IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No.: 134 of 2009. Reserved on: 26.05.2011. Decided on: 15.06.2011. ___________________________________________ Prem Kaur and others. … Petitioners. Versus Mahavir Walia. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioners : Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. For the Respondent : Mr. Anuj Gupta, Advocate. Rajiv Sharma, J.: This revision petition is directed against the judgment passed by the learned appellate authority (District Judge), Shimla in Civil Misc. Appeal No.72-S/14 of 2008 dated 18.9.2009. 2. Material facts necessary for the adjudication of this petition are that the respondent/landlord (hereinafter referred to 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - as “the landlord” for convenience sake) filed application under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as “the Act” for brevity sake) before the learned Rent Controller (II), Shimla on 18.1.2003 to the effect that he was tenant in the suit premises. The suit premises were originally owned by Smt. Ravinder Walia. She died on 26.11.1999. He has become owner of the suit premises and is competent to maintain the application for eviction of the petitioners/tenants (hereinafter referred to as “the tenants” for convenience sake). The suit premises were let out earlier to late Shri Surjan Singh and after his death, tenant Prem Kaur being his daughter inherited the tenancy rights and she is occupying the suit premises alongwith her married daughter and son-in-law. The eviction of the tenants has been sought on the ground that the suit premises are bonafide required by him for his own use and occupation. He is N.R.I. and remained employed with British Airways and retired in the month of June, 1998. He owns ancestral house in village Sanaur, District Patiala, Punjab and the same is occupied by his real uncle and aunt after the death of his father. He has a bonafide wish to spend retired and old age in India. In these circumstances, he bonafide requires vacant possession of the suit premises, which is the only property owned by him in the urban area of Shimla. It is further alleged that his close relations are permanently living in Shimla and he - 3 - has been frequently visiting them with his wife. His wife died on 26.11.1999 in U.K. He has one married daughter, three married sons and seven grand children. 3. The eviction petition has been contested by the tenants. According to the averments contained in the reply, the application was bad for non-joinder of necessary parties, it was barred under Section 18 of the Act as well as the principles of res-judicata. On merits, it was denied that the petitioner was owner of the suit premises. It was also denied that the premises is bonafide required by the landlord for his own use, the landlord has permanently settled in U.K. and has also acquired the citizenship of U.K. The learned Rent Controller framed the issues on 4.8.2005. He dismissed the eviction petition on 14.7.2008. The landlord preferred an appeal before the appellate authority. The appellate authority allowed the appeal on 18.9.2009 and the tenants were ordered to be evicted from the tenanted premises on the ground of bonafide requirement under Section 14(3) of the Act. Hence, this petition against the judgment dated 18.9.2009 passed by the appellate authority, Shimla. 4. Mr. Bhupender Gutpa, learned Senior Advocate with Mr. Janesh Gupta appearing on behalf of the tenants has supported the judgment of the learned Rent Controller, dated 14.7.2008. According to him, the landlord has failed to prove - 4 - that the premises are required by him bonafide. He then contended that the first appellate authority has mis-directed itself by coming to the conclusion that in case non-resident Indian landlord seeks eviction of the tenanted premises, the Court has to presume that the need of the landlord is genuine and bonafide. According to him, the learned first appellate authority has quoted portion of the judgment rendered by their Lordships of Hon’ble Supreme Court in Baldev Singh Bajwa Versus Monish Saini, 2005(2) RCR 471 without referring to the citation. He then contended that the provisions of the H.P. Urban Rent Control Act, 1987 and East Punjab Urban Rent Restriction Act, 1949 are not pari-materia. He further contended that the petitioner’s wife had earlier filed application under Section 14(3) of the Act, which was dismissed by the learned Rent Controller vide Ex.RW-1/A. According to him, the present petition is filed on the same or similar grounds and it was liable to be dismissed under Section 18 of the Act by the learned Rent Controller. He lastly contended that the principles of res- judicata are attracted in this case and tenant cannot be vexed twice on the same cause of action. 5. Mr. Anuj Gupta, learned counsel for the respondent has supported the judgment of the learned appellate authority. According to him, the landlord has proved his bonafide requirement for occupying the premises for his personal use. He - 5 - then contended that in the instant case, Section 18 of the Act is not applicable. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. Landlord has appeared as PW-1. He deposed that his wife, Ravinder Walia has died in November, 1999 and thereafter he has become owner of the suit premises. According to him, Smt. Ravinder Walia has executed a Will in his favour in the year 1988. Originally, the suit premises were let out to late Shri Surjan Singh and after his death, Prem Kaur inherited the tenancy being his daughter. The rent of the suit premises was ` 70/- per month. He has no other premises in Shimla except the suit premises. According to him, his ancestral house in district Patiala is in occupation of his uncle. He has retired in the year 1998 from British Airways. He intends to settle at Shimla. His sister-in-law and his family reside at Shimla and he used to visit Shimla frequently. He has further deposed that after the death of his wife, he is alone in London and intends to settle at Shimla. According to him, he does not want to live in London. In his cross-examination, he could not collect when his wife bought the suit premises. He could not collect that prior to the present application, his wife had filed eviction petition against the tenants on the similar grounds, which was dismissed by the learned Rent Controller-I, Shimla on 16.1.1999. He denied that - 6 - his wife did not execute the Will in his favour. He admitted to have not produced the Will before the revenue authorities. He also admitted that he is citizen of U.K. He also admitted that he possesses British passport. 8. Mrs. Prem Kaur has appeared as RW-1. According to her, in the year 1959, late Shri Surjan Singh, her father was inducted as tenant in the suit premises. Her father died in July, 1986. According to her, the landlord has permanently settled in England. According to her, earlier also application on similar grounds was filed by the wife of the landlord, which was dismissed by learned Rent Controller-I, Shimla vide RW-1/A. 9. What emerges from the statement of PW-1 is that he is residing in London. He has acquired British citizenship. His children have also acquired British citizenship. His ancestral house situate in village Sanaur, District Patiala, Punjab is owned by his uncle and aunt. His wife has died on 26.11.1999. Since his relations are residing at Shimla, he intents to settle at Shimla. He has not examined any of his relations who have settled at Shimla to prove that his relations are residing at Shimla. He has retired from British Airways in 1998. He has also not placed any tangible material on record to establish that he has been visiting India frequently. The only material placed on record by the landlord to prove that he had been visiting Shimla is the bill of a hotel mark ‘X’. The date on mark ‘X’ is of - 7 - the same day when the statement of the landlord was recorded in the Court. The landlord has not placed the copy of Will on record. He has also admitted that the copy of Will was not produced before the revenue authorities. He did not know when the suit premises were purchased by his wife, late Smt. Ravinder Walia. 10. RW-1, Prem Kaur has deposed that her father was inducted as tenant in the year 1959. According to her, present petition has been filed just to harass her since the earlier petition filed by his wife stands dismissed vide Ex.RW-1/A. 11. The Court is of the considered view that the landlord has failed to prove that the premises are required by him bonafide for his occupation. The learned appellate authority has erred in law by relying upon observations of their Lordships of the Hon’ble Supreme Court in Baldev Singh Bajwa Versus Monish Saini, 2005(2) RCR, 470 in para 17 of the judgment. The appellate authority has failed to take into consideration that the provisions of East Punjab Urban Rent Restriction Act, 1949 and H.P. Urban Rent Control Act, 1987 are not pari-materia. In East Punjab Urban Rent Restriction Act, 1949, Section 13-B specifically provides for the right of recovery of immediate possession of the residential buildings and/or non-residential building by the non-resident Indian. This provision does not exist in the H.P. Urban Rent Control Act, 1987. The learned - 8 - appellate authority has reproduced the concluding portion of para 20 of the judgment reported in Baldev Singh Bajwa Versus Monish Saini, 2005(2) RCR, 470 while coming to the conclusion that the Court shall presume that the landlord’s need pleaded in the petition is genuine and bonafide under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949. It was necessary for the learned appellate Court to cite the judgment in this para. The learned appellate authority by relying upon Baldev Singh Bajwa Versus Monish Saini, 2005(2) RCR 470 concluded that the appellant has been able to prove that the tenanted premises were residential building, which was required by him for his occupation and he was not occupying any other residential building in urban area of Shimla nor any premises has been vacated or rented out by him in the urban area of Shimla during the last five years of the filing of this petition. In the instant case, no presumption could be drawn in favour of the landlord who happened to be a non- resident Indian that his requirement is genuine and bonafide. The burden is on the landlord to prove that he required the premises bonafide. There is no negative burden on the tenant as per H.P. Urban Rent Control Act, 1987 to prove that the requirement of the landlord was not genuine. 12. It is settled law by now that the bonafide requirement of the landlord should be genuine, honest and - 9 - conceived in good faith. Their Lordships of Hon’ble Supreme Court in Rahabhar Productions Pvt. Ltd. Versus Rajendra K. Tandon, (1998) 4 SCC, 49 while drawing distinction between desire and requirement, have held as under (paras 18, 20 and 37):- “The phrase "bona fide need" or "bona fide requirement" occurs not only in the Delhi Rent Control Act but in the Rent Control legislation of other States also. What is the meaning of this phrase has been considered innumerable times by various High Courts as also by this Court and requires no citations to explain its legal implication. Even then reference may be made to the decision of this Court in Ram Das v. Ishwar Chander, in which it was indicated that "bona fide need" should be genuine, honest and conceived in good faith. It was also indicated that landlord's desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. These observations were made in respect of the provisions contained in E. P. Urban Rent Restriction Act, 1949. In Section 14(1)(e) as also under Section 14-C, it is the requirement of the landlord which constitutes the basis for tenant's eviction. If the requirement has to be genuine and bona fide, - 10 - under Section 14(1)(e), can it be said that because the words "bona fide" have not been used in Section 14-C, the requirement of the landlord may not be bona fide or genuine. This meaning, obviously, cannot be given to Section 14-C. No landlord, not even a landlord under Section 14-C, can be permitted to come to Court for eviction of the tenant for his requirement which is not real, genuine or bona fide. The tenant cannot be evicted on a false plea of requirement or "feigned requirement". The omission of the words "bona fide", therefore, does not make much of a difference. In view of the statutory provisions discussed above, specially in view of the fact that while introducing Sections 14-A to 14-D in the Act, no amendment was made in Section 25-B, we may summarise the legal position relating to eviction proceedings initiated under Section 14-C, as under: (i) Proceedings under Section 14-C can be initiated by a landlord who was in the service of the Central Government or Delhi Administration and has retired from service or is likely to retire within one year of the initiation of proceedings, but the retirement or likely retirement of the landlord does not give rise to a presumption that the premises are bona fide required by him. The landlord has also to plead and show that after retirement or likely retirement, no fresh assignment has been taken up or is likely to be taken up by him with the facility of a residential "Quarter". - 11 - (ii) Possession can be recovered by the landlord only for real, genuine and bona fide need and not for "feigned" need. (iii) Proceedings under Section 14-C can be contested only when leave to contest is granted by the Rent Controller; whether leave would be granted or refused would depend upon the nature of pleas raised or circumstances shown by the tenant in his affidavit filed before the Rent Controller. (iv) Section 25-B does not place any restriction on the right of the tenant to raise pleas in defence within the parameters of Section 14-C, namely, that he can plead and prove that notwithstanding the retirement or likely retirement of the landlord, the premises are not required by him for his own residence. No plea regarding the size of the landlord's family or the tenant's own family, whether it was likely to increase with son's marriage or decrease with daughter's marriage, can be raised by the tenant nor can he raise any plea as to the extent of accommodation or floor area or comparative hardship or partial eviction etc. as these are considerations which are not relevant under Section 14-C. If, however, the landlord is already in occupation of his own house, part of which is in occupation of a tenant (as in the instant case) or where whole of the house, owned by the landlord, is in his personal occupation and he makes an application for eviction of a tenant occupying another house, the need of the landlord, with reference to his family strength - 12 - and the extent of accommodation, at his disposal, will have to be examined vis-a-vis his requirement. (v) Expeditious enquiry need be held or else the landlord, if he has already retired from service will be literally on the "street" during the pendency of the proceedings which, undoubtedly, take long to conclude particularly as one party, namely, the tenant, is inherently interested in delayed disposal. If the tenant was allowed to contest Section 14-C application also with that attitude, giving him the liberty to place all possible obstacles to retard the pace of the proceedings, legislative intent of providing immediate possession of the house to a retired, or likely to retire landlord, would be frustrated.” 13. Mr. Bhupender Gupta, learned Senior Advocate has drawn the attention of the Court to order passed by the learned Rent Controller, Shimla in Ex.RW-1/A, dated 16.1.1999. A bare perusal of the order makes it abundantly clear that the landlord’s wife had earlier filed an eviction petition on the same grounds, which was decided on 16.1.1999. The following issue was framed by the learned Rent Controller: “1. Whether the premises in dispute are required bonafide by the petitioner for her occupation and occupation of her family? …OPP” and the same was answered in the following manner:- - 13 - “Issue No.1 No.” 14. It will be apt at this stage to reproduce Section 18 of the Act, which reads thus:- “Section 18. The Controller shall summarily reject any application under sub- section (2) or sub-section (3) of Section 14, which raises substantially issues as have been finally decided in a former proceeding under this Act.” The language employed in Section 18 is analogous to the principles of res-judicata contained in Section 11 of the Code of Civil Procedure. The learned Rent Controller has correctly appreciated that the present petition is barred by the principles of res-judicata since the earlier petition filed on the same ground was dismissed by the learned Controller. The first appellate authority has erred in law by coming to a different conclusion. The finding of the learned Rent Controller in earlier rent petition was specific with regard to bonafide requirement of the previous landlady. 15. It is true that the ground of bonafide requirement or non-payment of rent is recurring cause of action, but in the instant case, there is no substantial change so far as the ground of bonafide requirement is concerned while filing this petition. - 14 - 16. According to the finding recorded by the learned appellate authority that the principles of res-judicata are not attracted in this case, is liable to be set aside and the same is set aside. It is held that the present rent petition was barred by the principles of res-judicata and was liable to be dismissed at the threshold under Section 18 of the Act. 17. A Division Bench of Punjab and Haryana High Court in Mehtab Singh v. Tilak Raj Arora and another, AIR 1989 Punjab and Haryana 12 have held that even though the Code of Civil Procedure is not applicable as such to the proceedings before the Rent Controller, but the general principles contained in the Code, including the principles which are based on justice, equity and good conscience would govern those proceedings. Their Lordships of the Hon’ble Supreme Court have further held that if the provisions contained in Section 11, Order 2, Rule 2, Order 9, Rule 9 and Order 23 Rule 1(4) of Code of Civil Procedure are held to be not applicable to the proceedings before the Rent Controller, if would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant, as the case may be, would be able to harass them and again on the cause of action and for the same relief. Their Lordships have held as under (para-6):- - 15 - “If the various provisions noticed above are held to be not applicable to the proceedings before the Rent Controller, it would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant as the case may be, would be able to harass time and again on the same cause of action and for the same relief. For example, a landlord after the full trial of his petition for ejectment at the stage of arguments feeling that the petition is likely to fail, would get it dismissed as withdrawn and institute a fresh one again on the same cause of action. He would be able to repeat the same process time and again if the principles underlying the provisions of O. 23, R. 1(4) are held to be not applicable to the proceedings before the Rent Controller. Similarly if the provisions of O. 2, R. 2 of the C.P.C. are held to be not applicable, a landlord would be able to file ejectment application on one ground although many other grounds may be available for the same relief at a given time. After having failed on that ground till the highest Court, he would be able to institute another petition on the second ground and thus go on fighting litigation and harassing the opposite party. Same would be the situation with regard to the provisions of O. 9, R. 9 of the C.P.C. and the landlord would be able to get his petition dismissed in default at any stage of the proceedings and file a fresh one on the same cause of action resulting in the abuse of the process of the Court and harassment of the opposite party. All these principles as held in Lal Chand’s case (AIR 1977 SC 789) (supra), are conceived in the larger public interest and founded on equity, justice and good conscience, which - 16 - required that no man should be vexed twice on the same cause of action. We are, therefore, of the considered view that even though the Code of Civil Procedure is not applicable as such to the proceedings before the Rent Controller; but the general principles contained in the Code, including the one noticed above which are based on justice, equity and good conscience would govern those proceedings and the two decisions relied upon by the learned counsel for the respondent in Ram Parkash v. Nathu Ram, 1984 Cur LJ (Civ & Cri) 96 and Raghbir Kaur v. Gurmej Singh, (1985) 87 Pun LR 266 are, accordingly overruled.” 18. Mr. Anuj Gupta, learned counsel for the landlord has relied upon M.S. Rehi Versus Mohinder Kaur @ Daman, 2004(2) RCR, 586. It is true that it is for the landlord how he should lead his life, tenant cannot advise the manner in which the landlord should lead his life. However, the landlord has to prove the bonafide requirement to occupy the premises in accordance with law. In the instant case, as noticed above, the landlord has failed to prove that the premises are required by him bonafide for his personal use. 19. In the instant case, the first appellate Court has lightly disturbed the findings recorded by the trial Court. 20. Their Lordships of Hon’ble Supreme Court in Jagdish Singh Versus Madhuri Devi, (2008) 10 SCC, 497 have held that the following requisites should normally be - 17 - present before an appellate court reverses a finding of the trial court: i) it applies its mind to reasons given by the trial court; ii) it has no advantage of seeing and hearing the witnesses; and iii) it records cogent and convincing reasons for disagreeing with the trial court. 21. Their Lordships have further held as under (paras 28 and 37):- “At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral