90 Civil Revision N03649 of 2010 1 1 IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH 7 Civil Revision N03649 of 2010 Date ofDecision692011 1 0 Om Parkashand another Petitioners 0 0 I versus C5 I Ashok Kumar 0 I 08 CORAM HONBLE MR JUSTICE KCPURI CO 1 WhetherReporters of Local Newspapers may be allowed to Z seethe Ll 2 To be referredto theReporters or not2 3 Whetherthejudgment shouldbe reportedin theDigest2 J Present Mr Rakesh GuptaAdvocate for thepetitioners Mr RajinderGoyalAdvocate for therespondent KCPURI J Om Parkash and anotherpetitionersenants have directed the presentrevlSlOIl petitionagainstthe order dated 20A2010 passedby Shri RBaswana AppellateAuthorityKaithal vide which the appealpreferred Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 91 Civil Revision N03649 of 2010 2 bytenantevisionist againstthe ejectment order dated 252008 passedby Shri AjayPrashar Rent Controller Kaithal was dismissed 2 The brief factsofthe case are that the Om Parkash and Ved Parkash had taken on rent the shopin disputefrom the Ashok Kumar ata monthlyrent of Rs800 besides house tax vide Rent Note dated 1032000 for a periodof three months Thereatler the tenants did not vacate the above shop and therefore they 0 C3 becamestatutorytenants under the landlord The of the tenants I 0 byway of filingthe petitionunder Section 13 ofthe Act was soughtby the I landlord mainly on the groundsthat the tenants had been Z impairedthe value and utility of the tenanted premisesby making C unauthorizedChabutra Ill front of the shopand that the landlord required I the tenantedpremisesfor starting the businessof his elder son Umesh who a5 had completed his andwantedto start his own business C0 3 On put to notice the tenants appearedand Oled their joint 7 reply Theyadmittedthe of landlord and tenants between the tl partiesThey pleadedthat the rate of rent of the tenanted premiseswas Rs3001 per month and theywere not liable to pay any house4ax ln addition to this rent Theydenied that the rate of rent was Rs8001per month besides house tax It was further pleadedby the tenants that the landlordhad received a sum of Rs 10 50001 as securitywithout issuingany receiptand he failed to refund the same alongwithinterest Theypleaded thattheywere entitledto adjustthe same in futurerent 4 The tenants havingput up appearancetenderedthe arrears of rent as claimed by the landlord besidesthe house tax within the stipulated rs Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 92 Civil Revision N03649 of 2010 3 k periodThe tenants further pleaded that theywere not in arrears of rent as pleadedby the landlord lt was 8irtherpleadedby the tenants that theyhad notimpaired the value and utilityofthe tenantedpremisesTheyalso denied thatthe landlordrequiredthe tenantedpremises for starting the businessby hiselder son Umesh With these avennents the tenants prayedfor dismissal 1 ofthe petition 0 5 The above pleadings of the partiesgave rise to following C0 I 1SSUes 0 1 Whether the is in arrears of rent and house tax I we 1012005ifsoitseffect20PP Z 2 Whether the respondents have materiallyimpairedthe utility and value ofthe tenantedpremises20PP I 3 Whether thepetitioner typedwrongly9 is having Z bonafide of the tenantedpremises for his own OO useand occupation70PP 3 Reliefl Z 6 The partieshave led their respective evidence The learned Rent Controller after hearingthe leamed counsel for the partiesaccepted the petitionvide order dated 252008 and ordered the eviction of the tenants from the tenantedpremiseswithin one month from the date of the aboveorder 7 Feelingdissatised with the order dated 252008 the tenants preferred appealbefore AppellateAuthorityand the Appellate Authorityvide judgment dated 202010 dismissedtheflrst appeal RVn Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 93 Civil Revision No3649 of 2010 4 4 8 Feeling dissatisfied with the aforesaid orders passedby both the Courts below the presentreVlSlOn petition has been preferredby the tenantsoetitioners 9 I have heardcounsel for thepartiesand have gone throughthe recordsofthe case 10 Learnedcounsel for the revisionist has submittedthat eviction 0 order has beenpassed byboth the Courts below on thegroundofbona fide 0 I necessityof the landlord The bona flde personalnecessity can C5 onlybe held provedin case all the ingredients ofSection 13096a1 ofthe Act arepleaded and provedwhich are givenas under 1 Z 6a9he requires it for his own occupation 9 bl he is not occupying anotherresidentialbuildingin the urban area concemed and I C 0 he hasnot vacatedsucha buildingwithout sufScient cause Z afterthe commencement ofthis Act in the saidurban r area r A7 11 The Full Bench of this Court in authority Banke Rama vse Z ShrimatiSarasvati Devi 1977111 ILR 3uniabl 786 hasheld that all the QW above said threeingredients are requiredto be pleaded and provedand only thereafterthe eviction order on the groundof personalnecessitycan be passed The pleadinginentioned at bl and 0 referred to above are missingin the presentcase So in thesecircumstances the eviction order on the groundof bona fide personalnecessitycannot be passed Similar Vlew was taken by Honble the ApexCourt in authorityOnkar Nath VS Ved Vvas 1980 PLR paee 6380 12 Leamedcounsel for the revisionist has further submittedthat 1 Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 94 1 Civil Revision No649 of 2010 5 1 thegrounds of eviction as per the rent petitionthatthe demisedpremises are for businessofhis elder son Umesh who has gradation Umeshhas got the temporary The subsequent event has to be taken into consideration To support this contention he has relied upon authority Kedar Nath Aerawal Deadl VS Dhanraii Devi bv Lrs 20 1 191J0Tepaee113 0 14 It has been further submittedthat it is not the mere wish or 0 desire which can be the groundof eviction on the groundof personal C5 I necessityThe actual need has not beenprovedin the presentcase Sothe ofboth the Courts below are liable to be set aside Z 15 To support this contention he has relied upon authorityDeena L Nath vs Pooran La1200121RCR Zentl pae 130 I 16 ln replyto the abovenotedsubmissions leamed counsel for the 1 1 Z has supported the of both the Courts below r QO He has submittedthat Umesh Kumar his son is still not employedHe has 17 got temporaryjob for few months Authorities Banke Ramas case Z fsupral and Onkar Naths case lsupral have to be taken in its right Om spiritMere nololeadingB and C is not a ground to throw away the case of landlord The landlord has categoricallystatedthat he has no other9 Lv for carryingon thebusinessand thereisno rebuttaltothat In supponof his contention he has relied upon the authorities Daulat Ram son of Harnam Mal A22arwal VSe Girdhari LaI son of Kira Mal A22arwal 1980 PLR paee 182 Mls British Motor Car Companv PvteLtd VS Sewak Sabha Charitable Trust 1RegdI 2003121RCR Rentl paEe 606 and Mls Bhatia Cloth House vs DraRai Kumar Gupta Anre 2008 Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 95 1 Civil Revision N03649 of 2010 6 1 Civil Court Cases pa2e 0121 In the later authorityit has been held that in case the ingredient of Section of the Act are made good In evidencein that case thereis a sufflcient ofstatutoryprovision 17 I have given my thoughtfulconsideratlon to the rival submissionsmadeby both the sides and have gone throughthe records of 1 C the case 0 18 Admittedly in this case the mentionedat B and C 0 I referred to above are missingThe questionarises whether the landlord C5 should be norsuited on thatgroundifthere is a evidencein respectofthose I pleadingsThe answer to that questionis in negative Z 19 In authorityMls Bhatia Cloth Houses case Isupral this court hasheld that ambiguityin pleadings regarding the ofSection 13 I 639a9of the Act if made good ln evidence the same is sufficient C3 Z of the statutoryprovisionIn the presentcase thereis a finding CQ of fact recordedby both the Courts below that the are complete 7 111theevidence That beinga findingof fact cannot be interfened in the Z regularsecondappeal r 20 AuthoritiesBanke Ramas case ioral of Full Bench ofthis Court and Onkar Naths case Isupralof Honble Apex Court have been dulydealt in authorityDaulat Ram SOll ofHarnam MaI Aearwals case suprale Authority Daulat Ram SOll of Harnam Mal Aearwals case supral has been authoredby Honble Mr Justice Harbans Lal and His is also the authorof authorityBanke Ramas case lpral of Full Benche Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 96 Civil Revision No3649 of 2010 7 1 21 AuthorityBanke Ramas case 4supralFull Bench has held that ingredient6b9and 6c9are requiredto be pleaded but the effect ofnone pleadinghas been left open to be determinedby the Rent Controller and Lt AppellateAuthority on the facts of those caseSe The relevant part of para Nos2 and 13 are reproduced as under l In thepresent case we are concernedonlywith the Ct questionas a principleof law as to whether it is 0 0 essential to plead tn an eviction applicationthe I 9 ingredientsof subclauses Oo9 and 0 and not the questionthat if in a particularcase these ingredients Z are not pleaded but thepartieshave led evidencewith r regardto them what will be the eHect2 In any given I case wherefactshavenot beenaverred in thepleading a5 00 a number of questionscan anse as to whether proper 7 evidence has been adduced by the landlord regarding Z thosefacts which do notf7ndplacein thepleadings and nn secondlywhether such evidence will be admissible or not and lastly whetherthe tenant was taken bysurprise or not and had led evidencewithfullknowledge of the requisite contentions raised by the Iandlord and whether the tenant has ll1 those circumstances been prejudicedOr not The Court would be required to glve full consideration to the contentions raised by the respectivepartiesand thefactsand Clrcumstances of each case beforegiving its decision in favour of the Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 97 Civil Revision N03649 of 2010 8 landlord or the tenant but the decisions of the High Courts or theSupremeCourt in this regardcan not be of any avail to detract Irom the validityof the propositionthat it is necessaryfor the landlord to make averments regardingthe ingredientsof sulclause b m and 0 However it may be made clear that when it lS held that it is essential to pleadthe ingredients ofsub 0 0 clauses Oo9and 0 in the eviction applicationby the I C5 landlord it should not be understood that under no I clrcumstances in the absence the evidence Z regardingthe ingredientsenvisagedin sulclauses 0 2 and 0 can be looked into This is not peculiarto the I eviction applications Similar considerations come c6 m Into operation even ln the case of suits which are eW governedby the speciftcand detailedprovisionsof the Z Code ofCivilProcedure 13 This Court the otherHighCourts and theSupreme Court have had the occasion to makepronouncements one way or the other ln cases where the evidence was led by partiesin the absence of requisitepleadings Those decisions will serve as guides in evictlon proceedings under thlct 91 22 Takinglnto account the said observationin Daulat Ram son of Harnam Mal A2arwals case ioral it has been held that in case the ingredients mentioned6b and are completein evidence in that case 41 Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 98 Civil Revision N03649 of 2010 9 J J ofthose pleadings is not fatal 23 This Court again in authority Mls British Motor Car CompanvPvtltds case lsupral the fact that in case the evidenceis sufflcient to prove the said ingredient and theparties arealive to the case ofeach other in that case nonepleading ofthose clause L b9c9referredto above is not fatal and eviction on the groundofbona flde 0 personal necessity can be passedSo on the factsof the presentcase both C40 I the Courts below haverightlyheld that the ingredient mentioned a1to 0 C9 are completeSo that beinga flndingof fact cannot be agitatedin the I revlSlon Z 24 So far as the reliance upon authorityKedar Nath Agrawal DeadYscase Isuora l is concerned in that authorityit has been held that I event has to be taken into account The AppellateAuthorityhas Ar Z takeninto account the short term of Umeshand in spiteofthat reachedto the conclusion that thereis bona fide personalnecessityThere ewo is no reason to differ with the said finding Z 25 In authority Deena Naths case suprale it has been held that it must not be onlywhim or desireofthe landlord but there must be a bona fldepersonal There is no disputeto thatproposition of law In the presentcase thatlandlord has beenable to prove the bona fide personal necessity for him and his son 26 the revISOIOn petitionis without any merit and thesame standsdismissed 27 In view ofthe abovediscussion theappealis without any merit andthe same standsdismissed Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 99 Civil Revision No649 of 2010 10 22 A copy of this judgmentbe sent to the trial Court for strict 6 1 JUDGE Septemberl1 2011 Sv 1 1 r 0 0 I C5 I Z CC I c6 m 7 Z 0 1 49 1 Il 91 1vIll Uma 2013.01.14 16: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document