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2023 DIGILAW 130 (HP)

Brahmin Sabha v. Beant Singh

2023-03-10

VIVEK SINGH THAKUR

body2023
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Landlord-petitioner (hereinafter referred to as ‘Landlord’) has approached this Court by filing this Revision Petition, assailing the order/judgment dated 27.2.2020, passed by Appellate Authority-II, Shimla, in Rent Appeal No. 38-S/13(b) of 2013, titled as M/s Beant Singh @ Sons vs. Brahmin Sabha, whereby order dated 28.3.2013, passed by Rent Controller, Court No. 5, Shimla, in Case No. 4-2 of 2006, titled as Brahmin Sabha vs. M/s Beant Singh and Sons, directing eviction of tenant-respondent (hereinafter referred to as ‘Tenant’) has been set aside and the case has been remanded back to the Rent Controller with direction to frame fresh issue on the grounds taken by the landlord in the pleadings and to decide the matter afresh, after giving opportunity to the parties to lead evidence and after hearing them. 2. I have heard learned counsel for the parties and have also gone through the record. 3. It has been submitted on behalf of the landlord that the Appellate Authority has committed a material illegality, irregularity and perversity in deciding the appeal, whereby it has returned finding that landlord had taken two self-contradictory pleas for eviction of the tenant and Rent Controller had erred in framing two issues, i.e. Issues No. 2 and 3, erroneously. Further that there is no provision for wholesale remand of the case in appeal under the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as ‘Rent Act’) and, thus, judgment passed by the Appellate Authority, remanding the case to the Rent Controller, is without jurisdiction and for such jurisdictional error impugned judgment deserves to be set aside. 4. Learned counsel for the landlord has relied upon pronouncement of this High Court in Smt. Surinder Kaur vs. Mohinder Pal Singh, ILR (1975) 5 HIM 620 and Civil Revision No. 80 of 2012, titled as Braham Dass vs. Om Parkash and Another, decided on 7.7.2017. 5. It has been contended on behalf of the tenant that present Revision Petition is time barred and as it has been filed after expiry of period of limitation and no ground has been taken in the petition, with respect to condonation of delay on account of spread of Corona Pandemic, which was necessary to be pleaded and proved for condonation of delay, therefore, on this sole ground, petition deserves to be dismissed. 6. 6. It has further been contended on behalf of the tenant that Appellate Authority is competent and duly empowered to order for further enquiry, if necessary, and as in the present case two contradictory issues were framed by the Rent Controller, therefore, it was necessary to send the matter for enquiry and keeping in view the nature of mistake committed by the Rent Controller, there was no other option with the Appellate Authority but to remand the case to frame the issue and, therefore, it has been contended that there is no illegality or impropriety in the impugned order and, therefore, present Revision Petition is not maintainable. 7. It has been contended on behalf of the landlord that there is no limitation provided under the Rent Act, as Section 24(5) of the Rent Act empowers the High Court to entertain the Revision Petition at any time and, therefore, a petition preferred within a reasonable period is to be considered and decided by the Court on merits, and the present petition has been preferred within reasonable period, particularly keeping in view the conditions prevailing at relevant point of time, on account of spread of COVID Pandemic. Therefore, it has been submitted that no separate application for condonation of delay was required and, thus, no such application has been filed nor any submission has been made in the main petition, because there was no question of condonation of delay by the Court, for having power to entertain the Revision Petition at any time. 8. It is true that Section 24(5) of the Rent Act empowers the High Court to entertain Revision Petition at any time, but “any time” is to be a reasonable time and keeping in view the limitation period of 90 days, for filing Revisions under Code of Criminal Procedure and Civil Procedure Code, provided under the Limitation Act or other enactments, it would be appropriate to consider that about 90 days time is a reasonable period for preferring a Revision Petition under the Rent Act. In special circumstances, justifying cause of delay of any amount of days, rendering the petitioner unable to prefer a Revision Petition within about 90 days/reasonable period, the Court has power to entertain the Revision Petition even filing of the same later than 90 days. 9. In special circumstances, justifying cause of delay of any amount of days, rendering the petitioner unable to prefer a Revision Petition within about 90 days/reasonable period, the Court has power to entertain the Revision Petition even filing of the same later than 90 days. 9. In present case, impugned judgment was passed by the Appellate Authority on 27.2.2020, copy whereof was applied on 2.3.2020, which was attested on 21.3.2020 and was delivered on 7.10.2020. Thereafter, present Revision Petition was filed on 4.11.2020. After deducting the time between filing of application for copy and attestation thereof, 90 days time had expired on 18.6.2020. 10. Keeping in view the situation prevailing in March 2020, the Supreme Court had taken Suo Moto cognizance of difficulties might be faced by litigants in filing petitions, applications, suits, appeals or other quasi-judicial proceedings within the limitation prescribed under general law of limitation or any special law. It was a period of outbreak of COVID-19 Pandemic and, vide order dated 23.3.2020, passed in Suo Moto Writ Petition (Civil) No. 3 of 2020, the Supreme Court had extended the period of limitation with effect from 15.3.2020 till further orders. Vide Order dated 10.1.2022, passed in the aforesaid Writ Petition, the Supreme Court had directed to exclude the period from 15.3.2020 to 28.2.2022, for the purpose of limitation with respect to all judicial or quasi-judicial proceedings. 11. In present case, limitation had to start from 21.3.2020 and petition was filed on 4.11.2020, both the dates are between the period from 15.3.2020 and 28.2.2022 and, in these circumstances, I do not find any justifiable reason or prudent cause to consider the petition barred by limitation or otherwise, by construing that it has been filed beyond the limit of reasonable period. 12. 12. The findings returned by the Appellate Court that the landlord has taken self-contradictory grounds for eviction of the tenant, and under the Rent Act, ground of rebuilding/ reconstruction or addition and alteration is only one ground and, therefore, it cannot be taken as two different grounds and two issues cannot be framed, are erroneous and misconceived, as the landlord in Para-18(a)(ii) has categorically stated that building has outlived its age, as the same was more than 100 years old and was made of Dhajji wall and stone masonry thick walls, as such, it required rebuilding/substantial additions and alterations by removing walls and after demolishing the building, which could only be undertaken if the premises were vacated by the tenant and, therefore, premises under occupation of tenant were required bonafidely for building/rebuilding and reconstruction by the landlord. It was further stated in the petition that building was to be constructed on old lines as per building bye-laws, but with substantial additions and alterations in old structure by increasing the height rooms by raising construction on the basis of new/prevailing bye-laws, by making substantial increase in floor area and number of storeys as well as proper internal adjustment of rooms. Therefore, the landlord has not taken any self-contradictory plea. 13. The tenant had also well understood the grounds taken by the landlord for eviction and, as such, to the relevant paragraph, no issue with respect to self-contradictory grounds has been raised in the reply and the only plea taken was that the entire building, in occupation of the tenant, was in good condition and did not require any re-building or reconstruction as alleged. 14. 14. In the light of pleadings of the parties, Issues No. 2 and 3 were to be considered and decided by taking into consideration the pleadings as well as evidence of the parties and as the only ground taken by the landlord was rebuilding and reconstruction, with substantial additions and alterations in the old building, as stated in Para-18(a)(ii), the landlord led evidence in that respect only and no separate evidence was led with respect to Issue No. 3, framed by the Rent Controller rightly or wrongly, with respect to additions and alterations in the premises and, therefore, in Para-35 of the order of the Rent Controller, it was observed that no evidence has been led by the landlord to substantiate this issue and, accordingly, this issue was decided against the landlord and the landlord did not assail the said finding on Issue No. 3. 15. Plea of the tenant that Issue No. 3, framed as a separate issue, was wrongly framed by the Rent Controller separately, but as the Rent Petition was decided in favour of the landlord, the landlord was not having any occasion to assail the same appears to be correct. As submitted, landlord was not aggrieved by the finding returned with respect to the said issue, as is also evident from the pleadings and evidence led by the landlord, addition and alteration pleaded in the grounds was with respect to reconstruction and rebuilding of the premises but was not regarding addition and alteration in the existing structure without reconstructing or rebuilding and, therefore, landlord rightly did not assail it. 16. In the impugned judgment, though case has been remanded to the Rent Controller for deciding afresh, but in Point No. 1, the Appellate Authority has discussed every point raised by the landlord and the tenant and has affirmed the findings of the Rent Controller with respect to Issue No. 1, with observation that Rent Controller had arrived at right conclusion that tenant was in arrears of rent and the Appellate Authority has also considered the case law referred by the parties and concluded that Issues No. 2 and 3 were self-contradictory and, therefore, matter was remanded to the Rent Controller. 17. 17. For the discussion made hereinabove, it is apparent that the Appellate Authority did not take pains to look into the record to decide the appeal on the basis of pleadings and evidence led by the parties, but was swayed by the framing of two issues by the Rent Controller with respect to one and only one ground taken by the landlord for eviction of the tenant, i.e. on the ground of rebuilding and reconstruction but leading to substantial additions and alterations as explained in Para-18(1)(ii) of the petition referred supra. Therefore, findings returned by the Appellate Authority in the impugned judgment with respect to Point No. 1 are erroneous, irrational and contrary to the record. 18. Findings returned by the Appellate Authority on Point No. 1, holding that order passed by the Rent Controller was not sustainable under law, are erroneous and perverse being decided on the basis of plea taken, which is contrary to the pleadings and evidence on record and, therefore, impugned judgment deserves to be set aside and the order passed by the Rent Controller deserves to be affirmed, for the material on record. 19. From the grounds taken for eviction, it is evident that only plea of rebuilding/reconstruction of the premises has been taken, with explanation that on reconstruction/rebuilding, there will be substantial additions/alterations in the existing structure of the building by explaining the same, as noticed supra. But, it appears that the Appellate Authority failed to take pains and to have a glance to the pleadings as well as evidence led on two separate issues framed by the Rent Controller erroneously. 20. It is apparent that averment in the pleading related to additions/alterations in the building has been made to demonstrate that landlord intended to improve the utility and capability of the existing building by raising new construction, in accordance with norms, but on the basis of latest technology to use the area/land to its maximum which, for the nature of the pleadings and grounds taken, cannot be treated as a separate plea taken by the landlord for eviction on the ground of additions/ alterations of building. 21. 21. In view of above discussion, it is apparent that landlord has not taken contradictory grounds for eviction of tenant, but has taken only one ground and, therefore, framing of two separate issues by the Rent Controller erroneously cannot be made basis to return finding that the landlord has taken two self-contradictory grounds for eviction. Landlord had taken one and only one ground for eviction and had led evidence on that issue only and tenant was also well aware about it. There is no pleading on behalf of the landlord or evidence led on record so as to construe that landlord had taken two grounds relating to rebuilding/reconstruction and addition/alteration, as alleged and construed by the Appellate Authority. Therefore, on this point, findings returned by the Appellate Authority are perverse, being contrary to the pleadings and evidence on record. Framing of wrong issue by the Rent Controller, in facts and circumstances of the case, is inconsequential so as to have any effect on the case of the landlord. 22. In Surinder Kaur’s case, finding was returned by the Court on the basis of provisions of Section 21(3) of Himachal Pradesh Urban Rent Control Act, 1971. Now para materia provision is there in Section 24(3) of the Rent Act, which reads as under: “24. Vesting of appellate authority on offices by State Government: .................... (3) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller.” 23. Ratio of law laid down in Surinder Kaur’s case is also applicable in present case, which reads as under: “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. 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. 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 Kumari, 1961 PLR 865 and Rajinder Kumar vs. Basheshar Nath, 1965 PLR 974. I am of opinion that the order of the Appellate Authority is in excess of his jurisdiction and is vitiated accordingly.” 24. In any case, Appellate Authority was not empowered to remand the case, as ordered, and it ought to have decided itself, after hearing the parties, or would have asked the Rent Controller to return its finding or, for considering it necessary, would have conducted further enquiry either personally or through Rent Controller, and, in case of enquiry by the Rent Controller, the Appellate Authority should have decided the appeal itself after return of findings/receiving the report from the Rent Controller with regard to enquiry, but Appellate Authority acted contrarily by remanding the case to the Rent Controller for deciding afresh and, therefore, the Appellate Authority has committed a jurisdictional error. 25. In view of aforesaid discussion, the present Revision Petition is allowed and, consequently, impugned judgment dated 27.2.2020, passed by Appellate Authority-II, Shimla, in Rent Appeal No. 38-S/13(b) of 2013, titled as M/s Beant Singh @ Sons vs. Brahmin Sabha, is set aside. 25. In view of aforesaid discussion, the present Revision Petition is allowed and, consequently, impugned judgment dated 27.2.2020, passed by Appellate Authority-II, Shimla, in Rent Appeal No. 38-S/13(b) of 2013, titled as M/s Beant Singh @ Sons vs. Brahmin Sabha, is set aside. The parties are directed to appear before the Appellate Authority on 28.3.2023, whereafter the Appellate Authority shall decide the appeal afresh, in terms of ratio of law and observations made hereinabove, preferably within three months thereafter. 26. Revision Petition stands disposed of, so also pending applications, if any. Records of the Courts below be sent immediately.