IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 58 of 2011. Reserved on: 15.07.2011. Decided on: 02.09.2011. _____________________________________________________ Uttam Chand. …Petitioner. -Versus- Santosh Kumari. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. Ajay Sharma, Advocate. For the respondent. : Mr. Vijender Katoch, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This revision petition is directed against the judgment passed by the Appellate Authority-1, Kangra at Dharamshala, (H.P.) on 31.03.2011 in Appeal No. 2/K/2008. 2. Material facts necessary for adjudication of this revision petition are that the petitioner-landlord (hereinafter referred to as “the landlord” for convenience sake) has filed a petition, seeking eviction of the respondent-tenant (hereinafter referred to as “the tenant” for brevity sake) on the ground of arrears of rent and also on the ground that the premises being kucha, is required to be re-constructed, as it has outlived its life and is in dilapidated condition, and the same is not fit for human habitation. It was also alleged that the building was required for rebuilding, which cannot be done without its vacation. 3. The petition was resisted by the tenant. It is alleged that landlord has never repaired the building and the tenant has 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. - 2 - to repair the building. Regarding the ground of arrears of rent, it is averred that the landlord has himself stopped the collection of the rent, just to make the ground for eviction, though he was ready to pay the rent for the last three years. It is admitted that the building is old, but it is alleged that the same is quite safe for habitation and the walls of the building were in good condition. 4. Rejoinder was filed by the landlord. Issues were framed by the learned Rent Controller on 07.07.2005. The learned Rent Controller held the tenant to be in arrears of rent w.e.f. December, 2001 to 2004. The rent was `4/- per month. The learned Rent Controller has returned a findings that the landlord has failed to prove that the premises were in dilapidated condition and were not fit for human habitation. The learned Rent Controller has though ordered the eviction of the tenant only on the ground of arrears of rent, but while returning finding on issue No. 4, he has come to the conclusion that the premises were required by the landlord for the purpose of reconstruction/re- building. The tenant filed an appeal before the learned appellate authority so far as the question of building re-building is concerned. The learned appellate authority accepted the appeal on 31st March, 2011 by holding that the landlord has neither pleaded nor proved that the premises were required bonafide for building rebuilding, which cannot be carried out without eviction of the tenant. Hence, this revision petition by the landlord. 5. Mr. Ajay Sharma, learned counsel for the petitioner has supported the judgment of the learned Rent Controller. According to him, the landlord has pleaded and proved that the premises are required bonafide for the purpose of building and - 3 - reconstruction, which cannot be carried out without the eviction of the tenant. 6. Mr. Vijender Katoch has supported the judgment of the first Appellate Authority, dated 31.03.2011. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. The landlord in paragraph No. 18(b) of the petition has made the following averments: “18(b) ……..The building requires rebuilding which cannot be done without its vacation……” 9. The tenant has not denied this averment specifically. The landlord in his rejoinder has also reiterated that the claim was bonafide. 10. Mr. Vijender Katoch, learned counsel for the respondent has strenuously argued that it was necessary for the landlord to plead specifically that the premises were required bonafide for building re-building, which cannot be carried out without evicting the tenant. It is true that the expression bonafide is missing in the petition. The pleadings have to be seen as a whole. 11. Their Lordships of the Hon’ble Supreme Court in Syed Dastagir Vs. T.R. Gopalakrishna Setty (1999) 6 Supreme Court Cases 337 have held that the language in Section 16(c ) does not require any specific phraseology but the plaintiff must aver that he has performed or has always been and continues to be willing to perform his part of the contract. Their Lordships have further held that to insist on mechanical reproduction of the exact words of the - 4 - statute would be insist on the form rather than the essence. Their Lordships have held as under: “9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16( c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one’s case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requites any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c ) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has - 5 - always been and is willing to perform his part of the contract. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.” 12. Now, the court will advert to the evidence led by the landlord to prove that the premises are required bonafide for building re-building, which cannot be carried out without evicting the tenant. The landlord has appeared as PW-1. The entire thrust of the statement of PW-1 is only regarding the general condition of the building. He has deposed that the building was constructed in 1940 and the walls had developed cracks. The premises are not fit for human habitation and it can collapse. The landlord has only deposed that he wants to demolish the building and wanted to reconstruct a cemented building, but he has nowhere stated that the construction of the building cannot be carried out without vacating the premises by the tenant. 13. PW-2 Narayan Sood has also deposed about the condition of the building, but he has also not deposed that the building cannot be constructed/reconstructed without vacating the same by the tenant. He has only deposed that the house cannot be repaired and it has to be reconstructed. 14. PW-3 Ajay Chaudhary has only proved notice Ex. PW- 1/N. He has not deposed anything about the general condition of the building. PW-4 Onkar Singh has prepared Ex. PW-4/A, i.e., site plan. PW-5 Smt. Sujata has only deposed about the receipt of fee at the time of submission of building plan on 27.10.2004. - 6 - 15. The tenant has appeared as RW-1. According to her, the condition of the building is good. It is made of bricks and plaster. It’s doors and woods are in good condition. She did not know whether the house was constructed in 1940. RW-2 Ajay Kumar has also deposed that the condition of the house is good. 16. Mr. Ajay Sharma, learned counsel for the petitioner has vehemently argued that the landlord has already submitted the building maps to the Municipal Council, Kangra and has also deposited the requisite fee. He has also referred to Ex. PW-1/A, i.e., copy of F.D.R to prove the economic status of the landlord to reconstruct the building. It is true that the landlord has sufficient funds to reconstruct the building and has also submitted the maps, but it was necessary for him to plead and prove that the building cannot be reconstructed without the same being vacated by the tenant. He has also not produced any expert to prove that the building cannot be reconstructed without the same being vacated by the tenant. The landlord has never submitted any application for getting the building declared unsafe from the Municipal Council. RW-1 and RW-2 though have deposed that the building in the vicinity are pucca. 17. The learned Single Judge in Amro Devi Vs. Ajay Kumar Sood, 1994 (1) S.L.J. 177 has held that the eviction cannot be ordered if the landlord fails to prove the statutory requirement that the rebuilding of the premises in dispute cannot be carried out without these premises being vacated by the tenant. The learned Single Judge has held as under: “6. After hearing learned counsel for the parties and examining the record, this Court is of the opinion that this revision petition deserves to be - 7 - allowed on the short ground that respondent-landlord Ajay Kumar Sood has failed to plead and prove the statutory requirement that rebuilding of the premises in dispute cannot be carried out without these premises being vacated. Neither in column 18(a) of the eviction petition, which is reproduced hereinabove, nor in the statement of any of the witnesses adduced by Ajay Kumar Sood it is deposed that premises in dispute cannot be rebuilt unless vacated. No expert witness was produced to prove this fact. Without pleading and proving that rebuilding cannot be carried out without vacation of the premises in dispute, eviction order could not be passed on the ground that premises in dispute are bona fide required by the landlord for rebuilding. Both the authorities below have not directed themselves to this aspect of the matter. It cannot be disputed that for passing eviction order on the ground of rebuilding it is mandatory for the authorities to satisfy themselves that without vacation of the premises in dispute the rebuilding is not possible, which has not been done in the present case. Therefore, the eviction petition must fall.” 18. Now, what emerges from the observations and discussions made hereinabove, is that it is necessary for the landlord to plead and prove that reconstruction cannot be carried out without vacation of the premises. In the instant case, no evidence whatsoever has been led by the landlord that the building cannot be reconstructed without the same being vacated by the tenant. Since the basic ingredient of Section 14(3)(c) has not been proved, the eviction of the tenant cannot be ordered on the ground that the premises were required bonafide by the landlords for reconstruction/rebuilding. The judgment passed by - 8 - the appellate authority is in conformity with law and needs no interference of this Court. 19. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge September 02, 2011. (bhupender) - 9 - `