C.R No. 5064 of 2004 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 5064 of 2004 Date of decision : February 26, 2008 Shri Suraj Kant Dutt & others, ...... Petitioners through Mr.O.P.Goyal, Sr. Advocate with Ms.Priya Khurana, Advocate v. Arya Samaj, GT Road, Khanna & another, ...... Respondents through CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** RAJIVE BHALLA,J The petitioners impugn the orders, dated 7.2.2002, and 25.8.2004, passed by the learned Rent Controller, Khanna, and the Appellate Authority, Ludhiana respectively, ordering their ejectment and dismissing their appeal. The respondent i.e Arya Samaj, Khanna, District Ludhiana through its President and Secretary, filed a petition for ejectment of the petitioners by asserting that property, belonging to Arya Samaj, shown in red in the site plan was rented out to Hari Dev Dutt (since deceased) and now represented by his legal heirs (the petitioners). The portion, shown in yellow, in the site plan, was kept for common use. The premises i.e room, shown in blue, was used by Hari Dev Dutt as his office. The portion, shown C.R No. 5064 of 2004 ::2:: in green, was constructed by Hari Dev Dutt, a few months before his death, without the consent of the respondents. The rate of rent for the tenanted premises was settled at Rs.400/- per month. Hari Dev Dutt passed away on 28.7.1992 leaving behind the petitioners as his legal heirs. Ejectment was sought on the ground of non payment of rent since January 1993, that Hari Dev Dutt had materially impaired the value, and that utility of the property, and it is required for bona fide use and occupation by the respondent, as the space with the Arya Samaj was insufficient for boarding, lodging, worship and meetings. It was also averred that the Arya Samaj runs a school, namely, Arya Samaj Model School, and imparts education to 400 children. The school does not have a play ground and is housed in congested premises insufficient to meet the requirements of the children. It was also asserted that the petitioners had locked the portion, shown in blue, i.e the office, and are now claiming tenancy rights in respect thereof. The petitioners filed a written statement admitting ownership of the respondents but denying the competence of Onkar Dass Sofat and Vidya Sagar to file the ejectment petition. It was asserted that the entire land, whether shown in red, blue or yellow was an integral part of the tenanted premises and, therefore, assertions to the contrary in the ejectment petition were incorrect. It was denied that Hari Dev Dutt materially impaired the value and utility of the property by constructing an additional portion. As regards the plea of bona fide requirement, it was asserted that the respondents do not require the premises, as no worshiper or follower visits the Arya Samaj. As regards the school, it was asserted that the school is a commercial building, whereas the property in dispute is residential and, therefore, cannot be used for a school. It was also averred that rent had C.R No. 5064 of 2004 ::3:: been paid upto 29.2.1996. After taking into consideration the pleadings of the parties, the learned Rent Controller framed the following issues :- “1. Whether the petitioners required the demised premises for their personal use and occupation ? OPA 2. Whether the respondents have materially impaired the value and utility of the demised premises ? OPA 3. Whether the tender made by the respondents is legal and valid ? OPR 3A. Whether ejectment petition is not maintainable ? OPR 4. Relief.” The learned Rent Controller found, as a matter of fact, that the requirement of the respondents was bona fide. It was also held that Hari Dev Dutt had constructed rooms without the consent of the landlord and occupied the area, shown as green, blue and yellow in the site plan, Ex.A-2 illegally and forcibly, and raised construction thereon without the consent of the landlord. It was also held that the ejectment petition was maintainable and was consequently accepted. Aggrieved by the order, passed by the learned Rent Controller, the petitioners filed an appeal. The Appellate Authority, vide order, dated 25.8.2004, dismissed the appeal. Counsel for the petitioners submits that respondent No.1, namely, the Arya Samaj, is not a legal entity and, therefore, has no right to file the ejectment petition. A right to sue arises from the juridical character of a person. In the absence of any evidence that respondent No.1 is a legal C.R No. 5064 of 2004 ::4:: entity, the ejectment petition was not maintainable in the name of Arya Samaj. It is further asserted that mere absence of any objection in the written statement with respect to the aforementioned assertion, would not absolve respondent No.1 from establishing its legal status and, thus, its competence to file the ejectment petition. It is, therefore, submitted that as the ejectment petition was not maintainable, the learned Courts below should have dismissed the ejectment petition. Another argument, put-forth by counsel for the petitioners, is that Onkar Dass Sofat and Vidya Sagar failed to establish that they were authorised to file the ejectment petition or represent the Arya Samaj. The resolution, placed on record, in support of their authorization to file the ejectment petition, is fabricated. Even if the resolution is held to be legal and valid, as it was passed, after the filing of the ejectment petition, the ejectment petition should have been dismissed as not maintainable. It is further asserted that the bona fide requirement, alleged by the respondents, has not been established. The school and the dispensary are commercial ventures. The tenanted premises are residential in nature, and, therefore, cannot be used either for the school or the dispensary. The last submission, put-forth by counsel for the petitioners, is that as per the averments in the ejectment petition, the portions, shown in yellow, blue and green, were not rented out to Hari Dev Dutt and, therefore, the petitioner could not have been ejected therefrom. The learned Courts below have erroneously held that as the petitioners asserted that these portions were part of the tenanted premises, they would have to be ejected from the entire premises. Counsel for the respondents, on the other hand, submits that the C.R No. 5064 of 2004 ::5:: findings of fact, returned by the learned Courts below, do not warrant interference. The petitioners have failed to urge or establish any error of jurisdiction or of law by the Courts below. It is submitted that a perusal of the written statement does not disclose any plea, whether in the preliminary objections or in the reply on merits that the Arya Samaj is not a legal entity and, therefore, could not maintain the ejectment petition. It is submitted that a plea, not asserted in the written statement, and not raised either before the Rent Controller or the Appellate Authority, cannot be urged or asserted for the first time in a revision. The petitioners have admitted that the respondent-Arya Samaj is their landlord. The assertion, put-forth by counsel for the petitioners, is, therefore, essentially irrelevant and should, therefore, be rejected. In so far as the maintainability of the ejectment petition on the ground that Onkar Dass Sofat and Vidya Sagar were not validly authorized to file the ejectment petition, counsel for the respondents submits that the matter has been considered in great detail by the learned Rent Controller, as also by the Appellate Authority and held against the petitioners. The deposition of the witness, namely, AW2-Vidya Sagar, to the passing of a resolution on 7.3.1993, has been accepted and does not call for any interference. It is further argued that the petitioners have themselves asserted that the entire premises, namely, the portions, shown in red, blue, yellow and green, are a part of tenanted premises. The learned Courts below, therefore, rightly negatived the contention that the order of ejectment could only be passed with respect to the original tenanted premises, as asserted by the respondents in the ejectment petition. It is further submitted that the plea of bona fide necessity has C.R No. 5064 of 2004 ::6:: been established by leading cogent evidence and no substantial arguments have been addressed by counsel for the petitioners to warrant a reversal thereof. I have heard counsel for the parties and perused the impugned orders. The petitioners' assertion that the Arya Samaj, Khanna is not a legal entity and, therefore, could not file an ejectment petition, was not raised in the written statement, filed before the learned Rent Controller. No issue was either claimed or framed. No evidence was led on the said point by either party. The grounds of appeal, before the learned Appellate Authority, do not contain any such assertion. This argument was, however, urged for the first time before the learned Appellate Authority and was negatived in the following term :- “..................In the present case also, the respondents/appellants have not taken specific plea in their written statement that petitioner society was unregistered one and as such it was not competent to file the present ejectment petition nor any such objection was taken in the grounds of appeal and as such it cannot be allowed to raise this objection for the first time in the appeal.” A material objection, not raised in the written statement, cannot be urged for the first time in appeal and much less in revision. The appellate authority rightly disallowed this argument. The petitioners cannot be permitted to set up a new case and take the respondent by surprise. The petitioners' contention that Onkar Dass Sofat, President C.R No. 5064 of 2004 ::7:: and Vidya Sagar, Secretary of the Arya Samaj, were not duly authorized to represent the Arya Samaj, is incorrect. A perusal of the impugned orders discloses that both Courts have returned a concurrent finding of fact rejecting the aforementioned contention. The resolution, dated 7.3.1993, Ex.PW2/A, produced by Vidya Sagar, in his deposition, as AW2, has been accepted by the learned Rent Controller, as also by the learned Appellate Authority. His deposition to the effect that the resolution, authorizing him and the President to file the ejectment petition, has been accepted as correct and, therefore, does not call for any interference. No convincing material or evidence has been referred to by counsel for the petitioners as would enable this Court to take a different view from that recorded by the learned Courts below. The resolution, Ex.PW2/A, dated 7.3.1993 was duly proved. Another contention relates to the identity of the tenanted premises but does not require any serious consideration. The respondents categorically averred in the ejectment petition that the portion, shown in red, was let out to Hari Dev Dutt, father of the petitioners, about 35 years ago. The portion, shown in yellow, was kept for common use and enjoyment of the Arya Samaj. The room, shown in blue, was used by Hari Dev Dutt, as his office to look after the affairs of the Arya Samaj. The portion, shown in green, was illegally constructed by Hari Dev Dutt, a few months before he passed away, without the consent or concurrence of the respondents- landlords. The petitioners in their written statement, however, asserted that these portions were part and parcel of the tenanted premises. The learned Rent Controller, as also the learned Appellate Authority, relying upon assertions in the written statement, and placing reliance upon Kanhaiya Lal vs L.Rs of late Smt. Amoli Bai and others, 2003(2) Rent Control Reporter C.R No. 5064 of 2004 ::8:: 354 and Subhash Chander vs Ranjit Singh, 1995(2) Rent Control Reporter 556, held that as the petitioners pleaded tenancy with respect to the entire property, a fact not disputed by the landlords, the ejectment petition would relate to the entire premises. The learned Appellate Authority upheld the said finding. The aforementioned findings do not suffer from any error of jurisdiction or of law as would require interference in the exercise of revisional jurisdiction. It is apparent that the petitioners specifically averred in their written statement, duly fortified by their evidence, that the entire property, whether shown in red, blue or yellow, was a part of the tenanted premises. This fact was not controverted by the respondents' landlords. The petitioners cannot now assert that the ejectment petition should be confined to the tenanted premises detailed in the ejectment petition, more particularly as the landlords did not contest these facts. The plea of bona fide necessity, has been concurrently upheld by the learned Courts below. The said findings are impugned on the sole ground that the premises, in dispute, are residential and cannot be utilized for expansion of the school. A perusal of the averments in the ejectment petition, the evidence on record and the findings of fact, recorded by the learned Courts below, are in stark contrast to the assertions, put-forth by counsel for the petitioners. The Arya Samaj consists of a large number of members, who meet and perform Havan in the existing `Yagna Shalla'. The Arya Samaj runs a school, as also a free dispensary in its premises, a part whereof constitutes the tenanted premises. The deposition by the respondents with respect to the insufficiency of accommodation available to the school and the lack of a play ground, has been accepted. The learned C.R No. 5064 of 2004 ::9:: Courts below examined the evidence on record in great detail, perused the record of the school, considered the existence of the `Yagna Shalla', considered the fact that 175 children studying in the school were being taught by 9 teachers, and accepted the ground of bona fide requirement. The learned Courts below also held that a perusal of the site plan, Ex.A1, leaves no manner of doubt that the space, available to the school, is insufficient for a proper running of a school, as it lacks a play ground. The aforementioned findings do not suffer from any error that would require interference by this Court. The respondents successfully established their plea of bona fide necessity, whereas the petitioners failed to establish the mala fides thereof. The concurrent findings, returned by the learned Courts below, do not call for interference. In view of what has been stated herein above, the revision petition is dismissed, with no order as to costs. ( RAJIVE BHALLA ) February 26th, 2008. JUDGE `kk'