Siri Ram vs B.N. Gupta

R.S. Pathak, C.J.—This is a tenant''s revision petition u/s 21(5) of the Himichal Pradesh Urban Rent Control Act, 1971.

The landlord, B.N. Gupta, filed a petition u/s 14 of the Himachal Pradesh Urban Rent Control Act, 1971 for the eviction of the tenant, Siri Ram, alleging that he had purchased the premises 27/1, Boileauganj, Simla for his personal use, that Siri Ram was in occupation as a tenant in the second storey of the building, that the accommodation was required for the occupation of his family consisting of himself, his wife and three school-going children and his old mother. He also alleged that the tenant had made material additions and alterations in the accommodation without his consent and that the value and utility of the premises had been affected. It was pointed out that the tenant was the owner of two properties in Simla, one of which was situated in Boileauganj. It was said that the premises in the occuoation of the tenant required immediate repair which could not be undertaken as long as he remained in occupation. Lastly, it was pleaded that the tenant had defaulted in making payment of rent for two months.

The eviction petition was opposed by Siri Ram who pleaded that he continued as a contractual tenant and that his tenancy had not been terminated. The grounds upon w lich it was asserted that he was liable to eviction were denied, and it was urged that the petition had been filed malafide.

Subsequently, the pleadings of the parties were amended further.

The Controller framed a number of issues and after evidence had been led by the parties be found that the tenant had not committed any act which had materially impaired the value or utility of the building, nor had it been established that he had built or acquired vacant possession of any residential property. But he held that the landlord required the premises for his own occupation as alleged by him, and it had not been proved that during the pendency of the petition some sets of rooms in the premises had fallen vacant and new tenants had been inducted into them. He further held that the landlord had terminated the tenancy by serving a valid notice on the tenant and that the latter was in arrears of rent. The plea that the accommodation was required by the landlord for carrying out repairs which could not be affected without the accommodation being vacated was answered in favour of the landlord. In the result, the Controller made an order dated February 28, 1975 allowing the eviction petition and directed that the landlord be put in possession of the accommodation by the ejectment of the tenant.

Siri Ram appealed to the Appellate Authority, but the appeal was dismissed on January 6, 1976.

In this revision petition, the first contention on behalf of the tenant is that the eviction petition was not framed in accordance with the statutory form prescribed by the Himachal Pradesh Urban Rent Control Rules, l973, and was, therefore, liable to be rejected. In support of the submission it is pointed out that the petition does not contain any verification clause and is not accompanied by a plan of the premises nor does is contain the information required at Items 11, 12, 13 and 14 of the statutory form. Now it appears that the eviction petition was filed on November 2, 1973. while the Rules, and with them the statutory form, came into force on December 31, 1973. In the circumstances, the petition cannot be regarded as defective on the ground that it does not accord with the statutory form. Moreover, it has not been shown by the tenant that the essential requirements set out in the relevant provisions of the Act itself are not satisfied by the petition. Nor has it been established that any omission or deficiency in the petition has prejudiced the tenant in his defence. There is no suggestion before me that the tenant was taken by surprise and prejudiced in his defence by the form in which the petition had been framed. The first contention is rejected.

The second contention raised on behalf of the tenant is that the need expressed by the landlord in his petition suggested the requirement of larger accommodation than was actually occupied by this tenant, therefore, it was apparent that the prayer for the accommodation in the tenant''s possession was made marafide. Both the Controller and the Appellate Authority have concurrently found that the accommodation was required bona fide by the landlord. The aspect of the matter now placed before me does not appear to have been placed before either the Controller or the Appellate Authority, and I am not inclined to allow it to be made the basis of a submission in this Court for the first time. A Petitioner is not entitled to invoke the revisional jurisdiction of the High Court u/s 21 of the Act and invite a finding of fact on a point on which such finding was never invited from the Controller or the Appellate Authority. The only exception to this rule lies where the ab initio jurisdiction of the tribunal is challenged.

It is also urged for the tenant that the eviction petition had been made malafide for the reason that the accommodation was required by the landlord for letting it out at a higher rent and not for his own occupation. This plea also, it seems, was not pressed before the Appellate Authority and therefore I do not see why it should be allowed to be raised at this stage.

The next contention on behalf of the tenant is that Section 14(3)(a)(iii) of the Act entitles the landlord to the possession of a building if it is required bonafide by him for dairying out repairs which cannot be carried out without the building being vacated. It is pointed out that the expression "bonafide" has not been used in this connection by the landlord in the eviction petition nor has it been incorporated in the relevant issued framed by the Controller. To my mind, the contention is misconceived. Paragraph 7 of the eviction petition does mention that the landlord bonafide requires the premises for carrying out repairs. It is true that the relevant issue framed on the point by the Controller does not include the word ''bonafide'', but no grievance was made of that omission by the tenant before the Controller or even thereafter in appeal before the Appellate Authority. In any caveat, the evidence on the record amply demonstrates that the accommodation occupied by the tenant was in fact bonafide required by the landlord for carrying out repairs which could not be effected without y the accommodation being vacated. The controller has observed that in view of the opinion expressed by the engineer, Susjit Singh, it can safely be held that the Petitioners requires the building in dispute for carrying Madhu Malhotra v. The Himachal Pradesh University out the repairs which cannot be so carried out without getting the premistes vacated.'' There is also nothing to show that in appeal before the Appellate-Authority the tenant ever specifically complained that the element of bona-fides had not been considered by the Controller. Nor does it apper that that Appellate Authority was pressed to give a finding on the point whether the accommodation was required bonatide.

Finally, learned Counsel for the tenant points out that neither the Controller nor the Appellate Authority has found that the particular accommodation occupied by the tenant, as distinguished from the entire building generally, was required for carrying out repairs. This aspect of the matter was also never placed before the Controller or the Appellate Authority, and they were not required to apply their mind to it in my opinion, a new aspect of the case such as this which calls for findings of fact for the first time ought not be allowed to be raised in a revision petition.

On behalf of the landlord it is submitted that the finding of the Appellate Authority that the tenant was not in arrears of rent is incorrect. It seems unnecessary to consider this submission when the revision petition fails otherwise on its merits.

The revision petition is dismissed with costs. However, three weeks are allowed to the tenant to vacate the premises in question.