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Himachal Pradesh High Court · body

2019 DIGILAW 2042 (HP)

Rajinder Singh v. Rajesh Madan

2019-12-30

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 18th December, 2018, passed by the Court of learned Appellate Authority, Fast Track Court, Shimla in Rent Appeal No. 47-S/14 of 2009, vide which, an application filed by the petitioner under Order 22, Rules 3 & 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963, stands dismissed. 2. Brief facts necessary for the adjudication of the present petition are that respondent before this Court filed Rent Petition No. 25-2 of 2006, titled as Shri Rajesh Madan Vs. Smt. Balwant Kaur under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 in the Court of learned Rent Controller, Shimla, which was allowed by the learned Rent Controller vide order dated 02.07.2009 in the following terms: “23. In view of my abovesaid discussions and findings, the petition succeeds and allowed with costs quantified at Rs.1000/-. The eviction of the respondent is ordered on the ground that the suit premises i.e. two rooms, kitchen, bath & toilet in top floor of house No. 82/3, Ganj Road, Shimla is bonafide required by the petitioner for reconstruction and re-building, which cannot be carried out without getting the suit premises vacated by the respondent. Accordingly, the respondent is directed to hand over vacant possession of the suit premises to the petitioner within 30 days from today. However petition on the ground the the suit premises has become unsafe and unfit for human habitation fails. 24. Memo of costs be prepared accordingly. 25. File, after its due completion, be consigned to record room.” 3. This order was assailed by Smt. Balwant Kaur by way of Rent Appeal No. 47-S/14 of 2009 before the learned Appellate Authority. The appeal was dismissed by the learned Appellate Authority, Fast Track Court, Shimla vide judgment dated 24.02.2010. The order passed by the learned Rent Controller as well as judgment passed by the learned Appellate Authority were assailed by Shri Rajinder Singh, son of late Shri Gian Singh by way of Revision Petition under Section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 before this Court. The order passed by the learned Rent Controller as well as judgment passed by the learned Appellate Authority were assailed by Shri Rajinder Singh, son of late Shri Gian Singh by way of Revision Petition under Section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 before this Court. The stand of the petitioner before this Court, inter alia, was that Smt. Balwant Kaur had died during the pendency of the appeal and as the petitioner and other heirs of late Shri Gian Singh were not aware of the litigation pending between the parties, they could not move an application for bringing them on record in place of late Smt. Balwant Kaur. It was further mentioned in the petition that it was only when the landlord filed an Execution Petition on 13th July, 2010, in which, the petitioner alongwith other legal heirs of late Shri Gian Singh were alleged to be in occupation of the premises, were made parties, that the petitioner came to know about the pendency of the said petition between Smt. Balwant Kaur and the landlord, upon receipt of notice thereupon. It was further the case of the petitioner before this Court that he was not aware of the order which was passed by the learned Rent Controller and the landlord had intentionally with malafide intention not impleaded him as a party. The Revision Petition was disposed of by this Court vide judgment dated 04.04.2018 in the following terms: “4. Be that as it may, taking into consideration the fact that the Appellate Court passed the judgment against a dead person, neither of the parties have disputed the fact that the said judgment is a nullity and has to b set aside. Accordingly, this revision petition is allowed to the extent that the judgment dated 24th February, 2010, passed by the learned Appellate Authority (Fast Track Court), Shimla in Civil Appeal No. 47- S/14 of 2009, is quashed and set aside, having been passed against a dead person. 5. The petitioner before this Court shall be at liberty to move an appropriate application before the Appellate Court to pursue the surviving cause in the appeal. 6. Mr. G.C. Gupta, learned Senior Counsel, for the petitioner, on instructions, submits that such application shall be filed within a period of four weeks from the date when the parties are directed to appear before the learned Appellate Court. 6. Mr. G.C. Gupta, learned Senior Counsel, for the petitioner, on instructions, submits that such application shall be filed within a period of four weeks from the date when the parties are directed to appear before the learned Appellate Court. 7. Mr. B.B. Vaid, learned counsel for the respondents submits that reply to the said application shall be positively filed within such time, as granted by the learned Appellate Court. 8. Upon completion of pleadings in such application, learned Appellate Court shall dispose of the application, as expeditiously as possible and not later than six weeks from the date of completion of pleadings. Thereafter, the learned Appellate Court shall proceed with the matter, in accordance with law, if so warranted. 9. The petition stands disposed of in above terms. Parties through their Counsel are directed to appear before the learned Appellate Court on 17.04.2018. 10. It is clarified that this Court has not adjudicated on any of the issues, on merits, which have been raised in this petition by the respective parties, including the issue of inheritance.” Thereafter, Rajinder Singh filed an application under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963 before the learned Appellate Authority in Appeal No. 47-S/14 of 2009 for bringing on record the legal representatives of late Smt. Balwant Kaur and for setting aside abatement and condonation of delay in filing the application. It was mentioned in the application that the applicant was not aware about the pendency of the litigation between Smt. Balwant Kaur and the landlord. He was not aware of the order which was passed by the learned Rent Controller or the judgment passed by the learned Appellate Authority in the appeal filed by Smt. Balwant Kaur. He came to know of the order so passed by the learned Rent Controller only upon receipt of notice in the Execution Petition filed by the landlord for executing order dated 02.07.2009, passed by the learned Rent Controller. It was further mentioned in the application that immediately thereafter, he had filed Objections in the Execution Petition, however, the same were dismissed vide order dated 26.06.2012 and the objections taken by him were not dealt with by the learned Executing Court. It was further mentioned in the application that immediately thereafter, he had filed Objections in the Execution Petition, however, the same were dismissed vide order dated 26.06.2012 and the objections taken by him were not dealt with by the learned Executing Court. As per the applicant, late Smt. Balwant Kaur alongwith Proforma respondent No. 2 and predecessor-in-interest of respondents No. 3 to 5 (impleaded in the application) were ordinarily residing with late Shri Gian Singh in the premises in dispute. Subsequently, the tenancy rights were inherited by the widow of Shri Gian Singh, i.e., Smt. Balwant Kaur, applicant and proforma respondent No. 2 as well as predecessor-in-interest of respondents No. 3 to 5. Despite this, the Rent Petition was filed only against the mother of the applicant and other persons were not arrayed as party in the case. It was further mentioned in the application that Smt. Balwant Kaur died during the pendency of the appeal on 05.09.2009 and the factum of her death was intentionally and deliberately not disclosed to the learned Appellate Court by respondent No. 1 therein and orders were obtained at her back in an illegal manner. On these basis, the applicant prayed for his impleadment as appellant No. 1 in place of deceased Smt. Balwant Kaur and for setting aside abatement, if any and for condonation of delay in filing the application. 4. For completion of record, it is necessary to mention that an application was filed under Order 1 Rule 10 of the Code of Civil Procedure by respondents No. 3 to 5 (impleaded in the said application) for impleading them as appellants, which application has also been dismissed by way of impugned order. 5. In his reply filed to application under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963, the landlord took a preliminary objection that after the death of late Shri Gian Singh, Smt. Balwant Kaur, his widow inherited the tenancy rights under the Himachal Pradesh Urban Rent Control Act, 1987. She suffered an order of eviction and preferred an appeal against the order so passed by the learned Rent Controller and died during the pendency of the appeal. She suffered an order of eviction and preferred an appeal against the order so passed by the learned Rent Controller and died during the pendency of the appeal. As per the landlord, tenancy under the Himachal Pradesh Urban Rent Control Act was heritable under Section 2 (J) of the same and in view of Explanations 1 and 2 of Section 2 (J), the tenancy was inheritable only once and therefore, after the death of Smt. Balwant Kaur, the tenancy did not devolve upon her heirs, as late Smt. Balwant Kaur had herself inherited the tenancy and after her death, tenancy came to an end. It was further the stand of the landlord/non-applicant that the appeal had abated much before the filing of the application, as Balwant Kaur had died in the year 2009 and therefore also, the application was not maintainable, as the application was not filed within the period of limitation of three years, as is provided under the provisions of Indian Limitation Act. Landlord also denied the fact that the applicant was not aware of the litigation pending between the landlord and Smt. Balwant Kaur and he came to know about the pendency of litigation only after receipt of notice in the Execution Petition. Landlord/non-applicant further denied that the applicant was pursuing the remedy available to him or was prosecuting the case with due diligence. On these grounds, the landlord opposed the application so filed by the petitioner herein before the learned Appellate Court. 6. By way of order dated 18.12.2018, learned Appellate Court dismissed the application filed by the applicant under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963 as well as application filed under Order 1 Rule 10 of the Code of Civil Procedure by proforma respondents therein to implead them as appellants. It is pertinent to mention at this stage that this order has not been challenged by proforma respondents No. 3 to 5, who had moved the application under Order 1, Rule 10 of the Code of Civil Procedure. 7. It is pertinent to mention at this stage that this order has not been challenged by proforma respondents No. 3 to 5, who had moved the application under Order 1, Rule 10 of the Code of Civil Procedure. 7. A perusal of the order passed by the learned Appellate Authority demonstrates that while dismissing the application, learned Appellate Authority held that despite the fact that the applicant had knowledge of the pendency of the proceedings, yet the application for substituting himself as appellant in place of the deceased appellant was not filed within reasonable time and there was no due diligence on his part and it could not be accepted that he was pursuing his case diligently and without any negligence. Learned Appellate Authority thus held that as the applicant did not explain satisfactorily that there was sufficient cause to condone the delay and set aside the abatement, therefore, the application filed under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963 to condone the delay and set aside the abatement as well as application filed under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure by the applicants/proforma respondents No. 3 to 5 deserved dismissal. 8. I have heard learned counsel for the parties and have also gone through the impugned order as well as the documents on record and the record of the learned Rent Controller, Appellate Authority as well as all the earlier revision petitions filed by the petitioner before this Court. 9. As I have already mentioned above, what has primarily weighed with the learned Appellate Authority while dismissing the application filed under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963 was that the applicant had failed to explain satisfactorily that there was sufficient cause to condone the delay and set aside the abatement. 10. 10. The main plea taken by the applicant as to why the application to substitute himself in place of the deceased appellant was not filed within reasonable time, is that he was not aware of the pendency of the litigation between the landlord and Smt. Balwant Kaur and he came to know about this fact only after he had received a notice in the Execution Petition, which was filed by the landlord. 11. A perusal of the record of Rent Petition which was filed by landlord Shri Rajesh Madan against Smt. Balwant Kaur demonstrates that Smt. Balwant Kaur had examined two witnesses on her behalf. These two witnesses were namely Shri Rajinder Singh and Shri B.C. Sharma. RW-1 Sh. Rajinder Singh happens to be the present petitioner. He appeared before the learned Trial Court as a witness of Smt. Balwant Kaur on 07.04.2009. A perusal of the application which was filed under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963 before the learned Appellate Court demonstrates that the applicant concealed this fact in the application that he had appeared as a witness of Smt. Balwant Kaur before the learned Rent Controller on 07.04.2009. In fact, his having appeared as a witness of Smt. Balwant Kaur before the learned Rent Controller falsifies the stand taken by the applicant in para-2 of the application filed under 22, Rule 3 (supra) before the learned Appellate Court that before service of notice upon him in the Execution Petition filed by the landlord, the applicant was not aware of the order passed against Smt. Balwant Kaur. On the contrary, the record demonstrates that the petitioner/applicant was aware of the pendency of the litigation between the landlord and Smt. Balwant Kaur. Not only this, after the death of Smt. Balwant Kaur during the pendency of the appeal filed by her, onus was not upon the landlord to have had informed the learned Appellate Authority about the death of the appellant therein. This duty was cast upon the petitioner herein, as it was for him to have had filed an appropriate application for substituting him as an appellant in place of deceased Smt. Balwant Kaur. This, admittedly, was not done by him within the statutory period or within some reasonable time thereafter. This duty was cast upon the petitioner herein, as it was for him to have had filed an appropriate application for substituting him as an appellant in place of deceased Smt. Balwant Kaur. This, admittedly, was not done by him within the statutory period or within some reasonable time thereafter. In fact, no steps were taken by him even after the receipt of notice in the Execution Petition for filing an application for setting aside the judgment passed by the learned Appellate Court and for substituting him as an appellant in place of the deceased appellant. In my considered view, all this was done by the applicant with the sole motive of prolonging the litigation, as the record demonstrates that the applicant was aware about the pendency of the litigation between the landlord and Smt. Balwant Kaur, in which, he had appeared as a witness before the learned Rent Controller on behalf of Smt. Balwant Kaur. Yet, he took no steps to substitute himself as appellant in the appeal filed by Smt. Balwant Kaur against the order passed by the learned Rent Controller after her death during the pendency of the appeal either within the statutory period or within some reasonable time. After the service of notice in the Execution Petition, he filed objections in the same and contested the same again without taking steps to substitute himself in place of deceased appellant in the appeal and for getting the said judgment set aside. After said objections were dismissed by the learned Rent Controller, he filed a Revision Petition before this Court, which has led to the filing of an application under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963, that too, on technical grounds, as the judgment passed by the learned Appellate Authority was set aside by this Court, as the same was passed against a dead person. All this demonstrates that the applicant has not approached the Court with clean hands and his intent is to prolong the litigation. 12. I reiterate that it is clearly borne out from the record of the case that petitioner was aware about the litigation pending between the landlord and Smt. Balwant Kaur. All this demonstrates that the applicant has not approached the Court with clean hands and his intent is to prolong the litigation. 12. I reiterate that it is clearly borne out from the record of the case that petitioner was aware about the litigation pending between the landlord and Smt. Balwant Kaur. Record further demonstrates that on more than one occasions, the petitioner took the stand before various Forums that he was ordinarily residing in the demised premises alongwith other legal heirs of deceased Balwant Kaur during her life time. This coupled with the fact that he had himself appeared as a witness for Smt. Balwant Kaur before the learned Rent Controller, proves that he was aware of the litigation pending between the landlord and Smt. Balwant Kaur. 13. In this background, there is no infirmity in the findings returned by the learned Appellate Court that the petitioner was not able to justify the delay in filing the application under Order 22, Rules 3 and 9 read with Section 151 of the Code of Civil Procedure and Sections 5 and 14 of the Limitation Act, 1963. 14. Though it is settled law that procedure is handmaiden of justice, however, the procedure cannot be permitted to be abused or misused by one party to cause prejudice to the other party. The dismissal of the application filed by the petitioner before the learned Appellate Court cannot be faulted with, as the reasons assigned by the learned Appellate Court are duly borne out from the record of the case. 15. Therefore, as this Court finds no infirmity with the impugned order, the petition being devoid of any merit, is dismissed. As proforma respondents No. 3 to 5 have not challenged the order vide which their application filed under Order 1, Rule 10 read with Section 151 of the Code of Civil Procedure was dismissed, this Court is not making any observation on the same. Suffice it to say that the order passed by the learned Appellate Authority on the said application has attained finality. Miscellaneous applications, if any, also stand disposed of.