Mohinder Kumar Joshi vs Kali Ram

S.N. Phukan, C.J.—This revision petition has been filed by the tenant-Petitioner u/s 24(1) of the H.P. Urban Rent Control Act, 1987, against the appellate order passed by the learned Additional District Judge (I), Shimla, on 20.9.1994 in CMA No. 19-S/14 of 1991. The appellate authority affirmed the order of the Rent Controller (I), Shimla in Case No. 25/2 of 1987.

Briefly stated, the facts are as follows. The Respondent-landlord filed a petition against the present Petitioner-tenant for his eviction on the ground that the premises in question is required for his bonafide use. At present Respondent-landlord is residing at the rented premises at Butail Ganj, Ram Bazar, Shimla. The name of the house, for which eviction is sought for, is Mehlog House situated at Boileauganj, Shimla. The Respondent-landlord has two sons. One son, namely, Shri Rajinder Kumar is residing in one set of Mehlog House with his family members and his second son, Shri Narinder Kumar with his family members is residing with the present Respondent-landlord. As one set has become vacant, the second son of the Respondent-landlord, Sh. Narinder Kumar, is going to shift and the Respondent-landlord being an aged person would like to spend his life in the company and close proximity of both his sons, therefore, the premises in occupation of the Petitioner-tenant are required for his personal bona fide use.

In the reply affidavit before the learned Rent Controller, the Petitioner-tenant urged that the premises which are in occupation of the Respondent-landlord are more useful to the Respondent-landlord, as his business premises are located below the same building. It was also urged that in Mehlog House, there exists four rooms with glazed Verandah, which are vacant and are in possession of the Respondent-landlord, therefore, he can occupy these four rooms. In the reply affidavit, it was also stated that the premises in question are not required for bona fide use and occupation of the Respondent-landlord and he has filed the eviction petition with a view to enhance the rent.

Both the courts below found that the premises in dispute are required for the bona fide use and occupation of the Respondent-landlord. Accordingly, eviction petition as well as appeal were allowed and hence the present petition.

Heard learned Counsel for the parties.

The provisions of Section 24(5) of H.P. Urban Rent Control Act, 1987, are reproduced below:

24(5). The High Court may at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.

It has been urged on behalf of the learned Counsel for the Respondent-landlord that as there are concurrent finding of facts by the courts below, this Court exercising revisional powers cannot re-appraise or re-appreciate the evidence on records in this connection, learned Counsel has drawn attention of this Court to the decision of the Delhi High Court in K.B. Bakaya v. Mrs. Pamela Kumar 1995(1) RCR 29 . Delhi High Court considered the revisional powers of the High Court under the Delhi Rent Control Act, 1958. Relying on the decision of the apex Court in Hiralal Kapur Vs. Prabhu Choudhury, it was held that the revisional powers, as contained in Section 25B(8) of the Delhi Rent Control Act, of the High Court are wider than the similar powers of revision u/s 115 CPC , but the power of revision under the Rent Act does not entitle the High Court to enter into the merits of the factual controversies between the parties and to reverse the findings of fact.

I may now refer to some decision of the apex Court on this point, on which reliance has been placed by the learned Counsel for the parties.

In H.V. Mathai Vs. The Subordinate Judge, Kottayam and Others, the apex Court considered the provisions of Kerala Buildings (Lease and Rent Control) Act, 1965, vis-�-vis the revisional powers of the High Court, as contained in Section 115 CPC Considering the words contained in Section 20 of the Rent Act of 1965, it was held that Section 20 is much wider than those in Section 115 CPC , as u/s 20(1) the court is empowered to call for and examine the records relating to any order passed or proceedings taken under the Rent Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and pass such order in reference thereto as it thinks fit it was also held that it cannot be held that a revision u/s 20 is limited to mere question of jurisdiction and that court is empowered to consider whether on evidence, the findings of the trial courts was proper.

In Ram Dass Vs. Ishwar Chander and Others, the apex Court considered the revisional powers of the High Court u/s 15(5) of East Punjab Rent Registration Act, 1949. Section 15(5) enables the High Court to satisfy itself as to the "legality and propriety" of the order under revision which , as held by the apex Court, is much wider jurisdiction and this enables the Court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not " a second court of first appeal". The apex Court rejected the contention that High Court in its revisional jurisdiction cannot be permitted to interfere with the findings of fact, recorded by the appellate authority, however, erroneous they be, having regard to the language of Section 15(5) of the Act. It was further held that in an appropriate case High Court can re-appraise the evidence if the findings of the appellate court are found to be infirm in law. Similar views were expressed by the apex Court with reference to the same Rent Act in Rai Chand Jain Vs. Miss Chandra Kanta Khosla, It was also held that High Court, while exercising jurisdiction u/s 15(5) of the. East Punjab Rent Restriction Act, 1949, is competent not only to see the irregular or illegal exercise of jurisdiction but also to see to the legality or propriety of the order in question.

In a decision of the apex Court in Lachhman Dass v. Santokh Singh (1995) 4 SCC 201, the apex Court considered the revisional powers of the High Court u/s 15(6) of Haryana Rent Control Act and held that under the above Section 15(6),revisional powers have been conferred on the High Court for satisfying itself with regard to the legality or propriety of an order or proceedings taken under the Act empowers the High Court to pass such order in relation thereto as it may deem fit. The apex Court further held that High Court is justified in interfering with the order if it finds that the order of the appellate court suffers from a material impropriety or illegality. The apex Court considered the expression " legality or propriety of such order or proceeding" in accordance with Sub-section (6) of Section 15 and held that the revisional powers of the High Court under the Act is wider than the powers u/s 115 CPC , which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. It was further held that if the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision and that being so unless the High Court comes to the conclusion that the concurrent findings recorded by the two courts below are wholly perverse and erroneous which manifestly appear to be unjust, there should be no interference.

In Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987, the same expression legality or propriety of such orders or proceedings" has been used and, therefore, I may now sum up the powers of this Court in exercising revisional jurisdiction in view of the above ratio laid down by the apex Court. The revisional powers of this Court under the H.P. Urban Rent Control Act, 1987, is wider than the power u/s 115 CPC , which is confined to jurisdiction. High Court can interfere with the concurrent findings of fact while exercising the revisional powers, but before doing so the court shall have to record its satisfaction that the concurrent findings recorded by two courts below are perverse and erroneous which manifestly appears to be unjust.

Keeping in view the above revisional powers of this Court, let me now examine the findings of the courts below. From the judgment of the learned Rent Controller dated 16.11.1990, I find that the Respondent-landlord examined himself as PW-1 and also two witnesses, namely, Shri Rajinder Kumar, PW-2 his son and Shri M.L. Aggarwal, PW-3 and also tendered in evidence inspection report, marked as Exhibits-P.1 to P.6. The landlord-Respondent, PW-1, in the witness box, before the Rent Controller, stated on oath that he is an old man of more than 70 years of age and wants to live in the same building where his married sons are putting up. He also stated before the Rent Controller that now he is residing in a tenanted premises at Butail Ganj, Ram Bazar, Shimla and that his younger son is likely to shift his residence and shall occupy the set which is likely to be vacated by one Shri Gian Sagar, who is a tenant in Mehlog House with the Respondent-landlord. He further deposed that he will have to live alone after his second son shifts to the house. From the evidence on record, the learned Rent Controller observed that the Respondent-landlord, being an old man, shall be living at a far off place and in that eventuality, it will not be possible for his sons and their family members to look after the Respondent-landlord. It was urged before the learned Rent Controller that as the Respondent-landlord has got his own business in the tenanted house, where he is at present residing, it will be convenient for him to look after the business. But this point was rejected by the learned Rent controller. The submissions of the Respondent-landlord have been duly supported by the other two witnesses. It was urged, on the basis of the cross-examination, that two rooms are vacant in the basement of Mehlog House, where the Respondent-landlord can live. But it has come out in the evidence that there is no kitchen, bath room and rooms for servants. In fact the Petitioner-tenant himself stated on oath before the Rent Controller, that the said accommodation is not suitable even for himself. The other witness examined by the Respondent-landlord, namely, Shri M.L. Aggarwal, is a tenant under the Respondent-landlord in Mehlog House and the learned Rent Controller rightly rejected his evidence on the ground that he, as expected, being a tenant, will support the case of the tenant-Petitioner. In fact, in cross-examination, this witness has admitted that Respondent-landlord is a sick person and is asthmatic, therefore, the learned Rent Controller held that the Respondent-landlord can be looked after by his sons and other members of the family |in case he is able to reside in the premises in question. After properly appreciating the entire evidence on record and law laid down by this Court as well as High Court of Punjab & Haryana, the Rent Controller allowed the petition.

The learned appellate authority also came to the same findings. From the findings of the learned lower appellate authority, I find that except two sets, which are meant for occupation by two sons of the Respondent-landlord, no other suitable accommodation is available in Mehlog house and as the Respondent- landlord wants to stay with his two sons, he requires the set in Mehlog House, which is in occupation of the petitioner-tenant.

I have perused both the judgments and also the evidence on record and I find that the findings of the courts below are neither perverse nor erroneous or unjust and, therefore, calls for no interference.

Learned Counsel for the Respondent-landlord has place reliance on a decision of this Court in Som Nath Sharma Vs. Prem Lata and Others, wherein the learned Single Judge held that to find out the bona fide requirements of the Respondent-landlord, present or near future requirement has to be taken into consideration.

Another decision of this Court , on which reliance has been placed, is in Amrit Lal Gupta v. Smt. Budhwnati 1990(1) RCR 152. In that case the old landlady sought for eviction of the tenant on the ground that being old, she wanted the presence of her two sons, so that she could be properly looked after it was held that this is a bona fide requirement.

Learned Counsel for the Petitioner-tenant has placed reliance on a decision of this Court in Kamlesh Khanna v. Rupwanti 1994(2) RCR 360 . In that case, the landlady wanted accommodation for her married son, who was living in a tenanted house. It was held that this is not a bona fide requirement and requirement of residence for married son is not equivalent to the requirement of the landlord himself. This decision is not applicable to the case in hand as the Respondent-landlord wants the house for his own use and occupation. In this connection, I may refer to a decision of the apex Court in Smt. Sheela Chadha and Ors. v. Dr. Achharaj Ram Sehgal, 1990(Supp) SCC 736. The apex Court, regarding bona fide requirement, held that landlord has discretion to determine his need. In that case, premises in question was required by the landlord doctor for his unmarried daughter, also a doctor, intending to set up a maternity clinic. On this fact, it was held that the bona fide need of the landlord was established. The contention of the tenant, that landlord was able to evict another tenant from the larger portion of the building and his daughter could be accommodated in that portion for carrying on her profession, was rejected on the ground that it is not significant for determining bona fide need. It was also held that law grants a fair amount of discretion to the landlord to determine his needs when asking the vacation of tenanted premises. The only check on that is that it must have the ground and the need should be bona fide.

Learned Counsel for the Petitioner-tenant has urged that the Respondent-landlord can continue to occupy the same tenanted premises as it will be convenient for his business purpose and further even if he wants to shift to Mehlog House, he can do so as there are sufficient accommodation for his purpose including the rooms at the basement. The landlord, as held by the apex Court, in Smt. Sheela Chadha and Ors. (supra) has discretion to determine his needs while asking the vacation of tenanted premises and the tenant cannot force him to occupy the particular portion of any building or continue to remain in the same tenanted premises. Regarding accommodation in basement, even the Petitioner-tenant refused to shift on the ground that unless additional constructions are made, it is not habitable. In a petition for eviction, no direction can be issued to the landlord to make such additional accommodation. That apart, these contentions were duly considered by the courts below and rejected, therefore, I do not find any force in the contentions raised by the learned Counsel for the Petitioner-tenant.

I may also refer to the decision of Delhi High Court in Silvertoe Mfg. Co. of India v. Usha Soi 1994 (2) RCR 483. It was held, while considering the question of bona fide requirement, that it is the landlord who is the best judge of his requirement, in case he chooses the same in a reasonable manner. The court also rejected the submission of the above tenant that he will vacate the first floor in case the landlady allowed him to retain Barsati floor and further held that no such direction can be given to the landlady. I may refer to the decision of the apex Court in Smt. Pratibha Devi v. T. B. Krishnan 1987(2) RCR 580, wherein It was held that landlord is the best judge of his essential requirements and he has complete freedom in the matter, therefore, it is no concern of the Court to dictate the landlord how and in what manner he should live and to prescribe for him a residential standard of their own.

Learned Counsel for the Petitioner-tenant, relying on a decision of the apex court in Raman and Raman Ltd. Vs. The State of Madras and Another, has urged that the word " propriety" has not been defined in the Act and is to be governed by the dictionary meaning. In that case the apex Court considered the word and relying on Oxford English Dictionary (Vol. VIII), held that "propriety" means "fitness; appropriateness; aptitude ; suitability ; appropriateness to the circumstances or conditions; conformity with requirement, rule or principle ; rightness, correctness, justness, accuracy". I need not enter into this aspect of the matter as I have already held regarding the revisional powers of this Court under the rent law in question.

According to the learned Counsel for the Petitioner-tenant, this Court has to consider a subsequent event as stated in the application, registered as CMP No. 95/95 and in support has placed reliance on one decision of the apex Court in M.M. Quasim Vs. Manohar Lal Sharma and others,

I have perused the application and also the reply. In the application, it has been stated that Respondent-landlord is residing at Panchkula and to prove this fact various submissions have been made. On the basis of this application, it has been urged that the Respondent- landlord does not require, the premises in question and he is not living in Shimla. In the application, it has been clearly stated that the house, where Respondent-landlord is residing, belongs to his sons. In reply to the said application, it has been denied that the Respondent-landlord suffers from heart trouble at all but he has got asthmatic problem, which is not acute. It has also been stated that during winter months the Respondent-landlord resides at Panchkula in the house of his sons but during the other period of the year, he is residing at Shimla. This is common for an old person, as during winter period, due to snowfall, it is difficult for an old person to reside at Shimla, therefore, merely because that he resides at Panchkula during this period, it cannot be said that the Respondent-landlord does not require the suit premises. In my opinion, no evidence is necessary, in view of the reply to the application.

Learned Counsel for the Petitioner-tenant has tried to make a distinction between "need" and " requirement", and in this connection has made reference to the decision of the apex Court in Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, In my opinion, this does not require any consideration as the courts below have clearly held that the premises in question is required for bona fide requirement of the Respondent-landlord and as stated above, I do not find any infirmity or illegality in the judgments.

For the reasons stated above, the present petition is dismissed. Costs on the parties.