Himachal Pradesh High Court
Asha vs Raj Kumar Mehra And Ors on 23 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 171 of 2015
Date of Decision: 23.5.2016.
.
______________________________ _____________________________
[
Asha .........Petitioner
Versus
Raj Kumar Mehra and Ors. ............Respondents
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
For the petitioner:
rt Mr. R.K. Bawa, Senior Advocate, with Mr.
Somender Chandel, Advocate for the
petitioner.
For the respondent: Mr. Naresh Sharma, Advocate, or
respondents No. 1 and 2.
________________________________________________________
Sandeep Sharma, J. (Oral).
The present civil revision petition filed under Section 24(5) of the HP Urban Rent Control Act, 1987, is directed against the order dated 20.8.2015 passed by the learned Rent Controller (8), Shimla, HP, whereby application filed by the present petitioner under Order 1, Rule 10 has been rejected.
2. Briefly stated facts necessary for the adjudication of the present case are that respondents No. 1 and 2 have filed Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -2-petition against the proforma respondent Shri Surinder Mohan on two following grounds i.e. .
"1.that the tenanted premises in question are required for expansion of business.
2. that the tenant is in arrear of rent."
3. Pleadings on record further suggest that aforesaid rent of petition has been preferred by respondents No. 1 and 2- (petitioners therein) in the court of Rent Controller Shimla. Further rt perusal of the material available on record suggests that late Shri Trilok Chand, Proprietor of M/s Bhagat & Sons was the original tenant in the demised premises and after his death tenancy was inherited by his son Shri Surinder Mohan, who is Proforma respondent. During the pendency of the aforesaid petition, present petitioner being legal representative of late Shri Trilok Chand, moved an application under Order 1 Rule 10 read with Section 151 CPC for impleadment as party respondent in the main petition. Application filed for impleadment as party respondent in the rent revision is annexed with the present petition. Petitioner in her application stated that late Shri Trilok Chand, was the original tenant of the demised premises and after his death i.e. in the year 2006, all the legal representatives of Shri ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -3- Trilok Chand and Shri Devi Chand at the time of death, were ordinarily doing business in the said premises and as such they all .
were required to be impleaded as party respondents in the rent petition filed by the respondents. Applicant claimed herself to be one of the LRs of late Shri Trilok Chand, as she has inherited the tenancy rights in the same. She contended in her application for of impleadment that other LRs of late Shri Trilok Chand and Devi Chand are also necessary party, without impleading them as rt party, no effective order can be passed in the present petition. It is submitted that since the tenancy of late Shri Devi Chand and Trilok Chand was commercial, after their demise, the tenancy rights have been devolved upon the legal representatives. It is also alleged that respondents No. 1 and 2 (petitioners therein) were well aware of the inheritance of tenancy by the legal representatives but intentionally, they did not implead them as a party respondent in the case. It is a specific case of the petitioner that after the death of her father, she has also inherited the tenancy rights as a tenant in the said shop in her own right and as such she is required to be impleaded as a party respondent in the present case. Without impleading her as party, no effective ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -4- orders, if any, can be passed or executed under the Rent Control Act. In Para-6 of the application, there is averment that applicant .
was not aware of the pendency of the eviction petition, which she only came to know recently when she visited her relatives in Shimla in the last week of June, 2015. Lastly, she prayed that in the interest of justice, she may also be impleaded as party of respondent being daughter of late Shri Trilok Chand, who was also original tenant in the demised premises. Respondents by way of rt reply refuted all the averments contained in the application.
Respondents disputed the claim of the applicant-petitioner that being daughter of Shri Trilok Chand, she has inherited the tenancy rights qua the shop in question along with other legal representatives and she is necessary party to the proceedings.
Respondents by way of reply refuted the claim of the applicant in toto. In reply it is also stated that application has been filed at the instance of the respondent namely Surinder Mohan-prorforma respondent, solely with a view to delay the proceedings.
Moreover, petitioner being the dominus-litis of the case cannot be compelled to litigate against the particular person(s) and it is his choice against whom he wants to institute proceedings, if any.
::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -5-Respondents have also stated that if it is assumed that there are other LRs of late Shri Trilok Chand, she was not required to be .
impleaded as necessary party to the petition. It is specifically denied that all the alleged LRs were ordinarily doing business in the premises at the time of his death. It is also denied that no one else including the petitioner-applicant except the present of respondents inherited the tenancy of the premises. Averment with regard to carrying on business along with Shri Trilok Chand in rt the premises at the time of the death later was also denied vehemently. Keeping in view the aforesaid pleadings on record, the learned Rent Controller, Shimla vide order dated 20.8.2015 held that petitioner-applicant is neither necessary nor proper party to the Rent petition in question and accordingly dismissed the application. Feeling aggrieved and dissatisfied with the impugned order, present petitioner filed this revision petition.
4. Mr. R.K. Bawa, learned Senior Counsel assisted by Mr. Somender Chandel, Advocate, vehemently argued that order passed by learned Rent Controller deserves to be quashed and set-aside since same is against law and facts of the case. He contended that learned Rent Controller while passing the ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -6- impugned order has not appreciated that premises in question are the commercial premises and after the demise of late Shri .
Trilok Chand and Devi Chand, tenancy rights have devolved upon their LRs including the present petitioner tenanted by late Shri Trilok Chand. During his arguments, he invited attention of this Court towards Para-13 of the impugned order.
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5. He forcefully argued that once it has been held by the learned Rent Controller that all the LRs of deceased Trilok Chand rt have right to inherit the estate tenancy rights qua the shop in dispute and after they have succeeded to his tenancy rights, they can be proceeded against the eviction in accordance with the provisions of rent Act, application filed for impleadment by the present petitioner could not be dismissed. Mr. Bawa, contended that vide para-13, it has been held by the learned trial Court that inheritance of tenancy rights qua non-residential/commercial premises under the Himachal Pradesh Urban Rent Control Act, 1987, is governed by the general law of succession, qua the shop in dispute and as such, there was no occasion to dismiss the application for impleadment moved on behalf of the present petitioner. Mr. Bawa submitted that as per provision of HP Urban ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -7- Rent Control Act, 1987 as stated on the said day, all the LRs of late Shri Trilok Chand and Devi Chand being the original tenant, have .
inherited the tenancy rights qua the non-residential commercial premises in question and as such they all being necessary party are required to be impleaded as respondents in the revision petition. He also disputed the finding returned by the learned of Rent Controller, wherein, it has been held that applicant is not carrying on the business in shop in question and she has not paid rt or is not paying any rent of the shop, as the same are not based upon the correct material available on record. Mr. Bawa forcefully contended that it is not understood that how the learned rent Controller concluded that the petitioner has surrendered her tenancy rights to the tenancy because at no point of time, tenancy rights of premises were surrendered by her.
It is also contended that learned Rent Controller failed to exercise jurisdiction so vested in it as much as dismissing the application of the petitioner seeking her impleadment as a party respondent.
6. Per contra, Shri Naresh Sharma, learned counsel appearing for respondents No. 1 and 2 supported the impugned order passed by the learned Rent Controller, Shimla. He ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -8- strenuously argued that present petitioner has filed application with malafide intentions solely with a view to delay the .
proceedings and as such same has been rightly rejected by the Rent Controller. He also contended that respondents are the dominus-litis of the case and as such they cannot be compelled to litigate against a person to whom they don't choose to litigate.
of Moreover, in the given facts and circumstances, she is not necessary party to the petition in question. It is also contended on rt behalf of the respondents that after the demise of late Shri Trilok Chand, there was no other tenant of the premises and none of the alleged LRs except the respondent Surender Mohan, was ordinarily doing business in the said premises. Since respondent namely Surender Mohan was carrying on business along with late Shri Trilok Chand in the premises at the time of his death, tenancy, if any, only devolved upon him and as such effective orders can be passed without impleading the LRs including the present petitioner-applicant. During the arguments, Mr. Naresh Sharma, appearing for the petitioner, invited the attention of this Court to the judgment passed in CMPMO No. 160 of 2015 decided on 5.6.2015 in Ramesh Chander Sehgal v. Rajesh Kumar and Ors., ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP -9- wherein, in similar circumstances, application filed by alleged LRs of original tenant was dismissed. Mr. Sharma forcefully contended .
that averments contained in the application filed by the petitioner deserve to be rejected outrightly solely for the reason that petitioner has not approached the Court with clean hands.
He also invited attention of this Court to the application filed by of the petitioner seeking her impleadment, wherein her affidavit accompanied with the application, she has been shown to be rt resident of Delhi, meaning thereby, she lives in Delhi and her version that she is carrying on business in shop in question being LR of deceased Trilok Chand cannot be accepted at all. He also invited attention of this Court to the reply filed by proforma respondent where he has supported the claim putforth by the petitioner. He forcefully contended that present application has been filed solely with a view to delay the proceedings to defeat the claim of the respondent. He also invited attention of this Court to the provision of Section 2(j) of the Rent Controller Act to point out that petitioner -applicant cannot be termed as a tenant at all in terms of definition of Section 2(j), which has been ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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amended with retrospective effect. Unamended and amended provision of Section 2(j) read as under:-
.
Un-amended provision of Section 2 (j) 2 (j) "tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after termination of the tenancy and in event of the death of such person of such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him at the time of him death, subject in the order of succession and rt 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 committee or a notified area committee or a cantonment board;
Explanation-I.- The order of succession in the event of the 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 person as a member of his family up to the date of his death;::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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(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 up to the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there no surviving spouse, of son, daughter or parent(s) of the deceased person, or if such surviving spouse, son, daughter or parent(s), rt or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death;
Explanation-II. The right of every successor, referred to in Explanation-1, 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;"
Amended provision of Section 2 (j):-
"2 (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, 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 ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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matrimonial home or tenanted premises has been incorporated as one of the conditions of the decree of divorce and in the even t of such person such of his heirs .
as are mentioned in Schedule-I to this Act and who were ordinarily 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 of 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 rt collection of rent or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed 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 the 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 person as a member of his family up to 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 ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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family of the deceased person up to the date of his death; and .
(d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there 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 as a member of the family of the deceased person of up to the date of his death;
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased rt 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 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;"
7. I have heard the parties and carefully gone though the record.::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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8. Before adverting to the merits of the case, it is noticed that vide para 13 of the judgment, learned courts below returned .
the following findings:-
"13. No doubt that it is the settled principle of law that the inheritance of the tenancy rights qua non-
residential/commercial premises under the HP Urban Rent Control Act, 1987 is governed by the general law of of succession and not by the provisions as contained in section 2(j) of the said Act. Thus all the legal heirs of the deceased Trilok Chand have a right to inherit the rt estate in respect of tenancy rights qua the shop in dispute and after they have succeeded to such tenancy rights, they can be proceeded against for the eviction only in accordance with the provisions of the rent Act."
9. It is ample clear from the reading of the para (supra) that learned trial Court has concluded that all the LRs of deceased Trilok Chand have a right to inherit the estate in respect of tenancy rights qua shop in dispute and further it has been held that they can be proceeded against eviction only in accordance with the provisions of the rent Act. Aforesaid finding returned by the learned trial Court is totally contradictory to the finding recorded in para-17 of the impugned order, whereby it ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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has been held that applicant is neither necessary nor proper party to rent petition in question and thereafter, dismissed the .
application.
10. At this stage without adverting to the merits of the case, it is observed that once court below came to the conclusion that all the LRs of deceased Trilok Chand have right to of inherit the estate and they can be proceeded against for eviction only in accordance with the provisions of rent Act, application rt could not be rejected by the courts below. In the present case, where the application has been decided by the learned Rent Controller merely on the basis of pleadings of both the parties and no opportunity, whatsoever, has been afforded to both the parties to substantiate their claim by way of leading evidence.
Perusal of the averments contained in the application as well as reply thereto suggests that there are/were disputed questions of facts as well as law, which are/were required to be ascertained/adjudged by the court below before passing any order by affording an opportunity to the parties to lead evidence in support of their respective claims. In the present case, applicant has prayed for impleadment on the ground that at the ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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time of death of Trilok Chand i.e. in the year, 2006, she along with other LRs was ordinarily doing business in the demised premises .
and as such, she being LR of deceased tenant was required to be impleaded as party respondent.
11. To the contrary, respondents in their reply stated that applicant is deemed to have surrendered her tenancy rights.
of Moreover, provisions of the Rent Controller Act, have been also amended, whereby definition of Tenant under Section 2(j) has rt undergone sea change. In the present case, deceased Trilok Chand expired in 2006, and petition has been filed in the year, 2012, and as such, learned court below before passing any order on the application for impleadment moved by the petitioner, was required to see the effect of amendment in Section 2 (j) of Act vis-
à-vis date of death of Trilok Chand, especially, in view of the stands taken by both the contesting parties in the application as well as in their reply.
12. As far as judgment rendered by this Court in CMPMO No. 160 of 2015 decided on 5.6.2015 in Ramesh Chander Sehgal v. Rajesh Kumar and Ors., is concerned, there is no quarrel with regard to the finding returned by the Hon'ble Court in that case, ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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where admittedly, petition has been rejected on the fact that petition in that case was filed solely with a view to delay the .
proceedings. Moreover, perusal of judgment supra, suggests that learned courts below had passed order after taking into consideration ample material available on record suggesting that sole purpose of filing the application was to delay the of application. In that case, it specifically emerged before the Court that the applicant who was seeking impleadment was fully rt aware of the pendency of the petition and application was moved at the time of final arguments in that case. Ratio laid down in that case is purposely not being discussed in the present case by the Court because this Court is of the view that matter requires to be remanded back to the learned trial Court for deciding afresh, taking into consideration material available on record. Needless to say that learned trial Court below would be guided by the principles laid down in the judgment (supra) while deciding application at hand.
13. This Court is of the view that in the peculiar facts and circumstance of the case, learned trial Court instead of deciding application summarily on the basis of pleadings available on ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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record, should have called for the evidence from both the parties to settle the issue for all times to come. Admittedly, in such like .
cases, there is always allegation that attempts are being made by one party to delay the proceedings and in such like situations, court below should have decided the issue for all times to come.
14. Accordingly, in the present case, keeping in view the of facts and circumstances of the case and in the interest of justice, the present case is remanded back to the learned court below to rt decide the application afresh within a period of one month in view of the observations made hereinabove. Needless to say that court below would afford an opportunity to both the parties to lead evidence to substantiate their claims with regard to the necessity/requirement, if any, to implead present applicant in the pending revision petition. Parties are directed to appear before the learned trial Court on 3rd June, 2016 when learned court below will give the date to the parties to lead evidence in support of their contentions as have been raised by way of application as well as reply thereto. To avoid delay in the proceedings, it is directed that learned trial Court would be granting one opportunity each to the respective parties to lead evidence in ::: Downloaded on - 15/04/2017 20:25:29 :::HCHP
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the matter so that matter is concluded within stipulated period of one month. The petition stands disposed of, so also pending .
applications, if any. However, it is clarified that this Court has not expressed any opinion with regard to the merits of the case and as such, any observation made in the order may not be construed as a finding returned by this Court. Court below is of expected to decide the application under Order 1 Rule 10 strictly in accordance with law without getting influenced with the rt observations, if any, made by this Court in this order.
23rd May, 2016 (Sandeep Sharma),
manjit Judge.
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