Smt. Shakuntla Devi vs Sh. Satpal Sharma & Ors
2021 Latest Caselaw 379 HP

        IN   THE   HIGH COURT OF HIMACHAL                    PRADESH, SHIMLA
                                  Civil Revision No. 70 of 2020
                                   Date of Decision: 7.1.2021.
    _________________________________________________________




                                                                   .

    Smt. Shakuntla Devi
                                           .........Petitioner/Judgment Debtor

                                       Versus





    Sh. Satpal Sharma & ors.
                                         ..........Respondents/Decree Holders
    Coram





    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1?
    _________________________________________________________
    For the JD/petitioner:      Mr. Neeraj Gupta, Sr. Advocate with Mr.
                                Ajeet Jaswal, Advocate.


    For the DH/respondents:   Mr. Sumit Sood & Gautam Sood,
                              Advocates.
    _________________________________________________________
    Sandeep Sharma, J. (Oral)

(Through video conferencing)

By way of instant Civil Revision petition filed under Section

115 of the Code of Civil Procedure, petitioner-judgment debtor

(hereinafter, 'JD") has laid challenge to order dated 06.11.2020, passed

by learned Rent Controller, Shimla, District Shimla, H.P. whereby,

objections filed by Judgment Debtor under Section 47 read with Section

151 of CPC, have been dismissed (Annexure P-8).

2. Precisely, the challenge to aforesaid order passed by

executing Court below is on two grounds:-

Whether reporters of the Local papers are allowed to see the judgment?

(i) Since respondent-DH has no valid sanctioned plan in his favour, petitioner-JD, cannot be ordered to be evicted.

(ii) Executing Court below has exceeded its jurisdiction by making observation in the impugned order that

.

contention of JD that she has been held entitled for

reentry is of no consequence as right of reentry is available to the JD only after rebuilding and

reconstruction of the building.

3. Besides above, learned Senior Counsel representing the

J.D., argued that Executing Court in execution proceedings could not

have recorded finding that execution petition is maintainable solely on

the ground that building in which the premises is housed, has been

found unsafe and unfit for human habitation, especially, when eviction

was also sought on the ground of rebuilding and reconstruction. Having

taken note of the controversy inter se parties, this Court with a view to

cut-short the controversy, passed following order on 5 th January, 2021,

which reads as under:

"Mr. Neeraj Gupta, learned Senior Counsel representing the

petitioner-JD, on instructions, states that petitioner-JD would be

content and satisfied in case this court before upholding the order

impugned in the instant proceedings verifies factum with regard to

correctness and genuineness of the claim of the respondent/DH that

sanction has been granted in his favour for rebuilding/reconstruction of

premises i.e. Building No. 31, Galli No. 7, Middle Bazaar, Shimla.

Mr. Sumit Sood, learned counsel for the respondent/DH contends

that bare perusal of order dated 6.11.2020 whereby objections under

Section 47 CPC having been filed by the petitioner/JD have been

dismissed itself suggests that building plan stands sanctioned vide

.

order dated 10.9.2012 and same still holds good, especially in view of

the deletion of Section 251 of Municipal Corporation Act and as such,

there is no requirement, if any, to ascertain aforesaid factum from the

Municipal Corporation Shimla.

Be that as it may, this court, with a view to cut short the

controversy at hand, directs Mr. Naresh Gupta, learned standing

counsel for Municipal Corporation, Shimla to verify from the records as

to whether respondent/DH has been given sanction to

rebuild/reconstruct the premises in question vide sanction order dated

10.9.2012 or not. If yes, then whether it is subsisting or stands

withdrawn.

Mr.Gupta, while doing aforesaid in terms of instant order may also

keep in mind that on account of deletion of Section 251 of Municipal

Corporation Act now there is no necessity, if any, to get the sanctioned

plan renewed/revalidated. Let report in terms of aforesaid order be

filed by Mr. Gupta, on 7.1.2021. enabling this Court to pass

appropriate orders in the instant case."

4. Pursuant to the aforesaid directions issued by this Court,

Mr. Naresh Gupta, learned Standing Counsel for Municipal Corporation,

Shimla, on instructions, informed this Court that sanction order dated

10.9.2012, issued in favour of respondent-DH qua the premises in

question, i.e., Building No. 31, Galli No.7, Middle Bazar, Shimla is valid

and subsisting as of now. Since, sanction order dated 10/11

September, 2012, is valid and subsisting, first ground raised on behalf

.

of petitioner -JD deserves outright rejection.

5. Careful perusal of order dated 18.3.2011, passed by

learned Rent Controller, Shimla in Rent Case No. 30/2 of 2007, clearly

reveals that respondent-DH, sought eviction of petitioner-JD from

residential premises as detailed hereinabove on the ground of

rebuilding and reconstruction as well as the building being unsafe and

unfit for human habitation. Learned Rent Controller, Shimla vide order

dated 18.3.2011, held that the building housing the demised premises

has become unsafe and unfit for human habitation and that the building

in question is bonafide required by the petitioner for rebuilding and

reconstruction, which cannot be carried out without the demised

premises being vacated by the tenant. Petitioner-JD laid challenge to

the aforesaid judgment before Appellate Authority by way of Rent

Appeal No. 76-S/14 of 2013/11 but such appeal came to be partly

allowed vide judgment dated 13.1.2015, whereby appellate authority

held petitioner/judgment debtor entitled for benefit of proviso to clause 4

of section 14 (3) off the Act, as a consequence of which petitioner

became entitled to be re-inducted on the basis of previous tenancy in

same building, location and area. While passing aforesaid order,

learned appellate authority has very carefully mentioned in operating

part of judgment that the relief given herein above is in addition to

directions of the learned rent Controller. Careful perusal of para 58 of

.

judgment rendered by Appellate Authority reveals that Appellate

Authority while modifying the judgment dated 17.1.2006 passed by

Rent Controller directed petitioner to hand over vacant position of

premises within 3 months, enabling decree holder to commence

construction and complete the same within the period of one year.

Since it stands clarified in the aforesaid judgment passed by appellate

authority that tenant shall be re-inducted on the basis of observations

made in judgment after reconstruction of building, there was no

occasion for learned executing court below to make observation that

contention of JD that she has been held entitled for re-entry is of no

consequence as right of re-entry is available only after rebuilding and

construction of building. Needless to say executing court cannot go

beyond judgment and decree sought to be executed in execution

proceedings. Once it stand specifically ordered in judgment sought to

be executed that tenant shall have right of re-induction after re-

construction of building, there was no occasion for executing court

below to observe in para 8 of impugned order that execution petition is

maintainable solely on the ground that the building in question has been

found to be unsafe for human habitation, which finding/observation

made by court below is otherwise contrary to judgment sought to be

executed.

6. Consequently, in view of above, impugned order dated 6.11.2020

.

is modified to the extent of observations made herein above and

petitioner/judgment debtor is given time till 31 st January, 2021 to hand

over vacant possession of premises in question enabling

respondent/DH to commence construction. Petitioner/Judgment Debtor

may file an undertaking by way of an affidavit before this court within a

week that in any eventuality she would hand over the vacant

possession of the premises in question on or before 31.3.2021, failing

which she would render herself liable for penal consequences. It is

clarified that aforesaid order passed by this Court shall have no bearing

as far as suit for recovery, if any, for realization of use and occupation

charges, filed by respondent is concerned, which shall be decided on

its own merits. Petition stands disposed of in above terms. Pending

applications, if any, also stand disposed of. Interim directions, if any, are

also vacated.

(Sandeep Sharma) Judge January 7, 2021 (vikrant/reena)