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Himachal Pradesh High Court · body

2023 DIGILAW 26 (HP)

Sunil Mehta v. A. D. Kashyap

2023-01-07

SANDEEP SHARMA

body2023
JUDGMENT : Sandeep Sharma, J. Instant revision petition filed under Section 24(4) of the H.P. Urban Rent Control Act 1987, lays challenge to judgment dated 4.09.2015 passed by learned Appellate Authority(III) Shimla, District Shimla, H.P.,(prescribed under the H.P. Urban Rent Control Act), in Rent Appeal RBT No.14-S/13(b) of 2013, reversing the order dated 26.11.2012 passed by learned Rent Controller, Court No.5, Shimla, Himachal Pradesh, in case No.1-2 of 2007, whereby petition for eviction of the respondent-tenant, preferred by the petitioner-landlord from the demise premises was allowed. 2. Precisely, the facts of the case, as emerge from the record are that the petitioner-landlord (for short landlord) filed a petition under Section 14 of the Rent Control Act,1984 (for short Act) for eviction of respondent No.1 (for short ‘tenant’) on the grounds of non-payment of rent and bonafide requirement. Landlord sought eviction of the tenant from the demise premises consisting of two rooms, kitchen with common bath, latrine, balcony and common entrance in the ground floor of Mehta Niwas, Fingask Estate, Shimla3. Landlord claimed that initially monthly rent of the premises was Rs.700/- in the year 1986, but same was enhanced after every five years. Landlord claimed that since tenant has failed to pay the rent due in respect of the premises w.e.f. January, 2003 till 31.12.2006, he is liable to be evicted. Besides above, landlord also claimed that tenant is also liable for increase of the agreed rent at the rate of 10 % which comes to Rs.1024.87/- w.e.f.19th February, 2006 to 31.12.2006. Apart from aforesaid ground, landlord also set up a ground in eviction petition that he bondafidely requires the accommodation for his family members, as he has no other accommodation in Shimla. 3. Aforesaid petition filed by the landlord came to be resisted and contested by the respondents on the ground that petition is not maintainable because no family settlement or partition ever took place interse co-owners and the family settlement or partition claimed to have been arrived is not in existence and same is false transaction just to evict the respondent. On merits, respondent-tenant denied that landlord is residing in ground floor of Mehta Niwas Fingask Estate. Respondent-tenant claimed that landlord has opened a school at Nankhari and living there with his family. On merits, respondent-tenant denied that landlord is residing in ground floor of Mehta Niwas Fingask Estate. Respondent-tenant claimed that landlord has opened a school at Nankhari and living there with his family. Respondent-tenant further claimed that son of the landlord is living and studying at Chandigarh and in fact premises were let out by the previous owner of the building in favour of replying respondent in the month of February, 1986. Respondent-tenant categorically denied allegation with regard to his being in the arrears of rent. He also denied that petitioner-landlord does not have any sufficient accommodation with him for his residence at Shimla. He further submitted that three rooms set has been recently let out to one Liberarian from Kotgarh working at Shimla in the third floor of the same building. He also stated in the reply that petitioner-landlord has constructed four rooms set in the fifth floor of the building and prior to filing the petition, father of the petitioner landlord had filed the petition on the same ground, but same was dismissed by learned Rent Controller (2), Shimla. 4. Learned Rent Controller having taken note of aforesaid pleadings adduced on record by the respective parties as well as evidence led on record, allowed the eviction petition filed by petitioner-landlord vide order dated 26.11.2012 on the grounds of arrears of rent to the tune of Rs.1,34,586/- and his bona-fide requirement of accommodation for himself alongwith his family members. 5. Being aggrieved and dissatisfied with aforesaid order of eviction recorded by learned Rent Controller, respondent-tenant filed an appeal before Appellate Authority (III) Shimla, H.P., which came to be allowed, however, cross-objection filed by the petitioner-landlord with regard to arrears of rent came to be dismissed vide common judgment dated 4.09.2015. In the aforesaid background, petitioner landlord has approached this Court in the instant proceedings, praying therein to restore the order dated 26.11.2012 passed by learned Rent Controller, Court No.5, Shimla in case No.1-2 of 2007 after setting aside judgment dated 4.09.2015 passed by Appellate Authority (III) Shimla, thereby allowing the appeal having been filed by the respondent-tenant. 6. Mr. Ashwani K. Sharma, learned Senior Counsel representing the petitioner-landlord duly assisted by Mr. 6. Mr. Ashwani K. Sharma, learned Senior Counsel representing the petitioner-landlord duly assisted by Mr. Ishan Sharma, Advocate vehemently argued that impugned judgment dated 4.09.2015 passed by Appellate Authority is not sustainable in the eye of law being contrary to the record as well as law and as such, same deserves to be quashed and set-aside. While making this Court to peruse impugned judgment passed by learned Appellate Authority, learned Senior counsel representing the petitioner-landlord vehemently argued that Appellate Authority wrongly arrived at a conclusion that object of the Act is to protect the tenants and the same is tilted in favour of the tenants. He submitted that Hon'ble Apex Court in case titled Sidhharth Viyas and another vs. Ravi Nath Misra and others, (2015) 2 SCC 701 , has categorically observed that Courts have to adopt a reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. While inviting attention of this Court to para-23 of impugned judgment passed by Appellate Authority, learned Senior counsel submitted that Court below wrongly concluded that there is no evidence that landlord is not occupying any other residential building in the area concerned and he has not vacated such building without sufficient cause within five years of filing of the petition. While making this Court to peruse statement made by petitioner-landlord in his examination-in-chief, learned Senior counsel representing the petitioner-landlord, vehemently argued that the petitioner-landlord categorically stated that he is not having any accommodation in Urban area. He stated that though petitioner-landlord stated that his son is studying in Govindgarh and his wife is residing in New Shimla with her parents but that would not amount to an admission that he has alternate accommodation to reside, rather same clearly reveals that petitioner-landlord does not have any accommodation. He also submitted that landlord in his cross-examination categorically stated that he does not have any accommodation in Urban area. Mr. Sharma, further submitted that learned trial Court gave undue weight age to the fact that family settlement arrived interse parties is not on record, especially when it was not in dispute that dispute was interse landlord and tenant but definitely not interse co-owners. Mr. Sharma, further submitted that learned trial Court gave undue weight age to the fact that family settlement arrived interse parties is not on record, especially when it was not in dispute that dispute was interse landlord and tenant but definitely not interse co-owners. While making this Court to peruse judgment rendered by Hon'ble Apex Court in Kasthuri Radhakrishnan and others vs. M. Chinniyan and another, 2016 (3) SCC 296 , learned Senior counsel argued that one of the co-owner can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. He submitted that the property forming the subject matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He submitted that otherwise also, AW-2, Hardiyal categorically stated in his statement that a family settlement has taken place and ground floor has fallen in the share of the petitioner. Learned Senior counsel submitted that since it stood established on record that ground floor had fallen to the share of the petitioner, he was very much well within its right to institute eviction proceedings against the tenant residing in the demise premises i.e. accommodation in ground floor. While making this Court peruse the judgment rendered by Hon’ble Apex Court in Kailash Chand and another vs. Dharam Dass, 2005 (1) RCR (Rent) SC 551, learned Senior counsel representing the petitioner argued that filing of petition, if any, by father of the landlord for eviction on the same ground could not be a ground for Appellate Authority to dismiss the appeal. He submitted that otherwise also careful perusal of Section 14 of the H.P. Urban Rent Control Act, nowhere suggests that landlord is estopped from filing the eviction petition on the grounds which he/she may taken in the earlier petition. He further submitted that otherwise also, it is prerogative of landlord to determine his requirement and definitely court cannot fix or set out the requirement of the landlord as far as accommodation is concerned. He further submitted that otherwise also, it is prerogative of landlord to determine his requirement and definitely court cannot fix or set out the requirement of the landlord as far as accommodation is concerned. In support of his aforesaid submission, he placed reliance upon the judgments rendered by Hon'ble Apex Court in Deep Chandra Juneja versus Lajwanti Kathuria (Smt) (Dead) through LRs, (2008) 8 SCC 497 and in A.K. Jain versus Prem Kapoor, (2008) 8 SCC 593 . While making this Court to peruse judgment rendered by Hon'ble Apex Court in Kailash Chand case(supra)and this Court in CR No.41 of 2019, learned Senior Counsel argued that courts have given a wide definition to “ for his own use” and has extended the same to family. He further submitted that in view of the aforesaid finding returned by Hon'ble Apex Court as well as this Court, Court has fallen in grave error while holding that since petitioner’s son is residing at Govindgarh and his wife is residing with her parents, there is no bonafide requirement. 7. Mr. C.S.Thakur, learned counsel representing the respondent-tenant while supporting the impugned judgment, vehemently argued that once there was nothing on record suggestive of the fact that petitioner-landlord had become owner of the property in question on account of some family settlement, there was otherwise no occasion for him to initiate eviction proceedings against the respondents-tenants, who were inducted in the demised premises by original owner i.e. father of the petitioner. He submitted that prior to eviction petition at hand, similar petition was filed by father of the petitioner-landlord on the similar grounds but same was dismissed. He submitted that since judgment passed in earlier petition was never laid challenge in superior court of law, same has attained finality. He submitted that with a view to defeat the mandate given by court of law in favour of the respondent-tenant in earlier petition filed by the father of the petitioner-landlord, petitioner claiming himself to be one of the co-owner filed eviction petition, which is not maintainable. Lastly, above named counsel submitted that there is no evidence, worth the name, available on record on behalf of the petitioner landlord that he does not have any other accommodation to live save and except accommodation sought to be vacated. Lastly, above named counsel submitted that there is no evidence, worth the name, available on record on behalf of the petitioner landlord that he does not have any other accommodation to live save and except accommodation sought to be vacated. He submitted that it has specifically come in the evidence that neither petitioner nor his family resides in Shimla, rather son of the petitioner resides in Gobindgarh, whereas his wife and petitioner-landlord reside at Nankhari. 8. I have heard learned counsel representing the parties and gone through the record carefully. 9. If the provisions contained under Section 14 of the Rent Control Act, are perused in its entirety, landlord can seek eviction of the tenant from the residential and non-residential building, if he/she requires it for its own occupation. However, while taking benefit of aforesaid provisions of law, he/she is required to prove that he/she is not occupying another residential and non-residential building owned by him/her in the urban area. Apart from above, he/she is also required to establish that he has not vacated such building without sufficient cause within five years of filing of the petition in the said urban area. In nutshell, H.P. Urban Rent Control Act put restrictions on the rights of the landlord to evict the tenant in the urban areas by providing the grounds, on which the eviction of the tenant can be sought, by laying down that a tenant in possession of a building on rent shall not be evicted therefrom in execution of a decree passed before or after commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. 10. The initial burden of making a clear disclosure that he requires the premises sought to be evicted bona-fidely for his personal use lies upon the landlord. He/she is to categorically state in the petition that premises required, sought to be evicted, are bondafidely required for his/her personal or family members and he/she is not occupying another residential building owned by him/her nor had he/she vacated such building without sufficient cause within five years of filing of the petition in the urban area concerned. He/she is to categorically state in the petition that premises required, sought to be evicted, are bondafidely required for his/her personal or family members and he/she is not occupying another residential building owned by him/her nor had he/she vacated such building without sufficient cause within five years of filing of the petition in the urban area concerned. Disclosure of relevant facts pertaining to requirement of sub section 13(a)(i) and two proviso thereto become all the more necessary because the satisfaction of Rent Controller in regard thereto is condition precedent for making an order in favour of landlord. Merely writing “bona-fide requirement” may not be sufficient to get eviction order from the premises sought to be evicted, especially when eviction has been sought on the ground of bonafide requirement. 11. To accept the plea of bonafide requirement of landlord need of landlord is to be seen and gone into on the basis of the facts provided. Landlord, who is not having sufficient accommodation with him/her, can seek eviction from premises in occupation from the tenant for his/her bonafide occupation but then he/she is expected to come with clean hands and plead his/her case accordingly. In the instant case, though petitioner-landlord claimed that demised premises are bondafidely required by him for his own use and occupation but he failed to establish his bonafide requirement. 12. To substantiate his aforesaid claim, he set up a case that he is not having any residential premises in the urban area concerned. While deposing as AW-1, Sh. Sunil Mehta, deposed that his father died on 3.09.2005 and thereafter a family partition took place interse co-owners on 3.10.2006 and in that settlement the ground floor of the building fell to his share, in which respondent tenant is residing. He also deposed that he does not have any other premises in urban area to reside. He also stated that his son is studying in Govindgarh and his wife is a teacher at Portmore school and at present is compelled to reside in New Shimla with her parents as he is not having any accommodation. He deposed that one floor has been given to his brother in family partition and the other floors are with his mother. This witness deposed that he requires premises in question to look after his mother. He deposed that one floor has been given to his brother in family partition and the other floors are with his mother. This witness deposed that he requires premises in question to look after his mother. In his cross-examination, this witness admitted that he has not placed on record any partition deed or family settlement, if any, arrived interse parties. He also admitted that he did not report the matter to Patwari or Municipal Corporation about the family settlement or partition. Most importantly, this witness in his cross-examination admitted that he is not aware how many tenants are in Mehta Niwas Fingask Estate. He also admitted that on the same ground petition was filed in Court No.4, by his late father and the same was dismissed and they did not prefer any appeal against the said order. He deposed that he cannot say that they are having 7-8 vacant rooms in the same building. He feigned ignorance with regard to accommodation in the possession of his mother as well as his brother, who are living in Shimla. 13. AW-2, Hardiyal, while supporting the case of the petitioner stated that in family settlement arrived interse parties ground floor has fallen in the share of Sunil Mehta, whereas two floors came to the share of his mother. He stated that family of the petitioner is living at Shimla. However, in cross-examination, he admitted that petitioner-landlord Sunil Mehta is residing at Nankhari, where he is running a school. If the aforesaid evidence led on record by the petitioner-landlord is perused in its entirety, it clearly establishes on record that prior to filing of the eviction petition at hand, father of the petitioner-landlord had filed an eviction petition on the same and similar ground but same was dismissed and no appeal, whatsoever, was ever filed by father of the petitioner and other family members in the superior court of law and as such, same has attained finality. Though, petitioner-landlord as well as AW-2, Hardiyal, tried to carve out a case that on account of family settlement/partition petitioner landlord has become owner of the ground floor but at no point of time family settlement/partition, if any, arrived interse parties ever came to be placed on record. 14. Though, Mr. Though, petitioner-landlord as well as AW-2, Hardiyal, tried to carve out a case that on account of family settlement/partition petitioner landlord has become owner of the ground floor but at no point of time family settlement/partition, if any, arrived interse parties ever came to be placed on record. 14. Though, Mr. Ashwani K. Sharma, learned Senior Counsel representing the petitioner-landlord while placing reliance upon the judgment rendered by Hon'ble Apex Court in Kasthuri Radhakrishnan case(supra), vehemently argued that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant, but in the instant case there is no evidence, worth credence, ever came to be led on record suggestive of the fact that petitioner landlord ever became owner of the property in question. Though, Mr. Sharma, learned Senior counsel argued that when subject matter of the eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property alongwith the others, but as have been taken note hereinabove, property in question was originally owned by person other than the petitioner- landlord. As per own statement of the petitioner-landlord, after death of his father on 3.9.2005, family partition took place interse family members but since such fact never came to be recorded in revenue record or Municipal corporation, petitioner-landlord is estopped from claiming himself to be petitioner-landlord. No doubt, being one of legal representative of original landlord, petitioner-landlord could file eviction proceedings but definitely not on the grounds on which his late father had filed eviction petition and same was dismissed. Since father of the petitioner-landlord had filed eviction proceedings against respondent-tenant on the same and similar grounds, as have been taken note in the instant petition, he is estopped from taking such plea or ground in the subsequent petition, which is claimed to have been filed by him as a owner/landlord. Though this Court cannot have any quarrel with the aforesaid proposition of law laid down by the Hon’ble Apex Court in the aforesaid judgment, but same has no application in the instant case. 15. Though this Court cannot have any quarrel with the aforesaid proposition of law laid down by the Hon’ble Apex Court in the aforesaid judgment, but same has no application in the instant case. 15. Similarly, this Court cannot have any quarrel with the proposition of law laid down by Hon'ble Apex Court in Sidhharth Viyas case (supra), pressed into service by learned Senior counsel representing the petitioner-landlord that the courts have to adopt a reasonable and balanced approach while interpreting rent control legislation starting with an assumption that an equal treatment has been meted out to both the sections of the society. No doubt, in the aforesaid judgment, Hon'ble Apex Court has held that in spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions of the Act , the Court should not hesitate in leaning in favour of the landlords. While observing that the rent control legislation are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords, Hon’ble Apex Court observed that the legislative intent has to be respected by the courts while interpreting the laws, but careful perusal of Section 14 of the H.P. Urban Rent Control Act, under which eviction has been sought, clearly reveals that grounds are available for landlord for eviction, but he/she is under obligation to establish on record that grounds sought to be raised for eviction actually exist and same have been not merely created to cause eviction. In the case at hand, very foundation of the case set up by petitioner-landlord that he has become owner of the premises in question is very weak because, as has been taken note hereinabove, no evidence, worth credence, ever came to be led on record that after demise of father of the petitioner landlord property in question was partitioned interse co-owners and in partition, premises sought to be evicted fell in the share of the petitioner. Aforesaid claim of the petitioner with regard to his having acquired status of owner on the strength of partition is highly doubtful in the absence of partition deed/family settlement, if any, arrived interse parties, rather it appears that after failing in earlier case having been filed by his late father, petitioner-landlord with a view to file fresh petition against respondent-tenant devised new method of claiming himself to be owner on the strength of some partition deed/family settlement, which otherwise never saw the light of the day. 16. Though, in the case at hand learned Rent Controller rightly arrived at a conclusion that no family partition/settlement alleged by the applicant has been proved on record but yet it proceeded to accept the claim of the petitioner that he being owner of the demise premises bondafidely requires the premises sought to be evicted for his personal and family use. 17. Similarly, petition for eviction was filed by late father of the petitioner-landlord but same was dismissed and now claiming himself to be owner, petitioner filed similar petition on the same and similar ground on the basis of family settlement and as such, claim of bona-fide requirement of the petitioner becomes highly doubtful. Moreover, evidence adduced on record clearly reveals that petitioner has been not residing at Shimla, rather he is running a school at Nankhari and is living there. In his statement though petitioner claimed that he requires demised premises to look after his mother, whereas his own witness AW-2 Sh. Hardayal admitted that two floors of the building is in the possession of his mother. Since mother is already in possession of two floors, it is not understood why would petitioner require more accommodation that too for her mother. Similarly, petitioner feigned ignorance that how many tenants are there in the building. He also feigned ignorance with regard to accommodation in the possession of his real brother. On one hand, petitioner in para-18(1)(iii) of the petition averred that he requires the accommodation for his family members and there is no other accommodation with him or his family members in Shimla, but in para-20(ii) he submitted that premises have been given to him by his mother by way of family settlement among the brother and mother. On one hand, petitioner in para-18(1)(iii) of the petition averred that he requires the accommodation for his family members and there is no other accommodation with him or his family members in Shimla, but in para-20(ii) he submitted that premises have been given to him by his mother by way of family settlement among the brother and mother. He also submitted that he is not having any accommodation with him within the municipal limit in his name or in the name of his family members. He submitted that his family at present is residing with his father-in-law in government accommodation allotted in his name. He also submitted that family of the petitioner is residing at Shimla and mother and brother also reside at Shimla most of the time. He submitted that for looking after his mother and his family members, he is in dire need of the accommodation/premises let out to the respondent by his late father. 18. To get the tenant evicted from the demised premises on the ground of bonafide requirement, persons seeking eviction on aforesaid ground is necessarily required to prove that he is not occupying any other residential building in the area concerned and he/she has not vacated such building without sufficient cause within five years of filing of the petition. Interestingly, in the case at hand, no evidence, worth credence, ever came to be led on record with regard to aforesaid aspects of the matter. Though, Mr. Ashwani K. Sharma, learned Senior counsel representing the petitioner-landlord argued that petitioner-landlord in his examination-in-chief stated that he is not having any accommodation in urban area but that may not be sufficient to prove his bona-fide requirement, especially when he failed to prove factum with regard to his having become owner by way of partition and family settlement. Since he categorically admitted that two floors of building is in possession of his mother, coupled with the fact that he himself resides at Nankhari, bona-fide requirement as claimed cannot be said to have been proved. Bonafide requirement pleaded by landlord must not only exist on the date of making of the petition but the same continue to subsist till the date of making final order of ejectment. Bonafide requirement pleaded by landlord must not only exist on the date of making of the petition but the same continue to subsist till the date of making final order of ejectment. If the tenant is in a position to show that the need or requirement of the landlord no more exists due to the subsequent events, it would be open to him to point out such events and the court has to examine and evaluate such subsequent event before arriving at a conclusion whether the need of the landlord exits or not. 19. Having perused the statement of landlord, wherein he himself has admitted that his son is residing at Govindgarh and he is residing at Nankhari, coupled with the fact that two stories in Mehta building is in possession of his mother and his brother is also residing in one floor, whose family comprises of three members, learned Appellate Court rightly negated the plea of petitioner-landlord that he bondafidely requires the premises in question. On the top of everything, since father of the petitioner had filed petition on the same and similar grounds but same was dismissed, subsequent petition filed by the petitioner-landlord is otherwise not maintainable, especially when he has not been able to prove that he had become owner of the premises sought to be evicted. No doubt, being legal representatives, he is competent to institute proceedings for eviction, but definitely not on the grounds on which, earlier petition filed by his father was rejected. 20. No doubt, landlord is best judge of his requirement and the same cannot be dictated by the tenant as has been held by Hon’ble Apex Court in Deep Chandra Juneja versus Lajwanti Kathuria (Smt) (Dead) through LRs, (2008) 8 SCC 497 and in A.K. Jain versus Prem Kapoor, (2008) 8 SCC 593 . (2008)8 SCC 497 , (2008)8 SCC 593 , but since in the case at hand, petitioner-landlord has been not able to establish his status of landlord as was sought to be set up by him on the strength of partition/family settlement, no benefit can be claimed by him on the aforesaid observations made by the Hon’ble Apex Court in the aforesaid judgments. 21. 21. Though, this Court finds merit in the submission of learned Senior counsel representing the petitioner-landlord that with the passage of time definition to “for his own use” has been extended to family, meaning thereby premises can be sought to be evicted on the requirement of any member of the family, however, in the case at hand, petitioner-landlord though claimed himself to be owner of the demised premises on the strength of partition/family deed, but he was nowhere able to establish that after family settlement he was thrown out of the premises, which was in occupation and possession of his father prior to his death, rather as per own statement of the petitioner landlord two floor of the premises are in the possession of his mother and one story has been given to his brother. Petitioner-landlord has not led any evidence to prove that after the death of his father, he has been shunted out from other portion of the building, which have fallen in the share of other co-owners i.e. mother and brother. Moreover, petitioner-landlord despite his having admitted factum with regard to two shares fallen in the share of the mother claimed that he bona- fidely requires the premises for his mother, which plea of him otherwise creates serious doubt with regard to his intention to get the demised premises vacated on the ground of bona-fide requirement. 22. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds no merit in the present petition and accordingly same is dismissed alongwith pending applications, if any.