Smt. Rani Vs. Shri Rai Bahadur Jodhamal Kuthiala Trust Through Sh. Jaswant Lal Kuthiala and ors. - Court Judgment

Excerpt:
- dev darshan sud, j.1. this petition has been preferred by the petitioner against the orders of eviction passed by the learned rent controller (i), dehra, district kangra in a rent petition preferred under section 14(3)(a)(ii) of the himachal pradesh urban rent control act, 1987 (hereafter referred to as the act) on the allegations that the room and kitchen as depicted in the site plan annexed with the petition, owned by the respondent trust, was given to the husband of the petitioner herein in lieu of his being in service of the trust. the landlord further pleads that after the death of her husband, she joined services with the respondent on the same terms and conditions on which her husband was serving. she has ceased to be in service of the respondent trust since 1978. earlier, a suit for possession of the premises and recovery of rs. 1000/- on account of use and occupation charges had been instituted against her. in that petition, the petitioner had pleaded tenancy on payment of rent. the suit was compromised whereby she had agreed to vacate the premises with effect from 1.3.1988 and decree was passed accordingly. this decree was challenged in appeal and the learned district judge set aside the judgment and remanded the case for trial afresh. the suit was dismissed in default on 13.8.1991. petition for eviction was thereafter instituted as the provisions of the act were applicable to the area where suit premises were situate.2. the petition was contested by the petitioner herein on a number of grounds including estoppel. she denied that the premises were let out to her husband as rent free accommodation in lieu of his appointment with the petitioner trust, but admitted that he was employed on a salary of rs. 60/- per month which was later on enhanced from time to time. the stand adopted by her was that the premises had been rented out to her husband @ rs. 10/- per month. on the vital issue regarding applicability of section 14(3)(a)(ii) of the act, the learned rent controller held that the premises were let out to the respondent for use as rent free residence in lieu of her employment by the petitioner trust. the court held that since she has ceased to be in employment of the trust, her eviction would follow as a matter of right as contemplated by the act. the relevant provision may be noticed. the ground for eviction urged provides:eviction of tenants section 14(1) a tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this act.(2) ....(3) a landlord may apply to the controller for an order directing the tenant to put the landlord in possession:(a) in case of residential building, if:(i) ....(ii) it was let to the tenant of use as a residence by reason of his being in service or employment of the landlord, and the tenant has ceased, whether before or after commencement of this act, to be in such service or employment:provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the industrial disputes act, 1947, he shall not be liable to be evicted until the competent authority under that act confirms the order of discharge or dismissal made against him by the landlord....3. being aggrieved by the judgment and order of ejectment, an appeal was preferred to the court of the learned appellate authority which after detailed appraisal of the law and facts urged dismissed the appeal. the learned appellate authority affirmed finding on each and every point by the learned rent controller.4. the petitioner has now preferred the present proceedings under article 227 of the constitution of india. a preliminary objection has been taken by the learned counsel for the respondents that no petition under article 227 of the constitution is maintainable and that only a revision under section 24(5) of the act can be filed. without going into this technicality, this petition is being treated as one under section 24(5) of the act.6. i have heard the learned counsel for the parties and gone through the record.7. learned counsel for the petitioner contends that the order of eviction cannot be maintained as sarai is a commercial enterprise and the provisions of section 14 of the act are not applicable. he has also taken me through the entire evidence and contends that the learned courts below are in error in ordering eviction of the petitioner herein. learned counsel urges that the petition is barred under the provisions of order 9 rule 9 of the code of civil procedure as the previous suit which had been instituted was allowed to be dismissed and a fresh petition on the same cause of action is barred.8. i cannot persuade myself to hold that the petition is barred by the provisions of order 9 rule 9. what must not be lost sight of is the fact that the previous suit had been compromised which was set aside in appeal and the matter remanded for decision afresh and that proceedings for recovery of premises could only be initiated under the provisions of the rent act. the other aspect of the matter that sarai is a commercial activity needs to be rejected, as charitable activity can, by no stretch of imagination, be classed as a commercial activity. learned counsel then urges that there was no evidence on record to show or establish that the petitioner was a tenant of the suit premises independently and not in lieu of her services engaged by the respondent. i cannot persuade myself to hold that relationship of landlord and tenant does exist independently as urged.9. pw-1 shri n.k. kuthiala, manager of the trust stated that out of the premises marked efg & h the kitchen has fallen down and the vacant site is in possession of the petitioner herein. he also stated on oath that the trust had eight employees and that rent free accommodation was provided to all during their service. his testimony to the effect that rent free accommodation was provided to four employees and that kesar singh, husband of the petitioner was employed with the trust for service in the sarai and after his death petitioner herein was employed has not been negatived in cross examination. pw-2 sher singh who was an employee of the trust has categorically stated that he and three other employees were provided rent free accommodation. the respondent appeared as rw-1 and claims independent tenancy dehors her employment on payment of rs. 10/- per month which evidence has been disbelieved by the learned courts below and i do not find any perversity in appreciation of this evidence.10. in this fact situation, i do not find any perversity in the appreciation of evidence by the learned courts below. the petition is, therefore, rejected. there shall be no order as to costs.