IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 83 of 2005 Date of Decision : December 15, 2009 Smt. Anita Dogra and others Petitioners Versus Smt. Sheela Arora and others Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioners : Mr. Bhupender Gupta, Sr. Advocate, with Mr. Neeraj Gupta, Advocate, for the petitioners. For the respondent s : Mr. Ramakant Sharma, Advocate, for the respondents. Sanjay Karol, J. (Oral) This is the tenants’ petition filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act) assailing the order dated 27.6.2005 passed by the learned Appellate Authority, Shimla in Civil Misc. Appeal No. 52-S/14 of 2002, titled as Smt. Sheela Arora & others versus Smt. Anita Dogra & others, partly reversing the order dated 21.8.2002 passed by the learned Rent Controller, Court No. (V), Shimla in Rent Petition No. 74-2 of 99/98, titled as Smt. Sheela Arora & others versus Smt. Anita Dogra & others. The petitioners herein are referred to as the tenants and the respondents herein are referred to as the landlords. Landlord Sh. Sidhu Ram filed a petition against the tenants for eviction of the premises No. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 107, Ground Floor, Krishna Nagar, Shimla comprising of three rooms, kitchen, bath room and a common latrine. The same was let out to the tenants by the erstwhile owner from whom the property was purchased by the landlord. As per the petition, the landlords family comprised of he himself, his wife, three married sons namely (i) Sh. Sudarshan, his wife and two school going children, (ii) Sh. Gopal, his wife and one son, (iii) Sh. Ashok and his wife and one married daughter namely Smt. Suman Sethi. The total accommodation of the landlord being four rooms, one kitchen, one bathroom and a common latrine was not enough to meet out their requirement. The requirement of the landlord being urgent, pressing and bonafide for his own use as also for use and occupation of his family members, ejectment of the tenants from the tenanted premises was sought for. The tenants were in arrears of rent which was another ground for ejectment. The tenants opposed the petition inter alia disputing the bonafide requirement of the landlord. The family size of the landlord was disputed as according to them, Sh. Sudarshan being step son was residing separately and independently in a rented accommodation elsewhere and Sh. Ashok was single as his wife had left the matrimonial home. In any event, apart from four rooms the landlord was also having one room occupied by Sh. Ashok and one glazed veranda which was also used as a room. Thus total accommodation with the landlord comprised six rooms, a kitchen, bathroom and a common latrine. Based on the pleadings of the parties the Rent Controller framed the following issues: 3 “1. Whether the premises under the occupation of the respondent are bonafide required by the petitioner? OPP 2. Whether the respondent is in arrears of rent as alleged? OPP 3. Whether the petitioner has concealed the material particulars? OPR 4. Whether the petition has not been properly verified? OPR 5. Whether the petition has been filed on malafide grounds? OPR 6. Relief.” During the pendency of the petition Sh. Sidhu Ram died and accordingly his legal heirs being his wife, sons and daughter were substituted as petitioners, the present landlords. The Rent Controller held the tenants to be in arrears of rent and decided issue No. 2 accordingly. On the question of the bonafide need and requirement the Tribunal held that the landlord had failed to prove the same and there was sufficient accommodation available with them to meet their requirement. However on the ground of nonpayment of rent the petition was allowed. Aggrieved of the same the landlords filed an appeal before the Appellate Authority, Shimla which stands allowed in terms of the impugned judgment dated 27.6.2005. I have heard the learned counsel for the parties and also perused the record. 4 Sh. Bhupender Gupta, learned Senior Counsel has argued that the lower appellate Court has failed to correctly appreciate the material on record resulting into erroneous findings. The scope of interference by this Court under Article 227 of the Constitution of India is limited. However for my satisfaction I have perused the record and I am of the view that there is neither any perversity nor any illegality or irregularity in the findings returned by the lower Appellate Court. The entire material has been correctly appreciated. It is evident from the statements of Gopal Arora (PW-1) and Sh. Sudeershan Arora (PW-2) that the total accommodation available with the landlords, in effect is only four rooms. Even out of these, two rooms do not have proper ventilation. The other two rooms referred to by the tenants, as per the version of Smt. Anita Dogra (RW-1) is a glazed veranda and a room under the staircase. Undisputedly the glazed veranda which is referred to as the fifth room, is being commonly used by both the landlords and the tenants as entrance to portions in their respective possessions. The veranda which is referred to as the room is actually not in exclusive possession of the landlord. It is also an admitted case of the parties that the passage to the latrine commonly used by the landlords and the tenants is through this very glazed veranda. The room under the staircase cannot under any circumstances be taken as a room which can be conveniently used as a bedroom by Shri Ashok. In any event two of the four rooms in occupation of the landlord do not have proper ventilation. Thus effectively the landlords are in possession of only two rooms which are completely habitable. 5 The accommodation in occupation of the tenants is not in dispute. It comprises of three rooms, one kitchen, one bath room and a common latrine. The family size of the landlords has been disputed by the tenants. However from the record it is evident that Sh. Sudershan had been residing with his parents for 15-16 years and due to paucity of space he had to move out and hire rented accommodation. The need arose more so with the birth of his two children. Sh. Sudarshan has desired to come back and live jointly with his entire family. It stands proved that for the rented accommodation Sh. Sudarshan is paying Rs. 3000/- per month whereas the tenanted premises is fetching rent of Rs. 150/- only. Why should he be forced to live separately and that too by paying higher rent. Merely because he is a stepson cannot be a ground to hold that he has permanently shifted out. It cannot be disputed that the relations between the family members are cordial. With the passage of time the size of the family of Sh. Gopal has also increased. It stands proved through the statement of PW-1 that he has two children. Evidently his children are growing and need larger accommodation. The third son Sh. Ashok Arora was divorced. It has been orally argued that even he has remarried but however there is nothing on record to prove the said fact. Undisputedly Smt. Suman is married and occasionally visits her parental house. Taking the size of the family of the landlords to be (i) Smt. Sheela Arora, (ii) Sh. Ashok, (iii) Sh. Gopal, his wife and two children, (iv) Sh. Sudershan, his wife and two children and (v) Smt. Suman who 6 occasionally visits her parental house, I have no doubt that the accommodation available with the landlords is less and the accommodation available with the tenants is bonafidely required by them for their own use as also the use of their family members. Each of the adult members would atleast require one room for themselves. With the growing children separate accommodation is also required by them. The respondents herein are men of status. Hence accommodation of all the four rooms and one room under the stair case in their possession is evidently less. It is a settled position of law that the landlord is the best judge of his requirement and cannot be dictated by the whims and fancies of the tenant. In this background the ratio of law laid down in M/s India Paper Machinery & Engineering Works Ltd. vs. Sarwarth Lal Jaini, 1998 (2) R.C.R. 86 (Delhi High Court) has been correctly applied by the Court below. During the course of hearing, statement was made by Mr. Ramakant Sharma, learned counsel for the landlords that the tenant Smt. Anita Dogra has now shifted to some place in Haryana where she is gainfully employed. The matter was adjourned to ascertain the factual position and inspite of repeated adjournments this position could not be verified by the learned counsel for the petitioners. The ground for eviction for the reason of non payment of rent did not survive in view of the tenant having cleared the arrears within the stipulated period of time. 7 For the aforesaid reasons I find no infirmity in the impugned order and the present petition is dismissed. (Sanjay Karol), Judge. December 15, 2009 (PK)