IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 127 of 1998 along with CMP No. 206/1998 and Cross-objections No. 389 of 1998. Judgment reserved on: 5.8.2010 Date of decision: 27.9.2010 Durga Singh …Appellant. Versus Parkash Chand and ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. G.D.Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate for respondents No.1 and 2. Kuldip Singh , Judge The defendant No.1, Durga Singh has filed the second appeal against judgment and decree, dated 1.12.1997 passed by the learned District Judge, Shimla in Civil Appeal No. 50-S/13 of 1990 setting aside the judgment and decree, dated 9.7.1990, passed by the learned Sub Judge, 1st Class, Court No. I, Shimla in Civil Suit No. 363/1 of 1987 and partly decreeing the suit to the effect that the order, 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes. 2 dated 8.12.1986 of the learned Rent Controller, Shimla is void, as against the premises in question of the plaintiffs, defendant, Durga Singh is restrained from executing the said order against the plaintiffs. Lal Singh, being not a party to the suit, out of which the appeal has arisen, is not entitled to any relief and the ejectment order, dated 8.12.1986 can be executed against him by Durga Singh. In the second appeal, CMP No. 206 of 1998 for amendment of the written statement has been filed by Durga Singh. The plaintiffs have filed cross-objections in the second appeal. Hence, the second appeal, amendment application and cross-objections are being disposed of through this judgment. The parties in the judgment are referred to as plaintiffs and defendants. 2. The facts, in brief, are that Sat Pal, respondent No.2, Parkash Chand, respondent No.1 and Ishwar Dass, predecessor-in- interest of respondents No. 3 (a) and (b) had filed a suit for declaration and injunction against appellant, Durga Singh and respondent No.5, Sukh Dev to the effect the plaintiffs are owners in possession of the suit premises as tenants and the ejectment order, dated 8.12.1986 passed by the learned Rent Controller, Shimla be declared void as the same has been obtained by defendant No.1, Durga Singh after concealing material facts and misleading the court and further in collusion with Sukh Dev. The plaintiffs are tenants of defendant No.1, Durga Singh in the premises known as Ram Singh House since 1969 and he be restrained from causing interference in the possession of the plaintiffs. Sukh Dev, defendant No.2 against whom, eviction order, 3 dated 8.12.1986 has been obtained by Durga Singh has no concern with the suit premises. Sukh Dev in the eviction petition intentionally got the proceedings decided ex-parte. The plaintiffs were never informed nor made party to the eviction petition. The plaintiffs having come to know about the eviction order, they filed an application under Order 21 Rule 26 CPC and also the suit as the eviction order, dated 8.12.1986 has been procured by fraud and concealing material facts from the court. On these allegations, the suit was filed. 3. The defendant No.1 contested the suit by filing written statement and took preliminary objections qua maintainability, estoppel, valuation and the suit has been filed by the plaintiff in collusion with defendant No.2. The alleged tenancy of the plaintiffs was denied. It has been alleged that the premises were let out to one Vyas prior to October 1970 and, thereafter, the same were let out to Sukh Dev, defendant No.2 in October, 1970 and a rent note was duly executed. Sukh Dev remained in possession of the suit premises till 1982. Thereafter, the plaintiffs were illegally inducted as sub-tenants by Sukh Dev in the suit premises without the knowledge and consent of defendant No.1. The plaintiffs have no concern with the suit premises. It is also his case, even if the plaintiffs are admitted as sub- tenants in that case also, there was no necessity to join them as respondents in the eviction proceedings. The plaintiffs were watching the proceedings before the Rent Controller and now, they are estopped from challenging said proceedings on the ground that they had no 4 knowledge. The plaintiffs have no locus-standi to file the suit. The defendant No.2 did not file written statement and he was proceeded ex-parte. The plaintiffs filed replication and reiterated their stand. 4. On the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are tenants under the defendant No.1 in respect of the suit premises as alleged ? O.P.P. 2. Whether the ejectment order dated 8.12.1986 passed by the Ld. Rent Controller, Shimla in case title Durga Singh Vs. Sukh Dev is void as alleged ? O.P.P. 3. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed for ? O.P.P. 4. Whether the suit is neither competent nor maintainable ? O.P.D.I 5. Whether the plaintiffs have no locus standi to institute the present suit? O.P.D.I 6. Whether the plaintiffs are estopped from filing the present suit due to their acts deeds etc. as alleged ? O.P.D.I 7. Whether the plaint is liable to be rejected as alleged ? O.P.D.I 8. Whether the suit is collusive as alleged ? O.P.D.I 9. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? O.P.D.I 10. Relief. 5. The issues No. 1 to 3, 6 to 9 were answered in negative and issues No. 4 and 5 in affirmative, and the suit was dismissed on 9.7.1990. It is pertinent to mention here that one Lal Singh filed an 5 application under Order 1 Rule 10 read with Section 151 CPC for impleading himself as plaintiff in the suit. This application was allowed by the learned Sub Judge on 22.6.1988. The Ahlmad was directed to carry out necessary correction in the plaint. It appears no such correction was carried out in the plaint. The name of Lal Singh was not shown in the memo of parties of judgment and decree, dated 9.7.1990. 6. In appeal, the learned District Judge on 1.12.1997 set aside the judgment and decree, dated 9.7.1990 and partly decreed the suit, as noticed above. Hence, the second appeal, which has been admitted on following substantial questions of law:- 1. Whether the findings of the Learned District Judge below are contrary to the provisions of Law and material as produced on record by the parties. 2. Whether there has been mis-reading and mis- appreciation of the pleadings of the parties as well as the oral and documentary evidence on record. 3. Whether on the basis of lease-deed, Ext. D-1, suit premises were under the tenancy of Shri Sukh Dev, tenant and learned District Judge has wrongly ignored this document. 4. Whether the plaintiffs having failed to establish their claim of tenancy with respect to suit premises are not entitled to discretionary relief of injunction. 5. Whether in the absence of any legal bar and other material the validity of eviction order dated 8.12.1986 passed by learned Rent Controller, Shimla, the appellant cannot be restrained from executing the same. 6 7. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that the findings of the learned District Judge are contrary to the law and are based on misreading of pleadings as well oral and documentary evidence led by the parties. The lease deed, Ext. D-1 has been wrongly ignored. The plaintiffs have failed to establish their claim of tenancy with respect to the suit premises. The appellant cannot be restrained from executing the eviction order dated 8.12.1986 in absence of legal bar. The learned counsel for the appellant has prayed for amendment of written statement filed by him as defendant No.1. The learned counsel for respondents No. 1 and 2 has supported the impugned judgment and decree. The plaintiffs have filed the cross-objections and have prayed for modification of judgment and decree, dated 1.12.1997 passed by the learned District Judge and have prayed for decree of suit in its entirety. The learned counsel for the appellant has opposed the cross-objections. 8. The appellant intends to add counter claim of possession by way of amendment of written statement filed by him as defendant No.1. The appellant has also made prayer for possession in the amendment application. The purpose of the counter claim is to get determination of dispute between the plaintiff and defendant in one proceeding. The suit filed by the plaintiffs is now in the second appeal, but defendant No.1 now intends to add counter claim in the written statement by way of amendment. In case, amendment is allowed, then necessarily counter claim will have to be determined by 7 the trial court. The suit was filed in the year 1987. The defendant No.1 has not shown any reason as to why he did not raise counter claim earlier, nor he has explained why for 23 years he did not raise the counter claim. The counter claim, now intended to be raised by defendant No.1 after 23 years, is not permissible. Moreover, as per Order 8 Rule 6 A (4), counter claim is to be treated as plaint and governed by the rules applicable to the plaints. The proposed counter claim has not been raised in the manner of plaint. The application for amendment of written statement being CMP No. 256 of 1998 is dismissed. 9. The substantial questions of law No. 1 to 5 for convenience are taken up collectively for determination. Ext. D-5 is the certified copy of order, dated 8.12.1986 passed by Rent Controller in Case No. 327/2 of 85, whereby ejectment order under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1971 (for short, the ‘Act’) was passed in favour of defendant No.1, Durga Singh and against defendant No.2, Sukh Dev. Ext. D-2 is the copy of rent petition, in which eviction was sought on the grounds of arrears of rent and subletting in favour of Lal Singh, Ishwar Dass, Parkash Chand and Satpal. Ext. D-1 is the copy of lease deed, dated 1.10.1970 between Durga Singh and Sukh Dev for letting out the house known as Shops No. 1-4 (Set No.1 in upper storey), situated near Claremount Building, Cart Road, Shimla for one year from 1.10.1970 to 30.9.1971. The learned Sub Judge in judgment, dated 9.7.1990 under issue No.1, has held that the plaintiffs are not tenants under defendant 8 No.1, in issue No.2, it has been held that the ejectment order, dated 8.12.1986 is not void, in issues No.4 and 5, it has been held that the suit is not maintainable and plaintiffs have no locus-standi to challenge the findings of learned Rent Controller and in issue No.8, it has been held that the suit is not collusive. 10. The learned District Judge has formulated three points for determination in the impugned judgment. The first two points are not material for deciding the controversy raised in the above substantial questions of law. However, point No.3 formulated by the learned District Judge is relevant for deciding the controversy, which is as follows:- “3) Whether the learned trial court has fallen in error in returning the finding that the plaintiffs are the sub- tenants under Sukh Dev defendant and as such, the order of eviction obtained by Durga Singh defendant against Sukh Dev defendant, is executable against them.” The learned District Judge has answered the above noted point No.3 as follows:- “20. In view of the above discussion, it is held that Sukh Dev was not a tenant of the defendant No.1 in respect of the entire suit premises, but held only one room as a tenant, which he probably sub-let to appellant Lal Singh, while leaving Shimla for Dehli. Hence, the defendant No.1 could have obtained the order of eviction on the ground of sub-letting only in respect of that room, in which Sukh Dev was a tenant. 21. However, the findings that Sukh Dev was not a tenant under the defendant No.1 in respect of the entire 9 suit premises, cannot and does not prove the case of the plaintiffs that they are tenants in different portions of the suit premises under the defendant No.1. From the contradictions which have appeared in the evidence of the plaintiffs, it appears that they were never inducted as tenants by the defendant No.1. Sat Pal, PW-1, stated that the rent payable by him and Parkash Chand, his brother was Rs. 467.50 per annum and that they used to pay rent once in a year. Lal Singh appellant appeared as PW-2 and testified that the rate of rent was Rs.467.50 and that he used to pay 1/4th of the rent quarterly. In the application for amendment of the plaint, which the plaintiffs have moved in this court, the rates of rent are, however, stated to be different from those deposed by them, which fact indicates that their plea of being the tenants, under the defendant No.1 is false to their knowledge. The lists of tax department of Municipal Corporation, exhibits D-12 to D- 18, also falsify their plea, because they are not named as tenants in any of these lists. They are also not possessed of any receipt, regarding payment of rent to the defendant. Hence, they are not entitled to the relief of declaration that they are in occupation of the suit premises as tenants under defendant No.1. Their failure to prove their status, as tenants, under the defendant No.1, however, does not prove the contention of the defendant that they are sub- tenants under Sukh Dev, because as already held, here-in- above, Sukh Dev has not been proved to have been inducted as tenant in respect of the rooms in their occupation. May be that the plaintiffs are just trespassers, though this is not their case. Point has been answered in the affirmative. FINAL ORDER. 22. In view of the findings on point No.3, appeal is accepted and the judgment and decree under appeal are 10 set aside and the suit of the plaintiffs is partly decreed to the extent that the order dated 8.12.1985, of the learned Rent Controller, Shimla, is declared to be void, as against the premises in occupation of the plaintiffs and defendants Durga Singh is restrained from executing the said order against the plaintiffs. Appellant Lal Singh, being not a party to the suit, out of which the appeal has arisen, is not entitled to any relief nor does he have any locus standi to file the appeal and as such the order of ejectment dated 8.12.1985, of learned Rent Controller, Shimla, can be executed against him by the defendant No.1. Decree sheet be drawn accordingly. Record be completed and consigned to the record room. Lower court’s record be returned with a copy of this judgment. Announced and signed in the open court on this 1st day of December, 1997.” 11. The defendant No.1 had filed the ejectment petition, Ext. D-2, in which premises have been described as set No.1 in upper storey, house known as Shops No.1-4, Cart Road, near Claremount Building, Shimla-1. The details of the accommodation have also been given in Ext. D-2 as three residential rooms, one kitchen, one bath room and one latrine. The learned Rent Controller vide order dated 8.12.1986, Ext.D-5 had passed the eviction order in favour of defendant No.1, Durga Singh and against defendant No.2, Sukh Dev Sharma, on the grounds of arrears of rent and that Sukh Dev has sub- let the premises to Lal Singh, Ishwar Dass, Parkash Chand and Sat Pal for consideration and without consent in the year 1982. The present suit was filed by Sat Pal, Parkash Chand, Ishwar Dass and later on, 11 Lal Singh also joined them as per order, dated 22.6.1988 of the learned Sub Judge. No doubt, the plaintiffs were not impleaded as parties in the ejectment petition filed by defendant No.1, Durga Singh against defendant No.2, Sukh Dev under Section 14 of the Act. The order dated 8.12.1986, Ext. D-5 has attained finality. The ejectment proceedings were to be filed in accordance with the Act. The impleadment of sub-tenant (s) in the eviction petition, when the eviction was sought on the ground of sub-letting, is not necessary. Therefore, it cannot be said that the order dated 8.12.1986, Ext. D-5 allowing the ejectment of the plaintiffs on the grounds of arrears of rent and sub-letting for not impleading sub-tenants is bad. The learned District Judge has not recorded a finding that Ext. D-5 was obtained by defendant No.1 in collusion with defendant No.2 or by practicing fraud. No findings on maintainability of the suit and locus standi of plaintiffs to file the suit were given by learned District Judge even though issues No. 4 and 5 to this effect were decided in favour of defendants by learned Sub Judge. The learned District Judge in the impugned judgment has not accepted the plea of the plaintiffs that they are tenants under defendant No.1, rather the learned District Judge has observed that the plaintiffs are just trespassers, though this is not their case. In other words, the plaintiffs have not proved their status or right for occupying the premises in question. 12. In Rupchand Gupta versus Raghuvanshi (Private Ltd.) and another, AIR 1964 SC 1889, one Raghuvanshi instituted a suit No. 3283 of 1955 against Land and Bricks for possession of land. The 12 appellant was not impleaded in the suit and Land Bricks did not contest it. An ex-parte decree was made by the court in favour of Raghuvanshi on 11.5.1956. The necessary legal consequence of that decree is that the plaintiff as the sub-lessee of Land and Bricks has no right to stay on the land and has become a trespasser. It is to avoid the consequence of that decree that the suit was brought by Rupchand Gupta. His case was that the decree had been obtained “by fraud and collusion between the defendants in order to injure the plaintiff and to evict the plaintiff from the said premises without any decree being passed against the plaintiff”. The trial court held that there was collusion between defendant No.1 and defendant No.2 in the matter of obtaining an ex-parte decree in suit No. 3283 of 1955 and that the plaintiff was not bound by that decree. The declaration was given that the plaintiff was still a tenant under defendant No.1 and was not liable to be ejected under the ex-parte decree. The trial court also ordered the issue of an injunction restraining the defendants from taking any steps in execution of the ex-parte decree. On appeal, by the defendant No.2, Raghvanshi, the decree made by the trial court was set aside. It was held that the plaintiff had failed to prove the decree in suit No. 3283 of 1955 had been procured collusively. So, it was held that the plaintiff was bound by the decree in that suit. It is against this decree passed by the High Court that the appeal was filed by the plaintiff, Rup Chand Gupta in the Supreme Court. The Supreme Court has held as follows:- 13 “(10) Thus the mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded.” “(12) Taking the last action first, viz., Raghuvanshi’s omission to implead the appellant, it is quite clear that the law does not require that the sub- lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub- lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act.” 13. The learned Rent Controller in order, Ext. D-5 has recorded a specific finding that the plaintiffs are sub-tenants of defendant No.2, Sukh Dev in the premises in question. The ejectment order, Ext. D-5, has attained finality. Sub-section 4 of Section 21 of the Act provides that decision of Appellate Authority and subject only to such decision, an order of Controller shall be final and shall not be liable to be called in question in any Court of law except as provided in sub- section (5) of Section 21. Section 23 of the Act provides save or otherwise provided in Section 26, any order made by the 14 Controller or an order passed on appeal under this Act shall be executable by the Controller as a decree of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court. In H.P. Urban Rent Control Act, 1987 similar provisions have been provided under Sections 24 (4) and Section 26. 14. In B.N.Pandey versus Smt. Indira Chohan, AIR 1983 HP 93, Division Bench after noticing Section 21 of the Act has held as follows:- “A conspectus of the above referred to provisions of the Act clearly suggests that an order passed by the Controller in exercise of the jurisdiction vested in him under the Act shall subject to the decision of the appellate authority given in appeal or the High Court given in revision, be final and shall not be liable to be called in question in any Court of law. This provision thus expressly ousts the jurisdiction of the civil court from entertaining any suit calling in question the order of the Controller. The cognizance of the suit as framed being thus expressly barred by the provisions of Section 21 of the Act, the suit of the petitioner was not maintainable in the civil court and the learned trial court had no jurisdiction to entertain the suit.” 15. In Sarwan Kumar and another Versus Madan Lal Aggarwal, AIR 2003 SC 1475, the Supreme Court has held as follows:- “ 18. In the present case because of the operation of Section 14 of the Act the only authority to pass a decree for ejectment of the tenanted premises is the Rent Controller appointed under the Act and Section 50 of the 15 Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceeding in so far as it relates to the eviction of any tenant from the premises which were covered by the Delhi Rent Control Act…………..” 16. The defendant No.1 had filed the ejectment petition against defendant No.2 under Section 14 of the Act. Section 21 of the Act provides that decision of the Appellate Authority and subject only to such decision, an order of Controller shall be final and shall not be liable to be called in question in any Court of law except as provided in sub- section (5) of Section 21. The High Court under sub-section 5 of Section 21 has the power to call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit. It is no body’s case that order, dated 8.12.1986 had not attained finality. The plaintiffs in law have no right to curtail the