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2018 DIGILAW 15 (UTT)

Lalit Mohan Kandpal v. Ashok Kumar Lohni

2018-01-05

SHARAD KUMAR SHARMA

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JUDGMENT : Sharad Kumar Sharma, J. 1. These are two connected Writ Petition No. 2023/2012, Lalit Mohan Kandpal vs. Ashok Kumar Lohni and Writ Petition No. 1629/2012, Ashok Kumar Lohni vs. Lalit Mohan Kandpal, which are been decided by this common judgment (hereinafter called as first and second writ petition). 2. In the first writ petition which has been preferred by the landlord is against the order dated 29.5.2012 passed in Rent Control Appeal No. 3/2010 Ashok Kumar Lohni vs. Lalit Mohan Kandpal, by virtue of which the landlord’s application for amendment, as amendment, as sought in the release application has been rejected. The factual backdrop which has resulted into institution of present writ petitions are that the tenement in question constitutes to be shop bearing no. 11/369 Meera Marg, Haldwani, District Nainital, of which respondent claimed himself to be a tenant. Seeking release of the tenement the landlord/petitioner had invoked the proceedings under section 21 (1) (a) of the Act No. 13 of 1972, which was objected by the respondent/tenant by filing the written statement on 16.11.2007. He alleges himself to be aggrieved. 3. It is the contention of learned counsel for the tenant/respondent that initially the landlord had denied the relationship of landlord and tenant and declined to accept him as a tenant. Consequentially to overcome any adverse legal implications, due to non acceptance of rent by landlord, the tenant contends that he has filed an application for depositing the rent by invoking section 30(1) of the Rent Control Act and continued to deposit the rent. 4. May that it be so, Section 30 otherwise would not be having any impact on the merits of 21 (1) (a), because the fact remains that the release application as preferred by the petitioner/landlord was allowed by the Prescribed Authority by the order dated 30.11.2007 directing the release of tenement in favour of the landlord holding thereof that his need is bona-fide as compared to that of the tenant. 5. Being aggrieved against the order, the respondent/tenant preferred an appeal invoking section 22 of Act No. 13 of 1972 before the District Judge, Nainital, which was numbered as Appeal No. 3/2010, Ashok Kumar Lohni vs. Lalit Mohan Kandpal. While the appeal was pending, petitioner landlord of Writ Petition No. 2023/2012 has preferred an application seeking amendment in the release application itself. While the appeal was pending, petitioner landlord of Writ Petition No. 2023/2012 has preferred an application seeking amendment in the release application itself. By virtue of the amendment as sought for by the landlord/petitioner. He by invoking section 34 (1) (b) read with Rule 22 (d) had sought the amendment, by virtue of it he wanted to bring the pleadings in release to the effect of accepting the relationship of landlord and tenant which has earlier denied to exist, on the ground that since the tenant has claimed himself to be the successor of Bala Dutt Lohni, the predecessor of tenant. It is this application which was objected by the respondent/tenant by filing an objection on 22.6.2010. The application has been rejected by the order of the Appellate Authority i.e. District Judge dated 22.6.2010 which is under challenge in the writ petition by the landlord. 6. Admittedly according to the respondent/tenant, he himself claims to be the tenant having succeeded tenancy from his predecessor/tenant and that is why to qualify the arguments raised to the contrary by the petitioner landlord about his status as a tenant he had deposited the rent under section 30. Once the respondent/tenant deposits the rent under section 30 it is he who rather admits his status to be that of a tenant. 7. In that eventuality, if the amendment application as sought for in the release is taken into consideration it goes to be in consonance to the stand and pleadings taken by the tenant himself. Further more, if that be so the allowing of the amendment application wherein only the status of the tenant is accepted by the writ petitioner, it does not have any adverse bearing on the proceedings under Rent Control Act of 1972. 8. Thus the reason consigned by the court for rejecting the amendment application as preferred by the petitioner in the impugned order dated 29.5.2012 is untenable and is quashed. The amendment application as preferred by the petitioner Annexure-5 of the writ petition is allowed. The petitioner is directed to make the necessary amendment in the release application within one month from the date of production of the certified copy of the order. Accordingly, the Writ Petition no. 2023/2012 succeeds and is allowed. 9. No order as to costs. 10. The other connected Writ Petition no. The petitioner is directed to make the necessary amendment in the release application within one month from the date of production of the certified copy of the order. Accordingly, the Writ Petition no. 2023/2012 succeeds and is allowed. 9. No order as to costs. 10. The other connected Writ Petition no. 1629/2012 has been preferred by the tenant challenging the Appellate court’s order as passed by the learned District Judge on 29.5.2012 whereby the Addl. District Judge while allowing the Rent Control Appeal No. 3/2010 has quashed the Prescribed Authority order and had remitted the matter back for its fresh decision to the Prescribed Authority. This order of remand passed in Appeal by the learned District Judge on 29.5.2012 remanding the matter to Prescribed Authority has not been challenged by the landlord, it would mean he submits to the order of remand. 11. The Appellate court while considering the rival contentions of the parties where a challenge was given to the order dated 03.01.2010 passed by the Prescribed Authority allowing the release in Rent Control Case No. 1/2007, Lalit Mohan Kandpal vs. Ashok Kumar Lohni, while allowing the release application the Appellate Authority has held while remitting the matter back to Prescribed Authority from the view point that since in the application under section 21 (1) (a) the status of the petitioner has been admitted to be that of a tenant after taking into consideration the impact of deposits made under section 30 (1) of Rent Control Act as well as the effect of amendment sought by landlord in appeal, the learned Appellate Court observed that the learned Prescribed Authority had not considered the effect of relationship of landlord and tenant which is necessary for the purposes of adjudication of the proceedings under section 21 (1) (a) and hence has remitted the matter by the impugned judgment dated 29.5.2012 for its fresh decision. 12. 12. At this juncture it may be pointed out that order of remand passed by the Appellate Authority since is not deciding any right between the parties, it would not be termed as to be a decision rendered determining the rights in a case as it was to be deciding a fresh by the Trial Court i.e. Prescribed Authority herein after remand and it is for this reason it has been termed as to be interlocutory order, against which the writ petition under Article 227 is not maintainable. 13. Learned counsel for the petitioner herein submits that as a matter of fact, by allowing the connected petition preferred by the landlord against rejection of amendment wherein his status has now been admitted by the landlord to be that of a tenant by virtue of amendment. If it all, it casts any difficulties in the adjudication or with regards to the claims sought to be agitated by the tenant, it would be open for him to raise all the claims to the contrary before the Prescribed Authority including his contentions (if any) likely to be affected by virtue of the landlord amendment which has been allowed by this court. 14. In that view of the matter, the writ petition as preferred by the tenant/petitioner against the order of remand dated 29.5.2012 is dismissed subject to the above observations. 15. No order as to costs.