Himachal Pradesh High Court
Sarita Bhateja vs Barbara Chu & Others on 13 October, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Civil Revision No. 95/2011
.
Decided on: 13.10.2023
Sarita Bhateja ...Petitioner
Versus
Barbara Chu & others ....Respondents.
...........................................................................................
Coram
of
The Hon'ble Ms Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner:
rt Mr. Y.P. Sood, Advocate.
For respondents: Mr. Suneet Goel, Advocate.
Jyotsna Rewal Dua, J.
During pendency of the instant revision petition, the present petitioner has admittedly purchased all shares of the original land-lord(s) either by way of relinquishment deed or under the sale deed. These facts have been duly noticed in the orders passed in this petition. The present petitioner, therefore, has stepped into the shoes of original land-lord(s).
2. Facts 2(i). The petitioner/land-lord filed a rent petition on 25.03.1996 against the respondents with the averments that the premises in question were let out on rent to respondent No.1;
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 17/10/2023 20:41:14 :::CIS 2Respondent No.1 was in arrears of rent for the period 01.03.1982 to 31.12.1995; Respondent No.1 had sublet the entire premises under .
his occupation to respondents No.2 and 3 without written consent and knowledge of the petitioner.
2(ii) Respondents No.1 and 2 were proceeded against ex-
parte in the petition. Respondent No.3 contested the rent petition.
of After considering the pleadings of the parties, learned Rent Controller framed following Issues on 22.08.2001:-
rt "1. Whether the respondents are in arrears of rent if so, to what effect? ......OPP
2. Whether the respondent No.1 had sublet the entire premises to the respondent No.3 without the written consent of the petitioners, if so, its effect? ......OPP
3. Whether the petition is not maintainable? ......OPR
4. Whether the petition is bad for non-joinder of necessary parties, as alleged? ......OPR
5. Relief."
2(iii) On Issue No.2, learned Rent Controller held that it was respondent No.1, who was inducted as tenant by the land-lord in the premises in question and further that respondent No.1 had unauthorizedly sublet the premises to respondents No.2 and 3 in the year 1981 without any written consent & knowledge of the land-
lord. The suit premises were held to be in un-authorized possession of respondents No.2 and 3. The issue was decided in favour of the land-lord and against the respondents.
::: Downloaded on - 17/10/2023 20:41:14 :::CIS 32(iv) On Issue No.1, learned Rent Controller held that respondent No.1 was in arrears of rent from 01.03.1982 till the date .
of decision of rent petition @ Rs.198/- per month aggregating to Rs.63,756/-. Respondent No.1 was also held liable to pay interest thereon @ 9% per annum. Respondents No.2 and 3 were directed to handover vacant possession of the premises to the landlord.
of Operative portion of the order passed by the learned Rent Controller on 31.12.2008 reads as under:-
rt " 36. In view of my above discussion and findings, the petition succeeds and allowed with costs quantified at Rs. 2,000/- The eviction of the respondent is ordered on the ground that the respondent No. 1 is in arrears of rent from the period 1.3.1982 till date at the rate of Rs. 198/- per month aggregating to Rs.
63,756/- and is also liable to pay interest thereon at the rate of 9% per annum. Eviction is also ordered on the ground that the suit premises, i.e. Ground and First Floor of Building No 25, The Mall, Shimla has been sublet by the respondent No. 1 to respondents No. 2 & 3 during the year 1981 and ever since, the respondents No. 2 & 3 are in unauthorized possession thereof. Accordingly, the respondents are directed to hand over the vacant possession of the suit premises to the petitioner within a period of 30 days from today. If the respondent pays the aforesaid arrears of rent alongwith interest within a period of 30 days, the respondents shall not be evicted on the ground of arrears of rent."
2(v) Respondent No.3/Patrick Chu assailed the order passed by the learned Rent Controller before the learned Appellate Authority on 16.02.2009. Respondent No.3 (appellant therein) ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 4 reiterated his defence as taken by him before the learned Rent Controller that his father Mr. Chiu Hee Hwa was the tenant in the .
demised premises and on death of Mr. Chiu Hee Hwa, the tenancy rights of the premises in question had devolved upon him. Learned Appellate Authority framed following points in view of submissions made on behalf of Respondent No.3/appellant/Patrick Chu:-
of "1. Whether Chiu Hee Hwa was tenant of the demised premises and on his death, tenancy rights devolved upon the appellant?
2. rt Whether the plea of subletting was barred by limitation?
3. Whether the appeal is not maintaining at the instance of the appellant being sub-tenant?
4. Relief."
2(vi) On Point No.1, learned Appellate Authority concurred with the findings of the learned Rent Controller that tenancy was created by the landlord only in favour of original respondent No.1 i.e. Mr. Hugh You Sean. The contention of the original respondent No.3 that his father Mr. Chiu Hee Hwa was tenant in the demised premises was negatived after detailed discussion of the evidence led by the parties on the point. Some paragraphs relevant to this context from the judgment of the learned Appellate Authority are extracted hereinafter:-
"Point No.1.
13. The case of the appellant, as set-up in the reply to the petition, was that it was his father Chiu Hee Hwa who was inducted as tenant in the year 1944 and it was he who started business in the name and style of Hugh & Co. The case of the respondents No. 1 to 4 had been ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 5 that the tenant was respondent No.5 Hugh You Sean and he left India in the year 1981 and never returned.
14. The demised premises was being managed by M/s Hakam Mal Tani Mal, The Mall Road, Shimla and they had been collecting the rent .
of the demised premises. The evidence of PW-2 Rajeev Kuthiala, who was a partner of M/s Hakam Mal Tani Mal and joined business in the year 1966-67, showed that the demised premises were being managed by his firm and it was Hugh You Sean respondent No.5 who was tenant and it was he who had been paying rent to them and proclaiming that he was the sole owner of M/s Hugh & Co. This firm had received rent till 1980. No doubt, this witness feigned ignorance that in the year 1994 of Chiu Hee Hwa had taken the shop on rent and that he had started business in the name and style of Hugh & Co. but taking into account his entire statement, it made no difference. PW-3 Arvind Sood is next rt neighbour where demised premises is situated and he knew Hugh You Sean personally who was running shoes business. Per him, Hugh You Sean had two other floors with him on rent. The evidence of PW-1 Kewal Krishan Kuthiala showed that it was Hugh You Sean who was the tenant of the demised premises who left Shimla for Australia in the year 1981 and never returned. They never admitted and accepted the father of appellant as tenant. On the other hand, it is the bald statement of RW-1 Patrick Chiu that it was his father who was inducted as tenant in the year 1944 and started business in the name and style of M/s Hugh & Co. and that it was a partnership firm. He was adopted by Chiu Hee Hwa through Adoption Deed dated 24.02.1961. He remained at Delhi till 1990 and his father had left Shimla in the year 1962. He also admitted that Hugh You Sean left India in 1981 after dissolution of the firm. There is no evidence that his father was inducted as tenant in the demised premise in the year 1944 or he had paid the rent. The evidence of RW-1 proved that prior to 1980 M/s Hakam Mal Tani Mal were managing the demised premises and that they were receiving the rent and issuing receipts. He also admitted that a case for eviction wan filed against Hugh You Sean for vacation of residential portion and it was vacated.
15. Learned counsel Sh. Pawan Thakur contended that deed of Adoption Mark D1 is a registered document and the authenticity is available to it under Section 90 of the Evidence Act. Per him, it recited Chiu Hee Hwa adoptive father of the appellant has share in two firms M/s- D.Minsen Shoe Makers, F. Block Connaught Place, New Delhi and Ms. Hugh and Co, The Mall Shimla. This document did not show that ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 6 demised premises were in the tenancy of Chiu Hee Hwa. Having interest in the partnership firm is a different matter than the tenancy of the premises where such firm was being run. In my humble opinion, this did not prove the tenancy in favour of Chiu Hee Hwa. When PW-2 .
Rajeev Kuthiala was in the witness box, it was not shown that tenancy was created in favour of Chiu Hee Hwa and that he had been paying rent to M/s Hakam Mal Tani Mal in his individual capacity. The testimony of PW-2 Rajeev Kuthiala unambiguously showed that respondent No.5 was the tenant of the shop and other residential building and it was he who had shown that he was owner of M/s High & Co. PW-2 Rajeev Kuthiala had received rent from respondent in his of individual capacity and, therefore, it cannot be accepted that Chiu Hee Hwa was the tenant in the demised premises. The order of eviction suffered by Hugh You Sean is Ext.PX and residential portion was got rt vacated. RW-1 Patrick Chiu remained at Delhi till 1990 and he had deposed about a fact of creation of tenancy relating to the year 1944 when he had not born. In this factual background, it is not proved that the appellant or for the matter that his father was the tenant of the demised premises. The learned Rent Controller has rightly held that the tenancy was in favour of respondent No.5. This point is decided in the negative."
2(vii) After holding that neither original respondent No.3 nor his father were ever inducted as tenant of the premises in question by the land-lord and that respondent No.3 was only a sub-tenant, un-authorisedly brought in the premises by the original tenant Mr. Hugh You Sean, learned Appellate Authority while adjudicating Point No.2, however, went on to hold that the plea of sub-letting could be enforced only within a period of 12 years and that after 12 years such plea would be barred by limitation. To arrive at this conclusion, learned Appellate Authority placed reliance upon 2010 (2) Himachal Law Reporter 1091 ( Kesar Singh Vs. Pushap Lata ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 7 & Ors.). It will be appropriate to extract paragraph No.16 from the impugned judgment passed by the learned Appellate Authority in .
this regard:-
"POINT NO.2
16. Learned counsel Sh. Pawan Thakur contended that the plea of subletting can be enforced within a period of 12 years and after 12 years it is not available, and such a plea is barred by limitation. He relied on Kesar Singh vs. Smt. Pushap Lata & Ors.2010 (2) Him.
of L.R.1091. On the other hand, learned counsel Sh. V.K.Sood urged that there is no limitation prescribed under H.P. Urban Rent Control Act and the general provisions of Limitation Act, 1963 are not applicable. Further, according to him, the cause of action for subletting is a rt continuing one. He relied on Anupam Chakravorty vs. Sixth Additional District Judge, Varansi 1999 (2) RCR 582, Mohammed Sageer vs. Prakash Thomas 2005 (2) RCR 158, Sadanandan Vs. Pradeepan 2001 (2) RCR 272 and Charaka Mathu vs. Gramodyog Sahakar Sangh vs. Shantha Bai 1995 (2) RCR 179. I have gone through these rulings. The matter is concluded by the ruling of the Hon'ble High Court of Himachal Pradesh which is binding on this Appellate Authority. In it, it was directly held that for seeking eviction on the ground of subletting, limitation is prescribed under the Limitation Act, 1963 and a period of 12 years is prescribed therein. No doubt, the authority cited by the learned counsel for the respondents No. 1 to 4 hold that the cause of action for subletting is continuous one and limitation did not apply, but the controversy has been settled by the Hon'ble High Court of H.P. in 2010 (2) Him. L.R 1091. Therefore, I am of the humble opinion that in this case subletting was complete in the year 1981 when respondent No.5 left India for Australia and thereafter did not return and appellant and respondent No.6 were found in exclusive possession of the demised premises and certainly it was subletting. As such, this point is decided in the affirmative."
The above demonstrates that the Appellate Authority though concluded that the appellant (respondent No.3) was proved to be an un-authorized sub-tenant of the premises, yet his appeal was partly allowed on the ground that the plea of subletting taken & ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 8 proved by the landlord was barred by limitation. The operative part of the judgment partly allowing the appeal reads as under:-
.
"20. As a result of findings aforesaid, the appeal succeeds and it is partly accepted. The petition seeking eviction on the ground of subletting is held to be barred by limitation and, as such, to that extent appeal is accepted. The order passed by the learned Rent Controller (1), Shimla ordering eviction on the ground of subletting is set aside, whereas other part is maintained. No of orders as to costs. A memo of costs be prepared. File be consigned to Records. A copy of this order alongwith records be returned.".
3. Aggrieved against partly allowing of appeal filed by rt respondent No.3, the landlord has preferred the instant revision petition.
4. Submissions 4(i) During the course of hearing, learned counsel for the petitioner submitted that the judgment relied upon by the learned Appellate Authority i.e. 2010 (2) Himachal Law Report 1091 ( Kesar Singh Vs. Pushap Lata & Ors.) for holding that plea of subletting could not be enforced by the landlord beyond the period of 12 years, has been set aside by the Hon'ble Apex Court in 2012 (5) SCC 602 (Kesar Singh Vs. Pushap Lata & Ors.). Learned counsel for the landlord submitted that in view of decision rendered by the Hon'ble Supreme Court in Kesar Singh's case (supra), this revision petition deserves to be allowed and the judgment passed by the learned Appellate Authority is required to be set aside to the ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 9 extent that it held the plea taken by the landlord about subletting of the premises, to be barred by limitation.
.
4(ii) Learned counsel appearing for respondents No. 1 (a) to 1(d) legal representative of Mr. Patrick Chu contended that in light of the judgment passed by the Hon'ble Apex Court in Kesar Singh's case (supra), the matter is required to be remanded to the of learned Appellate Authority for a fresh decision as;- Under the impugned order, Mr. Patrick Chu's appeal was partly accepted;
rt Landlord's petition seeking eviction on ground of subletting was held to be barred by limitation and for that reason eviction order passed by the learned Rent Controller on ground of subletting was set aside.
5. Observations I have heard learned counsel on both sides and considered the case record.
5(i) It is not in dispute that learned Rent Controller had allowed the rent petition preferred by the landlord on two counts:-
First that it was original-respondent No.1- Mr. Hugh You Sean, who was inducted as tenant by the landlord in the premises in question and not the other respondents including the father of Mr. Patrick Chu; That original-respondents No.2 and 3 including Mr. Patrick Chu were sub-tenants inducted by respondent No.1 in the premises in question in the year 1981 without the consent or knowledge of ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 10 the landlord; That respondents No.2 and 3 were in unauthorized possession of premises in question. Second that original tenant-
.
respondent No.1 was in arrears of rent from 01.03.1982 till the date of pronouncement of the judgment by the learned Rent Controller i.e. 31.12.2008 @ Rs.198 per month.
5(ii) It is not in dispute that original-respondents No.1 and 2 of had accepted the verdict given by the learned Rent Controller. It was only original/respondent No.3-Mr. Patrick Chu, who had rt preferred an appeal against the order of learned Rent Controller. In the appeal filed by him, learned Appellate Authority categorically held (as extracted earlier) that there was no error in the factual findings returned by the learned Rent Controller about creation of original tenancy by the landlord only in favour of Mr. Hugh You Sean; That Mr. Patrick Chu was in unauthorized occupation of the premises;
That he was a sub-tenant inducted by Mr. Hugh You Sean in the year 1981 without any consent or knowledge of the landlord.
5(iii) Learned Appellate Authority partly allowed the appeal preferred by Mr. Patrick Chu only for the given reason that plea of subletting though proved in the case but could not be taken by the landlord being barred by limitation. To arrive at this decision, learned Appellate Authority relied upon 2010 (2) Himachal Law Report 1091 (Kesar Singh Vs. Pushap Lata & Ors.), which held that plea of subletting could not be taken after 12 years. Despite ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 11 the factual findings concurrently returned by the two Courts that Mr. Patrick Chu was an un-authorized sub-tenant in the premises, the .
plea of eviction on ground of subletting was held to be barred by limitation by the learned Appellate Authority as Mr. Patrick Chu came in possession of the premises in the year 1981, whereas the rent petition was filed on 25.03.1996.
of 5(iv) The appeal preferred by Mr. Patrick Chu was allowed by the learned Appellate Authority but only partly. As noticed above, rt the factual findings returned by the learned Rent Controller were not reversed. The plea about Patrick Chu being unauthorized sub-
tenant over the premises inducted by original tenant, taken & proved by the landlord was held to be barred by limitation. It was only for this reason that the order passed by the learned Rent Controller ordering respondents No.2 & 3 to handover vacant possession of the premises to the landlord on the ground of subletting, was set aside while maintaining the other parts of the order passed by the learned Rent Controller.
The judgment passed by this Court in Kesar Singh's case, which is the foundation for arriving at the above conclusion and consequently in partly allowing the appeal, has been turned over by the Hon'ble Apex Court in 2012 (5) SCC 602 (Kesar Singh Vs. Pushap Lata & Ors.). It has been held by the Hon'ble Supreme Court that Article 66, 67 and 113 of the Limitation Act are not ::: Downloaded on - 17/10/2023 20:41:14 :::CIS 12 applicable to rent proceedings in the State of Himachal Pradesh.
Relevant para from the judgment is extracted hereinafter:-
.
"6. In the facts and circumstances of this case, we are of the considered view that the High Court committed an error in affirming the order of the appellate authority and setting aside the judgment and order passed by the trial Court as Articles 66, 67 and 113 of the Limitation Act are not applicable to rent proceedings in the State of Himachal Pradesh. The impugned judgment passed by the High Court is, therefore, contrary to law and facts and as such liable to be set aside."
of In view of above legal position settled by the Hon'ble Apex Court and the concurrent factual findings recorded by both the rt learned Courts below regarding Patrick Chu being an un-authorized sub-tenant in the premises, which have attained finality, nothing remains to be decided by the Appellate Authority. All issues between the parties stand adjudicated by both the learned Courts below. Hence, the submission made by learned counsel for the legal heirs of Mr. Patrick Chu for remanding the case to learned Appellate Authority for decision afresh is rejected. There is no cross appeal or cross objection preferred by the respondents. There is no challenge whatsoever against the factual findings concurrently returned by the two learned Courts below about Patrick Chu being an un-authorized sub-tenant in possession of the premises to whom the premises were un-authorizedly sublet by the original tenant. No point in this regard was even urged for the respondents.
::: Downloaded on - 17/10/2023 20:41:14 :::CIS 13In view of above discussion, this revision petition has to be allowed. It is accordingly allowed. The findings of the learned .
Appellate Authority on Point No.2 in its judgment dated 21.03.2011 are reversed and set aside. The impugned order passed by learned Appellate Authority on 21.03.2011 to the extent it partly allowed the appeal on ground of plea of subletting being barred by limitation, is of set aside. It is held that plea of subletting taken & proved on record by the landlord was not barred by limitation. In view of this, the rent rt petition preferred by the petitioner (landlord) is allowed. The order dated 31.12.2008 passed by the learned Rent Controller ordering eviction of the respondents on the ground of subletting, is restored.
Pending miscellaneous application(s), if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 13th October 2023 (rohit) ::: Downloaded on - 17/10/2023 20:41:14 :::CIS