1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 162 of 2008 and CMP (M) No. 839 of 2008 Date of Decision: 18th September, 2009 Navneet Kumar Chaursia Petitioner Versus Rajeev Sharma and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner : Mr.G.C.Gupta, Sr. Advocate, with Mr.Amardeep, Advocate. For the respondentNo.1: Mr.Ramakant Sharma, Advocate. Sanjay Karol, J. (Oral) Shri Navneet Kumar Chaursia, has filed the present Civil Revision Petition under Section 24(5) of the H.P. Urban Rent Control Act (hereinafter referred to as the Act) assailing the order dated 24.8.2004 passed by the Rent Controller, Court No.5, Shimla, H.P., in CMP No.16-6 of 2003, whereby his application filed under order 1 Rule 10, CPC stands dismissed. The aforesaid order was assailed by the petitioner in terms of CMA No.27-S/14 of 2005/04, before the District Judge (Forests), Shimla, H.P. and vide order dated 10.4.2006, his appeal was dismissed for the reason that the appeal arising out of an order of such a nature was not Whether the reporters of Local Papers are allowed to see the Judgment? 2 maintainable. Consequently, the present petition stands filed before this Court on 8.9.2008. For the purpose of adjudication of the present petition, petitioner herein is known as the applicant, Shri Rajiv Sharma respondent No.1 is known as the landlord and Smt. Kasturi Devi proforma respondent No.2 is known as the tenant. The suit premises comprising of a set on the ground floor (second storey) of Walterton Main Building, Chhota Shimla, H.P. was let out by Shri R.L.Seth in favour of Shri Hukam Chand, husband of the tenant. The tenanted premises were purchased by the landlord in terms of sale deed dated 15.7.1997, who filed a petition for eviction under Section 14 of the Act, on 20.11.2002 before the Rent Controller, Shimla. The petition was filed only against the tenant. The tenant opposed the petition inter alia on the ground that the petition was bad for non-joinder of parties as there were other legal heirs of deceased Hukam Chand, who were residing with him at the time of his death and are co-tenants. Based on the pleadings of the parties, the Rent Controller framed the following issues on 22.7.2003:- “1. Whether the respondent is in arrears of rent, as alleged? OPP 2. Whether the premises in dispute are required bonafidely by the petitioner for his own use and occupation? OPP 3. Whether the petition is bad for non-joinder and misjoinder of the necessary parties? OPR 4. Whether the petition is malafide and has been field with a view to harass the respondent? OPR 3 5. Whether there exists no relationship of landlord and tenant between the parties? OPR 6. Whether the petition lacks material particulars? OPR 7. Whether the petitioner is estopped from filing present petition on account of his own acts, deeds, conduct, acquiescences and silence? OPR 8. Whether the present petition is not maintainable? OPR” Thus, as to whether the petition is bad for non-joinder and misjoinder of necessary parties was an issue which was required to be adjudicated by the Rent Controller. Before the evidence of the parties could be completed, on 13.10.2003 the applicant moved an application under Order 1 Rule 10 of the Code of Civil Procedure, seeking permission to be impleaded as a party on the ground that by succession the tenancy had also devolved upon him in accordance with the provisions of the Act. The landlord opposed the application by filing a reply and in terms of order dated 24.8.2008, the Rent Controller dismissed the application on the ground that the petitioner had no right to inherit the tenancy as the first right to inherit the same goes to the tenant being the wife of the original tenant. It is true that Section 24(5) of the Act does not prescribe any period of limitation. This Court in Dr.S.C.Jain vs. Shrimati Sushilsa Devi, (1973) I.L.R. H.P. -1238 has held that the Limitation Act cannot be applied to the proceedings before the Rent Controller as it is not a Court. A Full Bench of this Court in Mangheru vs. State of H.P. and others, (1981) I.L.R. H.P. 283, while dealing with the powers of 4 review and revision contemplated under the H.P. Nautor Land Rules, 1968 came to the conclusion that ordinarily a period of three years should be considered reasonable for exercising such power where there is no allegation of fraud or deception. A Coordinate Bench of this Court in Barfi Ram and another vs. State of H.P. and others, Latest HLJ 2009 (HP) 44, while dealing with the period within which the revisional power could be exercised by the officers under the H.P. Consolidation of Holdings Act, by relying upon the decision of the Apex Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham vs. K.Suresh Reddy and others, (2003) 7 SCC 667, held that three to four years should be a reasonable period within which the powers could be exercised, in the absence of any provision to the contrary. The eviction petition was filed on 20.11.2002 and the application for impleadment filed on 13.10.2003, was rejected on 24.8.2004. After the applicant’s appeal filed on 14.9.2004 was rejected by the Appellate Authority stipulated under the Act on 10.4.2006. The instant petition was filed on 8.9.2008. In my considered view, the action initiated by the applicant is well within the reasonable period and there is no inordinate delay or mala fide intention in moving the application for impleadment or filing the present petition. The applicant had been pursuing his remedy before an appropriate forum and it was only due to the change in the position of law that the appeal was dismissed on the point of maintainability without going into the merits. Therefore, no orders are required to be passed on the application for condonation of delay being CMP (M) No.839 of 2008 as there is no delay in filing the revision petition. 5 Having perused the record and heard the learned counsel for the parties I am of the considered view that reasoning adopted by the Court below, while passing the impugned order is contrary to the settled position of law as laid down by this Court. The provisions of Section 2(j) of the Act reads as under:- “2(j). “tenant” means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after termination of the tenancy and in the event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and Explanation-II to this clause, but does not include a person placed in occupation of a building or rented land by its tenant, except with the written consent of the landlord, or a person to whom the collection of rent or fees in a public market, cart- stand or slaughter house or of rents for shops has been framed out or leased by a municipal corporation or a municipal committee or a notified area committee or a cantonment board; Explanation I.- The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:- (a) firstly, his surviving spouse; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family upto the date of his death; (c) thirdly, his parent(s) if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son, daughter or any of them, did not ordinarily live in the premises as a member of 6 the family of the deceased person upto the date of his death; and (d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son daughter or parent(s) of the deceased person or if such surviving spouse, son, daughter or parent(s), or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death; Explanation II. – The right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs.” This Court in (Smt.) Indra Vati and another vs. (Smt. Devki Devi and others, 1989 (1) Sim.L.C. 36, had the occasion to interpret the aforesaid provision and after relying upon the ratio of law laid down by the Apex Court in Smt. Gian Devi Anand vs. Jeevan Kumar and others, AIR 1985 SC 796, Damadilal and others vs. Parashram and others, AIR 1976 SC 2229 and Nanu Mal Raijumal v. Lila Ram Vensee Mal and another, (1978) 2 All India Rent Control Journal, 136, held that each of the successor mentioned in Explanation-I, has a right to succeed and Explanation-II, only prohibited further succession to the heirs of each successor mentioned in Explanation-I. The Court further held:- “21. From amongst these persons, only those are entitled to succeed to the tenancy rights who were ordinarily residing with the original tenant, whose tenancy had been terminated earlier, at the time of his death. Such of the persons mentioned in the Schedule who were not doing so are excluded in the opening part itself. Quite clearly, 7 therefore, a very few, from amongst the heirs of a tenant continuing in possession after the termination of the tenancy, are envisaged to be tenants within the meaning of the definition, for purposes of the Act. Bringing in any further dimunition, by confining the number of successors of such a tenant to only one from amongst those mentioned in Explanation-I, would amount to frustrating the object of the legislature in giving protection to the heirs of what is called a “statutory tenant”. Such an interpretation is not fair. Nor, countenanced by law. 22. The fear expressed by the learned counsel, appearing for the landlord, that the interpretation that the various heirs mentioned in the several clauses of Explanation I become tenant one after the other, would perpetuate the presence of the heirs in the demised premises, is more fanciful than real. The restriction which the definition itself contains about tenancy rights accruing only to those from amongst the heirs mentioned in the First Schedule and Explanation I, who were ordinarily residing with the tenant at the time of his death is a potent protection in this respect as far as the landlord is concerned. The Legislature has emphasized it again and again in the various clauses of Explanation I. By Explanation II it has confined the right of every successor referred to in Explanation I to continue in possession, on the death of a tenant after the termination of his tenancy, to his life-time. There is no devolution of the right to continue in possession to any of the heirs of the successor mentioned in Explanation I. 23. Even after limiting the number of heirs who would be treated to be tenants, after the death of a tenant whose tenancy had been terminated earlier, to those mentioned in Schedule I it was necessary, from a practical point of view, to provide for a person with whom the landlord may be in a position to deal at a time. The order of succession appears 8 to have been provided in Explanation I with this end in view. In its ordinary meaning the ‘order of succession’ would mean the sequence in which, from amongst the various heirs, the landlord shall treat a particular heir to be the tenant for the purpose of his dealings with those whose irremovability is provided for by the Legislature even after the death of a tenant whose tenancy had been terminated earlier. Of the various heirs, a landlord has to deal with those mentioned in Explanation I as tenants, one after the other, in the sequence mentioned therein.” (Emphasis supplied) Subsequently in Smt. Satya Devi and another vs. Ravinder Kumar and others, AIR 1990 HP 43, the Full Bench of this Court, which also had the occasion to deal with the similar provisions has held that the tenancy of the statutory tenant was heritable by all the heirs of the original deceased tenant as an estate. The aforesaid decisions subsequently came to be followed in Narinder Kumar and another vs. Ramesh Kumar and another, AIR 1995 HP 87, wherein also, after relying upon the various judgments of the Apex Court, this Court held that tenancy devolved upon all the legal heirs by succession. Hence, in my considered view the Court below has seriously erred in coming to the conclusion that the applicant had no interest in the suit premises as the tenancy had devolved only upon the tenant being the surviving spouse of the deceased original tenant. Mr. Ramakant Sharma, learned counsel for the respondent laid much emphasis, upon a subsequent decision rendered by this Court in Tarsem Singh vs. Ramesh Chand Aggarwal & another, Latest HLJ 2003 9 (HP) 67 to contend that latest view of the Court is to the contrary and hence the Court should consider deciding the petition in view of the same The contention needs to be rejected on two counts. Firstly the question as to whether the tenancy devolved upon the legal heirs together as stated in Explanations I and II or not was not directly and substantially in issue before the Court. In fact the issue before the Court was as to whether the eviction petition filed without impleading the widow of the original tenant could have been dismissed by the Rent Controller being bad for non-joinder of necessary parties or not. The Court was dealing with a case where original tenant Mam Raj had died and the petition for eviction was filed against his son Shri Ramesh Chand Aggarwal without impleading Smt. Radha Rani wife of the deceased tenant. During the proceedings before the Rent Controller one another Radha Rani wife of Shri Surender Kumar was impleaded pursuant to an application filed under Order 1 Rule 10, CPC, but, however, Smt. Radha Rani in whose favour the tenancy had devolved by succession was not impleaded by the landlord. The Rent Controller dismissed the petition for her non-impleadment which order was assailed by the landlord before the High Court. It is in this background that the Court, simply after reproducing the provision of Section 2(j) of the Act, in paragraphs 21, 22 and 23 of the report, observed as under:- “24. Explanation II to the Section 2(j) of the Rent Act further provides that the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy shall be personal to him and shall not, on the death of such successor, devolve in any of his legal heirs. 10 In my considered view, the issue in question was not before the Court and hence the observations made as noticed hereinabove are in the nature of obiter. Importantly, in the report there is neither any reference to the earlier decisions of this Court on the point nor is there any reasoning given for arriving at such a conclusion. Secondly, in any event the judgment is per incuriam for the reason that it has not noticed any of the earlier decisions rendered by this Court while coming to its conclusion. The Apex Court in State of U.P. and another vs. Synthetics and Chemicals Ltd. and another, , (1991) 4 SCC 138, has held that a decision, which is not express and is not founded on reasons, nor it proceeds on consideration of the issue cannot be deemed to a law declared to have a binding effect. Uniformity and consistency are core of judicial discipline, but that which escapes in the judgment without any occasion is not ratio decidendi. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of general nature binding as a precedent. The exception to the rule of precedents is rule of sub-silentio. A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Constitution Bench of the Apex Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others, (1990)3 SCC 682, has held as under:- “The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when the Supreme Court has acted in 11 ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of the Supreme Court. As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, the Supreme Court may not be said to “declare the law” on those subjects if the relevant provisions were not really present to its mind. The problem of judgment per incuriam when actually arises, should present no difficulty as the Supreme Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together. Article 141, which embodies, as a rule of law, the doctrine of precedents, was enacted to make the law declared by the Supreme Court binding on all courts in the country excluding, as is now being interpreted, the Supreme Court itself.” “The doctrine of ratio decidendi has also to be interpreted in the same line. To consider the ratio decidendi court has to ascertain the principle on which the case was decided. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges. This is because judges, while deciding a case will give their own reasons but may not distinguish their remarks in a rigid way between what they thought to be the ratio decidendi and what were their obiter dicta, that is, things said in passing having no binding force, though of some persuasive power.” This principle has been reiterated subsequently in another Constitution Bench of the Apex Court in State of Punjab and another vs. 12 Devans Modern Breweries Ltd. and another, (2004) 11 SCC 26, as under:- “The doctrine of precedent is a well-accepted principle. A ruling is generally considered to be binding on lower courts and courts having a smaller bench structure. However, although a decision has neither been reversed nor overruled, it may cease to be ‘law’ owing to changed conditions and changed law. There cannot be any doubt whatsoever that a law which was at one point of time constitutional may be rendered unconstitutional because of passage of time. This is reflected by the principle “cessante ratione cessat ipsa lex”. With changes that are bound to occur in an evolving society, the judiciary must also keep abreast of these changes in order that the law is considered to be good law. This is extremely pertinent especially in the current era of globalization when the entire philosophy of society, on the economic front, is undergoing vast changes.” “Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enumerated by another Bench, the matter may be referred only to a larger Bench. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. It is also trite that binding precedents which are authoritative in nature and are meant to be applied should not be ignored on application of the doctrine of sub silentio or per incuriam without assigning specific reasons therefore.” Yet another Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another, (2005) 2 SCC 673, has held as under:- 13 “Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam.” In Mayuram Subramanian Srinivasan vs. CBI, (2006) 5 SCC 752, the Court was dealing with a binding nature of the decision arrived at by the Court without considering the effect of relevant mandatory provision. After considering the entire law on precedence and per incuriam decisions, the Court observed as under:- “ ‘Incuria’ literally means ‘carelessness’. In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’ as held in Bristol Aeroplane case, (1944) 2 All ER 293. Same has been accepted, approved and adopted by the Supreme Court while interpreting Article 141 of the Constitution of India, which embodies the doctrine of precedents as a matter of law. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.” Thus the view taken by a Single Judge of this Court in Tarsem Singh (supra) in the teeth of the decision rendered by the Full Bench as also the subsequent consistent views taken by the coordinate Bench of this Court, cannot be said to be a binding precedent. 14 In my considered view as provided for in Section 2(j) of the Act, the tenancy had devolved upon all of the legal heirs of the deceased Hukam Chand and the application filed by the applicant had to be allowed. The application ought to have been allowed for yet another reason. Alongwith the application, the applicant had filed various documents from which it is evident that the original owner Shri R.L.Seth, predecessor-in-interest of the landlord, himself had accepted all of the legal heirs of late Shri Hukam Chand as tenants. It is evident from the petition for eviction filed by him on 2.9.1993 wherein the present applicant was impleaded as respondent No.4, also indicating him to be a tenant. Paragraphs 5 and 7 of the petition further fortifies the same. Even though the said eviction petition was subsequently withdrawn but, however, the fact remains that prima facie the applicant was accepted as a tenant. To controvert the same, learned counsel for the landlord has invited my attention to a copy of the plaint (Ext.RW-6/A) filed by Shri R.L.Seth seeking a prayer of permanent and prohibitory injunction in which only the tenant was indicated as the tenant. I am afraid, the same does not advance the case of the landlord any further. The said suit filed on 23.6.1993 by Shri R.L.Seth was dismissed as withdrawn by him on 5.11.1997 and during the pendency of the same the petition for eviction, referred to hereinabove, was filed on 7.8.1993, which clearly refers to the applicant as one of the tenants. Further there is also enough material on record, in the shape of telephone bill, voter’s identity card, gas connection receipts, rashan card, scooter insurance policy and Permanent Account Number of Income Tax, which prima facie