Meena Thapa v. L. B. Pradhan

defendant/appellant also subst`antially altered and changed portion of the suit premises without any permission from the plaintiff/respondent. Further, the suit premises being in the state of disarray arid dilapidated condition for want of proper e® maintenance are in need of urgent repair and overhauling. When the defendant neglected to pa.y the monthly rents which fell into arrears for long period, the plaintiff requested the defendant to vacate the suit premises and also issued legal notice. However, in spite of the receipt of the legal notice, the defendant falled to vacate the suit premises and to pay the arrears of rent as per the demand. Hence, the suit for eviction, recovery of arrear rents and other reliefs was brought against the defendant. So far as the recovery of the arrears is concerned, the plaintiff/respondent prayed for recovery of arrears of Rs.16,000/- only being the arrear rent from April, 2001 to November, 2001.

#3. The defendant/appellant contested .the suit by filing a written statement, wherein it was denied that the plaintiff/respondent was the owner of the suit premises and the defendant/appellant was the tenant under him. It was contended that the defendant/appellant had purchased the suit premises from the plaintiff/respondent at a consideration value of Rs.3 lakhs in the year 1992 and by virtue of such purchase, she had become the owner of the suit premises. After the finalisation of the purchase agreement, the defendant/appellant paid Rs.2,95,000.00 to the plaintiff/respondent in different instalments between September, 1992 and October, 1994, out of the total amount of Rs.3 1akhs, and requested the plaintiff/respondent to execute the sale deed in respect of the suit premises in favour of the defendant/appellant on a number of occasions, but the plaintiff/respondent put off the matter on one pretext or the other. Accordingly, the defendant/appellant claimed to be the owner in possession of the suit premises since 1992. Further case of the defendant/appellant was that after purchase of the suit premises, she renovated the entire premises at a cost of Rs.45,000/-witpin a period of three months and as such the averment that the.suit premises were in dilapidated condition was false and baseless. It was also denied that the plaintiff/respondent requires the suit \ premises for his bona fide use and occupation.

#4. On the basis of the above pleadings, the following issues were framed by the trial Court :- |1) Whether the defendant is a tenant Of the plaintiff in respect of the suit premises ? (2) whether the defendant is a defaulter in the payment of rent in respect of the suit premises from the month of April, 2001 to November, 2001 ? (3) Whether the plaintiff requires 1:he suit premises for his bona ride use and occupation ? (4) Whether the defendant has made alterations in the suit pre]]iises without the consent in writing of the plaintiff ? (5| Wliether the suit premises is in need of thorough over` hauling ? (6) Whether the plaintiff is entitled to mesne profits at the rate of Rs.ZOO/- per month with effect from 2.12.2002 onwards ? |7| To what relief or reliefs, if any, is the plaintiff entitled?

#5. Both the parties examined themselves as the only witnesses in support of their respective cases. After considering the facts and evidence brought on record, and after hearing the parties, the leaned trial court came to the conclusion that the defendant was a tenant in respect of the suit premises, that the plaintiff required the suit premises for his bona ride use and occupation and that the defendant had made alterations in the suit premises without the consent of the plaintiff. The findings on other issues were against the plaintiff. However, on the basis of thei-`+I. rindings which were in favour of the plaintiff the leamed trial court came to the conclusion that the plaintiff had proved his case and accordingly decreed the suit of the plaintiff for eviction of the defendant from the suit premises.

#6. Being aggrieved by the above order and decree of the leamed trial court, the defendant/appellant has preferred the present appeal.

#7. It is pertinent to mention at the outset that even though the defendant/appellant had pleaded and pressed number of grounds including the claim that she had become the owner of the suit premises by virtue of the purchase before the trial Court, Shri A. K. Upadhyaya, leaned counsel for the defendant/appellant at the hearing, made it clear that he was confining his submissions to the finding on the issue of bona fide requirement only in this appeal by abandoning other grounds. The submission of the leaned counsel in this regard is that, the pleading of the plaintiff regarding the bona fide requirement is scanty and not sufficient in so far as the plaintiff had not set out i ,.:.\, a,i.'. his need in his pleadings on the basis of which it could be said that the need of the plaintiff/respondent is bona fide. Shri S. S. Hamal, 1eamed counsel for the plaintiff/respondent, on the other hand, submitted that the defendant/appellant had not effectively controverted the plea of the bona ride requirement in the W/S as well as in the evidence and, as such, there is no basis on which the finding of the learned trial Court on the issue in question can be challenged.

#8. In order to appreciate the rival contentions of the parties, it is necessary to refer to the relevant materials on record.

#9. A perusal of the plaint shows that the requirement of bona ride use and occupation has been pleaded in paragraph 6 of the plaint. It has been stated therein that the plaintiff is a retired government servant and in his old age has to perforce live in a small space with his married son at Tadong, East Sikkim with great difriculty. This averment has been denied by the defendant in paragraph 12 of the written statement wherein it has been stated that the defendant denies the statement contained in paragraph 6 of the plaint.

#10. The question for determination is whether the plaintiff- respondent has been able to establish the bona fide requirement as pleaded by him.

#11. It is no doubt true that for the purpose of proving bona ride requirement it is not enough for the landlord to say that he needs the suit premises. This Court in Pal SaI!gaE/ trerstis REl"n e€t. Mahabir Agaowat 1978 (2) SLI - 21 after referring to various decisions has observed that it would not be enough for the landlord merely to state that he requires the suit premises. It is incumbent upon the plaintiff to show that the requirement is for bona fide occupation, i.e., the need or necessity for such occupation is genuine and honest. It has been observed as follows :- "The test u]hieh 1-as to be c.pp3ied is cue obifective test and nat a suREech;i}e one and merely because a lamdloTd asserts t:hat he u]a"±s the accoinmodafron fior the prTpose Of starting or corfu:mring his biLsi; ness, that u]oruld nat be enough €o estch€ish that he requL:ires it for the piurpose and that his requtimemed is bonafiide."

#12. \n I. Si:uas:ul.rainanlam a Others TTersus Hasinkith fujdri & Others /I99gj 7 SCC 275, the Honfole Supreme Court in paragraph 4 of the ].udgment has observed that, when a landlord desires the tenanted premises, the.requirement of law is that the landlord must set out his need for the premises in hi's petition and establish that such a need is bona ride. The need must be bona tide, genuine, honest and conceived in good falth. ]3. It is, therefore, clear that in a case for a bona fide requirement the landlord must set out his need for the premises in his petition and establish that such a need is bona tide.

#14. In the present case the plaintiff/respondent's plea as set out in the plaint is that he is a retired government servant and in his old age he has been forced to live in a small space in the o® house of his married son at Tadong with great diffioulty. In his affida.vit evidence the plaintiff-respondent has stated that he has been sharing a small space in the house of his married son. Since his son has a big family he is deprived of the privaey and comfort of his own house in his old age which he can have only when the suit premises are vacated and possession thereof is handed over to him by the defendant appellant. As against such pleading and the evidence adduced by .the plaintiff there is nothing by way of effective denial or contradiction of the claim of the plaintiff that he requires the suit premises for his bona tide use and occupation in the pleading of the defendant appellant as well as in the affidavit evidence filed by her. The bald statement that the averment is denied in absence of requisite details does not seem to be sufficient for rebuttal of the plea of bona tide requirement taken in the plaint. Besides, the statement made in the afridavit evidence has not been controverted in the cross- exanination. The pleading and the evidence highlighted above leave no room for doubt that the plaintiff has been forced to share a small space with his manded son who has a big family and as such he requires the suit premises for his personal use and occupation. Thus it is difficult to agree with the learned counsel for the defendant appellant that the pleading in this regard is scanty and the evidence adduced thereof is not sufficient to substantiate the plea of bona fide requirement. oe, pB!,I

#15. In Scnda Aluda ver'sus Uwiked Indict Insu:rance Co.Ltd. Am 1999 S.C.loo the Honble Supreme Court has held that when the landlord shows a prima facie case a presumption that the requirement of the landlord is genuine is available to be drawn and while deciding the question of bona rides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. J6. In view of the above the plaintiff-respondent must be taken to have clearly set out his need in his pleading and also to ha.ve duly substantiated the same by his statement in the affidavit evidence.

#17. Under Section 4 of the Gangtok Rent Control and Eviction Act, 1956 bona ride occupation of the landlord or his dependants is one of the grounds of eviction of a. tenant, other grounds being thorough overhauling, and default for pa`yment of rent for four months and more. This Court in Srrz£ Shahafttezc! Vc!£d z7ersz!s K. N. Dewa:lay VoLI SL-I 1977 page 33 which wa:s zL ca; se under Gangtok Rent Control and Eviction Act, 1956 has held that the landlord can have the building vacated .if it` is required for his personal occupation or for occupation of his dependants.

#18. It appears that a similar provision exists in Delhi Rent Control Act, 1958. In S. S. ®gp€tz tJersz.s J!41. a. Gg!p€a - AR ]999 SC 2507, which was a case under Section 14 of the said Act the Apex Court has held that fboria r!d!e or geriz!€ne neecz' of the o6 10 landlord or that the landlord `ge"t€nezg requf res' or `regz.€res bo"rzde' accommodation for occupation by or for use for himself is an accepted ground for eviction. ]9. Accordingly, I am of the view that the bona ride need on the part of the landlord having been established for seeking the eviction of the appellant there is no legal inrirmity which vitiates the finding of the leaned trial Court on the question of bona. fide requirement and the decree passed thereof.

#20. The next submission made by the leaned counsel for the defendant/appellant while dealing with the issue relates to comparative hardship. The question to be considered, according to him was who will suffer more - the plaintiff or the defendant if the suit is decreed. In this case, the defendant/appellant who is unemployed has been living in the suit premises since the year 1992 and if eviction is ordered, she will suffer hardship far more greater than the plaintiff/respondent and in view of this position, no decree of eviction would be justified. For this submission the learned counsel referred to and relied on the decision of the Honfole Supreme Court in BaLba Kashzrza€fe BJiz)zge znersus Samast ltngcayat Gowdi 8b or:hers 1994 Stwpp(3) SCC 698. It has been laid down in this case that if the Court is satisfied that having regard to the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused to oS 11 the tenant by passing a decree then it may refuse to pass a decree of eviction. It is however to be noted that this decision is based on a specific provision contained in See.13/2/ a/the Bombagr Rents, Hodez and Lodging House Rates Controz Act 1947 which is as follows :- "18.(2} No decree for evicfron sha[Il be passed on the ground spec€ifeed in a:lcaLse tgo Of stzb-secti; on (1} tf the Court is sadsified that, ha:vi:ng regard to all the charmsta:noes Of the case i:natnd±;ng the qprestton w:hcther otkeT reasonchae acoonunoanon is owdildrle for the Zandhord. or i:ke tenant greater I.ardship urou.1d be ccused lag :passdrig the decree than b€] re; fusing to p- it.„ It is pertinent to mention that no provision identical to the above exists in the Gangtok Rent Control and Eviction Act, 1956 and as such the existing provisions hardly require the question of comparative hardship to be considered. However, even if the question of comparative hardship were to be considered, that hardly seems to change the situation in the present case. As noted above, the plaintiff-respondent has been found to establish his case of bona ride requirement. It has been held by the apex Court in a. a. Pattl versus Md. GudiLsakeb 2008 AR Sew 1027 which is a case under Karnataka Rent Control Act 1961 that, once the landlord establishes his need to occupy premises for his personal use and occupation the question of hardship has to be decided in favour of the landlord. This decision also lays down ©e> 12 that where the comparative hardship that may be suffered by the landlord, will be greater than that of the tenant than what little hardship that may be suffered by the tenant can be mitigated by granting longer time to vacate the suit premises. Thus the submission made in this regard is of little avail to the defendant- appellant.

#21. The further point raised by Shri A. K. Upadhyaya, 1eamed counsel for the defendant/appellant was that, the notice, Ext.Pl issued by the plaintiff terminating the tenancy of the defendant was` not in conformity with the requirement of Section 106 - Transfer of Property Act. It is his contention that under Section 106 T.P. Act, a 15 days notice expiring with the end of the month of the tenancy was the requirement of law, whereas the period given in notice, Ext.Pl does not expire with the end of the month of the tenancy. Accordingly, it was his submission that the notice issued by the plaintiff/respondent terminating the tenancy was not a valid notice. The leaned counsel relied on the decision of Karnatha mgiv Court in Fi.quu>is Oerone Ferria:nd:is versus Andhong Pedad Ccndoza ~ AIR 1984 Karnattaka 226. I:i was held in that case that a notice giving mere 15 days time by itself will not answer the requirement of Section 106, but it must also indicate that the 15 days period must expire with the end of the tenancy month. The position of law as spelt out above is undoubtedly in conformity with the provisions of Sec.106 T.P. Act. It, however, appears that the provisions of Section 106 T.P. Act is HillB a? 13 not attracted where there is a local law or usage. It rna.y be noted that within the town areas in Gangtok tenaney right in respect of residential premises is governed by Gangtok Rent Control and Eviction Act, 1956 and this Act does not provide for issue of notice for terminating the tenancy. No doubt there were differences of opinion among different High Courts in the past regarding the requirement of issue of notice under Section 106 T.P. Act even where there were local laws. However, the Honfole Supreme Court ln V. Dha].apal Chett±ar versus ¥esodal Ammal - AIR 1979 SC 1745 by a judgment of the 7 Judges bench, overruled number of its earlier decisions and several rulings of the High Courts and held that in order to get a decree or order for eviction against a tenant under a State Rent Control Act, it is not necessary to give notice under Section 106 T.P. Act. It has been observed that determination of the lease in accordance with the T.P.Act is unnecessary and is a mere surplus-age because the landlord cannot evict the tenant even after such deterlnination of the tenancy. Thus making out a case under the Rent Control Act for eviction of the tenant is, by itself sufficient and it is not obligatory for the proceedings to be founded on the determination of the lease by notice under Section 106 of the T.P. Act.

#22. In view of such clear position of law as laid down by the Honble Supreme Court, as indicated above, the question of validity or invalidity of the notice, Ext.Pl issued by the plaintiff/respondent in the present case need not detain us any 6?- 14 further and the contention raised by the learned counsel is accordingly answered in the negative.

#23. It was also submitted by Shri Upadhyaya that the plaintiff- respondent had let out other premises also in the same building but had not indicated in the pleading or in the evidence as to why only the premises in occupation of the defendant-appellant were suitable for him. It appears that Such a question came up before the Honble Supreme Court in Savitri Sahay vs. Sachidananda Prasad AIR ZOOS S.C. 156 which was a case under Sec. 11 of the Bihar Buildings (Lease, Rent and Eviction Control) Act 1983. Based on the provisions contained in Explanation 11 to Rule 11, it was held that it was not open for the tenant to question preference exercised by the landlord. The said provision specifically provides that where there are two or more premises let out by the landlord, it will be for the landlord to choose which will be preferable to him. Here again it has to be observed that such a provision has not been incorporated in the Gangtok Rent Control and Eviction Act,

#1956. It is, however, plain that even if there were such a provision and the defendant-appellant were to avail of it she would not be allowed to question the preference exercised by the plaintiff- respondent in the case at hand. Therefore, the contention would be of little avail to the defendant-appellant.

#24. This brings us to the point rela.ting to substantial alteration and addition effected by the defendant in the suit premises pressed by Shri Hamal the leaned Counsel for the plaintiff/respondent in a?1 15 all seriousness. The contention of the learned counsel in this regard is that the defendant/appellant in this case had also substantially altered and changed portion of the suit premises without any permission of the plaintiff/respondent and on this ground alone, the defendant/appellant was liable to be evicted as per the existing provisions of law. The stand taken by Mr. Upadhyaya the learned counsel for the defendant/appellant, on the other hand, was that the decree of eviction having been passed only on the basis of the finding on bona fide requirement he was not required to make any submission in this regard. However, if it were held otherwise the learned counsel stated that his contention would be that the defendant appellant had only renovated the suit premises and the same could not be taken as alternation or addition to the premises. It will be seen from the discussion that follows that the above submission of Shri Upadhyaya would be untenable.

#25. It appears that the defendant/appellant has admitted both in the pleading and in her evidence that she had substantially altered and changed the suit premises as alleged. The plaintiff/respondent in his affidavit evidence has stated that the defendant has also materially altered the suit premises by erecting partition walls. This statement of the plaintiff has gone i unchallenged in his cross-examination. In paragraph 13 of the WS I ha``,`J it has been stated that the defendant had renovated the entire •ni `' 6fa 16 premises which took her 3 months and cost her Rs.45,000/-. In her cross-exanination she has stated as follows :- "It is trtL.e that I hone e«ected a rna:jar repchr in thie su; It premises for whieh I ha:I]e nat t;alcen u]ritten conserit fromthe pidknfif i: ." Giving her reasons for not taking the consent of the plaintiff, she has further stated :- " I lra:roe nat ta:ken the peTiTdsstor. frorr. the p:ltriTrfuff as I 1-a::i}e nat been ltis tena:ndso

#26. The above would, therefore, show that the defendant has admittedly made additions and alterations to the suit premises without the approval of the landlord as alleged.

#27. Section 12 of the Gangtok Rent Control and Eviction Act, 1956 which provides for additional ground of eviction of a tenant is as follows :- "No terra:n± shall rna, ke arvy addifions or altera:fions to the brirf:ltiing , or damage the stnLed«e in away u)ag, sa:me i;n the cou:rse Of ordi:I.a:rz] wectr cnd: €ecrr, ulthcaut thie approval in und:fi; ng Of the lcLndhord, failing u]hich the land::lord shall ha:.re the riglit to evict such tetra:ut."

#28. As per the above provision, a tenant can make additions or alterations to the suit premises only with the approval in writing of the landlord and if there is any addition or alteration without such approval, a tenant makes himself liable to be evicted. It is the admitted position in the present case that the additions and k,\O\ 17 alterations made by the defendant in the suit premises includes erection of a partition wall. Thus it cannot be denied that the defendant-appellant did not make any addition or alteration to the suit premises without the approval of the landlord. This satisfies the requisite condition laid down in Section 12 of the Gangtok Rent Control and Eviction Act, 1956 and the plaintiff/respondent must be taken to have established the ground for eviction of the tenant from the suit premises under this section as well.

#29. It would, therefore, appear from the above, that the defendant/appellant has also made herself liable to be evicted on account of additions and alterations made by her in the suit premises without obtaining written approval of the landlord.

#30. It is thus clear that the plaintiff/respondent has established his case for eviction on the ground of bona fide requirement under Section 4 and also on the ground of unauthorized additions and alteration to the suit premises under Section 12 of the Gangtok Rent Control and Eviction Act, 1956.

#31. Lastly, one more aspect of the matter that requires to be dealt with, is the further submission made by Shri S. S. Hamal regarding limitation. His contention is that the present appeal was filed after the expiry of the prescribed period of limitation. According to him, the impugned decree having been passed on

29.9.2003, the memo of appeal ought to have been filed by 18

28.12.2003. However, the appeal was filed only on 15.7.2004, and, as such, there was a delay of 200 days for which there was no clear order granting condonation of dela.y. Admitting this position, Shri A. K. Upadhyaya submitted that the appellant had explained the dela.y in the condonation application filed along with the memo of appeal. According to the statement contained in the condonation application, the delay was caused on account of the fact that the appellant had to be in judicial custody w.e.I.

29.10.2003 to 20.5.2004 for serving the sentence passed by the leaned Court of the Chief Judicial Magistrate (E&N) in Criminal Case Nos.13, 16, 36 and 69 of 2003 and immediately after her release on 20.5.2004 she had to take medical treatment for arthritis and blood pressure. This, according to him, was sufricient cause and as the appeal was admitted and interim stay of further proceedings in the related Civil Execution Case No.4 of 2004 was granted the delay was impliedly condoned.

#32. I have perused the condonation application. In my considered view the appellant has shown sufficient cause and has given cogent reasons for condoning the delay in filing the appeal. It is clear that because of the facts and circumstances as highlighted by the appellant in the condonation application, the appellant was prevented from filing the appeal in time. Therefore, the delay should be taken to have been condoned. .g 19

#33. For the reasons stated above, I am of the view that there is no merit in this appeal. Accordingly the impugned decree is affirmed and the appeal is dismissed. However, keeping in view the hardship that would be caused to the defendant/appellant, three months' time is allowed to her to vacate t e suit premises. /Jr. P. Swhba ) Judge Dictation taken typed by me Aunku Tshering. HIGH couRT oF smnm4 GANGTOK DECREE IN APPEAL qunder ORDHR 41 Rule 35 of C.P.C.) The Regular First Appeal No.02 of2004 against the decree of the Court of District Judge,03ast&Nor[h)atGangtokdated29.09.2003inCivilSuitNa.20of2003. Meena Thapa, W/ o K.B.Pradhan, R/o Development Area, P.O. & P.S. Gangtok, East Sikkim Versus L.B.Pradhan, S/o Late Kabi Raj Pradhan, R/o Development Area, P.O. & P.S. Gangtok, East Sikkim •... Appellant. .... Respondent. This appeal coming on for hearing on this 13th day of October, 2004 before this Court in presence of Shri A.K.Upadhyaya, S.Pradhan and S.Lama, Advocates for the appellant/defendant, Shri S.S.Hamal & Norden Tshering, Advocates for Respondent"aintiff it is ordered that the appeal tle and the same is hereby dismissed and the impugned decree is hereby affirmed. However, keeping in view the hardship that would be caused to the appellant three months time is allowed to the appellant to vacate the suit premises Given under my hand and seal of the Court on loth day of November 2004 at drgtok. Prepared by Gan8tok_ i-i-----i. i-E,I-I