Sunday, 25 November 2018

Whether tenant is liable to be evicted on ground that tenanted building is in dilapidated condition?

 On the other hand his own case as emerged from the perusal of his own statement and that of PW2 the expert witness only the repair of the building is required. Such even is the case of the respondents-tenants also as according to them the repair of the building is due since long as the petitioner-landlord is not repairing the same annually. According to them, in case the repair of the building is required they are ready to cooperate with him.

14. Being so, the petitioner-landlord has failed to make out a case that the building is in dilapidated condition and that the same is bona fidely required for reconstruction and rebuilding. Learned Lower Appellate Court, as such, has erred in law and also on facts while holding to the contrary. Otherwise also, the judgment passed by learned lower Appellate Court based upon the happening of certain events i.e. the sanction of the plan by the competent authority and on consideration of the undertaking, if any, given by Shri M.P. Gupta aforesaid qua vacation of top floor of the building is not executable. As a matter of fact, petitioner-landlord if need be may carryout repairs of the building in question and for that the respondents-tenants are also ready and willing to cooperate with him.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CR No. 27 of 2006

Decided On: 26.07.2018

Mansa Devi  Vs. Krishan Pal Sood and Ors.

Hon'ble Judges/Coram:
Dharam Chand Chaudhary, J.

Citation: AIR 2018(NOC) 858 HP


1. Aggrieved by the judgment dated 12.1.2006 passed by learned Appellate Authority (F), Shimla in an appeal under Section 24 of the H.P. Urban Rent Control Act, 1987, hereinafter referred to as 'Act' in short, registered as CMA No. 18-S/14 of 05/03 the petitioners who are tenants, hereinafter referred to as respondents-tenants, have preferred the present revision petition with a prayer to quash and set aside the same.

2. The respondent, hereinafter referred to as petitioner-landlord, is the owner of house No. 97, Pursharthi Basti, Lower Bazar Shimla. One Shri Bahadur Singh, predecessor-in-interest of the respondents-tenants was inducted as tenant in ground floor comprising of two rooms, hereinafter referred to as the 'demised premises', of this building at the monthly rental of ` 96/-. Said Shri Bahadur Singh expired and on his death respondent-tenant Mansa Devi his widow occupied the demised premises. She allegedly is now residing in her village and the demised premises subleted by her to respondent No. 2. The respondents-tenants are also stated to be in arrears of rent as the rent has not been paid on and w.e.f. 1.1.1990. The demised premises being 120 years old is stated to be in dilapidated condition. The CGI sheets used to roof the building have outlived its life. The same even have got rotten at different places. The wooden work has also decayed and the foundation of the building is also damaged. The building, as such, is bona fidely required for reconstruction on old line without touching the other portion thereof. Therefore, in order to reconstruct the damaged portion of the building, the eviction of the respondents therefrom is required.

3. The respondents-tenants when put to notice have contested the petition on the grounds, inter alia, that the same is not maintainable, bad for non-joiner of necessary parties as well as lacking material particulars. Also that, even no enforceable cause of action exists in favour of the petitioner-landlord and he rather is estopped on account of his acts, deeds and conduct from filing the petition.

4. On merits, it is denied that respondent No. 1 had subleted the demised premises in favour of respondent No. 2. she rather is residing herself in the building in question. So far as respondent No. 2 she being the daughter-in-law of deceased Bahadur Singh, the original tenant, is residing in the demised premises since long. She being a family member as such is not a trespasser nor the demised premises can be said to be subleted to her by respondent No. 1. It is denied that they are in arrears of rent as according to them the rent @ ` 96/- per annum stands paid up to date. It is denied that the building is in dilapidated condition and as such, the same is bona fidely required by the petitioner-landlord for reconstruction. The same rather is stated to be in good condition. It is the petitioner-landlord who had failed to carry out annual repairs and, as such, minor repairs required in the building can only be carried out without getting the same vacated and even they are also ready and willing to cooperate with the repair works if started on the spot. The petition, as such, was sought to be dismissed.

5. On the pleadings of the parties, learned Rent Controller has framed the following issues:

1. Whether the respondent is in arrears of rent, if so, at what rate and what is the amount due? OPA

2. Whether the respondent No. 1 has sublet the premises to respondent No. 2? OPA

3. Whether the premises are bona fide required by the petitioner for reconstruction, which cannot be carried out without vacating the premises? OPA.

4. Whether the petition is not maintainable? OPR

5. Whether the petitioner has no cause of action? OPR

6. Whether the petition is bad for min-joinder and non-joinder of parties? OPR

7. Whether the petitioner is estopped from filing the petition as alleged? OPR.

8. Relief.

6. The parties on both sides have produced the evidence. On the completion of the record and hearing the parties on both sides, learned Rent Controller has decided issue No. 1 in favour of the petitioner-landlord, whereas the remaining issues i.e. issues No. 2 and 3 against him and issues No. 4 to 7 against the respondents. The petition, as such, was partly allowed and the eviction of the respondents-tenants ordered only on the ground of arrears of rent with further observation that in case the arrears towards rent are deposited by them within one month from that date, they will not be evicted therefrom.

7. In appeal learned Appellate Authority had concluded that the building is bona fidely required by the petitioner-landlord for reconstruction which cannot be done without evicting the respondents-tenants from the demises premises. However, the execution of the judgment to this effect was ordered subject to the sanction of plan by the competent authority and after taking into consideration the consent of Shri M.P. Gupta to whom top floor of the building was sold and as such was owner thereof.

8. The respondents-tenants have questioned the legality and validity of the judgment passed by learned Appellate Authority before this Court on the grounds, inter-alia, that the learned Lower Appellate Court has committed material irregularities and illegalities while deciding the appeal. The well reasoned judgment passed by learned Rent controller has been interfered without any justifiable reasons. The impugned judgment otherwise is stated to be not acceptable as neither the petitioner-landlord is having the sanctioned plan nor Mr. M.P. Gupta was examined to show his readiness and willingness to vacate the top floor of the building for the purpose of its reconstruction. The findings recorded by learned Appellate Court are stated to be vitiated.

9. On hearing Mr. G.D. Verma, Senior Advocate assisted by Mr. B.C. Verma, Advocate on behalf of the respondent-tenants, whereas Mr. K.D. Sood, Senior Advocate assisted by Mr. Rajnish K. Lall, Advocate on behalf of the landlord and also going through the entire record, the only point need determination in this petition is as to whether learned lower Appellate court was justified in holding that the building is bona fidely required for reconstruction or not.

10. The building is three storeyed in one side, whereas two storeyed in other side. The demised premises is in that side of the building in which it is three storeyed i.e. ground floor, first floor and top floor. The respondents-tenants are occupying the ground floor of the building whereas first floor is being used by the petitioner as his godown. The top floor has been sold by him to one Shri M.P. Gupta, who is residing there. The rebuilding of that portion of the building in which the demised premises situated is required.

11. In order to prove the age of the building besides the averments in the petition that the same is approximately 120 years of age, the petitioner while in the witness box as PW1 has also stated so. This part of his statement cannot be believed to be true because he has not constructed the same and rather purchased in the year 1989. The witness PW2 H.S. Bisht, he examined as an expert is retired Executive Engineer. As per his version, the building is approximately 100 years old. The material used in the building as per his version stands decayed and the same is now in dilapidated condition. The same according to him need repair which cannot be carried out without getting that portion of the building vacated. It is seen that not only the petitioner but the expert PW2 have stated only about the repairs of the building though they have stated about its reconstruction also but by way of passing reference in their respective statements.

12. Admittedly, Mr. M.P. Gupta, is the owner of top floor of that portion of the building, the repair/reconstruction whereof is required to be carried out. Admittedly the repair/reconstruction is only possible in case the building is got vacated. It is the own admission of the petitioner-landlord that no petition for vacation of the top floor by said Shri M.P. Gupta has been filed by him. True it is that in his examination-in-chief it is stated that said Shri M.P. Gupta during negotiation with him has assured that he will vacate the top floor in the event of reconstruction of that portion of the building. The own statement of the petitioner, however, cannot be believed as a gospel truth. As a matter of fact, had M.P. Gupta been in favour of vacation of the top floor of the building in his possession the petitioner-landlord would have produced him and examined as a witness in this petition. In such a situation, the petitioner-landlord has failed to make out a case that the building is in dilapidated condition and the same can only be restored to its good condition only by way of reconstruction.

13. On the other hand his own case as emerged from the perusal of his own statement and that of PW2 the expert witness only the repair of the building is required. Such even is the case of the respondents-tenants also as according to them the repair of the building is due since long as the petitioner-landlord is not repairing the same annually. According to them, in case the repair of the building is required they are ready to cooperate with him.

14. Being so, the petitioner-landlord has failed to make out a case that the building is in dilapidated condition and that the same is bona fidely required for reconstruction and rebuilding. Learned Lower Appellate Court, as such, has erred in law and also on facts while holding to the contrary. Otherwise also, the judgment passed by learned lower Appellate Court based upon the happening of certain events i.e. the sanction of the plan by the competent authority and on consideration of the undertaking, if any, given by Shri M.P. Gupta aforesaid qua vacation of top floor of the building is not executable. As a matter of fact, petitioner-landlord if need be may carryout repairs of the building in question and for that the respondents-tenants are also ready and willing to cooperate with him.

15. For all the reasons hereinabove, this petition is allowed. Consequently, the impugned judgment is quashed and set aside.

16. Pending application(s), if any, shall also stand disposed of.


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