IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No.: 116 of 2010. Reserved on: 16.11.2010. Decided on: 26.11.2010. _________________________________________________________ Sukh Dev. … Petitioner. Versus Baij Nath Sharma and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Anil Chauhan, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate. Rajiv Sharma, J. Tenant has filed this revision petition against the judgment dated 29th May, 2010 passed by the learned appellate authority in civil Misc. Appeal No.79-S/14 of 2009. 2. Material facts, necessary for adjudication of this revision petition are that the respondents-landlords (hereinafter referred to as the ‘landlords’ for brevity sake) had filed petition seeking eviction of the petitioner-tenant (hereinafter referred to as the ‘tenant’ for brevity sake) on the following grounds:- “i) That the respondent has failed to pay or tender rent of the premises w.e.f. 1.6.2006 alongwith interest and statutory increase as per law. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - ii) That the premises are bonafide required by the applicants for reconstruction which cannot be carried out without vacating the premises by the respondent. It may be sub mitted that the building in which the premises are situated is more than hundred years old and is in dilapidated condition and has outlived its economic life. iii) That the applicants intend to reconstruct the premises with proper specifications and of proper size with proper amenities of light, water and sanitation. iv) The building of which the premises is a part, has outlived its useful and economic life. The wooden members have rotten and the CGI sheets of roof have rusted and are not in their original position. v) The applicants have sufficient means to reconstruct the building. Otherwise also, various financial institutions provide funds for reconstruction of the buildings.” 3. The tenant resisted the application. According to him, he was always ready and willing to pay rent as claimed with effect from 1.6.2006, but the landlords refused to accept the same. He also denied that the suit premises were bonafide required by the landlords for the purpose of reconstruction which could not be carried out without vacating the same. It was also denied that the premises are more than hundred years old and had outlived its utility. The learned Rent Controller framed the following issues on 8.1.2008:- 1. Whether there exists relationship of landlord and tenant between the parties, as alleged? OPA. 2. Whether the respondent is in arrears of rent w.e.f. 1.6.2006, as alleged? OPA. - 3 - 3. Whether the suit premises is bonafidely required by the applicants for the purpose of reconstruction, which cannot be carried out without the suit premises being vacated by the respondent, as alleged? OPA. 4. Whether the application is not maintainable in the present form? OPR. 5. Whether the application is bad for non-joinder of necessary parties? OPR. 6. Relief. 4. The learned Rent Controller held the tenant to be in arrears of rent at the rate of ` 71/- per month with effect from 1.6.2006 alongwith interest @ 9% per annum, total amounting to ` 3092/-. The learned Rent Controller also held the suit premises to be in dilapidated condition and the same were required by the landlords for its reconstruction. 5. Tenant preferred an appeal before the learned appellate authority. The learned appellate authority dismissed the appeal on 29th May, 2010. Hence, this revision petition. 6. Mr. Anil Chauhan, learned counsel for the tenant has strenuously argued that the judgment dated 29th May, 2010 passed by the learned appellate authority is contrary to the principles of law. According to him, his client was not in arrears of rent. He also contended that the landlords have failed to prove that the building in question was bonafide required by them for the purpose of reconstruction. He finally argued that both the courts below have not correctly appreciated the oral and documentary evidence brought on record. - 4 - 7. Mr. Ramakant Sharma, learned counsel for the landlords has supported the judgment and order passed by the appellate authority as well as by the learned Rent Controller. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Mr. Anil Chauhan, learned counsel for the tenant at the threshold has submitted that there is no relationship of landlord and tenant between the parties. However, it is evident from the statement of AW-4, Baij Nath Sharma that he used to issue rent receipts to the tenant on receiving rent. The tenant has also sent the rent through money order to the landlords. The landlords have purchased the land over which the suit premises is existing. A bare perusal of Ex. RW-1/A, rent receipt reveals that the tenant has paid rent to one of the landlords upto 31.5.2006. In Misal Hakiat Ex.PW-4/A, in the column of remarks, the landlords have been shown as owners. The tenant had been considering the landlords as owners. Therefore, the tenant is precluded from challenging the relationship of tenant and landlord. 10. Now, the court will advert to whether the tenant was in arrears of rent with effect from 1.6.2006 or not. The learned courts below have rightly come to the conclusion after considering Ex.RW-1/A read with statement of tenant that he was in arrears of rent with effect from 1.6.2006. The landlords have admitted to have received the rent upto 31.5.2006. Rather, the tenant has admitted that he was in arrears of rent with effect from 1.6.2006. Therefore, the concurrent findings recorded by both the courts below are not required to be interfered by this Court. - 5 - 11. Mr. Anil Chauhan, learned counsel for the tenant has strenuously argued that the findings recorded by both the courts below so far as question of rebuilding or reconstruction is concerned, are contrary to record. 12. One of the landlords has appeared as AW-4. According to him, the building was more than hundred years old. It was made of mud and dhajji walls. It had outlived its utility. AW-5, Shri V.K. Sood is civil Engineer. He has proved his report Ex.AW-5/B. According to him, the building is in dilapidated condition and was hundred years old and the same could not be reconstructed or rebuilt without being vacated. He also deposed that after reconstruction, the value, age and income would enhance. He also deposed that the building has become unfit and unsafe for human habitation and poses danger to the life, limb and property of the occupants as also the passersby. He also deposed that two walls of the structure of CGI sheet were also rotten and were temporary in nature. He had visited the spot on 12th May, 2008. AW-4, Shri Baij Nath Sharma has also deposed that he wanted to reconstruct the building with RCC structure to increase the value and income. He also deposed that the building plans have been submitted to the competent authority. 13. AW-2, Shri Yashwant Singh was working as Senior Clerk in the Assistant Planner Branch, Municipal Corporation, Shimla. He deposed that the proposed plan Ex.AW-2/A was submitted by the landlords for reconstruction of the tenanted premises and the building in which the tenanted premises were located. The objections were raised by the Municipal Corporation. The same were removed and thereafter the landlords again submitted the building plan on 3.4.2008. AW-1, Shri - 6 - Surinder Singh is Senior Manager, Allahabad Bank. He has deposed that landlord, namely Shri Jai Gopal Sharma and his wife had F.D.R. of ` 5,00,000/- in their names. 14. RW-1 has deposed that the condition of the building was good and the same could be reconstructed/repaired without vacation. According to him, the building was made of cement walls. He also testified that he has spent a sum of rupees one lac for its repairs. 15. What emerges from the evidence discussed hereinabove is that the suit premises are hundred years old. It is in dilapidated condition. It was constructed of dhajji walls. It has outlived its utility. Statement of AW-4 has been duly supported by AW-5. It has come on records that the landlords have sufficient funds to reconstruct the demised premises/building. The landlords have retired as Government servants and one of them has sought voluntarily retirement. It has come in the statement of AW-5 that the building cannot be reconstructed without vacating the same. 15. Accordingly, in view of the observations made hereinabove, there is no merit in this revision petition and the same is disposed of. In the interest of justice, it is made clear that though the orders passed by both the authorities are upheld/sustained, however, it is directed that only on the plans being sanctioned by the competent authority, the order of eviction shall be available for execution. The sanctioned or approved plans shall be produced before the executing Court whereupon the executing Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlords. Till then, the tenant shall remain liable to pay charges for use and occupation of the premises at the same rate at which they were being paid earlier. Subject - 7 - to these modifications, the orders passed by both the authorities below are maintained. It is also made clear that the petitioner/tenant shall keep on paying the use and occupation charges to the landlords on every 7th day of the month. The landlords shall supply the Saving Bank Account to the petitioner/tenant to remit the amount, within a period of one week from today. No costs. (Rajiv Sharma), Judge. November 26, 2010. (sck).