Himachal Pradesh High Court
Shri Rajesh Kumar vs Shri Raj Kumar Mehra And Others on 19 August, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 62 of 2019 .
Reserved on: 31.07.2019.
Decided on : 19.08.2019
Shri Rajesh Kumar ....Petitioner.
Versus
Shri Raj Kumar Mehra and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No For the petitioner : Mr. Ajay Kumar, Sr. Advocate with Ms. Rohini Karol, Advocate.
For the respondents : Mr. Bhupender Gupta, Sr. Advocate with Mr. Naresh Sharma, Advocate for respondents No. 1 and 2.
Ajay Mohan Goel, Judge By way of this petition, petitioner has prayed for setting aside order dated 11.04.2019, passed by the Court of learned Rent Controller, Shimla, in case No. 61-2 of 2017/12, titled as Sh. Raj Kumar Mehra and another versus Sh.
Surinder Mohan, vide which, an application filed by the present petitioner under Order 1, Rule 10 of the Code of Civil ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP Procedure, for being impleaded as a respondent in the rent petition, stands dismissed by the learned Court below.
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2. Brief facts necessary for adjudication of the present petition are as under:-
A rent petition filed by present respondents No. 1 and 2/landlord against present proforma respondents No. 3 is pending adjudication in the Court of learned Rent Controller, Shimla. A copy of the eviction petition filed under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the 'Act' for short) is appended with the present petition as Annexure A-4. A perusal of the same demonstrates that demised premises are non-residential, which are being used as Tailoring shop and the landlord has filed the eviction petition inter alia on the ground that premises were bonafidely required by the landlord for expansion of their present business and also on account of arrears of rent.
3. Eviction petition has been filed in the year 2012.
In these proceedings, an application was filed by the present petitioner under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP 'Code') for being impleaded as a respondent inter alia on the ground that the petitioner/applicant was one of the sons of .
the original tenant and despite the landlord knowing fully well that the applicant was one of the legal heirs of late Shri Trilok Chand and had inherited the tenancy rights, the landlord deliberately did not array him as party respondent in the eviction petition. It was mentioned in the application that the applicant had acquired vested right in the said shop upon inheritance as one of the joint tenants and there appeared to be a collusion between the landlord and the sole respondent.
On these grounds, it was pleaded that applicant was a necessary party in the eviction petition. It was mentioned in the application that the applicant came to know of the pendency of the aforesaid eviction petition recently when he in the absence of sole respondent searched the shop for some relevant papers of the business and came to know that aforesaid case was pending in the Court. Thereafter applicant enquired about the stage of the eviction petition but the sole respondent in the eviction petition did not come forward with true and accurate facts and gave evasive replies.
Thereafter the applicant made inquiries at his personal level ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP and found that the applicant was not arrayed as respondent in the aforesaid eviction petition. On these grounds, the .
applicant prayed for his impleadment as a party respondent in the eviction proceedings.
4. The application was resisted by the landlord who in the reply filed by them stated that they being the petitioners had the dominus litus and could not be compelled to fight against persons not arrayed as party. It was further mentioned in the reply that in case Court came to the conclusion that the petition was bad for non-joinder of necessary parties, then consequences would follow. It was further mentioned in the reply that though the applicant may be son of Trilok Chand, however, he had not inherited the tenancy as alleged. It was denied that impleaded respondent was exhibiting disinterest to defend the petition or that there was any collusion between the landlord and impleaded respondent/tenant. It was further mentioned in the reply that applicant was neither a necessary party nor any prejudice was going to be caused to him as interest of the impleaded respondent Surinder Mohan was not adverse to that of the applicant and in fact, Surinder Mohan had taken a specific ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP plea in his reply that the petition was bad for non-joinder of necessary parties. It was further mentioned in the reply that .
one such application filed by another legal representative of Trilok Chand stood dismissed by the Rent Controller as also by High Court of Himachal Pradesh. On these bases, plea taken in the application that the applicant was a necessary party was denied by the landlords.
5. Learned Rent Controller, Shimla, vide order dated 11.04.2019, has dismissed the application filed by the present petitioner. While dismissing the application, learned Rent Controller held that record demonstrated that earlier one Asha, who was the sister of the applicant as also of sole respondent impleaded in the eviction petition, had filed an application seeking her impleadment as party respondent, which application was dismissed vide order dated 02.07.2017 and revision preferred by her before High Court of Himachal Pradesh, against the rejection of her application, also stood dismissed. Learned Court held that record demonstrated that though the application was filed by the sister of the present applicant and respondent Surinder Mohan, however, Surinder Mohan appeared as her attorney and deposed on ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP her behalf. Learned Court observed that while dismissing the revision petition filed, this Court, i.e. High Court of Himachal .
Pradesh, held vide its judgment dated 27.12.2017 that impleadment of Asha was not necessary in view of settled law that heirs of original tenant succeeded to his tenancy on his death as joint tenants and the tenancy cannot be split and there was no division of premises or of rent payable and the service of Notice of proceedings on one of the tenants was sufficient Notice to all. Learned Rent Controller further held that the eviction petition was filed in the year 2012, whereas the application under Order 1, Rule 10 of the Code was filed on 28.04.2018 when the case file was received back from the High Court of Himachal Pradesh and in the interregnum the applicant had never put forth his claim of inheriting the tenancy alongwith other respondent. Learned Court held that applicant had failed to disclose as to at what point of time he came to know about the pendency of the eviction petition and had the applicant been carrying business in the demised premises after the death of Sh. Trilok Chand, he definitely would have been aware of the pendency of the proceedings and would have had approached the Court for impleading ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP him as party. Learned Court held that there was nothing mentioned in the application to suggest that the applicant .
was carrying on business in the demised premises alongwith arrayed sole respondent in the eviction petition, which revealed implied surrender of tenancy on his part. Learned Court held that there was no merit in the contention of the applicant that arrayed respondent was not exhibiting diligence in defending the case as record revealed that said respondent was hotly contesting the eviction petition. Learned Court further held that the application was filed by the applicant just to delay the matter rather than for any bonafide reason, and on these grounds, it dismissed the application.
6. Feeling aggrieved, the applicant has filed the present petition.
7. I have heard learned Counsel for the parties and gone through the impugned order as well as other documents appended with the petition.
8. It is a matter of record that the eviction petition was filed by the present respondents No. 1 and 2 against proforma respondent No. 3 in the year 2012. It is also a ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP matter of record that the application to implead him as party respondent was filed by the applicant before the learned Rent .
Controller on 28.4.2018, i.e. almost after six years of the filing of the eviction petition. A perusal of the application filed by the applicant under Order 1, Rule 10 of the Code demonstrates that no date or month has been mentioned in the same as to when the applicant became aware about the pendency of the eviction proceedings. All that is mentioned in para 7 of the same is that recently when the applicant, in the absence of arrayed sole respondent, was searching the shop for some relevant papers of the business, it is then that he came to know about the pendency of the case in the Court. In my considered view, these averments are as vague and as cryptic as they can be. A perusal of the application demonstrates that there is no mention in the same that applicant was carrying the business alongwith arrayed sole respondent in the demised premises after the demise of his father Shri Trilok Chand. A perusal of the affidavit which has been filed by the petitioner in support of an application in present proceedings demonstrates that he has simply ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP mentioned his occupation is business without disclosing as to what business is being carried out by him.
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9. It is settled law that heirs of original tenant succeeded to his tenancy on his death as joint tenants and the tenancy cannot be split as it devolves upon the heirs.
Service of Notice of proceedings to one of the tenants is sufficient Notice to all and this position of law was reiterated by Hon'ble Coordinate Bench of this Court while dismissing the revision petition filed by sister of the present applicant, who was also aggrieved by an order passed by the learned Rent Controller in these very eviction proceedings, wherein an application filed by her for being impleaded as a party respondent on the ground that she had inherited the tenancy from her father was rejected. Hon'ble Coordinate Bench in the said case, i.e. Asha versus Raj Kumar Mehra and others, (2018) 1 SLC 186, inter alia held as under:-
"24. That apart, the impleadment of the petitioner is not at all necessary because eventually if the eviction petition is found to be bad for want of non-joinder of necessary parties, the landlord would obviously bear the consequences.::: Downloaded on - 29/09/2019 02:15:58 :::HCHP
25. At this stage, learned senior counsel for the respondents/landlords has sought a direction to the .
learned Rent Controller to decide the eviction petition expeditiously by relying upon a recent judgment of the Hon'ble Supreme Court in Hameed Kunju v.
Nazim, 2017 8 SCC 611, wherein it has been categorically held that the object of the Rent laws is to ensure speedy disposal of eviction cases between the landlord and tenant and especially those cases where the landlord seek eviction for his bona fide need.
26. Obviously, there can be no quarrel with the aforesaid submission, but taking into consideration the fact that another petition inter se the same landlords and different tenants is already pending adjudication before a coordinate bench of this court, where the trial in the eviction petition has actually been ordered to be stayed, therefore, this Court is not in a position to accede to the request of the learned senior counsel.
27. For the forgoing discussion, I find no merit in this petition and rather find the application under ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP Order 1 Rule 10 CPC filed by the petitioner to have been filed with mala fide intention simply in order to .
delay the outcome of eviction proceeding that has been initiated by the respondent No.1 against the proforma respondent and consequently, dismiss the present revision petition with costs of Rs.10,000/-.
Pending application(s), if any, also stands
10. dismissed."
It is pertinent to mention at this stage that even otherwise because there is an objection taken with regard to the maintainability of the eviction petition by the impleaded respondent that the petition is bad for non-joinder of necessary parties, this issue will be looked into by the learned Rent Controller and in case the issue is decided against the landlord, then consequences will follow. Findings returned by learned Rent Controller that the application lacked bonafide and was filed with the intent of delaying the matter, are duly borne out from the fact that not only there is inordinate delay in filing the application, the same was conspicuously filed after similar application filed by the sister of the present petitioner was dismissed by the learned Rent Controller. As ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP far as the contention of the petitioner that learned Rent Controller has erred in not appreciating that there was .
collusion between the landlords and the brother of the petitioner, arrayed sole respondent in the eviction petition, is concerned, in my considered view, there is no merit in the same because not an iota of evidence has been placed on record by the petitioner to substantiate said bald assertion of his. Learned Rent Controller has rightly come to the conclusion that there was no question of any collusion between the landlords and impleaded respondent because the eviction proceedings were being hotly contested by the impleaded sole respondent. This is also duly borne out from the record In view of the findings returned hereinabove, as this Court does not finds any merit in the present petition, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of.
(Ajay Mohan Goel) Judge August19, 2019.
(narender) ::: Downloaded on - 29/09/2019 02:15:58 :::HCHP