P.K. Palli, J.@mdashThese two Revision Petitions which are connected are being disposed of by a common judgment as these arise out of a common judgment between the parties. One revision petition has been filed by the landlords and the other by the tenant. Parties hereinafter in the judgment shall be referred to as ''landlords'' and ''tenant''.
2. The landlords seek eviction of the tenant from a quarter which is said to be a servant quarter and is a part of the building known as Craig Villa situated on the Mall Shimla. The premises i.e. the servant quarter under tenancy consists of one room and is said to be residential. Ejectment has been sought on the ground that the tenant has acquired a residential building in Shimla which consists of seven bed-rooms. Ground of arrears of rent was also taken but the same does not survive. Ejectment is also sought on the ground that the building known as Craig Villa of which the tenanted premises are a part is required by the landlords for the purposes of rebuilding and reconstruction and the same cannot be carried out without the tenanted premises being vacated. It is said that the Municipal Corporation has also served notices to the landlords that the building has become dangerous, dilapidated and unfit, unsafe for human habitation and that the same be demolished and rebuild. The landlords have pleaded that the building being 150 years old has out-lived its value and utility and substantial additions and alterations have to be carried out after getting it vacated. It is also pleaded that petitions stand filed against each of tenants occupying different portions in the main building and many of them have vacated it and therefore the tenant be ejected therefrom.
3. The petition has been hotly contested by the tenant who has denied the building to be residential and has taken up the plea that the same was taken for the purpose of storing the material and was non-residential. As per tenant he is carrying on sweets shop near the tenanted premises and is storing wood, fuel and other material and the quarter is being used purely for non-residential purposes and was never let out for the purpose of residence. It was denied that the building has become unfit and unsafe for human habitation. It was pleaded that the building though old is fit for human habitation. It has also been denied that the premises are bona fide required by the landlords for the purpose of reconstruction and rebuilding and that the landlords are required by the Municipal authorities to demolish the building as it had outlived its utility.
4. From the controversy arising between the parties the following issues were framed by the learned Rent Controller:
1. Whether the premises in question are bona fide required by the Petitioners for rebuilding as alleged ? OPP
2. Whether the premises in question have become dangerous and rebuilding is required to be carried out at the instance of Municipal Corporation as alleged ? OPP
3. Whether the premises in question were let out to the Respondent for non-residential purposes ? OPR
4. If issue No. 3 is proved, whether the Respondent is liable to be evicted ? OPP
5. Relief.
5. On appreciation of the material placed on record by the parties issue No 1 was held in favour of the landlords and it was found that the premises in question are bona fide required by the landlords for the purposes of rebuilding and reconstruction as alleged by them.
6. On issue No. 2 finding was returned in favour of the landlords that the premises are unfit and unsafe and have gone dangerous to the extent that the entire premises are to be rebuild at the instance of the Municipal authorities. Issue No 3 was found in favour of the tenant and a finding has been returned that the premises in question were let out to the tenant for non-residential purposes. As the findings on issue No 3 went in favour of the tenant the finding on issue No 4 which was dependent on issue No 3 stands returned against the landlords. The ejectment petition was consequently allowed and ejectment order stands passed against the tenant. Feeling agitated against the order of ejectment passed by the learned Rent Controller the tenant filed an appeal that came to be decided by the learned appellate authority vide judgment dated 24th of September 1992. It would be useful here to make a mention that the landlords did not file any appeal or cross appeal in respect of the findings returned against them on issues No 3 and 4. The learned appellate authority on reappraisal of the entire material has set aside the findings recorded by the learned Rent Controller on issues No. 1 and 2 and has found that the landlords have failed to prove the premises in question are bona fide requited by them for rebuilding. It has also been found that the landlords have failed to prove the premises in question have become dangerous and rebuilding and reconstruction is required to be carried out at the instance of the municipal authorities.
7. The findings recorded in favour of tenant under issue No. 3 stands reversed and it has been found that the premises in question are residential and the tenant had changed its use to non-residential and thus has rendered himself liable to eviction from the premises under his tenancy. Resultantly per operative part of the judgment the appeal stands dismissed but the net result is that the ejectment petition stands allowed as a result of reversal of the findings on issue No. 3. Civil Revision No. 157/93 has been filed by the landlords laying challenge to the impugned judgment in so far as the decision of the Rent Controller on issues No. 1 and 2 has been reversed. Civil Revision No. 269/92 has been filed by the tenant feeling agitated against the reversal of the findings recorded by the learned Rent Controller on issues No. 3 and 4.
8. Mr. Kuldip Singh learned Counsel appearing for the tenant while opening the address vehemently contends that the judgment passed by the learned appellate authority in so far as findings on issues No 1 and 2 have been reversed is perfectly justified and proper but there was no occasion for reversing the well reasoned order passed by the Rent Controller holding that the premises under occupation of the tenant are non-residential. The learned Counsel strongly emphasises that absolutely a new ground has been made out by the learned appellate authority in respect of the change of user from residential to non-residential which ground was neither pleaded nor proved. The argument proceeds on the basis that the ejectment of the tenant was sought by raising a plea that the tenanted premises were let out for residential purposes and that the tenant has acquired in the municipal area of Shimla a building consisting of seven bed-rooms and thus the tenant is liable for ejectment from the tenanted premises. Under the Act the change of user is an independent ground for seeking ejectment of tenants. Learned Counsel has taken me through the ingredients as pleaded in para 18 of the petition. My attention has also been brought to the provisions contained in Section 14(3)(iv) of the Act. Under the said provision a landlord can apply to the Controller for an order directing the tenant to put the landlord in possession in case of a residential building if the tenant has, whether before or after commencement of the Act, built or has acquired vacant possession of or has been allotted residence reasonably sufficient for his requirement.
9. In so far as acquisition of reasonably sufficient accommodation for purposes of residence is concerned the same has not been disputed and no arguments laying challenge to it have been advanced. But this provision would apply only if the building is a residential building. Only in that situation an order of ejectment can be passed directing the tenant to put the landlord in possession of the premises which are residential in nature on the tenant having acquired suitable and sufficient residence to meet his requirements. It was on this ground as pleaded in the petition, that the ejectment of the tenant was sought by the landlords.
10. u/s 14(2)(ii)(b), a tenant in possession of a building or rented land can be ejected under the provisions of the numerous clauses mentioned in Section 14 and under the relevant provision referred to above an ejectment order shall follow when it is found that the tenant after commencement of the Act without the written consent of the landlord has used the building or rented land for a purpose other than that for which it was leased out.
11. A reading of the petition coupled with the reading of the provisions immediately referred to above makes out that the landlords never took up the plea that the building is being used for the purpose other than that for which it was leased out. The ground of ejectment was embraced under Sub-clause (iv) of Sub-section (3) of Section 14 of the Act which is totally a different and independent ground for seeking ejectment of the tenants.
12. Mr. K.D. Sood appearing from the side of the landlords has been very fair in conceding that the learned appellate authority has made out totally a new ground while reversing the findings recorded by the learned Rent Controller on issues No. 3 and 4. It has been fairly conceded that the ground in respect of the change of user was never set up by the landlords in seeking ejectment of the tenant from the premises in question.
13. On perusal of issue No. 3, its language does not make out a case of change of user. All what the Petitioner had pleaded was that the premises in question were residential and were let out to the Respondent. It was the Respondent-tenant who had in his reply set up the plea that the premises are non-residential in nature and were let out for that purpose by the landlords. The burden of issue in the situation was put on the tenant.
14. The learned Rent Controller while dealing with this issue from para 18 onwards in the order accepted the statement of the tenant that the premises were taken by him for the purposes of setting up a godown and were not let out to him for residential purposes. It was also found that the premises were being used for storing coal, firewood etc. To the similar effect is the inspection note of the learned Rent Controller who had the occasion to inspect the site in question during the trial of the case. It was held that the landlords had not placed any cogent evidence on record to prove that the premises were let out for residential purposes and there was only the statement of PW 1 in this respect and there was no corroborative piece of evidence supporting this plea. It was in this situation the finding came to be recorded in favour of the tenant.
15. It would be pertinent to refer to the findings recorded under issue No. 4 in para 23 of the order passed by the learned Rent Controller. It has been observed that since under issue No 3 it has been found that the demised premises were let out for non-residential purposes it could make a ground of change of user for seeking ejectment of the tenant. It was however observed that the acquisition of a residential house by the tenant though stands proved but the same does not incur any liability for the tenant for his eviction from the demised premises because it was never let out to him for the purpose of residence. Issue No 4 consequently was held against the landlords and it was observed that the tenant cannot be held liable for ejectment on the ground of change of user.
16. The learned appellate authority while dealing with this matter under point No. 3 from para No. 34 onwards after relying upon certain decisions has observed that though the landlords have not filed any cross-objections but as per law laid down the landlords could support the order of eviction by canvassing the correctness of the findings held against them even without filing an appeal or cross objections. Reliance was placed on the provisions contained in Order 41, Rules 22 and 33 of the CPC It was on the analogy of these provisions it was found that the landlords could lay challenge to any finding recorded against them although the decree itself was in their favour.
17. It was in this situation that the case was examined whether the premises ate residential or non-residential. The learned appellate authority found that there was one version put up by the landlords consisting of the statement of PW 1 Satwant Singh Kochhar to the effect that the premises are residential and were rented out as such. An observation has been made that there was nothing in the cross-examination of the witness which could dislodge what he had stated earlier in his examination. It was further found that concededly there are five servant quarters attached to the main building which is known as Craig Villa and there are four such other quarters in one row. This is even admitted by RW 1 Amar Nath the tenant and is also found so in the inspection note dated 4th of July, 1988. It was thus found that since four similar servant quarters adjoining the one in dispute are being used by the tenants for residential purposes only, the 5th quarter i.e. the one in dispute is also residential and thus the Rent Controller had gone wrong in holding that the tenanted premises were nonresidential and have been used as such from its very inception.
18. It was after making these observations that the learned appellate authority held that as admittedly the premises were being used as a store for keeping coal, firewood and other material which is used in a Halwai shop, therefore, are being used for a commercial purpose and the tenant could not escape his liability for eviction on the ground of change of user.
19. The matter can be viewed from Anr. angle also. When the finding recorded on issues No. 3 and 4 was not specifically challenged by the landlords either by way of filing appeal or cross-objections it would mean that they accepted the decision made by the learned Rent Controller on the point. It appears that since the tenant was ordered to be ejected in view of the findings on issues No. 1 and 2, the landlords felt satisfied and accepted the decision on the point made by the learned Rent Controller. The learned appellate authority in my view completely deviated itself from the pleadings and the ground on which the eviction of the tenant was sought.
20. Mr. Kuldip Singh is absolutely right in his submission that the learned appellate authority made out totally a new case for ordering ejectment of the tenant on the ground of change of user which was never pleaded nor proved. Therefore, the findings recorded in this respect are hereby set aside and the ejectment of the tenant cannot be ordered on this ground.
21. The second ground on which the ejectment is sought is whether the premises in question are bona fide required by the Petitioners for the purposes of rebuilding and reconstruction as pleaded by them. The learned appellate authority while reversing the decision of the learned Rent Controller on this point has given its reasoning''s from paras 11 to 22 and has come to the conclusion that there was no cogent and reliable material on record to prove that the premises are bona fide required by the landlords for the purposes of rebuilding. A reading of the observations made in this respect in the impugned judgment and the record makes out that the learned appellate authority has chosen to project only a side picture of the material on record. It has been observed that the landlords have also stated that additions and alterations are to be carried out in the entire building. This statement has been projected to mean that additions and alterations are not something as rebuilding and the same can be carried out without the premises being vacated. It has also been observed that the petition appears to have been filed by a desire to get the enhanced rent. It appears the learned appellate authority was impressed to make this observation in view of the fact that the premises are situated at the Mall and that the rent that is being paid by the tenant is only Rs 30 p.m. This should not have been the ground to raise inferences in the manner these have been made. It is also said that no sanctioned plans have been obtained for the purposes of reconstruction nor any material for the purposes of construction has been stored nor the landlords have been able to place material on record as to what are the finances available with them and whether they would be in a position to meet the cost of construction or not.
22. The learned appellate authority has thus doubted the bona fide of the landlords and found that the claim put up by them is false. From my point of view there is no such statutory requirement that the building plans have to be got sanctioned before ejeetment is sought. When the ejectment petition is filed no one is sure about the time consuming factor in litigation and thus the storing of the building material would lead to nowhere. In so far as cost of rebuilding and reconstruction the same has been estimated at Rs. 75 lakhs. As per observations made by the learned appellate authority the landlords have only Rs. 10 lakhs with them and they have not been able to prove as to how they are going to meet the deficit. The arrangement to be made in respect of the finances is only a circumstance in order to test the bona fide and is not a requirement of law.
23. Mr. Kuldip Singh has pressed in service the observations made by the Hon''ble Supreme Court in
24. There is no dearth of arranging the finances in to days date as lot of financial corporations, banks and persons having surplus money do always lent out for such projects. The reasoning adopted by the learned appellate authority does not appear to be correct. It is at this stage that the statement of PW 7 C. L Gupta an architect who has appeared for the landlords cannot be ignored. it is in his statement that he has stated that the landlords has paid him Rs. 5,000 for the preparation of the plans and payment has already been made. This part of the statement has been brushed aside on the ground that there is no documentary proof in respect of any such payment. It is for the Rent Controller before whom the evidence is recorded to Judge the intention of the landlords in the given situation whether he actually intends to rebuild and reconstruct the building and has bona fide intentions or not. The findings have not to be disturbed by pick and choose method from the statements of the witnesses to project only one side of the picture. The entire material has to be examined as a whole and is to be appreciated thereafter.
25. Whether the landlords require the premises for the purpose of rebuilding is also covered under issue No 2 and it has to be found whether they are required and are under the threat of the municipal authorities as to the dangerous condition of the building and the premises are to be rebuilt as is required at their instance. This point has been dealt with by the learned appellate authority under point No 2 starting from paragraphs 22 to 33. At the cost of repetition it has to be observed that the learned appellate Court in order to give a finding on this issue has again relied upon pick and choose method in appreciating the evidence. There is voluminous evidence on record to prove that the premises have gone unfit and unsafe for human habitation and have become dangerous and that need immediate rebuilding after demolition Besides 8 witnesses, two out of whom are experts. There are notices and letters Exts PD, XI, PC, PB and the report Ext PW 8/A prepared by the expert S.P. Kapoor who have been examined as PW 8. On a reading of the notices and letters it makes out that proceedings u/s 133 of the Code of Criminal Procedure regarding the dangerous condition of the building already stand initiated by the municipal authorities. This is again a conceded fact that the building is 150 years old. Mr Kuldip Singh is at pains to contend that simply because the building is old the same is not a ground for ordering ejectment of the tenants unless it is found to be dangerous, unfit and unsafe for habitation. There is no quarrel with this proposition and the submissions made by the learned Counsel are correct that the age of the building by itself is no ground for ordering ejectment. The statement of Pritama Malhotra examined as PW 2 throws sufficient light on the present controversy in respect of the condition of the entire building to the similar effect is the statement of PW 5 Ashwani Kumar from the office of D. F. O. There is further statement of Dutt Ram, Junior Engineer of the Municipal Corporation Shimla examined as PW 6. Besides them, there are statements of PW 7 C L Gupta, an Architect and PW 8 who is also an expert witness. The learned appellate authority has wrongly interpreted these notices and letters that the building can be set right by making extensive repair and the entire building need not to be demolished and that it is worth habitation. The inspection note recorded by the learned Rent Controller has been brushed aside on the ground that he is not an expert and therefore no reliance can be placed on the inspection note. In my view the inspection note does carry a value to the extent as the things have appeared and in what shape. It would be useful to make reference to the said report here at this stage. This note is at page 54 of the trial Court record and therein it is observed that the building/disputed premises have been found to be in an inhabitable condition. Major cracks were found on the floors and varandas as well as in the kitchen and the workshop where the sweets are prepared. The outer wall is said to have been broken at various places and some repairs seemed to have been carried out to cover it by the occupants. It has been observed that overall condition of the premises was bad and the building is inhabitable. This note has to be appreciated in the light of the report of the expert S.P. Kapoor Ext PW 8/A. The building has been inspected by him extensively and he has opined that the same is more than 100 years old and is in dilapidated condition. As per report, the stairs have fallen and have vanished. The stairs leading to the servant quarters are said to have sunk and tilted. The walls are said to have been gone out of plumb and the servant quarters including the one in dispute is said to be inhabitable and is in a collapsing condition. A categoric finding has been given by the expert that the entire building is an old structure and needs rebuilding and re-erection. A reading of this report does make out that the entire building has outlived its utility and is unfit and unsafe for human habitation
26. A perusal of the order passed by the learned Rent Controller reveals that the entire evidence on this issue has been taken notice minutely and stands appraised in proper perspective. Both the issues i.e issues No. 1 and 2 being inter connected have been clubbed together and discussed from paras 6 to 17 of the order. It would not be useful to burden this judgment by repeating what has been said by the learned Rent Controller. I am in total agreement with the reasoning''s given by him. In my considered view the building appears to have outlived its utility and it is not when the building or part of it totally collapse that an ejectment order has to be passed. I am also of the view that carrying out extensive repairs here and there would not serve the purpose and the entire structure has to be pull down and then a new building has to be raised as is sought to be built by the landlords.
27. Mr. Kuldip Singh has pointed out that in the statement of PW 7 he has stated that the building is worth habitation. A line or two have not to be picked up from entire statement and a statement as a whole has to be appreciated.
28. Lot of case law has been cited for and against by both the sides. Each case has to be decided on the facts pleaded and proved. Of course broad principles laid down have to be taken note of and for that proposition there is no dispute. In my view there is no need to examine the case law in order to resolve the controversy presently in dispute between the parties. Before concluding it needs to be taken notice of a judgment passed by this Court reported in
29. In view of what has been said above the judgment of the learned First Appellate Court in passing an order of ejectment of the tenant on the ground of change of user is concerned is set aside and it is held that the ejectment of the tenant cannot be ordered on that ground. Consequently the order passed by the learned Rent Controller in so far as the findings recorded on issues No 3 and 4 are concerned is upheld. Thus, the Revision Petition filed by the tenant is allowed in the aforesaid terms.
30. The Revision Petition filed by the landlords is allowed and the judgment passed by the learned appellate authority reversing the order of the learned Rent Controller on issues No. 1 and 2 is set aside and the one passed by the learned Rent Controller is upheld. Resultantly, the ejectment petition filed by the landlords is allowed in terms of the order passed by the learned Rent Controller. The tenant is however granted a period of 3 months from today provided he files an undertaking in the form of an affidavit before this Court within two weeks from today to the effect that he would peacefully vacate the premises and put the landlords in possession of the tenanted premises immediately on the expiry of three months. In addition to this the tenant shall pay to the landlords by way of a bank draft entire arrears of rent due till date plus rent of further three months with 12% interest within 2 weeks. In case the undertaking is not filed and the arrears of rent along with future rent of three months are not paid as said above the landlords would be entitled to be put in possession of the premises in question forthwith i.e. after the expiry of two weeks from today. Both the Revision Petitions are consequently ordered to be disposed of in the aforesaid terms. There would however be no order as to costs.
