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2010 DIGILAW 784 (HP)

Kuldeep Singh v. Bhupinder Singh

2010-05-04

V.K.SHARMA

body2010
V.K. Sharma, J (Oral). 1. Both these appeals at the instance of the contesting defendant, though arise out of two separate judgments, both dated 29.03.2006, of the learned Additional District Judge, Fast Track Court, Shimla, Himachal Pradesh, yet the fact remains that the appeals before the learned first appellate court arose from a single judgment dated 22.11.2001, of the learned Sub Judge (IV ), Shimla, whereby the suit for grant of perpetual prohibitory injunction filed by the contesting respondent No. 1 herein, Shri Bhupinder Singh, as plaintiff, against Shri Kuldeep Singh and Shri Bachitter Singh, the appellant and proforma respondent No. 2 herein, being the contesting defendant and proforma defendant, respectively, was decreed for the following relief vide para 16 of the judgment dated 22.11.2001, rendered by the learned trial court: “16. While deciding the issues, supra, suit of the plaintiff for permanent prohibitory injunction, restraining the defendant No. 1 from claiming any right, title or interest in the suit premises i.e. two quarters in building known as Lal Quarters, Lower Kaithu, Shimla succeeds and the same is accordingly decreed, with costs. Let the decree sheet be prepared accordingly.” 2. Shorn of details, facts of the case are that the demised premises, comprising of two residential quarters forming part of Lal Cottage, Lower Kaithu, Shimla belong to one Shri Jatinder Kumar. As per the case setup by the plaintiff, these were let out by the said Shri Jatinder Kumar in favour of the plaintiff's father, proforma defendant No. 2, Shri Bachitter Singh, in the year 1960. The plaintiff being son of the tenant, Shri Bachitter Singh, was also residing with him in the demised premises. According to the plaintiff, the contesting defendant, Shri Kuldeep Singh, is his friend and at times he used to stay with him in the demised premises. This process started in the year 1985-86. Later on, somewhere in the year 1994, the contesting defendant again requested the plaintiff to permit him to stay in the demised premises, as according to him someone in his relationship was sick and he wanted to get him checked up at Shimla. The plaintiff acceded to the request of the contesting defendant and permitted him to stay in the demised premises with the clear understanding that since his parents were to come to Shimla in mid December, 1994, he will have to vacate the demised premises well before that. 3. The plaintiff acceded to the request of the contesting defendant and permitted him to stay in the demised premises with the clear understanding that since his parents were to come to Shimla in mid December, 1994, he will have to vacate the demised premises well before that. 3. It was against the above backdrop that the plaintiff has averred that he asked the contesting defendant to vacate the demised premises as his parents had already come to Shimla on 16.12.1994. On this he is said to have requested to let him stay in the demised premises for one or two days more, whereafter he would remove his belongings from there and vacate the same. However, on 18.12.1994 he started hurling threats to dispossess the plaintiff from the demised premises. Consequently, the suit was filed for grant of the following reliefs: “(a) the defendant no. 1 may be restrained by way of a permanent prohibitory injunction from claiming any right title or interest in, or in any manner interfering with the tenancy or possession of the proforma defendant and the plaintiff over the suit property i.e. two quarters in the building known as LAL COTTAGE, lower Kaithu, Shimla: (b) such other relief as may be deemed just and property may also be granted in favour of the plaintiff and the proforma defendant and against the defendant no. 1 and justice be done to the parties.” 4. The contesting defendant laid challenge to the suit on legal objections regarding non-joinder of necessary parties, locus-standi, maintainability, estoppel and the suit being false and frivolous. On merits, precisely the case setup by the contesting defendant was that somewhere in the middle of 1987, the plaintiff and the proforma defendant had surrendered the tenancy in respect of the demised premises in his favour on payment of Rs. 10,000/-. 5. It appears that proforma defendant No. 2 did not file any written statement. 6. The plaintiff by filing replication to the written statement filed by the contesting defendant refuted the stand taken by the latter and instead reiterated his own case as setup in the plaint. 7. On the above pleadings, the parties went to trial on the following issues: “i) Whether the plaintiff is entitled for the relief of permanent prohibitory injunction? OPP ii) Whether the suit is bad for non-joinder of necessary parties? OPD iii) Whether the plaintiff has no locus standi? 7. On the above pleadings, the parties went to trial on the following issues: “i) Whether the plaintiff is entitled for the relief of permanent prohibitory injunction? OPP ii) Whether the suit is bad for non-joinder of necessary parties? OPD iii) Whether the plaintiff has no locus standi? OPD iv) Whether the plaintiff is estopped to file the suit due to his own acts, conduct etc. OPD v) Whether the suit is not maintainable? OPD vi) Relief.” 8. On conclusion of the trial, the suit was decreed by holding issue No. 1 in affirmative and the remaining issues in negative. 9. The judgment of the learned trial court dated 22.11.2001 was challenged both by the contesting defendant as also the plaintiff, the former being aggrieved by the decree of perpetual prohibitory injunction passed against him and the latter on account of non grant of the relief of possession in respect of demised premises. 10. The learned first appellate court has allowed the appeal (Civil Appeal No. 83-S/13 of 2005/2001, titled Shri Bhupinder Singh vs. Shri Kuldeep Singh and another) filed by the plaintiff vide the impugned judgment and decree dated 29.03.2006 . However, the appeal (Civil Appeal No. 82-S/13 of 2005/2001, titled Shri Kuldeep Singh vs. Shri Bhupinder singh and another) filed by the contesting defendant has been dismissed. It is how the contesting defendant is before this court by way of these two appeals. 11. I have heard the learned counsel for the parties and perused the record. 12. Both the appeals have been admitted on an identical substantial question of law as under: “Whether in a suit which was only for permanent prohibitory injunction restraining the appellant-defendant from interfering in the suit premises, it was permissible to pass a decree for possession?” 13. The crux of the submissions made by the learned counsel for the contesting defendant in both the appeals is that the learned first appellate court has erred in holding that the plaintiff was dispossessed from the demised premises during pendency of the suit. To the contrary, the learned counsel for the plaintiff has supported the impugned judgments dated 29.03.2006. 14. In order to comprehend the controversy between the parties, the very basis which is required to be considered is the aforesaid substantial question of law. 15. To the contrary, the learned counsel for the plaintiff has supported the impugned judgments dated 29.03.2006. 14. In order to comprehend the controversy between the parties, the very basis which is required to be considered is the aforesaid substantial question of law. 15. It is a settled principle of law that even a tenant cannot in law be permitted to deny the title of the landlord. However, in this case the status of the contesting defendant from the very inception was that of a friend of the plaintiff. The plaintiff himself was residing in the demised premises on the basis of his status as son of the proforma defendant, who was, in fact, the tenant in the demised premises. The assertion made by the contesting defendant that the tenancy in respect of the demised premises was surrendered by the plaintiff and the proforma defendant in his favour would amount to admission of the status of the proforma defendant as tenant in the demised premises and thus in essence his capacity viz-a-viz the contesting defendant would be that of a landlord. This is legal aspect of the matter. However, on the factual matrix, there is no convincing evidence on record to show that the proforma defendant and the plaintiff had ever surrendered the tenancy in respect of the demised premises in favour of the contesting defendant and that too on payment of Rs. 10,000/-. Even otherwise, it would amount to subletting of the demised premises, which is specifically prohibited under the H.P. Rent Control Act and thus against the public policy. Furthermore, it is also settled that an order passed under Section 145 of the Code is subject to the final adjudication by the civil courts. 16. Admittedly, on an application moved by the contesting defendant, proceedings under Section 145 of the Code of Criminal Procedure, 1973 (the Code) in respect of the demised premises came to be initiated in the court of SDM (Urban), Shimla. Thus, apparently, there was some dispute concerning the demised premises between the parties. 16. Admittedly, on an application moved by the contesting defendant, proceedings under Section 145 of the Code of Criminal Procedure, 1973 (the Code) in respect of the demised premises came to be initiated in the court of SDM (Urban), Shimla. Thus, apparently, there was some dispute concerning the demised premises between the parties. It was pursuant to those proceedings that the contesting defendant was put in possession of the demised premises on 01.03.1995, as is apparent from the report of the concerned Head Constable of Police Post, Lakkar Bazar, contained on the reverse of copy of order dated 01.03.1995, mark CD and since the suit was filed on 05.01.1995, it can be safely concluded that the contesting defendant came into possession of the demised premises during pendency of the suit. However, since he was put into possession of the demised premises pursuant to the order passed by the SDM in the course of proceedings under Section 145 of the Code of Criminal Procedure, 1973, even if it cannot be said that such possession was either unlawful or amounted to dispossession of the plaintiff from the demised premises, the fact would remain that it would for all intent and purposes be deemed as that of a licensee in which character he had initially entered into the demised premises. It being so, the learned first appellate court was absolutely right in holding that no notice was required to be issued to the contesting defendant either by the plaintiff or the proforma defendant. 17. Now, while adverting to the substantial question of law which is for determination of this court, it would be seen that in a way the plaintiff had sought the relief of possession vide the aforesaid prayer clause (b), which though at the cost of repetition, is reproduced below for the sake of convenience: "b) such other relief as may be deemed just and property may also be granted in favour of the plaintiff and the proforma defendant and against the defendant no. 1 and justice be done to the parties.” 18. Even otherwise, in order to impart substantial justice between the parties, it is always open for the court to mould relief keeping in view the peculiar facts and circumstances of the case and on an overall view of the matter. 1 and justice be done to the parties.” 18. Even otherwise, in order to impart substantial justice between the parties, it is always open for the court to mould relief keeping in view the peculiar facts and circumstances of the case and on an overall view of the matter. To arrive at this conclusion I fortify by the principle of law laid down by this court in Ashwani Kumar and others vs. Lachi Ram and others, Latest HLJ 2002 (HP) 690. 19. The substantial question of law is answered accordingly. 20. In the result, both the appeals fail and are accordingly dismissed with no orders as to costs. 21. The appeals stand disposed of in the above terms. Let duly signed copy of this judgment be placed on the records of RSA No. 192 of 2006. The trial court record be sent back.