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2018 DIGILAW 2075 (HP)

Rajesh @ Raju v. Dayawant Singh

2018-11-26

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This revision petition has been preferred against the judgment dated 30.12.2010 passed by learned Appellate authority, Shimla in an appeal registered as CMA No. 53-S/14 of 2010 quashing thereby the order dated 26.5.2010 passed by learned Rent Controller-(IV), Shimla whereby an application under Order IX Rule 9 read with Section 151 CPC registered as case No. 31/6 of 2008 was dismissed. 2. Petitioner herein is one of the tenants in the demised premises namely “Chur View Estate” near main Sanjauli Chowk, Shimla. The respondent No. 1 is landlord, whereas proforma respondent No. 2, the mother of the petitioner his co-tenant. The landlord Dayawant Singh had sought the eviction of both tenants on the grounds, inter alia, that they have not paid the rent from 1.1.1990 onwards and respondent-tenant No. 1 Smt. Lalita Devi had subleted the demised premises in favour of respondent No. 2. 3. In the rent petition on completion of the pleadings and framing issues, the evidence of petitioner-landlord has already been recorded. The petition was at the stage of recording the respondents’ evidence when taken up for the purpose on 29.8.2007, was dismissed under Order IX Rule 8 of the Code of Civil Procedure for non-prosecution. 4. The petitioner-landlord claims that he is residing at Mohali in Punjab. He had engaged Shri M.M. Vaid (since dead) Advocate to represent him in the rent petition. He being 79 years of age and not keeping good health on account of hypertension and diabetes had not been visiting or residing at Shimla during winter season. It was, therefore, in July 2008 when visited Shimla and went to the office of the Lawyer he engaged to ascertain the status of the rent petition had shocked to know about his death. He came to know that the rent petition was dismissed on 29.8.2007. He applied for certified copy of the order and immediately on receipt thereof filed the application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure for quashing the order dated 29.8.2007 and restoration of the eviction petition to its original number and file. He also filed an application under Section 5 of the Limitation Act to condone the delay as had occurred in filing the application under Order IX Rule 9 CPC. 5. The application was resisted and contested by the respondents-tenants. He also filed an application under Section 5 of the Limitation Act to condone the delay as had occurred in filing the application under Order IX Rule 9 CPC. 5. The application was resisted and contested by the respondents-tenants. On the pleadings of the parties, the following issues were framed :- (i) Whether there are sufficient grounds for restoration of the petition which was dismissed in default on 29.08.2007 and condone the delay in filing this application as alleged? OPA (ii) Final order. 6. Petitioner-landlord has himself stepped into the witness box in support of his case as set out in the application. Similarly, respondent No. 2 Rajesh also stepped into the witness box as RW1. Learned trial Judge on appreciation of the given facts and circumstances and also the evidence available on record has arrived at a conclusion that the petitioner-landlord has failed to show sufficient cause warranting the condonation of delay as occurred in filing the application under Rule 9 CPC. Consequently, the application under Section 5 of the Limitation Act and also the application under Order IX Rule 9 CPC both were dismissed vide order dated 26.5.2010. 7. This order was challenged in an application registered as CMA No. 53-S/14 of 2010 before learned Appellate Authority below. Learned lower Appellate Court as noticed at the outset has accepted his appeal and quashed the order passed by learned Rent Controller. As a consequence thereof the Rent petition has been ordered to be restored to its original number and file with a direction to learned Rent Controller to decide the same within four months. 8. Anyhow, the judgment passed by learned Appellate Authority has been challenged before this Court on the grounds, inter alia, that it is only the application under Section 5 of the Limitation Act has been decided vide impugned judgment and not the application under Order IX Rule 9 of the Code of Civil Procedure. The said application, according to respondents-tenants, could have not been entertained unless and until the delay condoned. The said application, according to respondents-tenants, could have not been entertained unless and until the delay condoned. It is also pointed out that the impugned order could have not been challenged in a civil miscellaneous appeal under Order XLIII Rule 1(c) of the Code of Civil Procedure as the appeal against an order passed by learned Rent Controller lies to the Appellate Authority only under the provisions of the H.P. Urban Rent Control Act and not under the provisions of Code of Civil Procedure. The approach of learned Appellate Authority, as such, is altogether contrary to law. Even if the appeal was maintainable according to respondents-tenants, in that event also, the application under Order IX rule 9 CPC could have not been decided on merits unless and until the application under Section 5 of the Limitation Act decided. The findings that the provisions contained under the Code of Civil Procedure are applicable to the proceedings under the Rent Control Act are also erroneous. In this case learned Appellate Authority has allegedly decided the application under Order IX Rule 9 CPC first and the application 5 of the Limitation Act thereafter. In the absence of reasonable and plausible explanation the delay as occurred was rightly not condoned by learned Rent controller. After the death of late Shri M.M.Vaid, Advocate, S/Shri Tarun Vaid and Pradeep Verma, Advocates had filed power of attorney on behalf of the petitioner-landlord. Therefore, according to respondents-tenants it cannot be said that the petitioner-landlord was unrepresented. It has, therefore, been submitted that learned Appellate Authority while allowing the appeal and quashing the order passed by learned Rent Controller has exceeded the jurisdiction vested in it. The impugned judgment, as such, has been sought to be quashed and set aside. 9. On hearing Mr. Gian Chand Gupta, learned Senior Advocate assisted by Ms. Meera Devi, Advocate for the petitioner and Ms. The impugned judgment, as such, has been sought to be quashed and set aside. 9. On hearing Mr. Gian Chand Gupta, learned Senior Advocate assisted by Ms. Meera Devi, Advocate for the petitioner and Ms. Seema K. Guleria, Advocate for petitioner-landlord (respondent No. 1 in this revision petition) and also going through the record, the only question arises for determination in the case in hand is as to whether learned Lower Appellate Authority has exceeded its jurisdiction in entertaining the appeal and quashing the order passed by learned Rent Controller whereby the application under Order IX Rule 9 CPC filed with a prayer for restoration of the Rent Petition was dismissed on the sole ground that the petitioner-landlord has failed to show sufficient cause warranting the condonation of delay as occurred in filing the same. 10. The main ground of challenge is that no appeal is maintainable before the Appellate Authority under an order passed by the Rent Controller in the exercise of the jurisdiction vested under the provisions of H.P. Urban Rent Control Act. Learned trial Court in the given facts and circumstances has formed an opinion that since the provisions contained under the Code of Civil Procedure are applicable in rent proceedings, therefore, the appeal under Order XLIII Rule 9 (c) CPC against an order passed in an application under Order IX Rule 9 CPC is maintainable. The bare perusal of the provisions contained under Order XLIII Rule 1(c) CPC reveals that an order passed in an application under Order IX Rule 9 CPC is appealable thereunder. Mr. Gian Chand Gupta, learned Senior Advocate has mainly emphasized that as per the notification dated 10th October, 2006 an appeal is maintainable before learned Appellate Authority only against an order passed under Sections 4,5,11,12,13,14 except 14(3)(a)(iii) and Section 21 of the HP Urban Rent Control Act. Therefore, according to Mr. Gupta any other order passed by learned Rent Controller can be challenged in the High Court only by way of filing a revision petition. This Court, however, is not in agreement with the submissions so made for the reasons that a Full Bench of this Court in Vinod @ Raja versus Smt. Joginder Kaur, 2012(3) Him. Therefore, according to Mr. Gupta any other order passed by learned Rent Controller can be challenged in the High Court only by way of filing a revision petition. This Court, however, is not in agreement with the submissions so made for the reasons that a Full Bench of this Court in Vinod @ Raja versus Smt. Joginder Kaur, 2012(3) Him. L.R. (FB) 1401 has held that any person aggrieved by an order which finally decides his fate in the case and against which Appellate Authority has not been prescribed in the notification issued by the government, an appeal is maintainable as per the scheme of the Civil Procedure Code, until otherwise specified by the government by way of issuance of an appropriate notification. This judgment reads as follow: “Wherever a right is provided by a statute, a remedy though not expressly provided for, may necessarily be implied. Whenever there is a right, there should also be an action for its enforcement and the legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of the rights which the law has recognized, as held by the apex Court in Constitution Bench decision in Makhan Singh Tarsikka versus The State of Punjab, reported in AIR 1964 SC 381 . Guided thus by the salutary and first principles in the matter as above, we hold that any person aggrieved by an order which finally decides his fate in the case for which appellate authority is not otherwise provided in the notification issued by the government under Section 24(1) of the Himachal Pradesh Urban Rent Control Act, 1987, an appeal is maintainable as per the scheme of the Civil Procedure Code, until otherwise specified by the government by way of an appropriate notification. The Registry will send back the records to the learned Single Judge for appropriate further orders in the case.” 11. An order passed under the provisions of Order IX Rule 8 CPC decides the fate of the person aggrieved finally. The Registry will send back the records to the learned Single Judge for appropriate further orders in the case.” 11. An order passed under the provisions of Order IX Rule 8 CPC decides the fate of the person aggrieved finally. Since in the notification, as discussed hereinabove, there exists no provisions to challenge an order of this nature and as the impugned order has decided the fate of the rent petition finally, therefore, in view of the law laid down by the Full Bench of this Court in Vinod’s case cited supra, learned Appellate Authority has not committed any illegality or irregularity in entertaining the appeal. The contentions to the contrary brought to this Court in the present petition are not legally sustainable. 12. It is worth mentioning that the rules of procedure being hand made are meant for advancement of justice and not to thwart it. When by way of notification the forum to challenge an order dismissing the rent petition in default has not been provided by the legislature, therefore, the petitioner-landlord has rightly preferred the appeal under the Scheme of the Civil Procedure Code as per the law laid down by the Full Court in Vinod’s case cited supra. 13. Now if coming to the merits of the case, there is no denial to the factum that the petitioner-landlord is an old man of 79 years of age. There is also no denial to the averments in the application that he is a patient of hypertension and diabetes. Merely, that he allegedly concocted false story as has come in reply to the application is not enough to form an opinion that he failed to show sufficient cause. It can reasonably be believed as true that a litigant is not required to remain present on each and every date of hearing that too when he is represented by a Counsel. The petitioner-landlord in the rent petition was represented by late Shri M.M. Vaid, Advocate, Shri Vaid admittedly was not in the land of living on the date when the petition dismissed in default. The power of attorney signed by S/Shri Tarun Vaid and Pradeep Verma, Advocates may be on record, however, signed by the petitioner-landlord in their favour or was lying already in the brief during life time of Shri M.M. Vaid, nothing has come on record in this regard. The power of attorney signed by S/Shri Tarun Vaid and Pradeep Verma, Advocates may be on record, however, signed by the petitioner-landlord in their favour or was lying already in the brief during life time of Shri M.M. Vaid, nothing has come on record in this regard. Therefore, it is doubtful that the factum of S/Shri Tarun Vaid and Pradeep Verma, Advocates being representing him was in the knowledge of the petitioner-landlord. Nothing can be said in this regard also. Otherwise also, had the factum of the rent petition dismissed in default been in the knowledge and notice of the petitioner-landlord, it is not understandable as to why he should have not pursued the same and rather delayed the filing of application under Order IX Rule 9CPC. He had nothing to gain thereby and ultimately by delaying the filing of application for its restoration. True it is that on the expiry of the period prescribed for filing an application under Order IX Rule 9 CPC a valuable right had accrued in favour of the respondents-tenants. However, the present is not a case where such right has been taken away without any justifiable reasons and rather on the petitioner-landlord having satisfactorily explained the delay as occurred has shown sufficient cause warranting the condonation of delay. The present, as such, is a fit case which need adjudication on merits instead of its dismissal for want of prosecution. The present, therefore, is a case where the petitioner-landlord has successfully shown sufficient cause warranting the condonation of delay as occurred in filing the application under Order IX Rule 9CPC. Learned Appellate Authority, therefore, has not misdirected or erred legally while allowing the application and condoning the delay. 14. The another submission that no issue nor any consideration having taken place in the application under Order IX Rule 9 CPC is again without any substance for the reasons that the application under Order IX rule 9 CPC and the application under Section 5 of the Limitation Act are being taken up together for disposal. 14. The another submission that no issue nor any consideration having taken place in the application under Order IX Rule 9 CPC is again without any substance for the reasons that the application under Order IX rule 9 CPC and the application under Section 5 of the Limitation Act are being taken up together for disposal. The moment it is established that the delay as occurred stands satisfactorily explained, there hardly remain anything to deny the relief sought in the application under Order IX Rule 9 CPC for the reasons that such an application otherwise also deserves to be allowed in case the applicant-petitioner succeeds in explaining his absence or the absence of learned counsel representing him on the date of hearing when the petition/L is dismissed in default. In the case in hand Shri M.M. Vaid, Advocate representing the petitioner-landlord had already expired. The petitioner himself was residing at Mohali in Punjab. He being an old man of 79 years and a patient of hypertension as well as diabetic, on account of health ground was not residing at Shimla during winter season. Therefore, he has no occasion to have come to know about the order passed in the rent petition on 29.8.2007 by learned Rent Controller dismissing thereby the same in default. Therefore, nothing much was for consideration by learned Appellate Authority after recording its satisfaction qua the sufficient cause shown by the petitioner-landlord and condoning the delay, to quash the order whereby the rent petition was dismissed in default and restoration of the same to its original number and file. 15. It is worthwhile to mention here that the scope of interference by the High Court in the exercise of its revisional jurisdiction is very limited and it is well settled at this stage that such jurisdiction should only be exercised in a case of sheer miscarriage of justice caused to the aggrieved party. The present, however, is not a case of sheer injustice having been caused to the respondents-tenants and rather it is the petitioner-landlord who would have suffered with loss and injury more serious in nature had the order of dismissal of rent petition in default been quashed and set aside as in that event he would have been deprived of getting the dispute adjudicated on merits. 16. 16. In view of what has been said hereinabove, there is no merit in this petition and the same is accordingly dismissed. Learned Rent Controller is directed to decide the Rent Petition at the earliest being old one, preferably within six months from today. 17. The parties through learned Counsel representing them are directed to appear before leaned Rent Controller on 20.12.2018. 18. The petition is accordingly disposed of, so also the pending applications, if any.