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Himachal Pradesh High Court · body

2014 DIGILAW 55 (HP)

Santosh Kumari (Dead) v. Mohan Kumar Goel

2014-01-09

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, Judge These appeals arise out of common judgment and as such are being decided together. 2. Both the appeals were admitted on the following common substantial question of law: “What is the effect of the enforcement of the provisions of the H.P. Rent Control Act, 1987 to the civil suits pending for eviction of the tenants under the general law of transfer of property?” 3. Smt. Santosh Kumari (since deceased), hereinafter referred to as the plaintiff, filed a suit for possession and mesne profits against respondent Mohan Kumar Goel, hereinafter referred to as the defendant. 4. In the suit, based on the respective pleadings of the parties, trial Court framed the following issues: 1.Whether the plaintiff is not owner of the suit premises? OPD 2. Whether the plaintiff is entitled to the possession of the suit premises? OPP 3. Whether the plaintiff is entitled to mesne profits as alleged? OPP 4.Whether the plaintiff has no locus standi and cause of action to file the suit? OPD 5. Whether the tenancy of the defendant has been validly terminated?OPP 6. Relief. 5. Vide judgment and decree dated 31.10.2002, passed in Civil Suit No.69-K/1 of 1996, titled as Santosh Kumari versus Mohan Kumar Goel, Sub Judge Kandghat, District Solan, Himachal Pradesh, partly decreed the suit in the following terms: “In view of my findings on the above issues the suit of the plaintiff for possession is decreed. However, the claim of the plaintiff for mesne profits is declined. This decree shall not be executable during operation of “Himachal Pradesh Urban Rent Control Act, 1987” in the area. Decree sheet be prepared accordingly. File after due completion be consigned to the record room. Costs on parties.” 6. Both the plaintiff and the defendant assailed the said judgment and decree, by filing separate appeals. Vide common judgment and decree dated 12.3.2004, passed in Civil Appeal No.20-S/13 of 2003/2002, titled as Shri Mohan Kumar Goel versus Smt. Santosh Kumari; and Civil Appeal No.54-S/13 of 2002, titled as Santosh Kumari versus Mohan Kumar Goyal, Additional District Judge, Solan, while accepting the defendant’s appeal, dismissed the appeal filed by the plaintiff in the following terms: “For the reasons recorded for deciding the aforesaid point, the appeal filed by the plaintiff fails and is hereby dismissed and that of the defendant is allowed and the decree of ld. Trial court granting decree for possession which was to remain inexecutable during the operation of H.P. Urban Rent Control Act, 1987 is set aside. Decree sheet be prepared accordingly...” 7.The net effect being that plaintiff’s suit for possession and mesne profits stands dismissed, on the ground that same was not maintainable, in view of the provisions of H.P. Urban Rent Control Act, 1987 (hereinafter referred to as Rent Act). 8.Facts are not much in dispute. Relationship of landlord and tenant is not in dispute. Identification of the premises is not in dispute. Under the General Law (Transfer of Property Act), plaintiff determined the defendants’ tenancy with effect from 30.6.1996, by serving a legal notice dated 18.5.1996. On 6.8.1996, plaintiff filed the suit in question before the Civil Court. The same was decreed on 31.10.2002. Lower appellate Court dismissed the suit vide judgment and decree dated 12.3.2004. During the pendency of suit, State of Himachal Pradesh issued notification dated 11.11.1998, making the provisions of the Rent Act applicable to the suit premises. The “urban area” so notified covers the premises in the question. Though the said notification was withdrawn with effect from 30.5.2003. However, with effect from 5.5.2008, by another notification, the suit premises were again subjected to the provisions of the Rent Act. The position continues to remain so till date. 9. Notification issued by the Government is not specific to the suit premises. Entire urban area of Kandaghat, where the premises are situate, was brought under the purview of the provisions of the Rent Act. For proper construction and better appreciation, it would be beneficial to reproduce the relevant provisions of the Rent Act, as under: “1.(1) This Act may be called the Himachal Pradesh Urban Rent Control Act, 1987. (2) It extends to all urban areas in the State of Himachal Pradesh. This Act shall and shall be deemed to have come into force on the 17th day of November, 1971, but – “ “2. Definitions. (2) It extends to all urban areas in the State of Himachal Pradesh. This Act shall and shall be deemed to have come into force on the 17th day of November, 1971, but – “ “2. Definitions. In this Act, unless the context otherwise requires,- (a) to (i) XXX XXX XXX (j)“tenant” means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after termination of the tenancy and in the event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and Explanation-II to this clause, but does not include a person placed in occupation of a building or rented land by its tenant, except with the written consent of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a municipal corporation or a municipal committee or a notified area committee or a cantonment board; (Emphasis supplied) “(k) “urban area” means any area administered by a municipal corporation, a notified area committee or any area declared by the State Government, by notification, to be an urban area for the purposes of this Act.” “14 (1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. “ (Emphasis supplied) 10.Under the provisions of the Rent Act there is no bar that the Civil Court cannot entertain the suit filed prior to issuance of notification, subjecting the tenanted premises to the provisions of the Rent Act. Language of Section 14 is amply and evidently clear. It simply states that a tenant shall not be evicted in execution of a decree passed before or after termination of tenancy, except in accordance with the provisions of the Rent Act. Significantly, definition of “tenant” is inclusive. Language of Section 14 is amply and evidently clear. It simply states that a tenant shall not be evicted in execution of a decree passed before or after termination of tenancy, except in accordance with the provisions of the Rent Act. Significantly, definition of “tenant” is inclusive. A tenant continuing in possession on termination of tenancy would be a tenant within the purview of the Rent Act. It is not in dispute that the suit premises fall within the “urban area” so defined under the Rent Act. 11.Relying upon the decision rendered by the apex Court in Lakhmi Chand Khemani versus Kuaran Devi, AIR 1966 SC 1003 , Mr. G.D.Verma, learned Senior Advocate, appearing for the plaintiff, argues that rights of parties would be governed on the basis of provisions of law applicable, on the date of determination of tenancy, i.e. 18.5.1996/30.6.1996 and/or presentation of plaint before the trial Court on 6.8.1996 and, thus, there was no question of the parties being governed under the provisions of the Rent Act. The decree could have been executed under the General Law of the Land. 12.I am afraid, Laxmi Chand (supra), does not squarely deal with this proposition. There the apex Court was dealing with the provisions of the Delhi and Ajmer Rent Control Act, 1952 (i.e. the 1952 Act); Slum Areas (Improvement and Clearance) Act, 1956 (i.e. the 1956 Act) and the Delhi Rent Control Act, 1958 (i.e. the 1958 Act). In the said case, landlord had already obtained a decree for ejectment under the provisions of the 1952 Act, which became inexecutable, in view of Section 19 of the 1956 Act. After construing the provisions of Section 50 of the 1958 Act, barring jurisdiction of Civil Court to entertain the suit against a tenant, the Court held the defendant not to fall within the definition of a “tenant”, so prescribed under the provisions of Section 2(1) of the 1958 Act. It is in this backdrop that jurisdiction of Civil Court to entertain the suit for possession of the premises was held not to be barred under the provisions of the 1958 Act. The said Act had specifically excluded from the definition of a “tenant”, a person who had already suffered a decree for ejectment. It is in this backdrop that jurisdiction of Civil Court to entertain the suit for possession of the premises was held not to be barred under the provisions of the 1958 Act. The said Act had specifically excluded from the definition of a “tenant”, a person who had already suffered a decree for ejectment. 13.A Division Bench of this Court in Sunit Kumar versus Laxmi Chand, 2009(2) SLC 448, in identical circumstances, after considering the provisions of the Rent Act, held as under: “28. To sum up we hold that the Civil Court has the jurisdiction to entertain a suit even in respect of an area where the Rent Act is applicable. We also hold that in case the area was not within the purview of the Rent Act and during the course of legal proceedings area where the disputed premises are situate is brought within the ambit of the Rent Act then also the proceedings can continue and taken to their logical conclusion but the decree of eviction will not be executable. We also hold that the decree passed by a Civil Court shall be executable in respect of other matters except in regard to eviction of a tenant. Therefore, if the Civil Court passes a decree for payment of rent/mesne profits/damages and also a decree for possession, it is only the decree for possession which is unexecutable but the decree for payment of rent/mesne profits/ damages is executable in accordance with law. The Rent Act only gives protection from eviction and not on other counts.” 14.Thus, lower appellate Court, in my considered view, misconstrued the scope of Section 14 of the Rent Act and wrongly dismissed the suit, holding the same to be barred under the provisions of the Rent Act. 15.But however, it cannot be held that parties are to be governed under the provisions of General Law of the land and not the Rent Act, as on the date of determination of tenancy or institution of the suit. 16.While contending that the decree passed by the trial Court was in fact executable, Mr. Verma has further referred to the decision rendered by the apex Court in Shri Kishan alias Krishan Kumar and others versus Manoj Kumar and others, (1998) 2 SCC 710 . 16.While contending that the decree passed by the trial Court was in fact executable, Mr. Verma has further referred to the decision rendered by the apex Court in Shri Kishan alias Krishan Kumar and others versus Manoj Kumar and others, (1998) 2 SCC 710 . I am afraid, the decision was not dealing with the provisions para materia with the Rent Act and the ratio is based on the relevant applicable provisions of the statute. 17.Finding fault with the findings of lower appellate Court, dismissing the suit in toto, Mr. Verma has referred to and relied upon the decision of the apex court in Mansoor Khan versus Motiram Harebhan Kharat and another, (2002) 5 SCC 462 , wherein it is held that in the absence of any specific bar, proceedings pending before the Civil Court for ejectment of a tenant would continue. 18.Undoubtedly, in view of the decision rendered by this Court in Sunit Kumar (supra) and plain reading of the statute, the lower appellate Court erred in dismissing the plaintiff’s suit in toto. The Rent Act did not contain any bar/prohibition from continuance of any suit filed prior to its enforcement. The principle of law in fact stands settled by the apex Court. 19.It is now well settled that rights of parties would be determined on the basis of rights available to them on the date of institution of the suit or proceedings and the suit/action should be tried at all stages on the basis of cause of action, as it existed at the commencement of the suit/action. (See: Nopany Investments (P) Ltd. versus Santokh Singh (HUF), (2008) 2 SCC 728 ; Kedar Nath Agrawal (Dead) and another versus Dhanraji Devi (Dead by LRs, and another, (2004) 8 SCC 76 ; R. Kapilnath (Dead) through LR versus Krishna, (2003) 1 SCC 444 ; Ramesh Chandra versus III Additional District Judge and others, (1992) 1 SCC 751 ; Suresh Chand versus Gulam Chisti, (1990) 1 SCC 593 ; Atma Ram Mittal versus Ishwar Singh Punia, (1988) 4 SCC 284 ; and Nand Kishore Marwah and others versus Samundri Devi, (1987) 4 SCC 382 ). 20.It is a settled position of law that right of a tenant under the Rent Act is a protective right and not a vested right. 20.It is a settled position of law that right of a tenant under the Rent Act is a protective right and not a vested right. In effect, in view of special Rent enactments, the right and remedy available to a landlord under the General Law remains suspended. Landlord’s vested right under General Law continues so long as it is not abridged by a protective legislation. The moment this protection is withdrawn, landlord’s normal vested right reappears and becomes enforceable. (See: Nopany Investments (supra); Vishwant Kumar versus Madan Lal Sharma and another, (2 004) 4 SCC 1; and Ambalal Sarabhai Enterprises Ltd. versus Amrit Lal & Co. and another, (2001) 8 SCC 397 ). 21.No other point urged. 22.In view of the aforesaid discussion, it is thus evidently clear that the plaintiff was well within his right to have filed and continued with the suit before the Civil Court. Judgment and decree passed by the Civil Court, decreeing the suit, cannot be said to be a nullity, in the absence of any specific bar contained in sub-section (1) of Section 14, or any other provision of the Rent Act. However, the decree being inexecutable, shall continue to remain as such till such time the umbrella of statutory protection continues to remain. Hence, both the appeals stand disposed of accordingly and judgment and decree passed by the lower appellate Court is set aside and that of the trial Court is affirmed. Substantial question of law is answered accordingly. Both the appeals stand disposed of, so also pending application(s), if any.