H.N. Bhasin vs Chamba Mal
1970 Latest Caselaw 85 Del

JUDGMENT

M.R.A. Ansari

(1) The respondent herein is the owner of a building known as''Narain Bhawan" in Simla and the petitioner herein as a tenant of a portion of the said building. The respondent filEd a petition before the Rent Controller. Simla for the eviction of the tenant under section 13 of the East Punjab Urban Rent Restriction Act, Iii of 1949 (hereinafter referred to as the Act). According to the averments made in the said petition the landlord was in occupation of one main room, one room under the attic plus Kitchen, cum-bath and a very small coal godown and that this accommodation was too inadequate for the requirments of his family which consisted of himself, his wife, one son studying in the Higher Secondary Class one daughter studying . in the First Primary Class and another daughter who was married recently but who has to stay with him for some more time. The respondent had requested the petitioner to vacate the premises in hkis occupation but the latter had declined to do so. In his reply the petitioner herein alleged that in addition to the accommodation mention by the respondent he was also in occupation of four rooms along with his father and that the application was mala fide and filed with a view to force the petitioner to pay enhanced rent The learned Rent Controller framed the following issuei:- "(1)Whether the applicant bona fide requires the premises in dispute for his own use ? (IA) Whether the tenancy was validly terminated before the filing of this petition ? If not its effect ? (3) Relief."

(2) The respondent examined himself as AW-1. in addition to saying that the present accommodation was insufficient for his purpose he also stated that he was not in occupation of any other accommodation in Simla and also that he had never parted with possession of any residential accommodation within the mimic pal limit of Simla. The petitioner herein examined himself as RW-2 and also another witness RW-1. In his evidence the petitioner reiterated that the respondent was in occupation of four more rooms along with his father.IJJTIS RW-1 also stated like wise.

(3) On a consideration of this evidence the learned Rent Controller held on issue No. 1 that the respondent herein had sufficient accommodation for his requirements. He also held on issue No. 2 there was no valid notice under section 16 of the Transfer of Property Act. He, therefore, dismissed the petition filed by the respondent.

(4) Against this order of the learned Rent Controller the respondent herein preferred an appeal to the Appellate Authority and the latter disagreed with the findings of the learned Rent Controller on both the issues and held, firstly, that the respondent herein bona fide required the premises for his own occupation and also that a valid notice under section 106 of the Transfer of Property Act had been given to the petitioner. He, therefore, set aside the order of the Rent Controller directing the eviction of the petitioner but gave him two months time to vacate the premises. Against the order of the learned Appellant Authority the petitioner has preferred the present petition.

(5) The only contention raised before me by the learned counsel for the petitioner is that the respondent herein did not satisfy the requirements of s. 13(3)(i) of the Act and that he was not entitled to the portion of the building which was occupied by the petitioner. According to the learned counsel the landlord must prove not only that he required the portion in dispute for his own occupation but also(l) that he was not occupying another residential building in the urban area concerned and (2) that he had not vacated such a building without sufficient cause after the commencement of this Act in the said urban area. The learned counsel pointed out that in his application filed before the Rent Controller under section 13 of the Act the respondent had not even pleaded that he was not occupying another residential building or that he had not vacated such a building without sufficient cause and also that there was no find' ing either by the Rent Controller or the Appellate Authority on these two points.

(6) In support of his contention the learned counsel for the petitioner has relied upon in a Full Bench decision of the Punjab High Court in M/s Sant Ram Das v. Karam 'Chand Manual Ram, and also on the decision of the Supreme Court in Attar Singh v. Inder Kumar. In. the decision of the Punjab High Court it was held as follows : - "NO,a landlord under sub-section 3 of section 13 apply to the Controller for ejectment of the tenant from a residential building on fulfillment of three conditions laid. in sub clauses (a.) (b) and (c) of sub-paragraph (i), these being that the landlord requires the residential building for his own occupation, he is not occupying another residential building in the urban area concerned, and finally that he has not vacated such a building without sufficient cause after the commencement of the Act in the said urban area."

(7) The case before the Supreme Court was one under section 13(3) (a)(ii) of the Act relating to business premises but these provisions are similar to the provisions under section 13,(3)(a)(i) of the Act relatingto residential buildings. The Supreme Court laid down the following rule :- "TURNINGnow to sub-clause (c) we find that the landlord has not only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is not in possession of any other rented land for the purpose of his business in that urban area but also to prove that he had not vacated any rented land without sufficient cause after the commencement of the Act. Thus he has not only to prove that he is not in possession of any other rented land for his business but also to prove that he had not vacated any other rented land which he used principally for business without sufficient cause. For example even if the landlord is not in possession of any rented land for his business but had vacated other rented land which means land that he had taken for business without sufficient cause he would still not he entitled to ask for eviction of a tenant from his own rented land This again shows that if the landlord had been in possession of land for business principally and vacated it without sufficient cause he cannot ask for the eviction of a tenant from his own rented land on the ground that he requires it for his own use."

(8) The above two decisions do support the contention of the learned counsel for the petitioner and the respondent would not be entitled to possession of the building for his own occupation unless he satisfied the Controller not only that he required the building for his own occupation but also that he was not occupying another residential building in the urban area concerned and further that he had not vacated such a building without sufficient cause after the commencement of the Act in the said urban area. In this case the respondent his stated in his petition before the learned Controller either that he was not occupying any other residential building in Simla or that he had not vacated such a building without sufficient cause after the commencement of the Act There is also no finding either by the leaned Rent Controller or by the Appellate Authority on these two points.

(9) The learned counsel for the respondent however contends that in this evidence (AW-1) the respondent had stated that helie was not occupying any residential building in Simla and also that he had not vacated such a building without sufficient cause and that this portion of his evidence was not challenged by the petitioner in crossexamination or by independent evidence. But I am afraid that such a statement of the respondent in his evidence of satisfy the requirements of Section 13(3) (a) (i) of the Act. It is doubtful whether in the absence of specific pleadings by the respondent and in the absence of a specific issue en the point, the evidence of the respondent was at all admissible. No doubt the petitioner did not object to this portion of the evidence of the respondent. But under the circumstances it cannot be said that this portion of the evidence had gone unchallenged by the petitioner. In the absence of pleadings and also in the absence of a specific issue on the point, the Petitioner could not have expected the respondent to lead evidence on this point and he could not be expected to challenge such evidence either by cross-examination or by leading independent evidence. There are also no findings either by the Controller or by the Appellate Authority that the respondent has satisfied these requirements of Section 13(3) (a) (i) of the. Act. The order of the learned Appellate Authority irecting the petitioner to put the respondent in possession of the portion of building in dispute cannot, therefore, be sustained.

(10) Although the order of the learned Appellate Authority is unsustainable, the circumstances of the case do not justify the reject on of the respondent's claim altogether, I think it is just and fair that both the parties should be given an opportunity of putting forward thtir respective case on the requirements that have to be satisfied under Section 13 (3) (a) (i) of the Act, by amending their pleadings and by leading evidence. The order of the learned Appellate Authorit as well as that of the Rent Controller set aside and the case is remanded to the Rent Controller with a direction to dispose of the respondent's petition afresh in acccordance with law in the light of the observations made in this order. Therc will be Bo order as to Costs, in the present proceedings in this Court.