V.K. Mehrotra, J.@mdashBuilding No. 7 on the Cart Road in Shimla has three floors. The ground floor has a shop and the first floor is in occupation of Petitioner Tara Chand Sharma. It consists of two rooms, a bath room, a kitchen and a glazed varandah, a latrine and a store Tara Chand is a tenant for several decades. The third floor has almost similar accommodation as in the second floor. There was a tenant in it but the accommodation fell vacant in the year 1973. It was given to one Jagdish Prasad who is related to the owner-landlords S/Shri Baij Nath and Jagan Nath. He is working in their shop. Satrohan Lal, who is the third Respondent, is a co-owner of the premises.
2. The two brothers Baij Nath and Jagan Nath have large families. Apart from themselves the family of each one of them consists of his wife and six children. All these children are grown up. In all, 16 members of the families of Baij Nath and Jagan Nath were residing earlier in a large room in Lakkar Bazar, They had to vacate the premises in the year 1976 as the area was sinking.
3. In place of the earlier room, a small room, together with a shop, became available to the brothers. That is also situate in Lakkar Bazar. The family of Baij Nath lives in it. There is another shop with these brothers on the Mail Road near the Combermere Post Office which has a small room attached to it. The family of Jagan Nath lives in that room.
4. On 18th May, 1976 a petition u/s 14 of the Himachal Pradesh Urban Rent Control Act, 1971 ("the Act", for brief) was filed by Baij Nath and Jagan Nath alongwith Satrohan Lal seeking eviction of Tara Chand Sharma from the accommodation in his possession on first floor of the building on the Cart Road. That petition was amended in the year 1981.
5. The two grounds put forward by the landlords for the eviction of Tara Chand were that the disputed premises was required bona fide by the Petitioners for themselves and their family members as they had very little accommodation in their possession ; they had not vacated any similar building within the Shimla urban area during the past five years of the date of the filing of the petition and, secondly, that Tara Chand had been in arrears of rent of Rs. 14.17 P. per month together with taxes at the rate of 7% as well as interest for a very long period between August 2, 1969 and January 31, 1976 amounting to a total of Rs. 1,651.22.
6. The amount of rent was tendered when the petition was filed so that the Issue relating to it, framed by Rent Controller (2) Shimla in that regard, was not pressed for an answer by the landlords. What, however, remained, by way of surviving Issues were Issue No. 1 (Whether the Petitioners require the premises in dispute bona fide for their use and occupation and for the use and occupation of their family as alleged?) ; Issue No. 3 (Whether there exists any relationship of landlord and tenant between Petitioner No. 3 and the Respondent) ; and Issue No. 4 (Relief).
7. These Issues arose on the plea put forward by the tenant that Satrohan Lal was not a landlord and that Baij Nath and Jagan Nath did not require the premises in possession of the tenant bona fide for their own requirement.
8. The Rent Controller found, on the basis of the copy of the sale deed relating to the premises in question in favour of the Petitioners (Ex. PW-1/A), that Satrohan Lal was also a co-owner of the building. He was also held to be a landlord in relation to Tara Chand.
9. The first Issue was hotly contested between the parties. They led evidence before the Rent Controller on a consideration whereof he concluded that the family of Baij Nath and his brother Jagan Nath consisted of 16 members who had to live in a very small room on the Mall Road and a small room in the Lakkar Bazar, This accommodation was grossly insufficient for their purpose and their need for more accommodation was bona fide.
10. The Rent Controller also came to the conclusion, on consideration of evidence, that the set on the third floor of the building on the Cart Road was in possession of one tenant Sansar Chand who had vacated it around the year 1973 at a time when Baij Nath and his brother Jagan Nath were living with their families in the large room in Lakkar Bazar. After its vacation by Sansar Chand the accommodation was given to Jagdish Prasad in the year 1973. This Jagdish Prasad was the son of the sister of the two Petitioners Baij Nath and Jagan Nath. He was working as a servant on monthly salary with the Petitioners. On these findings the petition for eviction of Tara Chand from the premises in dispute was allowed on the ground of personal bona fide requirement of the two Petitioners but time was allowed to the tenant to vacate the premises in his possession. The order was upheld in appeal by the District Judge, Shimla, who was the Appellate Authority under the Act. The conclusions recorded by the Rent Controller were upheld.
11. In the present revision petition u/s 21(5) of the Act (now Section 24(5) of the H.P. Urban Rent Control Act, 1987 the challenge is not only to the findings regarding the bonafide requirement of the landlords for the premises in dispute but also in regard to the maintainability of the petition on the ground that the ingredients of Section 14, which should have been pleaded had not been pleaded in accordance with law by the landlords.
Section 14(3) provides that:
"(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(a) in the case of a residential building, if-
(i) he requires it for his own occupation:
Provided that he is not occupying another residential building owned by him, in the urban area concerned:
Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area.
12. In Onkar Nath v. Ved Vyas ILR 1979 HP 1, a case in which the provision of Section 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act, 1949, akin to the aforesaid provision, came up for consideration, the Supreme Court said that:
It is common ground that there are three requirements to make out a cause of action for eviction under that provision, and indeed this is apparent from a bare reading of the Sub-section. In the present case the finding is to the effect that the landlord requires the residential building for his own occupation. But, the legislation has taken care to insist upon two more'' conditions, namely ; (a) that the landlord is not occupying any other residential building in the area concerned ; and (b) that he has not vacated such a building without sufficient cause. There is not a scintilla of evidence nor indeed there is any averment in compliance with these latter conditions. The necessary consequence follows that not merely is there inadequacy of pleadings sufficient to make out a cause of action but total absence of proof of two vital requirements....
The Supreme Court also said that:
...The statute benignly designed to protect tenants from unreasonable evictions has taken care to put restrictions which must be rigorously construed to fulfil the purpose of the statute.
(my emphasis)
13. The object behind the Rent Acts came to be construed by the Supreme Court in
...The Rent Acts which are indeed in the nature of social welfare legislation are intended to protect tenants against harassment and exploitation by landlords, safeguarding at the same time the legitimate interests of the landlords The Rent Acts seek to preserve social harmony and promote social justice by safe guarding the interests of the tenants mainly and at the same time protecting the legitimate interests of the landlords. Though the purpose of the various Rent Acts appear to be the same, namely, to promote social justice by affording protection to the tenants against undue harassment and exploitation by landlords, providing at the same time for adequate safeguards of the legitimate interests of the landlords, the Rent Acts undoubtedly lean more in favour of the tenants for whose benefit the Rent Acts are essentially passed....
(Emphasis supplied)
14. Way back in the year 1967 the case of
as the provision stands, the landlord cannot get possession of rented land merely by saying that he requires it "for his own use" (whatever may be the use to which he may put it after getting possession of it) he has also to show before he can get possession, firstly, that he is not occupying in the urban area concerned for the purpose of his business any other such rented land. If (for example) he is in possession of any other rented land in the urban area concerned he cannot ask for eviction of his tenant This shows clearly that though the words "for his own use" in Sub-clause (a) are not qualified, the intention of the legislature must have been that if the landlord is in possession of other rented land ...he cannot evict a tenant from his own rented land.... This to our mind clearly implies that Sub-clause (a) has to be read in the light of sub- Clause (b) and if that is so, the words "for his own use" must receive a meaning restricted by the implication arising from sub-clause(b).
15. In the subsequent paragraph 8 it was then said that:
...Turning now 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 the urban area but also to prove that he had not vacated any rented land without sufficient cause after the commencement of the Act 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....
Section 14(4) of the Act says that:
(4) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building....
16. What appears as the legislative intent, in bold relief, is that the landlord, while seeking eviction of a tenant on the ground that he needs a residential building for his own occupation, must come out clearly and honestly with facts relating to the requirement that he is not occupying another residential building owned by him, in the urban area concerned and that he had not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area. The primal burden of making a clear disclosure would lie upon the landlord, for, the true facts would be in his special knowledge. An order in his favour by the Rent Controller would depend upon the satisfaction of the Rent Controller in regard not only to the claim that the landlord requires the accommodation, from which he wishes to evict a tenant, for his own occupation but also that he was not occupying another residential building owned by him nor had he vacated such building without sufficient cause within five years of the filing of the application in the urban area concerned. The Rent Controller should not feel misled, while arriving at his satisfaction contemplated by Sub-section (4), by a fact stated to him incorrectly or insufficiently or withheld from him by the landlord who is seeking an order in his favour. A mere mechanical reproduction of the words used in Section 14(3)(a)(i) or the two provisos to it would hardly amount to a proper pleading on the part of the landlord of the requirements of the provision. The Punjab and Haryana High Court has said so.
17. In Karam Chand Joshi v. Kartar Singh and Ors. 1977 (1) RCR 327, ejectment of the tenant was sought on the ground that he has ceased to occupy the premises in question without any reasonable cause. The allegation made in this respect was to the effect that the premises had remained locked and unused for more than past four months. The High Court took the view that in the absence of any specific period during which the tenant did not occupy the demised premises being mentioned, the plea was not adequate. Similar view was taken in Puran Singh Tailor Master v. Ram Murti 1981 (2) RCJ 668. The ground on which ejectment of the tenant was sought was that he had ceased to occupy the premises for a continuous period of four months prior to the filing of the application by the landlord. The allegation made in the petition was that:
...the Respondent has permanently shifted his residence and business to the above mentioned address and is not occupying the. portion in question for the last about four months continuously....
The High Court felt that in the absence of any specific period being mentioned during which the tenant had ceased to occupy the premises, the plea was insufficient and was a mere reproduction of the wording of the statute.
18. That the landlord should make a full disclosure of the relevant facts, pertaining to the requirements of Sub-section (3) (a) (i) and the two provisos, becomes all the more necessary because the satisfaction of the Rent Controller in regard thereto is the condition precedent for the making of an order in favour of the landlord. It is not difficult to envisage a case where a tenant, for lack of alertness or resources, may not be in a position to know the facts relating to the occupation by the landlord of another residential building owned by him in an urban area or the vacation by him of any such building without sufficient cause within a period of five years of the date of filing the application. The tenant, for example, may be a person from a place outside the urban area and may not be resourceful enough or be able, for other handicaps, to find out the truth of the matter with reasonable efforts.
19. The Rent Acts are a social piece of legislation, designed to promote social justice by affording protection to the tenants, and lean more in favour of the tenants for whose benefit they are essentially passed. These are the words in which the Supreme Court has viewed the objective of these Acts in Gian Devi. Any interpretation of the provisions of a Rent Act must be consistent with the fulfilment of this objective.
20. What was emphasised on behalf of the landlords in this Court was that when the ingredients contemplated by Section 14(3)(a)(i) are stated by the landlord in an application filed by him, the tenant is put to notice and has an opportunity of asserting, after inquiry, in his reply to the petition that the claim of the landlord was factually not correct. On it, would arise a triable issue between the parties and the tenant would have ample opportunity to negate the claim of the landlord not only in regard to the fact whether the landlord requires the tenanted accommodation for his own occupation but also that he was occupying another residential building owned by him or that he had vacated such a building without sufficient cause within five years of the date of the filing of the application in the urban area concerned. Also, where particulars were found to be lacking in the application filed by the landlord, the tenant could ask for better particulars to enable him to make an effective reply if he really felt any handicap in the matter on account of the form of the pleadings of the landlord.
21. The plea aforesaid, it is obvious, loses sight of the true nature of the burden which the statute casts upon the landlord for the furtherance of the objective with which the Rent Acts have come to be enacted. If accepted, it may tempt a resourceful landlord to take advantage of the inability and incapacity of a tenant to find out true facts in respect of the requirement of the two provisos and thus mislead the Rent Controller into an incorrect decision.
22. Suppression of material facts should disentitle a party from seeking aid of the Court. This is necessary to maintain the purity of judicial proceedings and for preventing miscarriage of justice. The principle must be held applicable equally whether the relief is in the discretion of the Court or may be claimable as a matter of course. No party can be permitted to take advantage of its own unfair action in this regard and if it is found to have done so, it should be held liable to forfeit the right to get the assistance of the Court. This principle, insofar as it relates to discretionary orders, has been accepted by a Full Bench of the Allahabad High Court way back in the early fifties in the case of
...A person obtaining an ex-parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex-parte orders by suppression, misrepresentation or misstatement of facts....
23. In respect of a petition under Article 136 of the Constitution the Supreme Court, while revoking the special leave granted earlier by it, said in
...In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading....
This view has been reiterated by the Supreme Court from time to time.
24. The insistence upon disclosure of relevant facts fully and correctly even in proceedings under a Rent Act is to be found in
...That is of relevance is not whether the Appellant had committed any fraud upon the Respondents but whether the Appellant had fraudulently suppressed relevant materials from the notice of the Rent Controller and had thereby obtained an order of sanction from the Rent Controller to lease out the property for a period of two years from March 1, 1976 Had she disclosed the real state of affairs it is doubtful whether the Rent Controller would have given his approval to the Appellant to restrict the tenancy rights of the Respondents, -who were already in possession, to a period of two years in substitution, of the rights available to them as statutory tenants under the Act....
And, further that:
The fact that the Respondents had also appeared before the Rent Controller and agreed to take the property on lease for a limited period of two years without demur cannot obliterate or nullify the fraud committed on the statute This position has been succinctly pointed out in
The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord''s non-requirement "for a particular period" and the letting itself being "as a residence.
Therefore, besides what the parties say, the Rent Controller has to apply his mind before granting sanction u/s 21 because the order passed by him has legal consequences and will govern the rights of the parties to the tenancy that is to follow in terms of the sanction....
25. One can look at the problem in another manner. The policy which appears writ large on the face of the Act is to ensure that before the landlord is able to seek eviction of his tenant from residential premises he must satisfy the Rent Controller that he requires it for his own occupation and that he is not occupying another residential building owned by him nor has he vacated such a building without sufficient cause within five years of the filing of the application, in the urban area concerned The, policy, in the present circumstances, aims at ensuring social justice in the matter of housing accommodation by putting statutory fetter on the right of a landlord to retrieve possession of the demised premises from a tenant at his will, for, in the words of the Supreme Court in
...Because of scarcity of accommodation and gradual high rise in the rents due to various factors, the landlords were in a position to exploit the situation for unjustified personal gains to the serious detriment of the helpless tenants Under the circumstances it became imperative for the legislature to intervene to protect the tenants against harassment and exploitation by avaricious landlords and appropriate legislation came to be passed in all the States and Union Territories where the situation required an interference by the legislature in this regard....
26. In this background it becomes necessary for Courts to give a meaning which will subserve the basic object of enactment. As said by Sir Garfield Barwick in his essay ''Judicial law: Some Observations There on'' (Current Legal Problems 1980):
The function of the judiciary in relation to the unwiitten law of the community is, it seems to me, to ascetain and express what is accepted or acceptable to the community and, indeed, as I have said, implicit in its life Even in the area of statutory ; interpretation, if the legislature''s language leaves room, the ; judiciary, by assuming as it should that the legislature does not intend to lay down a rule unacceptable to the community''s sense of fairness and justice and its reasonable attitude in the mutual relationship of its members, can be expected to adopt that interpretation which conforms or most nearly conforms to those community attitudes....
This line of thinking finds acceptance by the Supreme Court when it says. in
...All courts have at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap In performing this duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly on an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good....
27. A passage from the Speech of Sir Jack Jacob, visiting Professor of Laws University College London, delivered as the Presidential Address to the Bentham Club ''(See Current Legal Problems 1985) may be reproduced with advantage:
By its very nature, the system of Civil Justice is imbued with moral values This is necessary, since the civil judicial process should not be regarded as having merely a legal connotation or application, but as reflecting and responding to social and moral utility. The critical question whether the administration of civil justice if fulfilling its function as the accessory to the substantive law is whether it is promoting the good or greater happiness of the community, whether it is operating in the right way towards the attainment of justice between man and man. This applies as much to the practical machinery of civil procedures and to all the steps and stages of the litigation process as to the more fundamental issues and questions concerning the whole field of the administration of justice, including both its institutional and professional areas....
28. These considerations impel me to take the view that the courts should insist upon full and fair disclosure of the material facts by the landlord in the petition made by him to the Rent Controller for seeking eviction of a tenant from residential premises. The requirement of law should not be held to be fulfilled by a mere reproduction of the words of the statute. The landlord should not be given the option of getting an order in his favour by not disclosing the relevant facts fully in his petition in a case where the tenant may not be in a position, even with reasonable effort to find out the truth, particularly in regard to the fact whether the landlord was occupying another residential building owned by him or had not vacated such a building without sufficient cause within five years of the filing of the application in the urban area concerned. The primal burden of disclosing full facts, as observed earlier, always rests upon the landlord, for, he alone can be said to have special knowledge of the true facts in this regard.
29. Thus viewed, the pleadings on the part of the landlord in this case cannot be said to be consistent with requirements of the statute. The petition of the tenant deserves to succeed on this ground alone irrespective of the fact that parties had led evidence and the courts below had arrived at a conclusion in favour of the landlord on evaluation thereof. No amount of evidence on a plea, not taken in accordance with law, can be of any avail to a party. Nor can the fact that the tenant was aware of the case which he had to meet and had not been prejudiced on that account. Where, as in the present case, the ingredients to support the cause of action are not properly pleaded as the essential facts in that respect are not disclosed by the landlord in the petition, the court cannot permit a Plaintiff to go to trial with the claim
30. In conclusion, the revision is allowed and the order of eviction passed by the Rent Controller and affirmed by the Appellate Authority is set aside. Parties are, however, left to bear their own costs of this Court.
