RAMGOPAL HAZARIMAL PARIKH Vs. RIKHABCHAND SUMERMAL SURANA

JUDGEMENT

(1.) These cross Revision Applications arise out of the judgment and order of the learned District Judge, Aurangabad whereby he dismissed the appeal filed by the tenant Ramgopal and confirmed the order of eviction passed by the Rent Controller only on the ground that landlord Rikhabchand was entitled to possession of the suit premises under section 15(3)(a)(iv) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, (hereinafter referred to as the Act). He directed that the tenant should be given three months time to vacate the premises. He also directed that on completion of the construction work the landlord shall offer to the tenant occupation of the premises constructed or such part thereof as the tenant may in writing communicate. He directed the tenant to pay subject to the determination of reasonable rent an amount by way of rent not less than 6 per cent on the investment of the plaintiff in respect of the premises before to be occupied by him. These two Revision Applications arise out of an application made by the landlord for eviction of the tenant on four grounds, viz. (1) that the landlord required the possession of the house for his own occupation, (2) that the tenant had denied the title of the landlord or claimed a right of permanent tenancy and such denial of claim was not bona fide, (3) that the tenant had secured alternative house, and (4) that the landlord desires to carry out essential repairs or alterations to the house which cannot be made without the tenant vacating the house, that the landlord bona fide required the house for the purpose of building or rebuilding and that the landlord bona fide required the house for making substantial additions which cannot be made without the tenant vacating the house. Landlord is the owner of a house bearing Municipal No. 3-3-10 situate at Sarafa, Aurangabad. According to him, Ramgopal is the tenant of the said house on a monthly rent of Rs. 250/-. On March 2, 1971, he filed an application against the tenant for his eviction on the aforesaid four grounds. The written statement of the tenant is somewhat unhappily worded. In paragraph 1 of the written statement the tenant denied the ownership of the landlord in respect of the suit house. However, in the subsequent paragraphs he has been described as a landlord. In paragraph (e) of the Additional written statement (which is in fact part of the original written statement filed by the tenant), he has stated that he spent a sum of about Rs. 10,000/- with full knowledge of the then landlord to bring the house suitable for the boarding and lodging as the premises were taken on Rent permanently. The Additional Rent Controller before his whom the application came up for hearing held that the suit house was in a dilapidated condition and the landlord required the same for construction purpose, that the landlord required the suit house for personal use bona fide that the tenant secured alternative accommodation and that the landlord had terminated the tenancy of the tenant by issuing a notice. An additional issue was framed upon the application of the landlord whereby in view of the contentions raised by the tenant in his additional written statement pertaining to the tenant being a permanent tenant of the suit house. Though in answer to the issues given by the Addition Rent Controller this issue has been regarded as proved, but what he really wanted to convey was that the taking of such a plea entitled the landlord to evict the tenant. In view of these findings, the tenant was directed to vacate the suit house and hand over possession of the same to the landlord within a period of 30 days from the date of the order. It may be stated that the issues were framed by Additional Rent Controller on November 30, 1971, and the additional issue as regard the tenant claiming permanent tenancy was raised on July 11, 1972. After the evidence of both the parties was closed on September 18, 1973, an application was mad by the tenant for amendment of the written statement whereby he wanted two amendments to be effected. The first amendment was pertaining to an averment made in the written statement whereby the title of the landlord was denied. By the amendment he wanted to allege that he accepted the title of the landlord. By the second amendment, he wanted to delete the word permanently from the original written statement wherein a claim of permanent tenancy was made. After this application was made by the tenant on October 2, 1973, the landlord made his application for amendment of the claim whereby he wanted to contend that in view of the plea as to permanent tenancy made by the tenant in his written statement, he was entitled inter alia to a decree for eviction. Both these applications made by the tenant and the landlord were disposed of by a common order by the Additional Rent Controller passed on August 6, 1974. He rejected the application of the tenant for amendment. He stated in his order that the tenant had not raised any objection when the additional issue was raised. He also observed that both the parties led evidence on the issue and it was merely at the stage of final arguments that an application for amendment of the written statement was made. On this ground he rejected the application of the tenant for amendment of the written statement. So far as the application of the landlord for amendment of the plaint was concerned, he also rejected the same though in the order he stated that on July 11, 1972 an additional issue as regards permanent tenancy was raised and both the parties led evidence on the said issue. According for him, this evidence covers the plaintiffs case in relation to the issue as to the permanent tenancy. After making these observations in the order, he, however, stated that at the stage of arguments plaintiff cannot be allowed to amend the plaint. It may be stated that against this Order passed by the additional Rent Controller on August 6, 1974, an appeal was preferred before the learned District Judge, Aurangabad. However, by his order dated September 7, 1974, he rejected the same on the ground that it was not maintainable. Thereafter on September 30, `1974, the tenant made a Revision Application to the High Court being Civil Revision Application No. 884 of 1974, both against the order of the learned District Judge, Aurangabad dismissing the appeal on the ground that it was not maintainable as well as against the order of the Additional Rent Controller whereby he rejected the tenants application for amendment. In Revision application notice before admission was directed to be given to the landlord and after hearing the Advocates of the tenant as well as the landlord, Joshi, J. by his order dated October 31, 1974, rejected the said Revision Application and vacated the interim stay that was granted pending admission.

(2.) Against the order passed by the Additional Rent Controller on August 13, 1975, an appeal being rent appeal No. 16 of 1975, was preferred by the tenant which was disposed of by the learned Assistant Judge, Aurangabad by his order dated April 30, 1976, and he remanded the matter back to the Rent Controller. Against the said order passed by the learned Assistant Judge, Special Civil Application being Special Civil Application No. 3583 of 1976 was filed before the High Court. On July 2, 1976, by consent of the parties, the order passed by the learned Assistant Judge was set aside and the matter was sent back to the learned District Judge, Aurangabad, for disposal in accordance with law. It was thereafter that the original appeal filed by the tenant was disposed of by the learned District Judge, Aurangabad by his order dated November 19,1976. The learned District Judge, Aurangabad rejected all the contentions of the landlord except one. He held that the landlord was entitled to possession of the suit house under the provisions of section 15, sub-section (3)(a)(iv) of the Act and gave the directions as indicated earlier. It is against this order passed by the learned District Judge that the two Revision Applications have been filed. Civil Revision Application No. 124 of 1977 is filed by the tenant, while Civil Revision Application No. 349 of 1977 is filed by the landlord.

(3.) Mr. Agrawal on behalf of the landlord not only supported the order that was passed by the learned District Judge but he also contended that the order of eviction passed by the Additional Rent Controller ought to have been restored on all the four grounds that were urged by the landlord before him. He submitted that the landlord required the suit house for his bona fide personal occupation and the learned District Judge was in error in rejecting the said contention. He also urged that by his written statement the tenant had made a claim of permanent tenancy and in his deposition before the Additional Rent Controller he clearly admitted that such a claim was made with a mala fide intention of claiming permanent tenancy. He submitted that in view of such a claim the landlord was entitled to evict the tenant having regard to the provision of section 15(2)(vi) of the Act. In relation to this contention, he submitted that even though an application of the tenant for amendment of his written statement inter alia in respect of deletion of his plea of permanent tenancy was rejected by the Additional Rent Controller and the said order was in effect confirmed by the High Court when it rejected the Civil Revision Application filed by the tenant, still the learned District Judge in his judgment allowed amendment to be effected to the same effect. His submission was that having regard to the past history in relation to the application for amendment of the written statement it was not permissible to the learned District Judge to adopt such a course. He also tried to support the order passed by the learned District Judge for eviction having regard to the provisions of section 15(3)(iv) of the Act and lastly he submitted that as the tenant had acquired alternate accommodation in the City, the landlord was entitled to evict of the tenant under the provisions of section 15(2)(v) of the Act. In short, his submission was that the order passed by the Additional Rent Controller ought to have been confirmed by the learned District Judge and the order of eviction should not have been restricted to the mere ground contained in section 15(3)(iv) of the Act. Mr. Savant, on the other hand, on behalf of the tenant submitted that having regard to the provisions of the Act, the mere fact that the landlord required the premises bona fide for his personal residence was not a sufficient ground to enable the landlord to evict the tenant. As regards the plea of permanent tenancy, he submitted that the learned District Judge was right in allowing the application for amendment of the written statement made by the tenant where by the plea as regards claim to permanent tenancy was deleted by the tenant and the tenant accepted the ownership of the landlord in respect of the suit house. He, therefore, submitted that once the amendment application was dealt with by the learned District Judge, it is not permissible to a landlord to ask for eviction of the tenant merely on the ground that initially in his written statement the tenant had put in a plea of permanent tenancy. He also submitted that when the plaint was filed, such a plea was not to be found and merely an additional issue was sought to be raised at a late stage on July 11, 1972, in relation to the plea as to permanent tenancy. In the absence of a plea in the plaint his submission was that the landlord ought not to have been permitted to raise such an issue and the learned District Judge was, therefore, justified even at the stage of appeal to allow the amendment application in respect of the written statement. So far as the landlords plea in relation to the tenant having alternate accommodation was concerned, he urged that the house in question was used by the tenant as a Boarding and Lodging house, while the house which was admittedly acquired by his wife was unsuitable for such purpose. Merely because the tenants wife acquired a house, it cannot be stated that such house is automatically fit for conducting the business of Lodging and Boarding House and the landlord was not entitled to evict the tenant on the ground that his tenant has secured alternate house or accommodation. Lastly, he submitted that the learned District Judge was in error in confirming the order of eviction on the ground that the landlord desired to carry out the essential repairs or alterations to the house which could not be made without the tenant vacating the house or that the landlord bona fide required the house for the purpose of building or rebuilding or that the landlord bona fide required the house for making substantial additions which cannot be made without the tenant vacating the house. In short, his submission was that the confirmation of the order of eviction by the learned District Judge on the above ground was unjustified and he ought to have dismissed the application that was made by the landlord for the tenants eviction.