IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C. Revision No. 14/1994 Reserved on : 6.7.2010 Decided on: 20.8. 2010. Sheela Devi and others. ...Petitioners. Versus M/s Mauja Mal Mehar Chand, a Joint Hindu Family Firm and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Petitioners : Mr. Rajiv Jiwan, Advocate. For the Respondents: Mr. Ashok Sood, Advocate for L.R.No.1 of deceased respondent No.2 and respondent No. 9 (b). Satyan Vaidya, Advocate for respondent No.3. Justice Rajiv Sharma, Judge. This revision petition has been preferred by the petitioners against the order dated 29.9.1993 passed by the learned Appellate Authority (District Judge), Shimla in Rent Appeal No. 100-S/14 of 1987. 2. Material facts necessary for the adjudication of this petition are that M/s Mauja Mal Mehar Chand, a joint Hindu Family Firm owned premises No. 74, Middle Bazar, Shimla. On the ground floor, which consisted of one room, latrine and bath room (hereinafter referred to as ‘demised premises’ for convenience sake), Kalyan Singh 1Whether the reporters of the local papers may be allowed to see the Judgment? (deceased) was inducted as a tenant. The demised premises are residential. The petition was filed seeking eviction of the tenant on the grounds that after the commencement of the Act of 1971, the tenant has purchased a portion of the building known as ‘Oak Wood Place, Jakhu, Shimla and after the purchase of the said property, he has come in occupation of the residential set in the first floor of the building. Similarly, his sons have also purchased another portion of the building and as such the tenant is liable to be evicted from the premises under section 14 of the Himachal Pradesh Urban Rent Control Act, 1971. The petition was resisted. On merits, the tenant asserted that the demised premises are non-residential since these were used partly as residence and partly as non-residential. The learned Rent Controller framed the following issues: 1. “Whether the respondent has acquired another residential set and is, therefore, liable to be ejected from the disputed premises as alleged? OPP 2. Whether the petition is not maintainable? OPR. 3. Relief.” 3. The Rent Controller vide order dated 19.10.1987 allowed the petition seeking eviction of the tenant. The tenant was allowed one month’s time to handover the vacant possession of the demised premises to the landlord. He preferred an appeal before the learned Appellate Authority on 13.11.1987. The same was rejected by him on 29.9.1993. Hence, this petition. 4. Mr. Rajiv Jiwan has strenuously argued that the learned Appellate Authority has failed to take into consideration the amended provisions of the Himachal Pradesh Urban Rent Control Act, 1987 by virtue of which the landlord has to prove that the alternative accommodation acquired by the tenant was reasonably sufficient for his/his family requirement. According to him, the landlord has failed to prove that the alternative accommodation acquired by his client was sufficient. 5. Mr. Ashok Sood has supported the orders passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the records carefully. 7. It will be apt at this stage to take note of sub-section (3) (f) of section 14 of the Himachal Pradesh Urban Rent Control Act, 1971. It reads thus: “the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession or been allotted, a residence.” 8. This was the position at the time when the petition was filed by the landlord before the Rent Controller seeking eviction of the tenant on 12.11.1984. Thereafter the Himachal Pradesh Urban Rent Control Act, 1987 was enacted and this Act deemed to have come into force with effect from 17.11.1971 and the Himachal Pradesh Urban Rent Control Act, 1971 was repealed. Sub-section (2) of section 34 of the Act reads thus: “34 (2) - Notwithstanding such repeal, but subject to the provisions contained in sub-section (3), all suits, appeals and other proceedings, including execution proceedings, under the said Act, pending before any court or appellate or revisional authority, on the appointed day shall be disposed of in accordance with the provisions of this Act, as if the provisions contained in this Act were, at the relevant time, in force.” 9. In order to meet the requirements of Himachal Pradesh Rent Control Act, 1987, the landlord moved application under order 6 rule 17 of the Code of Civil Procedure on 13.9.1991 before the Appellate Authority. The landlord had also filed amended petition alongwith application. He has sought the following amendment in para 18 (a) of the petition: a) In line 6 of para 18 (a) of the petition, line line-9 of para 18 (a) and in line-11 of the said para of the petition after the words occurring “first floor of the building”, “Rent Control Act” and “residential building” the Respondents be allowed to add the following words i.e. “reasonably sufficient for his, her or their requirement” respectively.” 10. The tenant filed reply to the same on 7.9.1993. Learned Appellate Authority rejected the application preferred under order 6 rule 17 of the Code of Civil Procedure on 29.9.1993. Order dated 29.9.1993 reads thus: “There is an application under order 6 rule 17 read with section 151 C.P.C. filed on behalf of the respondents that the present petition was filed under section 14 of the H.P. Urban Rent Control Act, 1971 and the said Act stands repealed and now it has been replaced by new called H.P. Urban Rent Control Act, 1987 and now in section 14 (3) (a) (iv) the grounds of eviction as available to the landlord is as under:- “The tenant has, whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirement.” Reply to the application was filed in which it is alleged that at this belated stage the amendment cannot be allowed. From the perusal of the original petition of the landlord filed in the year 1984, the prayer has been made that the respondent has after the commencement of the Act in the year 1987, purchased a portion of building known as Oak Wood Place, Jakhu from its previous owner, namely the heirs of O.P. Banga and after purchase of the property has come in occupation of the residential set purchased in the first floor. The sons of the respondent have purchased another portion of the building known as Oak Wood Place, Jakhu after the commencement of the H.P. Urban Rent Control Act, 1987. As the respondent after the commencement of the Act has acquired vacant possession of residential building reasonably sufficient for his requirement, therefore, the respondent is liable to be evicted from the premises in question. It is, no doubt, that the amendment carried out in 1971 Act can be applied retrospectively as has been held in AIR 1970 Supreme Court 1146, in case tilted B. Banerjee versus Smt. Anita Pan wherein the apex court of the country has held that subsequent amendment can be applied retrospectively. In view of the prayer and the relief claimed in the earlier petition of 1984 and the present amendment, I find that the relief sought by the landlord is the similar. The evidence qua this fact is also on record from both the sides. Therefore, no useful purpose will be served by allowing the application of the landlord under order 6 rule 17 C.P.C. Therefore, in such situation, the application for amendment is rejected. Arguments in the main appeal heard. The appeal is dismissed vide separate judgment placed on record. The file, after completion, be consigned to record room.” 11. The Appellate Authority on the basis of already existing evidence brought on record by the landlord and tenant returned findings that the premises in occupation of the tenant was sufficient which he has acquired after the commencement of the Act. He has taken a specific note that initially the tenant was living in one room of the dimension of 10’ x 10’ and after the purchase of property, he has started living in the building Oak Wood Place, Jakhu Shimla. He has taken a note of the admission made by DW-1. He has also taken note of the fact that besides, tenant Kalyan Singh (deceased), his sons have also purchased a set at Jakhu. In these circumstances, the appeal was dismissed by the Appellate Authority. 12. Section 14 (3) (a) (iv) of the Himachal Pradesh Urban Rent Control Act, 1987 reads thus: “ A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of a residential building, if the tenant has, whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirements.” 13. Mr. Rajiv Jiwan on the basis of this provision has vehemently argued that the landlord has to prove by taking a specific ground with regard to the residence being reasonably sufficient. He has relied upon Bhagat Ram Thakur versus Smt. Enakshi Mahajan, 1988 (2) Sim.L.C. 137. 14. In the instant case, the landlord had moved an application under order 6 rule 17 of the Code of Civil Procedure by taking a specific plea that the alternative accommodation acquired by the tenant was reasonably sufficient for his requirements. The Appellate Authority dismissed the application, as noticed above, on 29.9.1993 by holding that the relief sought by the landlord was the similar and the evidence qua this fact was already on record from both the sides and no useful purpose will be served by allowing the application under order 6 rule 17 of the Code of Civil Procedure. The landlord has done what was expected from him by moving appropriate application. Ordinarily, the Appellate Authority ought to have allowed the amendment to bring it in conformity within the provisions of section 14 (3) (a) (iv) of the Act. It is settled law that when a pleading is amended, it takes effect from the date when the original one is filed. [See : Vimal Chand Ghevarchand Jain and others versus Ramakant Eknath Jadoo, (2009) 5 SCC 713]. 15. Learned Single Judge of Gujarat High Court in Laxmiben Ambalal Lodha and others versus Vasantiben wd/o Pratapsingh Devising (through LR’s), 2004 (1) RCR 228 has held that when a tenant having ten members of family living in one room acquires accommodation, landlord is entitled to evict tenant even though acquired accommodation was not a sufficient to accommodate ten members. The learned Single Judge has further held that there is no law that all the members of the tenant must be accommodated in the property acquired by the tenant. Learned Single Judge has held as under: “10. Let us examine the ingredients and necessary recruitments for applicability of Section 13(1)(1) of the Bombay Rent Act for the entitlement of the landlord to recover possession of the suit premises. The statute provides as under: “Section 13(1) Notwithstanding anything contained in the Act, (but subject to the provisions of Section 15), a landlord shall be entitled to recover any premises if the Court is satisfied that the tenant, after coming into operation of this Act, has built, acquired vacant possession of or been allotted a suitable residence, meaning thereby (I) if the tenant has constructed a house for suitable residence, (ii) it the tenant has acquired vacant possession of house/accommodation for suitable residence or, (iii) if the tenant has been allotted a suitable residence.” Under clause (1), the word “suitable residence” has been used. We have to see what is the context or in what reference suitable residence will have to be considered. This Court in the case of Hasmukhlal Raichand Shah v. Arvindbhai Mohanlal Kapadia, reported in 1988 (2) Guj. LR 1442 has held that where there is evidence on record that the tenant and his family members are living together, one of them has acquired suitable residential accommodation and if there is no evidence to the effect that they have not been looking upon this as one unit, or when the members of the family live together, mess together, then acquisition of a suitable residential accommodation by one of them would be considered to be acquisition of suitable residential accommodation by the tenant. On the basis of the decision of the Supreme Court in the case of Premchand v. Shersing reported in 1981 DRJ 287 (SC), wherein it was held that the respondent had through his wife acquired vacant possession of the residence in Delhi and in that view of the mater, it was held “tenant not entitled to retain old tenanted premises.” As per Rule laid down by the Supreme Court in the subsequent decision of Anandji D. Jadav (deceased) by Lrs. v. Nirmala Ramchand Kore reported in AIR 2000 SC 1386 :2000(1) RCR (Rent) 442 (SC), the expression “acquired vacant-possession” means an acquisition of vacant possession of a suitable accommodation in which one has a right to reside. It must be a legally and enforceable right. Thus, if there is any acquisition of premises by a tenant or by any member of his family, the tenant has no legal right to reside. The acquisition of residence by any member of tenant's family will not bee deemed to be the acquisition of the house by the tenant under Section 13(1)(1) of the Act. Nowhere is it stated that the acquisition of residence by any member of the tenant's family should be suitable to all the members of the tenant's family. Suitability of the residence will have to be considered with reference to the rented premises. If the rented premises has one room with the essential amenities of latrine, bathroom, water and electricity etc. and the acquired property being habitable has more accommodation in size and space with essential amenities stated above, irrespective of the family members of the tenant, the acquired premises of the tenant will be deemed to be a suitable accommodation under Section 13(1)(1) of the Act. For instance, the tenant's family consists of 10 members living in a rented premises which has one room. If the tenant purchases a house which has four rooms with essential amenities having more space than that of the tenanted premises, even it is not a sufficient accommodation for all the family members of the tenant would be deemed to be suitable residence under the provisions of the Act. As such, vitability of the residence has to be considered in the context or with reference to the rented premises and not with reference to the number of the tenant's family members. If the rented premises-one room is suitable to 10 members of the tenant's family , it cannot be said that the acquired premises having more space than that of the rented premises is not suitable. 11. In the present case, the tenant has acquired a two-storeyed premises consisting of two rooms on the ground floor and two rooms on the first floor and it is stated that one room is used as a kitchen on each floor. But that property when it was acquired by the tenant in the name of his wife was not suitable and habitable due to paucity of funds with the tenant. In the present case, admittedly, at the time of institution of the suit, the acquired property has been made habitable by repairing in which his two sons Nankishore and Baldev are residing with their families. As such, it cannot be said that the premises acquired by the tenant is not suitable for the tenant. Bhupendra, son of the tenant, is residing in the rented premises along with his family members. Moreover, the tenant's other son, namely Jitendera has acquired another house consisting of two rooms and those two rooms have been rented to some tenant and is living in another premises in a Maholla near Chakudia Mahadev Temple, Rakhial, leaving aside the constructed room for residence by other son, namely Upendra on the land of Municipal Corporation. As the acquired property by the deceased tenant is a suitable residence having more space than rented premises, the provisions of Section 13(1)(1) of the Rent Act will be attracted and the land lord would be entitled to recover possession of the suit premises. 12. The lower appellate Court has considered other aspects which are not relevant. The only relevant aspect is whether the provisions of Section 13(1)(1) of the Rent Act are applicable or not and on the basis of wrong interpretation and consideration of irrelevant facts for the purpose of determining acquired property was not sufficient compliance under the provisions of Section 13(1)(1) of the Act. As such, the lower appellate Court has applied wrong interpretation and wrong principles in determining suitability of residence. All the family members of the tenant are accommodated in the acquired property , the provisions of Section 13(1)(1) of the Act would not be attracted. But there is a wrong view adopted by the lower appellate Court. Nowhere, it is required by the statutory provisions of law that all the members of the tenant must be accommodated in the property acquired by the tenant or by any member of the family members of the tenant. Therefore, the lower appellate Court has come to an erroneous finding by applying wrong principles of law. This finding of the lower appellate Court is not sustainable in the eye of law. The trial Court was fully justified in holding that the acquired property by the deceased tenant attracts the provisions of Section 13(1)(1) of the Bombay Rent Act for entitling the landlord for possession of the suit premises.” 16. However, the fact of the matter is that there was already sufficient evidence to the effect that the tenant has acquired residence at Jakhu and his sons have also acquired two sets of the same building. The tenants were living at the time of filing the eviction petition in a room with dimensions of 10’x10’ with one bath room and one latrine. Assuming hypothetically that the amendment had been allowed, even then it would not have altered the existing situation. The Court had only to see the accommodation which was in occupation of the tenant and which he has acquired subsequently. It was for the tenant to prove that the accommodation acquired by him was not sufficient. In the instant case, the tenant was conscious about his requirements and has purchased the house taking into consideration needs of his family. The tenant has not placed any tangible evidence on record to indicate that the newly acquired house/residence was not reasonable sufficient for the purpose of residence. What is reasonably sufficient is a relative term and it would depend on the facts and circumstances of each case, including the strata to which the parties belong. It is, indeed, to tenant to prove that the premises acquired by him are not reasonably sufficient for the purpose of residence. 17. The tenant, in his individual capacity, and his two sons have purchased the residential houses, as noticed above. The sons were living with their father in the premises, in question, as one unit. 18. Learned Single Judge of the Gujarat High Court in Daulatram Khitumal Udhrani versus Rajendrabhai Jayantilal Tailor, 1998 (1) RCR (Rent) 226 has held that when tenant and his family members reside together, as one unit, the acquisition of accommodation by one of them would be considered to be the acquisition by the tenant. Learned Single Judge has held as under: “12. It may be stated at the outset that both the advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is therefore called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the advocates lest it might be alleged that this Court is guilty or not dealing with the submissions raised before it by the learned advocates appearing for either of the parties even without reference to relevant evidence. Mr. P.B. Majmudar, Ld. Advocate appearing for the respondent-plaintiff has pointed out to the Court that in the plaint itself it was pleaded that the defendant had purchased a house at Bhatwada of village Rajpipla and that he has also purchased shop No. 28 in Pan Talawadi, both at village Rajpipla. It is also pointed out that the son of the defendant has also purchased Property No. 35/1 in Pan Talawadi estate which is purchased by the son- Mulchandbhai. In the written statement which is filed by the tenant as Exh. 66 before the trial Court in para 6 it is clearly admitted that the properties referred to hereinabove are purchase on ownership basis. The defendant has examined himself at Ex. 55 and in the course of cross-examination he has admitted that he has purchased the house at Bhatwada in the year 1970. It is no doubt true that the purchase of properties by any one member of the family, wife or the sons of the tenant may always not assume importance in passing a decree of eviction under Section 13(1)(i) of the Act when the family of the tenant is too large and it is always propounded by the Gujarat High Court in the case of Hasmukhlal Raichand Shah v. Arvindbhai Mohanlal Kapadia, 1989 (1) RCR 554 : 1988 (2) 618. In the aforesaid decision a view is taken by the Gujarat High Court that if there is evidence that the tenant and his family members are residing together, one of them has acquired suitable residential accommodation, and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together, then acquisition of suitable residential accommodation by one of them would be considered to be the acquisition of suitable residential accommodation by the tenant and is son. In the case before the High Court a bungalow was constructed by the wife of the tenant and when the husband and the wife were found to be living together the Court concluded that the tenant husband can be said to have acquired suitable residential accommodation. In the present case it shall have to be kept in mind that the tenant and his sons have acquired large number of premises which are set out hereinabove and more particularly discussed in para 7 of the judgment of the lower appellate Court. In the cross-examination of the tenant at Exh. 155 in para 6 it is admitted by him that his son Fatubha is also having house situated at Bhatwada. It is also admitted that said Fatubhai has purchased a ship in Municipal Shopping Centre and is carrying on business in the name of Prem Prakash. Even Fatubhai's son is also having shop in the name and style of “Mahesh Stores” in the Municipal Shopping Centre. In para 9 of the deposition in cross-examination the tenant has admitted that his son Rambhai is residing with Fatubhai in Bhatwada. His another son-Mulchandbhai is having Cold Drink shop at Gardeshwar and that he has also acquired a rented premises for residing at Rajendra Society. Said Mulchandbhai is also said to have godown in pan Talawadi. The tenant has admitted that the said building is purchased by him and the said building has three storeys. On the ground floor of the said building he and his son- Pappy are running business of Ice Candy and Automobile andthat they are residing on the first floor. From the close reading of the evidence of the defendant himself at Exh. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with