HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CR No.: 90 of 2006 Reserved on: 4.4.2008 Decided on: 28.4.2008 Badri Nath Khanna ………petitioner. Versus Arun Kumar and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Ajay Kumar, Advocate. For the respondents: Mr.Bhupender Gupta, Senior Advocate, with Ms.Charu Gupta, Advocate. V.K. Ahuja, J: This is a civil revision under Section 24 of the H.P. Urban Rent Control Act, 1987 filed by the petitioner against the order passed by the learned Appellate Authority, Shimla, dated 8.5.2006, vide which it has affirmed the order, dated 4.3.2005, passed by the learned Rent Controller (IV), Shimla, ordering the eviction of the petitioner from the disputed premises. Briefly stated the facts of the case are that the predecessor-in-interest of the present respondents, namely, Khem Chand, now deceased and represented ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - by the respondents, filed a petition under Section 14 of the H.P. Urban Rent Control Act, 1987 as against the petitioner for eviction. The petition was filed by the respondents on the ground that the building in question is old one and was constructed in the year 1902 and its condition has deteriorated which also got fire on 25.11.1996. It was alleged by the original petitioner Khem Chand that he wants to carry out the rebuilding work which cannot be done without evicting the respondent (present petitioner). He also alleged that the premises in question are not non-residential, the plan was sanctioned and the premises are required on the ground of reconstruction. These allegations made by the original petitioner were denied by the present petitioner as respondent. It was alleged that the building was owned by one Smt.Shakuntla and original petitioner Khem Chand and the rebuilding work cannot be done without vacating the premises in question and the construction has been banned by the Government in the area. The main dispute was as to whether the premises were bona fide required for the purpose of building or rebuilding. Both the parties led evidence and the learned trial Court decided this Issue in favour of the original petitioner and accordingly allowed the petition and ordered the eviction of the tenant. Those findings were affirmed by the learned Appellate Authority. I have heard the learned counsel for the parties and have gone through the record of the case. It is clear from the pleadings of the parties that the building in question was owned by Smt.Shakuntla and the original petitioner Khem Chand, now - 3 - represented by his LRs as present respondents. No specific plea of partition was taken though it had been proved in evidence that the site plan submitted to the Municipal Corporation for sanction was signed by Smt.Shakuntla and the original petitioner Khem Chand. Therefore, the first question which required consideration and on which findings were required to be given by the learned trial Court as well as by the learned Appellate Authority was as to whether the petitioner Khem Chand could carry on the reconstruction without impleading Smt.Shakuntla as a party or without her permission and without there having been any partition proved to have been effected in between the parties. Both the persons Khem Chand and Shakuntla are co-owners and in case the basic structure of the building is required to be changed, the consent of the co-owner may be required. The learned courts below have not given any findings whether the petitioner was competent to carry on the construction without the consent of Smt.Shakuntla or without her permission or without partition. The second question which arose for consideration was that the building in question was composite one and apart from the present petitioner, there are other tenants also in the premises and the roof of the building was common as observed by the learned Appellate Authority in para 20 of the judgment also. This plea was raised before the learned Appellate Authority when the learned Appellate Authority observed that there is statement of RW-5 Badri Nath that there are many tenants, numbering about 14, in the building against whom no action was initiated. It is also observed that the building is composite having common roof and unless other units of the building are dismantled or vacated, the demised premises cannot be reconstructed. - 4 - Thus, once the building is composite one and the action has been initiated by the landlord against one of the tenants, there has to be an answer to the proposition as to whether the landlord can carry out the reconstruction over part of the building only in possession of the tenant, that is, the present petitioner or as to whether the other tenants will have also to be evicted and then only the building can be reconstructed. The above discussion shows that this plea was in a way raised before the learned Appellate Authority that the premises are composite one and there are other tenants also, but the learned Appellate Authority did not answer this question as to whether the reconstruction can be carried out in part or in full or whether it can be carried out without evicting the other tenants. For that purpose, both the courts below were required to give findings as to whether the other tenants are required to be evicted or there is an expert opinion that only part of the building is required to be reconstructed, which construction can be done over the portion in possession of the tenant (present petitioner). This question was not answered by the learned Appellate Authority and was not considered by the learned trial Court and until and unless there are findings of the courts below that the reconstruction can be carried out with or without evicting the tenant, when the building is composite one having several other tenants also against whom no action has been initiated, this Court cannot consider the evidence for the first time in this regard sitting in second appeal as to these questions which arise from the pleadings of the parties. Therefore, the above discussion clearly leads to the inference that until and unless the findings were given by both the courts below on these questions, - 5 - no orders for eviction could have been passed against the present petitioner. In case the premises are such that no reconstruction can be carried out without evicting the other tenants, it was required for the learned trial Court to have considered this question as to whether the execution of the order passed for eviction of the present petitioner can be carried out until and unless the other tenants are also not evicted for reconstruction of the building and that plea was also required to be considered by the learned trial Court as well as by the learned Appellate Authority, in which they have failed. In the absence of any findings on these points, it cannot be said that the present petitioner was entitled to be evicted and this plea was also required to be considered by the learned trial Court. In view of the above discussion, I accordingly hold that the findings recorded by the learned Appellate Authority upholding the findings of the learned trial Court are not sustainable in the eyes of law since the main questions required to be considered have not been considered by both the courts below and until and unless these questions are not answered by the learned trial Court and are considered by the learned Appellate Authority, no findings can be given by this Court. Therefore, this case deserves to be remanded to the learned trial Court for hearing the parties afresh giving its findings under Issue No.1 after answering the questions mentioned above which are material questions to be considered before any order of eviction of the tenant could have been passed by the courts below. Thus, the judgments passed by the learned Appellate Authority as well as by the learned trial Court are set aside and the case is remanded back to the learned trial Court. The learned trial Court, after hearing - 6 - the parties afresh on the material questions which arise for consideration, shall give its findings under Issue No.1. The parties, through their counsel, are directed to appear before the learned trial Court on 19.5.2008. The revision petition stands disposed of accordingly. The parties are left to bear their own costs. April 28, 2008. (V.K. Ahuja), (TILAK) Judge.