Himachal Pradesh High Court
Shri Madan Mohan Son Of Shri Kailash ... vs Smt. Pushpa Devi Wife Of Shri Amar Chand on 12 December, 2016
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Civil Revision No. 52 of 2014
Order Reserved on 24th November 2016
.
Date of Order 12th December 2016
________________________________________________________
Shri Madan Mohan son of Shri Kailash Chand
....Revisionist/Tenant
Versus
Smt. Pushpa Devi wife of Shri Amar Chand
....Non-Revisionist/Landlady
of
_____________________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
rt __________________________________________________________ For the Revisionist: Mr. Anil Jaswal Advocate.
For the Non-Revisionist: Mr. Bhuvnesh Sharma
Advocate with Mr.Ashok
Kumar Advocate.
P.S. Rana, Judge.
Order:- Present civil revision petition is filed under
Section 24(5) of H.P. Urban Rent Control Act 1987 by tenant against order dated 03.05.2014 passed by learned Appellate Authority in Rent Appeal No. 1 of 2011 title Smt. Pushpa Devi vs. Shri Madan Mohan.
1Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 2Brief facts of the case
2. Smt. Pushpa Devi landlady filed eviction petition against tenant namely Shri Madan Mohan under .
Section 14 (2) (v) of H.P. Urban Rent Control Act 1987. It is pleaded that demised premises is non-residential and monthly rent of demised premises is Rs. 770/- (Rupees seven hundred seventy) per month. It is pleaded that demised premises was rented out by original owner Smt. of Gayatri Devi vide agreement dated 2.4.1993. It is pleaded that demised premises was purchased by Smt. Pushpa rt Devi from Gayatri Devi and thereafter Pushpa Devi became landlady of tenant. It is further pleaded that demised premises is situated in ward No. 6 MC area Satya Narain temple street Hamirpur (H.P.) It is pleaded that tenant has ceased to occupy the demised premises since 4/5 years and has started his another business style as Madan Sweet shop in Housing Board colony Ward No. 7 Hamirpur H.P. near the shop of Hans Raj. It is pleaded that tenant has ceased to occupy the demised premises continuously for twelve months preceding the institution of eviction petition. It is pleaded that notice was issued to ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 3 the tenant. Prayer for eviction of tenant from demised premises sought.
3. Per contra response filed on behalf of tenant .
pleaded therein that petition is not maintainable. It is pleaded that petition No. 4 of 2002 is pending inter se parties before learned Rent Controller Hamirpur H.P. regarding same demised premises. It is admitted that demised premises was rented out by Smt. Gayatri Devi of previous owner at the rate of Rs.770/- (Rupees seven hundred seventy) per month. It is pleaded that tenant is rt continuously performing the business and using the demised premises as shop-cum-store. It is pleaded that tenant did not cease the possession of demised premises at any point of time. Prayer for dismissal of eviction petition sought.
4. Landlady also filed rejoinder and re-asserted allegations mentioned in petition.
5. As per pleadings of parties learned Rent Controller framed following issues on 11.6.2007:-
1. Whether petitioner is entitled for vacant possession of the premises/shop since the respondent has ceased to occupy the demised premises/shop from the last 4/5 years? OPP ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 4
2. Whether petition is not maintainable?
....OPR
3. Whether petition No. RP No. 4 of 2002 is .
pending between the parties before Rent Controller (II) Hamirpur regarding the same premises? ....OPR
4. Whether respondent is continuously doing the business of the premises/shop and paying the rent regularly? ....OPR of
5. Relief.
6. Learned Rent Controller decided eviction petition on 19.5.2011. Learned Rent Controller decided rt issues Nos. 1, 2 and 4 in negative. Learned Rent Controller decided issue No. 3 partly in yes and partly in no. Learned Rent Controller dismissed eviction petition filed by landlady.
7. Feeling aggrieved against order of learned Rent Controller landlady Smt. Pushpa Devi filed Rent Appeal No. 1 of 2011 under section 24 of H.P. Urban Rent Controler Act 1987 against order dated 19.5.2011 passed by learned Rent Controller. Learned Appellate Authority allowed appeal filed by Smt. Pushpa Devi. Learned Appellate Authority set aside the impugned order dated 19.5.2011 passed by learned Rent Controller and learned ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 5 Appellate Authority remanded back the case to the court of learned Rent Controller to decide the same afresh after framing additional issue.
.
8. Feeling aggrieved against order of learned Appellate Authority revisionist filed present revision petition before H.P. High Court.
9. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on of behalf of non-revisionist and Court also perused entire record carefuly.
10. rtFollowing points arises for determination in civil revision petition:-
1. Whether revision petition filed by tenant is liable to be accepted as per grounds mentioned in revision petition?
2. Relief.
11. Findings upon point No.1 with reasons 11.1 PW1 Tapai Parshad posted as Junior Assistant in Excise and Taxation office Hamirpur has stated that he has brought the summoned record. He has stated that return filed w.e.f. 1983 to 30.6.2007. He has stated that nil tax return has been filed by tenant w.e.f. 2003 to 30.6.2007. He has stated that tenant has filed the affidavit. He has stated that there is recital in affidavit ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 6 dated 30.7.2005 that tenant is running Madan Hardware store since 22.9.1983. He has stated that there is recital in affidavit that tenant is not doing any type of business of .
sale under sales tax for last two years. He has stated that there is recital in affidavit given by tenant that tenant has no plan to continue business in future. He has stated that there is recital in affidavit given by tenant that if tenant would not continue business within six months then of tenant would cancel his sales tax number. He has stated that affidavit is attested by oath commissioner and signed rt by tenant. He has stated that affidavit was submitted by tenant. He has admitted that sales tax number of tenant is still continue and not cancelled till date.
11.2. PW2 Rajinder Singh posted as Clerk in office of MC Hamirpur has stated that he has brought the summoned record of tenant relating to licence. He has stated that no licence has been issued in the name of tenant relating to hardware sale. He has stated that he could not state whether any hardware shop licence was issued in favour of tenant or not.
11.3 PW3 Pushpa Devi landlady has stated that Madan Mohan is tenant in demised premises. She has ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 7 stated that she purchased the demised premises from Gayatri Devi in the year 1991. She has stated that she is owner of demised premises after purchase of demised .
premises. She has stated that tenant has closed the demised premises since five years. She has stated that tenant is not running the business of hardware in demised premises. She has stated that tenant is running sweet shop in Housing Board colony. She has stated that she of issued notice to tenant Ext.PW3/A. She has stated that postal receipt is Ext.PW3/B and acknowledgment receipt is rt Ext.PW3/C. She has admitted that tenant also filed reply to her notice. She has stated that she has received the rent of demised premises till September 2007. She has admitted that tenant has two shops near Satya Narain temple. She has denied suggestion that tenant is running demised premises as store. She has admitted that she has also filed another case before learned Rent Controller relating to demised premises. Self stated that another case is relating to enhancement of rent. She has admitted that electricity meter is not installed in demised premises.
She has admitted that no written contractual agreement was executed between her and tenant. She has denied ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 8 suggestion that tenant is running business from demised premises. She has denied suggestion that she has filed present eviction petition just to evict the tenant in illegal .
manner.
11.4 PW4 Amar Chand has stated that he is general attorney of landlady and has further stated that copy of general power of attorney is Ext.PW4/A. He has stated that site plan of demised premises is Ext.PW4/B which was of prepared by him as per factual position. He has stated that site plan Ext.PW4/B is signed by him. He has stated rt that demised premises is closed since four years. In cross examination he has admitted that site plan Ext.PW4/B is without scale. He has denied suggestion that site plan is not in accordance with factual position. He has denied suggestion that demised premises is not closed since four years. He has denied suggestion that demised premises is in running condition. He has denied suggestion that demised premises used as a store by tenant.
11.5 PW5 Kewal Singh has stated that parties are known to him and he has seen demised premises. He has stated that tenant used to run hardware shop in demised premises. He has stated that demised premises is closed ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 9 since 3-4 years. He has denied suggestion that tenant is running the demised premises as store.
11.6 PW6 Suresh Kumar Assistant Taxation and .
Sales Officer Hamirpur has stated that tenant has filed assessment for the year 2003-04, 2004-05. He has stated that as per record sale for the year 2003-04 is Rs.37500/-
(Rupees thirty seven thousand five hundred) and tax to the tune of Rs.3000/- (Rupees three thousand) was of deposited. He has stated that as per record no sale was conducted in the year 2004-05 and further stated that nil rt return was filed. He has stated that in the year 2005-06 nil return was filed. He has stated that in the year 2006-07 sale of Rs.80000/- (Rupees eighty thousand) shown and tax to the tune of Rs.10000/- (Rupees ten thousand) deposited. He has stated that in the year 2007-08 sale to the tune of Rs.56000/- (Rupees fifty six thousand) shown and tax to the tune of Rs.7000/- (Rupees seven thousand) deposited. He has stated that in the year 2006-07 sale to the tune of Rs.20000/- (Rupees twenty thousand) shown and tax to the tune of Rs.2500/- (Rupees two thousand five hundred) deposited. He has stated that as per record tenant is running business of hardware.
::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 1011.7 PW7 Rajesh has stated that parties are known to him. He has stated that tenant is running another shop of sweets in Housing Board colony and further stated that .
demised premises is closed. He has stated that tenant used to run hardware shop in demised premises earlier.
He has stated that his house is situated at a distance of 300 metres where tenant is runing sweet shop. He has stated that tenant is running the sweet shop since 4/5 of years. He has stated that landlady is known to him since 10-12 years. He has stated that demised premises is shop rt and not store.
11.8 PW8 Dinu Ram Shop Inspector has stated that he is posted as shop inspector since 2007 and he has brought the summoned record. He has stated that as per record tenant used to run hardware shop. He has stated that as per record RC was renewed in the year 2004-05.
He has stated that after 2005 RC was not renewed. He has admitted that complaint is filed if RC is not renewed under Shop Act. He has stated that for running store RC is required. He has stated that as per record RC is not renewed after 2004.
::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 1111.9 RW1 Madan Mohan tenant has stated that he is running shop of hardware since 1983. He has stated that he is using the demised premises as store. He has .
stated that he did not stop business from 1983 till date.
He has stated that landlady has purchased the demised premises from Gayatri Devi. He has stated that electricity connection is not provided in demised premises. He has stated that he did not stop his business in the year 2006- of
07. He has stated that he is paying tax return. He has stated that sales tax return is Ext.D5 which is signed by rt him. He has stated that documents Ext.D6 to Ext.D11 are also signed by him. He has stated that he is regularly paying the rent to landlady. He has stated that in addition he is also running sweet shop in Housing Board colony since 2003. He has stated that he has employed servant in sweet shop situated in Housing Board colony. He has stated that present eviction petition filed just to harass him. He has stated that he does not sit in demised premises because same is used as store only. He has admitted that he has executed the agreement of tenancy with Gayatri Devi. He has admitted that there is recital in agreement that he would run the business of hardware in ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 12 demised premises. He has admitted that Pushpa Devi has purchased the demised premises. He has denied suggestion that demised premises is closed since 2003 .
when he started running sweet shop in Housing Board colony. He has denied suggestion that demised premises is closed since 6/7 years.
11.10 RW2 Vijay Kumar has stated that he is salesman in sweet shop of tenant situated in Housing of Board colony. He has stated that he is salesman since 2002. He has stated that tenant used to sit in hardware rt shop. He has stated that tenant has two shops and one shop is used as a store and in another shop tenant used to sit personally. He has stated that tenant did not stop the business of hardware at any point of time. He has denied suggestion that tenant used to sit in counter of sweet shop situated in Housing Board colony. He has denied suggestion that demised premises is closed for the last 5/6 years.
11.11 RW3 Purshottam has stated that he is performing the work of painter since 20-25 years and he has seen the demised premises. He has stated that he is purchasing the articles of hardware from tenant. He has ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 13 stated that he purchased the articles of hardware in the year 2006-07. He has stated that hardware shop did not remain closed. He has admitted that there are 100-250 .
hardware shops in Hamirpur. He has denied suggestion that he did not purchase any hardware article from tenant. He has denied suggestion that demised premises is closed since 7/8 years.
11.12 RW4 Raghunath has stated that he has seen of hardware shop of tenant. He has stated that he has seen both shops under possession of tenant. He has stated that rt in the year 1984 he constructed his house and he purchased the entire hardware articles from shop of tenant. He has stated that in the year 2006 and 2008 he purchased Shalimar paint from shop of tenant. He has stated that shops did not remain closed. He has stated that tenant is selling hardware articles as of today. He has denied suggestion that tenant is running the sweet shop since 6/7 years in Housing Board colony. Self stated that his servants are running the sweet shop in Housing Board colony.
11.13 PW9 Tilak Raj in rebuttal has stated that he has brought the summoned record. He has stated that ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 14 documents Ext.PW9/A to Ext.PW9/C are correct as per original record. He has denied suggestion that tenant is running the sweet shop in Housing Board colony through .
his servant.
12. Following documentaries evidence adduced by parties. (1) Ext.PW3/A is legal notice issued by landlady to tenant. (2) Ext.PW3/B is postal receipt of notice issued to tenant. (3) Ext.PW3/C is acknowledgment. (4) of Ext.PW4/A is copy of general power of attorney executed by landlady in favour of PW4 Amar Chand. (5) Ext.PW4/B rt is map of demised premises. (6) Ext.PW9/A is application filed under Right to Information Act by Smt. Pushpa Devi landlady. (7) Ext.PW9/B is application filed under Right to Information Act by Smt.Pushpa Devi landlady. (8) Ext.PW9/C is allotment letter by Divisional Forest Officer to Vijay Kumar relating to Van Vihar (café). (9) Ext.P1 is copy of jambandi for the year 2003-04. (10) Ext.RW1/A is response by tenant regarding increase of 10% rent. (11) Ext.RW1/B is acknowledgment receipt. (12) Ext.RW1/C is copy of rent petition No. 4 of 2002 title Smt. Pushpa vs. Shri Madan Mohan. (13) Ext.RW1/D is copy of reply to rent petition No. 4 of 2002. (14) Ext.RW1/E is copy of rent ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 15 petition No. 1 of 2008 title Smt. Pushpa Devi vs. Shri Madan Mohan. (15) Ext.RW1/F is copy of order dated 24.5.2008 wherein Rent Petition No. 1 of 2008 is .
dismissed as withdrawn. (16) Ext.RW1/G is legal notice given by landlady to tenant. (17) Ext.RW1/H is legal notice given by landlady to tenant. (18) Ext.RW1/K is registered AD sent to tenant. (19) Ext.RW1/J is response given by landlady relating to notice. (20) Ext.RW1/L is registered of AD. (21) Ext.D-1 is reply to legal notice given by tenant.
(22) Ext.D2 is legal notice given by landlady to tenant.
rt (23) Ext.D3 is reply to legal notice given by tenant. (24) Ext.D4 is form S.T. challan. (25) Ext.D5 is form Vat-XV.
(26) Ext.D6 is challan form. (27) Ext.D7 is form Vat-XV.
(28) Ext.D8 is form Vat-II. (29) Ext.D9 is form Vat. (30) Ext.D10 is challan. (31) Ext.D11 is form Vat.
13. Submission of learned Advocate appearing on behalf of tenant/revisionist that learned Appellate Authority under section 24(3) of H.P. Urban Rent Control Act 1987 is not legally competent to remand back whole case to learned Rent Controller to decide the same afresh is decided accordingly. Power of learned Appellate ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 16 Authority under H.P. Urban Rent Control Act 1987 is defined under Section 24 (3) which is quoted in toto:-
24(3) The Appellate Authority shall decide the appeal after sending for the records of case .
from Controller and after giving the parties an opportunity of being heard and if necessary after making such further inquiry as it thinks fit either personally or through Controller."
14. It is well settled law that H.P. Urban Rent of Control Act 1987 is special act. It is also well settled law that when there is conflict between special act and rt general act then special act always prevails. It is held that power of appellate authority is defined in a positive manner under section 24(3) of H.P. Urban Rent Control Act 1987. It is held that learned Appellate Authority under H.P. Urban Rent Control Act 1987 can make further inquiry as it thinks fit either personally or through Controller during pendency of appeal. It is held that words "further inquiry" means inquiry for deciding the appeal only. See 1997(1) SLJ 484 (HP) Braham Dass and others vs. Satya Wati and others. See ILR 1976 HP 620 Smt. Surinder Kaur vs. Mohinder Pal Singh. See 1961 PLR 865 Shri Krishan Lal Seth vs. Smt. Pritam Kumari.
::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 1715. In the present case learned Appellate Authority framed additional issue to the effect that "whether tenant has ceased to occupy premises in question continuously for a period of twelve months preceding the date of filing eviction .
petition without reasonable cause. Onus placed upon landlady.
Thereafter learned Appellate Authority remanded back case to learned Rent Controller to decide case afresh and dispose of appeal finally.
of
16. Submission of learned Advocate appearing on behalf of non-revisionist that learned Appellate Authority under section 24(3) H.P. Urban Rent Control Act 1987 is rt legally competent to remand whole case to learned Rent Controller for deciding afresh is rejected being devoid of any force in view of rulings cited supra. It is held that there is no power of whole case remand to appellate authority under section 24(3) of H.P. Urban Rent Control Act 1987. It is held that learned Appellate Authority was legally competent to frame additional issue and it is held that learned Appellate Authority was legally competent to make further inquiry relating to additional issue either personally or through Controller during pendency of appeal. It is held that learned Appellate Authority was not ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 18 competent to remand case as whole to learned Rent Controller for fresh decision in view of rulings cited supra.
It is held that learned Appellate Authority has committed .
procedural illegality in present case. Point No.1 is decided accordingly.
Point No. 2 (Relief)
17. In view of findings upon point No.1 civil revision petition is partly allowed. Order of remand passed of by learned Appellate Authority under section 24(3) of H.P. Urban Rent Control Act 1987 dated 03.05.2014 is set rt aside. Learned Appellate Authority Hamirpur H.P. is directed to dispose of Rent Appeal No. 1 of 2011 afresh in accordance with law. It is further held that learned Appellate Authority during pendency of appeal will be legally competent to make further inquiry as it thinks fit either personally or through Controller relating to additional issue framed by learned Appellate Authority in para No. 15 of order dated 03.05.2014 and thereafter learned Appellate Authority shall dispose of appeal No. 1 of 2011 afresh in accordance with law. Parties are left to bear their own costs. Files of learned Appellate Authority and learned Rent Controller be sent back forthwith along ::: Downloaded on - 15/04/2017 21:43:28 :::HCHP 19 with certified copy of order. Since rent petition is pending since 2007 learned Appellate Authority shall dispose of appeal No. 1 of 2011 within three months after receipt of .
file. Parties are directed to appear before learned Appellate Authority on 27.12.2016. Revision petition is disposed of. All pending miscellaneous application(s) if any also stands disposed of.
of
(P.S.Rana),
December 12,2016(ms) Judge.
rt
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