IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.115 of 2023 a/w CMPMO No. 23 of 2023 Reserved on :H 17.10.2023 Decided on : 04.11.2023

1.Civil Revision No. 115 of 2023 Sh. Mukesh Verma .…Petitioner.

tVersus Sh. Kharaiti Lal Malhotra …Respondent.

2.CMPMO Noo. 23 of 2023 Sh. KCharaiti Lal Malhotra .…Petitioner.

Versus hSh. Mukesh Verma …Respondent gCoram The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?¹ Yes For the petitioner(s) : Ms. Kanta Devi, Advocate, for the petitioner in C.R. No. 115 of

2023 and for the respondent in CMPMO No. 23 of 2023.

For the respondent(s) : Mr. N.K. Bhalla, Advocate, for the respondent in C.R. No. 115 of 2023 and for the petitioner in CMPMO No. 23 of 2023.

1 Whether reporters of the local papers may be allowed to see the judgment?

Satyen Vaidya, Judge Heard. .

2. Both these petitions are being decided by a common judgment as identical questions of facts and law are involved.

Civil Revision No. 115 of 2023

3. By way orf this petition, the landlord Sh. Mukesh Verma, has assailed order dated 05.07.2023, passed by learned Appellate Authority, Solan, H.P. in Rent Appeal No. 4-S/14 of 2022, whereby, after setting -as ide the order dated 29.12.2022, passed by learned Rent Controller-2, Solan, H.P. in Rent Petition No. 9/2 of 2020, the landlord has been directed to H immediately restore the essential service of the tenanted premises of respondent/tenant Shri Kharaiti Lal Malhotra by clearing sand/debris and other waste material stacked on its roof and removal of weeds etc. The landlord has also been directed to keep the drainage outlets in working condition.

CMPMO No. 23 of 2023

4. By way of this petition, petitioner herein/tenant Sh. Kharaiti Lal Malhotra has assailed order dated 16.12.2022, passefd by learned Civil Judge, Court No.1, Solan, District Solan, H.P. in CMA No. 301/6 of 2022, whereby his application under Order 26 Rule 9 of the Code of Civil Procedure filed in Execution Petition No. 1/10 of 2017 for appointment of Local Commissioner has been rejected.

Brief Background facts

5. In order to understand the factual matrix, a few details need attention. The dispute in both the litigations, as noticed above, is inter se the tenant and landlord. Sh. Kharaiti Lal Malhotra is the tenant and Sh. Mukesh Verma is the landlord. The dispute is in respect of a non-residential premises, i.e. a shop within the urban area of Solan wherein the tenant is running his cloth business.

6. The allegation of the tenant is that the landlord has been stacking waste building material, debris etc. on the roof of his tenanted shop, whereby the drainage pipes are clogged causing seepage of water into the shop through its roof. The tenant approached learned Rent Controller by way of a petition under Section 11 of tfhe H.P. Urban Rent Controller Act, 1987 (for short “The Act”) with the aforesaid allegation and asserted that the conduct of landlord amounted to withdrawal of necessary amenities from the tenant premises of the tenant. The petition was registered as Rent Petition No. 9/2 of 2020, titled as Kharaiti Lal Malhotra Vs. Mukesh Verma, before learned Rent Controller-2, Solan, H.P. Learned Rent Controller held the tenant not entitled to the relief, on the ground that the roof was not part of the tenanted premises and thus, the jurisdiction under Section 11 of the Act could not be exercised as the tenant could not claim amenities with respect to the roof.

7. In appeal filed by the tenant, learned Appellate Authority after placing reliance on a judgment passed by this Court in Bhawani Charan Vs. Chander Lok Sweet Shop reported in MANU/HP/0249/2001 has set-aside the findings returned by learned Rent Controller and held that the roof was part of the tenanted premises and unwarranted interference by lafndlord by stacking waste material on the roof which caused seepage into the premises, clearly amounted to withdrawal of essential amenities. The aforesaid order is under challenge by way of Civil Revi