IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 185 of 2007. Judgement reserved on: 9.9.2009. Date of decision: 28.10.2009. Jagan Nath Chadha ….. Petitioner. Vs. Jai Ram Dass & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. K.D.Sood, Advocate. For the Respondents : Mr. N.K.Thakur, Advocate, for respondents No. 1 & 2. Kuldip Singh, Judge. The landlord has come in revision against the order dated 27.9.2007 passed by learned Appellate Authority, Una in Rent Appeal No. 42 of 2003, reversing the findings on issue No. 4 recorded by learned Rent Controller (II), Una on 15.10.2003 in Rent Petition No. 2 of 2001. 2. The petitioner had filed eviction petition against the respondents under Section 14 of the H.P. Urban Rent Control Act, 1987 (for short the Act) by pleading that premises was constructed more than 100 years ago by the great grand-father of the petitioner. The eviction was sought on the grounds of cease to occupy, Whether the reporters of the local papers may be allowed to see the Judgment? …2… subletting, arrears of rent, dilapidated condition of the premises which requires reconstruction. 3. The petition was contested by filing reply in which preliminary objections of maintainability, lack of cause of action were taken. It was pleaded that Ashok Kumar is a partner in the business run by respondent No. 1 while respondent No. 3 has no right in the premises, who is son-in-law of respondent No. 1. The shop is habitable. The rejoinder was filed in which stand of the respondents was denied and case set up by the petitioner was reiterated. On the pleadings of the parties, the following issues were framed:- 1. Whether the respondent No. 1 has ceased to occupy the premises in dispute? OPP. 2. Whether the respondent No. 1 has sub-let the premises in question, as alleged? OPP. 3. Whether the respondent No. 1 is in arrears of rent? OPP 4. Whether the premises in question is in dilapidated condition which requires reconstruction? OPP. 5. Whether the petition is not maintainable? OPR. 6. Whether the petition is bad for mis-joinder of parties? OPR. 7. Relief. 4. The issues No. 1, 2, 5 and 6 were answered in negative and issue No. 3 and 4 were answered in affirmative and the learned Rent Controller allowed the petition on 15.10.2003 on the grounds of arrears of rent and dilapidated condition of the building. In appeal, the learned Appellate Authority reversed the findings on issue No. 4 …3… and has affirmed the findings on issues No. 1, 2, 5 and 6 and held that issue No. 3 has become redundant, hence the landlord has come in revision. 5. Heard and perused the record. The learned counsel appearing on behalf of the petitioner has confined his submissions at the time of hearing on issue No. 4. He has submitted that the landlord has pleaded and proved that the building is bonafide required by him for reconstruction as the same has become unsafe and unfit for human habitation. It has been submitted that even an issue to this effect has been framed and the parties led evidence and had gone to trial knowing fully well the case of opposite side. The learned Appellate Authority has misconstrued the pleadings and the evidence. The learned Appellate Authority has erred in holding that the landlord has not pleaded the ground of ejectment that building is unsafe and unfit for human habitation and the building was required by the landlord for reconstruction. The notice under Section 117 of H.P. Municipal Act was served regarding the condition of the building. The premises is resting on wooden supports (Ballies). It was wrongly held that premises in question was not connected with the notice issued by the Municipal Council. The findings recorded by the learned Appellate Authority on issue No. 4 are not sustainable. The learned counsel appearing on behalf of respondents No. 1 and 2 has submitted that petitioner has miserably failed to plead and prove that premises in question is in dilapidated condition and requires reconstruction. The notice issued by Municipal Council has not been proved to be of the premises in question. The age of the building has …4… not been proved. The petitioner has led no evidence of an expert in order to prove the condition of the building. The learned counsel appearing on behalf of respondents No. 1 and 2 has supported the impugned order. 6. The learned counsel for the petitioner has submitted that issue No. 4 referred above is self explanatory. The parties led evidence and had gone to trial knowing fully well the case of opposite side. The purpose of the pleadings is to inform the other side the foundation of the case so that no prejudice is caused to other side, but when the other side is aware of the case of the opposite side then there is no question of prejudice to other side. The Appellate Authority has observed that unless the landlord pleads and proves the statutory requirement that re-building of the premises in dispute cannot be carried out without the premises being vacated in that case the landlord is not entitled to any relief. But while making these observations, the learned Appellate Authority has not considered the case from the angle what is the legal position when the tenant is aware of the case of the landlord regarding the ground of eviction and no prejudice has been caused to him. 7. The learned counsel for the petitioner has relied Baba Kashinath Bhinge vs. Samast Lingayat Gavali 1995(1) RCR 518 where the Apex Court while considering Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has held that it is true that the pleadings of the respondent’s case is not precise and no specific requirement was pleaded but once the parties properly understood the case of each other, issues were framed and evidence was …5… adduced, technicalities of pleadings recede to the background. In the present case, exactly the same is the situation. The issue No. 4 was framed and respondent contested the petition knowing fully well the case of the opposite side. In view of Baba Kashinath Bhinge (supra), it can be safely held that respondent was fully aware of the case of the petitioner regarding the ground of eviction so far it relates to the condition of premises and rebuilding thereof, hence findings of appellate authority that there are no pleadings in support of issue No. 4 are set-aside. 8. The petitioner sought eviction of the respondent on the grounds of dilapidated condition of the premises and reconstruction. In Prem Chand alias Prem Nath vs. Shanta Prabhakar (SMT) 1998 (1) SCC 274, the Supreme Court noticed Section 14(3) ( c) of the Act and has held that Section contemplates different independent situations/ circumstances enabling the landlord to apply for eviction of the tenant and set out those situations/ circumstances as follows:- "(i) When the tenanted premises are required by the landlord to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme; or (ii) When the tenanted premises have become unsafe or unfit for human habitation; or (iii) When the tenanted premises are required bona fide by the landlord for carrying out repairs which cannot be carried out without such tenanted premises being vacated; or (iv) When the tenanted premises are required bona fide by the landlord for purposes of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the building or rented land being vacated." …6… The Hon’ble Supreme Court in para-9 has held as follows:- “From the above analysis, it will be seen that the condition of the building is required to be considered when the application falls under the abovementioned Category (ii). Admittedly, the application for eviction in the present case falls under Category (iv) and there is no requirement in such cases to go into the condition of the building. It is true that this Court has held that the requirement of the condition of the building is a vital factor whether such requirement is specifically stated in the Section or not. It must be remembered that the decision of this Court was rendered while interpreting Section 14(1)(b) of the Tamil Nadu Act which is not in pari materia with the Himachal Pradesh Act. In other words, there are no different categories as set out above in the Tamil Nadu Act as in Himachal Pradesh Act.” 9. In Jagat Pal Dhawan vs. Kahan Singh (dead) By LRs. and others (2003) 1 SCC 191, the Supreme Court noticed clause ( c) of sub-section (3) of Section 14 of the Act and has held as follows:- “Section 14 (3) (c) provides inter alia that a landlord may apply to the controller for an order directing the tenant to put the landlord in possession of tenancy premises in case of any building or rented land being required bona fide by him for the purpose of building or rebuilding which cannot be carried out without the building or rented land being vacated. The provision does not have as an essential ingredient thereof and as a relevant factor the age and condition of the building. The provision also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of the tenant. However still, suffice it to observe, depending on the facts and circumstances of a given case, the court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as …7… proposed, cannot be constructed or if the landlord does not have means for carrying out the construction or reconstruction obviously his requirement would remain a mere wish and would not be bona fide.” 10. The issue No. 4 is with respect to condition of the building and reconstruction thereof. In fact, in issue No. 4 emphasis is on reconstruction of the building and condition of the building is incidental. In other words, the issue No. 4 falls in the situations/ circumstances No. (iv) mentioned in Prem Chand alias Prem Nath (supra), wherein it has been held that there is no requirement in such cases to go into the condition of the building. In Jagat Pal Dhawan (supra), the Hon’ble Supreme Court has held that Section 14(3) (c ) of the Act provides that a landlord may apply to the controller for an order directing the tenant to put the landlord in possession of tenancy premises in case of any building or rented land being required bonafide by landlord for the purpose of building or rebuilding, which cannot be carried out without the building or rented land being vacated. The provision does not have as an essential ingredient thereof and as a relevant factor the age and condition of the building. The provision also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of tenant. The Supreme Court has also held that keeping in view the facts and circumstances of a given case the court may look into such facts as relevant, though not specifically mentioned as ingredients of …8… the ground for eviction, for the purpose of determining the bona fides of the landlord. 11. AW 4 Jagan Nath Chadha has stated that he is the owner of the shop in dispute. The shop has been repaired several times. The shop has been constructed with mud and chuna and the roof is standing on ballies. The shop needs to be reconstructed to make it habitable. At present it is not in habitable condition and there is a danger of its falling down. Municipal Council, Una had warned him by issuing letter Ex. P-6. He has been cross-examined, but the respondents could not extracted anything in the cross-examination in support of the case of the respondents. 12. RW 1 Jai Ram Dass has stated that shop is in good condition and the petitioner in connivance with Municipal Council got issued notice against him. AW 3 A.S. Chauhan, S.D.O., Municipal Committee, Una has proved notice Ex. AW 3/A. He has stated that shop in dispute is in dilapidated condition. In cross-examination, he has stated that he had visited the spot. Notice Ex. AW 3/A has been issued to petitioner Jagan Nath Chadha, under Section 117 of H.P. Municipal Act, 1994 regarding the dilapidated condition of the shop. The petitioner was directed to take necessary steps regarding the premises in question. 13. The learned Appellate Authority has held that notice issued by Municipal Council, Una in no way helps the case of the landlord but without elaborating further. The Appellate Authority has not recorded a specific findings that in fact need of the landlord to reconstruct the building is not bonafide. On the contrary, the learned …9… Rent Controller has recorded a finding that dilapidated condition of the shop has further substantiated that the petitioner requires the possession of the shop bonafide on the ground of its renovation and reconstruction. The proposed plan has already been approved by the Municipal Council, Una. This finding has not been reversed by the Appellate Authority. The petitioner has been non-suited by the Appellate Authority on issue No. 4 on technical ground of lack of pleadings. The impugned order on issue No. 4 is not sustainable and is accordingly set-aside. 14. No other point was urged. 15. The result of the above discussion, the revision petition is allowed, the impugned order so far as it relates to issue No. 4 is set-aside and issue No. 4 is decided in favour of the petitioner and against the respondents and respondents are ordered to be evicted from the premises in question on the ground of dilapidated condition of premises which requires reconstruction, with no order as to costs. October 28,2009. ( Kuldip Singh ) (Hem) Judge.