RFA/2/2004 of Meena Thapa Vs L. B. Pradhan on 10 November 2004

THE HIGH COURT 0F SIKKIM : GANGTOKRegular First Appeal No.2 Of 2004

In the matter Of an appeal against the judgment and decreedated 29.9.2003 passed by the District Judge (East andNorth) at Ganglok in Civil Suit No.20 Of 2003 .

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In the _rTrakter Of

Meena Thapa,W/o K. a. Pradhan,R/o Development Area,P.O. & P.S. Gangtok,East sikkim .„ „ Appezzarlt

Versus

L. 8. Pradhan,S/o Late Kabi Raj Pradhan,R/ o Development Area,P.O. & P. S. Gangtok,East sikkim ..... Respondent For Appellant : A. K. Upadhyaya, S. Pradhan and Sharmila Lama, Advocates.

For Respondent : S. S. Hamal and Norden Tshering,Advocates.Advocates.

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Preserit : The Ho"'ble Shri iltLstice, A. P. SubbabJrtye.

Da:ke of tuearing : 1orh october, 2004.

Da:±e Of judgm;enk : 10frh Nouem,her, 2004.

JUD GMENT

4. P. Sthba. J=

This appeal is directed against the judgment and decreedated 29.9.2003 passed by the leaned District Judge, East andNorth at Gangtok in Civil Suit No.20 of 2003, whereby theplaintiff's suit was decreed for the ejectment of thedefendant/appellant from the suit premises.

2. The facts of the case, in a nutshell, are that the plaintiff-respondent inducted the defendant/appellant as a tenant inrespect of suit premises comprising of six rooms with two attachedbath rooms with toilet on the second floor of his five storied RCCbuilding situated at Development Area, with effect from 1.6.1994on a monthly rent of Rs.2,000/. The tenancy was a monthlytenancy and the rent for each month was payable on the expiry ofthe month and within the rirst week of the following month. Thedefendant/appellant was a regular defaulter in payment of rentfrom the very inception of the tenancy and, as a result, an anountof Rs.1,25,000.00 being the total monthly rent from 1.9.1994 tQ.31.11.2001 after adjustment for the payments made fell intoarrears. Besides being the defaulter in payment of rent, thedefendant/appellant also subst`antially altered and changedportion of the suit premises without any permission from theplaintiff/respondent. Further, the suit premises being in the stateof disarray arid dilapidated condition for want of proper e®

maintenance are in need of urgent repair and overhauling. Whenthe defendant neglected to pa.y the monthly rents which fell intoarrears for long period, the plaintiff requested the defendant tovacate the suit premises and also issued legal notice. However, inspite of the receipt of the legal notice, the defendant falled to vacatethe suit premises and to pay the arrears of rent as per the demand.Hence, the suit for eviction, recovery of arrear rents and otherreliefs was brought against the defendant. So far as the recovery ofthe arrears is concerned, the plaintiff/respondent prayed forrecovery of arrears of Rs.16,000/- only being the arrear rent fromApril, 2001 to November, 2001.

3. The defendant/appellant contested .the suit by filing awritten statement, wherein it was denied that theplaintiff/respondent was the owner of the suit premises and thedefendant/appellant was the tenant under him. It was contendedthat the defendant/appellant had purchased the suit premisesfrom the plaintiff/respondent at a consideration value of Rs.3lakhs in the year 1992 and by virtue of such purchase, she hadbecome the owner of the suit premises. After the finalisation of thepurchase agreement, the defendant/appellant paid Rs.2,95,000.00to the plaintiff/respondent in different instalments betweenSeptember, 1992 and October, 1994, out of the total amount ofRs.3 1akhs, and requested the plaintiff/respondent to execute thesale deed in respect of the suit premises in favour of thedefendant/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 inpossession of the suit premises since 1992. Further case of thedefendant/appellant was that after purchase of the suit premises,she renovated the entire premises at a cost of Rs.45,000/-witpin aperiod of three months and as such the averment that the.suitpremises were in dilapidated condition was false and baseless. Itwas 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 plaintiffin respect of the suit premises ?

(2) whether the defendant is a defaulter in the paymentof rent in respect of the suit premises from the month ofApril, 2001 to November, 2001 ?

(3) Whether the plaintiff requires 1:he suit premises for hisbona ride use and occupation ?

(4) Whether the defendant has made alterations in the suitpre]]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 therate of Rs.ZOO/- per month with effect from 2.12.2002onwards ?

|7| To what relief or reliefs, if any, is the plaintiff entitled?

5. Both the parties examined themselves as the onlywitnesses in support of their respective cases. After considering the facts and evidence brought on record, and after hearing theparties, the leaned trial court came to the conclusion that thedefendant was a tenant in respect of the suit premises, that theplaintiff required the suit premises for his bona ride use andoccupation and that the defendant had made alterations in thesuit premises without the consent of the plaintiff. The findingson other issues were against the plaintiff. However, on the basisof thei-`+I. rindings which were in favour of the plaintiff the leamedtrial court came to the conclusion that the plaintiff had provedhis case and accordingly decreed the suit of the plaintiff foreviction of the defendant from the suit premises.

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

7. It is pertinent to mention at the outset that even thoughthe defendant/appellant had pleaded and pressed number ofgrounds including the claim that she had become the owner ofthe suit premises by virtue of the purchase before the trial Court, Shri A. K. Upadhyaya, leaned counsel for thedefendant/appellant at the hearing, made it clear that he wasconfining his submissions to the finding on the issue of bona fiderequirement only in this appeal by abandoning other grounds.The submission of the leaned counsel in this regard is that, thepleading of the plaintiff regarding the bona fide requirement isscanty and not sufficient in so far as the plaintiff had not set out a,i.'.

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his need in his pleadings on the basis of which it could be saidthat the need of the plaintiff/respondent is bona fide. Shri S. S.Hamal, 1eamed counsel for the plaintiff/respondent, on the otherhand, submitted that the defendant/appellant had not effectivelycontroverted the plea of the bona ride requirement in the W/S aswell as in the evidence and, as such, there is no basis on whichthe finding of the learned trial Court on the issue in question canbe 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 ofbona ride use and occupation has been pleaded in paragraph 6 ofthe plaint. It has been stated therein that the plaintiff is a retiredgovernment servant and in his old age has to perforce live in asmall space with his married son at Tadong, East Sikkim withgreat difriculty. This averment has been denied by the defendantin paragraph 12 of the written statement wherein it has beenstated that the defendant denies the statement contained inparagraph 6 of the plaint.

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

11. It is no doubt true that for the purpose of proving bonaride requirement it is not enough for the landlord to say that heneeds the suit premises. This Court in Pal SaI!gaE/ trerstis e€t.

Mahabir Agaowat 1978 (2) SLI - 21 after referring to variousdecisions has observed that it would not be enough for thelandlord merely to state that he requires the suit premises. It isincumbent upon the plaintiff to show that the requirement is forbona fide occupation, i.e., the need or necessity for suchoccupation is genuine and honest. It has been observed asfollows :- "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 lamdloTdasserts t:hat he u]a"±s the accoinmodafron fior theprTpose Of starting or corfu:mring his biLsi;ness, thatu]oruld nat be enough €o estch€ish that he requL:ires it forthe piurpose and that his requtimemed is bonafiide."

12. \n I. Si:uas:ul.rainanlam a Others TTersus Hasinkithfujdri & Others /I99gj 7 SCC 275, the Honfole Supreme Courtin paragraph 4 of the ].udgment has observed that, when alandlord desires the tenanted premises, the.requirement of law isthat the landlord must set out his need for the premises in hi'spetition and establish that such a need is bona ride. The needmust be bona tide, genuine, honest and conceived in good falth.

]3. It is, therefore, clear that in a case for a bona fiderequirement the landlord must set out his need for the premises inhis petition and establish that such a need is bona tide.

14. In the present case the plaintiff/respondent's plea as setout in the plaint is that he is a retired government servant and inhis 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 hisaffida.vit evidence the plaintiff-respondent has stated that he hasbeen sharing a small space in the house of his married son.Since his son has a big family he is deprived of the privaey andcomfort of his own house in his old age which he can have onlywhen the suit premises are vacated and possession thereof ishanded over to him by the defendant appellant. As against suchpleading and the evidence adduced by .the plaintiff there isnothing by way of effective denial or contradiction of the claim ofthe plaintiff that he requires the suit premises for his bona tideuse and occupation in the pleading of the defendant appellant aswell as in the affidavit evidence filed by her. The bald statementthat the averment is denied in absence of requisite details doesnot seem to be sufficient for rebuttal of the plea of bona tiderequirement taken in the plaint. Besides, the statement made inthe afridavit evidence has not been controverted in the cross-exanination.

The pleading and the evidence highlighted above leave noroom for doubt that the plaintiff has been forced to share a smallspace with his manded son who has a big family and as such herequires the suit premises for his personal use and occupation.Thus it is difficult to agree with the learned counsel for thedefendant appellant that the pleading in this regard is scanty andthe evidence adduced thereof is not sufficient to substantiate theplea of bona fide requirement.

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15. In Scnda Aluda ver'sus Uwiked Indict Insu:rance Co.Ltd.Am 1999 S.C.loo the Honble Supreme Court has held that whenthe landlord shows a prima facie case a presumption that therequirement of the landlord is genuine is available to be drawn andwhile deciding the question of bona rides of the requirement of thelandlord, it is quite unnecessary to make an endeavour as to howelse the landlord could have adjusted himself.

J6. In view of the above the plaintiff-respondent must be takento have clearly set out his need in his pleading and also to ha.veduly substantiated the same by his statement in the affidavitevidence.

17. Under Section 4 of the Gangtok Rent Control and EvictionAct, 1956 bona ride occupation of the landlord or his dependants isone of the grounds of eviction of a. tenant, other grounds beingthorough overhauling, and default for pa`yment of rent for fourmonths 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 underGangtok Rent Control and Eviction Act, 1956 has held that thelandlord can have the building vacated .if it` is required for hispersonal occupation or for occupation of his dependants.

18. It appears that a similar provision exists in Delhi RentControl 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 Actthe Apex Court has held that fboria r!d!e or geriz!€ne neecz' of the landlord or that the landlord `ge"t€nezg requf res' or `regz.€resbo"rzde' accommodation for occupation by or for use for himselfis an accepted ground for eviction.

]9. Accordingly, I am of the view that the bona ride need on thepart of the landlord having been established for seeking theeviction of the appellant there is no legal inrirmity which vitiatesthe finding of the leaned trial Court on the question of bona. fiderequirement and the decree passed thereof.

20. The next submission made by the leaned counsel for thedefendant/appellant while dealing with the issue relates tocomparative hardship. The question to be considered, according tohim was who will suffer more - the plaintiff or the defendant if thesuit is decreed. In this case, the defendant/appellant who isunemployed has been living in the suit premises since the year1992 and if eviction is ordered, she will suffer hardship far moregreater than the plaintiff/respondent and in view of this position,no decree of eviction would be justified. For this submission thelearned counsel referred to and relied on the decision of theHonfole Supreme Court in BaLba Kashzrza€fe BJiz)zge znersusSamast ltngcayat Gowdi 8b or:hers 1994 Stwpp(3) SCC 698. Ithas been laid down in this case that if the Court is satisfied thathaving regard to the circumstances of the case including thequestion whether other reasonable accommodation is available forthe landlord or the tenant, greater hardship would be caused to the tenant by passing a decree then it may refuse to pass a decreeof eviction. It is however to be noted that this decision is based ona 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 onthe ground spec€ifeed in a:lcaLse tgo Of stzb-secti;on (1} tf theCourt is sadsified that, ha:vi:ng regard to all thecharmsta:noes Of the case i:natnd±;ng the qpresttonw:hcther otkeT reasonchae acoonunoanon is owdildrleCourt is sadsified that, ha:vi:ng regard to all thecharmsta:noes Of the case i:natnd±;ng the qpresttonw:hcther otkeT reasonchae acoonunoanon is owdildrlefor the Zandhord. or i:ke tenant greater I.ardship urou.1dbe ccused lag :passdrig the decree than b€] re;fusing top- it.„be ccused lag :passdrig the decree than b€] re;fusing top- it.„

It is pertinent to mention that no provision identical to the aboveexists in the Gangtok Rent Control and Eviction Act, 1956 and assuch the existing provisions hardly require the question ofcomparative hardship to be considered. However, even if thequestion of comparative hardship were to be considered, thathardly seems to change the situation in the present case. Asnoted above, the plaintiff-respondent has been found to establishhis case of bona ride requirement. It has been held by the apexCourt in a. a. Pattl versus Md. GudiLsakeb 2008 AR Sew 1027which is a case under Karnataka Rent Control Act 1961 that, oncethe landlord establishes his need to occupy premises for hispersonal use and occupation the question of hardship has to bedecided in favour of the landlord. This decision also lays down ©e>

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that where the comparative hardship that may be suffered by thelandlord, will be greater than that of the tenant than what littlehardship that may be suffered by the tenant can be mitigated bygranting longer time to vacate the suit premises. Thus thesubmission made in this regard is of little avail to the defendant-appellant.

21. The further point raised by Shri A. K. Upadhyaya, 1eamedcounsel for the defendant/appellant was that, the notice, Ext.Plissued by the plaintiff terminating the tenancy of the defendantwas` not in conformity with the requirement of Section 106 -Transfer of Property Act. It is his contention that under Section106 T.P. Act, a 15 days notice expiring with the end of the monthof the tenancy was the requirement of law, whereas the periodgiven in notice, Ext.Pl does not expire with the end of the month ofthe tenancy. Accordingly, it was his submission that the noticeissued by the plaintiff/respondent terminating the tenancy was nota valid notice. The leaned counsel relied on the decision ofKarnatha mgiv Court in Fi.quu>is Oerone Ferria:nd:is versusAndhong Pedad Ccndoza ~ AIR 1984 Karnattaka 226. I:i washeld in that case that a notice giving mere 15 days time by itselfwill not answer the requirement of Section 106, but it must alsoindicate that the 15 days period must expire with the end of thetenancy month. The position of law as spelt out above isundoubtedly in conformity with the provisions of Sec.106 T.P. Act.It, however, appears that the provisions of Section 106 T.P. Act is a?

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not attracted where there is a local law or usage. It rna.y be notedthat within the town areas in Gangtok tenaney right in respect ofresidential premises is governed by Gangtok Rent Control andEviction Act, 1956 and this Act does not provide for issue of noticefor terminating the tenancy. No doubt there were differences ofopinion among different High Courts in the past regarding therequirement of issue of notice under Section 106 T.P. Act evenwhere there were local laws. However, the Honfole Supreme Courtln V. Dha].apal Chett±ar versus ¥esodal Ammal - AIR 1979 SC1745 by a judgment of the 7 Judges bench, overruled number ofits earlier decisions and several rulings of the High Courts andheld that in order to get a decree or order for eviction against atenant under a State Rent Control Act, it is not necessary to givenotice under Section 106 T.P. Act. It has been observed thatdetermination of the lease in accordance with the T.P.Act isunnecessary and is a mere surplus-age because the landlordcannot evict the tenant even after such deterlnination of thetenancy. Thus making out a case under the Rent Control Act foreviction of the tenant is, by itself sufficient and it is not obligatoryfor the proceedings to be founded on the determination of the leaseby notice under Section 106 of the T.P. Act.

22. In view of such clear position of law as laid down by theHonble Supreme Court, as indicated above, the question of validityor invalidity of the notice, Ext.Pl issued by theplaintiff/respondent in the present case need not detain us any further and the contention raised by the learned counsel isaccordingly 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 buildingbut had not indicated in the pleading or in the evidence as to whyonly the premises in occupation of the defendant-appellant weresuitable for him. It appears that Such a question came up beforethe Honble Supreme Court in Savitri Sahay vs. SachidanandaPrasad AIR ZOOS S.C. 156 which was a case under Sec. 11 of theBihar Buildings (Lease, Rent and Eviction Control) Act 1983.Based on the provisions contained in Explanation 11 to Rule 11, itwas held that it was not open for the tenant to question preferenceexercised by the landlord. The said provision specifically providesthat 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 notbeen incorporated in the Gangtok Rent Control and Eviction Act,1956. It is, however, plain that even if there were such a provisionand the defendant-appellant were to avail of it she would not beallowed to question the preference exercised by the plaintiff-respondent in the case at hand. Therefore, the contention wouldbe of little avail to the defendant-appellant.

24. This brings us to the point rela.ting to substantial alterationand addition effected by the defendant in the suit premises pressedby Shri Hamal the leaned Counsel for the plaintiff/respondent in a?1

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all seriousness. The contention of the learned counsel in thisregard is that the defendant/appellant in this case had alsosubstantially altered and changed portion of the suit premiseswithout any permission of the plaintiff/respondent and on thisground alone, the defendant/appellant was liable to be evicted asper the existing provisions of law. The stand taken by Mr.Upadhyaya the learned counsel for the defendant/appellant, onthe other hand, was that the decree of eviction having been passedonly on the basis of the finding on bona fide requirement he wasnot required to make any submission in this regard. However, if itwere held otherwise the learned counsel stated that his contentionwould be that the defendant appellant had only renovated the suitpremises and the same could not be taken as alternation oraddition to the premises. It will be seen from the discussion thatfollows that the above submission of Shri Upadhyaya would beuntenable.

25. It appears that the defendant/appellant has admitted bothin the pleading and in her evidence that she had substantiallyaltered and changed the suit premises as alleged. Theplaintiff/respondent in his affidavit evidence has stated that thedefendant has also materially altered the suit premises by erectingpartition walls. This statement of the plaintiff has goneunchallenged in his cross-examination. In paragraph 13 of the WSit has been stated that the defendant had renovated the entire •ni`'

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premises which took her 3 months and cost her Rs.45,000/-. Inher 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 conseritfromthe pidknfif i: ."

Giving her reasons for not taking the consent of the plaintiff, shehas further stated :- " I lra:roe nat ta:ken the peTiTdsstor. frorr. the p:ltriTrfuff as I1-a::i}e nat been ltis tena:ndso

26. The above would, therefore, show that the defendant hasadmittedly made additions and alterations to the suit premiseswithout 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 isas 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:mei;n the cou:rse Of ordi:I.a:rz] wectr cnd: €ecrr, ulthcaut thieapproval in und:fi;ng Of the lcLndhord, failing u]hich theland::lord shall ha:.re the riglit to evict such tetra:ut."

28. As per the above provision, a tenant can make additions oralterations to the suit premises only with the approval in writing ofthe landlord and if there is any addition or alteration without suchapproval, a tenant makes himself liable to be evicted. It is theadmitted position in the present case that the additions and alterations made by the defendant in the suit premises includeserection of a partition wall. Thus it cannot be denied that thedefendant-appellant did not make any addition or alteration to thesuit premises without the approval of the landlord. This satisfiesthe requisite condition laid down in Section 12 of the Gangtok RentControl and Eviction Act, 1956 and the plaintiff/respondent mustbe taken to have established the ground for eviction of the tenantfrom the suit premises under this section as well.

29. It would, therefore, appear from the above, that thedefendant/appellant has also made herself liable to be evicted onaccount of additions and alterations made by her in the suitpremises without obtaining written approval of the landlord.

30. It is thus clear that the plaintiff/respondent has establishedhis case for eviction on the ground of bona fide requirement underSection 4 and also on the ground of unauthorized additions andalteration to the suit premises under Section 12 of the GangtokRent Control and Eviction Act, 1956.

31. Lastly, one more aspect of the matter that requires to bedealt with, is the further submission made by Shri S. S. Hamalregarding limitation. His contention is that the present appeal wasfiled after the expiry of the prescribed period of limitation.According to him, the impugned decree having been passed on29.9.2003, the memo of appeal ought to have been filed by 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 noclear order granting condonation of dela.y. Admitting this position,Shri A. K. Upadhyaya submitted that the appellant had explainedthe dela.y in the condonation application filed along with the memoof appeal. According to the statement contained in thecondonation application, the delay was caused on account of thefact 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 theleaned Court of the Chief Judicial Magistrate (E&N) in CriminalCase Nos.13, 16, 36 and 69 of 2003 and immediately after herrelease on 20.5.2004 she had to take medical treatment forarthritis and blood pressure. This, according to him, wassufricient cause and as the appeal was admitted and interim stayof further proceedings in the related Civil Execution Case No.4 of2004 was granted the delay was impliedly condoned.

32. I have perused the condonation application. In myconsidered view the appellant has shown sufficient cause and hasgiven cogent reasons for condoning the delay in filing the appeal.It is clear that because of the facts and circumstances ashighlighted by the appellant in the condonation application, theappellant was prevented from filing the appeal in time. Therefore,the delay should be taken to have been condoned.

33. For the reasons stated above, I am of the view that there isno merit in this appeal. Accordingly the impugned decree isaffirmed and the appeal is dismissed. However, keeping in viewthe hardship that would be caused to the defendant/appellant,three months' time is allowed to her to vacate te suit premises.

/Jr.

P. Swhba )Judge

Dictation takenandtyped by me

Aunku Tshering.

HIGH couRT oF smnm4GANGTOK

DECREE IN APPEALqunder 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 •... Appellant.

Versus

L.B.Pradhan,

S/o Late Kabi Raj Pradhan,R/o Development Area,P.O. & P.S. Gangtok,East Sikkim

.... Respondent.

This appeal coming on for hearing on this 13th day of October, 2004 before this Courtin presence of Shri A.K.Upadhyaya, S.Pradhan and S.Lama, Advocates for theappellant/defendant, Shri S.S.Hamal & Norden Tshering, Advocates for Respondent"aintiffit is ordered that the appeal tle and the same is hereby dismissed and the impugned decree ishereby affirmed. However, keeping in view the hardship that would be caused to theappellant 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 byi-i-----i. i-E,I-IGan8tok_