Himachal Pradesh High Court
Raj Kumar Sood Son Of Late vs Raj Kumar Sood & Others on 2 December, 2021
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 2nd OF DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL REVISON No.75 OF 2020
Between:
1. RAJ KUMAR SOOD SON OF LATE
SH. OM PRAKASH SOOD, R/O OM
NIWAS, STOKES PLACE, SHIMLA-
171002.
2. ASHOK KUMAR SOOD SON O
LATE SH. OM PRAKASH SOOD,
R/O OM BHAWAN, CHAKKAR,
SHIMLA-171005.
3. ANIL KUMAR SOOD SON OF LATE
SH. OM PRAKASH SOOD, R/O
SAIN SADAN, LOWER BHARARI,
SHIMLA-171001.
....PETITIONERS/DECREE HOLDER
(BY SH. J.L.BHARDWAJ, ADVOCATE)
AND
SANJEEV SOOD BHAGRA SON OF
LATE SH. GANGA DASS BHAGRA,
R/O HOUSE NO.412/1, LOWER
BAZAR, SHIMLA-171001.
....RESPONDENTS
(BY SH.SUMIT SOOD, ADVOCATE)
Reserved on:10.11.2021
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Instant Civil Revision Petition filed under Section 115 of
the Code of Civil Procedure, lays challenge to order dated 8.10.2020,
passed by learned Rent Controller, Shimla, District Shimla, Himachal
Pradesh, whereby objections preferred by the respondent -Judgment
debtor (hereinafter referred to as the Judgment debtor) to the
.
execution petition having been filed by the petitioners-Decree holder
(hereinafter referred to as the Decree holder), came to be allowed and
as a consequence thereof execution petition filed by the decree
holder came to be dismissed.
2. Precisely, the facts of the case as emerge from the record
are that Decree holder sought eviction of judgment debtor from the
demised premises on the ground that building is 100 years old and
has become unsafe and unfit for human habitation. Apart from
above, Decree holder claimed that he bondafidely require the
building for re-building and re-construction and same cannot be done
without eviction of the tenant. Learned Rent Controller vide order
dated 19.03.2013 partly allowed the petition filed by Decree holder
and held that the building housing the demised premises is bona-fide
required by the Decree holder for rebuilding and reconstruction and
that cannot be carried out without the eviction of the judgment
debtor therefrom. While holding judgment debtor liable to be evicted
from the demised premises, learned Rent Controller observed that
eviction would be subject to production of necessary sanction/
approval order passed by competent authority, permitting Decree
holder to raise a new construction in place of the present one.
3. Being aggrieved and dissatisfied with aforesaid order of
eviction passed by Rent Controller (Annexure P-1), judgment debtor
preferred an appeal before Appellate Authority under Rent Controller
Act, who vide order dated 8.10.2020 though upheld the order of
.
eviction passed by Rent Controller, but set-aside the condition with
regard to production of necessary sanction/approval order passed by
the competent authority, permitting Decree holder to raise new
structure in place of old one.
4. Being aggrieved with the aforesaid decision rendered by
Appellate Authority, judgment debtor filed Civil Revision No.100 of
2014, titled Sanjeev Sood (Bhagra) versus Raj Kumar Sood & others,
before this Court. Co-ordinate Bench of this Court vide judgment
dated 31st October, 2017 though dismissed the revision petition and
upheld the eviction of the judgment debtor/tenant from the demised
premises, but subject to the condition that judgment debtor/tenant
shall be evicted from the demised premises only upon production of
necessary statutory sanctions/approvals granted by the competent
authority is concerned (Annexure P-2).
5. Record reveals that prior to passing of judgment dated
31.10.2017 in Civil Revision No.100 of 2014 filed by the judgment
debtor, Decree holder had filed an execution petition bearing
No.54/10 of 2013 (Annexure P-3), seeking therein execution of
eviction order passed by Rent Controller on 19.03.2013. Besides
above, Decree holder also preferred SLP before the Hon'ble Apex
Court against the imposition of condition of production of necessary
statutory sanctions/ approvals by the competent authority by this
Court in its judgment dated 31.10.2017, which is pending
adjudication before the Hon'ble Apex Court. In the pending execution
.
petition, which was filed in the year 2013, judgment-
debtor/respondent preferred objections, which came to be allowed
vide order dated 8.10.2020 passed by Rent Controller, Shimla District
Shimla, H.P., as a consequence of which, execution petition having
been filed by the Decree holder was dismissed being not
maintainable. In the aforesaid background, Decree holder has
approached this Court in the instant proceedings, praying therein to
set-aside aforesaid impugned order dated 8.10.2020 passed by Rent
Controller, Shimla, District Shimla, H.P.
6. Having heard learned counsel representing the parties
and perused the material available on record, this Court is unable to
accept the submission made on behalf of learned counsel
representing the petitioners-Decree holder that executing Court
below has failed to appreciate the facts as well as law in its right
perspective, rather this Court finds that Court below has dealt with
each and every aspect of the matter very meticulously and by no
stretch of imagination order impugned in the instant proceedings
can be said to be against the law. Mr. J.L.Bhardwaj, learned counsel
representing the petitioners-Decree holder, contended that once
condition with regard to production of approved/sanctioned map at
the time of passing of order of eviction has been held to be bad and
illegal by Hon'ble Apex Court in its judgment given in case titled Hari
Dass Sharma vs. Vikas Sood and others (2013)5 SCC 243, Executing
Court while executing the eviction order ought to have ignored the
.
condition imposed by Rent Controller as well as this Court in Civil
Revision Petition with regard to production of approved/sanctioned
map. He further argued that otherwise also, material available on
record clearly reveals that Decree holder was able to prove on record
that map qua the premises in question stood sanctioned in the year,
1997 and since within a period of one year of sanction of the map
D.H. had commenced the construction, there was no requirement of
renewal. Learned counsel for the petitioners submits that otherwise
on account of deletion of provisions contained under Section 251 of
Himachal Pradesh Municipal Corporation Act, there was no occasion,
if any, for him to get the sanction renewed.
7. Mr. Sumit Sood, learned counsel representing the
respondent-Judgment debtor while supporting the impugned order
strenuously argued that executing court cannot go beyond the
order/judgment sought to be executed and as such, finding given by
Hon'ble Apex Court in Hari Dass Sharma case (supra) with regard to
no requirement of production of sanctioned/approved map is of no
consequences as far as present petition is concerned. He further
argued that approval/ sanction of map, if any accorded in favour of
Decree holder in the year, 1977 is/was with regard to alteration and
addition of the building, whereas eviction of JD in the case at hand
has been ordered on the ground of re-building and
re-construction subject to production of approved/sanctioned map.
Lastly, Mr. Sood, further submitted that once SLP having been filed by
.
Decree holder is pending adjudication, wherein he has specifically
laid challenge to condition of production of approved/sanctioned map
imposed by learned Rent Controller as well as this Court in Civil
Revision petition, execution petition having been filed by him is
otherwise not maintainable.
8. It is not in dispute interse parties that vide order dated
19.03.2013 Judgment debtor was ordered to be evicted from the
demised premises by Rent Controller, subject to production of
approved/sanctioned map by the petitioners-Decree holder. Though,
aforesaid finding with regard to production of approved/sanctioned
map was set-aside by the Appellate Authority in the appeal having
been field by the Judgment debtor, but same again came to be re-
imposed vide judgment dated 31st October, 2017, passed by Co-
ordinate Bench of this Court while dismissing Civil Revision No.100 of
2014, having been filed by the Judgment debtor, laying therein
challenge to judgment passed by First Appellate Court, affirming
eviction order passed by Rent Controller, meaning thereby with the
passing of judgment dated 31st October, 2014 in Civil Revision No.100
of 2014 order of eviction dated 19.3.2013 passed by Rent Controller
has merged in the judgment dated 31st October, 2017, passed by this
Court in CR No.100 of 2014, wherein admittedly this Court while
affirming order of eviction on the ground of rebuilding and
reconstruction made eviction subject to the production of
approved/sanctioned map. It is also not in dispute that though Decree
.
holder in the year, 2013 after disposal of appeal having been filed by
the Judgment debtor before the Appellate authority under Rent
Controller Act filed execution petition, but same remained pending on
account of pendency of Civil Revision, having been filed by the
Judgment debtor in this Court against the judgment passed by
Appellate Authority. It is also not in dispute that Decree holder being
aggrieved on account of condition imposed by Co-ordinate Bench of
this Court while dismissing the Civil Revision of the Judgment debtor
with regard to production of approved/sanctioned map, has filed SLP,
which is pending adjudication. Since, no further appeal, if any,
against order of eviction on the ground of re-building and re-
construction has been filed by the Judgment debtor, same has
attained finality but as per order passed by Rent Controller and Co-
ordinate Bench of this Court in Civil Revision, eviction of the
Judgment debtor can only be effected after production of
approved/sanctioned map.
9. Though, Sh. Bhardwaj, learned counsel for the Decree
holder while inviting attention of this Court to judgment dated
16.8.2013, passed by Co-ordinate Bench of this Court in Civil Revision
No.125 of 2012, wherein Co-ordinate Bench of this Court while
placing reliance upon the judgment passed by Hon'ble Apex Court in
Hari Dass Sharma case (supra) has held that Decree holder is not
required to produce the sanctioned/approved plan before the
Executing Court, argued that there is no requirement of production
.
of sanctioned/approved map, but this Court finds no merit in the
aforesaid submissions of the petitioner and accordingly same is
rejected.
10. It is well settled by now that the Executing Court while
executing the order/judgment/decree sought to be executed cannot
go beyond the directions contained in order/judgment/decree sought
to be executed. No doubt, it clearly emerge from the judgment
passed by Hon'ble Apex Court in Hari Dass Sharma case supra, that
Hon'ble Apex Court set-aside the direction issued by High Court while
affirming the eviction order passed by Rent Controller that landlord
shall submit a plan of reconstruction for approval of local authorities
and only on the plans being sanctioned by the local authorities
decree of execution shall be available for execution, but careful
perusal of the judgment rendered by Hon'ble Apex Court in the
aforesaid case (supra) reveals that Rent Controller in that case while
determining the bona-fides of the appellant/landlord has recorded the
finding that the landlord had admittedly obtained the sanctioned
from the Municipal Corporation, Shimla, but yet High Court imposed
condition, as has been taken note hereinabove. Though, this Court
finds no application of the aforesaid judgment in the case at hand
because facts in both the cases are quite distinct but yet if
submission made by learned counsel for the petitioner that no
condition with regard to production of approved/sanctioned map
could be imposed by Rent Controller while ordering eviction in the
.
light of afore judgment rendered by Hon'ble Apex Court in Hari Dass
Sharma case supra , same cannot be taken into consideration in the
instant proceedings, wherein this Court is only to see whether
judgment sought to be executed is being executed/implemented in
terms of the directions contained in the judgment/order sought to be
implemented/executed. No doubt, in the execution petition executing
Court on the basis of totality of material made available before it can
proceed to decide whether order/decree/judgment sought to be
executed, is executable or not, but in the case at hand, it is Decree
holder, who is seeking eviction in execution petition, which has been
made subject to production of approved/sanctioned map by the Rent
Controller as well as this Court in Civil Revision Petition No.100 of
2014. Once Rent Controller as well as this Court in Civil Revision
petition have specifically ordered that eviction would be subject to
the production of sanctioned/approved map, it will not be open for
this Court in the instant proceedings to ascertain correctness of the
aforesaid finding/direction.
11. In the case at hand, Appellate Authority under Rent
Control Act while affirming the eviction order passed by Rent
Controller set-aside the condition with regard to production of
approved/ sanctioned map imposed by Rent Controller but this Court
in Revision petition having been filed by the Judgment debtor not
only re-imposed that condition, but also observed in the order that
since building exists/situate in core area, plan for reconstruction and
.
rebuilding of demises premises needs statutory sanction and
approval from the competent authority. Aforesaid finding returned by
Co-ordinate Bench of this Court in Civil revision petition still holds
good because learned counsel for the petitioner-DH has not been
able to produce any document suggestive of the fact that in Special
Leave Petition having been filed by him, aforesaid judgment passed
by Co-ordinate Bench of this Court in Civil Revision has been stayed.
Till the time aforesaid finding is not stayed or upset by the higher
Court i.e. Apex Court, condition with regard to production of
approved/sanctioned map imposed by Rent Controller as well as this
Court in Civil revision petition cannot be said to be bad in law and
necessarily required to be enforced at the time of eviction of
Judgment debtor in terms of eviction order passed by Rent Controller
and further upheld by this Court in revision petition.
12. Next plea of Decree holder in the case at hand that
careful perusal of order dated 5.11.2018, issued by Municipal
Corporation, Shimla clearly reveals that sanction accorded vide
No.706, dated 23.9.1977 is valid on account of deletion of Section
251 of Himachal Pradesh Municipal Corporation Act is of not much
relevance and consequences as far as present case is concerned.
Aforesaid plea deserves outright rejection on account of specific
finding returned by this Court in Civil Revision No.100 of 2014 that
demise premises fall in core area and special permission is required
to be taken for construction in that area. Special restriction upon
.
construction on the core area was imposed in the year 2000 and as
such, any construction after said period would be guided by the
permission, if any, granted after year 2000.
13. Leaving everything aside, this Court finds that sanctioned
plan No.705, dated 23.9.1977, which has been heavily placed
reliance upon by Decree holder, is with regard to alternation and
addition and as per letter dated 23.9.77, this sanction was to remain
in force for one year and in case construction of building is not
commenced within a period of one year from the date of sanction,
sanction would be deemed to have been lapsed. Though,
Mr.J.L.Bhardwaj, learned counsel representing the petitioner while
inviting attention of this Court to letter dated 5.11.2018 issued by
Municipal Corporation, Shimla vehemently argued that construction
on the site had commenced within a period of one year from the date
of sanction, but that may not be of much relevance because
sanctioned plan No705, dated 23.9.1977, clearly reveals that it was
for alternation and addition, whereas eviction in the case at hand has
been ordered on the ground of rebuilding and reconstruction. Decree
holder has himself claimed that building is 100 years old and is
unsafe for human habitation, meaning thereby for reconstruction and
rebuilding entire building is required to be demolished and rebuilt, if
it is so, sanctioned plan No.705 dated 23.9. 1977, whereby
only permission was granted for addition and alteration cannot be
said to be valid sanction plan as is otherwise required to be produced
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by DH for seeking eviction of the JD from the demised premises.
14. Since, Decree holder has been not able to produce
approved/ sanctioned map for rebuilding and reconstruction of the
demised premises, objections having been filed by the Judgment
debtor qua his eviction from the demised premises have been rightly
allowed by the Executing Court.
15. Consequently, in view of the above, this Court finds no
merit in the present petition and accordingly same is dismissed.
Needless to say, Decree holder is always at liberty to file fresh
execution petition after approval/sanction of the map for rebuilding
and reconstruction of demised premises or after order/judgment, if
any, rendered by Hon'ble Apex Court in the SLP quashing and setting
aside therein condition imposed by Rent Controller as well as this
Court with regard to production of approved/sanctioned map. Pending
applications, if any, also stands disposed of.
2nd December, 2021 (Sandeep Sharma),
(shankar) Judge
