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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Brahmin Sabha – Petitioner
Versus
M/s Beant Singh and Sons – Respondent
Civil Revision No. 11 of 2021
Decided On : 10-03-2023
Himachal Pradesh Urban Rent Control Act, 1987 - Section 24 (3), (5) - Code of Criminal Procedure, 1973 - Civil Procedure Code, 1908 - Limitation Act, 1963 - Order of eviction - Frame fresh issue and to decide matter - Petitioner approached Court whereby order directing eviction of tenant has been set aside and case has been remanded back to Rent Controller with direction to frame fresh issue taken by landlord in pleadings and to decide matter afresh, after giving opportunity to parties to lead evidence and after hearing them – Landlord had taken one and only one ground for eviction and had led evidence on that issue only and tenant was also well aware about it. (Para 21)
Finding of the Court: Landlord has not taken contradictory grounds for eviction of tenant, but has taken only one ground and, therefore, framing of two separate issues by Rent Controller erroneously cannot be made basis to return finding that landlord has taken two self-contradictory grounds for eviction - Findings returned by Appellate Authority are perverse, being contrary to pleadings and evidence on record - Framing of wrong issue by Rent Controller, in facts and circumstances of case, is inconsequential so as to have any effect on case of landlord - Appellate Authority was not empowered to remand case, as ordered, and it ought to have decided itself, after hearing parties, or would have asked Rent Controller to return its finding or, for considering it necessary, would have conducted further enquiry either personally or through Rent Controller, and, in case of enquiry by Rent Controller, Appellate Authority should have decided appeal itself after return of findings/receiving report from Rent Controller with regard to enquiry, but Appellate Authority acted contrarily by remanding case to Rent Controller for deciding afresh and, therefore, Appellate Authority has committed a jurisdictional error.
Result: Petition allowed.
JUDGMENT :
VIVEK SINGH THAKUR, J.
1. Landlord-petitioner (hereinafter referred to as ‘Landlord’) has approached this Court by filing this Revision Petition, assailing the order/judgment dated 27.2.2020, passed by Appellate Authority-II, Shimla, in Rent Appeal No. 38-S/13(b) of 2013, titled as M/s Beant Singh @ Sons vs. Brahmin Sabha, whereby order dated 28.3.2013, passed by Rent Controller, Court No. 5, Shimla, in Case No. 4-2 of 2006, titled as Brahmin Sabha vs. M/s Beant Singh and Sons, directing eviction of tenant-respondent (hereinafter referred to as ‘Tenant’) has been set aside and the case has been remanded back to the Rent Controller with direction to frame fresh issue on the grounds taken by the landlord in the pleadings and to decide the matter afresh, after giving opportunity to the parties to lead evidence and after hearing them.
2. I have heard learned counsel for the parties and have also gone through the record.
3. It has been submitted on behalf of the landlord that the Appellate Authority has committed a material illegality, irregularity and perversity in deciding the appeal, whereby it has returned finding that landlord had taken two self-contradictory pleas for eviction of the tenant and Rent Controller had erred in framing two issues, i.e. Issues No. 2 and 3, erroneously. Further that there is no provision for wholesale remand of the case in appeal under the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as ‘Rent Act’) and, thus, judgment passed by the Appellate Authority, remanding the case to the Rent Controller, is without jurisdiction and for such jurisdictional error impugned judgment deserves to be set aside.
4. Learned counsel for the landlord has relied upon pronouncement of this High Court in Smt. Surinder Kaur vs. Mohinder Pal Singh, ILR (1975) 5 HIM 620 and Civil Revision No. 80 of 2012, titled as Braham Dass vs. Om Parkash and Another, decided on 7.7.2017.
5. It has been contended on behalf of the tenant that present Revision Petition is time barred and as it has been filed after expiry of period of limitation and no ground has been taken in the petition, with respect to condonation of delay on account of spread of Corona Pandemic, which was necessary to be pleaded and proved for condonation of delay, therefore, on this sole ground, petition deserves to be dismissed.
6. It has further been contended on behalf of the tenant that Appellate Authority is competent and duly empowered to order for further enquiry, if necessary, and as in the present case two contradictory issues were framed by the Rent Controller, therefore, it was necessary to send the matter for enquiry and keeping in view the nature of mistake committed by the Rent Controller, there was no other option with the Appellate Authority but to remand the case to frame the issue and, therefore, it has been contended that there is no illegality or impropriety in the impugned order and, therefore, present Revision Petition is not maintainable.
7. It has been contended on behalf of the landlord that there is no limitation provided under the Rent Act, as Section 24(5) of the Rent Act empowers the High Court to entertain the Revision Petition at any time and, therefore, a petition preferred within a reasonable period is to be considered and decided by the Court on merits, and the present petition has been preferred within reasonable period, particularly keeping in view the conditions prevailing at relevant point of time, on account of spread of COVID Pandemic. Therefore, it has been submitted that no separate application for condonation of delay was required and, thus, no such application has been filed nor any submission has been made in the main petition, because there was no question of condonation of delay by the Court, for having power to entertain the Revision Petition at any time.
8. It is true that Section 24(5) of the Rent Act empowers the High Court to entertain Revision Petition at any time, but “any time” is to be a
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