Himachal Pradesh High Court
Unknown vs Rt on 1 June, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
Civil Revision No. 154 of 2004 alongwith
CMPMO No. 121 of 2012.
Judgment Reserved on : 2.3.2016
Date of Decision : June 1 , 2016
1. Civil Revision No. 154 of 2004
of
Sh. Yog Raj Sood ... Petitioner/Landlord
Versus
rt
Smt. Sunita Kaushal & another ... Respondents/tenants
2. CMPMO No. 121 of 2012
Sh. Yog Raj Sood ... Petitioner/Landlord/DH
Versus
Smt. Sunita Kaushal & another ... Respondents/tenants/JDs
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? Yes. 1
For the petitioner : Mr. R. L. Sood, Senior Advocate with Mr. Arjun
Lall, Advocate, for the petitioner(s).
For the respondent : Mr. Ajay Kumar, Senior Advocate, with Mr. Dheeraj
K. Vashista, Advocate, for the respondents.
Sanjay Karol, J.
In this petition filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 2referred to as the "Act"), following questions arise for consideration: (i) As to whether application filed before this .
Court (under Order 41 Rule 27 CPC), seeking permission to lead additional evidence is bonafide and is necessarily to be allowed for determining the controversy in issue? (ii) Whether Cross Objections filed by the respondent-tenant of under Order 41 Rule 22 CPC are maintainable or not? (iii) What is the scope of interference by this Court in a revision rt petition filed under Section 24(5) of the Act? (iv) Whether, while examining the correctness, legality or propriety of the orders passed by the Authorities below, this Court can grant relief to the respondent-tenant? (v) Whether the findings, concurrent in nature, so returned by the Authorities below are perverse or illegal, warranting interference by this Court? and (vi) Whether in the absence of any interim order, staying the operation of the order sought to be executed, it was open for the Rent Controller to have dismissed the execution petition only on account of pendency of the petition before this Court?
2. Vide agreement dated 27.3.1992 (Ext. PW-2/A), petitioner Yog Raj Sood rented out the tenanted premises ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 3 comprising of one shop, situate in Ward No. 6, Municipal Council House No. 167, Kotwali Bazar, Dharamshala on a .
monthly rental of `1000/- (rupees one thousand) to Smt.Sunita Kaushal (respondent No.1) wife of Shiv Kumar Kaushal (respondent No. 2). Subsequently the rent came to be enhanced to `1200/- (rupees one thousand & two of hundred) per month. On 9.10.2001, landlord preferred a petition under the provisions of Section 14 of the Act. As per rt the claim set out in the petition, w.e.f. 1.4.2000 the tenant was in arrears of rent. Also, though initially the shop was let out for the purpose of running a business of carpets, but however, w.e.f. 26.6.2000, the tenant started running a restaurant under the name and style of "Taste Point". Such change not only damaged but also diminished the value and utility of the tenanted premises, apart from being a cause of nuisance to the occupiers of the building in the neighbourhood and the landlord who resides alongwith his family on the first floor.
3. The tenant responded by denying the averments, further clarifying that in any event, the business of restaurant stood closed.
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 44. On the strength of the pleadings of the parties, the Rent Controller framed the following issues:
.
1. Whether the respondent No. 1 is in arrears of rent from 1.4.2K, as alleged? OPP
2. Whether the respondent No. 1 with the help of respondent No. 2 without the consent of petitioner changed the business in the premises of in dispute by running restaurant instead of original business of carpet, as alleged? OPP
3.rt Whether the respondents have materially impaired the value and utility of the premises in dispute, as alleged? OPP
4. Whether the premises in dispute requires renovation which cannot be carried out without the building vacated, as alleged? OPP
5. Whether the petition of the petitioner is not maintainable in the present for, as alleged? OPR
6. Whether the shop in dispute is required for bonafide reason by the petitioner for the establishment of his own business? OPP
7. Relief.
5. The issues came to be answered by the Rent Controller in terms of order dated 20.12.2002, passed in Rent Petition No. 3 of 2001, titled as Yog Raj vs. Sunita Kaushal & another, holding (i) the tenant to be in arrears of rent @ `1200/- per month w.e.f. 1.7.2000 and not 1.4.2000 ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 5 [Ground of ejectment under Section 14 (2) (i)]; (ii) Even though the purpose of tenancy was running a business of .
carpets, but however, without the consent of the landlord, it came to be changed with a restaurant being run therefrom [Ground of ejectment under Section 14(2) (ii) (b)]; and (iii) there was no material impairment in the value and utility of of the premises [Ground of ejectment under Section 14(2)(iii)].
Accordingly issues No. 1 (partly) and 2 came to be rt decided in favour and issues No. 3, 4 and 6 against the landlord. Thus on first two grounds petition came to be allowed.
6. Such findings, on a limited ground, came to be assailed by the tenant by way of an appeal filed under the provisions of Section 24 of the Act. However, no challenge was laid to the findings on the arrears of rent. On the question of change of user, the Appellate Authority could not persuade itself to agree with the findings arrived at by the Rent Controller and as such, on a limited ground, allowed the appeal in terms of order dated 25.6.2004 passed in Rent Appeal No. 7-D/2003, titled as Sunita Kaushal & another vs. Yog Raj.
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 67. The landlord preferred the present Revision Petition filed under the provisions of Section 24(5) of the Act .
and this Court on 26.4.2005, by framing the following additional issue, on a limited point, remanded the matter to the Rent Controller for decision thereupon:
Issue No. 3(a):
of "Whether the respondents are guilty of such acts and conduct as are a nuisance to the occupiers of the building in the neighbourhood including rt the petitioner and his family members, as alleged?"
8. This additional issue came to be decided by the Rent Controller in terms of order dated 5.8.2006. Since the controversy primarily revolves around the same, for proper appreciation, relevant portion thereof is extracted:
"23. Hence, as per Order 14(2) it is stipulated that in case the tenant has been guilty of such acts and conduct as are nuisance of the occupiers of buildings in the neighbourhood, he is liable for eviction. This principle is based on 'maxim six utere tue ut alienum non laedas' meaning that you use your property as not to injure others. In the present case the petitioner has alleged that private nuisance has been caused to him. Private nuisance includes ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 7 obstruction to light and air, wrongful escape of deleterious substances, such as smoke, smell .
fumes, gas, noise, water, heat etc.
24. In order to prove the nuisance the petitioner got examined himself as PW-3 and has specifically stated that the respondent is running a restaurant under the name and style of 'Taste of Point". He has stated that he resides on the upper storey and has only one window which opens towards the front. He has stated that the rt respondent uses L.P.G. Gas and Stove in the restaurant as a result of which smoke enters into his house from the front window and, therefore, he cannot reside comfortable. He has stated that the respondent keeps dustbins on the stairs which go to his resident which also creates problem. It is also perused that the petitioner is an old age man of 63 years.
25. Further, the petitioner has examined PW5 Sansar Chand who has proved his report Ex. PW5/C dated 27.10.2000 which he had prepared in the capacity of an inspector. On perusal of his report it is found that he after visiting the shop on 27.10.2000 had reported that the restaurant violated the bye laws, as it had no licence under PFA. He has stated in para No. 2 that the restaurant omitted abnoxious smell. Further in his report he has stated that there was one ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 8 window on the upper storey and when it was opened gusts of smoke entered into it causing .
more pollution and un-hygienic situation for residing. The petitioner, in the present case, had examined PW4 Jitender Kumar Sanitary Inspector who had brought the original record o the Municipal Committee. Further, in the present of case, the petitioner examined PW6 who too has corroborated the version of the petitioner. The petitioner has also examined PW8 who is the rt relative of the petitioner and who had come to stay in the house of the petitioner. He has stated in his examination-in-chief that he could not stay in the house of the petitioner due to the smoke coming from the restaurant below.
26. On the other hand, the defence of the respondent is solely to the effect that he has closed his restaurant long time back and is now running the shop of carpeting and furnishing. The respondent has also cross examined PW3 i.e. the petitioner on the ground that the shop is now being run for carpeting and furnishing. Interestingly, in the present case the respondent has not stepped into the witness box and it as the husband of the respondent who got himself examined as RW3. In his testimony he has stated that he used to run the restaurant from July 2000 to March 2001. Hence, his defence is on the ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 9 ground that no restaurant is being run. Further, the respondent examined RW1 Anuj Thapa who .
has stated that he is a manufacturer of noodles and used to supply noodles to the respondent 7 - 8 months. Upon his cross-examination, this witness has admitted that the respondent used L.P.G. Gas and Stove."
[Emphasis supplied] of
9. Appeal preferred by the tenant, assailing the rt aforesaid findings, came to be dismissed by the Appellate Authority in terms of order dated 29.3.2007 passed by Appellate Authority-III, Kangra District at Dharamshala in Additional Rent Appeal No. 26-D/XIV/06 (Rent Appeal No. 7- D/2003) titled as Sunita Kaushal & another vs. Yog Raj.
10. Record reveals that instead of independently assailing the same, in the instant Revision Petition, on 17.5.2007, tenant filed objections under Order 41 Rule 26 CPC (CMP No. 327 of 2007).
11. On 16.10.2014, the tenant also preferred an application (CMP No. 16411 of 2014 in Civil Revision No. 154 of 2004) under Order 41 Rule 27 CPC, seeking permission to lead additional evidence for establishing that the landlord (i) had agreed to withdraw all cases in view of a ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 10 compromise which took place sometime in the month of April, 2001 and (ii) that the business of furnishing & flooring .
stood re-established w.e.f. January, 2002.
12. Subsequently the landlord sought execution of the order dated 29.3.2007, and such application came to be dismissed by the Rent Controller, Dharamshala, H.P. in of terms of his order dated 16.3.2012 passed in Execution Petition No. 17/2010, titled as Yog Raj vs. Sunita Kaushal & rt another, holding that since the matter was sub judice before this Court and despite there being no stay of the operation of orders dated 5.08.2006 and 29.3.2007 by this Court, the execution petition was not maintainable.
13. Such order independently stands assailed by the landlord by way of CMPMO No. 121 of 2012 and is connected with the present petition, hence considered and disposed of together.
14. Firstly the application for leading additional evidence needs to be considered. This relates to Question No. (i).
15. As already observed, in terms of this application (CMP No. 16411 of 2014, dated 16.10.2014), tenant wants ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 11 to establish two facts which relate back to the year 2000 -
2001. Prior to the filing of the present application, tenant .
never led any evidence and this, despite having adequate opportunities of doing so before the Rent Controller, the Appellate Authority or this Court. The plea sought to be taken by the tenant of the matter having been of compromised between the parties appears only to be false and an after thought, and not based on any material.
rt Conduct of the parties is reflective of such fact. Also from the time of filing of the reply and passing of the order of eviction, tenant never thought of leading the evidence on the other plea, which undoubtedly was to her knowledge.
16. The apex Court, after considering the principles laid down in its earlier decisions K. Venkataramiah vs. A. Seetharama Reddy, AIR 1963 SC 1526; Municipal Corpn. of Greater Bombay vs. Lala Pancham, AIR 1965 SC 1008;
Soonda Ram vs. Rameshwarlal, (1975) 3 SCC 698; Syed Abdul Khader vs. Rami Reddy, (1979) 2 SCC 601; Haji Mohammed Ishaq vs. Mohd. Iqbal & Mohd. Ali & Co., (1978) 2 SCC 493; State of U.P. vs. Manbodhan Lal Srivastava, AIR 1957 SC 912; S. Rajagopal vs. C.M. Armugam, AIR 1969 SC ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 12 101; State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568;
State of Uttaranchal vs. Sunil Kumar Singh Negi, (2008) 11 .
SCC 205; Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732; and Sant Lal Gupta vs. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336, in Union of India vs. Ibrahim Uddin & another, (2012) 8 of SCC 148 has observed that:
"48. To sum up on the issue, it may be held that rt application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 13 been allowed. However, the application should not be moved at a belated stage."
.
[Emphasis supplied]
17. The apex Court in Atma S Berar vs. Mukhtiar Singh, (2003) 2 SCC 3 has held the power of the Court to take note of subsequent events to be well-settled and of undoubted. However, it is accompanied by three riders:
firstly, subsequent event should be brought promptly to the notice of the Court; secondly, it should be brought to the rt notice of the Court consistently with rules of procedure enabling Court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events; and thirdly, the subsequent event must have a material bearing on right to relief of any party.
18. The application in question has not been filed at the first opportune moment. It appears to be a route adopted for further procrastinating the proceedings. It is not that the tenant was unaware of the pleas or on account of legal disability was precluded from raising the same at the earliest point in time. It is not a case of inability on the part of the tenant to understand the legal issues or that she was under any wrong/incorrect advice or there was any ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 14 negligence on the part of her pleader. Also she is not a rustic villager unaware of her rights and remedies. The .
evidence sought to be led, apart from being factually incorrect would have no bearing on the outcome of the case. The tenant cannot be allowed to reopen the case afresh for filling up the lacunae. This court does not find the of evidence sought to be brought on record necessary for adjudication of the controversy in issue, as such, in the light rt of the ratio of law laid down by the apex Court in Union of India vs. Ibrahim Uddin & another, (2012) 8 SCC 148, the application is dismissed.
Questions No. (ii) and (iv):
19. Now coming to the cross-objections filed under Order 41 Rule 26 CPC (CMP No. 327 of 2007), it be only clarified that this Court at the very first instance, vide order dated 22.8.2007 had clarified that the maintainability of such application shall be considered at the stage of final hearing.
20. Learned counsel for the parties have referred to and relied upon the following decisions of the Courts, wherein divergent views stand expressed on the question of ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 15 maintainability of the Cross Objections filed under Order 41 Rule 22 CPC in the proceedings of the nature with which this .
Court is concerned: Gogula Gurumurthy & others vs. Kurimeti Ayyappa, (1975) 4 SCC 458; Sri Saibaba Cloth Emporium, Adoni vs. Kolli Sanjeevamma & another, AIR 1991 Andhra Pradesh 106; Jamshed Hormusji Wadia vs. of Board of Trustees, Port of Mumbai & another, (2004) 3 SCC 214; Venkatarama Naicker vs. Ramasami Naicker & others, rt AIR (39) 1952 Madras 504; Gian Devi Anand vs. Jeevan Kumar & others, (1985) 2 SCC 683; Municipal Corporation of Delhi & others vs. International Security & Intelligence Agency Ltd., (2004) 3 SCC 250; Nalakath Sainuddin vs. Koorikadan Sulaiman, (2002) 6 SCC 1; Kamal Kumar vs. Smt. Imartibai & others, 2003 (1) RCR 681 (Madhya Pradesh); Jugraj Pal vs. Bhim Sain, 2001 (2) RCR 294 (P & H); V. V. Krishna Vara Prasad vs. S. Surya Rao, 1997 (1) RCR 613 (A.P.); Munnalal Agarwal vs. Jagdish Narain & others, (2000) 1 SCC 31; Ram Charan Singh vs. Brij Bhushan Pandey, 1996 (2) RCR 382 (M.P.); Neon Lawrie & another vs. O. R. Properties and Builders (P) Ltd. & others, 2013 (1) RCR (Rent) 348 (Rajasthan); State of Haryana & another vs. ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 16 Vinod Tayal, 2011 (1) RCR (Rent) 480 (P & H); and Ravinder Kumar Sharma vs. State of Assam & others, (1999) 7 SCC .
435.
21. I need not deal with each one of the decisions separately. Certain High Courts have held the provisions of Order 41 Rule 22 CPC to be made applicable whereas others of have held only principles analogous thereof to be applicable. Much emphasis was rt laid on Sri Saibaba Cloth Emporium, Adoni vs. Kolli Sanjeevamma & another, AIR 1991 Andhra Pradesh 106 wherein, view taken in Mahaboob Bi vs. Alvala Lachmiah, AIR 1964 Andhra Pradesh 314; Jia Lal vs. Mohan Lal, AIR 1960 J & K 22; Moti Ram vs. Suraj Bhan, AIR 1960 SC 655; and Pattammh vs. Krishnaswami Iyer, AIR 1928 Mad 794, stands affirmed. If one were to carefully peruse the judgment, one would find that the Court has specifically not held the provisions of the Code of Civil Procedure applicable to the revisional jurisdiction under the Act. In fact, it specifically quoted the view expressed by K. V. Gopal Krishnan Nair, J. holding that though the scope of Order 41 Rule 22 would not extend to revisional jurisdiction yet, the High Court in exercise of its ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 17 revisional jurisdiction would have sufficient powers to entertain the question which may be raised by the .
respondents, subject of course to the limitations prescribed therein.
22. While dealing with the provisions of the Special Statute namely the Provincial Insolvency Act, 1920 the of Division Bench of Madras High Court in Venkatarama Naicker vs. Ramasami Naicker & others, AIR (39) 1952 rt Madras 504 has specifically held that no cross objection would lie in a revision petition.
23. On consideration of the provisions of the Act, it is seen that not every provision of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) is made applicable to the Special Statute. A Controller being a designated authority so defined under Section 2(c) of the Act would not mean a Judge/Presiding Officer of a Civil Court so defined under Section 2(8) of the Code. Unless so expressly or impliedly barred, suits of civil nature are to be tried by courts having competent jurisdiction. This is so provided in Part-I (Section 9) of the Code. The Code, procedural in nature, provides a complete mechanism for ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 18 trying such suits and execution of decrees passed therein. It also provides remedies by virtue of an appeal and revision.
.
24. Noticeably the Act also is a complete Code in itself, dealing with the control of rent and eviction within the urban areas of the state of Himachal Pradesh. This special statute provides for a complete mechanism for adjudication of of rights, duties and obligations inter se the landlord and the tenant in accordance with the procedure prescribed rt therein. The right of the landlord to recover possession on the grounds specified under the Act is required to be adjudicated in a petition filed under the Act. Such application is to be filed in a prescribed format (Form-A), so specified under Rule 3 of the Himachal Pradesh Urban Rent Control Rules, 1990 (hereinafter referred to as the Rules).
For adjudication of such application, provisions of the Code of Civil Procedure are not specifically made applicable. As per sub-rule (2) of Rule 12, the Controller is to be guided by the principles of the procedure laid down in the Code. A petition for revision is required to be filed under Rule 15.
However, only for the purposes of production of evidence and summoning and enforcing attendance of the witnesses, ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 19 by virtue of Section 25 of the Act, the Controller is vested with the powers of a Court under the Code. The orders .
passed by the Controller, by virtue of Section 26 of the Act, are made executable by the Controller as a decree of a Civil Court. Hence the Controller, for such limited purpose, is specifically empowered to exercise all powers of a Civil of Court. It is thus seen that only for a limited purpose, provisions of the Code are made applicable to the provisions rt of the Act.
25. I am unable to persuade myself in accepting the submission made on behalf of the tenant that provisions of Order 41 Rule 22 CPC would be applicable to a petition filed under Order 24(5) of the Act. While doing so, apart from the aforesaid analysis of the statutory provisions, I seek reliance upon the decision rendered by the apex Court in Nalakath Sainuddin vs. Koorikadan Sulaiman, (2002) 6 SCC 1.
26. However, by virtue of the power so vested under Section 24(5) of the Act, this Court is duty bound to examine the legality and propriety of the order passed by the authority or conduct of the proceedings, irrespective of the fact as to whether cross objection stands filed by the ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 20 tenant or not, for it is open for anyone of the parties to invite attention of the Court to the same. In Nalakath .
Sainuddin (supra), the Court had an occasion to deal with the Kerala Buildings (Lease and Rent Control) Act, 1965 (para-8), which are similar to the ones with which we are concerned. Landlord's petition for ejectment stood allowed of only on limited grounds to which also there was no challenge by him. However, the High Court, in the course of rt its revisional jurisdiction, even in the absence of any petition filed by the landlord, passed orders also on the grounds which stood rejected by the Controller. Challenge laid by the tenant stood repelled by the apex Court in the following terms:-
"17. We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that-
(i) There is no reason to read and interpret Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 narrowly and limit the scope of revisional jurisdiction conferred on the High Court thereby;
(ii) Once a revision petition is entertained by the High Court, whichever be the party invoking the revisional jurisdiction, the High Court acquires jurisdiction to call for and examine the records of the authority subordinate to it. The records relating to 'any order' ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 21 and/or any proceedings, are available to be examined by the High Court for the purpose of .
satisfying itself as to the (a) legality, (b) regularity, or
(c) propriety of the impugned order, including any part of the order, or proceedings. The only limitation on the scope of High Court's jurisdiction is that the order or proceedings sought to be scrutinized must be of the subordinate authority. Any illegality, of irregularity or impropriety coming to its notice is capable of being corrected by the High Court by passing such appropriate order or direction as the rt law requires and justice demands.
(iii) 'Any aggrieved party', the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not a party aggrieved though the order contains a finding or two adverse to him. The respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non- petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.
18. There is, therefore, no doubt in the present case that in a revision preferred under Section 20 of the ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 22 Act by the tenant laying challenge to the propriety of the decision of the Appellate Authority under Section .
11(8) of the Act, the landlord could have urged that the order of eviction could be sustained under Section 11(3) of the Act also. The High Court has not erred in permitting the landlord to urge such a plea in the revision filed by the tenant though the landlord did not file any revision of his own. A landlord who of has succeeded in securing an order of eviction on one of the several grounds urged by him cannot be said to be a person aggrieved by such order. He rt cannot file a revision rather he can feel satisfied with the order. The person aggrieved is the tenant and in a revision preferred by the tenant it is only just and equitable that the landlord should be permitted to support the order of eviction by disputing correctness of the finding recorded in the impugned order whereby the availability of additional ground for eviction was negatived. Such a right has to be necessarily spelled out in favour of the landlord who has succeeded from the Court below else there would be grave injustice."
[Emphasis supplied] The decision still holds field and subsequently referred to and relied upon by the Apex Court in T. Lakshmipathi & others vs. P. Nithyananda Reddy & others, (2003) 5 SCC 150; Narinder Mohan Arya vs. United India Insurance Co.
Ltd. & others, (2006) 4 SCC 713; G. L. Vijain vs. K. Shankar, ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 23 (2006) 13 SCC 136; Balbir Kaur & another vs. Uttar Pradesh Secondary Education Services Selection Board, Allahabad .
and others, (2008) 12 SCC 1; Bentool Steel Products Private Limited vs. O.M.A. Mohammed Omar & another, (2008) 17 SCC 679; and Management of Sundaram Industries Limited vs. Sundaram Industries Employees Union, (2014) 2 SCC of
600.
27. In fairness to the learned counsel, I must refer to rt the decisions reported in Gogula Gurumurthy & others vs. Kurimeti Ayyappa, (1975) 4 SCC 458 and Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai & another, (2004) 3 SCC 214 on the issue in hand. But both of them on given facts, are inapplicable as none of them specifically deal with the ambit, scope and power of the revisional jurisdiction of the High Court under the Rent Control legislations of the States/land.
Question No. (iii):
28. For the purpose of convenience and ready reference sub-Section (5) of Section 24 of the Act is extracted as under:-
"Vesting of Appellate Authority on officers by the State Government.::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 24
Section 24 ... ... ... ...
(5) The High Court may, at any time, on the .
application of the aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceeding and may pass of such order in relation thereto as it may deem fit."
[Emphasis supplied]
29. A Full Bench of this court in Vinod alias Raja vs. rt Smt. Joginder Kaur, 2012 (3) Him. L. R. (FB) 1401 has held the right of appeal to be a statutory right, not to be circumscribed by the delegatee/State Government.
30. The order of the authority attaches finality not to be called in question in any Court of law, except by the High Court in exercise of its revisional jurisdiction which can be either on an application filed by an aggrieved party or suo motu by the Court. The court can call for and examine the records for "satisfying itself" about the "legality and propriety" of the "order" or the "proceedings". The High Court may pass orders as it may "deem fit".
31. Now what is the scope of such revisional jurisdiction and the extent of the power which the court can exercise is now well settled by a five-Judge Bench of the ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 25 apex Court reported in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78. The findings .
can be summarized as under:
(i) The term 'propriety' would imply something which is legal and proper.
(ii) The power of the High Court even though of wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority. rt
(iii) Such power cannot be exercised as the cloak of an appeal in disguise.
(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.
(v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246.
(vi). The meaning of the expression "legality and propriety" so explained in Ram Dass vs. ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 26 Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not .
confined to jurisdictional error alone and has to be "according to law".
(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material rt evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below.
(viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may have a different view thereupon.
(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 27(x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is .
impermissible as Court cannot function as a Court of appeal.
(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a of different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.
rt
(xii) Incorrect finding of fact
understood in the context of such findings being must be perverse, based on no evidence; and misreading of evidence.
32. The Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the apex Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant statues.
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 28The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the .
evidence or not. Finally the Court answered the reference by making the following observations:-
"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere of with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different rt from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 29 regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall .
not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be of satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
rt [Emphasis supplied]
33. In view of the aforesaid discussion the
correctness, legality and propriety of the orders passed both by the Rent Controller and the Appellate Authority are required to be examined.
Question No. (v):
34. The Act specifies several grounds on which a tenant can be evicted. For ready reference Section 14(2) of the Act is reproduced as under:-
"14. Eviction of tenants.
(1). ... ...
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied-::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 30
(i) that the tenant has not paid or tendered the rent due from him in .
respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the of rent is payable:
... ...
(ii) that the tenant has after the
rt commencement of this Act without the
written consent of the landlord -
......
(b) used the building or rented land for a purpose other than that for which it was leased ; or
(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land ; or
(iv) that the tenant has been guilty of such acts and conduct as are nuisance to the occupiers of buildings in the neighborhood; or ... ...
the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land ... ..."
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 3135. The landlord had sought ejectment of the tenant on the grounds of: (i) Non payment of rent [Section 14 (2) .
(i)]; (ii) Without written consent of the landlord, used the building for a purpose other than that for which it was leased [Section 14 (2) (ii) (b)]; and (iii) Tenant had committed acts which are likely to impair materially the of value or utility of the building [Section 14 (2) (iii)].
36. Broadly speaking, a building or a part thereof rt can be let out for three purposes viz. (i) Residential; (ii) Business; and (iii) Manufacturing. Section 108 of the Transfer of Property Act, 1882 prohibits the lessee to use the tenanted premises for a purpose other than the one for which it was leased. Normally, if the dominant purpose for which a building is let out is maintained, then a tenant may not be liable to be evicted in the absence of any covenant in the contract between the parties, prohibiting a user different from the one mentioned in the lease deed and the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises. But if the building is let out for residential or business purpose and the tenants starts manufacturing ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 32 activity or vice a versa, then it would amount to change of user subject to the provisions of the Act.
.
37. What is the meaning of the expression "used the building or rented land for a purpose other than that for which it was leased" had arisen for consideration before various Courts. Generally it is held that mere change of user of from one commercial activity to another, in itself, is no ground for claiming ejectment unless and until injury to the rt property and interest of the landlord is proved. [Civil Revision No. 54 of 2012, titled as Sain Ram Jhingta vs. Surinder Singh, decided on 9th October, 2015 by this Court and Hari Rao vs. N. Govindachari & others, (2005) 7 SCC 643].
38. This Court in Shiv Ram & another vs. Sheela Devi, AIR 1993 H.P. 49 has held that:-
"(7) On the question whether such a change of user is incidental or allied to the business or that it was only a small change in the user and would not be actionable, reliance is placed upon two judgments of the Supreme Court in Mohan Lal v. Jai Bhagwan, AIR, 1988 SC 1034 and Gurdial Batra v. Raj Kumar Jain (1983) 3 SCC 441 (sic).
(8) Section 14(2)(ii)(b) of the Act enumerates the grounds on which eviction of petitioner No. 1 has been sought and ordered, namely, 'use of the building or rented land for a purpose other than that for which it was leased'. ... ...::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 33
(11) The ratio of the aforementioned two judgments of the apex court in Mohan Lal's and Gurdial Batra's .
cases (supra) appears to be that carrying of a business other than the one for which the premises were let out when such a business is an allied business would not amount to change of user. However, a small change in the user in the business, which is not allied to the business for which it was let out, would also not amount to change of user unless there is impairment to the utility or likelihood of damage being caused to the building and business of can conveniently be carried on without creating any nuisance."
39. It is in the aforesaid backdrop that this Court rt framed an additional issue and directed the Controller to return his findings thereupon.
40. The rent control legislation is enacted in the larger interest of the society as a whole and it is not intended to confer any disproportionately larger benefit on the tenant to a greater disadvantage of the landlord. But it is also a beneficial piece of legislation recognizing reasonable protection to the tenant as one of the objects.
While construing a provision of law imposing a liability for eviction, like Section 14(2)(ii)(b) of the Act, one must see whether there has been such a change of user of the premises as to make it alien to the purpose for which the building was let.
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 3441. A Coordinate Bench of this Court in Rajinder Kumar Sharma vs. Smt. Kanta Kumari, Latest HLJ 2007 (HP) .
73 has held that "13. Similarly, in Mohan Lal vs. Jai Bhagwan [1988 (2) SCC 474] citing the observations of Lord Diplock about the legislative intendment, their Lordships clearly held that unless any mischief or detriment of or an impairment is caused to the shop in question, the change of user by itself from one commercial activity to rt another commercial activity cannot be a ground for eviction of the tenant. Culling the aforesaid ratio in the aforesaid two judgments and applying the same to our case, I have no hesitation in holding that there is a clear nexus between the concept of change of user (provided the activity remains either commercial or business, as the case may be) and any injury or impairment caused to the property or any prejudice caused or likely to be caused to the landlord because such a nexus alone can be made the basis of the eviction of the tenant. Otherwise in ordinary prudence and in normal circumstances merely because a tenant changes his commercial activity from one business to another for any reason, this should not be by itself a ground for ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 35 eviction. It is very commonly understood in the mercantile world that even though a tenant may have obtained a shop .
on lease for a particular and specified commercial activity, either because of the reason of his failure in that activity or changes in the economic scenario, he may have to put that commercial activity to an end and to earn his livelihood by of starting another commercial activity in the same shop.
After all, a businessman cannot be compelled to carry on rt with a particular commercial activity even if he feels it to be non-viable, non-manageable or non-profitable. Every businessman has a right to carry on a business of his choice. Merely because for the reasons best suited to him he undertakes a change in commercial activity, this by itself should not be a ground of his eviction from the shop. As noticed above, the change of user has to be clearly linked, and inseparably coupled with, an element of injury or impairment of the shop or causing any prejudice or having the potential of prejudice, to the landlord."
42. The apex Court in Jagdish Lal vs. Parma Nand, (2000) 5 SCC 44 has observed that:-
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 36"18. On a consideration of these decisions, it comes out that where the new business started by the .
tenant in the premises let out to him was an allied business or a business which was ancillary to the main business, it would not amount to change of user. It is true that where a premises is let out for commercial purposes, carrying on of a new business activity therein would not change the nature of the of building and it would still remain a commercial building. But that is not enough. Having regard to the provisions of the Act and the intendment of the rt legislature in providing that the tenant would not use the premises for a purpose other than that for which it was let out, the new business should either have some linkage with the original business, which under the agreement of lease the tenant was permitted to carry on, or it should be an allied business or ancillary to that business. Where local laws provide a specific prohibition in respect of the use of the premises under the rent legislation and that provision has been interpreted in a particular manner by the High Court consistently, it would not be proper to disturb the course of decisions by interpreting that provision differently."
43. In the very same decision, finding the tenant to have reverted to his original business, Court only in exercise of its power under Article 136 of the Constitution of India -
to meet the ends of justice - allowed the tenant to continue ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 37 and occupy the premises on an enhanced rent. The Court noticed the observations made by the Punjab and Haryana .
High Court with respect to the provisions which are paramateria with the Act in question and found that the change of business from general merchant to a tea stall; dry fruits and soda water to selling pakoras and general of provision store to selling stones and marble chips to be change of user making the tenant liable for ejectment.
rt
44. In the instant case, certain facts are not in dispute. (i) Tenancy is for a non-residential purpose. (ii) Rent agreement (Ext. PW2/A) does not clearly specify the purpose of tenancy. (iii) When the tenant changed the business of carpet and started running a restaurant, landlord did protest. (iv) Inspection by the statutory authorities proved that the tenant had started the business of a restaurant. (v) Landlord, a driver, employed with the Fire Department, Delhi, who has since retired and is living on pension, never acquiesced to such actions of the tenant and consistently, rather vigorously pursued the matters before appropriate forums.
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 3845. In the instant case the tenant had adequate opportunity of appearing as a witness and depose with .
regard to the change in the character of the business, if any, and also as to whether such business was a source of nuisance, leaving the premises in the neighbourhood to be inhabitable or not. She deliberately chose not to do so of without any justifiable reason. It is not that she is ailing, infirm or aged. Her power of attorney could not depose the rt facts of which she alone had knowledge. It is a settled principle of law that a power of attorney holder cannot depose on behalf of the principal for the acts done on behalf of him though he can depose on the facts personally known to him. [Man Kaur (dead) by LRs vs. Hartar Singh Sangha, (2010) 10 SCC 512]
46. From the record it could not be pointed out as to how on the additional issue, findings returned by the Rent Controller are illegal, perverse and erroneous. It cannot be said that such findings are not borne out from the record.
47. Landlord has examined himself as PW-3 as also Jitender Kumar (PW-4), Sansar Chand (PW-5), Umesh Kumar (PW-6), Sudershan Lal (PW-7) and Mitya Nand Sood (PW-8).
::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 39In one voice, all of them have clearly, consistently and cogently deposed that the shop in question was let out to .
the tenant for the purpose of carrying out the business of carpets etc. but however, without consent of the landlord, the tenant changed the said business and since the year 2000 a restaurant in the name and style of "Taste Point"
of came to be opened up in the tenanted premises.
48. Significantly though the tenant chose not to rt appear as a witness, but through her power of attorney i.e. Shiv Kumar Kaushal (Respondent No. 2) admitted it to be so. In fact, she also examined Anuj Rana (RW-1) for establishing the fact that noodles for running the business stood supplied by him. The Courts below concurrently have disbelieved the version of Swaroop Kumar (RW-2) and Shiv Kumar Kaushal (RW-3) to the effect that subsequently such business stood closed. In any case, such fact would not have any bearing on the outcome of the present petition, for all that is required to be seen is as to whether prior to the filing of the eviction petition, tenant subjected herself for eviction, with a right accruing in favour of the landlord under the Act. [Mrs. Santosh Tangri vs. Ved Matta, 2002 (2) ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 40 RCR (Rent) 657; M/s Goyal Steel Industries & others vs. Sangram Singh Sandhawalia & others, 2005 (1) RCR (Rent) .
187; and St. Michaeal's Cathedral Catholic Club vs. Smt. Harbans Kaur Nayani, 1997 (1) Sim. L.C. 237]. Moreover, through the testimony of the Sanitary Inspector (PW-4) landlord has established that with the setting up of the of restaurant, much nuisance was caused, both to him and in the neighbourhood. There was no proper ventilation and the rt fumes emitted from the kitchen on the ground floor, straightaway went to the house of the landlord on the first floor. Also on the stair case leading to the first floor, the tenant kept a dustbin which came to be always littered, causing pollution and unhygienic conditions. Landlord's relatives have deposed that purely on account of such unhygienic and unlivable conditions they stopped visiting him.
49. Thus no interference is warranted on the findings returned by the authorities below. It cannot be said that the order is illegal or passed dehors the Rules. Both the orders passed by the Rent Controller as also the Appellate Authority have to be read together. Obviously the Rent ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 41 Controller has now allowed ejectment of the tenant on the ground of nuisance to the occupiers of the buildings in the .
neighbourhood, including the landlord and his family members. Insofar as such findings are concerned, there is neither any illegality nor any impropriety. Also there is no perversity. Testimonies of the witnesses stand correctly and of completely appreciated. Documentary evidence also stands considered. The provisions of law are correctly applied to rt the given facts and circumstances.
50. As such, present petition is disposed of affirming the order of eviction dated 5.8.2006, passed by Rent Controller (II), Dharamshala in Rent Case No. 3 of 2001, titled as Yog Raj Rood vs. Sunita Kaushal & another and as affirmed by Appellate Authority in terms of order dated 29.3.2007 passed in Rent Appeal No. 7-D/2003 (alongwith Additional Rent Appeal No. 26-D/XIV/06), titled as Sunita Kaushal & another vs. Yog Raj. Also impugned order dated 25.6.2004 passed by Appellate Authority (III), Kangra at Dharamshala, in Rent Appeal No. 7-D/2003, titled as Sunita Kaushal & another vs. Yog Raj, is set-aside and that of the Rent Controller (II), Dharmshala, passed in Rent Petition No. ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 42 3 of 2001, titled as Yog Raj vs. Sunita Kaushal & another, dated 20.12.2002 upheld.
.
Question No. (vi):
51. I shall now examine the correctness of the order passed by the Rent Controller, Dharamshala in dismissing the execution petition. Mere pendency of a petition in the of absence of any stay of the operation of the order of which the execution was sought, cannot and would not be a rt ground for dismissing the execution petition. The Rent Controller seriously erred in doing so. At best, if at all, he could have adjourned the petition sine die, asking the landlord to await till the decision of this Court. At least he could have sought clarification from the Court. Section 24(2) of the Act specifically provides for the stay of proceedings.
As such in the absence of any stay of the operation of the order, trial Court could not have dismissed the execution petition. Hence, order dated 16.3.2012, passed by Rent Controller, Dharamshala, H.P., in Execution Petition No. 17/2010, titled as Yog Raj vs. Sunita Kaushal & another, is totally unsustainable in law and is quashed and set aside and the Execution Petition is restored to its original number ::: Downloaded on - 15/04/2017 20:30:17 :::HCHP 43 and position. Parties are directed to appear before the Rent Controller on 30th June, 2016 .
.
52. This Court places on record, with appreciation, the efforts put in by Sh. Arjun Lall, Advocate and Sh.
Dheeraj K. Vashista, Advocate, in assisting the Court.
Petitions stand disposed of accordingly, as also of pending applications(s), if any.
rt (Sanjay Karol),
Judge.
June 1 , 2016 (PK)
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