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Himachal Pradesh High Court · body

2000 DIGILAW 321 (HP)

BHARAT SINGH v. HARMEET SINGH

2000-12-15

M.R.VERMA

body2000
JUDGMENT M.R. Verma: - This revision petition preferred by the petitioner- JD (hereafter referred to as the JD) is directed against the order dated 26.9.2000 passed by the learned Rent Controller (5), Shimla whereby the application of the Decree Holder for breaking open the lock of the rented premises from where the eviction of the JD is sought by respondent No. 1 on the basis of an eviction order passed in favour of respondent No.2, has been allowed. 2. The brief facts leading to the filing of the present revision petition are that on an application under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereafter referred to as the Act) moved by respondent No. 2, the then landlady, against the JD for eviction from quarter Nos. 11 and 12, Hellen Lodge Estate, Cart Road, Shimla, an ex- parte eviction order was passed by the learned Rent Controller (3), Shimla on 20.6.1991. Subsequently, respondent No. 1 filed an application for execution of the said order of eviction in the Court of Rent Controller which was registered as Execution Petition No. 15/10 of 1999/94. Vide order dated 7.9.1999, the Rent Controller directed issue of warrant of possession in respect of the premises in question. The warrant issued pursuant to the said order was received back unexecuted with the report dated 22.4.2000 of the concerned Bailiff that the premises in question were found locked and, therefore, the possession could not be delivered. The DH then moved an application praying for execution of the warrant by breaking open the lock. However, the application was not considered at that time and a warrant of possession was ordered to be issued on 28.7.2000. This order was not complied with presumably because of the pendency of the application-for breaking open the lock, therefore, the Rent Controller considered (sic) application for the DH by the impugned order and directed that the possession of the premises be handed over to the DH by breaking open the lock. Feeling aggrieved, the JD has preferred the present revision petition. 3. I have heard the learned counsel for the parties and have also gone through the records. 4. Be it stated at the very outset that the present revision petition has been preferred by the JD under Section 115 of the Code of Civil. Procedure (hereafter referred to as the Code). 3. I have heard the learned counsel for the parties and have also gone through the records. 4. Be it stated at the very outset that the present revision petition has been preferred by the JD under Section 115 of the Code of Civil. Procedure (hereafter referred to as the Code). Under the said Section, a revision petition will be maintainable if the impugned decision/order has been passed by any "Court subordinate to the High Court". Section 3 of the Code provides for subordination of the Courts. As per the provisions of this section, a District Court is subordinate to the High Court and every civil court of a grade inferior to that of a District Court and every Court of Small Causes, is subordinate to the High Court and District Court. Thus, the Courts subordinate to the High Court are the District Court, every Civil Court of a grade inferior to that a District Court and every Court of small causes and Rent Controller is, thus, nor a court subordinate to the High Court within the meaning of Section 3 of the Code. Therefore, a revision against the order/decision of the Rent Controller is incompetent and not maintainable under Section 115 of the code. Thus, the present petition, in the ordinary course, is liable to be dismissed only on the sole ground that it is not maintainable under Section 115 of the Code. 5. The High Court, however, has the power to call for and examine the records relating to any order passed or proceedings taken under the Act either suo-motu or on the application of an aggrieved party for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and to pass appropriate order under sub- section (5) of Section 24 of the Act. On the request of the learned counsel for the petitioner, this revision petition is, therefore, treated to have been preferred under the said provisions. 6. It was contended by the learned counsel for the JD that the order of ejectment was passed by the Rent Controller on the application made by the landlord-respondent No.2 who sold the premises in question to repot. No.l after the passing of the order of eviction i.e. during die pendency of the execution petition, therefore, the eviction order cannot be executed at the instance of transferee-respondent No.l. 7. No.l after the passing of the order of eviction i.e. during die pendency of the execution petition, therefore, the eviction order cannot be executed at the instance of transferee-respondent No.l. 7. The contention of the learned counsel for the petitioner is liable to be rejected in view of the provisions of Rule 16 of Order 21 of the Code which specifically provides that where a decree or if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree can be executed in the same manner and subject to the same conditions if the application Was made by the original decree holder/transferror. As per clause 10 of the sale deed, a photo copy whereof has been placed on record and the contents whereof have not been disputed at any stage, provides that the purchaser (respondent No. 1) in this case has also the right to take the possession of the premises of tenants according to the Court decree. This evidently has a reference to the existing decree/orders enabling the taking over of the possession of the premises from the tenants because such a right need not be conferred for instituting eviction proceedings or suits for eviction in future to a person who by virtue of sale becomes the absolute owner of the property. 8. The other aspect of the matter is that respondent No. 1 has been permitted by the Rent Controller vide his order dated 2.6.2000 to be substituted as a decree holder on his application. The said order has not been challenged by the JD in this revision petition. Therefore, the same has become final and unless such an order is challenged and set aside, the JD cannot challenge the impugned order regarding breaking open of the locks of the premises on the ground that such an order could not have been passed on the application of respondent No. 1. 9. No other point has been urged in support of the present revision petition. 10. In view of the reasons and findings above, the present petition, being devoid of any merit and substance, is dismissed. Costs on parties. 11. 9. No other point has been urged in support of the present revision petition. 10. In view of the reasons and findings above, the present petition, being devoid of any merit and substance, is dismissed. Costs on parties. 11. The parties are directed to appear before the learned Rent Controller^), Shimla on 4.1.2001. Records of the Rent Controller be returned forthwith.