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Himachal Pradesh High Court · body

2001 DIGILAW 392 (HP)

BHAWANI CHARAN v. CHANDER LOK SWEET SHOP

2001-12-14

C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, C J. :- This revision is filed by the landlord against t the tenant. Being aggrieved by the order passed by the Rent Controller, Kullu on August 30,1999 in R.P. No.7/98 and confirmed by the Appellate authority, Kullu in C.A. No. 104 of 1999 on May 1, 2001. 2. The petitioner is the landlord whereas the respondent is the tenant. In proceedings for eviction by the landlord against the tenant, an application was made under sub-section (2) of Section 11 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act) by the tenant complaining that the landlord had contravened the provisions of sub-section (1) of Section 11 of the Act and has cut off/withheld essential service. The case of the tenant was that a roof was removed by the landlord and since it can be said to be "essential service" as defined in the said section, interim relief was necessary. 3. Sub-section (1) of Section 11 declares that no landlord either himself or through any person purporting to act on his behalf shall, without just and sufficient cause, cut off or withhold any essential supply or service enjoyed by the tenant in respect of the building or rented land let out to him. If the landlord commits breach of the said provision, it is open to the tenant to make a complaint by submitting an application to the Conroller. Sub-section (3) empowers the Rent Controller, if he is satisfied that the essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, to make an order directing the landlord to restore the amenities immediately pending inquiry referred to in sub-section (4). Sub-section (4) speaks of inquiry and passing of the appropriate order after hearing the parties. In the instant case, the allegation of the tenant was that the roof was removed by the landlord, which had caused serious prejudice to the tenant and since it can be said to be essential service, interim direction was necessary. The Rent Controller, after considering the allegations and counter-allegations, allowed the application observing that it was established that the landlord with mala fide intention removed the slates of the roof of the premises in question with a view primarily to compel the tenant to vacate the. The Rent Controller, after considering the allegations and counter-allegations, allowed the application observing that it was established that the landlord with mala fide intention removed the slates of the roof of the premises in question with a view primarily to compel the tenant to vacate the. premises and, hence, an order was passed directing the landlord to restore the said amenity pending inquiry referred to in sub-section (4) of Section 11. 4. Being aggrieved by the above, order the landlord, present petitioner before this Court, preferred an appeal before the Appellate authority. The Appellate Authority, considering the relevant provisions of the Act as also some of the decisions cited at the Bar, held that the order passed by the Rent Controller did not determine the rights of the parties and it was merely an interlocutory direction to restore the amenity of the demises premises and consequently the appeal was not maintainable. The appeal was, therefore, dismissed on that ground. Being aggrieved by the said order, the petitioner has approached this Court. 5. Notice was issued, pursuant to which the respondent appeared, I have heard the learned counsel for the parties. Three contentions were raised on behalf of the learned counsel for the petitioner-landlord. Firstly, the Appellate Authority has committed an error of law as well as of jurisdiction in holding that the order was merely interlocutory in nature and, hence, the appeal was not maintainable. Secondly, even on merits the Rent Controller as well as the Appellate Authority were wrong in holding that the basic amenities or essential service had been cut off by the petitioner-landlord and, hence, direction was necessary and thirdly that in any case the Rent Controller has exceeded its jurisdiction in ordering replacement of the roof even on the part, which was occupied by the landlord. 6. The learned counsel for the respondent-tenant, on the other hand, supported the order passed by the Rent Controller as well as the Appellate Authority. It was submitted that though under the Act the appeal is maintainable against "an order", it is not against each and every order that appeal would lie and such an order must deal with and decide one and more matters in controversy. It was submitted that though under the Act the appeal is maintainable against "an order", it is not against each and every order that appeal would lie and such an order must deal with and decide one and more matters in controversy. In the instant case, subject to the provisions of sub-section (4) of Section 11, an interlocutory direction was issued, which could not said to be an order against which the appeal would lie under Section 24 of the Act and the Appellate Authority was right in holding that the appeal was not maintainable. It was also submitted that on merits, both the authorities have rightly held that the action was taken by the petitioner-landlord with a view to evict the tenant and, hence it was mala fide and malicous. In view of such finding, may be subject to order under sub-section (4) of Section 11, if interlocutory direction was issued, the same can not be said to be illegal, null and void or without jurisdiction. Finally, it was submitted that this Court is exercising discretionary jurisdiction under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) In the facts and circumstances of the case, it cannot be said that interim direction issued by the Rent Controller had resulted in miscarriage of justice so that this Court may exercise discretionary power and even on that ground, the petition does not deserve consideration. 7. Having heard the learned counsel for the parties, in my view, no case has been made out to interfere with the order passed by the Rent Controller and confirmed by the Appellate Authority. Substantial arguments have been advanced on the question of law whether against an interlocutory or interim order, which can be said to be of a mandatory nature, an appeal would lie under Section 24 of the Act It was strenuously argued by the learned counsel for the petitioner that once a direction of a mandaotry nature is issued to supply essential service by putting roof, nothing remains so far as application under sub-section (4) inasmuch as the direction which can be issued under the said provision has been issued at that stage. It was, therefore, submitted that it can be said to be an order, which is appealable. It was, therefore, submitted that it can be said to be an order, which is appealable. If it is so, the counsel proceeded to submit, that the Appellate Authority was in obvious error in holding that the appeal was not maintainable. In this connection my attention was invited to several decisions including a decision in Smt. Sudarshna Devi Sood v. M.s Super Sanitation & Ors. Civil Revision No.320 of 2001, dated August 31, 2001, wherein an order, which was challenged related to examination of witnesses. Considering the provisions of Section 24 of the Act, this Court has held that such an order could be said to be an order and was covered by Section 24 of the Act and, hence, appealable. 8. fti the facts and circumstances, in my opinion, it would not be appropriate to express final opinion one way or the other as revision can be decided on other grounds. In the case on hand, it was the allegation of the respondent-tenant that the roof was removed by the petitioner-landlord and it has been done by the petitioner with a view to get the tenant evicted. Prima facie, the Rent Controller found that the allegaiton levelled by the tenant was well founded and to that extent even a finding was recorded. If in the light of said finding, a direction was issued by him in exercise of power under sub-section (3) of Section 11 of the Act, to me, it is clear that it has not resulted in mis-carriage of justice. On the contrary substantial justice has been done by the Rent Controller in ordering restoration of the roof as that is the underlying object behind the said provision. It is, therefore, in the light of above circumstances that in my view, without entering into larger question as regards the maintainability or otherwise of appeal, the revision deserves to be dismissed. 9. In this connection, it may be necessary to bear in mind that the power exercised by the High Court under Section 115 of the Code is discretionary in nature. 9. In this connection, it may be necessary to bear in mind that the power exercised by the High Court under Section 115 of the Code is discretionary in nature. It is well established that even if the High Court is satisfied that the case falls in any of the three clauses, i.e. Clause (a)(b) or (c) of sub-section (1) of Section 115, it is not bound to interfere unless the Court is satisfied that interest of justice requires such interference (vide S.S. Khanna v. Brigadier F.J. Dillon, AIR 1964 SC 497 and Brij Gopal Mathur v. Kishan Gopal Mathur, AIR 1973 SC 1096). 10. In the instant case, since substantial justice has been done by the order passed by the Rent Controller and non-interference will not cause mis-carriage of justice, I am not inclined to interfere in exercise of revisional jurisdiction under Section 115 of the Code. 11. In view of the above conclusion, I do not express final opinion regarding the maintainability or otherwise of the appeal filed by the petitioner before the Appellate Authority. I may clarify that I may not be understood to have confirmed the conclusion recorded by the Appellate Authority, Kullu, that the order in question was merely interim or interlocutory order and was not subject to appeal. As and when such question will arise, it is open to the parties to raise all contentions available and it is open to the appropriate authorities to record findings on such question. 12. For the foregoing reasons, the revision deserves to be dismissed and is, accordingly, dismissed. No costs. CMP No276 of 2001 13. In view of the order passed in the main matter, this application stands dismissed.