Himachal Pradesh High Court
Naresh Sharma And Ors. vs Ramesh Chand And Ors. on 7 May, 1999
Equivalent citations: AIR2000HP6
ORDER Kamlesh Sharma, J.
1. The above revision petition is directed against the order dated 20-1-1998 passed by Rent Controller. Hamirpur in Execution Petition No. 28 of 1995 and the order dated 23-1-1998 passed by the District Judge. Hamirpur exercising the powers of the Appellate Authority under the H. P. Urban Rent Control Act, 1987 (hereinafter called 'the Act'). By the impugned order dated 20-1-1998 the Rent Controller has dismissed the objections filed by the petitioners, against which they had filed appeal before the Appellate Authority, which has been dismissed in limine as not maintainable by the impugned order dated 23-1-1998.
2. The present case has chequered history. Respondents 1 to 4 are the sons and respondent 5 is the daughter of one Uttam Chand, who was landlord of the premises in dispute. Respondents 6 to 8 are the sons and the petitioners are the daughters of one Om Parkash. The petitioners claim that Om Parkash was the tenant of the premises in dispute, which are shops in which he was running Karyana business and that after his death they along with their brothers respondents 6 to 8 have inherited the tenancy rights. Their further case Is that late Shri Uttam Chand wrongly got executed one lease deed from one of their brothers, namely, Ashok Kumar respondent No. 6, who never continued the business of their father late Shri Om Parkash in the premises in dispute.
3. The first eviction petition filed by late Shri Uttam Chand against Ashok Kumar respondent No. 6 was dismissed as having been compromised by order dated 7-9-1981 and another lease deed was executed in favour of Ashok Kumar and Vinod Kumar respondents 6 and 7, the brothers of the petitioners. The second eviction petition filed against respondents 6 and 7 in which respondent 8 was also impleaded as subtenant, was allowed by judgment dated 24-12-1992 and eviction order was passed holding respondents 6 and 7 responsible for impairing materially the value and utility of the building in question by installing flour mill and oil speller therein and also for nonpayment of arrears of rent.
4. Both the parties i.e. respondents 6 to 8 and late Shri Uttam Chand filed appeals, which were decided by the judgment dated 8-3-1994 passed by the Appellate Authority, whereby the appeal of late Uttam Chand was allowed holding respondents 6 to 8 liable for ejectment on the ground of change of user without the consent of the landlord and also on other two grounds upheld by the Rent Controller and the appeal of respondents 6 to 8 was dismissed. The Civil Revision Petition No. 67 of 1994 filed by respondents 6 to 8 against the Judgment dated 8-3-1994 of the Appellate Authority was also dismissed on 5-6-1995.
5. Thereafter execution petition was filed by respondents 1 to 5, the legal representatives of late Shri Uttam Chand who had died in the meantime, before the Rent Controller in which objections were filed by respondents 6 and 7 on the ground that late Shri Uttam Chand had entered into agreement with respondent No. 8 Vinod Kumar (sic) on 11-6-1998 according to which one of the shops was vacated for returning to the decree-holders, as such, they are estopped by their act and conduct from filing the execution petition. After framing the issues evidence of some of the witnesses produced by the objectors was recorded and the remaining evidence was closed on 1-3-1996, when despite opportunities they failed to produce the same and the revision petition Nos. 47 and 48 of 1996 challenging the orders dated 22-2-1996 and 1-3-1996 were also dismissed.
6. Ultimately on28-8-1997respondents 6 to 8 filed an application and respondent No. 8 Promod Kumar gave statement seeking time to vacate the premises in dispute within two months before 28-10-1997 but in the meantime one Anita Devi wife of respondent No. 7 Vinod Kumar had filed objections seeking stay of the execution proceedings on the ground that one Civil Suit and one Civil Revision Petition arising out of the said Civil Suit were pending. The Civil Suit was filed by Smt. Parkash Wati wife of Om Prakash for declaration to the effect that she was the tenant of the premises in dispute and the eviction order dated 4-12-1992 passed in favour of late Shri Uttam Chand against her sons, presently respondents 6 to 8, which was affirmed in appeal by the Appellate Authority by judgment dated 8-3-1994 and also in revision petition by this Court by judgment dated 5-6-1995 is illegal, void and not executable qua her and also for consequential relief of permanent injunction restraining the landlords, presently respondents 1 to 5, from executing the said eviction order. Plaintiff Smt. Parkash Wati had also filed an application under Order 39, Rules 1 and 2. C.P.C. seeking interim injunction but failed. The order of the trial Court not granting interim injunction was upheld in appeal by the District Judge. Civil Revision Petition No. 46 of 1997 was also dismissed by this Court on 4-6-1997, as in the meantime Smt. Parkash Wati had died and Anita Devi wife of respondent No. 7 Vinod Kumar, who wanted to pursue the revision petition as her legal representative was not found having right to continue the civil suit in the presence of her husband Vinod Kumar who is Class-I heir of deceased-plaintiff Smt. Parkash Wati; with the result the suit was also dismissed.
7. So far the petitioners are concerned, for the first time they came forward to file their objection petition on 24-9-1997 which has been dismissed by the impugned order dated 20-1-1998 on the ground that they had not inherited the tenancy rights of their father late Shri Om Prakash, and even if they had done so, they were joint tenants with their brothers respondents 6 to 8 and they cannot object to the eviction order passed against them, as it is borne out from the record that only they continued in occupation of the premises in dispute and carrying on the business; who also had given statement to hand over the vacant possession within a period of two months on 28-8-1997.
8. The appeal filed against the order dated 20-1-1998 has also been dismissed in limine by the District Judge by order dated 23-1-1998. The petitioners filed Civil Revision Petition No. 42 of 1998 against the order dated 20-1-1998, which was dismissed on 14-7-1998 on the ground that the order dated 23-1-1998 of the District Judge was not assailed by the petitioners. Now the petitioners have filed this revision petition challenging both the orders dated 20-1-1998 passed by the Rent Controller and dated 23-1-1998 passed by the District Judge. Along with the revision petition an application (CMP(M) No. 317 of 1998) under Section 5 of the Limitation Act for condonation of delay was filed which was dismissed as withdrawn on 21-7-1998. Thereafter another application (CMP No. 563 of 1998) has been moved that this revision petition may be considered under Section 115, C.P.C. instead of under Section 24(5) of the Act and another CMP(M) No. 674 of 1998 has been filed for condoning the delay in filing the revision petition under Section 115, C.P.C. on the ground that the petitioners have been following the wrong legal remedy bona fide. Respondents 1 to 5 have opposed these applications as well as the revision petition on the ground that these have been filed mala fide only to delay the execution of the eviction order against respondents 6 to 8.
9. This Court has heard learned counsel for the parties and gone through the record.
Initially the revision petition was filed on 20-7-1998 under Section 24(5) of the Act against the order dated 20-1-1998 passed by the Rent Controller dismissing the objections in Execution Petition No. 28/95 and order dated 23-1-1998 passed by the Appellate Authority dismissing in limine the appeal against the order dated 20-1-1998 as not maintainable. Thereafter, realising that the revision petition against the impugned orders does not lie under Section 24(5) of the Act but lies under Section 115, C.P.C., CMP No. 563 of 1998 has been filed for treating the revision petition under Section 115. C.P.C. along with application under Section 5 of the Limitation Act for condonation of delay on 17-12-1998.
10. It is not in dispute that order dated 20-1-1998 dismissing the objections filed by the petitioners in the execution petition of respondents 1 to 5 was passed by the Rent Controller under Section 26 of the Act exercising the powers of a Civil Court. By virtue of Section 26 of the Act, the provisions of the Code of Civil Procedure in respect of execution of a decree are made applicable for the execution of the order passed by the Rent Controller or by the Appellate Authority. Therefore, the objections filed by the petitioners in the execution petition were under Order 21, C.P.C. and the only remedy against it is revision under Section 115, C.P.C. The Appellate Authority has rightly dismissed the appeal in limine as not maintainable, as such an order is not appealable under Section 24(1)(b) of the Act.
11. Even after dismissal of the appeal by order dated 23-1-1998, the petitioners preferred Civil Revision Petition No. 42 of 1998 under Section 24(5) of the Act to challenge the order dated 20-1-1998 passed by the Rent Controller without challenging the order dated 23-1-1998, which was disallowed as not maintainable on that ground alone. Thereafter, the present revision petition was filed on 20-7-1998 challenging both the orders under Section 24(5) of the Act. This revision petition if treated under Section 115, C.P.C., as now prayed by the petitioners, it is barred by 89 days for challenging the order dated 20-1-1998 passed by the Rent Controller and by 87 days for challenging the order dated 23-1-1998 of the Appellate Authority. The sufficient cause shown for condoning the delay in CMP(M) No. 674 of 1998 filed on 17-12-1998 is that the petitioners pursued wrong legal remedies under mistaken advice of their learned counsel. It is a strange case in which at no point of time the learned counsel for the petitioners cared to find out what remedy is available to the petitioners against the order dated 20-1-1998 dismissing their objections in the execution petition and firstly filed appeal before the Appellate Authority and thereafter Civil Revision Petition No. 42 of 1998 and the present revision petition under Section 24(5) of the Act. Civil Revision Petition No. 42 of 1998 was within limitation but it was conducted very casually by conceding that without assailing the order dated 23-1 -1998 passed by the Appellate Authority the order dated 20-1-1998 of the Rent Controller was not maintainable. If appeal against the order dated 20-1-1998 passed by the Rent Controller was not maintainable and the only remedy available to the petitioners is to file revision petition under Section 115, C.P.C. they need not assail the order dated 23-1-1998 of the Appellate Authority and wrong mentioning of Section 24(5) of the Act instead of Section 115, C.P.C. is of no consequence, hence the present revision petition will be treated under Section 115, C.P.C. and CMP No. 563 of 1998 is allowed.
12. Coming to the point of condonation of delay in filing revision petition, it is clear from the facts and circumstances on record that the petitioners have been pursuing wrong remedy under the mistaken advice of their learned counsel. In view of the settled legal position that litigants should not suffer for the mistake or negligence of their counsel, the delay in filing the revision petition deserves to be condoned. Accordingly, CMP(M) No. 674 of 1998 is allowed.
13. Coming to the merits of the civil revision so Car order dated 23-1-1998 passed by the Appellate Authority is concerned, there is no infirmity in it. The perusal of Section 24 of the Act makes it clear that any person aggrieved by an order passed by the Rent Controller except the order for recovery of possession made by the Rent Controller in accordance with the procedure prescribed under Section 16 is appealable before the Appellate Authority within 15 days from the date of order and the order of the Appellate Authority passed in appeal becomes final subject to revision before the High Court, as provided under Sub-section (5) of Section 24 of the Act, In the present case the eviction order dated 24-12-1992 passed against respondents 6 and 7 was confirmed by the Appellate Authority in appeal and by this Court in revision petition. Thereafter, the matter is in execution in which respondents 6 to 8 have given statement to hand over the vacant possession of the premises in dispute but the petitioners filed objections which have been dismissed by the impugned order dated 20-1-1998 passed by the Rent Controller in exercise of powers of a Civil Court. This order has been passed under Section 26 of the Act whereby the provisions of the Civil Procedure Code pertaining to execution have been made applicable. In this view of the matter, the objections filed by the petitioners were under Order 21, Rule 36, C.P.C. and the order dismissing those objections is assailable under Section 115, C.P.C. and not appealable under Section 24(1)(b) of the Act. Therefore, the revision petition against the order dated 23-1-1998 passed by the Appellate Authority is without any merit.
14. So far revision petition against order dated 20-1-1998 passed by the Rent Controller is concerned, it is also without any merit. There is no infirmity in the impugned order passed by the Rent Controller as envisaged under Section 115. C.P.C. In view of the settled legal position by the Supreme Court in Smt. Gian Devi Anand v. Jeevan Kumar, AIR 1985 SC 796, there cannot be any dispute that the heirs of the deceased-tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased-tenant and all the rights and obligations of the deceased-tenant including the protection afforded to the deceased-tenant under the Act will devolve on the heirs of the deceased-tenant. It is also held by this Court in its judgment dated 27-12-1994 passed in Civil Revision Petitions Nos. 126and 127of 1994 titled Vinod Kumar v. Vinod Kumari and In Balwant Rai v. Surjit Singh, (1996) 2 Sim LC 275, that since there is no provision in the H. P. Urban Rent Control Act with regard to the heirs of the tenant in respect of commercial tenancies, on the death of the tenant they will be governed by the General Law and the provisions as contained in Section 2(j) of the Act will not apply as it pertains to the heirs of the tenants of residential premises only. Therefore, this Court has no hesitation to hold that had the father of the petitioners, namely, Om Parkash been tenant of the premises in dispute, they along with their brothers respondents 6 to 8 would have inherited the same but in the present case there is nothing on record to show that the father of the petitioners, namely, Om Parkash was the tenant of the premises in dispute at the time of his death on 22-6-1978.
15. The first eviction petition No. 4 of 1979 titled Uttam Chand v. Ashok Kumar (respondent No. 6) was compromised on 7-9-1981 and fresh lease of tenancy was created by lease deed Ex. PW 2/B in favour of Ashok Kumar and Vinod Kumar respondents 6 and 7, which has been upheld by the Rent Controller in the second eviction petition No. 18-II of 1989 by eviction order dated 24-12-1992, which was affirmed by the Appellate Authority by judgment dated 8-3-1994 and by this Court by judgment dated 5-6-1995 in Civil Revision Petition No. 67 of 1994. After the death of their father Om Parkash on 22-6-1978 till the filing of the objection petition on 24-9-1997 the petitioners never asserted that they have inherited the tenancy rights of their father along with his other legal heirs. Had their father Om Parkash been tenant of the premises in dispute at the time of his death and had the petitioners inherited his tenancy rights along with other legal heirs and running the business in the premises in dispute they would have known the pending litigation and would have come forward to oppose it by becoming party therein. Even respondents 6 to 8 would have taken the plea that after the death of their father they along with their mother and sisters had inherited the tenancy rights of their father. Therefore, in this background the Rent Controller has rightly held that the petitioners have nothing to do with the premises in dispute and they have filed the objections to delay the execution.
16. Even if for the sake of arguments it is assumed that the petitioners have inherited the tenancy along with respondents 6 to 8, who are admittedly running the business in the premises in dispute, the eviction order against respondents 6 to 8 will be binding on the petitioners also. For taking this view this Court has taken support from the judgment of the Supreme Court in H. C. Pandey v. G. C. Paul. (1989) 3 SCC 77 : (AIR 1989 SC 1470) wherein it is held in para 4 :-
"It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased-tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (AIR 1977 All 38) is erroneous where the High Court lays down that the heirs of the deceased-tenant succeed as tenant-in-common. In our opinion, the notice under Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and, therefore, the suit must succeed."
Following this judgment the Delhi High Court has also held in Mohd. Usmanv. Mst. Surayya Begum, (1990) 2 Ren CR 408, in para 6 that even if one of the legal heirs is not a party to proceedings for eviction filed by the landlord against the legal heirs of the original tenant, that heir who has been left out cannot later on come forward and agitate his right in the tenancy.
17. In the present revision petition the learned counsel for the petitioners has only reiterated the submissions made on behalf of the petitioners before the Rent Controller and no new point has been raised. Since the impugned order dismissing the objections of the petitioners withstood the judicial scrutiny of this Court, there is no merit in this revision petition and it is dismissed with costs which are quantified at Rs. 5000/-. The Executing Court is directed to proceed with the execution petition in accordance with law. The records be sent to the Executing Court immediately and the parties are directed to appear before it on 7-6-1999.