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2025 DIGILAW 220 (HP)

Dimple Kapoor v. Suman Dawar

2025-02-27

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. Both the petitions lay challenge to the same impugned order dated 29.07.2019, hence, the same are being taken up together. 2. In the case at hand, eviction petition bearing No. 8/2 of 2006, was allowed by the Rent Controller vide judgment dated 22.12.2008. The eviction so ordered was upheld by the 1 st Appellate Court. In the revision preferred before the High Court, the original tenant Vereesh Dabar had died, therefore, vide order dated 18.11.2009, the legal heirs of the deceased Vereesh Dabar i.e. the present respondents No. 1 to 3 were ordered to be brought on record. 3. Subsequent to the disposal of the revision petition, an execution petition bearing No. 6-10 of 2009 was filed before the executing Court. At the time of the filing of the Execution Petition, SLP preferred before the Apex Court against the judgment passed by the High Court in Revision was pending adjudication. 4. During the pendency of the execution petition on 24.04.2010, parties to the lis had agreed that the present respondents No. 1 to 3 would hand over possession of the demised premises to the landlord. In this regard, a separate statement of their counsel as well as a statement of one of the LRs Varun Dabar had been recorded. The landlord had stated that they would be bound by amendment in the H.P. Urban Rent Control Act, if any, made in pursuance to Bill No. 31 of 2009, dated 17 th December, 2009 subject to all just legal exceptions as per the Act. The aforesaid bill had become an Act in the year 2012. By virtue of the same proviso to Section 14(3) (c) of the H.P. Urban Control Rent Act was incorporated, whereby the tenant was given a right of re-entry. 5. In the aforesaid backdrop on 05.10.2012, respondents No. 1 to 3 i.e. LRs of the tenant Vereesh Dabar had filed an application seeking execution of an agreement for providing a right of re-entry into the rebuild building from where they had been evicted. The executing Court vide judgment dated 06.08.2018 had dismissed the application. Against the same, an appeal was preferred by respondents No. 1 and 2 on 04.09.2018. The same had been decided on 29.07.2019. 6. The executing Court vide judgment dated 06.08.2018 had dismissed the application. Against the same, an appeal was preferred by respondents No. 1 and 2 on 04.09.2018. The same had been decided on 29.07.2019. 6. A perusal of the impugned judgment dated 29.07.2019 especially para 26 thereof reflects that the landlords i.e. present petitioners in response to the application filed on behalf of the present respondents No. 1 to 3 seeking re-entry into the demised premises had raised an objection qua the present respondents No. 1 to 3 being not entitled to any relief in the application as according to the present petitioners/landlords, they were not tenants in the demised premises. The 1st Appellate Court was of the view that this issue though raised, had not been considered and decided by the Executing Court. In the aforesaid facts and attending circumstances, the 1 st Appellate Court had directed a remand of the matter to the trial Court for afresh adjudication. 7. Learned counsel for the petitioners submits that the appellate authority, in the case at hand, has no power/jurisdiction to remand the matter back to the Rent Controller. In this respect learned counsel for the petitioners has drawn the attention of this Court to judgment in Braham Dass & Ors. Vs. Satya Wati & Others, 1997 (1) SLJ 484, wherein the following has been laid down. “4. It is clear from the above provisions that the Appellate Authority constituted under the Act has no power to remand a case to the Rent Controller. All that it can do is that if deemed necessary, it can decide the appeal after making such further inquiry as it thinks fit either personally or through the Controller. By no stretch of imagination can it be said that this power includes the power to remand the case to the Rent Controller.” 8. Learned counsel appearing on behalf of the respondents No. 1 to 3 fairly concedes to the aforesaid legal preposition. On this account, the impugned judgment dated 29.07.2019 passed by the 1 st appellate Court needs to be set aside with a direction to the 1 st appellate Court to decide the matter afresh. 9. Learned counsel appearing on behalf of the respondents No. 1 to 3 fairly concedes to the aforesaid legal preposition. On this account, the impugned judgment dated 29.07.2019 passed by the 1 st appellate Court needs to be set aside with a direction to the 1 st appellate Court to decide the matter afresh. 9. Besides the aforesaid, from a perusal of the cause title of the eviction petition filed i.e. 8/2 of 2006, decided on 22.12.2008, it is evident that the same had been filed on behalf of Dharam Pal Kapoor, Kajal Kapoor, Dinesh Kapoor, Dimple Kapoor, Ms, Neelu Kapoor and Ms. Shivali Kapoor. 10. In the case at hand, when the application seeking a right of re-entry was filed on behalf of present respondents No. 1 to 3 before the executing Court, all the landlords, who had filed the eviction petition had been arrayed as parties before the executing Court. However, inadvertently in the judgment dated 06.08.2018 passed by the executing Court, only three landlords namely Dharampal Kapoor, Rajan Kapoor & Dinesh Kapoor were arrayed as landlords/non applicants. Even before the 1 st Appellate Court as is evident from the impugned judgment dated 29.07.2009, only the aforesaid three landlords had been impleaded as party respondents therein. The limited contention raised in Civil Revision No. 27/2020 by the three petitioners therein i.e. Dimple Kapoor, Neelu Kapoor, Shifali Kapoor is qua them having not been impleaded as parties. Thereby according to them being necessary parties they have been gravely prejudiced and the defect in the cause title needs to be rectified. 11. The contention of the petitioners in CR No. 27/2020 is based on two important principles:- (I) The act of the Court shall prejudice no one (Actus Curiae Neminem Gravabit); (ii) It is the duty of all Courts that the Courts records represent the correct state of affairs. 12. A clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. The application filed by the respondents in the case at hand before the executing Court had been filed against the landlords. The application filed by the respondents in the case at hand before the executing Court had been filed against the landlords. The judgment of the trial Court dated 06.05.2018 passed by the rent controller on a meaningful reading of the same reflects that it appears to have been passed against all the landlords. 13. Missing out of the name of three petitioners who have filed CR No. 27 of 2020 from the array of the respondents in the judgment dated 06.05.2018 appears to be an accidental slip or omission. An error due to careless mistake on the part of the Court. As whatever was intended by the court while passing the judgment dated 06.05.2018 seems not to have been properly reflected therein, and hence permitting the accidental slip or omission in the case at hand to continue would be destructive to the principle of advancing the cause of justice. 14. Other than the aforesaid the mistake in the case at hand appears to be an un-intentional/inadvertent mistake of the Court which shall cause prejudice to the three petitioners in CR No. 27 of 2020 and hence the same needs to be considered and appropriately dealt with. It seems that no new arguments or rearguments on merits are required for correcting such rectification of mistake in the case at hand. 15. Other than the aforesaid, a bare perusal of Section 24(5) of the H.P. Urban Rent Control Act reflects that the expression used there is, “either on its own motion”. The same reflects the legislative concern to remind the Court of its duty to do the needful when the situation warrants so, even if there is no application filed for correction. Section 24(5) permits the same to be done “at any time”. 16. Since the impugned judgment dated 29.07.2009 passedby the 1st Appellate court has been set aside with a direction to the 1st Appellate Court to decide the matter afresh, therefore, liberty is reserved to the petitioners in Civil Revision No. 27 of 2020 to move an appropriate application before the 1st Appellate Court for rectification of the cause title in judgment dated 06.08.2018 passed by the Rent Controller. On filing the application, the same alongwith the record shall be sent to the rent controller (executing Court) for carrying out necessary rectification in the cause title forthwith. On filing the application, the same alongwith the record shall be sent to the rent controller (executing Court) for carrying out necessary rectification in the cause title forthwith. In this respect, reference can be made to law laid down in CMPMO No. 464 of 2022, titled as Bag Dei Rawat and another vs. Sanjay Sood and another, decided on 12.07.2024. Post rectification records shall be remitted to the 1st Appellate Court for deciding the appeal afresh. The same be decided as expeditiously as possible subject to the convenience of the Court. 17. In view of the aforesaid, both the revision petitions are disposed of in the aforesaid terms with a direction to the parties toappear before the 1st Appellate Court on 11.03.2025 . Pending miscellaneous applications, if any, also stands disposed of.