Himachal Pradesh High Court
Rajeev Sood vs Sh. Som Nath Chauchary) Was on 29 November, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA
ON THE 29th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL REVISION No.2 of 2020
Between:
1.RAJEEV SOOD, AGED
ABOUT 56 YEARS, S/O LATE
SH. OM PRAKASH SOOD, R/O
71, MIDDLE BAZAAR,
SHIMLA, H.P.
2. VIVEK SOOD, S/O LATE
SH. OM PRAKASH SOOD, R/O
71, MIDDLE BAZAAR,
SHIMLA, H.P.
....PETITIONERS.
(BY MS. SEEMA K. GULERIA, ADVOCATE)
AND
SOM NATH CHAUDHARY, S/O
SH. HARBANS LAL
CHAUDHARY, R/O
PURSHARTHI BASTI, BAZAR
WARD, BARA SHIMLA, H.P.
....RESPONDENT.
(RESPONDENT IS EX PARTE)
Whether approved for reporting?1 Yes
1
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2
Reserved on: 28.09.2021
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This revision petition coming on for pronouncement of judgment this day, the
Court passed the following:
JUDGMENT
The petitioners herein filed a petition under Section 24
(5) of the H.P. Urban Rent Control Act, 1987, against the
respondent/tenant, seeking his eviction on the ground of carrying
out reconstruction and rebuilding, which as per the petitioners
could not be carried out unless the Demised Premises were vacated
by the respondent.
2. The petition was resisted by the respondent, inter alia,
on the grounds of maintainability as well as the issue that no
document qua permission for reconstruction and rebuilding of the
Demised Premises was placed on record by the landlords.
3. The Demised Premises comprises of two rooms, kitchen,
common bath room and common toilet in second floor of Pursharthi
Basti, Bazar Ward, Bara Shimla, H.P.
4. On the basis of the pleadings of the parties, learned
Rent Controller framed the following issues:
"1. Whether the demised premises is in dilapidated
.
condition and is not fit for human habitation, as alleged?
OPA.
2. Whether the respondent is in arrears of rent qua the
demised premises, as alleged? OPA.
3. Whether the petition is not maintainable? OPR.
4. Whether the petitioners are estopped from filing the
present petition by way of their acts, deeds, omission,
commission and acquiescence? OPR.
5. Whether the petitioners have no cause of action to file
the present petition? OPR.
6. Whether the petition is bad for nonjoinder of
necessary parties? OPR.
7. Relief. "
5. On the basis of evidence led by the parties in support of
their respective contentions, the issues were answered as under:
"Issue No.1 : Yes.
Issue No.2 : Yes.
Issue No.3 : No.
Issue No.4 : No.
Issue No.5 : No.
Issue No.6 : No.
RELIEF : The petition is allowed as per
the operative portion of the
order".
6. The Rent Petition (i.e. Rent Petition No.1242 of 2014, titled
.
as Sh. Rajeev Sood & another Versus Sh. Som Nath Chauchary) was
allowed by the learned Rent Controller, vide order dated 31.10.2018
in the following terms:
"38. In view of my findings on the issues No.1,2, 3, 4, 5
and 6, the petition succeeds and the same is as such
allowed and the petitioners are held entitled to recover
the amount to the tune of Rs.8,47, 963/ as arrears of
rent at the rate of Rs.2500/ per month plus statutory
interest @ 9% per annum w.e.f. 01.01.2000 to
31.12.2011 and the amended interest @ 12% per annum
2.3.f. 01.01.2012 till today i.e. 31.10.2018 and the
respondent is directed to pay the aforesaid entire amount
of the rent within the period of 30 days from today i.e.
31.10.2018, the date of passing of this order to the
petitioners and failing which, the respondent shall
beliable to be evicted from the demised premises. Further,
it is held that the demised premises is bonafidely
required by the petitioners for the purpose of rebuilding
and reconstruction which cannot be carried out without
the demised premises being vacated by the respondent
and the demised premises has become unfit and unsafe
for human habitation. Consequently, the respondent is
directed to hand over and deliver vacant possession of
the demised premises i.e. two rooms, one kitchen and
bath room common toilet in Second Floor at Purcharthi
.
Basti, Bazar Ward, Bara Shimla, H.P. to the petitioners.
However, respondent shall have the right of reentry in
the reconstructed and rebuilt building to the extent of the
area in his tenancy. However, in view of the peculiar
facts and circumstances of the present case, the parties
are left to bear their own respective costs. A memo of
costs be prepared accordingly. The file after due
completion be consigned to the record room."
7. Feeling aggrieved, the tenant preferred an appeal before
the learned Appellate AuthorityII, Shimla, H.P., i.e. Rent Appeal
No.32S/113(b) of 2018, titled as Som Nath Chaudhary Versus Sh.
Rajeev Sood & another (decided on 16.08.2019), inter alia, on the
ground that learned Rent Controller had failed to frame material
issues arising out of the pleadings and nonframing of material
issues had prejudiced the rights of the appellant. According to the
appellant, there were no findings returned qua bonafide requirement
of the premises for the purpose of rebuilding and reconstruction on
account of nonframing of issues in this regard. As per the appellant,
there was no intention of the landlords to rebuild the premises
because no steps were taken by the landlords for sanction of the
map from the competent authority. It was further the contention of
the appellant that the learned Rent Controller had erred in returning
.
the findings on the basis of inadmissible evidence.
8. This appeal has been allowed by the learned Appellate
Court vide impugned judgment dated 16.08.2019 in the following
terms:
"18. As a result of my findings on point no.1 above, the
instant appeal is allowed. The impugned order of the
learned Rent Controller is setaside and the case is
remanded back to the learned court below with the
directions to frame proper issues on the ground of
eviction taken by the petitioners and after giving
opportunity of leading evidence by both the parties and
after hearing the parties to decide it afresh. The record of
court below be sent down forthwith along with an
authenticated copy of this judgment. The parties through
their counsel are directed to appear before the learned
court on 17.09.2019. The file after due completion be
consigned to the Record Room."
9. Feeling aggrieved, the landlords have filed this Revision
Petition.
10. As the respondenttenant did not appear before the
Court despite service, he has been proceeded against ex parte.
11. I have heard learned counsel for the petitioners and
.
have gone through the order passed by the learned Rent Controller
as well as the judgment passed by the learned Appellate Court.
12. While setting aside the order passed by the learned Rent
Controller, learned Appellate Court held that the learned Rent
Controller erred in mixing two grounds, i.e. whether the building
was unfit and unsafe for human habitation and whether it was
bonafidely required for rebuilding and reconstruction, which could
not be carried out without the premises being vacated by the tenant.
It held that the ingredients required to be proved to establish said
two grounds were different and therefore, if issue framed was that
the Demised Premises were not fit for human habitation then
eviction could not have been ordered on the ground of rebuilding
and reconstruction. Learned Appellate Court held that neither
proper issues were framed on these two counts because as per it, if
eviction was ordered on the ground of rebuilding and reconstruction
then bonafide of the petitioners was also required to be proved for
carrying out construction in the Demised Premises. On the basis of
these findings the order passed by the learned Rent Controller has
been set aside.
13. This Court is of the considered view that the reasoning
.
which has been assigned by the learned Appellate Court while
setting aside the order passed by the learned Rent Controller is not
sustainable in the eyes of law.
14. A perusal of the record demonstrates that in the
application filed under Section 14(2) of the H.P. Urban Rent Control
Act for eviction of the tenant, it was averred that the landlords were
the owners of the Demised Premises which had become unfit and
unsafe for human habitation and required imminent rebuilding and
reconstruction. It was specifically mentioned in the Rent Petition
that the Demised Premises were required by the landlords bonafidely
for carrying out reconstruction and rebuilding work which could not
be carried out unless the premises were vacated by the occupant of
the tenanted premises in the building.
15. The case of the landlords thus was categorical that the
Demised Premises were in a dilapidated condition and possession
thereof was required by the landlords bonafidely as reconstruction of
the premises could not be carried out unless the same stood vacated
by its occupant. It was in the backdrop of these pleadings as well as
the case put forth by the landlords, which was in the knowledge of
the tenant, that issue No.1 was framed to the effect as to whether
the Demised Premises was in a dilapidated condition and not fit for
.
human habitation.
16. Learned Appellate Court in fact has erred in not
appreciating that the plea of the Demised Premised being unsafe for
human habitation and thus were required for rebuilding and
reconstruction bonafidely were not distinct pleas which required
different ingredients to prove them. The plea so taken by the
landlords was inter dependent. Not only this, even the tenant had
taken a specific defence that the Demised Premises did not require
rebuilding and reconstruction nor was it bonafidely required by the
landlords for rebuilding and reconstruction.
17. The reasoning assigned in the order passed by the
learned Rent Controller as stand summed up in para32 onwards,
demonstrates that learned Rent Controller has in detail gone into the
issue as to whether the Demised Premises were in a dilapidated
condition and whether they were bonafidely required by the
landlords for the purpose of reconstruction.
18. Even otherwise, it is settled law that non framing of
issues is not fatal if the parties to the lis know the case of the
respective sides. In this case, it was a specific plea taken in the
Eviction Petition by the landlords that the Demised Premises were in
a dilapidated condition and eviction of the tenant was bonafidely
.
required for the purpose of reconstruction of the same. The tenant
refuted that the Demised Premises were in dilapidated condition and
the same were therefore required bonafidely by the landlords for the
purpose of reconstruction. The tenant in fact led evidence to justify
his stand. All these aspects of the matter have been ignored by the
19.
r to
learned Appellate Court while setting aside the wellreasoned order
passed by the learned Rent Controller.
Therefore, in these circumstances, as this Court is
convinced that the judgment passed by the learned Appellate Court
and reasoning assigned there while setting the order passed by the
learned Rent Controller are not sustainable in the eyes of law, this
petition is allowed by setting aside the judgment passed by the
learned Appellate AuthorityII, Shimla, H.P., in i.e. Rent Appeal
No.32S/113(b) of 2018, titled as Som Nath Chaudhary Versus
Sh. Rajeev Sood & another, decided on 16.08.2019 and by upholding
order 31.10.2018, passed by the learned Rent Controller, in Rent
Petition No.1242 of 2014, titled as Sh. Rajeev Sood & another
Versus Sh. Som Nath Chauchary.
20. The petition stands disposed of accordingly, so also
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pending miscellaneous applications, if any.
November 29, 2021 (Ajay Mohan Goel)
(rishi) Judge
r to
