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2002 DIGILAW 276 (HP)

SAPNA v. PARKASK CHAND

2002-09-25

A.K.GOEL

body2002
JUDGMENT Arun Kumar Goel, J.:—Petitioner is the landlady. She initiated proceedings for ejectment of the respondent-tenant from the premises situate at Dharamshala. Grounds on which eviction was sought were non payment of arrears of rent as well as premises were being bona fide required for office use of her husband who is a practicing Advocate at Dharamshala Change of user from Cigarette and toffee shop to a tea stall without her consent was also set up as another ground. 2. After contest, learned Rent Controller below finally disposed of the matter in the following terms : "It has been held under Issues No. 1, 4 and 9, as discussed above, that the respondent has failed to pay arrears of rent for the period from August, 1998 to April 2000 at the rate of Rs. 1,500 p.m. amounting to Rs. 49,500 without any reasonable cause. Therefore, the present eviction petition is allowed on the ground that the respondent has failed to pay arrears of rent amounting to Rs. 49,500 without any reasonable cause and as such the respondent is directed to hand over the vacant possession of the shop in question to the petitioner within a period of thirty days from the date of this order, failing of which this order shall be executed accordingly. It is further ordered that in case the respondent pays/ deposits in the Court the aforesaid arrears of rent i.e. amounting to Rs. 49,500 alongwith interest at the rate of 9% within a period of 30 days from the date of this order, then the respondent shall not be evicted from the shop in question. The respondent is also burdened with costs of the petition assessed at Rs. 500. Memo of costs be drawn accordingly and the file after completion be consigned to the record room." 3. Tenant felt aggrieved by the order of learned Rent Controller below, and preferred Rent Appeal No. 13-D/2001, which came up before the Appellate Authority, (Addl. District Judge-II), Kangra at Dharamshala. By means of order dated 22.4.2002 appeal was disposed of. 500. Memo of costs be drawn accordingly and the file after completion be consigned to the record room." 3. Tenant felt aggrieved by the order of learned Rent Controller below, and preferred Rent Appeal No. 13-D/2001, which came up before the Appellate Authority, (Addl. District Judge-II), Kangra at Dharamshala. By means of order dated 22.4.2002 appeal was disposed of. Operative portion of this judgment is extracted here-in-below for ready reference : ".....However, since ample and sufficient evidence has not been led before the learned Rent Controller and the respondent in appeal has pre-supposed her title to the disputed premises, I deem it fit and proper that it would be in the interest of fair play and equity that a re-trial be ordered in the matter. As such, for retrial of the entire matter, I hereby direct that the matter be remanded to the learned Rent Controller for re-trial of the entire case with a direction to re-admit the petition in its original number and proceed to determine the same in accordance with law. The parties are directed to appear before the learned Rent Controller on 22.5.2002....." 4. It is against this order of remand passed by the Appellate Authority, below that the present revision petition has been filed. 5. At the time of hearing learned Counsel for the petitioner Mr. Sharma urged that so far power of Appellate Authority, is concerned, it is as per Section 24 of the H.P. Urban Rent Control Act, 1987. So far the rigours of Order 41 Rules 23 and 23-A of the CPC are concerned, they are wholly inapplicable to the appeals under Rent Act. This legal position was not controverted on behalf of respondent-tenant. Once this conclusion is arrived at, then in my considered view learned Appellate Authority, below had no jurisdiction to have ordered the remand of the case as has been ordered vide operative portion of the order of the Appellate Authority extracted herein above. 6. This legal position was not controverted on behalf of respondent-tenant. Once this conclusion is arrived at, then in my considered view learned Appellate Authority, below had no jurisdiction to have ordered the remand of the case as has been ordered vide operative portion of the order of the Appellate Authority extracted herein above. 6. Even otherwise, this matter is no more res Integra, in view of the decision of this Court in the case of Surinder Kaur v. Mohinder Pal Singh, 1976 R.C.J. 215, wherein perimateria provision of Section 21(3) of the H.P. Urban Rent Control Act, 1971 (wrongly mentioned as 1976 in the report), came up for consideration before the then Honble Justice Shri R.S. Pathak, (as his Lordship then was), while dealing with the provision of Section 21(3) and having followed two decisions of Punjab and Haryana High Court, it was held as under : ".....It is apparent that in those cases where the appellate authority is of opinion that in order to decide the appeal a further enquiry is necessary it has been empowered to make the enquiry himself or to make it through the Controller. The expression through the Controller clearly contemplates that when the Controller makes the enquiry he does so on behalf of the Appellate Authority. In, other words, the Controller makes the enquiry and forwards the finding reached by him to the Appellate Authority. He does so not for the purpose of disposing of a petition pending before him but for the purpose of enabling the appellate authority to dispose of the appeal pending before the latter. It is clear from the terms of Section 21(3) of the Act that the enquiry envisaged by the provision is intended in order to enable the Appellate Authority to decide the appeal. It is manifest that the provision does not contemplate that the appeal should be allowed and the case remanded to the controller for making an enquiry and disposing of petition afresh. No power to remand the case has been conferred by Section 21(3) on the Appellate Authority. I am fortified in the view taken by me by the decisions of the Punjab High Court in Shri Kishan Lal Seth v. Shrimati Pritam Kumari and Rajinder Kumar v. Basheshar Nath. I am of opinion that the order of the appellate authority is in excess of his jurisdiction and is vitiated accordingly. 4. I am fortified in the view taken by me by the decisions of the Punjab High Court in Shri Kishan Lal Seth v. Shrimati Pritam Kumari and Rajinder Kumar v. Basheshar Nath. I am of opinion that the order of the appellate authority is in excess of his jurisdiction and is vitiated accordingly. 4. Now the case has to be considered again by the Appellate Authority, it will be for him to consider whether in the view of the law set out above it should hold the further enquiry itself or should direct the Controller to hold it land submit the result of the enquiry to him. Indeed, the Appellate Authority will begin by deciding again whether there should be any inquiry at all. This is a matter which the Appellate Authority will decide after hearing learned Counsel for the parties. 5. The revision petition is allowed. The order dated May 12, 1976 of the Appellate Authority, Shimla is set aside and the case is remanded to the Appellate Authority for fresh decision in accordance with law and the observations made above. The parties will appear before the Appellate Authority on August 7, 1976. There is no order to cost." 7. In view of the aforesaid discussion, this revision petition is allowed after it had been formally admitted and was heard finally at the joint request of learned Counsel for the parties. Consequently, the impugned order passed by learned Appellate Authority below on 22.4.2002 is hereby quashed and set aside and as a result of it matter is remanded to the said authority for proceeding further in accordance with law. Parties through their learned Counsel are directed to appear before the Appellate Authority below on 26.10.2002 who will now proceed further in accordance with the provisions of H.P. Urban Rent Control Act, 1987 and then decide the matter. No costs. CMP No. 366 of 2002 No orders in view of the disposal of the main matter. Ex-parte interim order passed on 20.8.2002 stands vacated forthwith. Registry will ensure that a copy of this order is transmitted to the Appellate Authority to proceed further as per directions of this Court, as well as to the Rent Controller below who shall ensure that the record is forwarded to the appellate authority so as to reach well before the date fixed.