Suresh Kumar vs Anil Kumar

Vivek Singh Thakur, J

Present revision petition has been preferred by the petitioner/tenant invoking Section 24 (5) of H.P. Urban Rent Control Act, 1987 (in short ‘Rent Act’), against judgment dated 28.5.2019 passed by the Appellate Authority-III, Solan, District Solan in Rent Appeal No. 10ADJ-II/14 of 2018, titled Suresh Kumar vs. Anil Kumar, whereby order dated 12.11.2018 passed by the Rent Controller-II, Solan in Rent Petition No.1/2 of 2014 titled as Birma Devi vs. Suresh Kumar, has been affirmed by holding that premises was required by the landlord for bonafie requirement for his personal use and occupation so as to settle his son and start new business and accordingly tenant has been directed to handover vacant possession of demised premises to the landlord.

Parties to the lis, herein-after for convenience, shall be referred as per their status before the Rent Controller i.e. landlord and tenant.

I have heard learned counsel for parties and have gone through record made available.

On 6.1.2014, landlord filed a petition under Section 14 of the Rent Act for eviction of tenant from the premises in reference on the ground that tenant had not paid rent w.e.f. 01. 9.2012 and premises was required by landlord for bonafide need for his 45 years old son, having his wife and child, who after doing M.A. (Economics) was an unemployed youth, to commence his own business of General Daily Needs and Computer Application Courses etc. at commercial place.

It was claimed by landlord that she had no other building in her occupation for the last more than 10 years and she had also not vacated any such premises for the last 10 years in the urban area concerned prior to filing of application/Rent Petition, her son had no building in his own occupation in urban area concerned since last more than 20 years and he had also not vacated any such building during the last 20 years prior to filing of application and premises in question was bonafide required by landlord for need of her son, as explained above, and that the premises was most suitable for the purpose of starting the commercial activities by her son on the Mall Road, Solan.

Reply to Rent Petition was filed by tenant by stating therein that the tenant was having two shops in his possession i.e. Shop No.1 and Shop No.5 on the same row in the basement floor of the building and he was paying the rent jointly per month after increase w.e.f. 1.1.2014 with claim that tenant was paying rent regularly even after filing the Rent Petition for eviction of tenant. Claim of bonafide requirement for her son was also denied with further denial of plea of landlord that petitioner had no other building in her occupation for the last 10 years and prior to filing of petition, she had not vacated any such premises for the last 10 years in the urban area concerned. Claim of landlord was denied with further submission that landlord and her son were doing the business of Photostate under the name and style of ‘Thakur Photostate’ and thereafter, other two shops. i.e. Shop No.3 and 4, had been rented out to Himachal Book Depot and against them, no petition for eviction has been filed. Whereas, first floor of building was rented out to Indian Overseas Bank and 3rd and 4th floors of building are in self occupation of landlord and her son and they are also running the hotel in the name and style of ‘Thakur Hotel’ which is commercial in nature and construction work in 5th storey was in progress and further that for commercial activities instead of basement floor, first floor of building was more suitable. It has been contended that landlord had concealed the material facts and particulars and thus, was not entitled for eviction.

After completion of pleadings, issues were framed and evidence was led by parties.

Considering the material on record, the Rent Controller had passed impugned eviction order against the tenant.

Taking into consideration the various pronouncements of the Supreme Court and this High Court, the Appellate Authority had dismissed the appeal preferred by tenant.

During pendency of eviction petition, landlord Birma Devi expired. Whereupon her two sons Anil Kumar and Naresh Kumar were brought on record as landlords/petitioners before the Rent Controller.

During pendency of present petition, Anil Kumar also expired and was substituted through his wife Anjana Thakur and children Saksham Thakur (son) and Vanshika Thakur (daughter).

Present petition has been preferred mainly on the grounds that landlord was having other shops and building and out of which, one shop was rented out by landlord within three years before filing the rent eviction petition, material facts with respect to ownership and possession of other alternative buildings has not been disclosed and landlord was not having any diploma as well as experience etc. required for running Computer Application Course.

It has also been canvassed by learned counsel for tenant that the bonafide requirement, after death of Anil for whose benefit, the premises in reference was required for doing commercial activities i.e. opening of General Daily Needs shop and starting Computer Application Course does not survive and on this sole ground, impugned order and judgment passed by Courts below deserve to be set aside as in the changed circumstances, cause of action for maintaining the rent petition does not survive.

To substantiate the plea put-forth by learned counsel for tenant, reliance has been placed on pronouncements of this High Court in Vijay Kapoor vs. Maya Ram reported in AIR 1998 HP 15; Tara Chand Sharma vs. Baij Nath reported in 1994(Suppl.) Sim.L.C.87 and pronouncements of the Apex Court in Seshambal (dead) through LRs. vs. Chelur Corporation Chelur Building and others reported in (2010)3 SCC 470; Baba Kashinath Bhinge vs. Samast Lingayat Gavali reported in (1994) Supp.3 SCC 698; and Hasmat Rai vs Raghunath Prasad reported in (1981)3 SCC 103.

Learned counsel for tenant has submitted that existence of other premises and running of Photostate shop by landlord has been admitted in their statements by the landlord and her witnesses and, therefore, it is an admitted fact that landlord was having alternative premises in the same building and as the facts admitted need not be proved for admission by landlord in this regard, tenant was not required to lead any evidence to prove the admitted facts. To substantiate this plea, reliance has been placed on judgment of the Apex Court in Avtar Singh vs. Gurdial Singh reported in (2006) 12 SCC 552.

Learned counsel for the landlord has justified the impugned eviction order and judgment, by referring reasons assigned by the Rent Controller and Appellate Authority for passing the same.

Learned counsel for landlord has submitted that death of landlord or her son Anil Kumar does not have impact on the bonafide need as the wife and children of deceased Anil Kumar are there for whose settlement the premises in reference is required bonafide by surviving landlords. To substantiate this plea, reliance has been placed on Shakuntala Bai vs. Narayan Das reported in (2004) 5 SCC 772 : (2004) 1 RCR (Rent) 580. 18. The Apex Court in Rukmini Amma Saradamma vs. Kallyani Sulochana and others, reported in (1993) 1 SCC 499, referring its earlier pronouncement in Rai Chand Jain vs. Chandra Kanta Khosla, (1991) 1 SCC 422, with respect to scope of revisional power under Section 20 of Kerala Rent Control Act, which is similar to H.P. Rent Act, has observed that notwithstanding the fact that Section 20 of the Act conferring revisional jurisdiction of the High Court is widely worded, such a jurisdiction cannot be converted into an appellate jurisdiction.

With respect to scope of jurisdiction and revisional jurisdiction and the extent of power which High Court can exercise in a Revision filed under Section 24(5) of the Rent Act, Five Judges’ Constitution Bench of Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78, has observed as under:-

“28. Before we consider the matter further to find out the scope and extent of revisional jurisdiction under the above three Rent Control Acts, a quick observation about the 'appellate jurisdiction' and 'revisional jurisdiction' is necessary. Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not vice-versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is co-extensive with that of the trial court. Ordinarily, appellate jurisdiction involves re-hearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In other words, revision is not continuation of suit or of original proceeding. When the aid of revisional court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute. It goes without saying that if a revision is provided against an order passed by the tribunal/appellate authority, the decision of the revisional court is the operative decision in law. In our view, as regards the extent of appellate or revisional jurisdiction, much would, however, depend on the language employed by the statute conferring appellate jurisdiction and revisional jurisdiction.

With the above general observations, we shall now endeavour to determine the extent, scope, ambit and meaning of the terms "legality or propriety", "regularity, correctness, legality or propriety" and "legality, regularity or propriety" which are used in three Rent Control Acts under consideration.

29.1. The ordinary meaning of the word 'legality' is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal.

29.2. The term 'propriety' means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy.

29.3. The terms 'correctness' and 'propriety' ordinarily convey the same meaning, that is, something which is legal and proper. In its ordinary meaning and substance, 'correctness' is compounded of 'legality' and 'propriety' and that which is legal and proper is 'correct'.

29.4. The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play.

We have already noted in the earlier part of the judgment that although there is some difference in the language employed by the three Rent Control Acts under consideration which provide for revisional jurisdiction but, in our view, the revisional power of the High Court under these Acts is substantially similar and broadly such power has the same scope save and except the power to invoke revisional jurisdiction suo motu unless so provided expressly. None of these statutes confers on revisional authority the power as wide as that of appellate court or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. The provision under consideration does not permit the High Court to invoke the revisional jurisdiction as the cloak of an appeal in disguise. Revision does not lie under these provisions to bring the orders of the Trial Court/Rent Controller and Appellate Court/Appellate Authority for re-hearing of the issues raised in the original proceedings.

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We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re- appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.”

Present Revision Petition is to be decided keeping in view the aforesaid exposition of law with respect to scope of revisional jurisdiction of this Court.

It is also settled that landlord has a right to put his property for better use and to obtain higher income and in case of having more than one property or other property than the premises subject matter of rent petition, he is the best person to decide that which of the property is better located having possible potential for his bonafide requirement including the augmentation of income.

It is also settled that landlord is also entitled to enjoy his property by putting it to its fullest use and beneficial to him.

Supreme Court in Pasupuleti Venkateswarlu vs the Motor & General Traders, (1975) 1 SCC 770, has held as under:-

6 “… … …It is basic to our processual jurisprudence that the right to relief must be judged to exist as on date a suitor institutes the legal proceeding… … …”

Supreme Court in Rajeshwar and others vs. Jot Ram and another, (1976) 1 SCC 194: AIR 1976 SC 49, referring Pasupuleti Venkateswarlu’s case; and Bhajan Lal vs. State of Punjab, (1971) 1 SCC 34; has held as under:-

“6. The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it. But because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late. But these higher Courts pronounce upon the rights of parties as the facts stood when the first Court was first approached. The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one. Actus curiae neminem gravabit(1). Precedential support invoked by the appellant's counsel also lets him down provided we scan the fact situation in each of those cases and the legal propositions therein laid down.

The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact-situations or legal positions and drive parties to fresh litigation whereas relief can be given right here. The broad principle, so stated, strikes a chord of sympathy in a court of good conscience. But a seeming virtue may prove a treacherous vice unless judicial perspicacity, founded on well-grounded- rules, studies the plan of the statute, its provisions regarding subsequent changes and the possible damage to the social programme of the measure if later events are allowed to unsettle speedy accomplishment of a re-structuring of the land system which is the soul of this which enactment. No processual equity can be permitted to sabotage a cherished reform, nor individual hardship thwart social justice. This wider perspective explains the rulings cited on both sides and the law of subsequent events on pending actions.

In P. Venkateswarlu v. Motor & General Traders (2) this Court dealt with the adjectival activism relating to post institution circumstances Two propositions were laid down. Firstly, it was held that 'it is basic to our processual jurisprudence that the right to relief -must be judged to exist as on the date a suitor institutes the legal proceeding'. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he Is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Court's procedural delays cannot deprive him of legal justice or rights crystallized in the initial cause of action. This position finds support in Bhajan Lal v. State of Punjab, (1971) 1 SCC 34.”

In Shantilal Thakordas vs. Chimanlal Maganlal Telwala reported in 1976 4 SCC 417 a larger Bench of the Supreme Court overruling its earlier decision rendered in Phul Rani vs. Naubat Rai Ahluwalia reported in (1973)1 SCC 688 has held that after death of original landlord, senior member of his family takes his place and is well competent to continue the suit for eviction in his occupation and occupation of other members of the family. A similar view was taken by the Apex Court in Shakuntla Bai and others vs Narayan Dass and others reported in (2004)1 RCR (Rent) 580:(2004)5 SCC 772.

In State of U.P. and others vs. Harish Chandra and others, (1996) 9 SCC 309, Supreme Court has observed as under:-

“… … …Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition… … …”

The Supreme Court in Kamleshwar Prasad vs. Pradumanju Agarwal reported in (1997)4 SCC 413 has held that need of landlord for premises in question must exist on the date of application for eviction which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom.

In Gaya Prasad vs. Pradeep Srivastava reported in (2001)2 SCC 604 it has been held by the Supreme Court that crucial date for deciding as to the bonafides of requirements of landlord is the date of his application for eviction with observation that where landlord had instituted eviction proceedings for bonafide requirements of his son who wanted to start a clinic, but during continuation of litigation for a long period, son joined the Provinicial Medical Services and posted at different places, the said subsequent event of joining of service by son was not taken into consideration on the ground that crucial date was date of filing of eviction petition.

The Supreme Court in G.C. Kapoor vs. Nand Kumar Bhasin reported in (2002)1 SCC 610, has held that bonafide need of landlord has to be examined as on the date of institution of the proceedings and if a decree for eviction is passed and death of landlord occurs during pendency of appeal preferred by tenant, it will make no difference as his heirs are fully entitled to defend the estate.

The Apex Court, in its judgment in case D. Sasi Kumar Vs. Soundrarajan reported in (2019) 9 SCC 282, overruling the conclusion of the High Court that bonafide occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final adjudication of rights, has held that when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is declined it would only encourage the tenants to protract the litigation so as to defeat the right, and further that if as on the date of filing petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time lapse in the judicial process coming to an end. Referring its previous pronouncement in Gaya Prasad Vs. Pradeep Srivastava (2001) 2 SCC 604, it has been reiterated by the Apex Court that landlord should not be penalized for the slowness of the legal system and the crucial date for deciding the bona fide requirement of landlord is the date of application for eviction.

In the light of aforesaid pronouncements it is more than settled that right of landlords is to be adjudicated on the basis of date on which action is instituted by the landlords.

In present case, eviction petition was preferred in January, 2014 stating therein, in clear terms, that other premises owned and possessed by landlord were not suitable for starting business to settle his son Anil Kumar for making better use of her property.

In Vijay Kapoor’s case, relied upon by tenant, petition, preferred by landlord, on the ground of bonafide requirement of landlord having big family, was dismissed on the basis of subsequent events as subsequent to filing of the petition, three married sons of landlord had started living separately and size of family was decreased. In present case, after death of Anil Kumar, it is not a case that non-one survives to utilize the premises in reference by starting commercial activities for earning livelihood. Wife and children of Anil Kumar are there who require the premises in reference for earning livelihood and augmentation of their income.

In Baba Kashinath Bhinge’s case, it was held by the Apex Court that taking into consideration all subsequent events Court can mould the relief. In this regard, it would be relevant to observe that subsequent events may be of such nature which render the bonafide requirement non-existent. However, where legal heirs of person requiring the premises bonafide for his/ their personal use, there petition cannot be rendered infructuous. As held in judgment of the Apex Court, referred supra, the rights between the litigating parties are to be adjudicated on the basis of date of initiation of prosecution and for delay in judicial proceedings cannot be used to defeat the right of litigating parties. In present case, Anil Kumar for whose settlement premises was proposed to be get evicted has not expired during pendency of Rent Petition before Rent Controller but expired during pendency of present Revision Petition. At the time of passing of order by Rent Controller and judgment by Appellate Authority, he was very much alive. Therefore, this judgment is also of no help to tenant.

In Seshambal’s case landlord died during pendency of proceedings and his legal heirs were not dependent on the landlord, rather, were living separately and therefore, it was held that personal requirement of landlord for demised premises became extinct on death of landlord. Therefore, this judgment is also not applicable in given facts and circumstances of the present case.

In Tara Chand’s case it was observed by the Court that there must be insistence of the Court upon full and fair disclosure of material facts by the landlord in petition preferred before the Rent Controller seeking eviction of tenant from residential premises and landlord should not be given the option of getting an order in his favour by not disclosing the relevant facts fully in his petition. In present case, though it has been alleged by the tenant that there was no disclosure of alternative accommodation by landlord but at the same time, tenant has also failed to justify his claim by producing cogent and reliable evidence so as to enable the Court to construe that there was concealment of material facts by landlord. The admission of witnesses PW1 and PW2 with respect to occupying the Photostate shop which was claimed to be rented out within three years from the date of filing of petition clearly depicts that landlord was not intending to conceal any fact from the Court. Tenant has failed to prove that area, location and potential of the said Photostate shop was sufficient to open business of General Daily Needs and Courses for Computer Application. Therefore, this judgment is also of no help to tenant. Unless proved contrary, landlord is the best judge for deciding the best use and utilization of his property or part of the property.

The issue involved in Hasmat Rai’s case is all together different, which is not applicable in given facts and circumstances of the present case.

Plea of tenant that landlord was not having any diploma or experience for running the Computer education is also of no help to the tenant because for running a Computer Education Centre or Computer Application Course, diploma or experience in the said field would not be necessary as the landlord can act as a Manager to run such Courses/Education either Online education as available now-a-days without requirement of any Instructor or teacher. Otherwise such Centre or Courses can be managed to be run by hiring or collaborating with experts in the relevant field having diploma or experience for which landlord is not required to be in possession of such diploma or experience. Therefore, plea in this regard raised on behalf of tenant is also not sustainable.

I have gone through record as well as order passed by Rent Controller and judgment passed by the Appellate Authority. The order passed by Rent Controller is in consonance with settled law. Appellate Authority has also rightly appreciated the material on record and has dismissed the appeal preferred by tenant by taking into consideration various pronouncements of the Courts including this High Court as well as Apex Court i.e. Smt. J. Yoshoda vs. Smt. K. Shobha Rani reported in (2007) 3 SCJ 825; Swami Kishnanand Govindanand vs. M.D. Oswal Hosiery reported in (2002) 3 SCC 39; Nagubai Ammal and others vs. B. Shama Road and others reported in AIR 1956 SC 593; Civil Revision Petition No.91 of 1995 titled Vijay Kapoor vs. Maya Ram decided on 8.1.1997; Tara Chand Sharma vs. Baij Nath and others reported in 1994 (Supp) Sim.LC 87; and Pramod Kumar vs. Smt. Ishwari Devi Justa reported in 2012(2) Him.LR 1023.

Therefore, I do not find any illegality, irregularity or perversity in the impugned order as well as judgment.

Accordingly, the revision petition is dismissed with direction to the tenant to hand over the vacant possession of premises in reference on or before 30.9.2025 .