Inderbir Singh Paul vs Lal Chand

Bhawani Singh, J.—This revision petition, u/s 21(5) of the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter in short "the Rent Control Act"), assails the judgment of the Appellate Authority, Shimla, in CMA No. 210-Section 14 of 1982 whereby the appeal preferred by the tenant against his eviction by the Rent Controller in case No. 26-2/81 dated 15-9-1982 has been up-held.

Briefly, the facts are that the landlord moved eviction petition u/s 14 of the Rent Control Act against the tenant from residential accommodation ''Pine House Annexe'', Chhota Shimla, on the ground that the premises let out to the tenant on a monthly rent of Rs. 53.25 paise in addition to the taxes and the water charges were required for the occupation of his married son Shri Krishan Kumar, his wife, four daughters and a son. It has also been stated that the said son was not occupying any other building in the urban area for the purpose of residence nor had he vacated any residential building in the urban area without sufficient cause after the commencement of this Act.

The case of the tenant is that the premises are not required by the landlord for his married son since he is already in possession of sufficient accommodation. The landlord and his son have accommodation consisting of six big rooms, three small rooms, being used as kitchen, bath and store in the main building. The landlord got vacated four rooms from his previous tenant Shri A.K. Malhotra and out of them; two are lying locked while the other two have been let out to one Shri Rama Nand. It has also been stated that the son of the landlord is not at all dependent on the Petitioner in any manner whatsoever and the requirement of the landlord is neither genuine nor bona fide and the petition has been filed to harass the tenant, otherwise in addition to the accommodation stated above, the landlord has more sets in this building and another building adjacent to this building where the accommodation is to the extent of 12 rooms in two story''s. Accommodation in this building fell vacant many times during the last five years but the same was rent out to new tenants on higher rents. The same thing happened to the building where the landlord is at present living; therefore, in case the landlord had really genuine necessity to have more accommodation, the premises which fell vacant could be used by him.

On the pleadings of the parties, the Rent Controller framed two issues:

Whether the Respondent is liable for abetment on the grounds taken in the petition? OPP

Relief.

The parties led their respective evidence in the case. The Rent Controller inspected the premises also on 10-9-1982 and found that the premises in occupation of the landlord consisted of four big rooms, one glazed verandah, one store, a kitchen and a bath room. He also found that one of the rooms was being used as a drawing room while the others were found in the occupation of landlord, his wife and daughter and Krishan Kumar and his family members consisting of wife and five children. In this way, the Rent Controller found that the premises in the occupation of the landlord were not sufficient to accommodate his own family and the family of Krishan Kumar. It has also been concluded that the married daughter and other relatives of the landlord frequently visit him and stay with him for this purpose, the residential accommodation in his occupation was insufficient. In these circumstances, it was finally held that the case of the landlord was covered by Section 14 (3) (a) (iv) of the Rent Control Act and his claim for more accommodation for the residence of his married son Krishan Kumar was bona fide. Accordingly, the eviction petition was allowed and the tenant was asked to deliver vacant possession of the premises to the landlord within 30 days of the passing of the order.

The tenant challenged this order before the Appellate Authority and submitted, inter-alia, that during the pendency of the appeal, a set fell vacant but the same was let out to Trilok Chand at the rate of Rs. 350/- per month and this fact was noticed by the court in its order of August 3, 1983. It was also submitted that even before the tendency of the petition, two sets in the occupation of Shri Malhotra also fell vacant but the landlord let out two-room set to a new tenant in the year 1977. In such a situation, the requirement of the landlord could not be considered to be genuine, rather these facts display quite clearly that the landlord has been actuated by oblique motive to initiate the eviction proceedings against the tenant. The landlord explained that only one room and verandah was let out to Kiran Bala while the remaining accommodation was kept by him for his use. The set let out to Kiran Bala was not suitable since it had a common verandah and a common latrine. The landlord also submitted that he had the choice to choose a set and he could not be debarred from choosing an independent set in the occupation of the tenant. The Appellate Authority also visited the premises and found one drawing-cum-dining room, one glazed room and verandah, one room converted by glazing the verandah, one big room and two small rooms and a kitchen and a store. It was also found by the Appellate Authority that the premises in occupation of the tenant were separate from the main Kothi in the occupation of the landlord. It was also found that the big attic could be used for habitation after spending huge amount. However, the Appellate Authority accepted the landlord''s claim for more accommodation and dismissed the tenant''s appeal. This is how the tenant has filed the present revision petition and assailed both the decisions of the courts below.

Shri Kuldip Singh, learned Counsel for the tenant, submits that the eviction order passed against the tenant deserves to be set-aside since the case has not been examined in accordance with law, evidence and the subsequent changes that have taken place during the tendency of eviction petition. It was also submitted that it has wrongly been held that the requirement of the landlord is bona fide and accommodation in his occupation is insufficient since there is enough evidence on the record of this case which clearly negatives these findings and shows that the landlord''s claim is neither bona fide nor based on real necessity.

Shri Bhupinder Gupta, who appears for the landlord, assailed these submissions and contended that the findings of the two courts are unassailable and the requirement of the landlord is supported by evidence. Parties placed reliance on certain decisions and also made full use of the evidence on record, including that of the two inspection reports of the Rent Controller and the Appellate Authority in addition to the changes which took place during the pendency of the eviction proceedings. In order to examine the respective contentions of the parties, and to arrive at a just decision, it is desirable to examine these submissions with reference to the evidence on the record of this case.

The landlord admits in his petition that he owns three houses, namely, Pine House, Pine Annexe and Pine Quarters located at the same place. According to him, the accommodation with him consisted of only two rooms and a verandah, as shown in Ex. P.l/B. He states that his elder son Krishan Kumar, his wife and five children also live with him. In addition, two other sons, namely, Raj Kumar and Sampat Singh were also occupying some portion of the accommodation. He also needs accommodation to accommodate the married daughters and the relations who come to stay with him at Shimla. He admits that one set had fallen vacant in 1986 which was, being occupied by Shri A.K. Malhotra. It was a two-room set and one of the rooms was given to his son, Raj Kumar, who is serving in the Air Force, while the other was given to Shri Sampat Singh who remained in this room till his death in 1977 but he does not want to give it to Shri Krishan Kumar for reasons of superstition. He admits that in this building there are four sets. Other tenants in this house are Rama Nand Chauhan, Pritam Singh Chauhan, Balbir Singh and Pratap Chand Katoch. The house in the occupation of the tenant is separate and has three room accommodation. Besides this, there is another two storey building with 12 rooms. Except for one room, all other rooms have been let out. He has denied that he has six rooms in his occupation although admits that one room in the Annexe is in his possession. He has been supported by Krishan Kumar (P.W. 2) (dead) who states that the total accommodation with his father consisted of two rooms and a verandah and this accommodation is quite inadequate looking to the total number of family members. However, he admits that the set rented out to Shri Rama Nand was with Shn A.K. Malhotra and that the set with the tenant is smaller than the set with Shri Rama Nand. However, he states that he wants to live in a separate accommodation. He also admits that one room and verandah was kept by them after Shri A.K. Malhotra had vacated the set in his occupation.

Trilok Chand (P.W. 3) also says that the landlord has two rooms and a store in his occupation but admits that during the past two years, 2/3 rooms fell vacant in the quarters.

It appears quite clear from the evidence of the landlord and his witnesses that they have not come forward to state exactly the total accommodation. According to him, the total accommodation is two rooms and a verandah although it appears even from his statement that in addition to this, he kept two rooms out of the set that fell vacant from the tenancy of Shn A.K. Malhotra. His son, Krishan Kumar (P.W. 2) states only about one room while the other witness Trilok Chand (P.W. 3) talks about two room accommodation. Thus, this evidence of total accommodation with the landlord stands contradicted completely when one looks at the inspection reports of the Rent Controller and the Appellate Authority in this case, already extracted hereinabove. It was at the instance of the tenant that the premises with the landlord and those owned by him were inspected. The tenant has also stated in his statement that the landlord has 6/7 rooms in his occupation. Balbir Singh (R.W. 2) and one Pratap Singh say that the landlord has 5/6 rooms in his occupation. At the time of the filing of the eviction petition, the landlord stated that he needed accommodation for himself, his wife, his married son, Krishan Kumar, his wife, five children, his unmarried daughter, son Raj Kumar, his family and children and third son Sampat Singh. In addition to this, his claim was also that he needed accommodation for his married daughters and relations on their visit to Shimla. But today this requirement is reduced considerably for the reason that Krishan Kumar and Sampat Singh have died. The unmarried daughter has since been married and there is no clear and convincing evidence whether the children of Raj Kumar, who is serving in the Indian Air Force, are living with the landlord. Needless to say that this son is not dependent on the landlord. He is serving somewhere outside Shimla.

There is no evidence pointing out that the landlord intended to settle his son Krishan Kumar in the accommodation with the tenant on account of non-cordial relations between him and his son or between the mother-in-law and the daughter-in-law. In the absence of this evidence and now on account of the death of Krishan Kumar, there is no reasonable justification to seek the eviction of the tenant from the premises in question which are away from the main building, he is occupying. Now, the landlord is to look after the children of his deceased son Krishan Kumar more keenly, properly and affectionately, which he can do conveniently in case they live in the main building along with him.

He chose to let out the premises in the main building even after the death of Krishan Kumar although he could very well keep the same for his occupation and for the use of the children of Krishan Kumar.

From the nature of the evidence that has appeared in this case, it is absolutely clear that the requirement of the landlord for the premises is not genuine and the sole attempt on his part is to evict the tenant. I do not see any merit in the submission of Shri Bhupinder Gupta, who placed reliance on 1979(1) RC R 170 (Baga Begum and Ors.v. Abdul Ahad Khan and Ors.) and 1985(1) RCR 51 (Vishawa Miliar v. Amrik Singh) that the landlord cannot be compelled to use a particular accommodation since the choice is of the landlord as to whether any particular accommodation suits him or not . It is not the wish of the landlord that determines the dispute between the parties. As a matter of fact, the court has to see whether the requirement of the landlord is bona fide and reasonable. In Phiroze Bamanji Desai Vs. Chandrakant N. Patel and Others, the Court held that the main test in such cases should be whether it was necessary for the landlord to need the premises for his own use and occupation. As long as such requirement is bona fide, the landlord can certainly seek relief of eviction against the tenant but before he succeeds in doing so, he has to prove that his necessity was both genuine and reasonable, Justice Bhagwati, speaking for the Court, observed as follows:

The District Judge did not misdirect himself in regard to the true meaning of the word ''requires'' in Section 13(l)(g) and interpreted it correctly to mean that there must be an element of need before a landlord can be said to ''require'' premises for his own use and occupation. It is not enough that the landlord should merely desire to use and occupy the premises. What is necessary is that he should need them for his own use and occupation.

This decision has been followed in 1980(2) RCR 127 (Ram Lal Sunda and Ors. v. Santosh Kumari Sood) 1978 (1) RCR 265 (Shri Rattan ChandJain v. Shri Charan Singh) 1979 (2) RCR 275 (Brij Lal v. Arjan Singh) and 1988 (1) RCR 625 (SC) (Ram Dass v. Ishwar Chander and Ors.). Therefore, it is essential that there should exist genuine element of need and the case should not be examined only from landlord''s point of view; rather it should be seen whether he can do without it and in order to arrive at a conclusion on this question, the Court has to examine and weigh the evidence having regard to objective considerations.

The decision in Vishwa Miner''s case (supra) is not applicable in view of the decision of the Supreme Court in Phiroze Bamanji Desai''s case (supra). Similarly, the decision in Baga Begum''s case does not deviate from the principle laid down in Phiroze Bamanji Desai''s case (supra) since the Court came to the conclusion favor able to the landlord on the peculiar facts of the case that the requirement of the landlord to run the house as a hotel was reasonable and genuine since his income from the existing business of boot shop was very small and he was not able to maintain himself.

In the present case, it can safely be concluded on the basis of the evidence available quite sufficiently on the record that the requirement of the landlord is not, at all, genuine and reasonable. He has sufficient accommodation in his occupation. In case he had any genuine necessity for more accommodation, he could very well occupy the premises which fell vacant during the tendency of this petition or could seek eviction of tenants from the adjacent sets in the main house which he is occupying. The Rent authorities below have not considered the case on right lines with the result that wrong conclusions against the tenant have been drawn although the evidence on the record is to the contrary. These conclusions cannot, therefore, be up-held.

The result of the aforesaid examination of the matter is that there is force in this revision petition and the same is allowed. The decisions of the Rent authorities below ordering the eviction of the tenant are set-aside. The eviction petition filed by the landlord is dismissed. The parties are, however, left to bear their own costs.