YOUNG WOMEN&APOSS CHRISTIAN ASSOCIATION Vs. KISHORI LAL

JUDGEMENT

(1.) The above revision has been filed by the Petitioner-landlord, who was successful in getting an order of eviction on one of the grounds urged therefor, before the learned Rent Controller, but lost before the appellate Authority, challenging the order passed by the appellate Authority dated 31.8.1996 in C.M.A. No. 7 =S 14 of 1994, where under while reversing the order of the learned Rent Contoller, the appellate authority chose to dismiss the application for eviction. The Petitioner, who is indisputably the owner of the property, namely, one room called Quarter No. 7 in Y.W.C.A. quarters, Shimla, sought for the eviction of the Respondent on the grounds (a) that the Respondent is in arrears of rent; (b) that the Respondent has sublet the premises and (c) that he has acquired vacant possession of a house in middle bazar, Shimla, which is reasonably sufficient for his and his family requirement. The claim of the Petitioner-landlord was disputed and the matter was tried by the Rent Controller. On a consideration of the materials on record, though the Rent Controller came to the conclusion that the Respondent was in arrears of rent from 1.5.1989 to 31.12.1993 at Rs. 33/- per month which worked out to Rs. 1,848/- and that the Petitioner was entitled to interest at 9 per cent simple on the rent due, the plea of sub-letting has been rejected on the ground that no case has been made out about the same and, therefore, the said ground urged was rejected. As for the third ground on which the eviction was sought for, the Rent Controller was of the view that the Respondent has acquired residence reasonably sufficient for his requirement and it was observed by the learned Rent Controller that even accepting that the Respondent occasionally comes to stay in the disputed premises, that would only show that he is using the premises and otherwise he is not in need of the premises and, therefore, he ordered eviction on the said ground. Aggrieved, the Respondent filed CMA No. 7 =S 14 of 1994 before the appellate Authority. There is not controversy over the position that in terms of the directions, the arrears determined was paid and, therefore, it became necessary for the appellate Authority to consider effectively on the legality and propriety as also the validity of the order of eviction under Section 14(3)(a)(iv) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act). On the third ground urged by the landlord before the Rent Controller. The Appellate Authority was of the view, while differing from the view taken by the learned Rent Controller that the decision reported in(Balak Ram v. B.N. Gupta,1976 ILR(P&H) 802, had no application to the facts of the case in that on the facts and circumstances of the case as pleaded and proved, the provisions contained in Section 14(3)(a)(iv) of the Act were not attracted and that the eviction could not be ordered and consequently the order of eviction could not be sustained. Hence the above revision.

(2.) Mr. Rajeev Mehta, learned Counsel appearing for the Petitioner while placing strong reliance upon the decision reported in ILR 1976 (HP) 802 (supra), a decision of a Division Bench of this Court, strenuously contended that the appellate Authority committed a grave error in misreading the provisions of the Act as also the materials on record to draw a different conclusion and differ from the findings recorded by learned Rent Controller and, therefore, the order of the appellate Authority is liable to be set aside and that of the learned Rent Controller ordering eviction should be restored. The learned Counsel at length taken me through the orders of the authorities below to substantiate his point by contending that irrespective of the fact that the initial letting out of the middle bazar property may be for a non-residential purpose, the actual user for residential purposes also would ultimately decide the character of the building/user and consequently no exception could be taken to the findings recorded by the learned Rent Controller that the Respondent-tenant had acquired residence reasonably sufficient for his requirement and, therefore, the landlord is entitled to have an order of eviction to recover the property in question. Per contra, Mr. Kuldip Singh, learned Counsel for the Respondent with equal vehemence and force, while disputing the stand taken for the Petitioner went even to the extent of contending that it is incorrect to claim that the middle bazar property was in the tenancy of the Respondent and that as a matter of fact somebody else was the tenant. Even that apart, according to the learned Counsel for the Respondent the construction placed by the appellate authority on the provisions in question is well merited and that in the absence of any proof that both the premises are residential premises, particularly the one in the middle bazar area, there is hardly any scope for applying the provisions contained in Section 14(3)(a)(iv) and, therefore, no exception could be taken to the order of the appellate authority. The learned Counsel also invited my attention to some of the relevant portions of the order of the appellate Authority to support his claim and to make out his grievance against the order of the learned Rent Controller.

(3.) I have carefully considered the submissions of the learned Counsel appearing on either side. It is appropriate to advert to the provisions contained in Section 14(3)(a)(iv) of the Act. It is stated therein that a landlord may 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 the commencement of the Act, built or acquired the vacant possession or been allotted, a residence reasonably sufficient for his requirements. In the light of the said provision, it requires to be considered whether the requirement of the said provision is satisfied on the facts and circumstances of the case and the conclusions arrived at by the appellate authority whose order is under challenge can be said to be so patently illegal and vitiated by any perversity of approach. Even the materials placed on record by the Petitioner, to which a reference has been made by the Rent Controller in the course of his consideration under Issue No. 3 in paragraph 16 onwards disclose that the Respondent is occupying some premises in middle bazar, that he is running a Halwai shop there, that there is a rear portion of the said property measuring about 20 to 22 feet in length and 8 to 9 feet in width and the premises in dispute is only 13 fts. x 10 ft. and the store, meaning thereby the middle bazar property is clearly bigger than the disputed premises. As against the evidence of PW-1 examined on the side of the Petitioner that the Respondent is living in a portion just behind the shop, the claim of the Respondent was that he has been regularly living only in the disputed property and that only on some occasions he used to over-stay in the business premises itself in the middle bazar area and, therefore, the Respondent could not be said to have been residing only in middle bazar area. A perusal of the ultimate finding in paragraph 27 of the learned Rent Controller itself would go to show that it was not to the extent that the Respondent has ceased to occupy the disputed property in question for his residential purpose but he is also using the same and the eviction inspite of it was ordered by the learned Rent Controller only on the ground that he has acquired a residence reasonably sufficient, meaning thereby the middle bazar property and, therefore, the Respondent is not in need of the disputed property. In dealing with this aspect of the matter, per contra the learned appellate authority came to the conclusion that once it was held that the Respondent had been staying in the disputed premises even though occasionally it could not be held that he has acquired vacant possession of the residence reasonably sufficient for his requirements and since the Respondent had been in possession of the store room in what is stated to be the middle bazar area for business purpose and not for residence purpose, the provision contained in Section 14(3)(a)(iv) of the Act had no application, as also the decision relied upon by the learned Rent Controller.