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2012 DIGILAW 180 (HP)

EIH Associated Hotels Limited v. Mohan Lall Dogra

2012-04-10

V.K.SHARMA

body2012
JUDGEMENT V.K. Sharma, J. (Oral). The petitioner (landlord) sought eviction of the respondent (tenant) on three fold grounds, firstly on the ground of arrears of rent, secondly the building, of which the tenanted premises form part, has been rendered unsafe and unfit for human habitation and the premises are required by the landlord bona fide for building/rebuilding, which cannot be carried out without the premises being vacated. The learned Rent Controller allowed the petition on all the counts with the rider that the landlord shall not be entitled to evict the tenant on the ground of arrears of rent in case the rent alongwith interest, costs etc. is paid within the stipulated time. However, while passing the final order, as per relief clause contained in para 19 of the order of eviction dated 01.07.2008, Annexure P-A, which is extracted below, the learned Rent Controller omitted to include one of the grounds of eviction, that is, the building in which the tenanted premises are housed having become unsafe and unfit for human habitation: “19. In view of my findings given on the various issues above, the application of the applicants succeeds and is hereby allowed on the ground that the respondent is in arrears of rent since July, 2007 to till date at the rate of Rs. 156/- per month with statutory interest at the rate of 9% per annum till the realization of the entire amount. The respondent is ordered to be evicted from the premises in question for the arrears of rent. However, the respondent shall not be evicted from the demised premises as a result of this order if he pays the arrears of rent due within 30 days from the passing of this order. The application is also allowed on the ground that the respondent the demised premises is bona fide required by the applicants for its reconstruction, which cannot be carried out without the premises being vacated by the respondent. Accordingly, the respondent stand evicted from the demised premises on the aforesaid ground. Memo of costs be prepared accordingly. File after due completion be consigned to the record room.” 2. Accordingly, the respondent stand evicted from the demised premises on the aforesaid ground. Memo of costs be prepared accordingly. File after due completion be consigned to the record room.” 2. However, on a complete and harmonious reading of the aforesaid order of eviction dated 01.07.2008, Annexure P-A, it is manifest that the issues covering all the three grounds of eviction were duly framed and the parties led evidence on the same, whereafter all the three issues, covering the three grounds of eviction, were held in affirmative. Even while passing the final order as per relief clause contained in para 19, the opening words are “In view of my findings given on the various issues above”, meaning thereby that the aforesaid omission to include the ground of eviction based on the building having become unsafe and unfit for human habitation in the final order is a mere omission which appears to be on account of an accidental slip. 3. Furthermore, the order of eviction was challenged by the tenant before the learned Appellate Authority which also formulated three points for determination based on the aforesaid three issues covering the corresponding grounds of eviction and proceeded to answer all the points in affirmative except that since the arrears of rent stood paid in the meanwhile, it was specifically held that the order of eviction on the ground of arrears of rent would not be available to the landlord to evict the tenant from the demised premises. A further rider was also put vide para 27 of the impugned judgment dated 21.11.2008, which is as under: “issued by our Hon’ble High Court in Civil Revision No. 187/06, titled as Sita Ram vs. Smt. Kalawati and another, decided on 27.12.2006, the eviction order shall not be available for execution on the ground of rebuilding and reconstruction unless the respondent/landlord produces before the Executing Court the building plan duly sanctioned/approved by the competent authority whereupon and whereafter only the Executing Court shall allow the execution of the ejectment order.” 4. The controversy giving rise to filing of the present revision petition arose when the has become unsafe and unfit for human habitation as there is landlord filed execution petition and the learned Executing Court dismissed the same holding that since eviction of the tenant was not ordered on the ground that the building no specific reference to the same in the final order contained in the relief clause of the eviction order dated 01.07.2008, the tenant could not be evicted from the demised premises. Being aggrieved, the landlord carried the matter in appeal to the learned Appellate Authority, which also concurred with the inference drawn by the learned Rent Controller mainly on the ground that in case the landlord was dissatisfied with exclusion of the ground of eviction relating to the building having become unsafe and unfit for human habitation, he should have either sought modification of the order of eviction or ought to have filed cross objections in the appeal filed by the tenant challenging the said order. 5. I have heard the learned counsel for the parties and gone through the records. 6. It is a basic principle of common law jurisprudence that none should be prejudiced by acts of the Court. On the basis of this principle, I have no hesitation to say that both the learned Executing Court and the learned First Appellate Court have taken a pedantic view of the matter. As has been seen hereinabove, once the relevant issues were decided in favour of the landlord after trial, the final relief ought to have formal expression of such adjudication and in case anything is left out, the same would not affect the final outcome and shall have to be deemed to have been included therein for all intents and purposes and more so in view of the peculiar facts and circumstances of the case and on an over all view of the matter, as obtaining hereinabove. 7. It is further settled that rules of procedures are handmaid of justice and are not to thwart the same. Litigants cannot be driven to approach the courts time and again to set technical wrongs set right for no fault of their own. 8. 7. It is further settled that rules of procedures are handmaid of justice and are not to thwart the same. Litigants cannot be driven to approach the courts time and again to set technical wrongs set right for no fault of their own. 8. In view of the above, I am satisfied that both, the learned Executing Court and the learned First Appellate Court, have taken a highly hyper technical view of the matter in declining the prayer of the landlord for executing the order of eviction on one of the grounds which had attained finality and as such the order of the Executing Court, dated 01.12.2009, as also that of the learned Appellate Authority, dated 22.02.2011, cannot be sustained and are accordingly set-aside with the result that the landlord shall be entitled to execute the eviction order against the tenant on the ground that the building, of which the tenanted premises form part, has become unsafe and unfit for human habitation. 9. While parting, the learned counsel for the landlord submits that the prayer on behalf of the landlord with regard to payment of use and occupation charges in respect of the tenanted premises by the tenant as setup before the learned Executing Court and the learned Appellate Authority as also included in the grounds of revision before this Court, may also be considered and appropriate orders passed on the same. 10. Admittedly, the premises were rented out in the year 1990 at the monthly rent of ‘ 156/-. The order of eviction was passed against the tenant on 01.07.2008. In the facts and circumstances of the case and on an overall view of the matter, it is ordered that the tenant shall pay use and occupation charges in respect of the tenanted premises to the landlord @ ‘ 300/- per month on and with effect from the date of eviction, that is, 01.07.2008, till handing over possession thereof to the landlord. 11. The arrears of use and occupation charges shall be paid by the tenant to the landlord within three months from today or depositing the amount in the Executing Court and in future by 15th day of the succeeding month regularly. 11. The arrears of use and occupation charges shall be paid by the tenant to the landlord within three months from today or depositing the amount in the Executing Court and in future by 15th day of the succeeding month regularly. It is made clear that in case the tenant has already paid rent in respect of the tenanted premises to the landlord @ ‘ 156/- per month for any period from 01.07.2008 onwards, the same shall be adjusted against the arrears of use and occupation charges, as above. 12. The tenant is granted time to vacate the tenanted premises and hand over its peaceful and vacant possession to the landlord on or before 31.03.2013. To this effect he shall file an undertaking in this Court within 30 days from today, failing which and on failure to vacate the premises and pay arrears and future use and occupation charges by the stipulated time, the landlord shall be entitled to obtain possession of the tenanted premises through police, as has been held by the Hon’ble Supreme Court in Ram Prakash Sharma vs. Bulbul Birla (Dead) By LRs and others, (2011) 6 Supreme Court Cases 449, and the tenant shall be liable for contempt of court. The stipulation with regard to payment of arrears and future use and occupation charges shall also be included in the undertaking. 13 The petition, so also pending CMP(s), if any, stand disposed of in the above terms.