Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 587 (HP)

Harpreet Singh Anand v. Manjeet Kaur

2023-12-22

VIVEK SINGH THAKUR

body2023
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Instant Revision Petition, invoking Section 24(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as ‘Act’) has been preferred against the order dated 11.06.2018, passed by the Rent Controller, Shimla, H.P., in CMA No. 54-6/2018, in Rent Case No. 18-2 of 17/12, whereby application preferred by the tenant under Order 6 Rule 17 Code of Civil Procedure (in short ‘CPC’) for amendment of reply to the main petition has been dismissed. 2. Parties herein are being referred hereinafter as per their status before the Rent Controller, i.e. landlord and tenants. 3. I have heard learned counsel for the parties and have also gone through the record. 4. Landlord has instituted the Rent Petition for eviction of premises in reference in April 2012 on the ground of bonafide requirement for herself and her unmarried daughter namely Bhupinder Kaur, by starting and establishing business of sale of Readymade Garments and ladies suits etc., and also arrears of rent by tenants from 01.09.2011 onwards. 5. During pendency of the Rent Petition, on account of family settlement, premises in reference was allotted to Bhupinder Kaur. Whereafter, an application under Order 22 Rule 10 CPC read with Order 1 Rule 10 CPC was filed for substitution of Bhupinder Kaur in place of landlord Manjeet Kaur. The said application, filed in July 2013, was opposed by the tenants on the ground that claim of allotment of the shop to Bhupinder Kaur was concocted and false. The application was dismissed on 10.04.2015. 6. On 02.06.2015, an application under Order 6 Rule 17 CPC was filed by the tenants for amendment of the reply to the main petition. That application was allowed on 02.11.2015, whereby Para 9(a) was allowed to be added in preliminary objections of the reply filed by the tenants. Evidence of the landlord was closed on 22.08.2016 and, thereafter, petition was listed for recording evidence of the tenants. 7. Issues in the Rent Petition were framed on 08.01.2013. The petition remained pending for recording evidence of tenants till 2018 and it was listed for recording evidence of tenants on 16.04.2018. However, in the meanwhile, on 27.02.2018, second application under Order 6 Rule 17 CPC was filed by the tenants for adding Para 9(b) in preliminary submissions which reads as under: “That since the case of the petitioner is that Ms. However, in the meanwhile, on 27.02.2018, second application under Order 6 Rule 17 CPC was filed by the tenants for adding Para 9(b) in preliminary submissions which reads as under: “That since the case of the petitioner is that Ms. Bhupinder Kaur has become the owner of the property and Smt. Manjeet Kaur has no concern with the property in question. Hence, the present petition which has been filed by Smt. Manjeet Kaur deserves to be dismissed with penal cost as the same has not been filed by competent person.” 8. Aforesaid second application for amendment has been dismissed by the Rent Controller by passing impugned order dated 11.06.2018 on two grounds that the tenants have failed to exercise due diligence for filing application and also that there is nothing to reveal and demonstrate that amendment sought is necessary for determining controversy in the matter. 9. Learned counsel for the tenants has submitted that it is settled law that amendments are to be allowed liberally and CPC, as applicable strictly in Civil Suits, is not applicable in rent cases and application under Order 22 Rule 10 CPC was filed by the landlord claiming transfer of ownership of the shop to Bhupinder Kaur, which was dismissed on 10.04.2015 and, thereafter, on 27.02.2018 application under Order 6 Rule 17 CPC has been filed on the basis of admissions made in the application filed by the landlord under Order 22 Rule 10 CPC. It has been submitted that previous landlord Manjeet Kaur has lost its right on transfer of the premises in reference and, therefore, amendment sought was necessary for adjudication of the matter. 10. Learned counsel for the landlord has supported the impugned order for the reason assigned therein and has submitted that application has been filed only in order to delay the proceedings in the Eviction Petition. Whereas, landlord Manjeet Kaur has right to continue the suit even after allotment of the premises in reference to Bhupinder Kaur, particularly for the ground upon which eviction has been sought by clearly stating therein that premises in reference is required bonafide by the landlord for settling her business alongwith daughter Bhupinder Kaur. Whereas, landlord Manjeet Kaur has right to continue the suit even after allotment of the premises in reference to Bhupinder Kaur, particularly for the ground upon which eviction has been sought by clearly stating therein that premises in reference is required bonafide by the landlord for settling her business alongwith daughter Bhupinder Kaur. It has further been contended that cases are to be decided on the basis of facts existing at the time of filing of the cases and, therefore, subsequent transfer of interest in the property or allotment of the premises in reference to Bupinder Kaur does not affect the merits of Eviction Petition filed, for bonafide requirement and arrears of rent, by Manjeet Kaur. Further, it has been contended that amendment sought is not necessary for adjudication of the matter. It has further been submitted that under the Act, for definition of the ‘landlord’ it is not necessary that landlord should be owner of the property. 11. Definition of ‘landlord’ as provided under Section 2(d) of the Act, is as under: “(d) “landlord” means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, a specified landlord, and every person from time to time deriving title under a landlord.” 12. Bare reading of the aforesaid definition of ‘landlord’ depicts that “landlord” can be a person other than the owner of the property who is receiving the rent in respect of the premises on his own account or on behalf or for the benefit of any other person. 13. It is not necessary that in every case transferee of the property shall not be entitled to continue the proceedings initiated by the previous owner as a landlord. Transfer may be on many counts, like sale, inheritance, etc. There may be a case, like present one, where ‘bona-fide requirement’ also includes interest and requirement of subsequent proposed owner/Landlord of the property. By allotment of the premises in favour of Bhupinder Kaur, in family settlement, she will be entitled to continue the proceedings either after Manjeet Kaur or alongwith her, if not in substitution. There may be a case, like present one, where ‘bona-fide requirement’ also includes interest and requirement of subsequent proposed owner/Landlord of the property. By allotment of the premises in favour of Bhupinder Kaur, in family settlement, she will be entitled to continue the proceedings either after Manjeet Kaur or alongwith her, if not in substitution. There may be cases where grounds on which eviction of tenant has been sought may also be available to the transferee after entering into the shoes of the previous owner/Landlord or by joining in the petition as co-petitioner/ co-applicant or substitution, but may be with respect to all grounds or some of the grounds already pleaded for eviction. 14. In present case, main ground for filing Eviction Petition is that landlord intended to settle her business alongwith her daughter Bhupinder Kaur in order to settle her unmarried daughter Bhupinder Kaur. Therefore, it is implied that premises in reference was bonafidely required by landlord Manjeet Kaur to settle her daughter. There is nothing on record that after allotment of the shop in favour of Bhupinder Kaur, Manjeet Kaur is not managing affairs related to shop on behalf of Bhupinder Kaur. Manjeet Kaur, even if not having ownership of the premises in reference, can continue as a landlord for acting and receiving rent on behalf or for the benefit of her daughter Bhupinder Kaur. Therefore, it cannot be said that after allotment of the shop, Manjeet Kaur became incompetent to continue the proceedings. 15. Supreme Court in Pasupuleti Venkateswarlu vs. The Motor and General Traders, (1975) 1 SCC 770 , has held as under: “.......It is basic to our processual jurisprudence that the right to relief must be judged to exist as on date a suitor institutes the legal proceeding.......” 16. Supreme Court in Rajeshwar and Others vs. Jot Ram and Another, (1976) 1 SCC 194 : AIR 1976 SC 49 , referring Pasupuleti Venkateswarlu’s case and Bhajan Lal vs. State of Punjab, (1971) 1 SCC 34 ; has held as under: “6. The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it. Rut because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late. The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it. Rut because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late. But these higher Courts pronounce upon the rights of parties as the facts stood when the first Court was first approached. The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one. Actus curiae neminem gravabit (1) Precedential support invoked by the appellant's counsel also lets him down provided we scan the fact situation in each of those cases and the legal propositions therein laid down. 7. The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact-situations or legal positions and drive parties to fresh litigation whereas relief can be given right here. The broad principle, so stated, strikes a chord of sympathy in a court of good conscience. But a seeming virtue may prove a treacherous vice unless judicial perspicacity, founded on well-grounded rules, studies the plan of the statute, its provisions regarding subsequent changes and the possible damage to the social programme of the measure if later events are allowed to unsettle speedy accomplishment of a re-structuring of the land system which is the soul of this which enactment. No processual equity can be permitted to sabotage a cherished reform, nor individual hardship thwart social justice this wider perspective explains the rulings cited on both sides and the law of subsequent events on pending actions. 8. In P. Venkateswarlu vs. Motor and General Traders (2) this Court dealt with the adjectival activism relating to post-institution circumstances two propositions were laid down. Firstly, it was held that 'it is basic to our processual jurisprudence that the right to relief - must be judged to exist as on the date a suitor institutes the legal proceeding'. 8. In P. Venkateswarlu vs. Motor and General Traders (2) this Court dealt with the adjectival activism relating to post-institution circumstances two propositions were laid down. Firstly, it was held that 'it is basic to our processual jurisprudence that the right to relief - must be judged to exist as on the date a suitor institutes the legal proceeding'. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he Is entitled to its enforcement. Later developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Court's procedural delays cannot deprive him of legal justice or rights crystallized in the initial cause of action. This position finds support in Bhajan Lal vs. State of Punjab, (1971) 1 SCC 34 .” 17. In State of U.P. and Others vs. Harish Chandra and Others, (1996) 9 SCC 309 , Supreme Court has observed as under: “.........Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition........” 18. In the light of above pronouncements, even otherwise, competence to file and entitlement to maintain the petition and right to get the relief is to be considered with reference to the date of initiation of legal proceedings. 19. By way of proposed amendment, competency of Manjeet Kaur for filing the petition has been disputed. Plea with respect to maintainability has already been taken in the reply to Rent Petition in paragraphs 2, 3 and 8 which read as under: “(2) That the petition is also not maintainable in view of the fact that as per the H.P. Rent Control Act, the petition has been filed without fulfilling the mandatory requirement as prescribed. (3) That the petition filed by the petitioner has not been properly constituted and suffers inherent defects which are incapable of being cured. ................. (3) That the petition filed by the petitioner has not been properly constituted and suffers inherent defects which are incapable of being cured. ................. (8) That present petition is also not maintainable in view of the fact that the litigation between the family members of the petitioners qua the ownership are pending in different courts in respect of the building in question where the shop is situated as such.” 20. On the basis of that an issue has also been framed in this regard which reads as under: “3. Whether petition is not maintainable in the present form on the grounds set up in the petition, as alleged? OPRs” 21. It is also noticeable that in response to the application filed under Order 22 Rule 10 CPC, it was stand of the tenants that Bhupinder Kaur is not owner and claim of allotment of premises in reference to Bhupinder Kaur was alleged to be concocted and false. Now tenants are harping upon a plea taken by them which is converse to their earlier stand where they did not accept Bhupinder Kaur as owner, but now they are claiming amendment in the reply on the basis of stand taken contrary to that. 22. Application under Order 22 Rule 10 CPC was filed in July 2013 which was dismissed on 10.04.2015. Thereafter, an application filed by tenants under Order 6 Rule 17 CPC was also adjudicated and was allowed. Thereafter, matter remained pending for recording evidence of the tenants for about three years, but no application for proposed amendment was ever filed by the tenants. Tenants have also failed to explain the reason for which application was filed at such a belated stage. 23. It is true that CPC is not applicable to the rent cases, as it is applicable strictly to the Civil Suits, but at the same time principles contained in provisions of CPC are applicable for adjudication of Rent Petition also and, in present case, there is extraordinary, inordinate, unexplained delay in filing he application under Order 6 Rule 17 CPC and there is nothing on record to indicate that in spite of due diligence tenants could not raise the issue at earlier point of time at least after filing of application under Order 22 Rule 10 CPC or latest by decision of the said application on 10.04.2015. Therefore, application has rightly been dismissed on this ground. 24. Therefore, application has rightly been dismissed on this ground. 24. Even otherwise for the plea taken in the reply and issues framed in the matter, and also considering settled law that competency is to be seen on the date of filing of the petition, I am of the considered opinion, as has also been observed by the Rent Controller, proposed amendment is not necessary for the purpose of determining real question in controversy between the parties. The plea sought to be added in the preliminary submissions can be substantiated by leading evidence with respect to the issues already framed. 25. In view of above, I do not find any judicial impropriety, illegality or perversity in the impugned order. Accordingly, petition is dismissed and disposed of. 26. Records, if any, received from the Trial Court, be returned. Copy of this judgment also be transmitted to the Rent Controller forthwith. Parties are directed to appear before Rent Controller on 09.01.2024 27. Pending applications, if any, also stand disposed of.