Bhatia Cloth House vs Dr. Raj Kumar Gupta and Another

Rajive Bhalla, J.—The petitioner-tenant impugns an order, dated 11.2.2006, passed by the learned Rent Controller, Ambala City directing his ejectment, as also an order, dated 4.4.2007, passed by the learned Appellate Authority/Additional District Judge (Adhoc) Fast Track Court, Ambala, affirming the aforementioned order.

The respondents/landlords filed a petition, u/s 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 for the petitioner-tenant''s ejectment from shop No. 377, B-4 Dev Samaj Road, Ambala City on the grounds of non payment of rent w.e.f. 1.4.2001 and the bona fide personal need of respondent No. 1-Dr. Raj Kumar Gupta. It was asserted in the petition for ejectment that the Haryana Urban Development Authority has served notices, u/s 17 of the Haryana Urban Development Authority Act, 1977, calling upon respondent No. 1 to close his clinic in House No. 792, Sector 7, Urban Estate Ambala City, as commercial activity is not permitted in residential premises. Respondent No. 1 is, therefore, required to shut down his clinic or face resumption of his house and it was, therefore, prayed that as respondent No. 1 requires the shop for his bona fide need to shift his medical practice, the tenant be evicted from the tenanted premises.

The respondent-tenant contested the correctness of the averments in the ejectment petition and asserted that respondent No. 2 resides at Ludhiana, whereas respondent No. 1 carries on his medical practice at his house No. 792, Sector 7, Urban Estate Ambala City. It was further asserted that as the landlords have sold two adjoining shops and are in occupation of a building, within the urban area of Ambala, the need pleaded is not bona fide. It was also asserted that the landlords increased the rent on 27.3.2001, whereas the ejectment petition was filed on 14.6.2001, thus, establishing the mala fides of the plea of bona fide necessity.

On the basis of pleadings, the learned Rent Controller framed the following is-sues:

Whether the petitioners required the tenanted premises for their use and occupation? OPP

Whether the present petition is barred as per the provision of Order 2, Rule 2, CPC? OPR

Whether the petition is bad for non-joinder of necessary parties? OPR

Whether the present petition is not maintainable? OPR

Relief.

After parties concluded their evidence and addressed arguments, the learned Rent Controller directed the petitioner''s ejectment by accepting the landlords'' plea that they require the demised premises for their bona fide personal necessity.

Aggrieved by the aforementioned order, the petitioner filed an appeal. The learned Appellate Authority dismissed the appeal and affirmed the order, passed by the learned Rent Controller.

Counsel for the petitioner submits that the orders, passed by the learned Courts below, are illegal and void. The landlords have sold two adjoining shops, thus, clearly establishing that the need pleaded in the ejectment petition is not bona fide. It is submitted that on 27.3.2001 i.e. three months before the filing of the ejectment petition, the landlords increased the rent. This fact is in itself sufficient to cast a serious doubt upon the bona fides of the personal necessity pleaded and to dismiss the ejectment petition.

It is further submitted that the notice of misuser was received in the year 1999, whereas the ejectment petition was filed on 14.6.2001. The delay in filing the ejectment petition establishes that the assertion of bona fide necessity, based upon the notices issued by the HUDA, is a mere ruse to seek the petitioner''s ejectment. During this period, the landlords enhanced the rent on 27.3.2001, clearly establishing the mala fides of their plea of bona fide necessity. It is further submitted that were the threat of resumption real, respondent No. 1 would have shifted his clinic elsewhere. It is also submitted that respondent No. 1 was running his clinic in the adjoining shop. He shifted his medical practice to his residential house of his own free will and, therefore, any misuser by respondent No. 1 of his residential premises cannot be a ground to order the ejectment of the petitioner.

Another argument, pressed into service, is that the landlords have not pleaded or proved the statutory ingredients of Section 13(3)(a) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short herein after referred to as ''the Act''), the landlords have failed to specifically plead or prove that they are not occupying another building in the urban area of Ambala City and have not vacated any such building without sufficient cause. Failure of the landlords to plead or prove the statutory ingredients, set out in Section 13(3)(a) of the Act, dis-entitles them to any relief. It is also submitted that the learned Courts below erred in holding that even if pleadings were deficient, the landlords had led sufficient and cogent evidence to ensure compliance of the statutory requirements of Section 13(3)(a) of the Act.

It is further argued that a landlord cannot be permitted to take benefit of his own wrong. Misuser of his house by respondent No. 1, and the consequent order of resumption would not entitle, the landlords to take advantage of their own wrong and, thereafter pray for ejectment of the petitioner. It is further submitted that the necessity pleaded is mala fide. The shop in dispute measures 400 sq. feet and cannot be used for a clinic. The landlords have admittedly sold two adjacent shops and the upper portion of the shop in dispute. These facts were concealed by the landlords and were brought to the notice of the learned Rent Controller by the petitioner. The landlords are, therefore, guilty of concealment of material facts and the learned Courts below should have, therefore, dismissed the ejectment petition.

The last argument, pressed into service, is that the ejectment petition has been filed against a firm, M/s Bhatia Cloth House, without impleading all its partners. This infirmity in the ejectment petition has been wrongly disregarded by the learned Courts below.

Counsel for the respondents, on the other hand, submits that the necessity pleaded by the landlords is bona fide. Respondent No. 1 shifted his clinic from an adjoining shop, to his house in Sector 7, Urban Estate Ambala City under the mistaken belief that he could open his clinic in his house. The Haryana Urban Development Authority served a notice calling upon respondent No. 1 to close the clinic, failing which the property would be resumed. Faced with imminent resumption of his house, respondent No. 1 filed the instant petition for ejectment of the petitioner. As respondent No. 1 has no other premises to carry on his profession, the only alternative was to seek the petitioner''s ejectment. It is argued that as the respondent No. 1''s proprietary rights regarding his house, situated in Sector 7, Urban Estate, Ambala City are in jeopardy, the plea for ejectment on the ground of bona fide necessity has been rightly accepted by the learned Rent Controller, as also by the learned Appellate Authority.

It is further submitted that the ingredients of Section 13(3)(a) of the Act had been pleaded and proved, in accordance with law. Submissions to the contrary by counsel for the petitioner have already been rejected by both Courts. Respondent No. 1, though in occupation of a house, cannot open a clinic, in view of the statutory impediments in the HUDA Act. It is further submitted that respondent No. 1 vacated the adjoining shop under the bona fide belief that he would start his practice at his residence. As a clinic is not permitted in residential premises, no mala fides can be inferred from these facts. The sale of two shops is admitted but it is submitted that they were sold prior to the petitioner''s induction into the tenanted premises as a tenant and these facts cannot be held to violate the provisions of the Act so as to dis-entitle the landlords from maintaining a petition for ejectment on the ground of bona fide personal necessity.

It is also argued that increase in rent would in no manner detract from the bona fides of the plea of personal necessity. As respondent No. 1 was contesting the notice of resumption and was under the impression that the Haryana Urban Development Authority would permit a clinic at his house, they requested the tenant to increase the rent. As regards the delay in filing of the ejectment petition, it is submitted that the notice was received in the year 1999, respondent No. 1 was contesting the proceedings of resumption. It was only after respondent No. 1 was convinced that his property would be resumed, did he proceed to file the ejectment petition. Respondent No. 1''s apprehension that his house would be resumed, has become a reality, as the order of resumption has been passed, and though an appeal is pending, there is every likelihood of its being, dismissed, as no commercial activity is permitted in houses, allotted by the Haryana Urban Development Authority. It is, therefore, prayed that as concurrent findings of facts, recorded by the Courts below, do not suffer from an error of jurisdiction or of law as would require interference in the exercise of revisional jurisdiction, the present revision petition be dismissed.

I have heard counsel for the parties and perused the impugned orders.

The first contention relates to the assertion by counsel for the petitioner that the respondents have failed to plead that they are not occupying any other building and have not vacated any such building without sufficient cause, within the urban area of Ambala City. A perusal of the ejectment petition discloses that in sub-para (b) of para 5 and para 6 of the ejectment petition, the, landlords pleaded that they are not in possession of any other shop with the urban area of Ambala City. In the written statement, the aforementioned averment was not denied. Furthermore, it is a consistent position in law that any ambiguity in pleadings regarding the ingredients, set out in Section 13(3)(a) of the Act, if made good in the evidence, is sufficient compliance of the statutory provisions. Reference, in this regard may be made to Daulat Ram v. Girdhari Lal (1980)82 P.L.R. 182, Romesh v. Mukand Lal 1982(2) R.C.R. 66 and Shri Baldev Raj Vs. Shri Ram Lal, . Respondent No. 1 admittedly, does not occupy any shop within the urban area of Ambala City. He is in occupation of a residential premises. Ejectment in the instant petition has been sought from a shop. Requisite and necessary evidence has been led to establish that respondent No. 1 is not in occupation of any other shop in the Urban Area of Ambala City. The sale of the adjoining shop, initially occupied by respondent No. 1 for his clinic, would not adversely affect the merits in any manner. The shop was sold in the year 1994, whereas the ejectment petition was filed in the year 2001. Respondent No. 1 sold and vacated the shop housing his clinic on the bona fide belief that he could carry, on his clinic at his house and in furtherance of his belief, opened a clinic at his residence. Respondent No. 1 has been compelled to pray for ejectment, as he faces an imminent threat of resumption of his house. The tenant has not denied, whether by pleadings or by evidence, that respondent No. 1 is not in occupation of any commercial premises in the Urban Area of Ambala City and, therefore, as the necessity pleaded is commercial in nature, and as the landlords are not in occupation of any commercial premises in the urban area of Ambala City and have not vacated any commercial premises without just cause, they have satisfied the ingredients of Section 13(3)(a) of the Act. The argument, raised with regard to the failure to comply with the statutory ingredients of the Act, must, therefore, fail and the concurrent findings, returned by the learned courts below, must be upheld. An argument that as the landlords did not disclose the sale of the adjoining shop and other properties, while filing the ejectment petition would merit dismissal of the ejectment petition for concealment of material facts, cannot be accepted. All material evidence, namely, with respect to the sale of the adjoining shops and the other properties was adduced before the Rent Controller.

Respondent No. 1- is admittedly a doctor and was initially owner in occupation of a shop adjoining the tenanted premises. He was running a clinic in these premises. In the year 1994, he sold the shop, constructed a house, in the Urban Estate, Ambala City and shifted his clinic to his house. As the HUDA rules and regulations do not permit the use of a residential premises for commercial purposes, the landlords'' property has been resumed. Faced with the impleading loss of their residential property, the landlords instituted the instant ejectment petition, pleading the aforementioned facts and asserting that respondent No. 1 had to shut down his clinic in the residential premises and, therefore, requires the premises, rented out to the petitioner. Both the Rent Controller, as also the Appellate Authority have accepted the bona fides of the plea of personal necessity. I find no reason factual or legal to doubt the bona fides of the landlord''s plea, in view of the facts, noticed herein above. A landlord, faced with an impending resumption of his property, other than the tenanted premises, may validly raise a plea of bona fide personal necessity with respect to such tenanted premises and the principle that a person may not take advantage of his own wrong, would not apply in such a case. The situation would have been different, if the tenanted premises themselves are resumed for an infraction by the landlord.

The argument that the necessity pleaded is not bona fide, as the landlords cannot be permitted to take benefit of their own wrong, merits rejection. Admittedly, rules and regulations, framed by the Haryana Urban Development Authority, do not permit setting up of a clinic in residential premises. It is not denied that respondent No. 1 received a show cause notice, Ex.P-2 from the Haryana Urban Development Authority, calling upon him to close the clinic. It is not contested that as per the order, dated 24.4.2003, Ex.P-1, the landlord''s residential property has been resumed for misuse. These facts and support from the deposition of RW-1, Clerk from the office of the Estate Office, Haryana Urban Development Authority. The submissions by counsel for the petitioner that as the plea for bona fide necessity is based upon the landlord''s admitted violation of a law, they cannot be permitted to take benefit of their own wrong and pray for the petitioner''s ejectment, cannot be accepted. The question, involved herein, is not the misconduct of the landlords vis a vis their residential premises but whether respondent No. 1 requires the tenanted premises for his bona fide necessity. The landlord''s infraction of the Haryana Urban Development Authority''s rules and regulations has invited severe consequences under the HUDA Act, as he has to shut down his clinic, to save his house. The facts of the instant case, in my considered opinion, would not dis-entitle respondent No. 1 to pray that as he has to shut down his clinic in obedience to the statutory rules and regulations, he bona fide requires the possession of the tenanted premises. The options, available with respondent No. 1 were to either to rent out a premises or to pray for ejectment of the petitioner. The latter option, being natural and logical has been rightly exercised by the landlords. The situation may have been entirely different if the petitioner had established that the show cause notice was void, without jurisdiction or had been procured by the landlords with mala fide intent. No such pleading or evidence has been set out or adduced.

Another assertion is that after receipt of the show cause of resumption and before filing the ejectment petition, the landlords, instead of requesting the petitioner to vacate the demised premises, prevailed upon the tenant to enhance the rent, thus, raises an inference that despite the impending resumption of his residential premises, respondent No. 1 had no intention to shut down his clinic. The above submission, though attractive, does not merit acceptance. Rent was enhanced prior to the filing of the ejectment petition. On the date of enhancement of rent, the property was not resumed, as proceedings in response to a show cause notice were pending. Respondent No. 1 may have been sanguine in his belief that the show cause notice would be discharged and, therefore, pre-vailed upon the petitioner to enhance the rent. As the show cause notice has now concluded into an order of resumption, the enhancement of rent, as referred to herein above is irrelevant.

The argument that the premises in possession of the petitioner are insufficient for respondent No. 1 to set up an eye clinic, cannot be accepted. The need of a landlord the extent or the nature thereof, is the sole and exclusive prerogative of a landlord. As to how and in what manner, respondent No. 1 runs his clinic in the tenanted premises in best left to his sole discretion.

The last argument that the ejectment petition has been filed against the petitioner-M/s Bhatia Cloth House, without impleading all partners of the firm, as required by the Code of Civil Procedure, can not be accepted at this belated stage. No such argument was ever raised either before the Rent Controller or before the Appellate Authority. Issue No. 3 and 4, as framed by the learned Rent Controller, relate to non-joinder of necessary parties and the. maintainability of the ejectment petition. Under Issue No. 3 non-joinder was alleged on the ground that the landlords had failed to join all the landlords, namely, their mother. The said issue was decided against the petitioner. Under issue No. 3 no argument was raised before the Rent Controller or before the Appellate Authority that as all the partners of the petitioner-firm have not been arrayed, the ejectment petition is not maintainable. Under issue No. 4 no such argument was raised or urged and, therefore, can not be raised for the first time in revision.

In view of what has been stated above, as the impugned orders do not disclose an error of jurisdiction or of law as would require interference, the present petition is dismissed with no order as to costs.

The petitioner/tenant is, however, granted three month''s time to vacate the demised premises, subject to his paying/depositing rent for three months within period of one month from today and filing an affidavit before the learned Rent Controller undertaking to vacate the demised premises on the expiry of the period of three months.