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Himachal Pradesh High Court · body

2014 DIGILAW 208 (HP)

Phenu Ram v. Sanatan Dharam Sabha

2014-03-14

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This revision petition is directed against the order dated 20.7.2012 rendered by learned District Judge (Appellate Authority) Shimla in Rent Appeal No. 58-S/14 of 2012. 2. “Key facts” necessary for the adjudication of this petition are that respondent No.1 filed an eviction petition against respondents No. 2 and 3/tenants (hereinafter referred to as “respondents No. 2 and 3” for the sake of convenience) under section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (herein after referred to as ‘Rent Act’ for the sake of convenience) before the learned Rent Controller-II, Shimla. According to respondent No.1, respondents No. 2 and 3 were chronic defaulters in making payment of due arrears of rent. It was averred in the petition that respondents No. 2 and 3 after the commencement of the Rent Act, without written consent of respondent No.1, transferred their rights under lease and sublet the entire building to some unknown persons, who were in exclusive possession and control of the premises in question. Respondents No. 2 and 3 committed such acts, which were likely to impair materially value and utility of the premises in question. They carried out major additions and alteration work in some of the quarters without written consent of respondent No.1. The premises in question became unsafe and unfit for human habitation and the quarters developed major cracks. Hence, the eviction petition. 3. Respondents No. 2 and 3 filed a detailed reply to the petition. According to them, their father, Laturia Ram, was tenant in the land and house and the land was being used for agricultural purposes along with house. It was averred that by virtue of operation of Himachal Pradesh Tenancy & Land Reforms Act, 1972 (herein after referred to as the ‘Tenancy Act’ for the sake of convenience) ownership rights of the property in question were conferred upon them. After the demise of Laturia Ram, respondents No. 2 and 3, being in possession of the property in question, continued to occupy the same, openly and peacefully. According to them there was no question of making payment of rent to respondent No.1 since they were themselves landlords. It was also asserted in para 18(b) of the reply that respondents No. 2 and 3, were exercising rights of the landlord after the demise of their father in the year 1966 and had been letting out the rooms to different persons. It was also asserted in para 18(b) of the reply that respondents No. 2 and 3, were exercising rights of the landlord after the demise of their father in the year 1966 and had been letting out the rooms to different persons. Prior to that, Laturia Ram was also exercising the same rights of letting out the premises to different persons. However, there was no question of letting out the rooms to different persons by respondent No. 2 and 3 after the commencement of the Tenancy Act. They denied that they were liable to be evicted from the premises in question on this ground as the respondent No.1 had not locus standi to prefer the petition. No premises were let out after the commencement of the Tenancy Act. It was also denied that they impaired value and utility of the premises in question. It was also denied that any addition or alteration work was carried out by them and that the premises in question became unsafe and unfit for human habitation. 4. Rejoinder to the reply filed by respondents No. 2 and 3 was filed by respondent No.1. 5. The learned Rent Controller framed the following issues on 6.1.1995:- 1. Whether the respondent is in arrears of rent? If so, to what amount? OPA 2. Whether the respondent has sub-let the premises? OPA 3. Whether the respondent has impaired the value and utility of the premises? OPA 4. Whether the premises in dispute are unsafe for human habitation? OPA 5. Whether there is no relationship of landlord and tenant between the parties? OPR. 6. Learned Rent Controller allowed the eviction petition vide order dated 28.2.2007 on the grounds of arrears of rent, subletting made by respondents No. 2 and 3 in favour of subtenants and the premises were unfit and unsafe for human habitation. However, relief qua issue No. 3 - Whether the respondent has impaired the value and utility of the premises?-was dismissed. Respondents No.2 and 3 were ordered to be evicted on the ground that respondents No. 2 and 3 failed to pay arrears of rent @ Rs.1000/- per month since 1.1.1975 till the order dated 28.2.2007, with statutory interest @ 9% per annum. 7. Respondent No. 2 and 3, filed an appeal before the learned Appellate Authority against the impugned order dated 28.2.2007. Learned Appellate Authority dismissed the same on 30.9.2009. 7. Respondent No. 2 and 3, filed an appeal before the learned Appellate Authority against the impugned order dated 28.2.2007. Learned Appellate Authority dismissed the same on 30.9.2009. Feeling aggrieved, respondents No. 2 and 3 preferred a petition bearing Civil Revision No. 128/2009, before this Court, which was dismissed on 2.3.2010. Thereafter, respondents No. 2 and 3 filed a Special Leave Petition before the Hon’ble Supreme Court against the judgment dated 2.3.2010. The same was dismissed by Hon’ble Supreme Court on 23.4.2010. Thereafter, respondent No.1 filed execution petition for the enforcement of order of eviction. The warrant of possession was also issued to be executed against respondents No. 2 and 3 on 1.10.2011. 8. The petitioner filed an application/ objections under order 14 Rules 2 and 3 read with Order 21 Rule 97 sub-rule 2 read with Order 21 Rule 101 of the Code of Civil Procedure with a prayer to frame an issue and adjudicate the objection raised by the petitioner by holding inquiry. Respondent No.1 filed a detailed reply to the same. Thereafter, the petitioner filed an application under Order 21 Rule 26 read with section 151 of Code of Civil Procedure with a prayer for staying warrant of possession issued on 1.10.2011. Reply to the application was filed by respondent No.1. The petitioner also filed an application under Order 21 Rules 97, 98, 99, 101 read with sections 96 and 151 of Code of Civil Procedure, with a prayer for dismissing the execution petition. It was specifically averred in the application that the petitioner was inducted as tenant in possession with respect to quarter No. 17 in the year 1952 by late Laturia Ram as such the alleged subletting or assignment of tenancy rights took place before the commencement of the Rent Act. The petitioner was already a statutory tenant with respect to the accommodation in his possession, when the Rent Act came into force. The electricity connection was installed in the premises more than forty years ago and the petitioner had been paying consumption bills of the same. According to him, the eviction order was not binding upon him and could not be enforced against him as he was not arrayed as respondent in the eviction proceedings. According to him, respondent No.1 had taken eviction order in connivance and collusion with respondents No. 2 and 3, who had nothing to do with the premises in question. According to him, the eviction order was not binding upon him and could not be enforced against him as he was not arrayed as respondent in the eviction proceedings. According to him, respondent No.1 had taken eviction order in connivance and collusion with respondents No. 2 and 3, who had nothing to do with the premises in question. Respondent No.1 filed reply to the application. According to respondent No.1, the eviction order has been passed on a number of grounds, inter alia, subletting also. According to him, mere electricity connection did not create any tenancy rights in favour of the petitioner. 9. These applications were dismissed by the learned Civil Judge (Senior Division), Court No.(I), Shimla on 20.6.2012 by passing a detailed order qua the petitioner as well as other persons claiming the same status. 10. The petitioner preferred an appeal before the learned Appellate Authority, who dismissed the same on 20.7.2012. Hence, the present petition. 11. Mr. Ajay Kumar, learned Senior Advocate, has vehemently argued that regular inquiry was required to be held by the learned Rent Controller including framing of issues. 12. Mr. Balwant Kukreja, learned Advocate, has supported the order dated 20.6.2012 passed by the learned Rent Controller, confirmed by the learned Appellate Authority vide judgment dated 20.7.2012. 13. What emerges from the facts, enumerated hereinabove, is that respondent No.1 filed an eviction petition against respondents No. 2 and 3 under section 14 of the Rent Act on various ground including subletting. The stand of respondents No. 2 and 3 in the reply was that they were treating themselves to be landlords and had been subletting the premises in question to different persons. Initially it was being done by their father Laturia Ram and thereafter by them. Learned Rent Controller framed a specific issue whether respondents had sub-let the premises. Learned Rent Controller answered the issue in favour of respondent No.1. Para 23 and 24 of the eviction order dated 28.2.2007 passed by the learned Rent Controller in Case No.11/2 of 1994 read as under: - “23. Coming to the most important issue whether the respondent has sublet the quarters/premises to the tenants. The burden of this issue is again on the applicant. Para 23 and 24 of the eviction order dated 28.2.2007 passed by the learned Rent Controller in Case No.11/2 of 1994 read as under: - “23. Coming to the most important issue whether the respondent has sublet the quarters/premises to the tenants. The burden of this issue is again on the applicant. The applicant has cited in 2005(1) Supreme Court Cases 31 titled as Joginder Singh Sodhi Versus Amar Kaur where it is held that: “burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to a third party, onus would shift on the tenant.” 24. Moreover in the reply respondent pertaining to Para 18 (B) it is admitted by the respondent that after the death of Laturia Ram they are letting out quarters to the different persons. However, there is no question of letting out of rooms to the different persons after the commencement of the Act. When the respondent appeared in the witness box as RW-4 he has admitted in the cross examination that he has rented out 40-45 quarters to the tenant and he received the rent. He has not taken the permission of the Sabha and he rented out at his sweet will. Therefore, it is clear cut admission that he has rented out 40-45 quarters to the tenant. Sabha is landlord. No tenant can sublet the tenanted premises or part thereof without the written consent of the landlord. Subletting without the consent of the landlord, it is a preposition of the law that tenant is liable to be evicted to the long possession by the sub tenant cannot be deemed that landlord.. This point has also been held in 2003(2) RCR 115 in case titled as Velayudhan V/s Secretary, Youth Congress Office. Similarly it was held by the Hon’ble Apex Court RCR Page 569, tenancy created before the enforcement of the Act may not have any relevance and consent of the landlord for the subletting must be in writing incase it is not so, it is to be clear cut without any ambiguity or shadow of doubt. Again Hon’ble Apex Court in Gurdial Singh V/s Raj Kumar held that tenant not entitled to sublet with oral consent of landlord. Law requires that consent should be in writing. Again Hon’ble Apex Court in Gurdial Singh V/s Raj Kumar held that tenant not entitled to sublet with oral consent of landlord. Law requires that consent should be in writing. It is clear cut admission of the tenant that he let out 40-45 quarters to the tenant without the consent of the Sabha. Therefore, taking the inspiration of the aforesaid law laid down by the Hon’ble Apex Court and various other courts there is no hesitation to hold that the respondent has sublet the premises to the sub tenant without the consent of the Sabha. Ld. Counsel for the respondent has cited 2003 (1) S.L.C. 68 in case titled as Krishna Devi Versus Prago Devi and others. On the ground subletting had taken place prior to the commencement of the HP Rent Control Act, therefore, it has no effect in this case, but in fact as per Section 14 (2)(ii) (a) of HP Urban Rent Control Act tenant after the commencement of this Act without the written consent of the landlord if he sublet then the Controller may make order. But he question would arise whether the subletting was prior to 1975 or thereafter. They have admitted in their reply as well as in his statement when Brij Lal appeared in the witness box as RW-1 that he has sublet 40-45 rooms. But once the applicant established this fact that the part of the possession was shown by the respondent then the onus shifted upon him when he sublet the premises to the sub tenant and when he created new tenancy. The respondent produced two witnesses RW-2 and RW-3. They both even could not state the specific date when their tenancy was created and they both have also failed to furnish receipt issued by the respondent in their favour. Moreover, they have stated that they have deposed as per directions of the respondent. In eth absence of any receipt furnished by them it cannot be presumed that tenancy was created prior to the commencement of this Act. The question would arise that what evidence have been furnished by the respondent to prove this fact that tenancy was created prior to the 17.11.1971 therefore, I also hold issue No. 2 in affirmative.” 14. Learned Rent Controller has referred to the statement of Brij Lal, respondent No.2, who while appearing as RW1, deposed that he had sublet 40-45 rooms. The question would arise that what evidence have been furnished by the respondent to prove this fact that tenancy was created prior to the 17.11.1971 therefore, I also hold issue No. 2 in affirmative.” 14. Learned Rent Controller has referred to the statement of Brij Lal, respondent No.2, who while appearing as RW1, deposed that he had sublet 40-45 rooms. He had not given any explanation when these rooms were sublet. Similarly, RW2 and RW3 could not give specific dates when the tenancy was created. They failed to furnish any receipt issued by respondents No. 2 and 3 to them. According to them, they made deposition as per directions of respondents No. 2 and 3. Learned Rent Controller has rightly come to the conclusion that respondents No. 2 and 3 failed to prove that tenancy was created prior to 17.11.1971. Respondents No. 2 and 3 were evicted from the premises in question, on the grounds, as already noticed hereinabove by the Court. Learned Appellate Court dismissed the appeal preferred by respondents No. 2 and 3 vide order dated 30.9.2009, which was confirmed by this court on 2.3.2010. An SLP was preferred by respondents No. 2 and 3 against the judgment dated 2.3.2010, which was also dismissed by the Hon’ble Supreme Court on 23.4.2010. The order dated 28.2.2007 passed by the learned Rent Controller has attained finality. 15. The petitioner himself admitted that he was inducted as subtenant. Since there was specific admission by the petitioner himself, neither any issue was required to be framed nor any regular inquiry was required to be held by the executing court. The entire exercise has been undertaken just to delay the execution proceedings. 16. Petitioner has not claimed independent right over the premises in question. He has claimed right under respondents No. 2 and 3. 17. Their Lordships of Hon’ble Supreme Court in N.S.S. Narayana Sarma and others vs. Goldstone Exports (P) Ltd. and others, (2002) 1 Supreme Court Cases 662 have held as under:- “19. 16. Petitioner has not claimed independent right over the premises in question. He has claimed right under respondents No. 2 and 3. 17. Their Lordships of Hon’ble Supreme Court in N.S.S. Narayana Sarma and others vs. Goldstone Exports (P) Ltd. and others, (2002) 1 Supreme Court Cases 662 have held as under:- “19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructing the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of order 21 rule 103 is to be treated as a decree. From the averments made in the petition filed by the appellants before the executing court, it is clear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is the further case of the appellants that the right in the property had vested in them much prior to filing of the present suit the decree of which is under execution. It is to be kept in mind that the suit as initially filed was a suit for partition simplicter. In such a suit, the High Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned single judge and the division bench dismissed the petition filed by the appellants as non-maintainable without entering into the merits of the case. The division bench appears to have taken the view that since the appellants are claiming the property through the Pygah Committee or the state government, who are parties in the suit, they are bound by the decree. The view taken by the division bench is unsustainable and does not at all stand scrutiny under law. It amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. The view taken by the division bench is unsustainable and does not at all stand scrutiny under law. It amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the state government under the provisions of Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958. On a perusal of the orders passed by the single judge as well as division bench of the High Court, we are constrained to observe that the said orders are based on a complete misreading of the case of the appellants and misconception of the legal position relevant to the matter. Considering the facts and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a single judge at the first instance.” 18. Their Lordships of Hon’ble Supreme Court in Seshadri vs. K.R. Natarajan and another, (2003) 10 Supreme Court Cases 449 have held that while considering an application under Order 21 Rules 99 and 100 of the Code of Civil Procedure, what is required to be considered is as to whether a person claimed a right independent of the judgment debtor or not. A person claiming through or under the judgment-debtor may be dispossessed in execution of a decree passed against the judgment-debtor but not when he was in possession of the premises in question in his own independent right or otherwise. Their Lordships have held as under:- “12. The judgment under appeal demonstrates that the High Court did not come to a definite finding to the effect that the appellant was a rank trespasser or claimed his title in or over the disputed premises under the respondent No. 2. Although the High Court did not disbelieve the actual possession of the appellant in respect of the suit premises but without any basis whatsoever and without setting aside the findings of the Trial Judge it came to the conclusion that such possession was unlawful. 13. Although the High Court did not disbelieve the actual possession of the appellant in respect of the suit premises but without any basis whatsoever and without setting aside the findings of the Trial Judge it came to the conclusion that such possession was unlawful. 13. For the purpose of considering an application under Order XXI Rules 99 and 100 of the Code of Civil Procedure what was required to be considered was as to whether the applicant herein claimed a right independent of the judgment-debtor or not. A person claiming through or under the judgment-debtor may be dispossessed in execution of a decree passed against the judgment-debtor but not when he is in possession of the premises in question in his own independent right or otherwise.” 19. Mr. Ajay Kumar, learned Senior Advocate, has relied on Rajeev Dutta and others vs. Punjab Wakf Board and others, 2002(3) Shim. L. C. 315. In this case, learned Single Judge has held that the provisions of Rule 101 of the Code of Civil Procedure are mandatory and provide for inquiry into the question of right, title and interest raised therein and ambit and scope of such inquiry will depend on the facts and circumstances of each case, i.e. in a case where the question(s) raised can be decided on the basis of admitted and undisputed facts, a comprehensive inquiry may not be necessary but in a case where contentious pleas of facts are raised, the Executing Court is bound to hold a detailed inquiry and permit the parties to lead evidence to prove their rival pleas based on facts. 20. In the present case, no contentious issues are raised, rather it is an admitted case of the petitioner that he was inducted as sub tenant by respondents No. 2 and 3. In view of this, neither any detail inquiry was required to be held nor parties were required to be permitted to lead evidence by the executing court. 21. Mr. Ajay Kumar, learned Senior Advocate, has also placed strong reliance on M/s Anupam Coffee House Kandaghat and another vs. Ved Prakash and another, 2004 (2) Shim. L.C. 367. This judgment is distinguishable. In this case, the objectors have not admitted that Jugal Kishore, judgment-debtor was occupying the premises in dispute as an independent tenant. 21. Mr. Ajay Kumar, learned Senior Advocate, has also placed strong reliance on M/s Anupam Coffee House Kandaghat and another vs. Ved Prakash and another, 2004 (2) Shim. L.C. 367. This judgment is distinguishable. In this case, the objectors have not admitted that Jugal Kishore, judgment-debtor was occupying the premises in dispute as an independent tenant. It was their specific claim in the objection petition that the judgment-debtor was one of the partners of the concern and the partnership firm was the tenant of the premises in dispute. In that view of the matter, it was the duty of the executing court to direct the parties to adduce the evidence for such determination and not to rely upon the documents placed by the decree holder and judgment debtor on the file of the civil suit, as discussed in para 14 of the judgment. 22. Their Lordships of Hon’ble Supreme Court in Sardar Estates vs. Atma Ram Properties Private Limited (2009) 6 Supreme Court Cases 609 have deprecated widespread practice of starting another round of litigation on frivolous grounds once first round of litigation was over. Their Lordships have held as under:- “9. It is evident that after the first round of litigation was over the tenant started a second round of litigation on frivolous grounds which was a flagrant abuse of the Court. This is a practice which has become widespread, and which the Court cannot approve off, otherwise no judgment will ever attain finality. Hence, we dismiss this appeal and impose a cost of Rs.10,000/- (Rupees Ten Thousand only) on the appellant which shall be paid to the respondent within two months from today. The appellant shall also hand over the premises in question, which is in his possession, to the landlord within three months from today failing which he will be evicted by police force.” 23. Their Lordships of Hon’ble Supreme Court in Atma Ram Builders Private Limited vs. A.K. Tuli and others, (2011) 6 Supreme Court Cases 385 have also deprecated filing of frivolous objections in the execution proceedings initiating another round of litigation. Their Lordships have held as under:- “4. Their Lordships of Hon’ble Supreme Court in Atma Ram Builders Private Limited vs. A.K. Tuli and others, (2011) 6 Supreme Court Cases 385 have also deprecated filing of frivolous objections in the execution proceedings initiating another round of litigation. Their Lordships have held as under:- “4. It is deeply regrettable that in our country often litigations between the landlord and tenant are fought up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court The time has come that this malpractice must now be stopped effectively.” 24. The payment of electricity bills will not prove the independent possession of the petitioner over the premises in question in his own right. There is no evidence on record to establish that he ever paid rent to the landlord. There is overwhelming evidence that the petitioner is claiming his right through respondents No. 2 and 3. He was not required to be added as party bearing sub-tenant. Respondents No. 2 and 3 were subletting premises without permission of the landlord, rather they claimed themselves to be landlords. There is neither any illegality nor perversity in the order dated 20.7.2012 rendered by learned District Judge (Appellate Authority) Shimla in Rent Appeal No. 58-S/14 of 2012. 25. Accordingly, in view of observations and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending applications, if any, also stand disposed of. No order as to costs.