Point of Law: Section 25 empowers the Rent Controller to summon and enforce the attendance of witnesses and to compel the production of evidence as the Court is empowered under CPC.

ORDER :

1. Petitioner has approached this Court against order dated 25.3.2022, passed by the Appellate Authority-II, Shimla in Appeal No.2-S/13(b) of 2021, whereby order dated 7.8.2020, passed by Rent Controller-III, Shimla in an application preferred in Rent Petition No. 170-A of 2019/17 has been affirmed.

2. Parties herein shall be referred, for convenience, as per their status before the Rent Controller i.e. as ‘landlord’ and ‘tenant’ respectively.

3. Landlord has filed main petition for eviction of tenant from the shop premises rented to the tenant, on the basis of bonafide requirement of landlord for setting up a business by his wife in the said shop premises being most suitable shop for that.

4. In reply to rent petition, preliminary objection has been taken that landlord has also let out a shop in the same building to a new tenant within five years of filing of petition and landlord has received vacant possession of substantial area on first floor of building after its vacation by a tenant and handed over possession thereof to another party, i.e. to an existing tenant, to allow him to have a larger area under tenancy and entire second floor of building in question is lying vacant and is in occupation of the landlord and, therefore, maintainability of rent petition has been questioned.

5. Reply to eviction petition was filed in June, 2017.

6. After filing of rejoinder, issues were framed on 20.7.2017 and case was fixed for evidence of landlord on 31.8.2017. On 31.8.2017, witnesses were not present. On that day, an application was preferred by tenant under Order 7 Rule 11 CPC read with Section 151 CPC.

7. In application under Order 7 Rule 11 CPC, by referring grounds already taken in reply regarding renting out of a portion of premises within five years to someone, vacation of premises by another tenant and handing over possession thereof to already existing tenant and also availability of vacant hall in the second floor, it was also contended that landlord was occupying another residential and commercial premises within urban limits of area and has rented out two premises for nonresidential and commercial purposes in the same building within five years and, therefore, eviction petition deserves to be rejected under Order 7 Rule 11 CPC.

8. Reply to application under Order 7 Rule 11 CPC was filed on 12.9.2017. Thereafter, time to file rejoinder was taken twice and ultimately on 30.11.2017 the application was directed to be taken into consideration, but on 19.12.2017 for non-availability of original counsel for tenant it was adjourned and, thereafter, either for request on behalf of landlord or tenant, it was adjourned, but finally it was dismissed on 20.6.2017.

9. Being aggrieved by aforesaid order dated 20.6.2017, tenant approached the High Court by filing CMPMO No. 290 of 2018, titled Dev Raj Duggal vs. Harish Kumar. The same was dismissed on 12.9.2019 by a Coordinate Bench of this Court on the grounds that in the H.P. Urban Rent Control Act, 1987 (the Rent Act), the Rent Controller has no explicit jurisdiction vested in it to apply mandate of Order 7 Rule 11 CPC upon a rent petition; there is no specific contemplation in CPC for making the aforesaid provision applicable in a rent petition; for want of explicit applicability of aforesaid provisions, Rent Controller is incapacitated to adjudicate rent petition like a Civil Suit and, thus, the application was held to be misconstituted and beyond the ambit of specific legislation, i.e. Rent Act, governing and appertaining the trial of eviction petition by Rent Controller. It was further observed that Rule 12 of H.P. Urban Rent Rules 1990 (Rent Rules) provided specific areas wherein principles of CPC shall be guided principles for adjudicating the application under Rent Act but not provisions of CPC and it does not contemplate applicability of CPC in toto to the eviction petition and, thus, it was concluded that except explicit applicability of CPC in restricted manner specifi