STATE Vs. STATE

JUDGEMENT

(1.) ORDER of limited remand:- Present civil revision petition is filed under Sec. 24(5) of H.P. Urban Rent Control Act 1987 against the order passed by learned Appellate Authority Shimla in Civil Miscellaneous Appeal No. 90-S/14 of 2005 dated 2.4.2007 whereby learned Appellate Authority affirmed order of learned Rent Controller (2) Shimla. Brief facts of the case

(2.) Shri Onkar Chand and others filed eviction petition under Sec. 14 of H.P. Urban Rent Control Act 1987 for eviction of tenants pleaded therein that premises is non-residential and water and electricity connections are provided in premises. It is pleaded that premises is situated in 5-5/1 Upper Kaithu Shimla and it is pleaded that monthly rent is Rs. 350.00 per annum. It is pleaded that premises let out to Shri Pritam Singh in the year 1959. It is pleaded that after death of Shri Pritam Singh his widow Smt. Mohinder Kaur became tenant in premises and she used to pay rent. It is pleaded that Smt. Mohinder Kaur died on 10.8.1984 and tenants who were residing with her became tenants. It is pleaded that tenants are in arrears of rent along with interest to the tune of Rs. 10373.00. It is pleaded that tenants have impaired the value and utility of premises and have unauthorisedly and illegally constructed new rooms on vacant land and have also installed saw machine. It is pleaded that tenants have converted the premises into residential purpose whereas premises given to them only for commercial purpose. It is pleaded that landlords intend to raise new structure and new construction could not be carried out without eviction of tenants. Prayer for acceptance of petition sought.

(3.) Per contra response filed on behalf of tenants pleaded therein that present petition is bad for nonjoinder of necessary parties. It is pleaded that tenancy rights have been inherited along with four sisters and they have not been impleaded as co-party. It is pleaded that petition is also barred on principle of res judicata. It is pleaded that predecessors-in-interest of tenants have filed the eviction petition on same ground which was dismissed on merits and it is pleaded that present petition is not maintainable. It is also pleaded that landlords are estopped by their act, conduct and acquiescence to file the present petition. It is pleaded that present petition is barred under Order 9, Rule 9 CPC. It is pleaded that nature of premises from inception is non-residential. It is pleaded that from inception of tenancy one family member of tenants used to stay in premises during night just to keep watch and ward of furniture business. It is pleaded that manufactured furniture is kept in open sheds and it is necessary to keep one family member or servant at night in premises for keeping watch and ward on goods and material lying therein. It is pleaded that no part of business has been converted into residence permanently. Prayer for dismissal of eviction petition sought.