Rajiv Sharma, J.
1. This revision petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 has been preferred against the judgment and order dated 21.2.2008 passed by the Appellate Authority in Civil Miscellaneous Appeal No. 61-S/13(B) of 2006.
2. Brief facts necessary for the adjudication of this petition are that the respondent-landlord, hereinafter referred to as the landlord for convenience sake, has filed a petition under Section 14 of the H.P. Urban Rent Control Act, 1987 against the petitioners-tenants, hereinafter referred to as the tenants for convenience sake, in the Court of learned Rent Controller, Court No. 3, Shimla.
3. The landlord has sought eviction of tenants on the ground that the premises were bona fidely required by him for reconstruction of the entire building, which rebuilding could not be carried out unless the tenants vacate the premises in question. He wants to reconstruct the building on modern lines. He has got a plan sanctioned from the Municipal Corporation, Shimla to reconstruct the building. The building in question has become unsafe and unfit for human habitation being old. The landlord has sufficient funds and resources for proposed reconstruction work. The tenants have not paid the arrears of rent since 1.4.2004.
4. The tenants have contested that the landlord has no locus standi to file the petition and it was denied that the premises in their possession were required by the landlord for reconstruction of the entire building on old lines. It was also stated that the landlord was not owner of the suit premises, therefore, he had no right to seek eviction of the tenants from the premises. It was denied that the building has become unsafe and unfit for human habitation. The building is in good habitable condition. The building is built in brick masonry with cement. The means of landlord were denied. It was also denied that the tenants were in arrears of rent since 1.4.2004.
5. The learned Rent Controller has framed the following issues on 9.12.2004:
1. Whether the premises in question bona fidely required by the petitioner for the purpose of rebuilding and reconstruction, as alleged? OPP
2. Whether the premises in question has become unfit and unsafe for human habitation, as alleged? OPP
3. Whether the respondent is in arrears of rent since 1.4.2004, as alleged? OPP
4. Whether the petition is not maintainable, as alleged? OPR
5. Whether the petitioner has no locus standi to file the present petition, as alleged? OPR
6. Whether the petitioner is estopped from filing the present petition on account of his own acts, deed, conduct, etc. as alleged? OPR
7. Relief.
The learned Rent Controller has recorded the following findings on the issues framed:
Issue No. 1: Yes.
Issue No. 2: Yes.
Issue No. 3: Yes.
Issue No. 4: No.
Issue No. 5: No.
Issue No. 6: No.
Relief: Petition is allowed as per operative portion of the order.
6. The learned Rent Controller on the basis of the oral and documentary evidence brought on record allowed the petition and held that the tenants were in arrears of rent of the premises in question since 1.4.2004 till date at the rate of Rs. 1,620/- per annum with statutory interest at the rate of 9 per cent per annum. The petition was also allowed vide order dated 23.11.2006 on the ground that the premises in question were required bona fidely by the landlord for reconstruction/rebuilding.
7. The tenants feeling aggrieved by the order dated 23.11.2006 preferred an appeal before the learned Appellate Authority under Section 24 of the H.P. Urban Rent Control Act, 1987. The appeal was dismissed by the learned Appellate Authority on 21.2.2008.
8. This revision petition has been filed against the judgment dated 21.2.2008.
9. Mr. H.C. Sharma, learned Counsel for the petitioner has strenuously argued that the judgment dated 21.2.2008 is not sustainable in the eyes of law. He has contended that the petition was not maintainable for the reason that one Anita Sood, who had also inherited tenancy rights, was not arrayed as a party. He further contended that the tenants were not in arrears of rent and the landlord was not in possession of sufficient means. According to him, the building is in a habitable condition. The ownership of the landlord was also disputed by the learned Counsel appearing on behalf of the appellants.
10. Mr. Ashok Sood, learned Counsel appearing on behalf of the landlord has supported the judgment dated 21.2.2008.
11. I have heard the learned Counsel for the parties and have perused the pleadings carefully.
12. The landlord, Manohar Lal has become owner of the building by way of family settlement vide settlement deed Ext. PW2/A. The tenants are precluded from taking any objection as to the settlement arrived at between the parties. The petition filed on behalf of Manohar Lal was maintainable. The landlord has appeared as PW6. He has deposed that he is the owner of the premises in question. He has placed on record the photographs Ext.PW6/A1 to Ext. PW6/A3 and negatives Ext. PW6/A4 to Ext. PW6/6. He has also placed on record copy of rent receipt, i.e. Ext. PW6/B. He has deposed that the building in, question has fallen in his share by way of family settlement, Ext. PW2/A.
13. According to him, the building in question is in a dilapidated condition being 100 years old. He then deposed that he has sufficient funds to reconstruct the building. The landlord has examined PW3-Vivek Karol as an Expert. His report is Ext. PW3/A. The relevant portion of the report has already been discussed by the learned Courts below and need not be discussed again to avoid repetition.
14. The tenant has produced the report Ext. RW1/A of Mr. H.S. ferst. This report has also been reproduced by the learned First Appellate Court. Mr. H.S. Bist has inspected the premises on 24.12.2005 while Mr. Vivek Karol has inspected the building on 2.3.2005. The tenants had also produced Pawan alias Raj Kumar as RW2. He is running a 'Kiryana' shop. He has deposed that the condition of shop No.11 is very good.
15. The premises in question are 100 years old. The learned Courts below on the basis of the reports Ext. PW3/A and Ext. RW1/A and on the basis of visual impression based on photographs coupled with oral evidence came to the right conclusion that the building is in dilapidated condition and is required to be reconstructed. Even according to H.S. Bist, the building was 70-75 years old.
16. Now, the question which falls for consideration is whether the landlord had obtained necessary permission from the competent authority, i.e. Municipal Corporation, Shimla or not.
17. Bhuvnesh Chaturvedi has deposed that the sanctioned plan has been issued by the Municipal Corporation, Shimla vide Ext.PW4/ A and the same was extended vide Ext.PW4/C.
18. The next question falling for consideration by this Court is whether the landlord has sufficient means to reconstruct the building or not. PW1 Sant Ram has deposed that statement of FDR i.e. Ext. PW1/A has been issued by his Bank. The amount deposited by way of FDR is Rs. 1,51,295. It thus establishes that the landlord is in possession of sufficient means and resources for carrying out the reconstruction work.
19. Mr. H.C. Sharma, learned Counsel for the petitioners has 'strenuously argued that Mr. Joginder Lai, the original tenant has died leaving behind the present tenants and one Anita Sood. According to him, since Anita Sood has also inherited the tenancy rights, she was a necessary party. This question is no more res integra in view of the law laid down by their Lordships of the Hon'ble Supreme Court in Pushpa Rani and Ors. v. Bhagwanti Devi and Anr. : AIR1994SC774 , have held as under:
The contention strenuously urged by Shri Aruneshwar Gupta in support of these appeals is that it is a settled law that even a non-residential tenancy is heritable, that the heirs of a deceased tenant inherit the tenancy and that the decree against Sushil Kumar alone was insufficient to denude the rights of the appellants who are the other heirs.
On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on the business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights of tenancy. This implied surrender was inferred from the evidence as to the conduct of the other heirs. The principle in Gian Devi's case 1985 (1) Suppl. SCR 1 : AIR 1985 SC 796 as to the heritability of a non-residential tenancy relied upon by Sri Gupta does not detract from, and is not inconsistent with, the principle of implied-surrender. The finding on implied-surrender, in our opinion, is supported by the evidence on record. Both the Rent Control Tribunal and the High Court, in our opinion, were right in not countenancing the claim of the heirs which incidentally came through the challenge on the executing side. So far as the appeal of Sushil Kumar is concerned, there is hardly anything that can be said in support of it.
20. Their Lordships of the Hon'ble Supreme Court have held in Ashok Chintaman Juker v. Kishore Pandurang Mantri 2001 (1) RCR 581, as under:
In Sub-section (11) of Section 5 of the Act the expression 'tenant' means any person by whom or on whose account rent is payable for any premises and includes-(a) such sub-tenants and other persons as have derived title under a tenant before the coming into operation of this Act; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act; (c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court. The language of the provision indicates that the definition of the term is an inclusive one and wide in its amplitude. In the present case we are concerned with Clause (c) of Sub-section (11) of Section 5 which provides that 'tenant' includes any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court. There are two requisites which must be fulfilled before a person is entitled to be called 'tenant' under sub-clause (c) first he must be member of the tenant's family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these conditions he must have been agreed upon to be a tenant by the members of the tenant's family in default of such agreement the decision of the Court shall be binding on such members. The further question that arises for consideration is whether a member of the family of the original tenant who claims to have been residing with the tenant at the time of his death can resist execution of a decree passed against a member of the tenant's family who undisputedly was accepted by the landlord as a tenant on the death of the original tenant.
21. A similar view has been taken by Delhi High Court in Prakash Wati Bali v. Manish Dewan 1996 (2) RCR 379. The learned Single Judge has held as under:
In the background of the settled law the facts of the present case may be looked into. It is established that appellant No. 2 after the death of his father was accepting the rent receipts and was paying rent and rent receipts were issued in his name in respect of the premises. He has also admitted that neither his mother nor sister nor any of the brothers ever objected to it. The mother, appellant No. 1, remaining two brothers and sisters never asserted their tenancy rights. The Rent Controller as well as the Rent Control Tribunal, therefore, came to the obvious conclusion that there was implied surrender of tenancy by the other heirs of the deceased-tenant in favour of appellant No. 2 who alone became the tenant in the disputed premises. It may also be noticed that in the eviction petition filed by the earlier landlady Smt. Kishan Devi, appellant No. 2 was only made party as a tenant. In paragraphs 3 and 9 of the eviction petition the specific plea was taken that Shri S.C. Bali was the tenant and the premises were occupied by him. The said appellant clearly replied to the averments made in the eviction petition and accepted that he was the tenant and was living in the premises along with his family. Similarly, the position is not denied in his own statement recorded as R.W. 1. In the above background the conduct of appellant No. 2 cannot be held to be bona fide and even in the present proceedings he has been contesting the same as it is conceded by the learned Counsel for the appellant that he will be the ultimate beneficiary if this appeal is accepted. There is no challenge to the findings by appellant No. 2 and the learned Counsel has only confined his relief qua appellant No. 1. The facts, accordingly, establish that appellant No. 2 was admittedly accepted as a tenant after the death of his father and in the absence of any collusion or mala fide on his part to defend the case and conflict of interest between himself and the respondent-landlord, the plea of appellant No. 1 to be impleaded as a party at a belated stage before the Tribunal could not have been entertained and her application, as a consequence, was correctiy dismissed. It is held by this Court in the judgment as reported in Mohd. Usman (supra) that a decree for eviction is binding against all the heirs even when one of the heirs is not impleaded as a party. The Judgments cited by the learned Counsel for the appellants will be, therefore, of no application to the present case.
22. The Second Appeal does not raise any substantial question of law which will call for interference by this Court. The only question involved is, as to whether the legal heirs of the deceased-tenant surrendered their tenancy rights and the landlord had created fresh tenancy in the premises in favour of appellant No. 2. The Rent Controller as well as the Tribunal have concurrently held that there was implied surrender of tenancy by the other heirs of the deceased-tenant in favour of the appellant No. 2 who alone became the tenant in the disputed premises. This, indeed, is not a substantial question of law which will call for interference. The appeal, as a consequence, is dismissed. There will be no order as to costs.
23. A Division Bench of the Kerala High Court in Mary v. Kunjanam and Ors. 2002 (2) RCR 259, has held as under:
It is well settled law that it is not permissible for the Court to split up a contract of tenancy in an eviction proceedings. See Dr. T.S. Subramaniam v. The Andhra Bank Ltd. 1989 (2) RCR (Rent) 314 (SC) : (1989) Supp. 2 SCC 252; Firm Panjumal Daulatram v. Sakhi Gopal : [1977]3SCR767 ; Miss S. Sanyal v. Gian Chand : [1968]1SCR536 . A tenancy can be split up by operation of law or by contract between the parties. In cases governed by Rent Control Legislation if a ground for eviction in respect of part of the tenancy premises is made out, the decree shall be for eviction from the entire tenancy premises unless the law permits a partial decree of eviction being passed. The purpose of Rent Control Legislation is to protect the tenants from unjust eviction at the hands of greedy or unscrupulous landlords. The shortage of accommodation and unequal distribution of national wealth warrants a welfare State stepping in to so regulate the common law rights and obligations between landlords and tenants as to protect the tenants and to that extent curtail the common law rights of the landlords. In case of doubt, rent control laws should be so interpreted as to lean in favour of tenant, to advance the purpose sought to be achieved by Rent Control Legislation and to see that the beneficial protection extended by the Act is not scuttled down or defeated or rendered nugatory. In the cases like the one with which we are dealing, there may be two angles of looking at the issue. For the landlord it may be argued that part of the tenancy accommodation (i.e. the portion leased for residential purpose) must go with the unprotected part of the premises, that is to say the tenancy premises as a whole shall not enjoy the protection of Bombay Act. On the other hand, looking at the issue from the point of view of the tenant, it may be urged that merely because a part of the tenancy premises (i.e. the non-residential part) does not enjoy the protection of Bombay Act that does not mean that the protection of the Act which is certainly and undoubtedly applicable to a part of the premises (i.e. the residential portion) should be allowed to be defeated. In the Rent Control Legislation the relevant provision which regulates or restricts the rights of landlords to seek eviction of tenants invariably opens with a non-obstante Clause and is given thereby an overriding effect on the statutory or common law right of landlord to evict a tenant. Even in the absence of non-obstante Clause a Rent Control Legislation being a special beneficial shall override the provisions of any general legislation in case of conflict. It could, therefore, be reasonable and consistent with the principles of interpretation of statutes to hold that such part of the tenancy premises as is protected by the Rent Control Legislation (here, the residential portion) shall take along with it such other part of the tenancy premises as is not protected, the contract of tenancy being an integral one. A view to the contrary would defeat the provisions of the Rent Control Legislation.
In the cases at hand, inasmuch as the rear room of the tenancy premises, having its purpose of user as residence, enjoys the protection of Bombay Act, the tenant shall not be liable to be evicted from any part of the tenancy premises, as part of the premises is protected by the Bombay Act and the contract of tenancy is one single and indivisible. We are, therefore, of the opinion that when the premises are let out under one integrated contract of tenancy, i.e. type (b) referred to above, and the purpose of letting in respect of one part of the premises is one of the users referred to in Sub-section (1) of Section 6 of Bombay Act while the other part of tenancy premises is permitted to be used for purpose other than the one stated in Section 6(1), the entire tenancy premises would enjoy protection of Bombay Act. Eviction of tenant can be had only be making out a case for eviction under Bombay Act. However, if a ground for eviction under Bombay Act from even a part of the premises is made out, eviction can be ordered from the whole unless the statute or the contract contains a special provision empowering the Court to split up the tenancy.
24. Their Lordships of the Hon'ble Supreme Court in Shakuntala Vasant Pahadi and Ors. v. Purushottam Vasant Pathe and Ors. (2007) 3 SCC 123, with regard to necessary parties in eviction suit have held as under:
In the present case, in spite of service of notice, the plaintiff-respondents have not appeared before this Court to contest the prayer made herein. Learned Counsel for the appellants submitted that if an original tenant dies leaving behind more than one heir, it is not necessary under law to implead all the heirs in a suit for eviction but the same can be filed only against one of the heirs who could have represented interest of the deceased tenant; in other words, his interest has been looked after in a bona fide manner, but if there is any clash of interest between the person concerned and his assumed representation or if the latter due to collusion or for any other reason mala fide neglects to defend the case, he cannot be considered to be a representative. Reliance in this connection has been placed upon decision of this Court in Surayya Begum (Mst.) v. Mohd. Usman. In our view, in the absence of any allegation and proof against the mother, showing collusion with the landlord or mala fide neglecting the interest of her sons i.e. the plaintiffs, present case is squarely cqvered by the aforesaid decision of this Court, as such the High Court was not justified in decreeing the suit.
25. Their Lordships of the Hon'ble Supreme Court have held in Mohd. Hussain and Ors. v. Gopibai and Ors. : AIR2008SC1462 , that assuming two married daughters of 'N' who are necessary parties, then also it must be held that the interest of the two married daughters was sufficiently represented by their two brothers. In the present case, interest of Anita Sood was sufficiently protected by the other legal heirs of Joginder Sood. Their Lordships have held as under:
It is true that in a suit for redemption of mortgage, all the heirs and legal representatives of the deceased mortgagee are necessary parties but, in the facts and circumstances of the present case, we do not find any reason to agree that in the absence of the two married daughters, the suit could not be maintainable in law, for at least two reasons:
(i) It was the finding of the first appellate Court that at the time of filing of the suit for redemption, one of the mortgagees viz. Nandram was already dead. A finding was also made that one of the married daughters viz. Annapurna was dead. If this finding is accepted, then Annapurna cannot be said to be a necessary party at the time of filing of the suit. So far as the other married daughter viz. Pyaribai is concerned, the finding of the appellate Court was to the effect that she was not in occupation of the suit premises nor was she staying with the mortgagee viz. Nandram at the time of his death. Again, if this finding is also accepted, we are not in a position to hold that the suit could not be held to be not maintainable in law in the absence of the two married daughters.
(ii) Even assuming that the two married daughters of Nandram were necessary parties, then also, we must hold that the interest of the two married daughters in the estate of Nandram was sufficiently represented by their two brothers viz. Manaklal and Motilal.
26. In N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb, this Court in para 14 observed as follows: (AIR p. 796)
14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to allow parties irrespective of their religious persuasion.
27. From a bare reading of the aforesaid observations of this Court m the abovementioned decision, it is clear that ordinarily the Court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this Court culled out some important exceptions:
(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding upon all persons interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.
(iii) The Court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to over-reach the Court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record.
28. We find no difficulty in following the principle laid down by this Court in the aforesaid decision. The two sons viz. Manaklal and Motilal, who were also the original mortgagees along with Nandram, being the sons of the respondent-defendants either in the written statement or in evidence that the two married daughters were not made parties collusively or fraudulently. The suit filed by the appellants only against the two sons of late Nandram and their sorts was not out of fraud or collusion between them. It is also clear from the record that the two sons of Nandram seriously contested the suit and also the appeal filed against the judgment of the trial Court before the first appellate Court and finally the second appeal in the High Court. Therefore, by no stretch of imagination, it can be said that the suit was filed by the appellant-plaintiffs in collusion or fraud with the two sons of Nandram. Therefore, in the absence of such a defence, it must be held that the estate of late Nandram, one of the mortgagees, was sufficiently and in a bona fide manner represented by Manaklal and Motilal and there was no fraud or collusion between them and the appellant-plaintiffs and accordingly, the decree that would be passed against Manaklal and Motilal as heirs and legal representatives of late Nandram also binds the estate even though the two married daughters, who may be interested in the estate, were not brought on record. This view is also supported by the decision of this Court in Surayya Begum v. Mohd. Usman. In that case, this Court in para 9 has observed as follows:
9. ...This, of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he cannot be considered to be a representative.
In view of our discussions made hereinabove and following the principles laid down in the aforesaid two decisions of this Court, we are, therefore, of the view that the two sons had sufficiently and in a bona fide manner, represented the estate of the deceased Nandram and, therefore, the suit could not be dismissed on that ground. It is true that the objection as to maintainability of the suit in the absence of the two married daughters was taken in the suit itself but we should not forget that in view of the findings arrived at by the trial Court as well as by the appellate Court, the suit of the appellants was decreed which was affirmed at the first appellate stage.
29. In a recent judgment reported in K.N. Ananthraja Gupta v. D.V. Usha Vijay Kumar 2008 (1) Civil Court Cases 21 (S.C.), their lordships have laid down that when landlord seeks eviction on the ground of demolition and reconstruction, Court must be satisfied that (i) the suit premises is so dilapidated that it needs demolition, (ii) the landlord has the capacity to reconstruct the suit premises after demolition and (iii) the sanctioned plan has to be taken from the concerned authority. The Court must be satisfied that all the conditions have been satisfied by the landlord by leading cogent evidence in respect of the same. In the present case, three ingredients which are sine qua non for eviction on ground of reconstruction have been proved by the landlord in the present case.
30. The tenants have paid rent as is evident from Ext. PW6/B upto 31.3.2004 to the landlord/petitioner at the rate of Rs. 1,620/- per annum. Thereafter, the rent has not been paid to the landlord. The learned Rent Controller as well as the First Appellate Authority have returned correct findings that the tenants are in arrears of rent since 1.4.2004. These findings are affirmed by this Court.
31. In the present case, Anita Sood is not residing in the premises in question since she is residing abroad. In view of the law laid down by their Lordships, as cited above and by the Delhi High Court and the Kerala High Court, it is held that the petition for eviction against the tenants was maintainable and Anita Sood was not a necessary party, since her interests were being watched by the other tenants who inherited the tenancy from Joginder Sood.
32. Consequently, in view of the observations made hereinabove, there is no merit in this revision petition and the same is dismissed.
33. No costs.