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2018 Supreme(J&K) 250
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Janak Raj Kotwal, J.
Mushtaq Ahmad Bhat – Petitioner
Vs.
Habibullah Dhobi – Respondent
C. Rev. No. 29 of 2015 MP No. 01 of 2015
Decided On : 24-05-2018
For the Petitioner: Mr. N. H. Shah, Adv.
For the Respondent: Mr. M. A. Wani, Adv. and Mr. Sajad Sarwar, Adv.
Important Point – Order 23 Rule 3 of CPC will apply in rent proceedings.
Headnote:Jammu and Kashmir Houses and Shops Rent Control Act, 1966 – Section 21 – Jammu and Kashmir Code of Civil Procedure, 1977 – Order 23 Rule 3 – Enhancement of rent – Rent Control Act does not contain any provision providing for passing a consent/compromise order in an application for enhancement of rent filed by landlord nor procedure for passing such an order – However, as there is no contra provision in the Act, procedure provided for compromise of suits in Order 23 Rule 3 of Code will apply and attract consideration in determination of a question whether appeal filed against a consent order passed by Rent Controller in an application for enhancement of rent is hit by sub – section (3) of Section 96 of Code – Impugned order passed by Rent Controller sans all requirements of Order 23 Rule 3 of Code and cannot be said to have been passed on the basis of a compromise between parties or with consent of tenant – Procedure adopted by Rent Controller was contrary to one provided in Order 23 Rule 3 of Code – District Judge rightly set aside order passed by Rent Controller – Petition dismissed. (Paras 11, 16 to 20)
Result – Petition dismissed.
1. This revision has been filed by the petitioner (landlord) against order dated 16.06.2015 passed by the learned District Judge, Baramulla in appeal filed by the respondent (tenant) whereby the order dated 30.07.2012 passed by the Rent Controller (Chief Judicial Magistrate), Sopore in an application for enhancement of rent filed by him has been set aside.
2. Heard learned counsel for the parties and perused the record.
3. Petitioner’s shop situate at Main Bazaar, Baramulla, opposite Karipa Park, is in possession of the respondent on annual rental of Rs. 3500/-. In November, 2008, petitioner filed an application before the Rent Controller for enhancement of rent of the said shop under the House and Shops Rent Control Act (for short the Rent Control Act). On 30.07.2012, when the application was at final hearing stage, learned Rent Controller disposed of the same by a short order, which reads:
“30.07.2012 Mr. M. A. Mir for petitioner, Mr. Pir Khurshid Adv. Ld. Counsel for the non applicant.
Parties by consensus fixed the reasonable rent of one shop at Kariap Park (opposite) as Rs. 7000 (Seven thousand only) with hike of 10% after every two(2) years w.e.f. January 2012. Accordingly office to draw up decree sheet and file to be considered to records.”
4. Respondent (tenant) challenged the order passed by the Rent Controller in appeal before learned District Judge, Baramulla, primarily, on the ground that he was not party to the consensus recorded by the Rent Controller nor has he signed any such compromise or put his signature at the margin of the order passed by the Rent Controller. Petitioner (landlord) raised objection to the maintainability of the appeal on the ground that the order was passed by the Rent Controller with the consensus of the parties so appeal does not lie. It was also contended on behalf of the landlord that once counsel for the parties have put their signatures, it should be construed that parties have duly signed the same and signatures of the parties are not required.
5. Learned appellate court noticed that counsel for the tenant had not signed the order passed by the Rent Controller at its margin and the space earmarked for his signature was lying vacant and took the view that it cannot be construed that the tenant was consenting party even if his counsel has signed the order observing further that there was not even iota of evidence on the record of file of the Rent Controller to disclose that parties ever have entered into a compromise and showed their willingness to the compromise. Learned appellate court, thus, refused to hold that the order passed by the Rent Controller can be considered as consent order and therefore, set aside the same. Hence this revision petition by the landlord.
6. Learned counsel for the petitioner, Mr. N. H. Shah, Advocate submitted that a duly engaged counsel is authorized to enter into a compromise on behalf his client and the compromise arrived through such a counsel or a statement made by him is as good as the compromise or the statement made by the party himself and binds the party on whose behalf compromise is arrived at or statement in the court is made. Learned counsel, thus, argued that respondent (tenant) is bound by the consent given by his counsel in the court and learned appellate court has fallen in error by holding that the respondent was not a consenting party to the compromise. Learned counsel submitted further that under section 96(3) of the Code of Civil Procedure (for short the Code) no appeal lies against a consent order so the order dated 30.07.2012 being a consent order, learned appellant court has fallen in error and acted without jurisdiction in entertaining and hearing the appeal and setting aside the order passed by the Rent Controller. Learned counsel cited Jineshwardas (D) by LRs. and others v Jagrani (Smt) and another, (2003) 11 SCC 372. Karam Kapahi and others v M/s Lal Chand Public Charitable Trust and another, AIR 2010 SC 2077, Vimaleshwar Na
