Hans Raj and another vs Balraj Singh

Harbans Lal, J.—This revision petition is directed against the order of the Appellate Authority under the East Punjab Urban Rent Restriction Act, (hereinafter called the Act), dated October, 11, 1976, whereby the appeal of Hans Raj, tenant, (hereinafter called the petitioner) against the order of eviction by the Rent Controller was dismissed.

Dr. Balraj Singh, landlord, filed a petition u/s 13 of the Act for eviction of the petitioners from the rented land (hereinafter called the land, in dispute), on a number of grounds, which was on lease with him at a monthly rent of Rs. 28 12. The petitioner was sought to be ejected on the grounds of subletting, unauthorised construction and personal necessity. All the allegations in the eviction application were controverted by the petitioner in his written statement. In view of the pleadings of the parties, as many as nine issue were framed out of which only issue No 3 is relevant for the purpose of the present revision petition on which the order of eviction was passed by the Rent Controller holding that the land, in dispute, was bona-fide required by the landlord for his personal necessity. Appeal by the petitioner also proved abortive and the order of eviction was upheld. This order has been challenged in the present revision petition.

The learned counsel for the petitioners, has challenged the order of the authorities below on the following grounds:--

the ingredient (c) of sub-clause (ii) of clause 3 (a) of section 13 was not proved by the landlord, and

the landlord after the filing of the eviction application got employed in the Post-Graduate Institute at Chandigarh and continued to be so till 1977 and, thereafter, has gone out of India. Beside, the land, in dispute, belong, in fact, to the father of the petitioner who transferred the same in favour of the landlord by means of a gift deed dated August 18, 1970, only with the intention to provide a justification for ejecting the petitioners. The landlord, consequently, had no bona-fide- necessity and the finding of Courts below was based on a misreading of evidence.

The intention and purpose of the legislature is clearly discernible from the scheme of the Act. The reasonable and legitimate interests of both the landlord and the tenant have been safeguarded On the one hand, tenant has been given protection from the arbitrary and undesirable and unsocial acts of the landlord to evict him in order to enhancement unduly or to change the tenant from time to time at his whim and caprice. On the other hand, the legitimate rights of the landlord have also been protected in as much as it has been made imperative on the tenant to pay rent to the landlord regularly and to ply all arrears of tent alongwith interest and costs at the latest on the date of the first hearing of the eviction application. The tenant has also been made liable to be evicted if he does not use the rented premises himself, but sublets the same without the written consent of landlord or misuses the same for the purposes other than for which the premises were rented out. The right of the landlord to evict the tenant has also been safeguarded if the premises are found to he unsafe or unfit for human habitation The legislature has even gone to the extent of conferring a right on the landlord to get the premises vacated whether the same are residential or rented land, if the same are required personally by him for residence, or business purposes. However the legislature while conceding this latter right to the landlord was conscious that the same may not be used as a camouflage and a garb to get the premises vacated for extraneous reasons and the circumstances even when the requirement and necessity of the landlord may not be bona-fide. In order to safeguard the tenant against the misuse of this right, the same was hedged in by two specific conditions embodied in the form of sub clauses (b) and (c) under clauses (3) (a) (i) of section 13 which are identical in terms. There perusal shows that the landlord in order to succeed to evict his tenant on the ground of his personal necessity has to prove as condition precedent that he was not occupying any other residential building or rented land, as the case may be in the area concerned, and further that he had not vacated such a building or rented land without sufficient cause after the commencement of the Act. The purpose of laying down these two conditions is quite clear. The landlord has been given the right to get the premises vacated for his own use or occupation only if he was not in occupation of any other residential building or rented land, as the case may be and secondly, if he was in occupation of any such premises, he had not vacated the same after the commencement of the Act, without sufficient cause. Both the conditions are equally important and are intended to eliminate the possibility on the part of the landlord to seek eviction under a camouflage. The landlord is not allowed to get vacated the premises which were earlier rented out to a tenant if he was already in possession of some other premises. There could be cases where the landlord in order to achieve his purpose'' before filling the eviction application, may vacate the premises in his possession, though there may not be any cause or pressure for doing the same. The last condition which is embedied in sub cause (c) in both the clauses is intended to safeguard the interests of the tenant.

At one time, there was a controversy in judicial decision as to whether it was essential to plead the ingredients of clauses (b) and (c) along with clause (a) in the eviction application and to prove the same. However, the controversy has been set at rest by their Lordships of the Supreme Court in Attar Singh v. Inder Kumar (1967) 69 P.L.R. 83 and the Full Bench of this Court in Banke Ram v. Shrimati Sarasti Devi (1977) 79 P.L.R. 112, in which it has been held that the ingredients of sub-clauses (b), and (c) in clause (3) (a) (i), and (ii) of section 13 have to be both pleaded and proved by the landlord in order to succeed on the ground of personal necessity. According to the said decision ingredients as embodied in sub-clauses (b) and (c) were equally important and must be satisfied by the landlord, with regard to the ingredients as contained in sub-clause (c) their Lordships of the Supreme Court in Attar Singh''s case (1967) 69 P.L.R. 83 (supra), held in paragraph 8 as follows :

Turning now to sub clause (c) we find that the landlord has not only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is not in possession of any other rented land for the purpose of his business in that urban area, but also to prove that he had not vacated any rented land without sufficient cause after the commencement of the Act. Thus he has not only to prove that he is not in possession of any other rented land for his business but also to prove that he had not vacated any other rented land which he used principally for business without sufficient case. For example even if the landlord is not in possession of any rented for his business but had vacated other rented land which means land that he had taken for business without sufficient case he would still not be entitled to ask for eviction of a tenant from his own rented land. This again shows that if the landlord had been in possession of land for business principally and vacated it without sufficient cause he cannot ask for the eviction of a tenant from his own rented land on the ground that he requires is for his own use.

According to the learned counsel for the petitioners, the landlord has failed to prove the requirements of sub-clause (c) in his evidence though the requisite averment was made in the eviction application. It is not disputed on either side that the only evidence in this regard is contained in the statement of the landlord Dr. Balraj Singh only as A.W. 11. I have perused his statement closely. In his examination-in chief the relevant part of the statement is to the following effect :

I have no other plot within the municipal limits of Jagraon other than the plot in dispute, nor have I taken any other plot on lease.

In cross-examination, no question was directed in elucidation of this statement. According to the learned counsel for the petitioner, the statement of the landlord cannot be stretched in any manner to conclude that the landlord stated anything with reference to the condition contained in sub-clause (c). On the other hand, the case of the respondent is that no question was put in cross-examination as to whether the landlord had not vacated any other premises without sufficient cause after the commencement of the Act, it should be held that the requirement of condition in sub-clause (c) had been complied with as the ingredient required to be proved was of a negative character. In my opinion, in view of the law laid down by their Lordships of the Supreme Court with regard to the conditions in tub-clause (b) and (c) in the above mentioned decision, it was mandatory for the landlord to specifically bring evidence on the record to the effect that he was in occupation of no premises after the commencement of the Act, or in the alternative, that he had not vacated the same without sufficient cause. In the absence of any such statement or evidence, it was not the duty of the tenant to fill up the gap in the evidence of the landlord and to put question to him or his witnesses in cross-examination in this regard in similar circumstances, Mittal, J. accepted the revision in Panna Lal v. Devjit (1967) 78 P.L.R. 23 S.N. and held that the landlord failed to prove that he did not vacate any building at Ludhiana after the commencement of the Act, without sufficient cause.

The learned counsel for the respondent, in the alternative, stressed that the contention regarding non compliance of the condition in sub-clause (c) had neither been raised by the petitioner in his grounds of appeal before the Appellate authority, nor argued there. In these circumstances, it was contended that this new contention should not be allowed to be raised at this stage. The landlord had made a specific averment regarding the ingredients contained in sub-clauses (a), (b) and (c) in his eviction application which had been denied by the petitioner in his reply. The issue framed regarding the necessity of the landlord obviously had a reference to these pleadings. The statement of the landlord also shows that he was alive to the mandatory provisions of law with regard to these ingredients. In these circumstances, if he failed to produce evidence in the shape of statements of other witnesses or in his own statement with regard to a particular ingredient, he cannot make any grievance. At the time the eviction application was filed and decided by the Rent Controller or the Appellate Authority, the position of law with regard to the same had been clearly settled by their Lordships of the Supreme Court in the above mentioned decision. Therefore, it cannot be held that the landlord has been taken by surprise by the learned counsel for the petitioner in making this legal contention in revision. As the contention goes to the root of the matter, I allowed the same to be raised The learned counsel for the respondent relied upon two decisions of Chinnappa Reddy, J., (as he then was) in Kesho Ram v. Jagan (1977) R.C.J. 770 and Nathu Ram v. Ganga Ram (1977) P.L.R. 960. In both these decisions, it is has been held that it is in the discretion of the High Court to allow such a contention to be raised at the stage of arguments in the revision petition. As I have already observed above, keeping in view all the circumstances and facts of the case it was a fit case in which this contention has been allowed.

Lastly, it was contended by the learned counsel for the respondent that the case may be remanded on this point for de novo trial. Reliance in this regard was placed on Jagjit Lal v. Gurjinder Singh and another (1977) 79 P.L.R. 124, in which Naurla, C.J., (as he then was) allowed the pleading in the eviction application to be amended when the requisite averment regarding the ingredients of sub-clauses (b) and (c) had not been made, and remanded the case for fresh trial after providing another opportunity to the parties to adduce evidence This case clearly is distinguishable from the present case in which the requisite pleadings already exist and both the parties were alive to the position of law and evidence was adduced. In these circumstances, it is not a fit case in which remand can be ordered and the respondent can be allowed to adduce further evidence.

So far as the second contention is concerned, both the Courts below have come to the conclusion that the landlord was in need of the rented land for the purpose of carrying on his profession as a doctor after constructing a hospital and a clinic. On behalf of the petitioner''s it was stressed that in the first, instance, the father of the landlord filed an eviction application regarding these very premises on the ground of personal necessity. The same was allowed and the order of eviction was passed. The petitioner challenging the same in appeal and at that stage, the eviction application was withdrawn by the landlord in 1968. Thereafter, these premises were transferred by registered gift deed in favour of the present landlord on August 18, 1970, and the present landlord is no other than the son of the original landlord. The present eviction petition was filed on August 11, 1972. It was also stressed that thereafter, during the pendency of the eviction application, the landlord joined service in the post graduate Institute at Chandigarh and remained in service till 1977 and now he had gone out of India for further studies. According to the learned counsel for the respondent, the facts regarding the landlord having joined service in the post-graduate Institute at Chandigarh and thereafter having gone out of India are not on the record. It was also contended that the appeal by the petitioner was filed before the Appellate Authority on September 17, 1974, whereas the application for amendment of the reply to the eviction application was made on December 10, 1975. It was also contended that the subsequent events cannot be taken into consideration. As against this, relying on a Division Bench judgment of this Court in J.G. Kohli Vs. The Financial Commissioner, Haryana, Chandigarh and Another, it has been urged that to find out the bona-fide necessity of the landlord, the facts which come into existence subsequent to the eviction application can be taken into consideration.

In view of my clear finding that the landlord failed to prove the ingredients as contained in sub-clause (c) the eviction application cannot succeed even if it is held that the personal necessity of the landlord for the premises, in dispute, was proved. Therefore, it is neither necessary nor desirable to give any finding on this aspect of the controversy.

For the reason mentioned above, the revision petition is allowed and the eviction application is dismissed with no order as to costs.