Kesar Mul Chhabra Resident Of vs Smt. Joginder Kaur
2022 Latest Caselaw 1549 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                     ON THE 31st DAY OF MARCH, 2022




                                                             .
                                 BEFORE





                HON'BLE MR. JUSTICE AJAY MOHAN GOEL

                      CIVIL REVISION No. 221 OF 2018





    Between:-

    RAMESH CHHABRA S/O LATE SH.





    KESAR MUL CHHABRA RESIDENT OF
    FIRST FLOOR, 105-A, KRISHNA
    NAGAR, SHIMLA, H.P.
                      r                             ..........PETITIONER

    (BY MR. R.K. BAWA, SENIOR ADVOCATE

    WITH MR. AJAY KUMAR SHARMA,
    ADVOCATE)

    AND



        SH. HARMINDER SINGH S/O LATE
        SH. CHAMAN SINGH RESIDENT
        OF 105-A, KRISHAN NAGAAR,




        SHIMLA, H.P. THROUGH HIS SPA
        MANVINDER KAUR W/O SH.





        HARMINDER SINGH, RESIDENT
        OF 105-A, KRISHAN NAGAR,
        SHIMLA, H.P.





                                                    ........RESPONDENT

    (MR. ARUN KUMAR, ADVOCATE )
    ___________________________________________________________

                Whether approved for reporting:     Yes

                This petition coming on for orders this day, the Court

    passed the following:-




                                            ::: Downloaded on - 02/04/2022 20:10:37 :::CIS
                                           2



                                 JUDGEMENT

By way of this civil revision petition filed under

.

Section 24(5) of the Himachal Pradesh Urban Rent Control Act,

1987, the petitioner herein has assailed order dated 25th

September, 2018, passed by the Court of learned Rent Controller,

Shimla, at Shimla, in Rent Petition No. 6-2 of 2018/14, vide

which, prilimnary Issue No. 1 framed by learned Rent Controller as

to 'whether the rent petition was maintainable or not' stands

decided against the present petitioner, i.e. tenant and in favour of

the respondent herein, i.e. landlord.

2. Brief facts necessary for the adjudication of the present

petition are that an application for eviction of the present

petitioner (hereinafter to be referred as the 'tenant') was filed by

the respondent herein under Section 14 of the Himachal Pradesh

Urban Rent Control Act, 1987 (hereinafter to be referred to as

'1987 Act'). The ground on which the eviction has been sought, as

contained in para 18(a) of the rent petition, are reproduced herein

below:-

18(a) Grounds on which (1) The petitioner bonafidely required

the eviction is the premises in occupation of the

sought. tenant for the purpose of godown-

cum-office. In fact the petitioner is

running a shoe business since 1960

in the name and style of M/s Jai

.

Hind Shoes situated at 31, Lower

Bazaar, Shimla, H.P. The business is

both type i.e. wholesaler as well as

retailer. The petitioner has a

warehouse for the aforesaid business

at Godown 105, Krishna Nagar,

Shimla, H.P. This godown is on the

roof of the building, having tin

structure and is not in good

condition. All the manufactured

material which the petitioner

purchased from various companies,

kept in this godown. As the business

of petitioner is expanding, this

godown is falling short for the

material and nowadays the petitioner

has to keep his manufactured

material at veranda of the first floor

of his building. As mentioned supra,

the godown is having tin structure,

therefore a person cannot sit in this

godown. Because the business of

.

petitioner is expending, therefore, he

bonafidely requires the premises in

occupation of the tenant for the

purpose of godown-cum-office so that

a person can permanently sit there

and watch, how much material is

coming and how much material is

supplied to other and also maintain

accounts of the stock. It is further

submitted that it is the only largest

space available with the petitioner.

(2) The petitioner is not occupying

any other residential and non-

residential building owned by him in

the Urban Area nor he has vacated

any such building without sufficient

cause within five years of the filing of

the application.

3. By way of the reply which was filed to the rent petition,

various preliminary objections were taken with regard to the

.

maintainability of the rent petition, which included preliminary

objection No. 1, which reads as under:-

"1. That the petition, as framed, is not at all

maintainable. There is no provision in the HP Urban

Rent Control Act, 1987 as amended upto date, for

personal use of residential premises for non-

residential (i.e. Godown-cum-office) purpose."

4. During the pendency of the matter before the learned

Rent Controller, Court No. 3, Shimla, on 25th July, 2018, the

following order was passed:-

"Inadvertently the preliminary issues on the last

date of hearing could not be framed and the case was

listed for the evidence straightway. Therefore, the

following issues require consideration before other

issues are taking.

1. Whether the petition is not maintainable as

there is no provision in the H.P. Rent Control Act for

personal use of residential premises for non-

residential purpose i.e. godown cum office,

alleged?OPP

2. Whether the petition is bad for non-joinder of LR of

Lt Sh. Kesarmall the tenant, as alleged? OPP

.

3. Relief.

Let the consideration on both the issues be conducted

on the next date of hearing by both the parties on

18.08.2018."

5. Upon consideration, learned Rent Controller not being

satisfied with the objections so raised by the tenant, passed order

dated 25.09.2018, rejecting preliminary issues. Feeling aggrieved,

the tenant has preferred the present revision petition.

6. Mr. R.K. Bawa, learned Senior Counsel appearing for

the petitioner/tenant has argued that the impugned order passed

by learned Rent Controller, especially with regard to preliminary

Issue No. 1, is not sustainable in the eyes of law for the reason

that while passing the impugned order, learned Rent Controller

has erred in not appreciating the statutory provisions of Section

14(3)(d) of the Act, perusal whereof makes it evident that eviction

of a tenant from residential premises cannot be sought for use

thereof for non-residential purposes, except for purposes

specifically contained in Section 14(3) (d). Learned Senior Counsel

has submitted that as requirement specified in the rent petition by

the landlord was not in terms of what is provided in Section

14(3)(d) of the 1987 Act, the preliminary objection No. 1 taken by

the petitioner before the Rent Controller, could not have been

.

dismissed by the said Court and dismissal of the same is an act of

perversity which requires to be set aside by this Court by invoking

its powers of revision. Learned Senior Counsel has also argued

that otherwise also the impugned order is not sustainable in the

eyes of law as the learned Rent Controller has erred in not

appreciating that in terms of the provisions of Section 12 of the

1987 Act, residential premises cannot be permitted to be used for

non-residential purpose, except with the written permission of the

Collector and the present landlord was not having any such

permission. It is primarily on these bases that the impugned order

stands assailed by the petitioner.

7. Defending the order passed by learned Rent Controller,

Mr. Arun Kumar, learned Counsel for the respondent-landlord has

argued that there is no bar in Section 14(3)(d) of the Act that the

owner of the residential premises cannot pray for eviction of a

tenant on the ground that he wants to use the residential premises

for non-residential purposes. Learned Counsel has argued that

language of Clause (d) of Section 14(3) itself is self speaking that in

case, landlord requires the residential premises for use as an office

etc. then, he can do so and in the present case, the requirement,

as was put forth by the landlord, was for the use of the demised

premises as "godown-cum-office", and in this background, the

.

order under challenge cannot be faulted with and the present

revision being devoid of merit deserves to be dismissed. Learned

Counsel has also taken an objection with regard to the

maintainability of the revision petition on the ground that the

revision which has been preferred against the order impugned by

the petitioner is not maintainable in view of remedy of appeal

available to him. He has argued that as the order impugned rejects

the prayer of the tenant for dismissal of the rent petition on the

ground of same being not maintainable, then against said order,

an appeal lyes and not a revision petition.

8. Controverting the argument so addressed by learned

Counsel for the respondent, learned Senior Counsel appearing for

the petitioner-tenant has drawn the attention of the Court to the

three Judge judgment passed by this Court in Cr. No. 136 of 2010,

titled as Shri Vinod alias Raja vs. Smt. Joginder Kaur, decided on

5th July, 2012, and on the strength of the findings returned in the

said judgment, learned Senior Counsel has argued that the law as

it stands is that at the behest of any person aggrieved by an order

which finally decides his fate in the case, for which appellate

authority is not provided in the notification issued by the

government under Section 24(1) of the Himachal Pradesh Urban

Rent Control Act, 1987, an appeal is maintainable as per the

.

scheme of the Civil Procedure Code, until otherwise specified by

the government by way of an appropriate notification, and in all

other cases, the aggrieved party has to file the revision petition. As

per him, as in the present case, the order passed by learned Rent

Controller rejected the preliminary issues, therefore, as no right of

appeal is available against such an order, the revision petition was

rightly filed by the petitioner-tenant.

9. I have heard learned Counsel for the parties and have

gone through the order impugned as well as the documents

appended with the petition.

10. In the present case, the order under challenge is one,

which has rejected the preliminary objection raised by the tenant

with regard to non maintainability of the rent petition. Though,

this Court is aware that the provisions of the Code of Civil

Procedure are stricto senso not applicable as far as rent

proceedings are concerned but taking a cue from what is

contained under Section 115 of the Civil Procedure Code, this

Court has no hesitation in holding that against an order vide

which a preliminary objection has been rejected by the learned

Rent Controller, a revision would be maintainable and not an

appeal. This Court places reliance upon the judgment which has

been passed by Hon'ble Coordinate Bench of this Court in C.R. No.

.

3 of 2011, titled as Rajesh @ Raju vs Shri Dayawant Singh and

another, decided on 26.11.2018, in which in paras 11 and 12

thereof, Hon'ble Coordinate Bench has been pleased to hold as

under:-

11. An order passed under the provisions of Order IX

Rule 8 CPC decides the fate of the person aggrieved

finally. Since in the notification, as discussed hereinabove,

there exists no provisions to challenge an order of this

nature and as the impugned order has decided the fate of

the rent petition finally, therefore, in view of the law laid

down by the Full Bench of this Court in Vinod's case cited

supra, learned Appellate Authority has not committed any

illegality or irregularity in entertaining the appeal. The

contentions to the contrary brought to this Court in the

present petition are not legally sustainable.

12. It is worth mentioning that the rules of procedure

being hand made are meant for advancement of justice

and not to thwart it. When by way of notification the

forum to challenge an order dismissing the rent petition in

default has not been provided by the legislature, therefore,

the petitioner-landlord has rightly preferred the appeal

under the Scheme of the Civil Procedure Code as per the

law laid down by the Full Court in Vinod's case cited

supra."

In this case, as the order impugned did not finally

.

decide the fate of the rent petition, therefore, but natural, the same

could have been assailed by way of a revision petition, as has been

done by the tenant.

11. This Court is further placing reliance upon judgment

passed by Hon'ble Full Bench of this Court in Vinod alias Raja vs.

Smt. Joginder Kaur (supra) , in which, the issue of 'which order

can be appealed and which order can be revised' has been

thoroughly discussed by Hon'ble Full Bench and the conclusions

arrived at therein are as under:-

"30. Wherever a right is provided by a statute, a remedy

though not expressly provided for, may necessarily be

implied. Whenever there is a right, there should also be an

action for its enforcement and the legal procedure should

be sufficiently elastic and comprehensive to afford the

requisite means for the protection of the rights which the

law has recognized, as held by the apex Court in

Constitution Bench decision in Makhan Singh Tarsikka

versus The State of Punjab, reported in AIR 1964 SC 381.

31. Guided thus by the salutary and first principles in

the matter as above, we hold that any person aggrieved by

an order which finally decides his fate in the case for

which appellate authority is not otherwise provided in the

notification issued by the government under Section 24(1)

.

of the Himachal Pradesh Urban Rent Control Act, 1987, an

appeal is maintainable as per the scheme of the Civil

Procedure Code, until otherwise specified by the

government by way the government by way of an

appropriate notification."

12. In this view of the matter, this Court holds that there is

no merit in the objection taken by learned Counsel for the

respondent that proceedings initiated against impugned order by

way of revision petition are not maintainable.

13. Now coming to the merits of the case. I have already

quoted the contents of para 18(a) of the rent petition hereinabove,

perusal of which demonstrates that the possession of the demised

premises was sought by the respondent herein for the purpose of

using the same as a godown-cum-office. The contention of the

landlord, as is borne out from the averments made out in the rent

petition, was to the effect that the landlord was running a shoe

business since 1960, both as a wholesaler and as a retailer and he

had a warehouse for the aforesaid business, which now no more

was in good condition and as the business of the petitioner was

expanding and godown in issue was falling short, therefore, the

demised premises were required by the landlord for the purpose of

using the same as 'godown-cum-office. While dismissing the

.

preliminary objection taken by the tenant qua the maintainability

of the rent petition, learned Rent Controller held that Section

14(3)(d) of the 1987 Act clearly states that any residential property

can be used for the purpose of office, consulting room for starting

practice as a Lawyer and such like profession and if the petitioner

has not acquired any other building for the use as an office, then,

starting up a business or any other profession and using any

building as an office was duly covered under the provisions of the

Act and make out a ground of eviction by law. It is by assigning

these findings that the preliminary objection has been dismissed.

14. In terms of the provisions of Section 14(3)(d) of the

1987 Act, a landlord may apply to the controller for an order

directing the tenant to put the landlord in possession in the case

of any residential or non-residential building, if he requires it for

use as an office or consulting room by his son who intends to start

practice as a Lawyer, an architect, a dentist, an engineer, a

veterinary surgeon or a medical practitioner, including a

practitioner of Ayurvedic Unani or Homeopathic System of

Medicine or for the residence of his son who is married. This of

course is subject to the subsequent statutory provisions contained

therein. A bare reading of the said statutory clause demonstrates

that a residential or for that purpose even a non-residential

.

building can be got vacated by a landlord if he requires the same

for use as an office, architect, dentist etc. as stands explicitly

spelled out in this particular clause. Incidentally, the purposes

which have been spelled out in this particular clause are the only

purposes for which the premises can be got vacated. It is not as if

the purposes are only illustrative. In view of this, in terms of

Section 14(3)(d), a residential premises or may be a non-residential

premises, if they are required to be vacated under this particular

clause can be got vacated only for the purposes which are specified

therein. Now if we compare the content of the provisions of Section

14(3)(d) either with the grounds mentioned in para 18(a) of the

rent petition preferred by the landlord or the reasons which have

been assigned by the Rent Controller while dismissing the

preliminary objections, one finds that the learned Rent Controller

has erred in not appreciating that the provisons of Section 14(3)(d)

of the 1987 Act could not have been invoked by a landlord for

getting a residential premises vacated for using the same as a

godown. Simply by mentioning that the same was required for

"office-cum-godown", the intent of the landlord that the premises

in fact was needed to be used as a godown could not have been

ignored. Not only this, there is further a perversity in the findings

which have been returned by learned Rent Controller and the

.

same is that the conclusion drawn by the learned Rent Controller

that in terms of provisions of Section 14(3)(d) of the 1987 Act, the

demised premises can be got vacated for starting up a business or

any profession is completely erroneous. In fact, these findings do

violence to the language of Section 14(3)(d) of the 1987 Act, which

specifically culls out the purposes for which the premises can be

got vacated by invoking the provisions of the 14(3)(d) of the 1987

Act.

15. Accordingly, in view of what has been held hereinabove,

the present petition is allowed by setting aside order dated

25.09.2018, passed by learned Rent Controller, Court No. 3,

Shimla, and the preliminary objection No. 1 is upheld by holding

that the rent petition filed by the petitioner seeking eviction of the

tenant for personal use of residential premises for non-residential

purpose, i.e. godown-cum-office, is not maintainable.

Pending miscellaneous application(s), if any, also stand

disposed of accordingly.

(Ajay Mohan Goel) Judge March 31, 2022 (narender)