Dismissed

Daulat Ram Bhaikta v. Lakhwinder Singh

Himachal Pradesh HC22 Apr 2024CR/24/2023

Case brief

AI extract

What is this about?

Revision petition challenging eviction order based on landlords' bonafide personal requirement. Court affirmed lower authorities' finding that landlords genuinely needed the premises to accommodate their family and were facing imminent eviction themselves. Dismissed.

What did the court decide?

Petition dismissed; eviction order affirmed; no interference found with impugned orders.

Daulat Ram Bhaikta Vs Lakhwinder Singh — Landlord and Tenant | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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C.R. No. 24 of 2023
Reserved on: 02.04.2024
Decided on: 22.04.2024.

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__________________________________________________________ Daulat Ram Bhaikta ...Petitioner Versus Lakhwinder Singh …Respondent _________________________________________________________ Coram_

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The Hon'ble Mr. Justice Satyen Vaidya, Judge

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1 Whether approved for reporting? No ______________________________________________________ For the petitioner : Mr. D. N. Sharma, Advocate. For the respondent: Mr. Ashok Sood, Senior Advocate, with Mr. Khem Raj, Advocate.

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Satyen Vaidya, Judge

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By way of instant petition, petitioner has assailed judgment dated 07.12.2022 passed by learned Appellate Authority (III), Shimla, H.P. in Rent Appeal No. 3-S/14 of 2022 whereby the judgment dated 31.12.2021 passed by learned Rent Controller, Court No.1, Shimla, District Shimla, H.P. in Rent Petition No. 40-2 of 2014 has been affirmed. 2. The petitioner is a tenant in respect of residential premises known as “Set No. 4, 1^st Floor, House No.56,

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Murad Cottage, Sanjauli, Shimla-6” (for short, “premises”). The respondents are the landlords (for short, “landlords”).

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The landlords have succeeded in getting an order of eviction against the tenant in respect of the premises on the ground of personal bonafide requirement. The order of eviction passed by learned Rent Controller has also been affirmed by learned Appellate Authority.

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Brief facts necessary for adjudication of the petition are that the landlords approached learned Rent Controller, Shimla under Section 14 of the H.P. Urban Rent Control Act, 1987 (for short, “The Act”) seeking order of eviction against the tenant on the grounds of personal bonafide requirement and arrears of rent. It was alleged that the landlords themselves were occupying residential premises in Lakkar Bazar, area of Shimla and were facing an order of eviction in respect of said premises. The order of eviction against landlords in their tenanted premises at Lakkar Bazar is said to have been affirmed even by this Court. At the time of filing of eviction petition, it was alleged that the landlords were facing execution proceedings and were under the threat of being evicted from tenanted premises at any time. As per

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landlords, they were owners of building known as Morad Cottage having two storeyed. In the ground floor, two residential sets were already in occupation of different tenants. In first floor also, one set was in occupation of the tenant (petitioner). One two rooms residential set in first floor and one single room in ground floor was stated to be in possession of the landlords. It was alleged that the accommodation already in possession of the landlords in Morad Cottage was insufficient for their requirement keeping in view the size of the family. In the petition, the requirement of the rooms as will be available to the landlords are eviction of tenant, was also specified. It was further submitted that about two years prior to filing of the petition, one set in ground floor had been evicted by the earlier tenant and the same was let out by the landlord to one Sh. O. P. Sharma as at that time, there was no imminent danger of eviction of the landlords from their tenanted premises and in any case the premises under the ground floor would not have been suitable for the landlords as they were having accommodation of a vacant set in the first floor. The residential set in the possession of tenant (petitioner) was

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stated to be having common wall with the other set in the first floor which was in occupation of the landlord.

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The tenant contested the petition and denied the alleged requirement of landlords to be bonafide. It was alleged that the landlords intended to sell the property and for such reason required its vacant possession. As per tenant, even he was given offer to purchase the property, but since the quoted consideration was too high, the deal was not struck. It was further alleged that the landlords had earlier sold the property to a third person, but for some reasons, the sale deed was subsequently cancelled. As per tenant, the need of the landlord was not bonafide as no eviction was claimed against the other tenants.

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Learned Rent Controller framed the following

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issues:

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Whether the respondent is in arrears of rent w.e.f. 01.01.2014 and is liable to be evicted from the suit premises? OPP

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2. Whether the suit premises is bonafidely required by the petitioners for their use and occupation by the entire family as residence? OPP

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3. Whether the petition is not maintainable in the present form? OPR

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4. Relief.

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Issue No.1 was answered as not pressed. Issue No.

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2 was answered in affirmative and issue No.3 was decided in negative. The eviction order was accordingly passed on the ground of personal bonafide requirement of the landlords. As regards, the ground of arrear of rent, the landlords did not press any adjudication on said issue as the entire rent stood paid to the landlords by the tenant during the pendency of the petition.

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I have heard learned counsel for the parties and have also gone through the records of the case carefully.

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This Court derives revisional powers from sub-Section

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(5) of Section 24 of the Act, which reads as under: -

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“(5) The High Court may, at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.”

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It is more than settled that in exercise of revisional

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powers under sub-section (5) of Section 24 of the Act, this Court will not sit as the Court of appeal. The scope of

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revisional powers, so conferred on this Court is restrictive. A Coordinate Bench of this Court in Kewal Krishan Sehgal & others vs. Rajeshwar Kumar & another , 2019 (1) Shimla Law Cases, 323 has expounded the scope of revisional powers of this Court under the Act as under: -

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“8. At the outset, the scope of revisional jurisdiction which Court can exercise must borne in mind, as the Constitution Bench of the Hon’ble Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78 laid down certain broad principles for exercise of revisional jurisdiction which can be summarized as under:

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(i) The term ‘propriety’ would imply something which is legal and proper.

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(ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority.

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(iii) Such power cannot be exercised as the cloak of an appeal in disguise.

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(iv) Issues raised in the original proceedings cannot be permitted to be reheard as an appellate Authority.

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(v) The expression “revision” is meant to convey the idea of much narrower expression than the one expressed by the expression “appeal”. The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of

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first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246.

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(vi) The meaning of the expression “legality and propriety” so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be “according to law”.

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(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below.

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(viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may have a different view thereupon.

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(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.

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(x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal.

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(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.

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(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence.”

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9. In the aforesaid decision, the Hon’ble Supreme Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the Hon’ble Supreme Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression “legality and propriety” provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. Finally the Hon’ble Supreme Court answered the reference by making the following observations:-

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“43. 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 reappreciation of the evidence, its

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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 as to 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 reappreciate or reassess 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

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be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers.”

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Reverting to the facts of this case, learned Rent Controller and learned Appellate Authority have concurrently held that the requirement of landlords for their personal bonafide use was established and for holding so, following facts have been held to have been proved:

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(i) The description of entire building known as “Murad Cottage” was correctly furnished by the landlords.

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(ii) Eviction order stood passed against the landlords in respect of the premises which they were occupying as tenants at Lakkar Bazar.

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(iii) Defence raised on behalf of the tenant with respect to intention of the landlords to sell the building was not sufficient to doubt the bona-fides of the landlords.

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(iv) Had the intention of landlords been to get the eviction of tenants for the purpose of selling the building, they would have filed similar proceedings against other tenants also.

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(v) With respect to the one premises in ground floor having become available to the landlords about two years prior to filing of the petition, it has been held that the said premise was not suitable to the

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landlords being on the ground floor, whereas, the landlords were having vacant possession of one residential set on first floor which was adjacent to the premises in question.

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The learned Rent Controller also analysed the projected requirement of landlords vis-à-vis the accommodation already held by them. Despite the fact that one of the landlords had died during the pendency of the proceedings, learned Rent Controller found the need of landlords to be genuine in respect of premises in question keeping in view the remaining members of the family which included landlord, his wife and three children. All the children were grown up and required a separate bedroom for themselves. One bedroom was required for landlord and his wife, one for guests and one room to be used as a drawing room.

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The findings of facts as recorded by learned Controller and learned Appellate Authority cannot be faulted with for the reasons as under:

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(a) The landlords examined Sh. B.C. Sharma as PW-1, who claimed himself to be a technical expert. This witness proved the existing building plans of ‘Murad Cottage’ as Exhibits PW-1/A and PW-1/B

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for ground and first floors, respectively. From these documents, the location and area in the occupation of tenants and in possession of the landlords can be clearly made out. There has been no rebuttal to this piece of evidence, and, therefore, reliance has rightly been placed thereon. From Exts.PW-1/A and PW-1/B, it is evident that the premises in question is on the first floor and another residential set available on the first floor is also in occupation of landlords. Thus, it is not unreasonable for the landlords to choose the premises in question for eviction as it will be more suitable to them to live on the same floor. One room in the ground floor is also shown to be in occupation of the landlords and it has been explained that the same will be utilised for the bedroom of the son of the landlords, who is of marriageable age.

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(b) The General Power of Attorney of landlords appeared in the witness box as PW-2 and she narrated the manner in which the entire accommodation after vacation of the tenant from premises in question would be utilised. The assertions to this effect again have not been seriously disputed. It was suggested to PW-2 that her children were residing at Chandigarh, which she categorically denied. The tenant has not taken

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any pains to bring on record any evidence to disprove the case of the landlords to above effect.

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(c) The reasons for non-occupation of a residential premises on the ground floor by one of the tenants about two years prior to filing of the petition and its letting out again by the landlords have also been well explained. According to landlords, the said premises would not have been useful for the reason as they had to make arrangements of living in two separate floors, whereas, by getting the possession of premises in question, they will be able to accommodate the entire family in one floor.

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(d) It has also been the case of landlords that at the stage of vacation of the premises on ground floor by the tenant, there was no imminent danger of their eviction from the tenanted premises at Lakkar Bazar and for such reason also they had not found it necessary to occupy the premises at that stage.

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(e) As noticed by learned Rent Controller and learned Appellate Authority, the factum of eviction order passed against landlords in respect of their tenanted premises and its having attained finality, had also been established. The landlords have proved on record the documents Ext. PX and Ext. PX-1 being the judgments passed by learned Rent Controller and learned Appellate Authority. Again,

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nothing contrary has been proved on record by the tenant. Since the landlords were under threat of eviction, their need to get the premises in question vacated cannot be said to be unreasonable.

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As regards, the defence of tenant that the landlords intended to sell the property and for such purpose eviction had been sought, does not also appeal to logic. The landlords would not have sought the eviction of one tenant only, if they had the intention to sell the property by getting it vacated. The fact that the landlords have got the possession of one residential set in ground floor and had again let the same out, also weighs against the hypothesis sought to be projected by the tenant. The fact that the landlords had earlier entered into a transaction of sale which was subsequently cancelled, also cannot stand against the landlords for the reasons that the landlords could always change their mind and being the owners of the property, had every right to deal with the property in the manner they liked.

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Thus, on analysis of material on record, I have not found any infirmity much less illegality or perversity in the

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findings recorded by learned Rent Controller and learned Appellate Authority.

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In light of facts as discussed above as also keeping in view the limited jurisdiction of this Court, no ground for interference is made out. The petition is accordingly dismissed, so also the pending miscellaneous application(s), if any.

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22^nd April, 2024 (Satyen Vaidya) (GR) Judge

Daulat Ram Bhaikta v. Lakhwinder Singh

Case brief

What is this about?

What did the court decide?

Daulat Ram Bhaikta v. Lakhwinder Singh

Case brief

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What did the court decide?

What the court decided

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