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2013 DIGILAW 363 (HP)

EIH Associated Hotels Ltd. v. Neema Bakshi

2013-04-29

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, Judge. This petition under Article 227 of the Constitution of India has been filed for quashing order dated 04.01.2012 passed by learned Rent Controller No.VII, Shimla, rejecting the application No. 39/6 of 2008 for amendment of petition No.15-2 of 2009/05. The petitioner has filed application under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 ( for short ‘Act’) against respondent which is pending. 2. The pleaded case of the petitioner is that originally the ejectment petition was filed through Major Rajesh Chauhan, a duly constituted attorney and General Manager of Cecil Hotel, a unit of petitioner. The application for amendment of the petition was moved on 19.06.2006 through Major Rajesh Chauhan. In the meantime, before decision of amendment application, an application under Order 1 Rule 10(2) read with Section 151 CPC was filed on 12.07.2007 for impleading M/s EIH Associated Hotels Limited, which was allowed on 14.08.2007. 3. The petitioner then filed amendment application on 28.06.2008 which was dismissed on 25.10.2008. The order dated 25.10.2008 was assailed in CMPMO No.666 of 2008 which was allowed on 01.12.2008. The Rent Controller was directed to decide the amendment application expeditiously. In the meantime, petition was transferred to learned Rent Controller, VII, Shimla. P.S. Bakshi original tenant also died and his legal representative was brought on record. The amendment application was dismissed on 04.01.2012. 4. It has been stated that learned Rent Controller has passed the impugned order virtually on the same lines when the amendment application was earlier dismissed on 25.10.2008, which order was set aside by the High Court on 01.12.2008.The impugned order has caused gross injustice to the petitioner and has virtually non-suited it. The learned Rent Controller while dismissing the amendment application on 04.01.2012 has failed to appreciate the implications and impact of the order dated 01.12.2008 of the High Court. The public limited Company always acts through its authorized attorney or a person. The learned Rent Controller has wrongly assumed that if a Company acts through a particular person, then it is bound to act through that particular person alone throughout the various stages of the lis. 5. The learned Rent Controller has failed to exercise jurisdiction vested in him in accordance with law. Srikant Peri is duly constituted attorney of petitioner and is also present General Manager of Cecil Hotel, Shimla. 5. The learned Rent Controller has failed to exercise jurisdiction vested in him in accordance with law. Srikant Peri is duly constituted attorney of petitioner and is also present General Manager of Cecil Hotel, Shimla. EIH limited is no longer owner/landlord of the premises in question. The learned Rent Controller has misconstrued the material on record in dismissing the application. 6. I have heard learned counsel for the parties. On behalf of the petitioner, it has been submitted that learned Rent Controller has misconstrued and misinterpreted the material on record in rejecting the amendment application filed by petitioner through Srikant Peri. The learned Rent Controller has failed to exercise jurisdiction vested in him. The order dated 01.12.2008 of the High Court has not been properly appreciated by the learned Rent Controller. On behalf of the respondent, it has been submitted that petition under Article 227 is not maintainable. The impugned order, at the most, is revisable in view of Full Bench decision dated 05.07.2012 in C.R.No.136 of 2010. The learned counsel for the respondent has supported the impugned order. 7. The objection of learned counsel for respondent about maintainability of the petition is taken first. The impugned order has been passed by the learned Rent Controller on the application of the petitioner under Order 6 Rule 17 CPC. It is not the case of either side that order passed by the learned Rent Controler under Order 6 Rule 17 CPC is appealable under the Act. The impugned order has been passed by the learned Rent Controller on the application of the petitioner under Order 6 Rule 17 CPC. It is not the case of either side that order passed by the learned Rent Controler under Order 6 Rule 17 CPC is appealable under the Act. The State Government in exercise of power under sub-section(1) of Section 24 of the Act has issued notification dated 10.10.2006 as under:- “No. LSG-A(3)-1/71-II- In supersession of this Department notification of even number dated 26-5-1988, published in Rajpatra, Himachal Pradesh ( Extra-ordinary), dated 7th June, 1988 and in exercise of powers vested in him under sub section (1) of Section 24 of the Himachal Pradesh Urban Rent Control Act, 1987 ( Act No.25 of 1987) the Governor, Himachal Pradesh is pleased to confer the powers of appellate authorities on all the District and Sessions Judges/Additional District and Sessions Judges in respect of the urban area in their respective existing jurisdictions to hear appeals against the orders made by the Rent Controllers under sections, 4,5,11, 12,13, 14 [Except 14(3)(a)(iii) ] and 21 of the said Act.” The Full Bench in the judgment dated 05.07.2012 has held as follows:- “At the outset, we have to note that it is not each and every order that is made appealable under the Himachal Pradesh Urban Rent Control Act, 1987, but only those orders which otherwise decide the fate of the parties, in the proceedings which are not otherwise excluded under the Act. All other interlocutory orders are amenable to the revisional jurisdiction of the High Court, which may go into the legality and propriety of such orders “ The impugned order dated 04.01 .2012 has been passed by the learned Rent Controller rejecting the application of petitioner under Order 6 Rule 17 CPC. This order is not appealable under the Act. In view of Full Bench judgment dated 05.07.2012, the impugned order is amenable to revisional jurisdiction of the High Court. The High Court under Article 227 exercises supervisory jurisdiction. 8. In Vishesh Kumar Versus Shanti Prasad (1980) 2 SCC 378 , it has been held that a revision petition under Section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other. In Sadhana Lodh Versus National Insurance Co. 8. In Vishesh Kumar Versus Shanti Prasad (1980) 2 SCC 378 , it has been held that a revision petition under Section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other. In Sadhana Lodh Versus National Insurance Co. Ltd. and another (2003) 3 SCC 524 , it has been held that where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. 9. The petitioner has opted to file petition under Article 227 of the Constitution of India against the impugned order, even though as per Full Bench judgment dated 05.07.2012, the remedy of revision was available to the petitioner. In view of Vishesh Kumar (supra) petition under Section 115 of the Code is a separate and distinct proceeding from the petition under Article 227 of the Constitution. Hence, the present petition under Article 227 of the Constitution of India is not maintainable. 10. In view of above, petition fails and is accordingly dismissed, so also the pending application.