Ochhi Ram vs Moti Ram

C.R. Thakur, J.—This revision petition arises out of an application filed by Moti Ram for the eviction of Ochhi Ram and Narender Parkash from the premises known as, House No. 24, Lower Bazar, Kaithu, Simla, consisting of three rooms, verandah, latrine and bathroom. Moti Ram is the owner of the premises and the said premises had been let out to Ochhi Ram quite a long time back. Moti Ram, who may hereinafter be called the Petitioner, filed a petition under the provisions of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1971 (shortly called the Act) for eviction on the three grounds. The first was that he required the premises for his own bona fide use and for the use of his grandson, Ramesh Chand and his family, who is dependent on the Petitioner, and working and living and has to live with him. The present rented accommodation in his occupation is highly insufficient and inadequate for his need and also for accommodating their relatives and guests who visit them. It had been averred that he had no other building of his own in the urban area of Simla nor he had vacated any such building in his occupation within the last five years. The second ground was that Ochhi Ram Respondent had sub-let the premises to Narender Parkash without his permission or consent. The third ground was that the Respondent was in arrears of rent as he owed Rs. 57/- on account of arrears of rent, tax and interest.

The Petitioner did not press the point of sub-letting before the Courts below and in so far as the ground of arrears of rent, etc. was concerned the Respondent had already paid the same in Court on the first hearing and, therefore, the only ground that survived for eviction was the bona fide requirement of the Petitioner.

The Respondent in his reply contended that the need of the Petitioner was not bona fide. The alleged grandson of the Petitioner is permanently residing with his father at Delhi who is a permanent Government servant there. It was further averred that the said grandson of the Petitioner is not dependant on the Petitioner. The accommodation presently occupied is more than sufficient for the Petitioner as he is alone residing in the same.

The Rent Controller had framed issue number 2 on the point of personal requirement and the Rent Controller found that the Petitioner had failed to prove that the premises in question were bona fide required for himself for the use of his grandson Ramesh Chand and his family who are dependant upon him and for accommodating his relatives and guests. However, the Rent Controller further found that the Petitioner who was an old man of about 80 years and goes for pilgrimage every year and wants to retire from business and meditate in his own house was a sufficient ground for eviction because the Petitioner wanted to live in his own house comfortably and to meditate in his extremely old age. The Rent Controller felt satisfied that the Petitioner required the premises in question for his own occupation. The Rent Controller eventually allowed the petition and passed an eviction order on 30th July, 1977 allowing 60 days time to the Respondent to vacate the premises.

Ochhi Ram Respondent went in appeal, and the learned Appellate Authority observed as:

It may be stated at this stage that the landlord had examined two oral witnesses besides himself before the Rent Controller in support of his plea that he bona fide required the premises in question for his own occupation and that of his grandson Shri Ramesh Chand. The grandson of the landlord, however, had not been put into the witness-box. The Rent Controller, though he allowed the petition of the landlord on the finding that he required the premises in question for his own occupation, had observed in his order that the landlord had failed to prove if the premises in question were bona fide required by him for the occupation of his grandson Shri Ramesh. Chand. The landlord made an application in this Court praying for permission to lead some additional documentary evidence in order to establish that his grandson was staying and working with him at Simla. Since no particular reasons had been assigned by the landlord for not producing any such documents before the Rent Controller, I did not allow their production at this stage but in order to satisfy myself about the bona fides of the claim of the landlord, I directed that his grandson, namely, Shri Ramesh Chand, be examined as a witness by the landlord in this Court.

The learned Appellate Authority after having examined Ramesh Chand and taking into consideration the other evidence produced by the Petitioner before the Rent Controller observed as:

In view of the evidence of the landlord produced before the Rent Controller and the statement of his grandson Shri Ramesh Chand recorded in this Court, I have little hesitation in concluding that Ramesh Chand is for the last 7 or 8 years residing with the Respondent-landlord and working with him in his Halwai Shop. Otherwise also the Respondent-landlord being admittedly over 80 years of age, it was only natural that some one should have joined him to assist him in his business and there could be no better person to do so than his own grandson who too was in search of job. Under these circumstances if the landlord claims that he wants to shift to his own house and that it is no more possible for him to live in a portion of his shop, there is no reason to doubt the bona fides of his claim.

It was argued before the Appellate Authority that the main object of eviction petition was to enhance the rent, but this contention of the Respondent was not found to be correct by the Appellate Court and he repelled the same. The Appellate Authority, therefore, dismissed the appeal and confirmed the eviction order passed by the Rent Controller by his order, dated 23rd May, 1978.

Before this Court Shri B.B. Vaid Advocate, who appears for the Respondent, Ochhi Ram (tenant) has raised three pleas. The first is that the Appellate Authority had no power to allow additional evidence to be led by the Petitioner in order to remove the lacuna in the case of the Petitioner and for that he has invited my attention to a case, Rattan Chand Jain v. Charan Singh 1978 (1) RCJ 273. In this case, no doubt, it was held that the Appellate Authority cannot fill in the gap of evidence produced by the landlord to substantiate the plea of personal necessity by recording supplementary statement of the landlord at the appellate stage. But, the facts of this case are distinguishable inasmuch as in the aforesaid case the landlord-Petitioner had not taken the ground that some of his grand-children were residing with him in the village and he intended to shift to Chandigarh as it provided better educational facilities. The Petitioner had only taken the ground for eviction that he required medical aid in Chandigarh and had been advised to live in an open locality. In the instant case, it may be stated that the Petitioner had already taken the ground that he required the premises for his own use and also for the use of his grandson, Ramesh Chand and his family, who was dependant on him and was working with him and had to live with him. Therefore, in these circumstances it is quite apparent that when the Petitioner had taken the ground for eviction that he not only required the premises for his personal use but for the use of his grandson, Ramesh Chand and his family as well who lived and had to live with him in his old age. It is apparent that the Petitioner could substantiate this plea already taken by him. The Rent Controller found that this plea was not substantiated by the Petitioner. It is also not disputed that Ramesh Chand did not enter the witness-box. The Appellate Authority in order to satisfy itself about the genuine and bona fide requirement of the Petitioner thought it fit in the interest of justice to examine Ramesh Chand.

Now the question is whether the Appellate Authority was within its powers to examine Ramesh Chand. Under Sub-section (1)(b) of Section 21 of the Act, the aggrieved party is given the right to file an appeal to the Appellate Authority within 15 days from the date of such order or such longer period as the Appellate Authority may allow for reasons to be recorded in writing. Under Sub-section (3) of Section 21, the Appellate Authority is to decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary (emphasis mine), after making such further inquiry as it thinks fit either personally or through the Controller. Therefore, it would show that the Appellate Authority is given wide powers in appeal not only [to hear the parties but also if it finds necessary for examining other evidence to pass an order. Thus it is apparent that the intention of the powers of the Appellate Authority are not to limit it in terms of Order 41 Rule 27 Code of Civil Procedure. It has been left to the discretion of the Appellate Authority where it feels that in the interest of justice and proper adjudication of the dispute in a case it is necessary that it may order production of additional evidence. Therefore, if the Appellate Authority has exercised that power which was vested in it there cannot be said to be any jurisdictional error committed by that Court.

In a similar situation in Bachan Singh and Ors. v. Amar Singh and Ors. 1977 (2) Rent L.R. 520, it has been held that the Appellate Court is competent to take additional evidence for any other substantial cause. The provisions of Order 41 Rule 27(1) CPC are not confined to allow additional evidence merely to enable the Court to pronounce its judgment and such a discretion exercised by the Appellate Court is not to be interfered with in revision.

Therefore, in my opinion, there does not appear to be any substance in the argument of the learned Counsel for Ochhi Ram Respondent-tenant that the Appellate Authority had erred in allowing additional evidence to fill in the lacuna.

The second point is that the grandsons of the landlord are not members of the family and the requirement for accommodating grandsons cannot be said to be the personal requirement of the landlord himself. No doubt the grandsons normally are supposed to live with their parents but in the face of the circumstances, the father is living at Delhi and the grand-father is an aged man who is not personally capable of running the business, therefore, he has to seek the assistance of some of his near and dear and the grandson also has elected to live at Simla in order to render service to his grand-father and also to lend a helping hand to him in his business. Moreover in Hindu families it is considered to be the moral duty of the grand-children who are grown up to render assistance to their grand-parents. Here in the instant case, the grand-son, as already stated above, has chosen to live with his grand-father to assist him. Therefore, in my opinion, the word himself would naturally include the grand-son also as one of the members of the family. In these circumstances the bonafide requirement of Moti Ram would definitely be the requirement for accommodating his grandson and his family.

In this behalf, I my also refer to a case, Shri B. Prasad v. Shri Ram Dev 1978 (2) Rent LR 502, wherein it has been held that in case the son is dependant on the landlord, his necessity can also be taken into account in support of the ejectment petition, and it is necessary to determine whether that son is dependant on the father in the matter of residence. In the instant case, as already stated, the grandson after having finished his education has come to live with his grand-father, who is an aged person of over 80 years and it is he who is actually running the business and the grand-father spends his time in meditation and now wants to retire from business and, therefore, the grandson who is also dependent upon his grand-father must also be deemed to be a member of the family and dependant upon the grandfather and, therefore, the requirement of the grand-father is a requirement not only for himself but for his grandson also.

In a similar situation in case, Mrs. Rajaratnam and Anr. v. L. Moronha 1972 RCR 597, the Madras High Court held that the need of close relation who happens to live with the landlord or landlady may well satisfy the words ''his own occupation'' or ''if he requires''. In coming to the conclusion the social customs, habits, usage and practice of the particular community to which the parties belong have got to be taken into consideration and that being so the need of the grand-children must be deemed to be the need of the landlord himself. In view of this the second point urged by Shri Vaid that the need of the grand-children could not be considered to be the personal need of the landlord is not correct and the point is decided against him.

The further point urged by Shri Vaid is that though the ingredients as required u/s 14(3)(a) of the Act have been given by the Petitioner in his petition but there was no proof to show that the landlord had not vacated such a building without sufficient cause within five years of the filing of the application in the said urban area. The petition shows that the Petitioner had taken this ground that he had no other building of his own in the urban area of Simla nor he had vacated any such building within the last five years. The reply made by the Respondent to this is as under:

Para 3 of the application is likewise wrong and hence the contents thereof are denied as a whole.

There can be no dispute that it is obligatory upon the landlord to plead that (i) he requires the premises for his own use and occupation, (ii) he is not occupying another residential building owned by him in the urban area concerned and Hi has not vacated such building without sufficient cause after the commencement of the Act in the said urban area as mentioned in Clauses (a), (b) and (c) of Section 14(3) of the Act. But now the question is whether the landlord has proved the necessary ingredients as contained therein. In so far as the first ingredient is concerned the Petitioner has shown that he requires the premises for accommodating his grand-son who is residing with him and who is also assisting him in his business. He has also shown that he is not occupying any other residential building in the urban area with him. The third ingredient that he has to prove is that he has not vacated such building without sufficient cause after the commencement of the Act in the said urban area, as mentioned in Clause (c) of Sub-section (3) of Section 14. The landlord, Moti Ram, has appeared himself in the witness-box and he has stated that his grand son is living with him for the last four years and before that he was a student and now he is working in the confectionary shop run by him. Ramesh Chand has got his family also with him. In the shop at Lakkar Bazar he has one godown and it is in that that he sleeps along with his grand son and his family and it is there that they prepare their meals and that there is no other residential premises with him in Lakkar Bazar and that he has got no other house in Simla excepting the one at Kaithu, nor Ramesh Chand has got any other building with him. He has also stated that neither he nor Ramesh Chand had ever vacated any house of their own. No doubt he has not specifically stated that he has not vacated any house within the five years from the date of the filing of the application, but the fact remains that he has stated that he has not got any premises vacated. He has also stated in cross-examination that he is running his confectionary shop since 1928 and that he is living in this very shop. He had not got any other building of his own, excepting the building at Kaithu since then. He is living in the hind portion of the shop since 1929, and whenever he has got guests he is to willy nor nilly get them accommodated in the shop. In fact, because of the old age, the landlord wants to retire from business and wants to spend his days in meditation in his house at Kaithu. The Respondent has not posed any question in cross-examination to Moti Ram landlord that he had vacated any such premises. However, he has got it proved from Jai Ram (P.W. I) that the Petitioner or his grand son had not vacated any residential accommodation during the last five years or even before that. Ramesh Chand has no residential accommodation at Simla in his possession. He too has not been posed any question if the landlord or his grand son had vacated any premises within five years from the fifing of the application. So, the statement of the witness in examination-in-chief is deemed to have been accepted as correct when no cross-examination on this particular aspect of the case has been posed or suggested by the Respondent. Amar Nath (P.W. 2) also has given a similar statement that the Petitioner or Ramesh Chand had not vacated any premises within Simla during five years or prior to that. He too has not been cross-examined on this aspect of the case nor he has got any such thing proved from his own witnesses, namely Kewal Ram (R.W. I) and K.C. Sharma (R.W. 2). He himself has appeared as R.W. 3. In his statement also he has not stated any such thing if the landlord or his grandson had vacated any building of their own within five years from the filing of the application without any sufficient cause. The only statement made by him is that he has sufficient accommodation in the premises of the shop which he could utilise for purposes of residence.

The Courts below have come to a concurrent finding of fact that the premises are required by them for their personal use. A person who has now attained an advance age really requires peace and comfort. A person who is sufficiently aged is prone to devote more time towards meditation and the business is to be looked after and carried on by the youngsters of the family. In the present case, the business is to be looked after and run by Ramesh Chand the grand-son of the petitiner. Now after having passed his earlier age in business the Petitioner wants to devote his remainder time in meditation for which he really wants to shift to his own house away from the hubbub of the shop where there cannot be any peace. For an aged man it is necessary that he should live in comfort and it is for that end in view that he had purchased the house in the year 1947 although all along it had remained with the tenant, but now he wants to live in peace and comfort without any outside interference. If in such contingency the Petitioner requires the premises, the Respondent who is tenant, cannot ask the landlord that he can accommodate his guests and also live in the back portion of the shop where he has been living since 1928. I am, therefore, of the view that the requirement of the Petitioner is genuine and bona fide keeping in mind his age and other circumstances and I do not find any scope or merit for interference in this revision petition and especially on the point of concurrent finding of fact.

The result, therefore, is that I affirm the judgment and order passed by the Appellate Authority and dismiss the petition.

However, keeping in view the fact that the winter has set in and it would not be possible for the tenant-Respondent to find out alternative accommodation very soon, I allow him time to vacate the premises till the end of April 1979. I also do not think it proper to pass any orders in respect of the costs of this revision petition. In so far as the costs of the Courts below are concerned, the same shall be borne by the parties as directed by the Rent Controller and the Appellate Authority.