after examination of the other witnesses. However, their applications were rejected on 05.01.2021. The petitioners had always been vigilant and observant in the proceeding as would be evident from perusal of the entire ordersheets, rather the opposite parties had continuously taken adjournments. As such, there has been no intention on the part of the petitioners to drag the proceedings. The petitioners had given the list of witnesses and were ready to produce them as well as to prove documents by way of oral evidence, however they were prevented from doing so as final order was passed by the court below on 05.02.2021 itself when the case was fixed for evidence. It is also submitted that it was upon the court below to decide as to whether the application filed on 22.12.2020 was proper or not, however the same could have only been done after providing reasonable opportunity of hearing to the petitioners. 5. Per contra, learned counsel for the respondents submits that Late Kanta Rani Chawla and late Santosh Lath (husband of the petitioner no. 1 and father of the petitioner nos. 2 and 3) signed tenancy agreement dated 01.08.2003 for three years with respect to shop no. 5. Per contra, learned counsel for the respondents submits that Late Kanta Rani Chawla and late Santosh Lath (husband of the petitioner no. 1 and father of the petitioner nos. 2 and 3) signed tenancy agreement dated 01.08.2003 for three years with respect to shop no. 9 of “Chawla Super Market” and at present the said premises is under occupation of the petitioners from where they are running business of readymade garments in the name and style of ‘Kamal Textiles’. The agreement expired in the month of July, 2006 and the last rent was payable in the year 2006. Thereafter, neither the lease was renewed nor the rent was paid. Kanta Rani Chawla required the suit premises for her grandson who is currently unemployed as such she requested the petitioners to vacate the said premises. It is further submitted that the tenancy was for non-residential purpose and as per section 5(3)(i) of the Act, 2011, in case the tenant is an individual, the vacant possession of the non-residential tenanted premises is to be delivered to the landlord within one year of the death of tenant, however it is open to the landlord and the successor tenant to enter into a fresh agreement. The last agreement with original tenant Santosh Lath was executed on 01.08.2003 for three years and same expired long ago. It is also submitted that the suit was filed on 19.02.2018 i.e. after more than one year from the death of original tenant namely Santosh Lath. The petitioners were granted enough opportunity to lead evidence and produce witnesses, but they failed to produce the witnesses and were trying to drag the suit by filing frivolous petitions and even by disputing the title of the respondents. The only grievance of the petitioners before the court below was that they were not allowed time to summon the witnesses to be produced and to prove the documents as per their application dated 22.12.2020, however, they neither produced nor prayed for adjournment to produce any other witness. The application filed by the petitioners seeking production and for proving of documents by summoning the witnesses did not mention the relevance or otherwise of the same and was filed mainly disputing the title of the opposite parties over the tenanted premises. The application filed by the petitioners seeking production and for proving of documents by summoning the witnesses did not mention the relevance or otherwise of the same and was filed mainly disputing the title of the opposite parties over the tenanted premises. It is further submitted that as per Section 5 (1) of the Act, 2011, in the event of death of a tenant, the right of tenancy is devolved to his successor provided that the successor shall acquire the right to continue in possession as a tenant limited to the unexpired period of tenancy or for a period of one year from the date of death of the original tenant whichever is earlier. However in the present case, the period of unexpired tenancy ended in July, 2006 itself. Moreover, the period of one year has also expired after the death of original tenant much earlier but the petitioners are still occupying the premises which is in complete violation of Section 5 of the Act, 2011. The petitioners had prayed for production and for proving of the documents mentioned in their application dated 22.12.2020 without following due procedure and requirements as envisaged under Order XIII Rule 10 CPC. It is also submitted that the petitioners chose not to obtain the certified copies, rather sought indulgence and time from the court below to call for those documents. The title could not have been decided in a proceeding under the Act, 2011 and the Sub-Divisional Magistrate, Sadar, Chabiasa who is vested with the powers of Controller, does not have jurisdiction to conduct a roving enquiry into the title of the respondents when the petitioners admit the fact that their father was originally inducted as tenant in the suit premises. The petitioner no. 3 appearing as DW-1 admitted at para 11 of his examination-in-chief that his father was a tenant in respect of suit premises and the said fact was also admitted by him during cross-examination. Thus, the court below rightly did not allow any enquiry into the title of the respondents over suit property. The existence of relationship of landlord and tenant between the parties is sine-qua-non for granting the relief. At the time of execution of tenancy agreement, Late Santosh Lath never objected the title of landlord-Late Kanta Rani Chawla. Thus, the court below rightly did not allow any enquiry into the title of the respondents over suit property. The existence of relationship of landlord and tenant between the parties is sine-qua-non for granting the relief. At the time of execution of tenancy agreement, Late Santosh Lath never objected the title of landlord-Late Kanta Rani Chawla. The petitioners also admitted in their written statement that their deceased father and the landlord-Late Kanta Rani Chawla had entered into a tenancy agreement. As such, they are now estopped from disputing the title of the opposite parties. Hence, the court below has rightly arrived at a finding that there was relationship of landlord and tenant between the parties. 6. Heard the learned counsel for the parties and perused the materials available on record. The present civil revision has been preferred challenging the impugned order dated 05.02.2021 passed by the House Rent Controller-cum-Sub Divisional Magistrate, Sadar, Chaibasa in JBC Case No. 05 of 2018 whereby the court below has passed an order of eviction of the petitioners from the premises in question with a further direction to pay the due rent to the respondents. 7. The Hon’ble Supreme Court in the case of Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh reported in (2014) 9 SCC 78 while considering different Rent Control Acts applicable in the States and the scope of the High Courts exercising revisional jurisdiction under the said Rent Control Acts, has held as under:- “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. 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.” 8. Thus, the High Court while exercising revisional jurisdiction under the Rent Control Act is required to satisfy itself as to the correctness, legality and propriety of any order impugned before it. It may also examine as to whether the order impugned before it suffers from procedural illegality or irregularity. 9. Apart from the other arguments, the learned counsel for the petitioners has claimed violation of principles of natural justice by the court below in conducting the trial of eviction suit as they were not given sufficient opportunity to adduce their evidence. 10. To appreciate the said contention of the learned counsel for the petitioners, I have gone through the copy of ordersheets of JBC Case No. 05 of 2018. It appears that on 05.01.2021, the petitioners prayed for time to adduce evidence, however the same was rejected by merely writing “petition not allowed, put up for evidence, next date 22.01.2021”. Thus, no reason was assigned by the court below while rejecting the petitioners’ petition seeking time to adduce evidence. Subsequently on 22.01.2021, the examination-in-chief of the petitioner no. 3-Kamal Lath was filed. It was not recorded in the ordersheet of the court below as to why he was not cross-examined on that day itself. On the next date i.e. on 05.02.2021, the petitioners prayed for time to adduce evidence, however the case was fixed for orders and on the same day i.e. on 05.02.2021, the impugned order was passed. 11. It was not recorded in the ordersheet of the court below as to why he was not cross-examined on that day itself. On the next date i.e. on 05.02.2021, the petitioners prayed for time to adduce evidence, however the case was fixed for orders and on the same day i.e. on 05.02.2021, the impugned order was passed. 11. The aforesaid facts manifest that the court below did not fix the case for argument and directly fixed it for orders. The learned court below in the impugned order observed that almost three years had passed since the date of filing of the case and there was sufficient evidence on the record and as such the petitioners’ prayer seeking time was rejected. 12. Under the said circumstance, it appears that the court below has passed the impugned order in undue haste without following due procedure of law and has thus committed procedural impropriety. 13. The principles of natural justice are the requirements which have been laid down by the courts as minimum protection of the rights of an individual against any arbitrary procedure that may be adopted by judicial, quasi-judicial and administrative authorities while making an order affecting those rights. It is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, the requirement of giving reasonable opportunity of being heard before passing an order is generally read into the provisions of that statute, particularly when the order has an adverse civil consequence for the affected party. 14. In view of the aforesaid legal and factual position, the order dated 05.02.2021 passed by the House Rent Controller-cum-Sub Divisional Magistrate, Sadar, Chaibasa in JBC Case No. 05 of 2018 is set aside. The matter is remanded to the House Rent Controller-cum-Sub Divisional Magistrate, Sadar Chaibasa to reopen the case from the stage of evidence of second parties (the petitioners herein) and to provide them opportunity to get Kamal Lath (petitioner no. 3) cross-examined and further to adduce evidence on their behalf as per the list of witnesses given by them which according to the Rent Controller are found necessary for effective adjudication of the issued involved in the said case. The court below shall also give reasonable opportunity to the parties to argue their case and thereafter shall pass a reasoned order. The court below shall also give reasonable opportunity to the parties to argue their case and thereafter shall pass a reasoned order. The court below shall take every possible step to complete all these exercises within three months from the date of receipt/production of a copy of this order. The petitioners shall fully cooperate the court below in disposing of the eviction suit within the aforesaid timeline. 15. The Civil Revision is accordingly allowed with aforesaid observations.