Himachal Pradesh High Court
Dinesh Kumar Garg vs Sanjiv Kumar Saini And Others on 12 May, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 169 of 2019 with CMPMO No. 170 of 2019 .
Date of decision: 12th May, 2023
CMPMO No. 169 of 2019
Dinesh Kumar Garg ...Petitioner
Versus
Sanjiv Kumar Saini and others ...Respondents
CMPMO No. 170 of 2019
Surender Kumar Garg ...Petitioner
Versus
Sanjiv Kumar Saini and others ...Respondents
Coram
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 CMPMO No. 169 of 2019 with CMPMO No. 170 of 2019 For the Petitioner(s): Mr. Suneet Goel, Advocate.
For the Respondents: Mr. Ashok Kumar Tyagi, Advocate for respondent No.1.
Jyotsna Rewal Dua, Judge The petitioners are tenants in the eviction petitions 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 12/05/2023 20:40:21 :::CIS -2-preferred against them by the respondent-landlord . The eviction petitions were preferred in the year 2014. The matter reached at .
the stage of evidence. The respondent-landlord started adducing his evidence. One Sneh Kashyap (draftsman) appeared in the witness box as PW-2 and submitted a site plan, which apparently showed rolling shutter, in the premises in possession of the tenants.
2. At that stage, an application under Order 26 Rules 9 and 13 of Code of Civil Procedure was moved by the tenants for appointment of local Commissioner. Learned Rent Controller vide order dated 04.01.2018, allowed the application. While allowing the application it was observed that: - PW-2 had failed to explain the existing situation of upper storeys of the premises;
factual situation of the demised premises was not explained by PW-2; for better and complete adjudication of the matter in dispute, Local Commissioner deserved to be appointed as spot inspection will give assistance to the Court. With these observations, an Advocate was appointed as Local Commissioner. Following mandate was given to the Local Commissioner:-
"she is directed to visit the suit property & report about present situation of upper storeys as well as whether ::: Downloaded on - 12/05/2023 20:40:21 :::CIS -3- there is rolling shutter or wooden door in demised premises."
3. The Local Commissioner submitted the report on .
15.09.2018. The report relevant to the context reads as under:-
"On inspection I found that the demises premises is four storeys building having one shop in ground floor where as the remaining triple storeys are in the shape of a residential building. The shop is having a wooden door ceiling made of wooden planks (Karies). The building is a pucca structure in good shape/condition."
4. The tenants filed their objections to the report of Local Commissioner. The gist of the objections was that Local Commissioner had gone beyond the mandate of the directions given in the order. That the Local Commissioner had not reported about the condition of the premises. Learned Rent Controller on 03.04.2019 ordered to keep the objections pending with the observations that the objections will be considered on merits at the time of final arguments. The matter thereafter was fixed for leading further evidence on behalf of respondents-
Landlords.
4(i) It is in the aforesaid background that the tenants have moved this Court against the order dated 03.04.2019. The main grouse of the tenants is that the objections submitted by them to ::: Downloaded on - 12/05/2023 20:40:21 :::CIS -4- the report of Local Commissioner should have been considered at this stage instead of deferring the decision at the time of final .
arguments.
5. I have heard learned counsel for the parties on both sides.
5 (i) The first thing, which needs to be noticed in these petitions, is that all the orders placed on record have been passed by the learned Presiding Officer in the capacity as Civil Judge (Nahan) District Sirmaur (HP), whereas the proceedings were initiated before the Court below in its jurisdiction as Rent Controller. The orders ought to have been passed not as Civil Judge, but with the designation and jurisdiction of Rent Controller.
It is surprising that even after passing of judgment dated 15.12.2015 in CMPMO No. 415 of 2015 and the consequent directions issued by the Registry, the orders in the proceedings pending before the learned Rent Controller are still being passed reflecting the designation of Presiding Officer as that of Civil Judge. Let Registry to re-circulate the instructions issued pursuant to judgment dated 15.12.2015 passed in CMPMO No. 415 of 2015, to all concerned quarters to avoid recurrence of such like mistakes in future.
::: Downloaded on - 12/05/2023 20:40:21 :::CIS -5-5(ii) Coming to the facts of the case, learned Rent Controller had appointed the Local Commissioner vide order .
dated 04.01.2018, on the ground that spot inspection will give assistance to the Court, as the testimony of PW-2 Sneh Kashyap will crop-up doubts that cannot be put to rest by means of oral evidence; that in case the respondent produces any other site plan prepared by a drafstman, the Court will be confronted with two site plans, contrary to each other. The tenants had filed their objections to the report of Local Commissioner complaining that the same was beyond the mandate and not in conformity with the Court directions. In these circumstances, instead of deferring the decision on the objections preferred to the report of Local Commissioner, it would have been appropriate to decide the same at that stage only.
In view of the above, present petitions are allowed.
Learned Rent Controller is directed to consider and decide the objections filed by the petitioners to the report of Local Commissioner within a period of one month. Parties through their learned counsel are directed to appear before the learned Rent Controller on 26.05.2023. Taking into consideration the fact that the eviction petitions were filed by the landlord in the year 2014, it ::: Downloaded on - 12/05/2023 20:40:21 :::CIS -6- is hoped and expected that the learned Rent Controller shall also take all possible steps for the expeditious disposal of the main .
petitions.
Petitions are disposed of on above terms. All pending applications to stand disposed of accordingly.
(Jyotsna Rewal Dua), th 12 May, 2023 Judge (priti) ::: Downloaded on - 12/05/2023 20:40:21 :::CIS