Himachal Pradesh High Court

Years) Son Of Shri Satya vs Neeraj Kumar" on 24 December, 2021

Bench: Satyen Vaidya

                                Reportable/Non-reportable



IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
            ON THE 24th DAY OF DECEMBER, 2021
                       BEFORE




                                                 .

         HON'BLE MR. JUSTICE SATYEN VAIDYA


          CIVIL REVISION NO. 159 OF 2019.





Between:-
SHRI VINOD KUMAR (AGED 59





YEARS)    SON   OF   SHRI   SATYA
PRAKASH KAMNA DEVI TEMPLE,
PROSPECT     HILL,   BOILEAUGANJ,

SHIMLA-171005.


                                       ....PETITIONER.
(BY MR. BHUPINDER GUPTA. SENIOR



ADVOCATE WITH MR. JANESH GUPTA,
ADVOCATE)






AND





1. SMT. BHAGWATI, WIDOW
2. SHRI NAVNEET KUMAR, SON
    OF SHRI ASHOK KUMAR, SHOP No. 17-A,
    BOILEAUGANJ, SHIMLA-171005(HP).
                                 ....RESPONDENTS.




                                ::: Downloaded on - 31/01/2022 23:29:27 :::CIS
                               ...2...



    (MR.  AJAY  KUMAR,              SENIOR
    ADVOCATE   WITH Mr.              ROHIT,




                                                        .
    ADVOCATE)





    RESERVED ON: 17TH DECEMBER, 2021.





    DECIDED ON: 24th DECEMBER, 2021.

               This petition coming on for orders this day, the





    Court passed the following:-

                         ORDER

By way of instant petition, challenge has been

laid to the order dated 25.09.2019 passed by the learned

Appellate Authority-II, Shimla in Rent Appeal No. 25-

S/13(b) of 2018. The impugned order has primarily been

assailed on the ground that the same is without

jurisdiction. As per petitioner, the learned Appellate

Authority-II, Shimla had no jurisdiction to remand the

matter to the learned Rent Controller under Section 24 of

the H.P. Urban Rent Control Act, 1987 (for short " the

Act").

2. The order of eviction was passed in favour of

petitioner/landlord and against respondents/tenants by

...3...

the learned Rent Controller, Court No.II, Shimla, H.P. on

23.08.2018 in Rent Petition No.122-2 of 2015/2013. The

eviction of respondents/tenants was ordered from the

non residential premises on the ground that

petitioner/landlord bonafide required the premises for his

own use and occupation. This order of eviction was

challenged before the learned Appellate Authority-II,

Shimla by respondents/tenants by filing an appeal under

Section 24 of the Act. During the pendency of the

appeal before the learned Appellate Authority-II, Shimla,

respondents/tenants preferred an application under Order

41, Rule 27 of the Code of Civil Procedure (for short

"CPC") for leading additional evidence by placing and

proving on record a certified copy of relinquishment deed

dated 9.2.2012 and also a copy of eviction petition, tilted

as "Raj Rani versus Neeraj Kumar".

3. Learned Appellate Authority-II, Shimla, vide

impugned order allowed the application of

respondents/tenants under Order 41, Rule 27 of the CPC

...4...

and also the appeal preferred by them on merits by order

impugned in the instant petition. The operation portion

of the impugned order reads as under:-

"30. As a sequel of my findings on point nos. 1

and 2 above, the appeal as well as the application

are allowed. Consequently, the order passed by the

learned court below is set-aside and the case is

remanded back to the learned Rent Controller below

by giving opportunity to both the parties for leading

evidence and proving both the documents and

thereafter, hearing the parties and decide it afresh.

The parties are directed to appear before the learned

court below on 30.10.2019.

31. The record of court below be sent down

forthwith along with an authenticated copy of this

judgment and the record this Court be consigned to

the record room."

4. I have heard learned counsel appearing for the

parties and have also perused the records.

5. The Appellate Authority under the Act derives

its jurisdiction to hear appeals arising from the specified

orders of Rent Controller, by virtue of Section 24 thereof.

...5...

Sub-section (3) of Section 24 prescribes the jurisdiction of

Appellate Authority as under:-

"24(3). The appellate authority shall decide the

appeal after sending for the records of the case

from the Controller and after giving the parties an

opportunity of being heard and, if necessary, after

making such further inquiry as it thinks fit either

personally or through the Controller."

6. The above noticed provisions vests the

Appellate Authority with jurisdiction, while deciding the

appeal under the Act, to make such further inquiry as it

thinks fit either personally or through the Controller, if

necessary. Thus, it is only in case where the Appellate

Authority comes to the conclusion that further inquiry is

necessary it can delve into such inquiry itself or ask the

Rent Controller to make such inquiry. The further inquiry

so contemplated is only to facilitate the adjudication of

the appeal and not for any other purpose.

7. Once the Appellate Authority-II, Shimla had

found it necessary to have further inquiry by way of

...6...

allowing the application for additional evidence of

respondents/tenants, it was necessary to hold such

inquiry in the first instance and to decide the appeal on

merits thereafter. Needless to say, the allowance of

additional evidence, in the shape of documents, as cited

in the instant case, would require such documents to be

proved in accordance with law and thereafter the

appreciation and applicability of such additional evidence

to the merits of case. The Appellate Authority-II, Shimla

could abdicate only procedural part of holding inquiry to

the Rent Controller and not the re-appreciation of the

merits of the case. The learned Appellate Authority has

clearly erred in law by deciding the appeal on merits

alongwith application under Order 41 Rule 27 CPC and

such conduct of the Appellate Authority is definitely

beyond its jurisdiction vested under Section 24 of the Act.

8. The proposition of law, as noticed above, has

been the subject matter of adjudication before this Court

earlier occasions also. The consistent view of this Court,

...7...

after interpreting Section 24 of the Act or its parameteria

provisions in 1971 Act has been that the Appellate

Authority under the Act has no power to remand the case

to the Rent Controller while hearing an appeal under

Section 24 of the Act. It only can hold further inquiry

either itself or through the Rent Controller which does not

mean that the re-appreciation on merits of the matter

can again be referred to the learned Rent Controller.

Reference in this regard can be made to Smt. Surinder

Kaur versus Mohinder Bahadur Singh, 1977 S.L.C.

108, wherein the exposition of law has been made as

under:-

"3. The petitioner "contends that the Appellate Authority

acted in excess of its jurisdiction in setting aside the order of

the Controller in the circumstances and remanding the case

to him for fresh decision. Sec tion 21 (3) of the Himachal

Pradesh Urban Rent Control Act, 1971 provides:

"The appellate authority shall decide the appeal after sending

for the records of the case from the Controller and after

giving the parties an opportunity of being heard and, if

...8...

necessary, after making such further inquiry as it thinks fit

.

either personally or through the Controller."

It is apparent that in those cases where the Appellate

Authority is of opinion that in order to decide the appeal a

further enquiry is necessary it has been empowered to make

that enquiry itself or to make it through the Controller. The

expression through the Controller' clearly contemplates that

when the Controller makes the enquiry he does so on behalf

of the Appellate Authority. In other words, the Controller

makes the enquiry and forwards the findings reached by him

to the Appellate Authority. He does so not for the purpose of

disposing of a petition pending before him but for the

purpose of enabling the Appellate Authority to dispose of the

appeal pending before the latter. It is clear from the terms of

sec tion 21 (3) of the Act that the enquiry envisaged by that

provision is intended in order to enable the Appellate

Authority to decide the appeal. It is manifest that the

provision does not contemplate that the appeal should be

allowed and the case remanded to the Controller for making

an enquiry and disposing of the petition afresh. No such

power to remand the cas has been conferred by section 21

(3) on the Appellate Authority. I am fortified in the view

...9...

taken by me by the decisions of the Punjab High Coun in

.

Shri Krishan Lal Seth v. Shrimati Pritam Kumar, 1961 PLR

865 and Rajinder Kumar v. Basheshar Nath, 1965 PLR 974.

I am of opinion that the order of the Appellate Authority is in

excess of his jurisdiction and is vitiated accordingly."

9. Again in Braham Dass and others vs. Satya

Wati and others, 1997(1) S.L.J. 484, the reiteration of

the similar exposition has been made as under:-

"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."

10. In Madan Mohan vs. Pushpa Devi, 2017(1)

Shim. LC 133, while dealing with the same proposition,

it was held as under:-

"16. Submission of learned Advocate appear on behalf

of non revisionist that learned Appellate Authority under

Section 24(3) of H.P. urban Rent Control Act 1987 is

...10...

legally competent to remand whole case to learned

.

Rent Controller for deciding afresh is rejected being

devoid of any force in view of rulings cited supra. It is

held that there is no power of whole case remand to

appellate authority under Section 24(3) of H.P. Urban

Rent Control Act, 1987. It is held that learned Appellate

Authority was legally competent to frame additional

issue and it is held that learned Appellate Authority was

legally competent to make further inquiry relating to

additional issue either personally or through Controller

during pendency of appeal. It is held that learned

Appellate Authority was not competent to remand case

as whole to learned Rent Controller for fresh decision in

view of rulings cited supra. It is held that learned

Appellate Authority has committed procedural illegality

in present case. Point No.1 is decided accordingly."