Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 444 (HP)

Mukesh Verma v. Kharaiti Lal Malhotra

2023-11-04

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Heard. 2. Both these petitions are being decided by a common judgment as identical questions of facts and law are involved. Civil Revision No. 115 of 2023 3. By way of this petition, the landlord Sh. Mukesh Verma, has assailed order dated 05.07.2023, passed by learned Appellate Authority, Solan, H.P. in Rent Appeal No. 4-S/14 of 2022, whereby, after setting -aside the order dated 29.12.2022, passed by learned Rent Controller-2, Solan, H.P. in Rent Petition No. 9/2 of 2020, the landlord has been directed to immediately restore the essential service of the tenanted premises of respondent/tenant Shri Kharaiti Lal Malhotra by clearing sand/debris and other waste material stacked on its roof and removal of weeds etc. The landlord has also been directed to keep the drainage outlets in working condition. CMPMO No. 23 of 2023 4. By way of this petition, petitioner herein/tenant Sh. Kharaiti Lal Malhotra has assailed order dated 16.12.2022, passed by learned Civil Judge, Court No.1, Solan, District Solan, H.P. in CMA No. 301/6 of 2022, whereby his application under Order 26 Rule 9 of the Code of Civil Procedure filed in Execution Petition No. 1/10 of 2017 for appointment of Local Commissioner has been rejected. Brief Background facts 5. In order to understand the factual matrix, a few details need attention. The dispute in both the litigations, as noticed above, is inter se the tenant and landlord. Sh. Kharaiti Lal Malhotra is the tenant and Sh. Mukesh Verma is the landlord. The dispute is in respect of a non-residential premises, i.e. a shop within the urban area of Solan wherein the tenant is running his cloth business. 6. The allegation of the tenant is that the landlord has been stacking waste building material, debris etc. on the roof of his tenanted shop, whereby the drainage pipes are clogged causing seepage of water into the shop through its roof. The tenant approached learned Rent Controller by way of a petition under Section 11 of the H.P. Urban Rent Controller Act, 1987 (for short “The Act”) with the aforesaid allegation and asserted that the conduct of landlord amounted to withdrawal of necessary amenities from the tenant premises of the tenant. The petition was registered as Rent Petition No. 9/2 of 2020, titled as Kharaiti Lal Malhotra Vs. The petition was registered as Rent Petition No. 9/2 of 2020, titled as Kharaiti Lal Malhotra Vs. Mukesh Verma, before learned Rent Controller-2, Solan, H.P. Learned Rent Controller held the tenant not entitled to the relief, on the ground that the roof was not part of the tenanted premises and thus, the jurisdiction under Section 11 of the Act could not be exercised as the tenant could not claim amenities with respect to the roof. 7. In appeal filed by the tenant, learned Appellate Authority after placing reliance on a judgment passed by this Court in Bhawani Charan Vs. Chander Lok Sweet Shop reported in MANU/HP/0249/2001 has set-aside the findings returned by learned Rent Controller and held that the roof was part of the tenanted premises and unwarranted interference by landlord by stacking waste material on the roof which caused seepage into the premises, clearly amounted to withdrawal of essential amenities. The aforesaid order is under challenge by way of Civil Revision No. 115 of 2023. 8. Way back in 2010 the tenant had also filed a Civil Suit No. 172/1 of 2010 against landlord with the same allegation that the landlord, with the purpose to cause damage to the roof of tenanted premises, had stacked debris and thereby blocked the rain water outlets of the roof. Decrees for permanent prohibitory and mandatory injunction were claimed. 9. Following issues were framed in the Civil Suit No.172/1 of 2010:- 1) Whether the plaintiff is entitled for the relief of permanent prohibitory injunction against defendant, as alleged? OPP 2) Whether the plaintiff is entitled for the relief of mandatory injunction against the defendant, as alleged? OPD 3) Whether the plaintiff has no legal, valid and subsisting cause of action against the defendant to file present suit? OPD 4) Whether the present suit is not maintainable in the present form? OPD 5) Whether the suit is liable to be stayed under Section 10 CPC? OPD 6) Whether the plaintiff has no locus- standi to file present suit? OPD 7) Relief. 10. The suit was partly decreed and decree to the following effect was passed in favour of the tenant. “19. OPD 5) Whether the suit is liable to be stayed under Section 10 CPC? OPD 6) Whether the plaintiff has no locus- standi to file present suit? OPD 7) Relief. 10. The suit was partly decreed and decree to the following effect was passed in favour of the tenant. “19. In view of discussion made above suit of the plaintiff is partly decreed to the effect that defendant is restrained from causing interference in the suit premises qua premises comprised in building in Municipal Ward Number 9, Municipal Council Solan in Chowk Bazar existing over a portion of Khasra Number 37, Mauza Se. Solan, Tehsil and District Solan, H.P. by stacking malwa on the roof in such manner which could cause damage to the property. No order as to mandatory injunction is granted. Decree sheet be prepared accordingly. No order as to cost. Case file after due completion be consigned to record room.” 11. The aforesaid decree is sought to be executed by tenant against landlord by filing Execution Petition No. 1/10 of 2017. The landlord has filed objections. The Executing Court has allowed the parties to lead evidence. During the proceedings of execution petition, tenant filed an application under Order 26 Rule 9 of CPC for appointment of Local Commissioner to ascertain the factum of violation of decree of permanent prohibitory injunction passed in his favour. Vide order dated 16.12.2022, the Executing Court has dismissed the prayer of the tenant for local inspection and against such order the tenant is before this Court in CMPMO No. 23 of 2023. 12. The decree in Civil Suit No. 172/1 of 2010 is dated 23.05.2016 and definitely prior in time than the order passed in Rent Petition No. 9/2 of 2020. The parties to the Civil Suit No. 172/1 of 2010 and Rent Petition No. 9/2 of 2020 are the same. The issue decided in Civil Suit No. 172/1 of 2010 is directly and substantially the same as is the subject matter of Rent Petition No.9/2 of 2020. On the grounds of prior adjudication of the same issue by Court of competent jurisdiction, the same will apply as res-judicata between the same parties in all subsequent proceedings giving rise to the same issue. On the grounds of prior adjudication of the same issue by Court of competent jurisdiction, the same will apply as res-judicata between the same parties in all subsequent proceedings giving rise to the same issue. This aspect of the matter has completely been over looked by the Appellate Authority while deciding Rent Appeal No. 4-S/2014 of 2022, vide order dated 05.07.2023, whereas, there was a specific reference to decree dated 23.5.2016 passed by Civil Court in Suit No. 172/1 of 2010 in the petition under section 11 of the Act filed by the tenant. 13. The fact of the matter remains that the tenant holds a decree of permanent prohibitory injunction against the landlord whereby the landlord has been permanently restrained from causing interference in the tenanted premises of the tenant by stacking ‘Malwa’ on the roof, in such manner which could cause damage to the building. Since, there is no dispute regarding the finality attached to the aforesaid decree, the parties i.e. tenant and landlord would be bound by the decree. By seeking invocation of Section 11 of the Act, the tenant had again sought the same relief though under a different provision of law. 14. Order 21 Rule 32(5) of the Code of Civil Procedure, reads as under :- “(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree." {Explanation- for the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions}.” 15. Thus, there remains no matter of doubt that in case the tenant proves the violation of decree of permanent prohibitory injunction passed in his favour, the Executing Court has power to direct the act required to be done under the decree by the decree holder or some other person appointed by the Court, at the cost of the judgment debtor. Thus, there remains no matter of doubt that in case the tenant proves the violation of decree of permanent prohibitory injunction passed in his favour, the Executing Court has power to direct the act required to be done under the decree by the decree holder or some other person appointed by the Court, at the cost of the judgment debtor. The explanation appended to above provision makes it clear that the power can be used by Executing Court even in the cases of decree for permanent prohibitory injunction. It being so, the maintainability of the petition under Section 11 of the Act, at the instance of the tenant itself was questionable. Be that as it may, as held above, the issue decided in Civil Suit No. 172/1 of 2010 in favour of the tenant will operate as res-judicata in all subsequent proceedings between the same parties on the same issue. Therefore, the impugned order dated 05.07.2023, passed by the learned Appellate Authority, Solan, H.P. in Rent Appeal No. 4-S/14 of 2022, needs to be set-aside having been passed by ignoring the existence of earlier decree of Civil Court in Civil Suit No. 172/1 of 2010. Even otherwise, the said relief could not be claimed by the tenant in two separate proceedings. He cannot be allowed to agitate the same issue before different Forums. If such proceedings are allowed to continue, it may entail contradictory findings on the same facts and issues. 16. As regards, the legality of order passed by learned Executing Court dismissing the plea of the tenant for appointment of Local Commissioner, it can be said to be the result of an error in exercise of jurisdiction. The landlord has suffered a decree whereby he has been restrained from stacking ‘Malwa’ on the roof of the tenanted premises of the tenant. The tenant alleges violation of the decree, whereas the landlord denies such assertion. Parties have already lead evidence. It is for the Executing Court to execute its decree in order to maintain the majesty of rule of law. The ascertainment of facts in order to arrive at one or the other conclusion is the duty of the Executing Court. 17. The parties have to prove their respective contentions, however, this does not mean that the Court in appropriate cases cannot allow the local inspection for ascertainment of facts. The ascertainment of facts in order to arrive at one or the other conclusion is the duty of the Executing Court. 17. The parties have to prove their respective contentions, however, this does not mean that the Court in appropriate cases cannot allow the local inspection for ascertainment of facts. The impugned order reveals that the learned Executing Court has refused to exercise jurisdiction only on the ground that the Local Commissioner had already been appointed during the proceedings of the main suit. It has not been appreciated that there can always be change in fact situation and what is required to be ascertained in execution proceedings is whether there was any violation of the decree? Such ascertain can only be made in the context of the fact situation as exist presently. 18. In light of above discussion, both the petitions are allowed. The impugned order dated 5.07.2023, passed by learned Appellate Authority, Solan, H.P. in Rent Appeal No. 4- S/14 of 2022, is set aside. The proceedings under Section 11 of the Act, filed on behalf of the tenant are held to be not maintainable being hit by principle of res-judicata. Order dated 16.12.2022, passed by learned Civil Judge, Court No.1, Solan, District Solan, H.P. in CMA No. 301/6 of 2022, is also set-aside. The application of the tenant for local inspection is allowed. The Executing Court is directed to appoint a Local Commissioner with the direction to inspect the roof of the tenanted premises of the tenant for ascertainment of the allegations of violation of decree and to seek the report before final adjudication of the execution proceedings. 19. These petitions are, accordingly, disposed of, so also the pending miscellaneous application(s) if any.