Dayaldas Chawla vs Smt. Rubi Mohit Nathon
2022 Latest Caselaw 7457 Chatt

                                  1




                                                                 AFR
       HIGH COURT OF CHHATTISGARH, BILASPUR

                         WPC No. 4764 of 2022

   • Dayaldas Chawla S/o Late Govind Ram Aged About 75 Years
     Dayal Kirana Stores Resaipara, Infront Of Natthuji Jagtap School,
     West Dhamtari, District Dhamtari (C.G.)            ---- Petitioner

                               Versus

   • Smt. Rubi Mohit Nathon W/o Mohit Nathon Aged About 75 Years
     R/o Resaipara, In front Of Natthuji Jagtap School, West Dhamtari,
     District : Dhamtari, Chhattisgarh                ---- Respondent



     For Petitioner                   :   Shri Manoj Paranjpe,
                                                Advocate

     For Respondent                   :   Shri Sunil Sahu,
                                                Advocate


               Hon'ble Shri Justice Goutam Bhaduri

              Hon'ble Shri Justice N.K. Chandravanshi

                          Order on Board


Per Goutam Bhaduri, J.

12/12/2022

Heard.

1. The instant petition is filed against the order dated

17.10.2022 , passed by the C.G. Rent Control Tribunal, Raipur.

Learned Rent Control Tribunal by its order has affirmed the

ejectment order dated 10.02.2021, passed by the Rent Control

Authority, Dhamtari.

2. As per the case of the respondent (land-lord herein), she filed

an application for ejectment after service of notice under the C.G.

Rent Control Act, 2011( herein after referred to as 'Act of 2011')

stating that on a land owned by her, three shops were constructed

and one of the shop was let out to the petitioner (tenant herein)

on 23.12.2005. Subsequently, with the passage of time a notice

was served to the petitioner under Section 12 (2) Schedule 2

Clause 11 (b) (d) and (h) of Act of 2011 for vacating the shop

and since the tenant failed to vacate the shop after notice, an

application was preferred before the Rent Control Authority,

Dhamtari and ejectment order was passed. Thereafter, an appeal

was filed by the petitioner herein (tenant) before the learned Rent

Control Tribunal and learned Rent Control Tribunal, Raipur by

its order dated 17.10.2022 has affirmed the said order of

ejectment . The tenant being aggrieved by such order has

preferred the present petition.

3. Learned counsel for the petitioner submits that learned Rent

Control Authority while passing the order of ejectment has not

framed the issues and without framing the issues the lis has been

adjudicated. He further submits that an application was filed for

framing of the issues, but the same was also rejected. He further

submits that apart from the grounds stated under clause 11 (h) of

Schedule 2 of Act of 2011, the petition was filed by the landlord

on the ground that tenant has caused substantial damage to the

accommodation as enumerated under clause 11 (b) of Schedule 2

and has become social nuisance as per clause 11 (d) of Schedule

2 of Act of 2011, therefore, 6 months notice was mandatory but

before that the petition was filed. He further submits that with

respect to the other two shops the respondent (land-lord) got

them vacated and further let it out to other tenants at higher

prices. He further submits that it would also effect the need

projected by the respondent. He further submits that when this

issue was placed before the learned Rent Control Authority with

the proof of such fact, the same was dismissed without any

application of mind. Consequently, there has been failure in

exercise of jurisdiction by the Rent Control Authority and Rent

Control Tribunal and the order of ejectment requires interference

by this Court.

4. Per contra, learned counsel for the respondent submits that in

the given case before the Rent Control Authority, specific issue

was not required to be framed and parties adduced their evidence

knowing full well the subject on which they are litigating. He

further submits that the notice of 6 months is not required in this

case for the reason that the respondent (land-lord) is a senior

citizen, therefore only one month notice would be required as per

Section 12 (2) Schedule 2 clause 11 (h) of the Act of 2011,

therefore, the order passed is well merited and do not call for any

interference.

5. We have heard learned counsel for the parties, perused the

records and pleadings.

6. Since the ejectment was sought for on the grounds mentioned

in Section 12 (2) Schedule 2 clause 11 (b) (d) (h) of the Act of

2011, it would be relevant to reproduced the same. Clause 11 (b)

(d) (h) of Schedule 2 of Section 12 (2) is reproduced

hereinafter :-

11. Right to seek from the Rent Controller eviction of the tenant on the following grounds:-

(a) XXX

(b) If the tenant causes, or allows to be caused, substantial damage to the accommodation, for any reason whatsoever.

(c) If the tenant uses the accommodation for purpose(s) other than that for which it was leased out.

(d) If the tenant becomes a social nuisance.

(e) XXX

(f) XXX

(g) XXX

(h) On 6 months notice to the tenant in writing, without

any obligation to assign any reason, but on the condition that the accommodation will not be leased out at a higher rent for atleast 12 months thereafter:

Provided, however, that in case of the following special categories of landlords and/ or their spouse desiring the accommodation back for own use, the period of notice shall be one month: current or retired government servants, widows, personnel of the armed forces, person coming to physical or mental handicap, and senior citizens (above the age of 65 years).

7. Perusal of the records would show that after the evidence of

the parties was completed, the application was filed by the

petitioner for framing of the issues under Order 14 Rule 1 of the

CPC. The same was rejected by order dated 05.08.2020.

8. The Co-ordinate bench of this Court in the matter of Santosh

Kumar Nishad Vs. State of C.G. and Ors. reported in 2016 SCC

OnLine Chh 2160 : AIR 2016 Chh 164 adjudicated the issue

when exception can be carved out and effect of non framing of

the issues and the Court reiterated the principle laid down by the

Hon'ble Supreme Court reported in the case of Arikala Narasa

Reddy Vs. Venkata Ram Reddy Reddygari reported in AIR 2014

SCC 1290 at para 13 and 14 .

9. Para's 13 and 14 of the Arikala Narasa Reddy (Supra) is

quoted below:-

' 13. In 2011 (11) SCC 786 (Kalyan Singh Chouhan v.

C.P. Joshi), the main dispute was whether one lady had

cast her vote twice under two different names and whether

the tendered votes cast in the election must be counted

and whether six votes polled against the tendered votes

must be rejected. In that case also margin of victory was

only one vote. A prayer was made to summon certain

documents with regard to the tendered votes. This prayer

was rejected on the ground that these facts were not

pleaded and no issue had been framed in respect of those

tendered votes. An appeal was filed before the Apex Court

wherein the elected candidate urged that the election

petition has to be adjudicated strictly adhering to the

statutory provisions and the Court cannot permit a party

to lead evidence unless an issue has been framed on the

controversy and an issue cannot be framed unless there

are actual pleadings in respect thereof. We are not

concerned with the second part because there is no

allegation in the present case that the pleadings are

lacking material particulars. The only allegation is that no

issue was framed. With regard to non-framing of issues,

the Apex Court in the said judgment held as follows:-

"25. The object of framing issues is to ascertain/shorten

the area of dispute and pinpoint the points required to be

determined by the court. The issues are framed so that no

party at the trial is taken by surprise. It is the issues fixed

and not the pleadings that guide the parties in the matter

of adducing evidence.

XXX XXX XXX

27. There may be an exceptional case wherein the parties

proceed to trial fully knowing the rival case and lead all

the evidence not only in support of their contentions but

in refutation thereof by the other side. In such an

eventuality, absence of an issue would not be fatal and it

would not be permissible for a party to submit that there

has been a mistrial and the proceedings stood vitiated."

14.This view has been reiterated by the Apex Court in

2014 (5) SCC 312 (Arikala Narasa Reddy v. Venkata Ram

Reddy Reddygari &Another) as follows :

"16. There may be an exceptional case where the parties

proceed to trial fully knowing the rival case and lead all

the evidence not only in support of their contentions but

in refutation of the case set up by the other side. Only in

such circumstances, absence of an issue may not be fatal

and a party may not be permitted to submit that there has

been a mistrial and the proceedings stood vitiated."

10. Therefore, by applying the aforesaid principles,

factually no dispute arises that the parties knowing full well the

rival claims went into for adjudication and no prejudice was

caused as the issue was confined to a limited extent. Therefore,

the order which was passed by the learned Rent Control

Authority on 05.08.2020, that the application was filed after the

parties closed their evidence appears to be justified for the

reason no prejudice was caused to the either parties. Now with

respect to the issuance of notice in accordance with Section 12

(2) Schedule 2 clause 11 (h) of the Act of 2011, it states that "

when the accommodation is sought for own use by the land-lord

who belong to special category the period of notice is to be of 1

month and the special category includes senior citizens also who

are aged above 65 years ". It is not in dispute that the land-lord

and the tenant both are more than 65 years of age, therefore,

when the notice has been served invoking the clause 11 (h) it

would envelope the other cause also i.e. a senior citizen has

served the notice seeking eviction on the ground supra.

11. Another submission has been made that documents

have been placed on record to show that the land-lord has got the

shops vacated in the adjacent area and let it out to third party on a

higher rent. The Section 12 (2) Schedule 2 clause 11 (h) of the

Act 2011 purports that the notice to the tenant in writing, without

any obligation to assign any reason to get the premises vacate

would be maintainable but on the condition that the

accommodation is not let out for higher rent for a period of 12

months thereafter. Therefore, the respondent (land-lord) would be

obliged to follow such mandate. The application filed by the

land-lord would show that categorical statement was made that

for 12 months, she would not let out the shop for higher rate after

getting it vacated. Having regard to such statement made in the

application the conditions of Section 12 (2) Schedule 2 clause 11

(h) have been satisfied. Therefore, in our view after going

through entire records, pleadings and evidence, we do not find

any cause is made out for any interference. Further, taking into

the fact that tenant (petitioner) appears to be senior citizen

further 45 days from today is granted to him to vacate the shop.

12. In view of the above, the petition stands disposed off.

                Sd/-                                                   Sd/-


   (Goutam Bhaduri)                              (N.K. Chandravanshi )

              Judge                                            Judge




Jyoti





                               Headlines

In an exceptional case when parties proceed to trial knowing the rival case and lead all evidence, absence of issue may not be fatal.

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