Himachal Pradesh High Court
Kamla Sharma (Deceased) Through vs Rajinder Sood @ Rajan (Deceased) ... on 3 March, 2025
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
Neutral Citation No. ( 2025:HHC:4178 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No. 18170 of 2024 in Civil Revision No.116 of 2017.
Order Reserved on : 28.02.2025.
Date of decision: 03.03.2025.
Kamla Sharma (deceased) through LRs Surinder Sharma and another .....Petitioners/ Non-Applicants.
Versus Rajinder Sood @ Rajan (deceased) through his L.R. Madhu Sood .....Respondent/Applicant.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes For the Petitioners/ : Mr. Neeraj Gupta, Senior Non-applicants Advocate with Mr. Ajeet Pal Singh Jaswal, Advocate.
For the Respondent/ : Mr. Arjun Lall, Advocate. Applicant Tarlok Singh Chauhan, Judge CMP No. 18170 of 2024.
The landlady-respondent has filed this application under Section 151 of the Code of Civil Procedure (in short "CPC") seeking directions against the 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 Neutral Citation No. ( 2025:HHC:4178 ) petitioners/non-applicants (hereinafter to be referred as non-applicants) to handover vacant and peaceful possession of the demised premises.
2. It is averred that the original tenant was one Shri Ghungar Ram, who left for his heavenly abode prior to the filing of the eviction petition which was filed against his wife Smt. Kamla Sharma. Now that Smt. Kamla Sharma has left for her heavenly abode, therefore, the non-applicants, who cannot be held to be the tenants, are required to be directed to hand over the peaceful possession of the demised premises to the landlady-respondent.
3. The legal heirs of Smt. Kamla Sharma have filed their reply to the application wherein it has been averred that both Sh. Ghungar Ram and his wife Smt. Kamla Sharma were living in the premises in question alongwith their children. Therefore, even after the demise of original tenant Shri Ghungar Ram, his tenancy rights came to be inherited by Smt. Kamla Sharma and her children as they were ordinarily residing with Shri Ghungar Ram and after his demise with Smt. Kamla Sharma. All the legal heirs of Shri Ghungar Ram succeeded to the tenancy rights as joint tenants after his demise simultaneously and, consequently, 3 Neutral Citation No. ( 2025:HHC:4178 ) the death of Smt. Kamla Sharma would not put to an end the tenancy rights of the non-applicants.
4. I have heard the learned counsel for the parties and have gone through the records of the case.
5. It is not in dispute that the eviction proceedings that have been filed by the landlord are against Smt. Kamla Sharma by claiming that she was a tenant without specifying as to whether such tenancy was by virtue of independent tenancy right or by way of succession under Section 2 (j) of the Himachal Pradesh Urban Rent Control Act, 1987 (for short "Act"). However, she was ordered to be evicted by the learned Rent Controller, which findings were affirmed by the learned Appellate Authority, giving rise to the instant petition.
6. However, during the pendency of this petition, the original landlord died and his legal representative-Smt. Madhu Sood filed CMP(M) No.772 of 2020 for bringing herself on record. This application was allowed by this Court vide order dated 27.08.2021, which reads as under:- " CMP (M) No. 772 of 2020
The instant application has been filed by the legal representative of deceased sole respondent for bringing on record the legal representative, on the 4 Neutral Citation No. ( 2025:HHC:4178 ) ground that the sole respondent has died on 06.07.2020 and prior to his death, the sole respondent has executed a will dated 11.06.2020.
Without conducting the inquiry under Order 22 Rule 5, the legal representative of deceased sole respondent is ordered to be brought on record. Application stands disposed of."
7. Incidentally, during the pendency of this petition, the said Smt. Kamla Sharma also died and her sons filed an application being CMP(M) No. 520 of 2021 seeking their impleadment as her legal representatives, as is evident from the prayer clause, which reads as under:-
"It is, therefore, prayed that in the interest of justice application may be allowed and legal heirs of deceased sole petitioner i.e. applicants may be ordered to be brought on record in place of deceased sole petitioner as her legal representatives."
8. This application also came up for consideration on 27.08.2021 and the Court passed the following order:- "CMP(M) No. 520 of 2021
The instant application has been filed by one of the legal representatives of deceased sole petitioner for bringing on record the legal representatives of the deceased petitioner, who is stated to have died on 29.04.2021. This application is within time and is allowed. However, allowing of this application is solely for the purpose of continuation of the 5 Neutral Citation No. ( 2025:HHC:4178 ) proceedings and not in any manner would be acknowledgement of the right of tenancy of the LRs.
Application stands disposed of."
9. Thereafter, the legal heir of the deceased- landlord, who has now been substituted, filed an application under section 151 of CPC, being CMP No. 13061 of 2021, for the following reliefs:
"(a) Allow this application and may further be pleased to vacate the stay order dated 28.12.2018 and 05.04.2019.
(b) In the alternative revise the use and occupation charges to a sum of Rs.24,000/- per month from the date of the eviction order.
(c) Allow any other relief deemed fit by this Hon'ble Court, in favour of the respondent/landlord/applicant and against the non applicants/petitioners."
10. In the application so filed a specific averment has been made by her in para-4 to the following effect:
"That it is pertinent to submit that Smt. Kamla Sharma had inherited the tenancy from her husband Sh. Ghungar Ram, who was the original tenant. Her sons Sh. Surinder Sharma and Sh. Jitender Sharma do not have any right to continue to hold on to the possession of the premises....."6
Neutral Citation No. ( 2025:HHC:4178 )
11. The non-applicants partly contested the application. However, as regards para-4, the averments were not contested and it was averred that the contents of the same were not denied that Shri Ghungar Ram was the tenant and after his demise Smt. Kamla Sharma inherited the tenancy from her husband. On account of death of Smt. Kamla Sharma, an order has been passed permitting continuation of proceedings at the behest of Shri Surinder Sharma and Shri Jitender Sharma. Thus, nothing wrong has been committed by permitting continuation of proceedings at the behest of aforesaid legal heirs of Smt. Kamla Sharma.
12. When the matter came up for hearing on 06.09.2024, learned counsel for the respondent argued that the non-applicants were liable to be evicted forthwith as they have no right to continue with the petition or to be in possession of the premises in view of the provisions as contained in Section 2(j) of the Act. Upon this contention, the Court passed the following order:
"Heard. The respondent seeks to rely upon the provisions of Section 2 (j) of H.P. Urban Rent Control Act (for short, "the Act") to claim that the petitioners, who have now stepped into the shoes of Kamla 7 Neutral Citation No. ( 2025:HHC:4178 ) Sharma, have no right to continue with this petition or agitate any of the grounds as raised by her in defence.
I find that it is purely a fortuitous circumstance that the impleaded tenant has died during the pendency of this petition. It has come on record for the first time vide CMP No. 13061/2021 that it was Gungar Ram, who, as a matter of fact, was the original tenant and Kamla Sharma had, after his death, inherited tenancy from him.
Given the fact that the eviction petition was filed by the landlord on the grounds of arrears of rent, bona fide requirement, building being in dilapidated condition and unsafe for human habitation, there was no occasion for the petitioners herein to have taken or invoke the plea that their right to continue in premises was protected under Section 2 (j) of the Act.
Therefore, this question cannot be decided at this stage unless an appropriate application to this effect is filed by the respondent and the petitioners are afforded an adequate opportunity to contest the same.
Learned counsel for the respondent prays for and is granted two weeks' time to file an appropriate application.
List on 20.9.2024."
13. It is thereafter that the respondent-landlady has now filed this application for grant of the following relief: 8
Neutral Citation No. ( 2025:HHC:4178 ) "It is therefore most respectfully prayed that the present application may kindly be allowed and the legal representatives of the petitioner i.e. Late Smt. Kamla Sharma be directed to handover the vacant and peaceful possession of the demised premises to the respondent Applicant."
14. As regards the status of the non-applicants, who have been permitted to continue with the petition, this Court would have to first determine the status of Smt. Kamla Sharma.
15. No doubt, as already observed above, the status of Smt. Kamal Sharma was innocuously described as a tenant without specifying whether she was a tenant in her own right or had succeeded to the tenancy under Section 2(j) of the Act. However, the fact remains that Smt. Kamla Sharma did not contest the eviction petition on the ground of non-joinder of necessary parties or set up a plea that apart from her, even the non-applicants had been ordinarily residing with late Shri Ghungar Ram and thereafter with her. The status of Smt. Kamla Devi becomes clear when non- applicants themselves on affidavit unequivocally admit in para-4 of reply to CMP 13061 of 2021, as extracted above, that it was Shri Ghungar Ram, who was the tenant and after 9 Neutral Citation No. ( 2025:HHC:4178 ) his demise Smt. Kamla Sharma inherited the tenancy from her husband.
Therefore, this Court has no hesitation to conclude that it was Shri Ghungar Ram, who was the tenant and Smt. Kamla Sharma had succeeded tenancy by virtue of Section 2(j) of the Act.
16. Once, it is concluded that Smt. Kamla Sharma had succeeded to his tenancy only by virtue of Section 2(j) of the Act, the moot question is whether the non-applicants can claim a right to continue as tenants in the premises or in any other capacity. For this purpose, it shall be necessary to refer to Section 2(j) of the Act, which reads as under:
"1[(j) "tenant" means any person by whom or on whose account rent is payable for a residential or non-residential building or rented land and includes a tenant continuing in possession after termination of the tenancy, a deserted wife of a tenant who has been or is entitled to be in occupation of the matrimonial home or tenanted premises of husband, a divorced wife of a tenant who has a decree of divorce in which the right of residence in the matrimonial home or tenanted premises has been incorporated as one of the conditions of the decree of divorce and in the event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily 10 Neutral Citation No. ( 2025:HHC:4178 ) residing with him or carrying on business in the premises at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and Explanation-II to this clause, but does not include a person placed in occupation of a building or rented land by its tenant, except with the written consent of the landlord, or a person to whom the collection of rent or fees in a public market, cart stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Corporation or a Municipal Council or a Nagar Panchayat or a Cantonment Board; Explanation-I.- The order of succession in the event of death of the person continuing in possession after the termination of his tenancy shall be as follows:--
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased persons as a member of his family upto the date of his death;
(c) thirdly, his parent(s), if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son, daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parent(s) of the deceased person or if such surviving spouse, son, daughter or parent(s), or any of them, did not ordinarily live in the premises 11 Neutral Citation No. ( 2025:HHC:4178 ) as a member of the family of the deceased person upto the date of his death:
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family upto the date of his death and was dependent on the deceased tenant:
Provided further that a right to tenancy shall not devolve upon a successor in case he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the urban area in relation to the premises let.
Explanation-II.- The right of every successor, referred to in Explanation-I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs; and.]"
17. As observed above, Shri Ghungar Ram was the original tenant and thereafter his tenancy was succeeded by his wife Smt. Kamla Sharma by virtue of Section 2(j) of the Act. The tenancy cannot be further inherited by her sons Shri Surinder Sharma and Shri Jitender Sharma albeit the fact that they have been impleaded as non-applicants to the present petition being legal representatives in view of the express bar as contained in Explanation-II of Section 2(j) of the Act.
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Neutral Citation No. ( 2025:HHC:4178 )
18. Thus, it is manifest that Shri Surinder Sharma and Shri Jitender Sharma, legal representatives of deceased-tenant Kamla Sharma, wife of original tenant, do not have legal status of tenants vis-a-vis tenanted premises and, therefore, have no right to continue with these proceedings.
19. Similar view has earlier been taken by a Bench of this Court (Hon'ble Mr. Justice V.K. Sharma) as his Lordship then was, in Civil Revision No. 147 of 2007 in case titled Gurdev Singh vs. Shri Khuswant Mallick and another, decided on 05.12.2011.
20. However, learned counsel for the non-applicants would claim that the view taken in Gurdev Singh's case (supra) is not the solitary view on the subject as another Bench of this Court (Hon'ble Mr. Justice Kuldip Chand Sood) as his Lordship then was, in Dr. Kuldeep Maria vs. Shanti Devi 2001 (1) RCR 145 has taken a completely different view and held that on the death of the tenant, it is the single tenancy which devolves upon the heirs and not the widow alone. Therefore, this case is required to be referred to a Larger Bench.
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21. I have thoroughly gone through the judgment in Dr. Kuldeep Maria's case (supra) wherein upon the death of the tenant John Masih, the landlord had moved an application under Order 22 Rule 4 of CPC for the substitution of tenant John Masih by his wife Shanti Devi, who was stated to be ordinarily residing in the demised premises at the time of his death. This application was resisted by Shanti Devi widow of deceased-John Masih on the ground that her husband John Masih was survived, apart from her, by his three sons; Sunil Kumar, Sudhir Kumar and Anil Kumar, who were ordinarily residing with their father in the demised premises at the time of death of John Masih and all of them had inherited the tenancy rights of said John Masih.
22. It was in this background that the Court while allowing the petition of the landlord held that on the death of the tenant John Masih, it is the single tenancy which devolved upon his wife and his three sons, who were found to be living with John Masih at the time of his death and were required to be impleaded as the said tenancy was joint and indivisible.
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23. The ratio laid down Dr. Kuldeep Maria's case (supra) is not at all attracted much less applicable to the facts of the instant case because admittedly it was Ghungar Ram, who was the original tenant and had died long before the eviction proceedings that were initiated against his wife Smt. Kamla Sharma, who had succeeded to the estate of Shri Ghungar Ram in accordance with Section 2(j) of the Act. Neither Smt. Kamla Sharma has raised objection of non-joinder of necessary parties i.e. non-joinder of the present non-applicants to the proceedings nor had she stated that these two non-applicants, in addition to herself, had been ordinarily residing with Shri Ghungar Ram during his lifetime and thereafter his widow Smt. Kamla Sharma. Rather, there is a specific admission in reply to para-4 of CMP No.13061 of 2021 that Shri Ghungar Ram was the tenant and after his demise, Smt. Kamla Sharma inherited the tenancy from her husband.
24. It is more than settled that an admission made in the pleadings by a party is admissible in evidence proprio vigore.
25. Equally settled is the proposition that facts admitted need not be proved. Reference in this regard can 15 Neutral Citation No. ( 2025:HHC:4178 ) conveniently be made to the judgment rendered by the Hon'ble Supreme Court in Sukhbiri Devi and others vs. Union of India and others AIR 2022 SC 5058, wherein it was held as under:
"16. In view of the legal position obtained from the decision in Nusli Neville Wadia v. Ivory Properties (2020) 6 SCC 557 the following decisions also assume relevance. In the decision in National Insurance Co. Ltd. Vs. Rattani (2009) 2 SCC 75 this Court held that an admission made in the pleadings by a party is admissible in evidence proprio vigore.
Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore (see the decisions in Ranganaya-kamma & Anr. Vs. K.S. Prakash (Dead) By LRs. & Ors.(2008) 15 SCC 673 and Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jadoo (2009) 5 SCC 713.
17. In the context of the usage of the expression "admitted facts" in paragraph 52 of the decision in Nusli Neville Wadia's case and the word 'admission' employed the National Insurance CO. Ltd. case a reference to Sections 17, 18 and 58 of the Indian Evidence Act would not be inappropriate. A conjoint reading of the said provision would reveal that 'statements' by a party to proceedings are admissions and facts admitted need not be proved." 16
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26. An admission by a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration. (See: Ahmed Saheb (dead) by L.Rs. and others vs. Sayed Ismail AIR 2012 SC 3320).
27. However, learned counsel for the non-applicants would still argue that the non-applicants had been ordinarily residing with Shri Ghungar Ram and Smt. Kamla Sharma, as is evident from the documents i.e. PAN Card, Aadhar Card, Voters I Card, Ration Card, Bonafide Himachali Certificate, Birth Certificate son of Shri Surinder Sharma which have been placed on record as Annexure PX.
28. This Court is not impressed by such arguments. Had the non-applicants been ordinarily residing with deceased Smt. Kamla Sharma and earlier to that with Shri Ghungar Ram, then such plea ought to have been taken at the initial stage, given the fact that majority of these documents have been prepared after the instant lis had commenced. Furthermore, just because some of these documents bear the current address would not by itself be an indication much less a circumstance to come to a conclusion that the non-applicants have been ordinarily 17 Neutral Citation No. ( 2025:HHC:4178 ) residing with Smt. Kamla Sharma and earlier to that with Shri Ghungar Ram. Moreover, some of the documents of the Annexure do not pertain to either of non-applicants Shri Surinder Sharma and Shri Jitender Sharma.
29. Consequently, the other questions as raised in the main revision petition, are not required to be decided and have rather become academic.
30. In view of the above discussions and conclusion that the original tenant Shri Ghungar Ram and thereafter tenant Smt. Kamla Sharma have died, therefore, the non- applicants, who are the so- called legal representatives of tenant Smt. Kamla Sharma, have no right to inherit the tenancy in view of the express bar as contained in Explanation II of Section 2(j) of the Act. The instant application succeeds and is accordingly allowed. Consequently, the proposed applicants, namely, Shri Surinder Sharma and Shri Jitender Sharma are directed to be evicted from the premises in question forthwith for which purpose the respondent-applicant may approach the Court of learned Rent Controller by filing execution petition.
31. Since, the application being CMP No.13061 of 2021 filed by the landlady-respondent for revision of use 18 Neutral Citation No. ( 2025:HHC:4178 ) and occupation charges has remained un-decided, it shall be open to the landlady to file an application with similar reliefs before the learned Rent Controller, who shall decide the same uninfluenced by what has been observed above. Civil Revision No. 116 of 2017.
32. In view of the above, the instant revision petition has been rendered infructuous and is disposed of as such. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge 3rd March, 2025.
(krt)