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The Code Of Civil Procedure (Amendment) Act, 1956
Section 13 in The Delhi Rent Act, 1995
Ramesh Singh & Another vs Cinta Devi & Others on 23 February, 1996
Pandurang Jivaji vs Ramchandra Gangadhar Ashtekar ... on 29 October, 1981
Vishesh Kumar vs Shanti Prasad on 12 March, 1980

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Punjab-Haryana High Court
Shanti Mohant vs Krishna Devi on 11 July, 2001
Author: R Anand
Bench: R Anand



JUDGMENT
 

  R.L. Anand, J.  

1. This judgment will dispose of civil revision filed by Shanti Mohant and Gajjan alongwith the application under Order 41 Rule 27 CPC. The civil revision has been directed against the judgment dated 7,3.2000 passed by the Appellate Authority, exercising the powers under East Punjab Urban Rent Restriction Act (hereinafter referred to as 'the Act'), Hoshiarpur, which affirmed to the order of the learned Rent Controller dated 12.2.1998 vide which the petition under Section 13 of the Act filed by Krishna Devi was allowed and the petitioners were directed to vacate the demised premises.

2. The brief facts of the case are that Krishana Devi filed a petition under Section 13 of the Act for ejectment of Shanti Mohant and Gajjan (respondents No. 1 and 2 respectively in the rent petition) from the house in dispute. It was averred by the petitioner in the petition that she is owner of the house in dispute while respondent No. 1 is a tenant under her on a monthly rent of Rs. 200/- and respondent No. 2 was inducted by respondent No. 1 in the said house illegally. The petitioner sought the ejectment of the respondent on the grounds that they had not paid or tendered the rent since December, 1992; that she is a retired BBMB employees and requires the premises in dispute for her bona fide personal necessity as she is not owning any other house in the municipal limits of Tanda while respondents have their own house in Ward No. 9, Mohalla Ramgarh (Tanda); that the petitioner is presently residing with her family in House No. 1170, Sector 4, Talwara Township with Som Nath, who is a BBMB employee and is her relative, since her retirement that she has no other house except the house in dispute in the municipal limit of Tanda or any other place in the State of Punjab and that the respondent have impaired the value and utility of the house in dispute and have damaged the building by their act of omission and commission. It was also alleged by the petitioner that she has not vacated or occupied any other house within one year from the date of filing of the present petition.

3. Notice of the petition was given to the tenant and sub-tenant. They filed the reply and admitted the relationship of landlady and tenants between them. It was pleaded by them that the rate of rent is Rs. 30/- per month and on this rate rent was tendered by them. The other grounds of ejectment were denied.

4. From the pleadings of the parties, following issues were framed by the learned Rent Controller:-

1. Whether the tender is short? OPA

2. Whether the respondent have impaired the value and utility and have also damaged the house in dispute? If so its effect? OPA

3. Whether the petitioner is entitled to a decree for ejectment of the respondents on the ground of personal necessity? OPA

4. Relief.

5. The parties led oral as well as documentary evidence in support of their respective cases and on the conclusion of proceedings issue No. 1 was decided against in her favour for the reasons given in paras 11 and 12 of the order of the learned Rent Controller. Resultantly, the rent petition was allowed. It will be useful for me to reproduce paras 11 and 12 of the order of learned Rent Controller dated 12.2.1998 as under:-

"11. The contention of the petitioner is that she is BBMB employee and now after her retirement she requires the house in dispute for her personal necessity as she has no other house to reside except the house in petition. A.W.-3 Achhar Singh has brought on record Ex. A-2 original entry regarding retirement of the petitioner from the said department. A.W.4 Sat Pal attorney of the petitioner has also deposed to the effect that the petitioner was working as Sweeper in BBMB Talwara and she retired from service on 29.12.1992. He has further stated that the petitioner does not own any other house except the house in dispute and after her retirement she needs the same for her personal necessity. He has also stated that petitioner is a widow and has got four children. Her married sons are also living with her. He has also stated that the petitioner is residing in a rental house at Talwara. R.W.1 Chaman Lal has also admitted that Krishna Devi petitioner is residing at Talwara in a rented house and she has no other house except the house in dispute at Tanda. He has further stated that the petitioner has no other house except the house in question, anywhere through Punjab State. He has also admitted that the petitioner is a widow and her two married sons are living with her.

12. So, it is proved that the petitioner who was earlier an employee of the BBMB Talwara has now retired and she has no other house except the house in question and she needs the same for their personal necessity. There is nothing on the record to show that the petitioner has vacated or occupied any other house within one year from the filing of the present petition. Accordingly, this issue is decided in favour of the petitioner and against the respondents."

6. Not satisfied with the findings of the Rent Controller on issue No. 3 the respondents filed an appeal under Section 15 of the Act before the Appellate Authority, Hoshiarpur which dismissed the same for the following reasons as given in paras 8 to 12 of the judgment dated 7.3.2000:-

"8. The learned counsel for the appellants/tenants has argued that the respondent/landlady filed petition under Section 13 of the Act for ejectment cf the appellants/tenants to vacate and deliver the possession of the house in dispute. He has further argued that the allegations of the respondent/landlady are that the rent was Rs. 200/- per month were wrong as the actually the rate of rent was Rs. 30/- per month and contention of the respondent/landlady has been disbelieved by the Rent Controller and she should be disbelieved also qua the remaining facts. In support of his arguments, he has relied upon Santosh Kumar v. Bhagwant Prasad 1995(1) Rent Law Reporter 307 wherein it has been held as under:-

"Eviction - Default in payment of rent - Title of landlord - Ejectment sought on the ground of default in payment of rent in respect of one room alleged to have been rented at the rate of 150/- per month, non-payment of house tax and the tenant has stated claiming to be tenant of whole of the house resulting in denial of the title of landlady. Both the courts below as a matter of fact have proved that the rate of rent was Rs. 70/ per month and not Rs. 150/- per month. Once the landlady is disbelieved regarding rate of rent, then it weakens her case considerably with regard to other pleas as well - Revision petition filed by her dismissed."

He has further argued that the respondent/landlady did not appear in the witness box herself. She has not stated that she has not vacated any house after the commencement of the Act and she is not owning any other house in the Urban Area of Tanda and she has not vacated any such building without any cause after the commencement of this Act and has not filed petition as per requirements of Section 13(3) (a) (b) of the Act. He has further argued that the mere fact that the landlady is residing in a rented house is no ground for getting the tenant ejected without proving anything more. He has further argued that the landlady has not come to the Court with clean hands and as such she is not entitled to the relief of ejectment. He has further argued that attorney is not entitled to appear as a witness for the party appointing him. In support of his argument, he has relied upon Vidhyadhar v. Monikrao and Anr., 1999(1) Apex Court Journal 438, wherein it has been held as under:-

"Party not entering into the witness box to state his own case on oath and not offering himself to be cross examined by the order side-A presumption would arise that the case set up by him is not correct".

He has also relied upon Mehar Chand and Anr. v. Tilak Raj 1982(1) Rent Law Reporter 306, wherein it has been held as under:-

Landlord not coming with clean hands and false pleas taken - No order of ejectment can be passed in his favour much less a new case can be made out for him".

He has also relied upon Ramesh Kumar v. Atma Devi and Ors., 1985 H.R.R. 649 wherein it has been held as under:-

"Where the respondent/landlady was living herself in a rented house - She claimed her own house on the ground of personal necessity - Held, landlady would not be entitled to claim eviction of her tenant simply of the ground that she was in occupation of the premises of the same area as tenant without alleging and proving anything more."

He has also relied upon Rem Parsad v. Hari Narain and Ors., AIR 1998 Rajasthan 185 wherein it has been held as under:-

"Power of attorney holder - right of - He is not entitled to appear as witness for party appointing him power of attorney holder - Word "acts" in Rule 2 does not include act of power of attorney holder to appear as witness on behalf of a party".

9. On the other hand, the learned counsel for the respondent/landlady has argued that the respondent landlady was serving in BBMB at Talwar and she has retired from there and now she wants to reside in her own house at Tanda and she has no other house at Tanda nor she has vacated any house. He has further argued that even if the respondent/landlady has not appeared in the witness box, it cannot be said that she is not entitled to the relief of ejectment of the tenants because the witnesses of the appellants/ tenants have admitted her allegations. He has further argued that adverse inference can be drawn against a party who does not appear if there is no other evidence but in the present case, the position is otherwise. In support of his arguments, he has relied upon Pandurang Jiva Ji Apte v. Ramchandra Gangadhar Ashtekar, AIR Supreme Court 2235 wherein it has been held as under:-

"Party failing to appear in Court - Drawing an adverse inference - Question as to would arise only when there is no other evidence on record on the point in issue".

He has further argued that even if the landlady does not appear as a witness but her case is proved by other witnesses, then the tenant is liable for ejectment. In support of his arguments, he has relied upon Mehar Singh and Ors. v. The Financial Commissioner, Haryana and Ors. wherein it has been held as under:

"Ejectment application filed by a landlady owner about 90 years age - Ejectment application bearing her thumb impression - Need not appear as a witness in person -Finding record by the Authorities that rent not paid for four crops - Rent becomes due and tenant liable to ejectment.

10. In this case AW-1 Sadhu Ram has deposed that Krishana Devi is his sister and he has seen the house in dispute which is on the back side of his house and she has given on rent to the respondents at the rate of Rs. 200/- per month through him. He has further deposed that Krishna Devi was working as a sweeper in the BBMB at Talwara and she retired in the year 1992 and now she is residing in a rented house at Talwara and she has no other house, the other witnesses examined by the petitioner/landlady have also supported her version.

11. On the other hand, RW 3 Gajjan has deposed that the house in dispute was taken on rent by him and Shanti Mohan at the rate of Rs. 30 per month and they never agreed to pay Rs. 200/- per month. He has further deposed that they have been sending rent to the petitioner through money orders and the postal receipts are in the summoned filed Civil Suit No. 792 of 1993. He has seen the original receipts copies of which are Ex. DW 3/A to Ex. DW-4/G. He has further deposed that they have not made an alteration in the property in dispute. He has further deposed that Krishana Devi owns one house at Tanda which is situated near the house of Sadhu Ram. The other witnesses examined by the respondents have also supported their version.

12. A minute perusal of the evidence on the file shows that RW 1 Chaman Lal has stated in his cross-examination thai it is correct that Krishna Devi had been serving in the BBMB at Talwara. He has also stated that it is correct that she is residing at Talwara in a rented house. He has also deposed that it is correct that Krishna Devi has no other house except the house in dispute any where throughout Punjab. He has also stated that it is correct that Krishna Devi has no other house except the house in dispute at Tanda. He has further deposed that the husband of the petitioner has died but he cannot tell the date of his death. He has further deposed that Krishna Devi has two sons who are also serving at Talwara. RW2 Amrik Singh, Clerk, Municipal Committee, Tanda has also stated in his cross-examination that whenever they make an entry in the register about the rate of rent, they do so on the application of the landlady but he has not brought the said application. All this evidence on the file shows that even if the lower Court has given finding that rate of rent was Rs. 30/- the same cannot be said to the register just at the instance of the tenant. Besides this, RW1 Chaman Lal has admitted that Krishna Devi has no other house at Tanda and she has not vacated any other house any where and in this manner. I have come to the conclusion that the lower Court has rightly held that the appellants/tenants are liable to be ejected on the ground of personal necessity of the respondents/landlady and I do not find any infirmity or illegality in the findings of the lower court and the same are affirmed. In view of the facts and circumstances of the case, the citations referred to by the learned counsel for the appellants/tenants are not applicable to the facts of the present case while those referred to by the learned counsel for the respondent/landlady are applicable to the facts of the case. Hence, there being no merits in the appeal, the same is hereby dismissed with no order as to costs."

7. Again not satisfied with the judgment of the Appellate Authority, Shanti Mohant and Gajjan filed the present revision. Alongwith the revision they filed one application under Order 41 Rule 27 CPC. FOR leading additional evidence.

8. Notice of the revision was given to the respondent, who was represented by her counsel Mr. Rajiv Bhalla.

9. I have heard Mr.Sanjiv Majithia, advocate on behalf of the petitioners. Mr. Rajiv Bhalla, Advocate on behalf of the respondent and with their assistance have gone through the records of the case.

10. First of all I would like to dispose of CM.No. 6180-CII of 2000 filed under Order 41 Rule 27 CPC. on behalf of the petitioners. It has been averred by the petitioners in this application that it has come to their notice that respondent Krishna Devi is owner of 1/2 share of a house situated in Ward No. 12 as per the certified copies of the Assessment of house Tax in the Municipal committee of circle Tanda Urmar for the year 1995-96 and 1996-97. These certified copies of house tax have been prepared by a statutory Municipal Committee and these documents are per se admissible for the adjudication of the present revision. At the very outset, I may say that this application deserves to be dismissed on many grounds. It is not averred in the application that the proposed additional evidence was not in the knowledge of the petitioners or that they could not lay hand in the trial Court. Secondly, the proposed additional evidence is not in conformity with any pleadings of the present petitioners. No amount of evidence can be looked into which is not in conformity or which is beyond the pleadings of the parties. Thirdly even if it is assumed for the sake of argument that this document may be read in evidence, still the petitioners would not be able to improve their case because it is not established prima facie that this house is in actual physical possession of Krishna Devi. According to the own averments of the petitioner-respondent is the owner to the extent of 1/2 share of a house in Ward No. 12. Moreover, to me it appears to be some mistake because if the documents Ex.PA and Ex.PB are read, there is a note in these documents to show that Gajjan and Shanti Mohant are the tenants in the above mentioned house on a monthly rent of Rs. 25/- per month. Meaning thereby that the document Ex.PA and Ex.PB pertain to this very property from which ejectment has been sought by Krishna Devi. Also, we know that additional evidence cannot be led by a party as a matter of course. It is not the absolute right of litigant to lead additional evidence unless it is established that the proposed additional evidence will help in the just decision of the case. For all these valid reasons, which I have given above, I dismiss the application under Order 41 Rule 27 CPC.

11. Reverting to the merits of the case, it was vehemently submitted by Mr.Sanjay Majithia that there is not an iota of evidence to show that Smt. Krishana Devi has a genuine necessity and she requires the demised premised for her personal use. Unfolding his contention the learned counsel for the petitioners submits that Smt. Krishna Devi has not stepped into the witness box in support of her case that she requires the premises for her personal use and in the absence of any statement made by her, the learned Rent Controller and the Appellate Authority had fell in error by allowing the petition. In support of his contention, the learned counsel for the petition cited Vidhyadhar v. Manki-ran, 1999(1) Apex Court Journal 438 where it was held hat if a party to a litigation does not come in the witness-box to state his own case on oath and does not offer himself for cross examination, a presumption would arise against him that the case which has been set up by him is not correct. Incidentally, this judgment was also relied upon by the tenants before the Appellate Court. There is no quarrel with the proposition of law laid down by Hon'ble Supreme Court in this judgment because we all know that parties to the litigation are supposed to lead best evidence. If a person withholds the best evidence, presumption should always by against him. Equally is the law that if a litigant admits the case of the opposite party, in such eventually it is not necessary for the opposite litigant to lead the evidence. In support of this we can rely upon Pandurang Jiva Ji Apte v. Ramchandra Gangadhara Astekar (supra). It is the admitted case of the parties that Smt. Krishna Devi did not appear in the witness-box but if her case has been established by the evidence of the tenants itself, she can always take the benefit of that evidence. The petitioners have examined one witness by the name of Chaman Lal as RW1, who stated in the cross-examination that Krishna Devi had been serving in the BBMB at Talwara and that she is residing at Talwara in a rented house. Also this witness admitted that Krishna Devi has no other house except the house in dispute anywhere throughout Punjab. It was admitted by this witness that the landlady has no other house except the house in dispute at Tanda. Further it has come in the statement of this witness that the landlady has two sons who are also serving at Talwara. When everything has been ad-

mitted by the witness of the tenants what else was required to be proved by the respondent/landlady.

12. Faced with this difficulty the learned counsel for the petitioner then submitted that the necessary ingredients of Section 13(3) of the Act have not been pleaded in the rent petition and, therefore, this pelition is liable to be dismissed on this short ground. I again do not subscribe to the argument raised by the learned counsel for the petitioners who relied upon a judgment of Full Bench of this Court Ramesh Kumar v. Ama Devi, (1985-1)87 PLR 751. Section 13(3) of the Act lays down that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of a residential building if he requires it for his own occupation; he is not occupying any other residential building in the urban area concerned; he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban areas. Now let us see whether the essential ingredients of Section 13(3) as staled above, have been pleaded in the rent petition or not and what is the reply of the tenants to those averments of the petition. We all know that this is the consistent law of the land that the law courts should not give too much stress to the pleadings of the parties which should be construed liberally if those pleadings are coming from mofussil level. But at any rate, I have gone through the petition under Section 13 of the Act filed by Smt. Krishna Devi who has alleged in para 4 (ii) of the petition of the following effect:-

"That the petitioner is retired BBMB employee and requires the house for her bona fide personal requirement/necessity since the petitioner owns no other house within the Municipal limits of Tanda. On the other hand, the respondents have their own house within the municipal limits of Tanda i.e. in Ward No. 9 Mohalla Ramgarh, Tanda.

In para 4(iii) it has been averred as follows:-

"That the petitioner is at present residing with her family at, House No. 1170, Sector 4, Talwara Township with Som Nath, who is a BBMB employee and is relative of the petitioner, since the date of her retirement and has no other house to reside except the house in petition within the municipal limits of Tanda and at any other place in the State of Punjab".

In para 5 it has been pleaded as follows:-

"That the petitioner has not vacated or occupied any other house/premises within one year from the date of filing the present petition."

Thus it would be seen that there is a sufficient compliance of the provisions of Section 13(3) of the Act. Now, let us see what is the reply of the respondents to these very paras. To para 4(ii) the stand of the respondents is like this:-

"That sub-para No. (ii) is absolutely wrong and denied. The respondent has no house in Tanda locality."

13. An avennent which has not been denied specifically by the litigant in his written statement shall be deemed to have been admitted. Meaning thereby that the averment of the petitioner with regard to her bona fide necessity should have been believed by the law courts even without proof. But there is enough evidence which I have discussed to show that the need of the landlady was bona fide. Para No. 4(iii) has been simply denied by stating as follows:-

"That sub-para No. (iii) is wrong and denied."

This is no denial in the eyes of law. Meaning thereby that the averments of the land-lady have been admitted. Similarly, in the Written statement it has been stated as fol-lows in para No. 5:-

"That para No. 5 is wrong and denied.

With the type of defence there is no difficulty on the part of the Rent Controller as well as the Appellate Authority to come to the conclusion that the tenants have impliedly admitted the case of the landlady and admitted facts are not supposed to be proved. In this view of the matter, I have no difficulty in upholding the decision of the Rent Controller as well as the Appellate Authority. The ground of personal necessity is a question of fact and tire revisional authority will always be slow in interfering those order unless the evidence has not been rightly appreciated.

14. Apart from that, it will be useful for me to refer to the statement of Gajjan petitioner, who was not in position to contradict that Smt. Krishna Devi earlier was an employee of BBMB Talwara. Rather, he admits that Smt. Krishna Devi had three children. He is not in a position to tell where she is residing. Therefore, in view of the shaky stand taken up by the tenant, I affirm the finding of the Rent Controller of personal necessity.

There is no merit in this revision which is hereby dismissed with costs of Rs. 500/-