Himachal Pradesh High Court
Years) Son Of Shri Satya vs Neeraj Kumar" on 24 December, 2021
Author: Satyen Vaidya
Bench: Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 24th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL REVISION NO. 159 OF 2019.
Between:-
SHRI VINOD KUMAR (AGED 59
YEARS) SON OF SHRI SATYA
PRAKASH KAMNA DEVI TEMPLE,
PROSPECT HILL, BOILEAUGANJ,
SHIMLA-171005.
....PETITIONER.
(BY MR. BHUPINDER GUPTA. SENIOR
ADVOCATE WITH MR. JANESH GUPTA,
ADVOCATE)
AND
1. SMT. BHAGWATI, WIDOW
2. SHRI NAVNEET KUMAR, SON
OF SHRI ASHOK KUMAR, SHOP No. 17-A,
BOILEAUGANJ, SHIMLA-171005(HP).
....RESPONDENTS.
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...2...
(MR. AJAY KUMAR, SENIOR
ADVOCATE WITH Mr. ROHIT,
.
ADVOCATE)
RESERVED ON: 17TH DECEMBER, 2021.
DECIDED ON: 24th DECEMBER, 2021.
This petition coming on for orders this day, the
Court passed the following:-
ORDER
By way of instant petition, challenge has been laid to the order dated 25.09.2019 passed by the learned Appellate Authority-II, Shimla in Rent Appeal No. 25- S/13(b) of 2018. The impugned order has primarily been assailed on the ground that the same is without jurisdiction. As per petitioner, the learned Appellate Authority-II, Shimla had no jurisdiction to remand the matter to the learned Rent Controller under Section 24 of the H.P. Urban Rent Control Act, 1987 (for short " the Act").
2. The order of eviction was passed in favour of petitioner/landlord and against respondents/tenants by ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...3...
the learned Rent Controller, Court No.II, Shimla, H.P. on .
23.08.2018 in Rent Petition No.122-2 of 2015/2013. The eviction of respondents/tenants was ordered from the non residential premises on the ground that petitioner/landlord bonafide required the premises for his own use and occupation. This order of eviction was challenged before the learned Appellate Authority-II, Shimla by respondents/tenants by filing an appeal under Section 24 of the Act. During the pendency of the appeal before the learned Appellate Authority-II, Shimla, respondents/tenants preferred an application under Order 41, Rule 27 of the Code of Civil Procedure (for short "CPC") for leading additional evidence by placing and proving on record a certified copy of relinquishment deed dated 9.2.2012 and also a copy of eviction petition, tilted as "Raj Rani versus Neeraj Kumar".
3. Learned Appellate Authority-II, Shimla, vide impugned order allowed the application of respondents/tenants under Order 41, Rule 27 of the CPC ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...4...
and also the appeal preferred by them on merits by order .
impugned in the instant petition. The operation portion of the impugned order reads as under:-
"30. As a sequel of my findings on point nos. 1 and 2 above, the appeal as well as the application are allowed. Consequently, the order passed by the learned court below is set-aside and the case is remanded back to the learned Rent Controller below by giving opportunity to both the parties for leading evidence and proving both the documents and thereafter, hearing the parties and decide it afresh.
The parties are directed to appear before the learned court below on 30.10.2019.
31. The record of court below be sent down forthwith along with an authenticated copy of this judgment and the record this Court be consigned to the record room."
4. I have heard learned counsel appearing for the parties and have also perused the records.
5. The Appellate Authority under the Act derives its jurisdiction to hear appeals arising from the specified orders of Rent Controller, by virtue of Section 24 thereof.
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Sub-section (3) of Section 24 prescribes the jurisdiction of .
Appellate Authority as under:-
"24(3). The appellate authority shall decide the appeal after sending for the records of the case from the 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 the Controller."
6. The above noticed provisions vests the Appellate Authority with jurisdiction, while deciding the appeal under the Act, to make such further inquiry as it thinks fit either personally or through the Controller, if necessary. Thus, it is only in case where the Appellate Authority comes to the conclusion that further inquiry is necessary it can delve into such inquiry itself or ask the Rent Controller to make such inquiry. The further inquiry so contemplated is only to facilitate the adjudication of the appeal and not for any other purpose.
7. Once the Appellate Authority-II, Shimla had found it necessary to have further inquiry by way of ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...6...
allowing the application for additional evidence of .
respondents/tenants, it was necessary to hold such inquiry in the first instance and to decide the appeal on merits thereafter. Needless to say, the allowance of additional evidence, in the shape of documents, as cited in the instant case, would require such documents to be proved in accordance with law and thereafter the appreciation and applicability of such additional evidence to the merits of case. The Appellate Authority-II, Shimla could abdicate only procedural part of holding inquiry to the Rent Controller and not the re-appreciation of the merits of the case. The learned Appellate Authority has clearly erred in law by deciding the appeal on merits alongwith application under Order 41 Rule 27 CPC and such conduct of the Appellate Authority is definitely beyond its jurisdiction vested under Section 24 of the Act.
8. The proposition of law, as noticed above, has been the subject matter of adjudication before this Court earlier occasions also. The consistent view of this Court, ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...7...
after interpreting Section 24 of the Act or its parameteria .
provisions in 1971 Act has been that the Appellate Authority under the Act has no power to remand the case to the Rent Controller while hearing an appeal under Section 24 of the Act. It only can hold further inquiry either itself or through the Rent Controller which does not mean that the re-appreciation on merits of the matter can again be referred to the learned Rent Controller.
Reference in this regard can be made to Smt. Surinder Kaur versus Mohinder Bahadur Singh, 1977 S.L.C. 108, wherein the exposition of law has been made as under:-
"3. The petitioner "contends that the Appellate Authority acted in excess of its jurisdiction in setting aside the order of the Controller in the circumstances and remanding the case to him for fresh decision. Sec tion 21 (3) of the Himachal Pradesh Urban Rent Control Act, 1971 provides:
"The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...8...
necessary, after making such further inquiry as it thinks fit .
either personally or through the Controller."
It is apparent that in those cases where the Appellate Authority is of opinion that in order to decide the appeal a further enquiry is necessary it has been empowered to make that enquiry itself or to make it through the Controller. The expression through the Controller' clearly contemplates that when the Controller makes the enquiry he does so on behalf of the Appellate Authority. In other words, the Controller makes the enquiry and forwards the findings reached by him to the Appellate Authority. He does so not for the purpose of disposing of a petition pending before him but for the purpose of enabling the Appellate Authority to dispose of the appeal pending before the latter. It is clear from the terms of sec tion 21 (3) of the Act that the enquiry envisaged by that provision is intended in order to enable the Appellate Authority to decide the appeal. It is manifest that the provision does not contemplate that the appeal should be allowed and the case remanded to the Controller for making an enquiry and disposing of the petition afresh. No such power to remand the cas has been conferred by section 21 (3) on the Appellate Authority. I am fortified in the view ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...9...
taken by me by the decisions of the Punjab High Coun in .
Shri Krishan Lal Seth v. Shrimati Pritam Kumar, 1961 PLR 865 and Rajinder Kumar v. Basheshar Nath, 1965 PLR 974.
I am of opinion that the order of the Appellate Authority is in excess of his jurisdiction and is vitiated accordingly."
9. Again in Braham Dass and others vs. Satya Wati and others, 1997(1) S.L.J. 484, the reiteration of the similar exposition has been made as under:-
"4. It is clear from the above provisions that the Appellate Authority constituted under the Act has no power to remand a case to the Rent Controller. All that it can do is that if deemed necessary, it can decide the appeal after making such further inquiry as it thinks fit either personally or through the Controller. By no stretch of imagination can it be said that this power includes the power to remand the case to the Rent Controller."
10. In Madan Mohan vs. Pushpa Devi, 2017(1) Shim. LC 133, while dealing with the same proposition, it was held as under:-
"16. Submission of learned Advocate appear on behalf of non revisionist that learned Appellate Authority under Section 24(3) of H.P. urban Rent Control Act 1987 is ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...10...
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 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."
11. In view of the above discussion, the revision petition is allowed, and the impugned order dated 25.09.2019 passed by the learned Appellate Authority -II, Shimla in Rent Appeal No.24-S/13(b) of 2018 is set aside.
Learned Appellate Authority-II, Shimla is directed to decide the matter afresh in view of the exposition of law ::: Downloaded on - 31/01/2022 23:29:27 :::CIS ...11...
discussed and observations made hereinabove. No order .
as to the costs. All pending applications also stand disposed of. Records be sent back to the quarter concerned.
(Satyen Vaidya) Judge 24th December, 2021.
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