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2015 DIGILAW 308 (HP)

Rama Devi v. Sushil Kumar Handa

2015-04-08

P.S.RANA

body2015
JUDGMENT P.S. Rana, J. 1. Present appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree passed by learned Additional District Judge (2) Mandi in Civil Appeal No. 58 of 2011 titled Smt. Rama Devi and others vs. Susheel Kumar Handa and others. 2. Brief facts of the case as pleaded are that plaintiffs filed a suit for permanent prohibitory and mandatory injunction pleaded therein that three storeyed building comprising in khata khatauni No. 326/371 khasra No. 8 measuring 47-25 Sq. metre is situated in Mohalla Thanehra Mauza Magwain Tehsil Sadar District Mandi HP owned by one Sh Geeta Nand son of Sh. Todar who expired. It is pleaded that out of three storey building first and second story was rented out to Sh Mela Ram in the year 1964 and third storey is in the occupation and possession of the plaintiffs as owners. It is pleaded that Sh Mela Ram original tenant expired and he was succeeded by defendants who are in occupation of the first and second storey of the building as tenants. It is pleaded that defendants without any consent and permission of the owners have removed wooden planks of the roof of second storey and have raised the height of existing second storey to three feets above and have laid down slab and are adamant to raise further construction. It is pleaded that construction on the part of defendants is without any approval of construction plan. It is pleaded that defendants also threatened that they would occupy the third storey also. It is pleaded that defendants are tenants under the plaintiffs and they have no right to change the existing structure of the building. Prayer for decree of the suit as mentioned in relief clause of plaint sought. 3. Per contra defendants filed written statement pleaded therein that plaintiffs have no cause of action and locus standi to file present suit. It is pleaded that plaintiffs did not approach the Court with clean hands. It is pleaded that two stories building were rented by late Sh Geeta Nand to late Sh Mela Ram in the year 1960. It is pleaded that third storey of the building was also rented out by Sh Geeta Nand to Mela Ram on dated 1.1.1971. It is pleaded that entire premises is under the possession of defendants on rent. It is pleaded that two stories building were rented by late Sh Geeta Nand to late Sh Mela Ram in the year 1960. It is pleaded that third storey of the building was also rented out by Sh Geeta Nand to Mela Ram on dated 1.1.1971. It is pleaded that entire premises is under the possession of defendants on rent. It is admitted that Mela Ram was succeeded by defendants. It is denied that defendants without any consent and permission of the owners have removed the wooden planks. It is pleaded that entire work was done in the presence of land owners with their consent. Prayer for dismissal of suit sought. Plaintiffs also filed replication. As per pleadings of the parties the following issues were framed by learned trial Court on dated 15.9.2008: 1. Whether plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? OPP 2. Whether plaintiffs are also entitled for the relief of mandatory injunction as claimed? OPP 3. Whether plaintiffs have concealed true facts and are not entitled for discretionary relief of injunction as alleged? OPD 4. Whether defendants are also in occupation the third floor of the premises in the capacity of tenant as alleged? OPD 5. Relief. 4. Findings of the learned trial Court upon issue No.1 are in affirmative and findings of learned trial Court upon issues No. 2, 3 and 4 are in negative. Learned trial Court passed decree of permanent prohibitory injunction in favour of plaintiffs and against defendants restraining defendants from removing wooden planks and karia (wooden articles) from the roof of second storey or making any addition or alteration in the building in dispute comprised in khata khatoni No. 326/371 khasra No.8 measuring 47-25 Sq. Metres situated in Mohalla Thanehra Mauja Magwain Tehsil Sadar District Mandi HP. 5. Feeling aggrieved against the judgment and decree passed by learned trial Court appellants filed Civil Appeal No. 58 of 2011 titled Smt. Rama Devi and others vs. Susheel Kumar and others before learned Additional District Judge (II) Mandi. Learned first appellate Court dismissed the appeal filed by the appellants. 6. Feeling aggrieved against the judgment and decree passed by learned first appellate Court in Civil Appeal No. 58 of 2011 appellants filed present appeal under Section 100 of the Code of Civil Procedure. Learned first appellate Court dismissed the appeal filed by the appellants. 6. Feeling aggrieved against the judgment and decree passed by learned first appellate Court in Civil Appeal No. 58 of 2011 appellants filed present appeal under Section 100 of the Code of Civil Procedure. Hon’ble High Court of HP on dated 9.9.2014 admitted the appeal on the following substantial questions of law: 1. Whether judgment and decree passed by learned first appellate Court is sustainable without adjudication upon serious and disputed questions of law? 2. Whether learned First Appellate Court has misconstrued the provisions of HP Urban Rent Control Act 1987 and eclipsed civil rights of the parties under the general law of the land? 3. Whether learned Courts below are justified in issuing blanket injunction order in favour of the land lord especially when the land lord himself failed to fulfill his obligation under the HP Urban Rent Control Act 1987? 4. Whether learned Courts below have ignored the material evidence and have based findings on material which was not proved on record by legal evidence? 7. Court heard learned Advocate appearing on behalf of the parties at length and also perused the entire record carefully. 8. Parties produced following witnesses in support of their case:- PW1 Sh. Mahinder Kumar PW2 Sh. Pawan Kumar DW1 Sh. Vijay Kumar DW2 Sh. R.S. Rana 9. Parties also produced following pieces of documentary evidence in support of their case:- S. No. Ext. No. & Date Description 1. Ext.PA Death certificate of Geeta Nand. 2. Ext.PB Jamabandi for the year 1999-2000. 3. Mark-A Copy of structure stability certificate. 4. Mark-B Copy of site plan. 5. Mark-C Copy of site plan. 6. Ext.DW-2/A Affidavit in evidence on behalf of the defendant 7. Ext.DA Affidavit in evidence on behalf of the defendant 8. Ext.DX & DY Photographs. 10. Oral evidence adduced by the parties. 10.1 PW1 Mohinder Kumar has stated that disputed property is three stories building and plaintiffs are owners of the suit property. He has stated that his father died on dated 19.1.1968. He has stated that death certificate is Ext PA placed on record. He has stated that building is seventy years old and condition of the building is not proper. He has stated that his father inducted Mela Ram as tenant in the building in the year 1964 and third storey remains in the possession of owners. He has stated that death certificate is Ext PA placed on record. He has stated that building is seventy years old and condition of the building is not proper. He has stated that his father inducted Mela Ram as tenant in the building in the year 1964 and third storey remains in the possession of owners. He has stated that defendants are running Punjabi restaurant in the suit property. He has stated that defendants are raising construction in the suit property. He has stated that defendants are intending to raise slab over the suit property without consent of the owners. He has stated that defendants did not obtain any prior permission from Town and Country Planning and Municipal Corporation for construction. He has tendered in evidence Jamabandi Ext PB for the year 1999-2000. He has admitted that suit property is situated in the middle of Mandi market. He has denied suggestion that defendants are tenants of entire building. 10.2 DW1 Vijay Kumar has tendered affidavit Ext DA in examination-in-chief. There is recital in the affidavit that two stories of building was rented out by late Sh Geeta Nand to late Sh Mela Ram in the year 1960. There is recital in the affidavit that subsequently third storey of the building was also rented out by late Sh Geeta Nand to late Sh. Mela Ram. There is recital in the affidavit that repair of the premises was conducted in the year 1994 with the consent of owners. There is further recital in the affidavit that slab was laid on half portion of the premises. There is recital in the affidavit that no further construction or repair of the premises was conducted after 1994. There is recital in the affidavit that building did not require any further repair. DW1 has admitted in cross examination that plaintiffs are owners and defendants are tenants. DW1 has admitted that height of third storey had diminished due to construction of slab. DW1 has stated that no permission from Municipal Committee or Town and Country Planning was obtained for repair. DW1 has denied suggestion that tenant intends to possess third storey of the building. Self stated that tenants are already in possession of third storey of the building. 10.3 DW2 Sh R.S. Rana has tendered an affidavit Ext.DW2/A in examination-in-chief. DW1 has stated that no permission from Municipal Committee or Town and Country Planning was obtained for repair. DW1 has denied suggestion that tenant intends to possess third storey of the building. Self stated that tenants are already in possession of third storey of the building. 10.3 DW2 Sh R.S. Rana has tendered an affidavit Ext.DW2/A in examination-in-chief. There is recital in the affidavit that deponent was knowing late Sh Geeta Nand and late Sh Mela Ram and deponent has also seen the suit property. There is recital in the affidavit that premises is three stories building. There is recital in the affidavit that third storey was also rented out by late Sh Geeta Nand to late Sh Mela Ram in the year 1966. There is recital in the affidavit that defendants are running a hotel in the building. There is recital in the affidavit that repair of the premises was conducted in the year 1994 and same continued for about two months and thereafter no repairs was conducted. There is recital in the affidavit that building did not require any repair. DW2 has denied suggestion that defendants have uprooted the planks of the roof without consent of the land owners. DW2 has stated that the age of the building is seventy years old. DW2 has denied suggestion that condition of the building is in very bad condition. 10.4. Plaintiffs also examined PW2 Pawan Kumar in rebutal. He has stated that Sh Geeta Nand was his father and two stories building was given to late Sh Mela Ram. He has stated that no permission to change the premises was given by land owners. He has stated that residential premises of the land owners is situated at the distance of half kilometre from the suit property. Finding upon point No.1 of substantial question of law. 11. Submission of learned Advocate appearing on behalf of the appellants that learned trial Court and learned first appellate Court have not adjudicated serious and disputed questions of fact in the present case is rejected being devoid of any force for the reason hereinafter mentioned. On dated 15.9.2008 issues were framed by learned trial Court and there is recital in the order sheet that issues were read over and explained to the parties and no other issues arise or claimed. On dated 15.9.2008 issues were framed by learned trial Court and there is recital in the order sheet that issues were read over and explained to the parties and no other issues arise or claimed. It is proved on record that thereafter learned trial court had given opportunity to both parties to lead evidence in support of their issues. It is proved on record that plaintiffs are owners of the suit property and defendants are the tenants of suit property. It is also proved on record that defendants are running restaurant in the suit property. Learned trial Court has given reasons upon issue No.1 in para No.16 to 25 in positive, cogent and reliable manner. Learned trial Court has also given reasons upon issues No. 2, 3 and 4 in paras No. 26 27 and 28 with positive, cogent and reliable manner. It is held that learned trial Court and learned first appellate Court have adjudicated all disputed questions of fact involved in the present case in a legal manner. Hence point No.1 of substantial question of law is answered against the appellants. Finding upon point No. 2 of substantial question of law. 12. Submission of learned Advocate appearing on behalf of the appellants that learned first appellate Court had misconstrued the provisions of HP Urban Rent Control Act 1987 and eclipsed civil rights of appellants is also rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that HP Urban Rent Control Act 1987 is applicable in the present case because suit property is situated in Municipal area in the middle of Mandi market. As per Section 13 of the HP Urban Rent Control Act 1987 it is the duty of the landlord to keep the building in good repair and if the landlord neglects to keep the building in good repair then tenants may make the repair himself after giving prior notice to the landlord in writing and could deduct the expenses of repair from the rent not exceeding one-twelfth of the rent payable by the tenant for the year. In the present case there is no evidence on record in order to prove that written notice was given by the tenants to repair the building. In the present case there is no evidence on record in order to prove that written notice was given by the tenants to repair the building. It is held that learned first appellate Court has not misconstrued the provisions of HP Urban Rent Control Act 1987 to eclipse the civil rights of appellants. It is well settled law that when there is conflict between special law and general law then special act always prevails over the general law. In the present case tenants have specifically admitted that repair of the building was done in the year 1994 with the consent of owners. DW1 Vijay Kumar has admitted that repair of the building was continued for two months. DW1 Vijay Kumar has admitted that slab was laid on half portion of the premises in the year 1994. DW1 Vijay Kumar has also admitted that plaintiffs are the owners of the suit property and defendants are tenants. DW1 Vijay Kumar has also admitted that no prior permission of the Municipal Committee and Town and Country Planning was obtained for repair work of the building. It is well settled law that repair work within municipality area can only be conducted after obtaining prior permission of Municipal Committee and Town and Country Planning. Even DW2 R.S. Rana has corroborated the version that repair work was conducted in the year 1994 by the defendants. It is held that learned first appellate Court has not eclipse the civil rights of the appellants because it is well settled law that no tenants can raise construction over the suit property without the permission of Rent Controller within the municipality area. It is held that permission of Rent Controller is required for raising any construction or for repairing the premises within municipality area as per HP Urban Rent Control Act 1987. Hence point No.2 of substantial question of law is decided against the appellants. Finding upon point No. 3 of substantial question of law. 13. Submission of learned Advocate appearing on behalf of the appellants that learned courts below have issued blanket injunction in favour of the plaintiffs and against the defendants contrary to law is partly accepted for the reason hereinafter mentioned. Court has perused the judgment and decree passed by learned trial Court and affirmed by learned first appellate Court carefully. 13. Submission of learned Advocate appearing on behalf of the appellants that learned courts below have issued blanket injunction in favour of the plaintiffs and against the defendants contrary to law is partly accepted for the reason hereinafter mentioned. Court has perused the judgment and decree passed by learned trial Court and affirmed by learned first appellate Court carefully. Learned trial Court in para No.31 has granted decree of permanent prohibitory injunction in favour of the plaintiffs and against the defendants restraining the defendants from removing the wooden planks from the roof of the second storey or making any addition or alteration in the building in dispute. It is held that perpetual injunction could not be granted to the tenants contrary to HP Urban Rent Control Act 1987 because under Section 13 of the HP Urban Rent Control Act 1987 tenant is legally entitled to repair the premises himself after giving notice to the landlord and tenant also legally entitled to deduct the expenses of repair from the rent not exceeding one-twelfth payable by the tenant for the year. As per Limitation Act 1963 the limitation for execution of decree of mandatory injunction is three years from the date of decree or from date fixed for performance and limitation for execution of any decree other then the decree of mandatory injunction is twelve years. As per Limitation Act 1963 there would be no limitation for execution of decree of perpetual injunction. Court is of the opinion that decree of permanent prohibitory injunction is a perpetual prohibitory injunction. It is held that by way of granting perpetual prohibitory injunction in favour of landlord learned trial Court and learned first appellate Court have barred the tenants to seek relief under Section 13 of the HP Urban Rent Control Act 1987. It is held that perpetual prohibitory injunction granted by learned trial Court and affirmed by learned first appellate Court are contrary to law and contrary to Section 13 of the HP Urban Rent Control Act 1987. Hence point No.3 of substantial question of law is answered partly in favour of the appellants. Finding upon point No. 4 of substantial question of law. 14. Hence point No.3 of substantial question of law is answered partly in favour of the appellants. Finding upon point No. 4 of substantial question of law. 14. Submission of learned Advocate appearing on behalf of the appellants that learned trial Court have ignored material evidence and based its finding on material not proved on record is rejected being devoid of any force for the reason hereinafter mentioned. Court is of the opinion that landlord can seek the injunction against the tenant that tenant should not repair or should not raise any construction in the tenanted premises contrary to HP Urban Rent Control Act 1987. Admittedly it is proved on record that appellants are tenants of the premises and respondents are landlords of the premises. Even court has also perused jamabandi Ext PB placed on record. As per jamabandi Ext PB Geeta Nand has been recorded as owners of the premises and Mela Ram has been recorded as tenant of the premises. There is recital in the remarks column that third storey of the building is in the possession of owners. Jamabandi Ext PB has been prepared by the public servant in discharge of his official duty and is a relevant fact under Section 35 of Indian Evidence Act 1872. Tenants did not rebut jamabandi Ext PB placed on record and appellants did not examine any revenue official who has prepared jamabandi Ext PB in order to rebut the contents of the jamabandi. Hence point No.4 of substantial question of law is decided against the appellants. Relief: 15. In view of the above stated facts appeal is partly allowed and judgment and decree passed by learned trial Court and affirmed by learned first appellate Court are modified to the extent that both parties will be at liberty to take the benefit of HP Urban Rent Control Act 1987 in accordance with law. Judgment and decree of learned trial Court and learned first appellate Court are modified to this extent only. Decree sheet be drawn accordingly. File of the learned trial Court and learned first appellate Court along with certified copy of judgment be sent back forthwith. Parties are left to bear their own costs. Pending applications if any also disposed of. Appeal is disposed of.