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2019 DIGILAW 557 (HP)

Nain Singh Sharma v. Champa Devi

2019-05-03

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant civil revision petition is directed against the orders recorded by the learned appellate authority, upon, Rent Appeal No. 2-S/14 of 2018, as stood preferred therebefore, by the aggrieved tenants, against the order of eviction, from the demised premises, as rendered by the learned Rent Controller. 2. Without going into the merits of the case, or upon the findings returned upon relevant res-controversia, by the learned Rent Controller, rather, an adjudication, is enjoined to be meted only upon, the legality of the order made by the learned appellate Authority, wherethrough, it after setting aside, the verdict recorded by the learned Rent Controller, it, remanded the lis to the learned Rent Controller, for, enabling the latter to determine, the, controversy, appertaining to the title of the respondents herein, to receive rent, vis-à-vis, the demised premises. 3. Even though, the tenant is statutorily estopped to deny the title of the land lord, yet when the appellate authority, had, proceeded to make the afore order, of, remand, to the learned Rent Controller, importantly, after setting aside, the apposite verdict assailed before it, and, conspicuously also, when the afore res-controversia, is, rather estopped to be reared, by the respondent/tenant, (i) thereupon within the ambit, of, the verdict, reported in (1976) ILR 5, rendered in case titled as, “Smt. Surinder Kaur versus Mohinder Pal Singh”, hence renders the afore allowing of the apposite appeal, by the learned Appellate Authroity, and, thereafter the remanding, of, the lis, to, the Rent Controller, for the latter making an enquiry, vis-à-vis, the afore facet, rather to, beget an apparent transgression thereof. In the afore judgment, relevant paragraph-3 whereof is extracted hereinafter: “It is apparent that in those cases where the Appellate Authority is of opinion that in order to decide the appeal a further enquiry is necessary it has been empowered to make that enquiry itself or to make it through the Controller. The expression “through the Controller” clearly contemplates that when the Controller makes the enquiry he does so on behalf of the Appellate Authority. In other words, the Controller makes the enquiry and forwards the findings reached by him to the Appellate Authority. He does so not for the purpose of disposing of a petition pending before him but for the purpose of enabling the Appellate Authority to dispose of the appeal pending before the latter. In other words, the Controller makes the enquiry and forwards the findings reached by him to the Appellate Authority. He does so not for the purpose of disposing of a petition pending before him but for the purpose of enabling the Appellate Authority to dispose of the appeal pending before the latter. It is clear from the terms of Section 21 (3) of the Act that the enquiry envisaged by that provision is intended in order to enable the Appellate Authority to decide the appeal. It is manifest that the provision does not contemplate that the appeal should be allowed and the case remanded to the Controller for making an enquiry and disposing of the petition afresh. No such power to remand the case has been conferred by Section 21 (3) on the Appellate Authority. I am fortified in the view taken by me by the decisions of the Punjab High Court in Shri Krishan Lal Seth vs. Shrimati Pritam Kumar and Rajinder Kumar vs. Basheshar Nath. I am of opinion that the order of the Appellate Authority is in excess of his jurisdiction and is vitiated accordingly”. (i) it is expostulated, that, the requisite enquiry encapsulated, within the ambit of Section 21 (3), of the H.P. Urban Rent Control Act, holding, a contemplation, qua the Rent Controller upon being directed or enjoined to hold an enquiry, his rather holding, the afore, for and on behalf, of the appellate authority, and, (ii) also the latter, in alternate thereto being statutorily empowered, to, suo-moto hold an enquiry, vis-à-vis, the afore relevant res-controversia. Further more, it is also expostulated therein, that, the afore mandate, borne in Section 21 (3) of the H.P. Urban Rent Control Act, rather bars the appellate authority, to, for progressing the afore purpose, hence, after setting aside the impugned verdict, to, further there onwards, remand the entire lis, for, facilitating hence an enquiry being made by the learned Rent Controller. Since the learned appellate Authority, has, in visible infraction of the afore contemplation (s), rather proceeded to allow the appeal, and, has thereafter proceeded to set aside, the impugned verdict, (iii) thereupon it has committed breach of the afore expostulation of law, (iv) whereupon this Court is constrained to allow the instant revision petition, and, to set aside the impugned verdict. 4. 4. In nut-shell, the learned appellate Authority is directed to, suo-moto, conclude the enquiry into the afore res-controversia, and, thereafter is directed to proceed to make a fresh decision, within four weeks, upon Rent Appeal No. 2-S/14 of 2018,. The parties are directed to appear before the learned Appellate Authority, on 22.5.2019. All pending application (s), if any, are also disposed of.