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2023 DIGILAW 438 (HP)

Shah Mohammad v. Puran Chand Dogra

2023-11-04

VIVEK SINGH THAKUR

body2023
JUDGMENT : Vivek Singh Thakur, J. Petitioner-tenant has filed this Civil Revision under Section 24(5) of Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as ‘Rent Act’) against the judgment dated 28.8.2021, passed by the Appellate Authority-II, Shimla H.P., in Rent Appeal No.23-S/13(B) of 2018, titled as Shan Mohammad vs. Puran Chand Dogra, whereby order dated 6.7.2018, passed by the Rent Controller (2), Shimla, H.P., in Rent Petition No.33-2 of 2015/2013, titled as Puran Chand vs. Shan Mohammad, has been affirmed. 2. For convenience petitioner and respondents shall be referred hereinafter according to their status in the Rent Petition, i.e. Tenant and Landlords respectively. 3. Apart from hearing, I have also gone through record. 4. Learned counsel for tenant has submitted that there was suppression of facts at the instance of Landlord, and for filing of earlier Rent Petition, which was dismissed, he was not entitled to maintain fresh Rent Petition being barred by res-judicata, and further that under Section 14(3)(iv) of Rent Act, there is no provision for evicting the tenant for acquisition of other accommodation by Tenant and therefore, plea taken by Landlord, to evict the Tenant that he was having another accommodation with 4-5 rooms available for his own use and 2-3 rooms rented out to tenants is not permissible to evict the tenant and further that there is also concealment with respect to availability of accommodation with Landlord for his own use, which is sufficient for his family and therefore also, the petition was liable to be dismissed. 5. It has been contended on behalf of Tenant that there is no evidence that Landlord or his family members are residing in Shimla and they are having sufficient funds and therefore, eviction order passed against the Tenant was not sustainable. 6. It has been contended that original tenant was Mohammad Islam, who was father of present Tenant and after death of Mohammad Islam, his legal heirs have succeeded his tenancy rights but they have not been arrayed as party and therefore, petition was liable to be dismissed. 7. It has also been contended that Landlord was in occupation of sufficient accommodation about 13 living rooms, 4 kitchens and 6 toilets, which was sufficient for his use and occupation. 7. It has also been contended that Landlord was in occupation of sufficient accommodation about 13 living rooms, 4 kitchens and 6 toilets, which was sufficient for his use and occupation. Further that Landlord casually visits Shimla and his one son is residing at Lucknow and another is at native village Gumma and therefore, the claim of the Landlord on account of bonafide requirement to evict the Tenant, is not sustainable. 8. It has been argued by learned counsel for Tenant that Appellate Authority has failed to exercise its jurisdiction and has upheld the eviction order passed by the Rent Controller without touching any point or fact despite that Appellate Authority was having jurisdiction and was supposed to return its findings after discussing the evidence on its merit because an appeal was in continuation of original proceedings. Further that Appellate Authority has not only right but duty and obligation to decide the appeal by taking into consideration entire pleadings, facts and evidence available on record and it has been contended that on this count also, Revision Petition deserves to be allowed. 9. To substantiate the plea taken by Tenant, reliance has been placed on judgment of the Supreme Court, titled as Manjula and others vs. Shyamsunder and others reported in (2022)3 SCC 90 by referring its para 8, which reads as under:- “8. Section 96 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.” 10. It has been further submitted that scope of Rent Petition under Section 24 of the Rent Act is wider than the Rent Petition under Section 115 of CPC. 11. On behalf of landlord, it has been contended that availability of funds is not a relevant issue in present matter because the Rent Petition has been filed for eviction of Tenant on the ground that accommodation was required bonafide for the family of Landlord but it was not a ground that Landlord intends to reconstruct, repair or rebuilt the premises, in reference. 12. It has been further contended on behalf of Landlord that Rent Controller as well as Appellate Authority has appreciated the evidence in detail and findings returned by the Courts below are based on correct appreciation of evidence and therefore, there is no scope of interference with respect to findings of fact returned in the impugned order and judgment. 13. The Supreme Court in Rukmini Amma Saradamma vs. Kallyani Sulochana and others, reported in (1993) 1 SCC 499 , referring its earlier pronouncement in Rai Chand Jain vs. Chandra Kanta Khosla, (1991) 1 SCC 422 , with respect to scope of revisional power under Section 20 of Kerala Rent Control Act, which is similar to H.P. Rent Act, has observed that notwithstanding the fact that Section 20 of the Act conferring revisional jurisdiction of the High Court is widely worded, such a jurisdiction cannot be converted into an appellate jurisdiction. 14. 14. With respect to scope of jurisdiction and revisional jurisdiction and the extent of power which High Court can exercise in a Revision filed under Section 24(5) of the Rent Act, Five Judges’ Constitution Bench of Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78 , has observed as under:- “28. Before we consider the matter further to find out the scope and extent of revisional jurisdiction under the above three Rent Control Acts, a quick observation about the 'appellate jurisdiction' and 'revisional jurisdiction' is necessary. Conceptually, revisional jurisdiction is a part of appellate jurisdiction but it is not vice-versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is co-extensive with that of the trial court. Ordinarily, appellate jurisdiction involves re- hearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In other words, revision is not continuation of suit or of original proceeding. When the aid of revisional court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute. It goes without saying that if a revision is provided against an order passed by the tribunal/appellate authority, the decision of the revisional court is the operative decision in law. In our view, as regards the extent of appellate or revisional jurisdiction, much would, however, depend on the language employed by the statute conferring appellate jurisdiction and revisional jurisdiction. 29. With the above general observations, we shall now endeavour to determine the extent, scope, ambit and meaning of the terms "legality or propriety", "regularity, correctness, legality or propriety" and "legality, regularity or propriety" which are used in three Rent Control Acts under consideration. 29.1. The ordinary meaning of the word 'legality' is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal. 29.2. The term 'propriety' means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy. 29.3. 29.1. The ordinary meaning of the word 'legality' is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal. 29.2. The term 'propriety' means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy. 29.3. The terms 'correctness' and 'propriety' ordinarily convey the same meaning, that is, something which is legal and proper. In its ordinary meaning and substance, 'correctness' is compounded of 'legality' and 'propriety' and that which is legal and proper is 'correct'. 29.4. The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play. 30. We have already noted in the earlier part of the judgment that although there is some difference in the language employed by the three Rent Control Acts under consideration which provide for revisional jurisdiction but, in our view, the revisional power of the High Court under these Acts is substantially similar and broadly such power has the same scope save and except the power to invoke revisional jurisdiction suo motu unless so provided expressly. None of these statutes confers on revisional authority the power as wide as that of appellate court or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. The provision under consideration does not permit the High Court to invoke the revisional jurisdiction as the cloak of an appeal in disguise. Revision does not lie under these provisions to bring the orders of the Trial Court/Rent Controller and Appellate Court/Appellate Authority for re-hearing of the issues raised in the original proceedings. 43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re- appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 15. Present Revision Petition is to be decided keeping in view the aforesaid exposition of law with respect to scope of revisional jurisdiction of this Court. 16. So far as plea of non-joinder of necessary parties is concerned, neither details of other legal heirs ordinarily living with deceased Mohammad Islam has been given in petition nor any evidence has been led to that effect. 17. 16. So far as plea of non-joinder of necessary parties is concerned, neither details of other legal heirs ordinarily living with deceased Mohammad Islam has been given in petition nor any evidence has been led to that effect. 17. Explanation I and II to Section 2(j) of Rent Act is relevant in this regard, which reads as under:- “Explanation-I-The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:- (a) firstly, his surviving spouse; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased persons as a member of his family upto the date of his death; (c) thirdly, his parent(s), if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son, daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death; and (d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parent(s) of the deceased person or if such surviving spouse, son, daughter or parent(s), or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death; Explanation-II- The right of every successor, referred to in Explanation-I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs; and” 18. In present case, there is no evidence with regard to surviving spouse, other surviving son or any other member of family entitled to succeed the tenancy in terms of above Explanations by ordinarily residing with Mohammad Islam. 19. The acquisition of other accommodation by tenant in same vicinity/town/city, may not be a ground specifically available for eviction of tenant but it is a material and relevant fact to consider the requirement and bonafide of tenant to continue as a tenant in the premises in reference. The Rent Act is for protecting the Tenant from illegal, unwarranted and ingenuine eviction but not to protect scoundrel person. The Rent Act is for protecting the Tenant from illegal, unwarranted and ingenuine eviction but not to protect scoundrel person. It is not an enactment to harass Landlord unnecessarily but piece of Legislation to do justice with both Landlord as well as Tenant within parameters of the enactment. 20. As has come on record in the impugned order that earlier Rent Petition filed by landlord was for eviction on the basis of arrears of rent, successive eviction Rent Petition i.e. present petition has been filed on the basis of bonafide requirement and thus, the present Rent Petition is not barred by res-judicata and there is no estoppal causing impediment to file and maintain the present Rent Petition. 21. Rent Controller as well as Appellate Authority, after discussing the entire oral and documentary evidence, has returned the findings of facts. The Appellate Authority has also taken into consideration the entire evidence as reflected in discussion in impugned judgment. After taking into consideration the statements of witnesses and documents on record, especially in paras 9 to 13, Appellate Authority has arrived at a conclusion to agree with finding returned by the Rent Controller. 22. It has been observed by the Courts below that tenant though contended that sons of landlord are not residing in Shimla, however, he has admitted that grandson of Landlord was studying in Auckland School in Shimla and thus it has been concluded that from the aforesaid admissions, it is apparent that family members of landlord were and are residing in Shimla and no contrary evidence has been produced by Tenant except the oral evidence. In para 13 of this judgment, Appellate Authority by referring paras 21 and 26 of the order passed by the Rent Controller has arrived at a conclusion that tenant has failed to prove that Landlord and his sons were not residing in Shimla and Rent Controller has rightly concluded that landlord resides in the building with his wife, old age parents, two married son and a grandson. There is no convincing, cogent and sufficient material on record to establish that Landlord was and is having sufficient accommodation. 23. Appellate Authority after discussing the case law cited in the impugned judgment and provisions of Section 14(3)(a)(i) of Rent Act has upheld the eviction order passed by Rent Controller. There is no convincing, cogent and sufficient material on record to establish that Landlord was and is having sufficient accommodation. 23. Appellate Authority after discussing the case law cited in the impugned judgment and provisions of Section 14(3)(a)(i) of Rent Act has upheld the eviction order passed by Rent Controller. Therefore, plea of Tenant that Appellate Authority has failed to exercise its jurisdiction to consider and discuss the entire evidence is not sustainable. 24. After going through the findings returned by Courts below along with pleadings and evidence on record, I am of considered opinion that Courts below have returned the findings of the fact correctly in consonance with material available on record and have appreciated the various pronouncements referred in impugned judgment in right perspective and there is nothing on record to doubt correctness and propriety of the impugned judgment and order and there is no illegality, irregularity or perversity in the impugned judgment and order so as to warranting interference of this Court exercising the jurisdiction under Section 24 of Rent Act. 25. Accordingly, impugned judgment and order are upheld and Tenant is directed to vacate the premises in reference as expeditiously as possible latest by 31.12.2023, and the Revision Petition is dismissed including all pending miscellaneous application(s), if any.