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2019 DIGILAW 965 (HP)

Anil Bhardwaj v. Tek Chand

2019-07-16

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this petition filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as ''the 1987 Act''), the petitioner/tenant has prayed for setting aside of two orders dated 02.05.2018 (Annexures P-4 & P-5), passed by the learned Rent Controller, Court No. 3, Shimla in Case No. 37-2 of 17/13, titled as Shri Tek Chand and others vs. Shri Anil Bhardwqj and others, vide which a preliminary issue framed at the behest of petitioner stands decided by the learned Rent Controller against him. The preliminary issue which has been decided against the petitioner reads as under: "Whether the present petition is not maintainable on account of purchase of 1 /3rd undivided share by the respondent No. 1 and his wife in the building in question comprising of tenanted premises from Sh. Deepak Sood as per registered sale deed dated 22.5.2015 as alleged? OPR." 2. When this petition was taken up for consideration, a preliminary objection was taken by Sh. K.D. Sood, learned Senior Counsel appearing for respondent No. 1 that this petition was not maintainable, as the remedy available before the petitioner herein was to assail the impugned orders was by way of filing an appeal. 3. Parties were heard on the issue of maintainability of this petition. 4. Learned Senior Counsel for respondent No. 1 has argued that the impugned orders cannot be assailed by way of a Revision Petition under Section 24(5) of the 1987 Act, as the remedy available before the petitioner to assail the said orders was by way of filing an appeal. 5. On the other hand, learned Senior Counsel for the petitioner has argued that as the impugned orders are in the nature of interlocutory orders and they do not otherwise decide the fate of the parties, therefore, they are not appealable and the only remedy available to the petitioners was to assail them under Section 24(5) of the 1987 Act. 6. I have heard learned counsel for the parties and have also gone through the pleadings on record. 7. Section 24 of the 1987 Act provides that the State Government may, by a general or special order, by notification, confer on such officers and authorities, as it thinks fit, the powers of Appellate Authorities for the purposes of 1987 Act. 6. I have heard learned counsel for the parties and have also gone through the pleadings on record. 7. Section 24 of the 1987 Act provides that the State Government may, by a general or special order, by notification, confer on such officers and authorities, as it thinks fit, the powers of Appellate Authorities for the purposes of 1987 Act. This Section further provides that save as otherwise provided in the Act, any person aggrieved by an order passed by the Controller, except the orders for the recovery of possession made by the Controller, as per procedure prescribed under Section 16 of the Act, may, within fifteen days from the date of such order or such longer period as the Appellate Authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the Appellate Authority having jurisdiction. Sub-section (5) of Section 24 further provides that the High Court may, at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. 8. A Full Bench of this Court in Vinod alias Raia vs. Smt. Joainder Kaur, 2012(3) Him. L.R. (FB) 1401 has, inter alia, held that under the 1987 Act, each and every order is not made appealable, but only those orders which otherwise decide the fate of the parties, in the proceedings which are not otherwise excluded under the Act, are appealable. Hon''ble Full Bench has further held that all other interlocutory orders are amenable to the revisional jurisdiction of the High Court, which may go into the legality and propriety of such orders. Hon''ble Full Bench has further held 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 1987 Act, can maintain an appeal as per the Scheme of the Code of Civil Procedure until otherwise specified by the Government by way of an appropriate notification. 9. 9. Thus, it has been clearly laid down by the Hon''ble Full Bench that whereas an appeal is maintainable against an order which "otherwise decides the fate of the parties and are not otherwise excluded under the Act", all other interlocutory orders are amenable to the revisional jurisdiction of the High Court. 10. There is yet another judgment of this Court in Civil Revision No. 84 of 2006, titled as Sat Pal vs. Sunaina Devi, reported in 2007(1) Shim. LC 163 . Said matter was placed before the Hon''ble 3 rd Judge on account of divergence of opinion between two Hon''ble Judges, including the then Hon''ble Chief Justice with respect to the interpretation to be put upon Clauses (a) and (b) of Sub-section (1) of Section 24 of the Himachal Pradesh Urban Rent control Act, 1987. In this judgment, this Court has held as under: "11. There can be no manner of doubt that every order passed by a Rent Controller can not be an appealable order. The section provides that a person aggrieved by an order can file an appeal. Obviously the order must be one which decides certain matters which effect the rights of the parties. Only then can one party be said to be aggrieved and will have a right to challenge the order in appeal. 12. Some High Courts in the country such as Presidency High Courts of Bombay, Calcutta and Madras as well as High Court of Delhi, the High Court of Jammu and Kashmir and this Court have original jurisdiction. Civil suits are tried on the original side of these Courts. Under the Letters Patent of the various Courts as well as the Delhi High Court Act an appeal to a Division Bench lies against the "Judgment" of a learned Single Judge passed on the original side. The question as to what is the interpretation to be given to the word "Judgment" had been a matter of debate before the various High Courts for almost 100 years and this matter was finally decided by the Apex Court in Shah Babulal Khimji vs. Jayaben D. Kama and another, (1981) 4 SCC 8 . The Apex Court after considering all the previous authorities and entire law on the subject held as follows:-" 113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a Court. The Apex Court after considering all the previous authorities and entire law on the subject held as follows:-" 113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a Court. As ajudgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word ''judgment'' as used in Clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms ''order'' or ''decree'' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word judgment'' should receive a much wider and more liberal interpretation than the word judgment'' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word judgment'' has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds: (1) A final judgment- A judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decree in part or in full. Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. (2) A preliminary judgment.-This kind of a judgment may take two forms-(a) where the Trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the Trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and, therefore, appealable to the Larger Bench, (b) Another shape which a preliminary judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit,e.g., bar of Jurisdiction, res-judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a Judgment so as to be appealable to a larger Bench. (3) Intermediary or interlocutory Judgment- Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be Judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings offinality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings offinality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the Trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiffs case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench. Take the converse case in similar suit where the Trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the Trial Judge would not amount to a judgment within the meaning of Clause 15 of the Letters Patent but will be purely an interlocutory order. Similarly, suppose the Trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rules 1 Clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the Trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is, therefore, appealable to a larger Bench. 114. In the course of the trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge. 115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment oraffect vital and valuable rights of the parties and which work serious injustice to the party concerned." 13. The Apex Court thereafter gave various illustrations of interlocutory orders which could be treated as judgment. However, the Court laid down in para 122 that these examples are only illustrative in nature and are not totally exhaustive and that the law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for the Court to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket. 19. 19. After considering the entire law I am of the view that the word ''Order'' in Section 24(l)(b) not only includes final orders passed under the Rent Control Act, but shall also include other orders including interlocutory orders which finally decide a question in issue or issue in controversy relatable to the main case; similarly, interim orders which finally decide issue(s) which have material bearing and may directly effect the final decision of the case can also be appealed against and lastly, orders which though only decide a collateral issue, but which will effect the vital rights and obligations of the parties can be appealed against. In case the various judgments of the Apex Court are gone through carefully, it would be clear as to which orders are appealable and which are not. It is neither possible nor is it prudent to set out all the appealable orders in detail. It shall be for the appellate authority in the facts and circumstances of each, case to decide, whether the order appealed before it falls within the ambit and scope of appealable orders, in the light of the law discussed above. 20. I, therefore, disagree with the opinion of Surjit Singh, J. and agree with the opinion of My Lord the Chief Justice that all orders, including interlocutory orders, passed by the Rent Controller can be challenged in an appeal before the appellate authority, subject to the caveat that the order should either finally decide a question or issue in controversy in the main case; or it should be an order which materially and directly affects the final decision in the main case or which finally decides a collateral issue or question which is not the subject matter of the main case, but which vitally affects the rights and obligations of the parties and shall have material bearing on the final decision of the case." 11. Coming to the facts of the present case, herein vide impugned orders, the preliminary issue framed at the behest of the petitioner/tenant as to whether the Rent Petition was maintainable on account of purchase of l/3rd undivided share by the tenant/respondent No. 1 and his wife in the building in question, stands answered against the tenant. 12. Coming to the facts of the present case, herein vide impugned orders, the preliminary issue framed at the behest of the petitioner/tenant as to whether the Rent Petition was maintainable on account of purchase of l/3rd undivided share by the tenant/respondent No. 1 and his wife in the building in question, stands answered against the tenant. 12. Learned Rent Controller has held that though it was not in dispute that tenant-Anil Bhardwaj and his wife had purchased l/3rd share in the demised premises, however, despite this, the status of the tenant as a lessee does not get merged into the status of a co-sharer in the property. Learned Rent Controller held that purchase of a part of the estate by tenant would not end his status as that of lessee, although he has become one of the co-sharers/landlord in the property. 13. At this stage, I am not dwelling upon the legality of these orders. Moot issue that is to be decided is as to whether the orders so passed by the learned Rent Controller are appealable orders or revisable orders. 14. As I have already discussed above, Hon''ble Full Bench of this Court has categorically held that subject to other riders contained in the Act, it is not as if each and every order is appealable. However, those orders which otherwise decide the fate of the parties and are not excluded under the Act, are appealable. 15. 14. As I have already discussed above, Hon''ble Full Bench of this Court has categorically held that subject to other riders contained in the Act, it is not as if each and every order is appealable. However, those orders which otherwise decide the fate of the parties and are not excluded under the Act, are appealable. 15. It has been held by Hon''ble Supreme Court in Shah Babulal Khimii vs. Jauaben D. Kama and another, (1981) 4 SCC 8 , as has also been taken note of by this Court in Satpal vs. Sunaina Devi (supra) that where a Trial Judge passes an order after hearing preliminary objections raised by the defendant relating to maintainability of the suit and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits, but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant, who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds and such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendantand must, therefore, be construed to be a judgment so as to be appealable to a larger Bench. 16. In the present case, while deciding the preliminary issue, learned Rent Controller has held that the status of the tenant as a lessee does not get merged into the status of a co-sharer in the property by way of his purchase of a part of the estate. It has held that the same would not end the status of the tenant as lessee, though he has become one of the co-sharers/landlord of the property. This adjudication, in my considered view, at least decides the fate of the parties as far as the issue of maintainability of the Rent Petition before the learned Rent Controller, pursuant to one of the tenant having become co-sharers in the demised premises is concerned. If we perceive the issue from other perspective, had this issue been decided in favour of the tenant, then obviously the Rent Petition would have been dismissed as not maintainable. Such order, but obvious, was an appealable order. If we perceive the issue from other perspective, had this issue been decided in favour of the tenant, then obviously the Rent Petition would have been dismissed as not maintainable. Such order, but obvious, was an appealable order. The effect of the adjudication of said ''Issue'' against the tenant also has to be considered on the same scale and with the same yardstick. Though the adjudication on the issue by the learned Rent Controller has not put an end to the case at hand, meaning thereby, it has not finally decided the Us, yet there is a finality attached to these orders as far as the factum of the maintainability of the Rent Petition in the facts of the case is concerned. 17. Accordingly, in my considered view, Revision Petition against the impugned orders dated 02.05.2018 (Annexures P-4 & P-5), vide which a preliminary issue framed at the behest of petitioner with regard to the maintainability of the Rent Petition stands dismissed by the learned Rent Controller, Court No. 3, Shimla in Case No. 37-2 of 17/13 is not maintainable as the impugned orders are appealable orders. The petition is disposed of accordingly, with liberty to the petitioner to assail the impugned orders by way of an appeal, if advised. It is clarified that if any appeal(s) is filed by the petitioner, then the time spent by him in pursuing the present Revision Petition shall be taken into consideration by the learned Appellate Court for the purpose of computation of limitation. Miscellaneous applications, if any, also stand disposed of.