Himachal Pradesh High Court
Ram Prakash vs Vijay Kumar Goel (Since Deceased) … on 11 March, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No.185 of 2015 a/w
Civil Revision No.11 of 2016
Reserved on : 11th December, 2024
Date of Decision : 11th March, 2025
1.Civil Revision No.185 of 2015
Ram Prakash
…… Petitioner
Versus
Vijay Kumar Goel (since deceased) through
his LRs and others.
……Respondents
———————————————————————————————-
2. Civil Revision No. 11 of 2016
Ram Shankar (since deceased)
through LRs
…… Petitioners
Versus
Vijay Kumar Goel (since deceased)
Through LRs and others ……Respondents
Coram:
The Hon’ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting?1For the petitioner(s) : Mr. Neeraj Gupta, Senior Advocate with M/s Ajit
Pal Jaswal, Vedhant Ranta and Pranjal Munjal,
Advocates, in both the petitions.
For the respondent(s) : Mr. R. L. Sood, Senior Advocate with Mr. Arjun
Lall, Advocate, for respondents No.1(a) to 1(d),
in both the petitions.
1
Whether reporters of Local Papers may be allowed to see the judgment?
2
Mr. Ashok Kumar Sood, Senior Advocate with
Mr. Sumit Sood, Advocate, for respondent No.2
(stated to be dead) and 3, in Civil Revision
No.185 of 2015.
Bipin Chander Negi, Judge
A single eviction petition, in the case at hand, was filed on
01.03.2011 before the concerned Rent Controller with respect to the
premises in the case at hand. The same was filed against Ram Prakash,
Ram Shankar. The said two individuals in a judgment dated 16.12.2011
passed in Civil Revision No 26 of 2006 titled Vijay Kumar Goel vs Ram
Shankar had been held to be joint tenants with respect to the premises in
the case at hand.
2. The building, in which the tenanted premises is situated, is a
five storey building. The ground floor, first floor and second floor of the
building abut the Lower Bazar. At the Lower Bazar level, the building is
identified as Building No.104, Lower Bazar, Shimla. The tenanted
premises exist in the ground floor of the building bearing No.104, Lower
Bazar, Shimla. Against the other tenants in the building eviction petitions
on the ground of the demised premises having become unfit and unsafe
for human habitation and on account of rebuilding and reconstruction
have been filed.
3. In the eviction petition filed, it is an admitted fact that one
shop in the top floor of the building, i.e., Shop No.91 A, the Mall Shimla
and the third floor are in possession of the landlord. At the Mall Road
level, the building is identified as building No.91A, the Mall Shimla. Qua
3the same, a Franchisee Agreement has been entered into by the sole
proprietor firm Goyal Sons of the landlord/petitioner with M/s Gulati Retail
India Private Limited.
4. The rent petition, in the case at hand (like other rent petitions
against the other tenants in demised premises), was also primarily filed
on two grounds, namely (a) that the demised premises has become unfit
and unsafe for human habitation; (b) the premises is required by the
landlord for rebuilding and reconstruction which cannot be carried out
without the premises having vacated. The rent petition was allowed by
the rent controller. Against the judgment of eviction passed by the rent
controller on 28.06.2013 two separate appeals were preferred by the two
joint tenants. Both appeals preferred were dismissed vide a common
judgment dated 2.05.2015.
5. Both the Courts have examined the nature and condition of
the premises/building, in the case at hand. Shimla is in seismic zone-IV.
The building is more than 100 years old. It is a load bearing structure.
The wooden frame in the Dhajjiwalls has become old and has rotted.
The walls have developed cracks. The floors are sagging. The condition
of the building, in the case at hand, has been admitted by the expert for
the petitioner/tenant, as he has admitted the photographs Ex.PW-3/G-2
to PW-3/G-6. Based on the aforesaid, both the Courts have concurrently
held that the building has become unsafe or unfit for human habitation.
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6. The building, in the case at hand, exists in a highly
commercial locality. Presently, it is an eyesore. The load bearing
structure, in the case at hand, is to be replaced by RCC framed structure.
The replacement of a 100 years old load bearing building which has
out-lived its utility by a suitable RCC framed structure, besides, in a
seismic prone area (Shimla is in a seismic zone-IV) a RCC framed
structure is suitable, moreover the RCC framed structure would result in
an increase in the floor area thereby would definitely reap economic
advantage in favour of the landlord/respondent and when replaced by a
suitable RCC structure then the same shall no longer be an eyesore. In
the aforesaid facts, both the Courts have concurrently held that the need
of the landlord, in the case at hand, is Bonafide for the purpose of
rebuilding and reconstruction.
7. For the purpose of rebuilding and reconstruction of the load
bearing structure by a RCC framed structure the petitioners/tenants
would be required to vacate the demised premises, in the case at hand. It
is a well settled position of law that when an eviction is sought on the
ground of rebuilding and reconstruction, condition of the building is not
required to be gone into.
8. In the aforesaid backdrop, feeling aggrieved by the judgment
of eviction passed by the Rent Controller, which has been affirmed by the
Appellate Court, two revision petitions were preferred. During the
pendency of the present revision petitions, Ram Shankar i.e petitioner in
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C.R No. 11 of 2016 died. Vide order dated 22.08.2024, it was held that in
terms of section 2(j) of the H.P Urban Rent Control Act the legal heirs of
Ram Shankar were not entitled to inherit the tenancy in question.
However in the same order, it was held that the role of the legal heirs of
Ram Shankar would be like that of an administrator general or officer of
the court appointed under Order 22 Rule 4-A Civil Procedure Code.
Consequences of such representation were detailed in the order dated
22.08.2024.
9. The sole contention urged by the tenants/petitioners before
this Court qua the impugned judgments is that the impugned judgments
suffer from the vice of perversity as according to the learned senior
counsel appearing for the petitioners, relevant evidence existing on
record has been ignored by the courts below while returning a finding qua
the premises in question having become unfit or unsafe for human
habitation.
10. In order to substantiate the contention with respect to
perversity the learned senior counsel appearing for the petitioners
submits that the eviction petition in the case at hand on the ground of the
building having become unfit or unsafe for human habitation was filed on
26.02.2011. Prior to the filing of the rent petition in the case at hand, an
agreement dated 01.08.2009 had been entered into between the present
respondent/landlord qua the top floor of the building which abuts the Mall
Road and wherein one shop in the ground floor of the building bearing
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No. 104 Lower Bazar, Shimla had been let out on rent to the present
petitioners. On account of the aforesaid agreement entered into the top
floor of the building was to be used to retail all “Penny Lane” products
through this showroom opened at the Mall Road, Shimla.
11. Qua the aforesaid submission in the reply by the present
petitioners/tenants to the rent petition, an objection has been raised qua
letting out of the top floor of the building to M/s Penny Lane especially in
the backdrop of the fact that qua the same building insofar as the present
petitioners/tenants are concerned, a petition for eviction has been filed on
the ground of the building having become unsafe and unfit for human
habitation.
12. It is contended on behalf of the petitioners that even though
the fact of letting out the top floor of the building in question to M/s Penny
Lane is concerned has been observed in the impugned judgments but
there is a complete absence of consideration qua its impact on the
pending rent petition when according to the respondent/landlord, the
building is unsafe, unsafe for human habitation.
13. Besides the aforesaid a vital procedural defect is sought to
be pointed out in the proceedings before the First Appellate Court. In this
regard, it is contended on behalf of the petitioners that before the First
Appellate Court, an application for leading additional evidence had been
filed. The facts sought to be adduced as per the application had come
into existence after the passing of the eviction order. Primarily in the said
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application, it was urged that in the part of the building abutting the Mall
Road, wherein previously the same was being used as an outlet for
“Penny Lane” now a retail store had been opened in the name of
“GRACE”. A reply thereto was filed by the landlords. From a perusal of
the impugned judgment passed by the 1st Appellate Court on 2nd May,
2015, it is pointed out that the application so filed under Order 41 Rule
27, had been dismissed. From a perusal of the impugned judgment of the
1st Appellate Court, it is contended that while dismissing the application
under Order 41 Rule 27, parameters qua the said provisions have been
laid down but how those parameters are not fulfilled in the case at hand
is completely conspicuous by absence.
14. Last but not the least, learned counsel appearing on behalf
of the petitioners have submitted that if in case, his revision is dismissed
then the petitioners are entitled to a right to re-enter in the premises in
view of the newly added proviso to Section 14 of Sub Section 3 Clause c
of the Rent Act.
15. Per contra learned senior counsel appearing on behalf of the
respondents submits that in terms of law laid down in Civil Revision Nos.
69, 70 of 2009 dated 21.07.2023, it has been settled that rent petition
which have been filed prior to incorporation of the right of re-entry by
virtue of amendment in the H.P. Urban Rent Control Act, therein the
tenants would not be entitled to a right to re-entry.
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16. Other than the aforesaid, learned counsel appearing on
behalf of the respondent has drawn the attention of this Court to Exhibit
DW-1/J i.e. agreement date 01.08.2009. After referring to relevant
provisions of the said agreement, it is contended that the said agreement
is a franchise agreement and not an agreement to let out the top floor of
the building in the case at hand which abuts the Mall Road. By virtue of
the said agreement, possession is retained by the present landlord.
Besides the aforesaid by virtue of the said agreement, the landlord has
been appointed as a franchisee to retail all the “Penny Lane” products for
which the landlord is entitled to a minimum guarantee income of Rs.2.45
lacs per month or a commission of 5% on the net sales whichever is
higher. The agreement provides for a minimum lock in period and a
validity of nine years. In case of termination of the agreement on a date
prior to the agreed term of nine years consequences thereof have been
enlisted in the agreement. On the basis of the same, it is contended that
there is no letting out in the case at hand and a plea to the contrary is
completely misconceived.
17. In so far as the contentions with respect to the application
under Order 41 Rule 27 filed before the 1st Appellate Court is concerned,
it is pointed out that on 28.07.2014, in appeal titled Om Parkash vs. Vijay
Kumar Goyal, interrogatories under Order 11 Rules 1 and 2 of the Civil
Procedure Code had been filed with respect to the top floor of the
building, in the case at hand, being let out to one M/s “Grace”. In
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response to the aforesaid, renewed shop license for the years 2009-
31.12.2013, wherein the premises 91A, the Mall Shimla have been
shown to be registered as a shop in the name of M/s Goyal Sons, a sole
proprietary concern of Shri Vijay Kumar Goyal and the sales tax (VAT)
returns for the year, 2014 had been placed on record showing thereby
that the business operations in the aforesaid premises, i.e., 91 A were
being carried out by the sole proprietary concern “M/s Goyal Sons”, of
Shri Vijay Kumar Goyal. It was therefore contended that subsequent filing
of an application under Order 41 Rule 27 filed before the 1st Appellate
Court to show that premises 91 A, the Mall Shimla have been let out to
one M/s “Grace” is meaningless and that the same has been filed with
the sole intent of delaying disposal of the appeal before the 1st Appellate
Court.
18. Besides the aforesaid, it is contended on behalf of the
landlord that if Exhibit PW-1/J is taken to be a rent agreement then the
same would be inadmissible in evidence as any rent agreement made for
more than 11 months is compulsorily registerable. The learned counsel
appearing on behalf of the respondents submit that the expression used
in the provision i.e Section 14(3) C of the act is building being “unsafe or
unfit”. Hence it is either of the two. In order to substantiate his contention,
the learned counsel has placed reliance on case reported as (2014)
Shimla Law Cases 47 paras 37 to 40 thereof. Besides the aforesaid it is
submitted on behalf of the respondent that till the time all evictions qua
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tenants have taken place in the building on the ground of the same
having become unfit or unsafe for human habitation, the landlord can
occupy/use the same.
19. In order to demonstrate the status of the building, learned
counsel appearing on behalf of the landlord has drawn the attention of
this Court to photographs along with negatives exhibited as Exhibit PW-
3/G-1 to G-20, inspection report conducted by the Municipal Authorities
of the building in the case at hand dated 27.12.2012 (mark A) and the
statement of the PW-1 i.e. Neeraj Goel, wherein in his examination-in-
chief, he has submitted that the top floor and third floor of the building in
the case at hand is in the possession of the landlord. It is contended that
qua the same, no cross-examination has been conducted by the tenants.
20. Heard counsel for the parties and perused the record.
21. A finding returned is perverse: (a) when it is based on no
evidence; (b) or is based on irrelevant material or; (c) has been returned
by ignoring vital evidence.
22. At the very outset, it would be appropriate to mention that in
the eviction petitions filed, it has been categorically mentioned by the
landlord that there are four tenants in the building. Against all the four
tenants, petitions on the ground of the demised premises having become
unfit or unsafe for human habitation and on account of rebuilding and
reconstruction have been filed. Other than the aforesaid, it has been
categorically admitted in the eviction petitions that the top floor of the
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building, i.e., Shop No.91 A, the Mall Shimla and the third floor which are
in the possession of the landlord, is being used in terms of the
Franchisee Agreement Ex.PW-1/J dated 01.08.2009.
23. The Franchisee Agreement dated 01.08.2009 entered into
between M/s Gulati Retail India Private Limited and M/s Goyal Sons
through its proprietor Shri Vijay Kumar Goel (landlord), has been placed
on record as Ex.PW-1/J. From a perusal of the same, it is evident that
M/s Gulati Retail India Private Limited is manufacturing and marketing
ready-made garments under the name “Penny Lane”. By virtue of
Agreement Ex.PW-1/J dated 01.08.2009, M/s Goyal Sons, i.e. proprietary
concern of the landlord has been appointed as a Brand Franchisee to
retail all “Penny Lane” and its other brand products through its
showroom, owned and possessed by M/s Goyal Sons (sole proprietary
concern) of the landlord at the Mall Road, Shimla. As per the Agreement
entered into, the showroom is to be managed by the employees of the
M/s Gulati Retail India Private Limited. All the running expenses are to
be paid by M/s Gulati Retail India Private Limited. The sole proprietary
concern of the landlord, i.e., M/s Goyal Sons is entitled to a minimum
guaranteed income or a commission of 5% on net sales whichever is
higher. The property rights with respect to the goods supplied/sold at the
showroom of the landlord in terms of the Agreement would lie with M/s
Gulati Retail India Private Limited. The validity of the Agreement was for
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a period of nine months with a lock-in period of eighteen months, wherein
neither of the parties could terminate the Agreement.
24. In this context, interrogatories were filed on 12.12.2012.
Reply thereto was filed on 14.12.2012. Vide order dated 14.12.2022,
interrogatories were allowed and the landlord was permitted to file reply
thereto. From perusal of the same, averments in the rent petition,
Franchisee Agreement Ex.PW-1/J dated 01.08.2009 it is evident that the
premises have not been rented out to “Penny Lane”. The ownership and
possession of the premises remains with the sole proprietary concern of
the landlord, i.e., M/s Goyal Sons.
25. On 28.07.2014, in appeal titled Om Parkash vs. Vijay Kumar
Goyal, an application under Order 11 Rules 1 and 2 of the Civil
Procedure Code had been filed. Primarily, the interrogatories filed were
with respect to the top floor of the building, in the case at hand, being let
out to one M/s “Grace”. In response to the aforesaid, renewed shop
license for the years 2009-31.12.2013, wherein the premises 91 A, the
Mall Shimla have been shown to be registered as a shop in the name of
M/s Goyal Sons, a sole proprietary concern of Shri Vijay Kumar Goyal
and the sales tax (VAT) returns for the year, 2014 had been placed on
record showing thereby that the business operations in the aforesaid
premises, i.e., 91 A were being carried out by the sole proprietary
concern “M/s Goyal Sons”, of Shri Vijay Kumar Goyal. Subsequent to the
aforesaid, on 02.12.2014, an application under order 41 Rule 27 of the
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Civil Procedure Code was filed. Reply thereto was filed on 03.12.2014.
The purport of the application for leading additional evidence being that
the premises in question had been let out and the same were being run
in the name of “Grace”. In the reply filed, it was pointed out that in
response to the interrogatories qua the same on a previous occasion filed
on 28.07.2014 copy of the sales tax returns (VAT) and the shop licence
for the requisite period had already been placed on record thereby
demonstrating that the shop was owned, possessed and was being run
by the sole proprietary concern of the landlord, Vijay Kumar Goyal, i.e.,
Goyal Sons. From the aforesaid, it is evident that the premises have not
been rented out rather to the contrary the same are being run in the
name and style of “Grace” by the sole proprietary concern of the landlord,
Vijay Kumar Goyal, i.e., Goyal Sons.
26. In order to establish that the building has become unsafe or
unfit for human habitation, a landlord is required to prove that the building
in question has outlived its life and utility. In the case at hand as has
already been stated supra (para 5), both the Courts after assessment of
the pleadings, evidence on record have concurrently correctly held that
the building in question has outlived, its life, utility and has therefore
become unsafe or unfit for human habitation.
27. Other than the aforesaid, in order to seek an eviction on the
ground that the building in question has become unsafe or unfit for
human habitation, a landlord does not have to wait for the building to
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collapse/crumble before seeking eviction of the tenant from the premises.
Moreover, it is well settled that in case a substantial part of the demised
building has become unsafe or unfit for human habitation, a tenant can
be ejected from the demised premises forming part thereof, despite the
fact that a particular portion in his possession or in the possession of the
landlord may not be so. In this regard, a reference can gainfully be made
to a Division Bench Judgment of the Punjab and Haryana High Court in
Sardarni Sampuran Kaur vs. Sant Singh reported as AIR 1982
(Punjab and Haryana) 245, wherein the aforesaid had been laid down
while considering pari-materia provisions under the concerned
corresponding Rent Act . In this view of the matter using of a part of the
demised premises by the respondent-landlord to sell Penny Lane
products during the pendency of the matter before the rent controller or
using of a part of the demised premises by the respondent-landlord as a
showroom in the name and style of ‘Grace’ during the pendency of the
matter before the First Appellate Court is of no consequence insofar as
ejection of the tenant from the premises is sought on the ground of the
building having become unsafe or unfit for human habitation. In this
regard both the courts have taken the aforesaid correct view and this
court sees no legal valid reason to take a contrary view. Other than the
aforesaid, the ground for eviction is that the building has become “unsafe
or unfit” for human habitation and not “unsafe and unfit”. In this regard a
reference can also be made to case reported as 2014(1) SLC 47, titled
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as Deepak Boot House and another vs. Dr. Piyare Lal Sood (para 37
to 40).
28. Besides the aforesaid, the fact that the building has survived
during the protracted litigation cannot be a ground to reject the eviction
petitions filed on the ground of the building having become unsafe or unfit
for human habitation. It can never be a wish of the Court and of the
parties that the building that is said to be uninhabitable must be such as
would collapse and cause casualties to litigants during this long journey
in the Court.
29. From the impugned judgments, it is evident that the First
Appellate Court, trial court have taken into account material i.e other
show rooms being run in the building in question namely ‘Grace’, ‘Penny
Lane’ respectively, which it has been alleged, has been ignored by the
Courts below while arriving at the conclusion that the building has
become unsafe or unfit for human habitation. The additional evidence
sought to be placed on record nowhere establishes that the
landlord/respondent has let out the premises, i.e., Shop No.91 A, the Mall
Shimla during the pendency of the proceedings before the First Appellate
Court. Moreover the same is not relevant once it has been concurrently
held that a substantial part of the demised building has become unsafe or
unfit/ has out-lived its utility for human habitation despite the fact that a
particular portion in the possession of the landlord or tenant may not be
so.
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30. Both the Courts have concurrently held after assessment of
the pleadings, evidence on record that the need of the landlord, in the
case at hand, is Bonafide for the purpose of rebuilding and
reconstruction. The same has already been stated supra (paras 6 & 7).
At the cost of repetition, it is re-iterated that when an eviction is sought on
the ground of rebuilding and reconstruction, condition of the building is
not required to be gone into. Even otherwise the findings returned by
both the courts below in this respect call for no interference.
31. So far as the right of re-induction or re-entry is concerned
that shall be subject to all provisions of law applicable at the relevant
point of time for such re-entry including determination of fair rent or rent
mutually agreed between the parties as well as proposed user of the
property by the landlord.
32. Last but not the least, an application for use and occupation
charges has been filed in the case at hand by the landlord/respondent.
The same was filed in the fag end of December, 2022. In this respect,
suffice it to state that the eviction by the trial Court was ordered on
28.06.2013. Appeal thereafter was filed before the 1st Appellate Court on
19.07.2013. During the pendency of the appeal before the 1st Appellate
Court, execution of the eviction order had been stayed. In the aforesaid
backdrop, an application for use and occupation charges was filed by the
landlord/respondent. The same was allowed vide order dated 03.04.2014
passed by the 1st Appellate Court. Use and occupation charges of the
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premises in the case at hand was fixed at Rs.3,000/- P.M. by the 1st
Appellate Court. The said order was assailed before this Court. Order
dated 03.04.2014 was upheld by this Court.
33. The main appeal was decided by the 1st Appellate Court on
02.05.2015. The present revision was filed on 1 st September, 2015.
34. Premises in the case at hand exists in the ground floor of
building No. 104 Lower Bazar Shimla. The area of the shop in question is
284 sq. foot. Admittedly, in the vicinity of the premises in question, there
exists shop No. 139 Lower Bazar Shimla. The area of the said shop is
220 sq. feet.
35. Post eviction of the tenant from shop No. 139, a question of
use and occupation charges qua the said premises came up for
consideration before a Coordinate Bench of this Court. The same was
decided vide Civil Revision number bearing No. 29/2021 titled as Jeevan
Khanna vs. Khem Chand through his LRs on 15.09.2022. The use and
occupation charges were determined in the said case at the rate of
Rs.500/- per sq.foot. The aforesaid position has not been disputed by the
petitioners in the case at hand.
36. In view of the aforesaid, use and occupation charges in the
case at hand are fixed at the rate of Rs.500 /- per sq. foot i.e. 284 x 500
p.m, however, it is made clear that the use and occupation charges shall
be payable from the next month of the date of filing of the application in
the case at hand i.e. from January, 2023. The same shall be paid by the
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petitioners to the respondents-landlord by 10 th of every month till the
premises are vacated by the petitioners.
37. In view of the aforesaid, revision petitions along-with all other
pending applications, if any, filed by the petitioners being devoid of any
merit are dismissed.
Since the record of the execution proceedings is called for in
the case at hand, let the same be sent back forthwith. Parties through
counsel are directed to appear before the Executing Court on 2 nd April,
2025.
(Bipin Chander Negi)
11th March, 2025 Judge
Tarun
