Himachal Pradesh High Court
Reserved On:07.04.2025 vs Rajesh Madan & Others on 2 May, 2025
2025:HHC:12246 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.102 of 2022 Reserved on:07.04.2025 Decided on: 02.05.2025 Rajinder Singh ....Petitioner Versus Rajesh Madan & others ...Respondents Coram Hon'ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? Yes For the petitioner: Mr. G.C. Gupta, Senior Advocate with Mr. Deepak Gupta, Advocate.
For the respondents: Mr. B.B. Vaid and Mr. Hemant Vaid, Advocates.
Satyen Vaidya, Judge The instant petition has been filed against order dated 09.06.2022, passed by learned Rent Controller, Shimla, in Case No. CIS 4 of 2022, whereby the objections of the petitioner herein under Section 47 of the Code of Civil Procedure (for short, "the Code") along with application under Order 14 Rules 1 and 2 of the Code have been dismissed.
2. The facts necessary for adjudication of this petition are as under:
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(i) Respondent No.1 Rajesh Madan is the landlord in respect of residential premises known as House No. 82/3 Top Floor, Ganj Road, Shimla (hereinafter referred to as "the premises"). The premises was under the tenancy of Gian Singh even before the purchase of premises by the landlord.
(ii) Gian Singh died and was survived by his wife Balwant Kaur, Sons Rajinder Singh, Gurbachan Singh and Joginder Singh (now deceased).
(iii) After death of Gian Singh, the landlord filed a petition under Section 14 of H.P. Urban Rent Control Act, 1987 (for short, "the Act") for eviction from the premises against Balwant Kaur on the grounds firstly, that the building had become unfit and unsafe for human habitation and secondly, the landlord required the premises bonafide for the purposes of rebuilding and reconstruction which could not be done without vacation of the premises.
(iv) Smt. Balwant Kaur contested the petition by denying the averments made therein. She raised a specific plea that the sons of late Shri Gian Singh had 3 also inherited the tenancy rights in the premises along with her as they were ordinarily residing with Shri Gian Singh in the premises at the time of his death.
3. Learned Rent Controller framed the following issues:
"1. Whether the suit premises has become unfit and unsafe for human habitation as alleged? OPA
2. Whether bonafide applicant suit the required for premises is by the building, rebuilding and construction work as claimed? OPA
3. Whether the application is not maintainable as alleged? OPR
4. Whether the applicant is estopped from filing the petition alleged? OPR
5. Relief."
4. Only issue No.2 was answered in affirmative and the petition was allowed on the ground that the landlord required the premises bonafide for the purposes of rebuilding and reconstruction, which was not possible without vacation of premises.
5. Smt. Balwant Kaur assailed the order of eviction dated 02.07.2009 by filing an appeal under Section 24 of the Act before the Appellate Authority, Shimla, which came to be registered as Rent Appeal No.47-S/14 of 2009. Smt. Balwant Kaur died during the pendency of appeal. The factum of 4 death of Smt. Balwant Kaur was not brought to the notice of learned Appellate Authority and accordingly Rent Appeal No.47-S/14 of 2009 came to be decided vide judgment dated 24.02.2010. The appeal was dismissed and order passed by learned Rent Controller was affirmed.
6. The landlord preferred execution petition for the execution of order dated 02.07.2009 passed by learned Rent Controller in Rent Petition No.25-2 of 2006. He impleaded Balwant Kaur (deceased) through her sons Joginder Singh, Rajinder Singh and Gurbachan Singh as respondents. The execution petition was registered as Execution Petition No.31-10 of 2010.
7. One of the sons of late Shri Gian Singh named Rajinder Singh (petitioner herein) filed objections under Section 47 of the Code. The objections were dismissed. The order of dismissal of objections passed by the executing Court was assailed by Rajinder Singh by filing Civil Revision No.4066 of 2013 in this Court.
8. Rajinder Singh filed another Civil Revision Petition being CR No.26 of 2014 in this Court assailing 5 judgment dated 24.02.2010, passed by the Appellate Authority, Shimla in Rent Appeal No.47-S/14 of 2009.
9. Civil Revision No.26 of 2014 was decided by a co-ordinate bench of this Court on 04.04.2018. The judgment dated 24.02.2010 passed by Appellate Authority was set aside having been passed against a dead person. Rajinder Singh was granted liberty to move appropriate application before the appellate Authority to pursue the surviving cause in the appeal.
10. Civil Revision No.4066 of 2013 was also decided by the same co-ordinate bench of this Court on the same day i.e. 04.04.2018. Orders passed by the executing Court, as impugned in the said revision petition were set aside. The matter was remanded to the Executing Court with liberty to the landlord to move appropriate application before the said Court after the decision on appeal by the Appellate Authority. The executing Court was further directed to invite objections afresh, if required, depending upon the adjudication made by the Appellate Court.
11. In sequel to order dated 4.4.2018 passed in Civil Revision 26 of 2014, Rajinder Singh filed three separate 6 applications before the Appellate Authority. An application was filed under Order 22 Rules 3 and 4 read with Section 151 of the Code and the other application was filed under Section 5 of the Limitation Act seeking condonation of delay in filing the former application. The third application was filed under Order 1 Rule 10 of the Code.
12. Rajinder Singh by way of above applications had asserted right of tenancy along with other sons of Shri Gian Singh in addition to the right so inherited by Balwant Kaur. For seeking condonation of delay in filing application under Order 22 of the Code, it was submitted that said Rajinder Singh was not aware about the pendency of proceedings.
13. The appellate Authority, Shimla decided the aforesaid applications vide order dated 18.12.2018. As regards the status of Rajinder Singh and others sons of Gian Singh, learned appellate Authority held as under:
"16. Now applying the ratio of the above authority to the facts of the present case, it becomes clear that on the death of the original tenant Sh. Gian Singh, the tenancy rights over the demised premises was inherited not only by his wife Smt. Balwant Kaur, but also by his sons simultaneously namely applicant Sh. Rajinder Singh, proforma respondent No.2 Sh.7
Gurbachan Singh (now deceased) another son Sh. Gian Singh, predecessor-in-interest of the proforma respondents No.3 to 5 and the eviction petition was maintainable against Smt. Balwant Kaur widow of original tenant Sh. Gian Singh even other co-heirs were not arrayed as respondents in that petition and the eviction petition was binding upon not only against Smt. Balwant Kaur, but also against other co-heirs (applicant Sh. Rajinder Singh, proforma respondent No.2 Sh. Gurbachan Singh (now deceased) another son Sh. Gian Singh, predecessor-in-interest of the contention raised by learned counsel for the applicant/appellant that the eviction petition was not maintainable as other co-heirs were not made party to the petition by the respondent/landlord and also of learned counsel for the respondent/landlord that the tenancy rights can be inherited once by the widow of the original tenant, then the same cannot be inherited by his sons, cannot be accepted."
14. The applications for condonation of delay, impleadment of legal representatives and addition of parties were dismissed primarily on the ground that Rajinder Singh throughout had the knowledge of the pendency of eviction proceedings. It was noticed that Rajinder Singh had appeared as a witness in Rent Case No.25-2 of 2006 before the learned Rent Controller.
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15. Rajinder Singh assailed order darted 18.12.2018 passed by the Appellate Authority before this Court by invoking supervisory jurisdiction under Article 227 of the Constitution of India. The petition came to be registered as CMPMO No.31 of 2019. A co-ordinate bench of this Court vide order dated 30.12.2019 dismissed the petition and affirmed the order passed by the appellate Authority.
16. The landlord had not assailed the findings recorded by the learned appellate Authority as to the status of Rajinder Singh and other sons of Shri Gian Singh as tenants in the premises, therefore, such findings have attained finality as against the landlord.
17. Thereafter, the landlord filed application before the executing Court with a prayer to be put in possession of the premises.
18. Rajinder Singh filed fresh objections under Section 47 of the Code as under:
(a) That the execution petition preferred by landlord against the legal representatives of late Smt. Balwant Kaur was neither competent nor maintainable. The objector and other sons of 9 Gian Singh were ordinarily residing with Gian Singh at the time of his death and therefore, as per section 2(j) of the Act, all of them had inherited the tenancy rights in the premises alongwith Balwant Kaur. Since the objector and other sons of Gian Singh were not made party in the eviction petition, the order of eviction could not be executed against the objector and the objector could not be condemned unheard.
(b) The order passed by the learned Rent Controller was in-executable in view of the fact that Rajinder Singh was a necessary party in the main petition and eviction petition could not have been filed without arraying Rajinder Singh and other sons of deceased Shri Gian Singh as party to the proceedings.
(c) The order of eviction had been obtained by landlord by playing fraud on the Court as he had intentionally and deliberately failed to array all the tenants as parties. The landlord was also occupying a non-residential premises besides a 10 residential premises in the same building and to say that the building had become unfit and unsafe was a fallacy. The landlord also did not possess a valid sanction for reconstruction of the building from local authority. The reconstruction was also not possible on account of ban imposed by the orders of National Green Tribunal.
(d) After the amendment in the Act w.e.f.
16.03.2012 right of re-entry has been provided to the tenants.
(e) That Smt. Balwant Kaur was infirm and incapable of protecting her rights during the pendency of eviction proceedings and no steps had been take as per provisions of order 32 Rule 15 of the Code for appointment of guardian.
19. The executing Court has held that there was no requirement of framing issues and the objections could be decided without framing of issues.
20. While deciding the objections of Rajinder Singh learned Executing Court vide order dated 09.06.2022, which 11 is impugned in the instant Revision Petition, has held as under:
(a) The executing Court could not go behind the decree.
(b) As per settled proposition of law all the legal heirs of original tenant succeeded to his tenancy on his death as joint tenants. In this view of the matter, the service of notice on one was to be deemed as notice to all.
(c) The eviction order obtained by the landlord is binding on all the legal heirs of deceased.
(d) As regards the right of re entry available to the petitioner and other joint tenants, it has been held that such right was available on new terms of tenancy on the basis of mutual agreement between him and the landlord in the built-up area equivalent to the original premises/ demised premises as per law.
(e) The landlord shall reconstruct/rebuild the premises within shortest possible time after due permission and re-induct tenant on new terms as per law.12
(f) The objections as to infirmity of Smt. Balwant Kaur has also been rejected by holding that there was no sufficient material on record to warrant appointment of guardian under Order 32 of the Code.
21. As noticed above, learned appellate Authority has recorded a specific finding that in addition to Balwant Kaur, Rajinder Singh and others sons of Gian Singh had also inherited the tenancy rights in the premises. It was, however, held that since they were joint tenants, an order of eviction against one was binding on the others.
22. The landlord has accepted the aforesaid verdict.
23. I have heard Shri G.C. Gupta learned Senior Advocate with Shri Deepak Gupta Advocate for the petitioner and Shri Bharat Bhushan Vaid alongwith Shri Hemant Vaid Advocates learned counsel for the respondent/landlord and have also gone through the records of the case.
24. It has been contended for the petitioner that there was no adjudication on the issue as to which of the legal heirs of Gian Singh had inherited the tenancy rights in the premises after his death. Since, the petitioner and other sons of Gian Singh besides Balwant Kaur were also ordinarily 13 residing in the premises with Gian Singh at the time of his death, they had also inherited the tenancy rights. Another contention as has been raised is that the earlier objections filed in Execution Petition No. 31-10 of 2010 remained undecided as there was no reference to such objections in the impugned order. The impugned order has also been alleged to be not sustainable in light of Section 50 of the Code of Civil Procedure. It is further asserted that in case the landlord did not admit the petitioner and other sons of Gian Singh to have inherited tenancy rights in the premises, they being in possession of premises could not be dispossessed without obtaining a decree from the Civil Court. Another objection raised is that one of the sons of Gian Singh has died after passing of eviction order and his legal representatives have not been brought on record.
25. On the other hand, during course of hearing Shri Hemant Vaid learned Counsel for landlord/ respondent fairly pointed out the findings recorded by learned Appellate Authority, Shimla vide its order dated 18.12.2018 passed in Rent Appeal 47-S/14 of 2009 as reproduced in para 13 hereinabove.
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26. Thus, to say that there has been no adjudication on the issue will not be correct. Though collaterally, there is an adjudication on the fact that the petitioner herein and all other sons of Gian Singh had inherited the tenancy rights in the premises. The landlord has not assailed such findings at any stage. In addition, the learned Executing Court has also held so vide impugned order, as noticed, above. Again, the landlord has not assailed the impugned order.
27. Thus, it stands established that the landlord by implication has admitted the above fact.
28. Once the petitioner and other sons of Gian Singh become holders of tenancy rights in the premises, the question arises whether without impleading them as parties in the original eviction proceedings, the order of eviction can be executed against them?
29. The legal position is clear. In Suresh Kumar Kohli Vs Rakesh Jain and another (2018) 6 SCC 708, Hon'ble Supreme Court has held as under:
"24. We are of the view that in the light of H.C.Pandey vs. G.C. Paul (1989) 3 SCC 77, the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as 15 joint tenants and occupation of one of the tenants is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenants is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."
30. In light of above exposition there is no hesitation to hold that in the instant case also the order of eviction dated 2.7.2009 passed by learned Rent Controller, Shimla in Rent Case No. 25-2 of 2006 though passed against Balwant Kaur binds the petitioner and other sons of Gian Singh. It also cannot be ignored that the petitioner herein though appeared as a witness before learned Rent Controller in 16 Rent Case No. 25-2 of 2006, he did not come forward during entire length of proceedings before learned Rent Controller for his impleadment as party.
31. The Act has been amended by amendment Act 8 of 2012. A proviso has been added to Section 14 (3)(c) as under:
"Provided that the tenant evicted under this clause shall have a right to re-entry on new terms of tenancy, on the basis of mutual agreement between the landlord and the tenant, to the premises in the re-built building equivalent in area to the original premises for which he was a tenant"
32. At this stage it will be relevant to notice that the vires of certain provisions of the Act as also the amendment Act 8 of 2012 were challenged before this Court by way of CWP No. 2072/1995, CWP No. 297/2001 and CWP No. 3165/2013 titled Chaman Lal Bali Versus State of Himachal Pradesh and another; Chandan Mehta Versus State of Himachal Pradesh and others and Sumeer Nath Versus State of Himachal Pradesh and another respectively. 17 Challenge was also laid to the amendment made to section 14(3)(c) of the Act, as noticed above.
33. A Division Bench of this Court vide judgment dated 2.8.2016 passed in above noted Civil Writ Petitions though upheld the right of re-entry granted to the tenant, but in the final analysis held as under :
99. In such circumstances, therefore, the further question that arises for consideration as to whether the existing provision of Section 14(3) (c) is constitutionally valid?
100. We have no hesitation in observing that in absence of any time frame for putting the tenant back into possession, the landlord after evicting the tenant on the ground mentioned in Section 14(3)(c) may chose to keep the building as it is for some period in order to fetch a substantial amount in sale and in this manner the provision affords no safeguard to the evicted tenant.
101. That apart, the legislature by introducing the right of reentry on new terms of tenancy, that too, only on the basis of mutual agreement between the landlord and tenant, has virtually rendered the right of re-entry illusionary and the provision otiose, as it is difficult to comprehend, contemplate and visualize that the tenant and landlord, who have been involved in litigation for decades and would otherwise normally not see each other in eye, would subsequently all of a sudden arrive at a mutual agreement. What if, the landlord and tenant fail to arrive at a mutual agreement? There is absolutely no answer to this question to be found in the entire Amended Act.18
102. Even otherwise, there being a mutual agreement between the landlord and tenant is a nigh impossibility, after all the landlord who has succeeded in having his tenant evicted, that too, invariably after long drawn battle in the Courts, would not at all like to arrive at a "mutual agreement" with the tenant and on the other hand why would the tenant, who has been conferred with the right of re-entry succumb to any unreasonable demands of the landlord so as to arrive at a mutual agreement ?
103. In addition to the aforesaid, we find that the provisions are neither in the interest of the landlord or tenant because in case the parties fail to enter into a mutual agreement regarding the new terms of tenancy, neither the landlord nor the tenant would be able to utilize reconstructed premises, despite the landlord having spent a huge amount for rebuilding the same. This obviously would only promote perpetual and endless litigation between the parties and the very object of the Amending Act of promoting harmonious relations between the landlords and the tenants would thus stand defeated.
104. Lastly, we also notice that the language used in explanation is absolutely vague and it is not at all discernible as to in what time would the agreement as mentioned therein be arrived at. Is it when the tenant has been evicted under clause (c) or at the time when the building is rebuilt? In case, the agreement is to be arrived at the time of eviction, then probably much exception cannot be taken, but in case the agreement is to be arrived at only after the building is rebuilt, then the very purpose of having such a provision of re-induction of the tenant would be rendered nugatory and otiose, because the landlord will make all endeavours to drive the tenant 19 to the wall and would further ensure that the portion for which the re-entry has been reserved to the tenant is not constructed. The proviso to say the least is totally unworkable as it is absolutely vague, ambiguous apart from being arbitrary and unreasonable. Therefore, we have no difficulty in concluding that the first proviso of clause (c) of sub-section (3) of Section 14 of the Act is unconstitutional.
105. In view of the aforesaid discussion and for the reasons so stated, these petitions are partly allowed and Section 4 of the Amended Act which prescribes the procedure for determination of standard rent and Sections 5, 6, 7, 8 and 30 (2) insofar as they are dependent upon standard rent as contemplated and determined under Section 4 other than the agreed rent are struck down and declared unconstitutional. Similarly, Section 14 (3) (c) of the Act insofar as it provides for the right of re-entry to the tenant is upheld, while the remaining portion of the proviso being unreasonable, is also struck down and declared unconstitutional.
34. Before passing of above noticed judgment the field was held by judgment passed by a co-ordinate bench of this Court in M/S R.S. Puran Mull Trust Vs M/S Dayal Sons reported in Latest HLJ 2013(HP) 1277 in which it was observed and held as under:
54. While permitting/allowing rebuilding, the learned Rent Controller/Appellate Authority shall fix a time within which the construction has to be commenced and completed by the landlord. The tenant must vacate the premises in 20 order to enable the landlord to carryout construction, as ordered by the learned Rent Controller/Appellate Authority. The terms and conditions of tenancy more or less should be on the old terms of tenancy, except increase in rent, which is to be determined as per the law laid by their Lordships of the Hon'ble Supreme Court in 2004 (4) SCC 781. The tenancy will be deemed to have been temporarily suspended and not terminated. Since right of tenant of re-entry has been provided now under the proviso. Re-induction of the tenant should be on the same dimensions as per old tenancy and the location and the place should also be same. It is clarified that in case the premises are commercial and are on the main bazaar, the tenant cannot be shifted to first floor or second floor.
In the eventuality of the premises not handed over by the landlord to the tenant, the tenant will be held entitled to reasonable compensation to be determined by the learned Rent Controller, which should neither be exorbitant nor on the lower side.
58. Accordingly, in view of the observations and analysis made hereinabove, the revision petition is allowed. The judgment, dated 17.01.2006, passed by the learned Appellate Authority, Shimla, is set aside and the order, dated 01.08.2003, passed by the learned Rent Controller (1), Shimla, is modified as under:
"The tenant is directed to hand over the vacant possession of the premises to the landlord within a period of three months. Thereafter, the landlord shall commence the construction within a period of six months and complete the same within a further period of one year after obtaining the statutory permissions. The tenant shall be re-inducted on 21 the basis of the observations made hereinabove after one month of the construction of the building. The tenant should be re-inducted in the same place, location and area should be equivalent to the area which was in occupation of the tenant before the orders passed by the learned Rent Controller."
35. The judgment dated 2.8.2016 passed by Hon'ble Division Bench of this Court in Chaman Lal Bali (supra) has been challenged by the State of Himachal Pradesh before Hon'ble Supreme Court by way of SLP (C) Diary No. 47268/2018 and vide order dated 18.2.2019 the said judgment has been stayed.
36. Though in Chaman Lal Bali (supra) the Hon'ble Division Bench has overruled the judgment passed in M/S R.S. Puran Mull Trust to a limited extent by holding as under:
98. Therefore, the judgment rendered by the learned Single Judge of this Court in M/s R.S. Puran Mull Trust (supra), giving time bound directions to the parties i.e. landlord and tenant and further holding the tenants to be entitled to reasonable compensation on failure of the landlord to hand over possession of the premises, dehorse the provisions of the statute by applying the doctrine of casus omissus cannot be regarded and considered as good law and to that extent the same is, therefore, overruled.22
However, since, the judgment in Chaman Lal Bali has been stayed, the judgment in M/S R.S. Puran Mull Trust will have application.
37. Learned counsel for landlord/respondent also raised an argument that the eviction order in the instant case stood passed before coming into force of amendment act and hence, its provisions could not be applied retrospectively. The argument so raised deserves to be rejected by implication of Section 34 of the Act, the amendment will apply to the facts of the case as Section 34 reads as under:
"34. Repeal and savings.- (1) The Himachal Pradesh Urban Rent Control Act, 1971, (23 of 1971) is hereby repealed.
(2) Notwithstanding such repeal, but subject to the provisions contained in sub-section (3), all suits, appeals and other proceedings, including execution proceedings, under the said Act, pending before any court of appellate or revisional authority, on the appointed day shall be disposed of in accordance with the provisions of this Act, as if the provisions contained in this Act were, at the relevant time, in force.
(3) Nothing contained herein shall authorise any court or authority or tribunal to re-open any suit or 23 proceedings in which the orders passed have already become final and executed.
Admittedly, the statutory appeal of the tenant came to be finally decided by order dated 18.12.2018 i.e. after the amendment in the Act and the execution petition was decided finally on 9.6.2022.
38. Hon'ble Supreme Court in Hari Dass Sharma vs. Vikas Sood and others (2013) 5 SCC 243 has applied the amended provision of the Act granting right of re-entry to the tenant retrospectively by holding as under:
"19. We accordingly, allow the appeals, set-aside the directions contained in para 27 of the impugned judgment of the High Court, but grant time to the respondents to vacate the building within three months from today. We make it clear that it will be open for the respondents to apply for re-entry into the building in accordance with the proviso to clause (c) of Section 14 (3) of the Act introduced by the Amendment Act, 2009. Considering, however, the peculiar facts and circumstances of the cases, there shall be no order as to costs."
39. In light of what has been held above other contentions raised on behalf of petitioner need not be 24 answered save and except that Section 50 of the Code of Civil Procedure has no application in the facts of the case and the inheritance of tenancy under the Act is only once, therefore, after the Sons of Gian Singh no one is entitled to inherit the same.
40. Though the executing court vide impugned order has upheld the right of petitioner and other sons of the Gian Singh to re-entry in terms of amendment, as above noted, but in my considered view everything has been left in limbo when the learned Executing Court has held that the landlord shall reconstruct/rebuild the premises within shortest possible time after due permission and re-induct tenant on new terms as per law. With the nature of directions as contained in impugned order the eviction order passed by learned Rent controller is more likely than not to face impasses and thereby rendering the purpose of the Act nugatory.
41. In result, the impugned order dated 9.6.2022 passed by learned Rent Controller Shimla in Execution Petition No. 31-10 of 2010 is set aside to the extent as having been passed without useful directions as to carrying 25 out the purpose of proviso added to Section 14(3)(c) of the H.P. Urban Rent Control Act, 1987. The matter is remanded back to learned Executing Court with direction to the said Court to pass the orders afresh strictly in terms of what has been held hereinabove and taking into consideration the dictum in M/S R.S. Puran Mull Trust Vs M/S Dayal Sons reported in Latest HLJ 2013(HP) 1277.
42. The petition is accordingly disposed of so also all pending miscellaneous application(s), if any.
43. Record be sent back immediately.
( Satyen Vaidya ) Judge May 02, 2025 (vt)