Quashed

Vijay Kumar Gupta v. Dr Anil Kumar Gupta

Jharkhand HC7 Jan 2022C.R./2/2021

Case brief

AI extract

What is this about?

In a civil revision, a division bench reversed the single bench decision that rejected the petitioner-appellees application for leave to contest an eviction suit on grounds of personal necessity. The court held that the alleged landlord failed to establish status under the Act.

What did the court decide?

Impugned order dismissing leave petition dated 06.01.2021 was quashed. Authority directed to pass fresh order re-examining prima facie grounds.

Vijay Kumar Gupta Vs Dr Anil Kumar Gupta — Landlord and Tenant | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Civil Revision No. 02 of 2021

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Vijay Kumar Gupta

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Dharmendra Kumar Gupta @ Dharmendra Kumar

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Sanjay Kumar Gupta @ Sanjay Kumar

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Sudhir Kumar Gupta

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Amit Kumar Gupta @ Amit Kumar ….. Petitioners Versus

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Dr. Anil Kumar Gupta

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Manoj Kumar Gupta ….. Opposite Parties -----

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CORAM

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HON’BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioners: Mr. A. K. Sahani For O.P. No.1: Mr. Manjul Prasad, Sr. Adv. -----

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07/07.01.2022 The case is taken up through Video Conferencing.

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The present civil revision has been filed for quashing the order dated 06.01.2021 (Annexure-5 to the writ petition) passed by the House Rent Controller-cum-Sub-Divisional Officer, Sadar, Medininagar, Palamau in Eviction Suit No. 07 of 2020-21 whereby the petition filed by the petitioners and the O.P. No.2 under the provisions of Section 21(4) of the Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011 [hereinafter referred to as ‘the Act, 2011’] for granting leave of the Court to contest the said eviction suit has been rejected directing them to vacate the suit premises within a period of 15 days from the date of the order, failing which they are to be evicted from the suit premises by the administration.

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Learned counsel for the petitioners submits that the O.P. No.1 filed Eviction Suit No. 07 of 2020-21 under Section 19(1)(b) & (c) of the Act, 2011 before the House Rent Controller-cum-Sub-Divisional Officer, Sadar, Medininagar, Palamau against the petitioners and the O.P. No.2 seeking decree of eviction from the suit premises directing them to vacate the same. The petitioners along with the O.P. No.2 filed an application under Section 21(4) of the Act, 2011 seeking leave of the Court to contest the suit, however, the House Rent Controller-cum-Sub-Divisional Officer, Sadar, Medininagar, Palamau vide the impugned order dated 06.01.2021, rejected the leave petition on the ground

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that the O.P. No.1 had produced registered power of attorney executed in his favour by the original landlords, namely, Praveen Kumar Sahay & Pradip Kumar Sahay and as he was receiving rent since the year 2007, he would be the landlord as per the definition given in Section 2(g) of the Act, 2011, further that the landlord was trying to get the suit premises vacated on the ground of his personal necessity as well as for its repair, however, the petitioners and the O.P. No.2 were refusing to vacate the same. It is further submitted that so called personal necessity of the O.P. No.1 was an artificial necessity and not a bonafide one as he had other vacant accommodations in his possession. The House Rent Controller-cum-Sub-Divisional Officer, Sadar, Medininagar, Palamau failed to appreciate that the O.P. No.1 not being an owner of the suit premises could not have maintained the eviction suit as he did not come within the category of the landlord. Section 21(5) of the Act, 2011 provides that the House Rent Controller shall provide leave to the tenant to contest the suit, if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in Clauses (c) and (e) of sub-section (1) of Section 19 of the Act, 2011. Bare perusal of the leave petition filed by the petitioners and the O.P. No.2 would show that there are as many as 14 grounds to contest the said eviction suit. The petitioners have clearly made out a case that the O.P. No.1 has no locus standi to maintain the eviction suit on the ground of personal necessity by virtue of the alleged power of attorney. Learned counsel for the petitioners puts reliance on a judgment rendered by the Hon’ble Supreme Court in the case of M. M. Quasim Vs.

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Manohar Lal Sharma & Ors. reported in (1981) 3 SCC 36 wherein it has been held that a person claiming possession on the ground of his/her reasonable requirement of leased building must show that he/she is the landlord in the sense that he/she is the owner of the building and has a right to occupy the same in his/her own right. It is further submitted that the suit premises was owned by one Anjani Kumar Sahay, who died leaving behind his two sons, namely, Rajendra Prasad and Rudra Kumar Sahay. Thereafter, Rajendra Prasad

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became the Karta of the family and let out the suit premises to Hira Lal Gupta, the father of the petitioners and the O.P. No.2. Subsequently, due to old age, their father handed over the suit premises to one of his sons, namely, Sanjay Kumar (the petitioner No.3). On partition, the suit premises was allotted to Rudra Kumar Sahay, who executed “Kirayanama” in favour of the petitioner No.3 on 09.08.1995. After death of Rudra Kumar Sahay, his sons, namely, Praveen Kumar Sahay and Pradip Kumar Sahay realized the rent of the suit premises and subsequently they authorized the O.P. No.1 to realize the rent from the petitioners on their behalf w.e.f. May, 2007. The impugned order dated 06.01.2021 is thus vitiated due to non-compliance of the principles of natural justice as well as the statutory provisions of the Act, 2011. There is no relationship of landlord and tenant between the petitioners and the O.P. No.1. There is no justification on the part of the House Rent Controller-cum-SubDivisional Officer, Sadar, Medininagar, Palamau to pass an order of eviction only on the basis of an application filed by the O.P. No.1.

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On the contrary, learned Sr. counsel for the O.P. No.1 submits that the relationship of landlord and tenant has been created between the petitioners and the O.P. No.1 by virtue of the power of attorney dated 29.06.2007. Since the shop in question had materially deteriorated and the same was equally needed for use of the O.P. No.1, he requested the petitioners and the O.P. No.2 to vacate the said premises, however, they did not vacate the same. It is further submitted that the said eviction suit was filed invoking two different provisions i.e. Sections 19(1)(b) & 19(1)(c) of the Act, 2011. The present revision application is not maintainable as there is specific provision of appeal and revision under Sections 36 & 37 of the Act, 2011 before the Deputy Commissioner and the Divisional Commissioner respectively.

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Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner are aggrieved with the order dated 06.01.2021 passed by the House Rent Controller-cum-Sub-Divisional Officer, Sadar, Medininagar, Palamau whereby their application filed under Section 21(4)

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of the Act, 2011 seeking leave to contest the suit for eviction has been dismissed.

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I have perused Section 21(5) of the Act, 2011 which provides that the House Rent Controller shall grant leave to the tenant to contest the suit, if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in Clauses (c) and (e) of sub-section (1) of Section 19. Hence, the word “Shall” makes it mandatory for the House Rent Controller to allow the application of the tenant seeking leave to contest if, on prima facie observation of the leave application, the said authority finds that it contains sufficient grounds for rejection of the suit for eviction filed by the landlord.

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In the case of Vijay Kumar Ahluwalia & Ors. Vs. Bishan Chand Maheshwari & Anr. reported in (2017) 3 SCC 189 , the Hon’ble Supreme Court has held as under:-

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“14. In our considered opinion, the application filed by the appellants under Section 25-B(4) of the Act seeking leave to contest the eviction application of Respondent 1 should have been allowed to enable the appellants (tenant) to contest the eviction application on its merits. In other words, keeping in view the grounds raised by the appellants, we are of the opinion that a prima facie case was made out entitling the appellants to contest the application of Respondent 1 on merits. The grounds raised by the appellants, if accepted, could result in dismissal of Respondent 1's eviction application thereby disentitling him to claim the appellants' eviction from the suit shop.

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15. We find that the ground relating to proof of ownership of Respondent 1 over the suit shop, which was based on the alleged adoption deed set up by him, for the first time, after 17 years coupled with the ground in relation to devolution of tenancy between the parties after the death of Smt Ram Piari and lastly, the ground relating to bona fide need and availability of the alternative accommodation did disclose prima facie facts within the meaning of sub-sections (4) and (5) of Section 25-B of the Act to contest the eviction application of Respondent 1 on merits.

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16. It is, inter alia, for the reasons, though prima facie, that, firstly, the appellants had not attorned to Respondent 1 as the owner of the suit shop and,

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in turn, his status as landlord; secondly, there was no evidence to prove the existence of relationship of landlord and tenant between the parties; and thirdly, specific averments were made by the appellants to show availability of alternative accommodation to satisfy the need of Respondent 1, if it really existed.

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17. The aforesaid grounds, in our view, were sufficient for granting leave to the appellants to contest the eviction application of Respondent 1 on merits.

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18. It is a settled principle of law that while considering the grant of leave to contest the eviction proceedings under the Rent Laws, the Authority/Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest and if the Authority/Court finds that the grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, we find that the appellant tenants have made out such grounds and are, therefore, entitled for grant of leave to contest the eviction proceedings filed by Respondent 1 against them on merits.”

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On bare perusal of the impugned order dated 06.01.2021, it appears that the O.P. No.1 is the power of attorney holder of the original landlords and in that capacity, he preferred the suit for eviction of the petitioners and the O.P. No.2 from the premises in question on two grounds; one that the suit premises was in deteriorating condition and the same was required for repairing, another for personal necessity of the O.P. No.1. The petitioners and the O.P. No.2 filed leave petition to contest the suit for eviction taking several grounds including that the O.P. No.1 was not the owner of the suit premises and also that the power of attorney did not empower him to institute the suit for eviction. They further claimed that the description of the property given in the power of attorney executed in favour of the O.P. No.1 was not relating to the premises in question. It was also claimed that the suit premises was not required by the O.P. No.1 for personal necessity as he along with his wife and son was engaged in some other work and they had independent source of earning. Moreover, the

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O.P. No.1 had other vacant shops which could be used by him for his own necessity, if so required.

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The Court below, without appreciating the grounds taken therein and on mere assertion of the O.P. No.1 that the suit premises was required by him for personal necessity and for repair, rejected the leave petition of the petitioners and O.P. No.2. The Court below also failed to examine as to whether the premises in question was required by the landlord for his own occupation or for occupation of any person for whose benefit the same was required to be held by the landlord.

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In view of the aforesaid discussions, the impugned order dated 06.01.2021 (Annexure-5 to the writ petition) passed by the House Rent Controller-cum-Sub-Divisional Officer, Sadar, Medininagar, Palamau in Eviction Suit No. 07 of 2020-21 is hereby quashed. The said authority is directed to pass fresh order on re-examining as to whether the application of the petitioners and the O.P. No. 2 dated 05.11.2020 seeking leave to contest the eviction suit filed by the O.P. No.1 discloses prima-facie grounds and if so, to allow them to contest the said eviction suit.

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The present civil revision is, accordingly, disposed of.

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(RAJESH SHANKAR, J)

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Satish/A.F.R

Vijay Kumar Gupta v. Dr Anil Kumar Gupta

Case brief

What is this about?

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Vijay Kumar Gupta v. Dr Anil Kumar Gupta

Case brief

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