Civil Revision No. 64 of 2013. Case: Madan Mohan Vs Ishwar Chand. Himachal Pradesh High Court
| Case Number | Civil Revision No. 64 of 2013 |
| Counsel | For Appellant: B.B. Vaid, Advocate and For Respondents: Karan Singh Kanwar, Advocate |
| Judges | Rajiv Sharma, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VI Rule 2; Order XVIII Rules 1, 4; Himachal Pradesh Urban Rent Control Act, 1987 - Sections 11, 12, 13, 14, 14(3)(c), 18, 19, 20, 33; Madhya Pradesh Accommodation Control Act, 1961 - Section 12(1)(h); Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 13(3)(a), 14(1)(b) |
| Judgement Date | July 08, 2013 |
| Court | Himachal Pradesh High Court |
Judgment:
Rajiv Sharma, J.
1. This petition is directed against the judgment dated 16.10.2012 passed by the Appellate Authority-1, Sirmaur District at Nahan in Rent Appeal No. 117-RA/14 of 2010. "Key facts" necessary for the adjudication of this petition are that the respondent-landlord (hereinafter referred to as the "landlord" for convenience sake) filed a 1 Whether reporters of the local papers may be allowed to see the judgment yes petition under section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the "Act" for brevity sake) seeking eviction of the petitioner-tenant (hereinafter referred to as the "tenant" for convenience sake). According to the landlord, the premises were occupied by tenants Rangeela Swami, Rakshu, Usha, Anita and Kanta. Usha and Anita were married and were not residing in the premises. The premises comprised of three rooms, kitchen, Dehleez, latrine, bathroom in the ground floor and four rooms on the first floor and amenities regarding water and electricity have been provided. The monthly rent of the premises in question was ` 500/-. The building is more than 100 years old and the premises were let out to the predecessor of the tenants Kanti Narain in the year 1988 at the rate of ` 125/- per month. However, from April, 1998, the rent was mutually increased to ` 500/- per month. The increased rent was paid by the tenant Kanti Narain during the months of April and May, 1998. The grounds of the eviction of the tenants are as under:
(i) that the respondent have failed to pay the rent of the premises w.e.f. June, 1998 till date (June, 2004) at the rate of ` 500/- per month minus ` 5125/- sent by the respondent No. 3 Madan Mohan vide his letter dated 29-05-2001 through bank draft dated 24-09-2001 drawn on Central Bank of India, Shambuwala. Therefore, the respondents are liable to pay the arrears of rent amounting to ` 31,375/- from the date of its accrual to the date of its actual payment along with interest at the rate of 9% per annum.
(ii) That the premises are quite old and constructed of Lahori bricks with mud mortar, walls are of 1= feet in width and there are some cracks appearing in the walls and the floors and roofs are not in good condition, therefore, the petitioner in the light of his own need requires the premises in question for rebuilding with modern technique which cannot be carried out without the building being vacated by the respondents and the petitioner has sufficient funds and source to rebuild the premises and the petitioner has already got approved the building plan from the Municipal Council, Nahan;
(iii) That the premises after such reconstruction are required by the petitioner for his own use and occupation, as his family, who is not occupying any other residential building of any kind in this urban nor he has vacated such a building without sufficient cause within five years prior to filing the petition. The petitioner is residing in village Shambuwala much far away of M.C. area and now circumstances have become conducive to raise construction of the house only after which he along with his family members will be able to live in the urban area where he wants to resettle with start of business."
2. The tenants have resisted and contested the petition of the landlord by filing reply. According to the tenants, monthly rent of the premises was ` 125/-. The building was only 45 years old. The increase of rent from ` 125/- to ` 500/- per month was denied. The father of the tenants has never signed any agreement with the landlord for the alleged enhancement of rent. The landlord himself has signed the diary. They are not in arrears of rent. After the death of their father in December, 1999 rent upto August, 2001 has been paid. The landlord has received the rent upto August, 2001 and thereafter he refused to receive the rent without any reason. The tenants were in arrears of rent from September, 2001 at the rate of ` 125/- per month. The building was good and worth living. The walls of the building have not developed any cracks. The premises in questions were not required by the landlord for reconstruction. The landlord has sufficient vacant land and building in Muhal Haripur near Jhanda Ji on Nahan-Shimla Road. He is also having another property situated in Bazaar, Gunnu Ghat, Nahan.
3. The rejoinder was filed by the landlord. The Rent Controller framed the issues on 6.8.2005. The Rent Controller allowed the petition on the ground of nonpayment of arrears of rent and on the ground that the premises were required by the landlord for rebuilding, which could not be carried out without the building being vacated by the tenants. The premises were also required bona fidely by the landlord for his use and occupation. The tenants were in arrears of rent of the premises with effect from September, 2001 to 30.4.2010 with interest @ 9% per annum, which came to be ` 5,118/- total ` 18,118.75 paise. The tenants were directed to make the payment of the amount, i.e. ` 18,118.75 paise within 30 days from the date of order, failing which, they were liable to be evicted from the premises. The tenants were directed to handover the vacant possession of the premises to the landlord. One of the tenants Madan Mohan filed an appeal before the Appellate Authority. The Appellate Authority dismissed the appeal on 16.10.2012. Hence, the present petition against the judgment dated 16.10.2012.
4. Mr. B.B. Vaid has vehemently argued that the landlord has failed to prove that the building was in good condition and there was no question of rebuilding the same. He has also argued that the landlord has failed to prove the bona fide requirement of the premises for own use and occupation. He has also contended that the tenants were not in arrears of rent. He has lastly contended that the procedure provided under order 18 rule 4 of the Code of Civil Procedure has been wrongly followed by the Rent Controller while recording the evidence of the parties.
5. Mr. Karan Singh Kanwar has supported the judgment and order passed by both the courts below.
6. I have heard the learned counsel for the parties and have perused the records carefully.
7. The landlord Ishwar Chand has appeared as PW-4. He has tendered his affidavit in evidence under order 18 rule 4 of the Code of Civil Procedure. According to the affidavit, there are three rooms on the upper floor, which had been given to Kanti Narain, predecessor-in-interest of the tenants, at the rate of ` 125/- per month. The rent was enhanced from ` 125/- to ` 500/- per month with the consent of Kanti Narain. It was enhanced in the presence of Ramkishan Sharma and Gita Sharma. The entry to this effect was made in the diary Ex.P-9. Kanti Narain has paid the rent for the months of May, 1998 at the rate of ` 500/-. Thereafter, from June, 1998, the tenants have not paid rent at the rate of ` 500/- per month. He has received a sum of ` 5,125/- through bank draft under protest. According to him, the building was required by him for re-building, which could not be carried out without the building being vacated by the tenants. There are cracks in the walls of the building and plaster of the building is also damaged. The walls of the building are 1= feet in width and he wants to convert the same by raising walls of 9". His grand son and daughter are studying in Holy Heart School, Nahan. They are coming daily to Nahan from Shambuwala. He is not having any house at Nahan. He has not vacated any other residential building without sufficient cause in the urban area of Nahan within five years of filing the present petition. One of the tenants has purchased plot No. 63 from Housing Board. He has sufficient amount for reconstruction of building. He is having two FDRs of ` 2,00,000/-with him. The remaining amount will be arranged by him by raising loan.
8. PW-1 Smt. Veena Chauhan has testified that according to record, Ayush Gupta and Anshika Gupta are coming to Holy Heart School, Nahan from Shambuwala. She has proved Ex.P-1 to Ex.P-5.
9. PW-2 Smt. Kamlesh Goyal was posted in HIMUDA as Senior Assistant. She has brought the record of plot No. 63. It was allotted to Madan Swami, one of the tenants.
10. PW-3 Balkishan has proved the site plan Ex.P- 8, which was issued vide forwarding letter Ex.P-7.
11. PW-4 Ranbir Singh has deposed that he has seen the disputed house. It has two floors and four rooms are on the first floor and three rooms alongwith kitchen in the ground floor. The building was 100 years old. The life of the building was over. The floors of the building are damaged. There are cracks in the walls and the roof is also old. The life of the tin is also over. According to him, the reconstruction of the building was not possible without eviction of the same by the tenants. ` 5/6 lakhs would be required for reconstruction. The construction plan of building Ex.P-8 has been prepared by him.
12. PW-6 Ramkishan has led his evidence by way of affidavit. According to him, he was working as driver with Ishwar Chand on monthly payment of ` 2,000/-. On 28.3.1998, Kanti Narain, tenant of the landlord had come alongwith rent and handed over the rent to Ishwar Chand in his presence. On the same day, it was agreed that from April 1998, the rent will be ` 500/- per month.
13. One of the tenants Madan Mohan has appeared as RW-2. According to him, the disputed premises were taken on rent by his father from the landlord on monthly rent of ` 125/-. After the death of Kanti Narain, the house was in tenancy of the tenants being his successors. The electric meter was got installed by him in the year, 1992. No written agreement of the rent was ever executed between Kanti Narain and landlord. Kanti Narain was patient of paralysis. After the death of Kanti Narain, he had sent rent from April, 1998 to August, 2001 at the rate of ` 125/- per month through bank draft dated 24.9.2001 to the landlord which was duly received and encashed...
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