Civil Revision No.815 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.815 of 2011 (O&M) Date of Decision: July 13, 2011 Surinder Dhingra .......Petitioner Versus Bhim Sain Arora .......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr.RC Setia, Senior Advocate with Mr.Vishal Ranjan, Advocate for the petitioner. Mr.Arun Jain, Senior Advocate with Mr.Arnav Kumar, Advocate for the respondent. <><><> RAKESH KUMAR GARG, J. This is tenant's revision petition challenging the judgment dated 6.2.2010 passed by the Appellate Authority, Karnal whereby while accepting the appeal filed by the respondent-landlord, the ejectment of the petitioner was ordered from the demised premises on the ground of personal necessity and bonafide need of the landlord. As per the averments made in the rent petition, the disputed shop was rented out by the respondents to late Shri Ved Parkash Sharma, father of the petitioner @ Rs.1,000/- per month and the rent was being received by the mother of the respondent as per family settlement between the respondent and his brothers, she was authorised to collect the rent from Civil Revision No.815 of 2011 (O&M) 2 the tenants. The shop in question had fallen to the share of the respondent in the family partition. A writing was executed between the brothers and their mother in this regard. The eviction was sought on the ground that the petitioner had no right to occupy the shop after the death of his father who was in arrears of rent after 1.4.2005. The respondent also pleaded that the premises were required for his own use and occupation as after retirement from Haryana State Electricity Board on 30.9.2005, he wanted to start his own business of electrical appliances in the premises. Moreover, his son had completed M.Com. and Chartered Accountancy and, thus, the shop in question was required for personal need. Upon notice, the petitioner appeared and contested the ejectment application stating that the same was not maintainable as respondent had no locus standi to file the same. It was further asserted that there was no relationship of landlord and tenant between the parties. It was further stated that father of the petitioner was a tenant under Smt.Sheela Devi who was collecting the rent and issuing the receipts to him The rent @ Rs.1,000/- per month was being paid regularly by Shri Ved Parkash. After his death, the petitioner continued to work in the shop of his father and requested the landlady to accept the rent and when she refused, he filed an application under Section 6-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred as 'the Rent Act'). The petitioner and his mother were colluding with each other to evict the respondent from the demised premises. The factum of partition between the petitioner and his family was denied. All other contentions raised by the respondent-landlord were denied and dismissal of the petition was prayed for. Civil Revision No.815 of 2011 (O&M) 3 From the pleadings of the parties, the following issues were framed by the Rent Controller: 1. Whether the petitioner is entitled for decree for ejectment of property in question, as prayed for? OPP 2. Whether the suit is not maintainable? OPR 3. Whether the petitioner has no locus standi to file the present petition? OPR 4. Whether the petitioner is estopped from filing the present suit by his own act and conduct? OPR 5. Relief. The Rent Controller held that there exists the relationship of landlord and tenant between the parties and, thus, the rent petition was maintainable. The ground of non-payment of rent was not accepted. While dismissing the rent petition, the learned Rent Controller further held that the respondent-landlord has failed to prove his bonafide necessity. Resultantly, the rent application was dismissed. The respondent-landlord filed Rent Appeal No.64 of 2010 against the order of the Rent Controller, challenging the findings on the issues which was decided against him. The petitioner-tenant also filed Rent Appeal No.65 of 2010 challenging its findings on issue No.1 regarding the relationship of landlord and tenant. However, the Appellate Authority vide impugned judgment dismissed the appeal filed by the petitioner and affirmed the findings of the Rent Controller on issue No.1 holding that there exists relationship of landlord and tenant between the parties and that the rent petition was maintainable. Findings of the Rent Controller on issues No.2 to 4 were reversed while accepting the Rent Appeal No.64 of 2010 filed by the respondent-landlord. Learned counsel for the petitioner has vehemently argued that Civil Revision No.815 of 2011 (O&M) 4 the findings of the Appellate Authority holding that the petitioner was liable to be evicted on the ground that demised premises were required by the respondent-landlord for a bonafide need, are liable to be set aside on the ground that the respondent-landlord has failed to plead and prove the necessary ingredients of Section 13(3)(a)(i)of the Rent Act, inasmuch as he in his ejectment petition has not pleaded that after the commencement of the Act, he has not vacated any other premises and has also failed to prove the same and, thus, in view of the judgment of this Court in the case of Banke Ram v. Shrimati Saraswati Devi, 1977 RCR 595 and various other judgments, the petition filed by the landlord was liable to be dismissed. However, on the other hand, Mr.Arun Jain, learned Senior counsel for the respondent, has vehemently argued that no such objection was raised by the petitioner-tenant before the Courts below and, thus, at this stage, the said argument cannot be raised. Learned counsel has further argued that in any case, the pleadings as required under the provisions aforesaid in its strict sense need not be pleaded in view of the judgments of this Court in the case of Mohan Lal v. Rakesh Kumar Bhakoo and another, 2006(3) RCR (Civil) 713 and other judgments. Learned counsel has further submitted that in any case, the parties knew about the case of each other very well and have also led evidence and, thus, no prejudice has been caused to the petitioner because of the irregularity, if any, in this regard. Mr.Jain has further argued that it is well settled that on any such question raised, the respondent-landlord was entitled to rectify the same and, therefore, it will not make any difference even if the case was not pleaded in strict language of Section 13(3)(a)(i) of the Rent Act. Civil Revision No.815 of 2011 (O&M) 5 I have heard learned counsel for the parties and perused the impugned judgments. It is not in dispute that the respondent-landlord has clearly pleaded that he required the demised shop for his own business after his retirement. It is well settled that the landlord is the best judge of his needs. Moreover, it is not the case of the petitioner-tenant here that the need of the respondent is not bonafide, rather the argument raised is that necessary ingredients of Section 13(3)(a)(i) of the Rent Act have not been pleaded and proved. It is again not in dispute that the petitioner in his statement has clearly stated that he does not own any other shop in the State of Haryana except the demised premises. It may also be relevant to point out at this stage that this Court in the case of Mohan Lal (supra) after considering the case of Supreme Court in Banke Ram's case (supra) and taking note of the observations in Kesho Ram v. Jagan (Deceased) represented by his LR Om Parkash and others, 1977 RCR 623 has held that if such necessary ingredients are not pleaded, the landlord is required to be provided with an opportunity to make necessary pleadings and it was imperative for the petitioner to raise an objection in the written statement at the earliest to the effect that the necessary ingredients were not pleaded. Even in the case of Vishal Garg v. Kanwaljit Kaur and others, 2011(1) RCR (Rent) 389, this Court observed as under: “All these judgments are prior to the decision of the Supreme Court in the case of Kedar Nath Aggarwal (Dead) and Anr. (supra) which is reported in 2004 in which it has been held that subsequent event can be taken into consideration. It is now well settled that Court at any stage of proceedings can take into consideration subsequent events and mould the relief. In the Civil Revision No.815 of 2011 (O&M) 6 other judgments on the issue of non-pleadings of ingredients of Section 13(3)(a)(i) of the Act, it has been held that if the landlord had failed to plead the ingredients but led evidence to that effect then the non-pleadings of ingredients is not fatal. Thus, sum and substance of the above discussion is that the landlords/respondents have now got residential house No.1001, Sector 18-c, Chandigarh vacated and are held to be having a bona fide necessity of the demised premises, which has been duly established on the basis of evidence led especially the finding recorded by the Appellate Authority in para No.27 of its judgment and in view thereof, I do not find any error in the order of eviction passed by both the Courts below. Hence, the present revision petition is found to be devoid of any merit and as such the same is hereby dismissed though without any order as to costs. ” In M/s Bhatia Cloth House v. Dr.Raj Kumar Gupta and another, 2008(2) RCR 281, this Court held that any ambiguity in pleadings regarding the ingredients set out in Section 13(3)(a) of the Rent Act, if made good in the evidence, is sufficient compliance of the statutory provisions. In M/s British Motor Car Company Pvt. Ltd. v. Sewak Sabha Charitable Trust (Regd.), 2003(2) RCR 606, this Court observed as under: “Thus, the plea that the landlord has failed to plead necessary ingredients is without any substance. Both the parties have led extensive evidence regarding the requirement of the premises. Parties have understood the case of personal necessity very well. It has been held by Hon'ble Supreme Court in Baba Kashinath Bhinge v. Samast Longayat Gavali and others, 1995(1) RCR (Rent) 518 (SC): 1995 HRR 131 that where the parties properly understood each other's case and necessary evidence was adduced, technical ground of omission Civil Revision No.815 of 2011 (O&M) 7 to plead requirement in specific terms cannot be a ground of non-suiting the landlord Trust on technicalities. Recently in P.Purushottam Teddy and another v. Pratap Steels Ltd. 2002(2) SCC 686 the Supreme Court has reiterated the well known principle that where the parties have understood the case, led evidence, the non-framing of issues or lack of pleading is inconsequential. In view of the said judgment reliance of the petitioner on Commissioner of Icome-tax v. Ahmedabad New Cotton Mills Co.Ltd., AIR 1930 Privy Council 56 and Bhagat Singh and others v. Jaswant Singh, AIR 1966 Supreme Court 1861 that no amount of evidence can be looked into on a plea which was never put forward is not sustainable in law.” Similarly in Baldev Raj v. Ram Lal, 2006(2) RCR 193, this Court held that it is not necessary to plead all the ingredients in the ejectment application , but there must be evidence fro proving the same and in the absence of any evidence regarding those ingredients for ejectment, it can be said that the ground of ejectment is not proved. In the present case, there is no serious challenge to the bonafide need of the respondent-landlord. Even, it has come on record that the demised premises have fallen to the share of the respondent in a family partition effected between the brothers and mother after the death of their father. There is nothing on record to challenge the genuineness of the aforesaid documents. Simple averment raised on behalf of the petitioner that the aforesaid documents are a sham transaction, is bound to be rejected in the absence of any evidence to contradict the aforesaid documents. The reliance of the petitioner on Exhibit R2 i.e. a petition filed under Section 6 (A) of the Rent Act in which Sheela Devi, mother of the respondent- landlord received the rent under protest, is of no help to him as in the Civil Revision No.815 of 2011 (O&M) 8 aforesaid petition Sheela Devi had accepted the rent by making the statement that she was receiving the rent under protest and the landlord of the demised premises was his son i.e. the respondent-landlord. In this view of the matter, the finding of Appellate Authority ordering eviction of the petitioner on the ground of personal bonafide need of the respondent- landlord has to be affirmed. Faced with this situation, learned counsel for the petitioner has vehemently argued that there exists no relationship of landlord and tenant between the parties and, therefore, the rent petition filed by the respondent was not maintainable and the same is liable to be dismissed on this ground alone. Challenging the findings of the Courts below, learned counsel for the petitioner has argued that there is no document on record to show that the respondent was the owner/landlord of the demised premises. The plea taken by the petitioner is mis-conceived as the respondent has specifically pleaded in the petition that he had become owner of the suit property in the family partition which has been placed on record in evidence. In spite of the fact that the onus to prove the said issue was upon the respondent, there is no rebuttal to the aforesaid evidence produced by the respondent. Thus, no grievance can be raised in this regard. No other point was urged. Dismissed. ( RAKESH KUMAR GARG ) JULY 13, 2011 JUDGE SRM Note: Whether referred to Reporter? (Yes/No)