@JUDGMENTTAG-ORDER
Piar Singh Rana, J.@mdashPresent civil revision petition is filed under Section 24(5) of H.P. Urban Rent Control Act 1987 against order of learned Appellate Authority-I Kangra at Dharamshala announced in Rent Appeal No. 6-KXIV of 2009 titled Pardeep Kumar and others v. Purna Devi and others whereby learned Appellate Authority affirmed the order passed by learned Rent Controller (I) Kangra (H.P.). in Rent Petition No. 5 of 2001 titled Purna Devi v. Ram Dulari and others.
Brief facts of the case
2. Smt. Purna Devi landlady filed eviction petition against revisionists under Section 14 of H.P. Urban Rent Control Act 1987 on the ground that tenants have not paid or tendered the rent due from revisionists w.e.f. 1.12.1980 and tenants are in arrears of rent and on the ground that demised building is required bonafide by landlady for the purpose of rebuilding which could not be carried out without eviction of tenants. Landlady further pleaded that demised building is in dilapidated condition and is one of the oldest building of the locality. Landlady further pleaded that landlady has sufficient means to rebuilt the same. Landlady further pleaded that construction plan was sanctioned from Nagar Parishad vide resolution No. 806 dated 30.11.1999 and vide resolution No. 46 dated 31.3.2001. Landlady further pleaded that reconstruction is also required to supplement the income of landlady. Landlady further pleaded that demised building is old fashioned premises and now landlady required to reconstruct the building in modern design with latest fittings and facilities in order to increase economic value of demised premises. Landlady further pleaded that reconstruction is not possible without eviction of tenants. Landlady further pleaded in petition that tenants have sublet the demised premises without her written consent.
3. Per contra response filed on behalf of tenants pleaded therein that eviction petition legally as well as factually is not maintainable. It is pleaded that landlady has no cause of action and locus standi to file the present petition. It is pleaded that landlady is estopped by her act conduct and acquiescence to file the petition and further pleaded that landlady has not come to Court with clean hands and has suppressed the material facts from Court. It is pleaded that present petition for eviction is barred under the principles of res judicata and under Order 2 Rule 2 CPC. It is pleaded that present petition is bad for nonjoinder of parties. It is pleaded that Shanti Devi @ Sudarshan, Chand Rani wife of Tarsem Lal and Kanta Devi d/o Shri Butalia Mal have no concern with premises. It is pleaded that Smt. Shanti Devi, Chand Rani and Smt. Kanta Devi did not remain in possession of disputed shop at any point of time. It is pleaded that Smt. Ram Dulari daughter of Butalia Mal is in physical possession of disputed shop as tenant and is running the business in disputed shop. It is pleaded that Smt. Ram Dulari is mother of Vinod Kumar, Pardeep Kumar and Parmod Kumar. It is denied that Vinod Kumar, Pardeep Kumar and Parmod Kumar are sub-tenants. It is denied that revisionists are in arrears of rent. It is pleaded that earlier Butalia Mal was paying the rent and thereafter Smt. Ram Dulari who is in physical possession of demised premises is paying the rent of shop regularly but landlady did not issue any receipt in favour of tenant after receiving the rent. It is pleaded that demised shop is not required bonafide by landlady for the purpose of rebuilding. It is denied that shop in dispute is in dilapidated condition. It is also denied that building is the oldest building in locality. It is pleaded that demised shop is not in bad condition and it is pleaded that demised premises is not required bonafide for rebuilding purpose. It is also denied that landlady has sufficient means to rebuilt the demised premises. It is also denied that demised premises is of old fashion. It is also denied that construction plan already stood sanctioned in favour of landlady. It is further pleaded that landlady and her husband have made their best efforts to dispossess the tenants from disputed premises by way of hook and crook and even tried to remove roof forcibly and also tried to make holes in demised premises. Prayer for dismissal of eviction petition sought.
4. Landlady also filed rejoinder and re-asserted the allegations as mentioned in petition. On the pleadings of parties learned Rent Controller on 2.7.2005 framed following issues:--
"(i) Whether respondents are in arrears of rent w.e.f. 1.12.1980 as alleged? ....OPP
(ii) Whether suit premises is required bonafidely by petitioner for the purpose of re-building as alleged? ....OPP
(iii) Whether building is in dilapidated condition as alleged? ....OPP
(iv) Whether respondents have sublet the suit premises without the consent of petitioner, as alleged? ...OPP
(v) Whether petition is not maintainable in the present form? ....OPR
(vi) Whether petitioner has no cause of action to file the present petition? OPR
(vii) Whether petitioner is estopped by her act and conduct from filing the present petition? ......OPR
(viii) Whether the petition is barred under Order 2 Rule 2 CPC and principle of res-judicata? ....OPR
(ix) Whether the petition is bad for nonjoinder and mis-joinder of necessary parties? .....OPR
(x) Relief."
5. Learned Rent Controller decided issues Nos. 1 and 2 in affirmative and decided issues Nos. 5,6,7,8 and 9 in negative. Learned Rent Controller held that issues Nos. 3 and 4 not pressed at the time of arguments.
6. Feeling aggrieved against the order of learned Rent Controller tenants filed rent appeal No. 6-KXIV/2009 titled Pardeep Kumar and others v. Purna Devi and others before learned Appellate Authority and learned Appellate Authority Kangra at Dharamshala dismissed the appeal filed by tenants.
7. Feeling aggrieved against the orders of learned Rent Controller and learned Appellate Authority revisionists filed the present civil revision petition.
8. Court heard learned Advocate appearing on behalf of revisionists and learned Advocate appearing on behalf of non-revisionists and Court also perused entire record carefully.
9. Following points arise for determination in civil revision petition:--
"1. Whether civil revision is liable to be accepted as mentioned in memorandum of grounds of revision petition?
2. Final order."
10. Reasons for findings upon point No. 1
10.1 PW1 Vipin Kumar Manager Union Bank of India Branch Kangra has stated that Purna Devi wife of Kishori Lal and Kishori Lal son of Bhagat Ram have accounts in their branch and further stated that he has brought the original record. He has stated that FDR No. 8545114 dated 8.9.2008 is in the name of Purna Devi amounting to Rs. 62343/- (Rupees sixty two thousand three hundred forty three only) and further stated that photocopy of same is Ext. PW1/A which is correct as per original record. He has stated that FDR No. 15371 is also in favour of Purna Devi and Kishori Lal amounting to Rs. 68397/- (Rupees sixty eight thousand three hundred ninety seven only) and photocopy is Ext. PW1/B which is correct as per original record. He has stated that FDR No. 15370 is in favour of Kishori Lal and Purna Devi amounting to Rs. 68397/-(Rupees sixty eight thousand three hundred ninety seven only) and photocopy is Ext. PW1/C which is correct as per original record. He has further stated that FDR No. 14590 is also in favour of Kishori Lal amounting to Rs. 45782/-(Rupees forty five thousand seven hundred eighty two only) and photocopy is Ext. PW1/D which is correct as per original record. He has stated that Kishori Lal has saving account No. 2018567 and there is balance of Rs. 2,75,199/- (Rupees two lacs seventy five thousand one hundred ninety nine only) and photocopy is Ext. PW1/E which is correct as per original record. He has stated that all copies Ext. PW1/A to Ext. PW1/E have been certified by him. He has stated that there is total deposit of Rs. 5,20,318/- (Rupees five lacs twenty thousand three hundred eighteen only). He has stated that if any party desires to take loan from the bank then bank will provide loan facility. He has stated that if Purna Devi will apply for loan facility then loan would be provided to Purna Devi by bank. He has stated that loan is granted against FDRs for personal use and commercial use.
10.2. PW2 V.K. Sharma Assistant Manager UCO Bank has stated that Purna Devi and Kishor Lal are account holders in their UCO bank and he has brought the original FDRs. He has stated that FDRs Nos. 394768, 394770 and 542530 dated 16.9.2008, 17.9.2008 and 8.8.2007 respectively were issued by the bank. He has stated that amount to the tune of Rs. 50,000/- (Rupees fifty thousand only), Rs. 50,000/- (Rupees fifty thousand only), and Rs. 1,31,820/- (Rupees one lac thirty one thousand eight hundred twenty only) are deposited in above said FDRs and further stated that certified copies are Ext. PW2/A, Ext. PW2/B and Ext. PW2/C. He has stated that Kishori Lal has account No. 2833 in bank and Rs. 60300/-(Rupees sixty thousand three hundred only) were deposited in bank and copy is Ext. PW2/D which is correct as per original record. He has stated that entire deposited amount is Rs. 2,92,120/- (Rupees two lacs ninety two thousand one hundred twenty only). He has stated that bank also used to provide loan facility. He has stated that if Purna Devi would apply for loan then loan facility would be provided to Purna Devi. He has stated that bank loan is given on the basis of security.
10.3 PW3 Kishori Lal has stated that Purna Devi is his wife and demised premises is in ownership of Purna Devi. He has stated that Purna Devi has filed eviction petition against the tenants. He has stated that demised premises is situated in ward No. 7. He has stated that Purna intended to construct the demised premises with latest design. He has stated that he and Purna Devi are residing jointly. He has stated that he would provide money to Purna Devi for reconstruction of demised premises. He has stated that he has bank accounts in banks. He has stated that demised premises is 80-90 years old. He has stated that shop was constructed after earthquake of 1905. He has stated that shop is in very bad condition and shop would fall at any time. He has stated that shop comprised of two storeys. He has stated that in lower portion of shop Batalia was the tenant. He has stated that thereafter Brindavan came in possession of shop. He has stated that cracks have developed in walls of shop and further stated that shops adjoining to disputed shop have been re-constructed with latest design. He has stated that Purna Devi intended to construct the shop with latest design and construction plan already approved in favour of landlady. He has stated that reconstruction is not possible without eviction of tenants and after new construction of demised premises rent would be enhanced. He has stated that after death of Batalia Mal his four daughters have become his legal heirs and Ram Dulari is also one of them. He has stated that Chand Rani, Shanti and Kanta Devi are also legal heirs but they are not in possession of premises in dispute. He has stated that Vinod, Pardeep and Parmod are legal representatives of Ram Dulari. He has denied suggestion that condition of shop is proper. He has denied suggestion that construction plan was approved in forged manner. He has denied suggestion that landlady has no sufficient source to reconstruct the demised premises. He has denied suggestion that construction is possible without eviction of tenants.
10.4 PW4 Purna Devi has stated that she is owner of demised premises and further stated that shop is situated in ward No. 7 at Kangra. She has stated that shop was rented to Batalia Mal on rent of Rs. 21/- (Rupees twenty one only) per month. She has stated that she purchased the shop 28 years ago. She has stated that after death of Batalia Mal Brindavan came in possession of shop in dispute. She has stated that thereafter she filed the suit against Brindavan which was decided in her favour. She has stated that when she filed the execution petition then law came for inheritance of daughter and she could not acquire the possession of demised premises. She has stated that thereafter she filed the eviction petition. She has stated that Batalia has four daughters. She has stated that Ram Dulari died during pendency of case. She has stated that disputed premises comprised of two storeys. She has stated that in lower portion tenants are in possession and in upper portion she is in possession. She has stated that tenants are running the business of confectionery. She has stated that shop is 80-90 years old and shop was constructed after earthquake of 1905. She has stated that demised premises is in very bad condition and demised premises would fall at any point of time. She has stated that floor of demised premises also uprooted and wooden of demised premises also uprooted. She has stated that cracks have developed in walls and demised premises is oldest premises in locality. She has stated that she intended to construct demised premises afresh with new design and further stated that construction is not possible without eviction of tenants. She has stated that construction plan already approved by competent authority. She has stated that tenants did not pay rent w.e.f. 1.12.1980. She has stated that she and her husband have 8/10 lacs bank balance. She has stated that all adjoining shops have been reconstructed with latest design and further stated that her income would also increase by way of reconstruction of demised premises. She has stated that she has purchased the shop 20 years ago from Hari Chand. She has denied suggestion that she has received upto date rent from tenants. She has stated that as of today tenants are Vinod Kumar, Pardeep Kumar and Parmod Kumar. She has denied suggestion that demised premises was repaired in the year 1991. She has denied suggestion that demised premises was constructed about 40 years ago with concrete material. She has denied suggestion that demised premises is in proper condition. She has stated that she has kept stationery in upper portion of demised premises. She has denied suggestion that demised premises could be reconstructed without eviction of tenants.
10.5 PW5 Sujata Sharma record keeper MC Kangra has stated that construction plan was approved in favour of Purna Devi vide resolution No. 46 dated 31.3.2001 which is Ext. PW5/A and is correct as per original record. She has stated that validity date of construction plan has been expired as of today. She has stated that she does not know that construction plan was approved in collusion with Municipal Committee office.
10.6 RW1 Smt. Sujata Sharma record keeper municipal committee has stated that she has brought the summoned record and she has seen the original application filed by Purna Devi and copy Ext. DW1/A is correct as per original record. She has stated that she has also brought original record of application dated 14.9.1999 filed by Purna Devi before M.C. Kangra and further stated that copy is Ext. DW1/B which is correct as per original record. She has stated that application was signed by Purna Devi. She has admitted that construction plan was passed for reconstruction vide resolution No. 46 dated 31.3.2001. She has stated that construction plan was approved after proper verification. She has stated that even legal adviser has advised for approval of construction plan.
10.7 RW2 Pardeep Kumar has stated that he and his brothers are tenants of demised premises. He has stated that prior to them Ram Dulari was tenant. He has stated that prior to his mother his maternal grandfather was tenant. He has stated that demised premises is constructed of concrete material. He has stated that upper portion of demised premises is in possession of Purna Devi landlady. He has stated that demised premises was constructed 40-42 years ago. He has stated that earlier Batalia was tenant of shop and thereafter his mother became tenant. He has stated that his mother has paid the rent to landlady till 1991. He has stated that thereafter money order was sent but same was refused by landlady. He has stated that landlady did not supply any receipt of rent. He has stated that length of demised premises in dispute is 37.8 sq.feet and breadth is 12-13 sq. feet. He has stated that demised premises in dispute is in Khasra No. 2305. He has admitted that demised premises is situated in ward No. 7 opposite to police station. He has admitted that Purna Devi is landlady of demised premises. He has admitted that Purna Devi has purchased the demised premises on 29.11.1980. He has stated that his maternal grandfather was tenant of demised premises since 40-45 years. He has stated that his maternal grandfather died in the year 1978. He has stated that his mother used to reside with his maternal grandfather. He has stated that his mother died on 13.10.2007. He has stated that his mother conducted business in demised premises for the last 36-37 years. He has stated that he used to sit in demised premises along with his mother. He has denied suggestion that demised premises is 80-90 years old. He has denied suggestion that demised premises was constructed after earthquake of 1905. Self stated that demised premises was constructed 40-45 years ago. He has admitted that rent after 1991 has not been paid. He has stated that if demised premises would be reconstructed then enhanced rent would be acquired by landlady. He has denied suggestion that demised premises has outlived its life.
10.8 RW3 Jagdish has stated that parties are known to him and he has seen the demised premises. He has stated that Pardeep Kumar is tenant of demised premises and Purna Devi is landlady of demised premises. He has stated that sons of Ram Dulari are the tenants of demised premises. He has stated that earlier Batalia was tenant of demised premises. He has stated that daughter of Batalia used to reside with him. He has stated that demised premises is of concrete. He has stated that demised premises was constructed 40 years ago. He has stated that landlady is in possession of upper portion of demised premises. He has stated that he does not know that tin of demised premises has rotten.
11. Submission of learned Advocate appearing on behalf of revisionists that requirement of landlady is not bonafide and landlady has not approached the learned Rent Controller with clean hands and has filed the present eviction petition on account of previous litigation between the parties and landlady during the course of arguments did not press issue No. 3 relating to dilapidated condition of premises and adverse inference should be drawn against landlady and on this ground revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is true that learned Rent Controller has specifically mentioned in order that landlady has not pressed issue No. 3 at the time of arguments. Court is of the opinion that landlady has legal right to increase the economic value of demised premises and Court is also of the opinion that when demised premises is required bonafide by landlady for the purpose of rebuilding or making substantial addition or alteration to increase economic utility of demised premises which could not be carried out without eviction of tenant then there is no requirement to go into condition of building. See
12. Submission of learned Advocate appearing on behalf of non-revisionists that landlady has levelled false allegations of subletting upon Vinod Kumar, Pardeep Kumar and Parmod Kumar who are sons of Ram Dulari daughter of Batalia Mal and on this ground revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. There is recital in order of learned Rent Controller that landlady did not press issue No. 4 relating to subletting of demised premises without consent of landlady during the course of argument. In view of the fact that landlady did not press issue of subletting before learned Rent Controller relating to subletting Court is of the opinion that it is not expedient in the ends of justice to give any findings relating to plea of subletting at the revisional stage before H.P. High Court.
13. Submission of learned Advocate appearing on behalf of revisionists that eviction petition was barred under Order 2 Rule 2 CPC and on the principle of res judicata is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that Ram Dulari filed civil suit No. 317 of 1991 titled Ram Dulari v. Purna Devi before learned Civil Judge Kangra for declaration and injunction and suit filed by Ram Dulari was dismissed by learned Civil Judge Kangra. It is proved on record that thereafter Ram Dulari filed civil appeal No. 91-K of 1998 titled Ram Dulari v. Purna Devi and others before learned Additional District Judge Kangra at Dharamshala and learned Additional District Judge Kangra at Dharamshala on 6.1.2001 partly accepted the appeal filed by Ram Dulari and decree of permanent injunction restraining the defendants not to cause any damage to disputed premises was granted in favour of Ram Dulari and against Purna Devi and Kishori Lal. Civil suit against Smt. Purna Devi and Kishori Lal filed by Ram Dulari mother of revisionists/tenants. Title, nature and cause of action of former civil suit No. 317 of 1991 were different from present eviction petition. In former civil suit No. 317 of 1991 relief of declaration and injunction was sought under Specific Relief Act 1963 and in present eviction petition Purna Devi has sought relief under H.P. Urban Rent Control Act 1987. It is held that when reliefs sought under different special Acts are different and when cause of actions are also different then concept of res judicata would not apply. In present case provisions of Order 2 Rule 2 of CPC would also not apply because cause of action and relief in rent eviction petition is different and cause of action and relief in civil suit No. 317 of 1991 was different. In order to attract provisions of Section 11 of res judicata and in order to attract provisions of Order 2 Rule 2 CPC matter must be directly and substantially in issue in former suit. If matter is not in issue either directly and substantially in previous suit then concept of res judicata and concept of Order 2 Rule 2 CPC will not apply. Three facts should be satisfied. (1) Previous suit and subsequent legal proceedings should arise out of same cause of action. (2) Parties should be same. (3) Matter should be decided on merits in former suit. In present case cause of action in former civil suit and subsequent legal proceedings under H.P. Urban Rent Control Act 1987 are entirely different. See
14. Submission of learned Advocate appearing on behalf of revisionists that learned Rent Controller had committed grave error by deciding issue No. 2 on the ground that landlady required the demised premises bonafide for purpose of rebuilding is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that proposed sanctioned plan is approved by competent authority of law and it is also proved by way of oral as well as documentary evidence placed on record that landlady has sufficient sources of income for reconstruction. It is well settled law that landlady has legal right to reconstruct the demised premises for increasing economic utility of demised premises. It is held that tenants have no legal right to stop the reconstruction of demised premises when landlady wanted to reconstruct the demised premises for increasing economic utility of premises.
15. Submission of learned Advocate appearing on behalf of revisionists that landlady failed to plead and prove on record that what kind of new building landlady proposed to construct and on this ground revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record by way of oral as well as documentary evidence placed on record that proposed construction plan is already approved by competent authority of law. PW5 Sujata Sharma record keeper from MC Kangra has appeared in witness box and has stated in positive manner that construction plan is approved by competent authority of law in favour of landlady. Testimony of PW5 Sujata Sharma posted in office of MC is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW5 Sujata Sharma. Even PW1 Vipin Gupta Manager of Union Bank of India Kangra and PW2 V.K. Sharma Assistant Manager UCO bank have stated in positive manner that landlady has sufficient amount in her bank accounts. PW1 Vipin Gupta Manager of Union Bank of India Kangra and PW2 V.K. Sharma Assistant Manager posted in UCO bank have stated in positive manner that banks are ready to provide financial assistance to landlady on the basis of deposits of FDRs. Testimonies of PW1 Vipin Gupta Manager Union Bank of India and PW2 V.K. Sharma Assistant Manager UCO bank are trustworthy reliable and inspire confidence of Court. There is no reason to disbelieve the testimonies of PW1 Vipin Gupta Manager Union Bank of India and PW2 V.K. Sharma Assistant Manager UCO bank. There is no evidence on record in order to prove that PW1 Vipin Gupta Manager Union Bank of India and PW2 V.K. Sharma Assistant Manager UCO bank have hostile animus against revisionists at any point of time. It is well settled law that approval of construction plan is not sine qua none for passing eviction order on ground of bonafide requirement of construction. See Latest HLJ 2011 H.P. High Court titled Tara Dutt Sharma v. Sanjeev Dutt. Also see Civil Appeal No. 4127 of 2013 titled Hari Dass v. Vikas Sood (Apex Court of India) decided on 29.4.2013. Also see CA No. 4128 of 2013 titled Hari Dass v. Kesri Devi (Apex Court of India) decided on 29.4.2013. Also see CA No. 4129 of 2013 titled Hari Dass Sharma v. Shiv Prasad (Apex Court of India) decided on 29.4.2013.
16. Submission of learned Advocate appearing on behalf of revisionists that learned first Appellate Authority has not decided all grounds of appeal and on this ground revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has perused the order of learned first Appellate Authority carefully. It is held that learned first Appellate Authority has considered all submissions of revisionists while disposing of appeal. It is held that no interference is warranted by revisional Court in present case. It is well settled law that scope of revisionists in rent Act is very limited. See
17. Submission of learned Advocate appearing on behalf of revisionists that learned Rent Controller did not properly appreciate the oral as well as documentary evidence placed on record is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that learned Rent Controller has properly appreciated the oral as well as documentary evidence placed on record and it is further held that no miscarriage of justice has been caused to revisionists in present case by order of learned Rent Controller and by order of learned first Appellate Authority under H.P. Urban Rent Control Act 1987. It is proved on record that demised premises is commercial in nature and it is well settled law that when demised premises is commercial in nature then right of succession is governed by Succession Act and is not governed by Section 2(j) of H.P. Urban Rent Control Act 1987 in view of rulings reported in
Point No. 2 (Relief)
18. In view of findings on point No. 1 above revision petition is dismissed. Orders of learned Rent Controller and learned first Appellate Authority are affirmed. However revisionists will have right of re-entry as provided under proviso of Section 14(3) of H.P. Urban Rent Control Act 1987 in accordance with law. It is held that landlady will reconstruct the demised premises within six months in accordance with law. File of learned Rent Controller and file of learned first Appellate Authority be sent back forthwith along with certified copy of this order. No order as to costs. Revision petition is disposed of. All pending miscellaneous application(s) if any also stands disposed of.
