IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No.: 119 of 2005. Reserved on: 01.06.2011. Decided on: 17.06.2011. ___________________________________________ Gurcharan Kaur and others. … Petitioners. Versus Anil Kumar. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioners : Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. For the Respondent : Mr. Satyen Vaidya, Advocate. Rajiv Sharma, J.: This revision petition is directed against the judgment passed by the learned appellate authority, Shimla in Civil Misc. Appeal No.37-S/14 of 2003 dated 8.6.2005. 2. Material facts necessary for adjudication of this petition are that the respondent/landlord (hereinafter referred to 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - as “the landlord” for convenience sake) filed a petition under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as “the Act” for brevity sake) for eviction of the petitioners/tenants (hereinafter referred to as “the tenants” for convenience sake) from shop No.29, Padam Cottage, Sanjauli, Shimla. The case of the landlord was that the demised premises were non-residential and let out at the rate of ` 250/- per month to Shri Gurdit Singh, husband of Smt. Gurcharan Kaur and father of respondents No.2 and 3, namely, Davinder Singh and Amarjeet Singh. Gurdit Singh died in 1989-90 and tenancy was inherited by his widow. According to the landlord, respondent Gurcharan Kaur has changed the user of shop from shop to shop-cum-residence and handed over the control and possession of the shop to Shri Amarjeet Singh as sub-tenant. The tenanted premises were illegally partitioned by respondent Gurcharan Kaur and converted the major portion into residence. Thus, eviction of the respondents was sought on the grounds of sub- letting, impairing the value and utility of the demised premises and converting the shop into residence. According to the landlord, the tenants were also causing nuisance by cooking in the shop-cum-residence by discharging the filthy water in front of the shop and due to smoke arising on account of cooking by the sub-tenant, Amarjeet Singh. Thus nuisance was caused to the other occupiers of the building and in the neighbourhood. - 3 - Initially, the petition was filed against the widow of Gurdit Singh, namely, Gurcharan Kaur. However, subsequently, his sons Shri Davinder Singh and Amarjeet Singh were impleaded as respondents by the landlord. 3. The petition was contested by the tenants. It was denied that substantial portion of the demised premises was converted into residence. The case of the tenants was that the shop was temporarily partitioned into two portions. The front portion consists of the shop, whereas, the inner portion consists of a small room where a settee is placed for taking rest during day time only. It was denied that the demised premises were converted into residence effecting the value and utility of the premises or impairing the same. The allegation of nuisance was also denied. The learned Rent Controller framed the issues on 18.2.2002. The learned Rent Controller dismissed the petition on 6.6.2003. 4. The landlord preferred an appeal before the learned appellate authority. The learned appellate authority allowed the appeal on 8.6.2005 and ordered eviction of the tenants. Hence, this petition against the judgment, dated 8.6.2005 passed by the learned appellate authority. 5. Tenants have preferred an application bearing CMP No.29 of 2006 under Order 41 Rule 27 of the Code of Civil Procedure. The same was allowed by this Court on 12.5.2011. - 4 - 6. Mr. Bhupender Gutpa, learned Senior Advocate with Mr. Janesh Gupta appearing on behalf of the tenants has supported the judgment of learned Rent Controller, dated 6.6.2003. He has vehemently argued that the present eviction petition was not maintainable since the landlord has earlier filed eviction petition, which was withdrawn by him on 3.4.1997 vide Ex.PW-2/M. He then argued that the landlord has failed to prove the change of user/wrongful user. According to him, the shop in question was being used for the purpose of business and only a small portion was used as resting place during day time only. He then argued that the landlord has also failed to prove that the temporary partition has impaired materially the value and utility of the building. He further contended that no nuisance was being caused by the tenants and the landlord has not led any evidence to prove this ground. He lastly contended that the present petition was liable to be dismissed by the learned Rent Controller under Section 18 of the Act, which according to him was analogous to Section 11 of the Code of Civil Procedure. 7. Mr. Satyen Vaidya, learned counsel for the landlord has supported the judgment passed by the learned appellate authority. According to him, the landlord has duly proved that the tenants have changed the user of the premises by converting it from non-residential to residential. He then - 5 - contended that the partition made by the tenants was likely to impair materially the value and utility of the building. He also contended that the tenants have not taken any objection in the reply filed so far as Order 23 Rule 1 is concerned. 8. I have heard learned counsel for the parties and gone through the pleadings carefully. 9. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the landlord has earlier filed eviction petition on the same cause of action, which was withdrawn on 3.4.1997 vide Ex.PW-2/M. He has also drawn the attention of the Court to statement made by the learned Advocate of the landlord, dated 3.4.1997 vide Ex.PW-2/N. The statement made by Mr. V.C. Guleria, learned counsel for the landlord before the learned Rent Controller, Shimla, dated 3.4.1997 read thus: - “Stated that petitioner does not press this petition for some time and wants to institute new petition later on and as such does not press this petition. File be consigned to record room.” 10. The order passed by the learned Rent Controller vide Ex.PW-2/M, dated 3.4.1997 read thus:- “RW Amarjit Singh is present but discharged as col. for the petitioner vide his separate statement has withdrawn the petition. Accordingly, the petition is dismissed as withdrawn. Case file be consigned to records.“ - 6 - 11. The tenants have also placed on record the certified copy of the earlier petition filed by the landlord vide Annexure A-1 and the reply filed by the tenants vide Annexure A-2. The learned Rent Controller has framed the following issues in this petition on 29.6.1993:- 1. Whether the respondent has sublet the shop in dispute to Shri Amarjit Singh without the consent of the petitioner? O.P.P. 2. Whether the respondent has impaired value and utility of premises by partition and working, as alleged? O.P.P. 3. Whether the premises have been used for purpose other than for which were let out? O.P.P. 4. Whether the petition is not maintainable? O.P.R. 5. Relief. 12. A bare perusal of order dated 3.4.1997, reproduced hereinabove makes it abundantly clear that the landlord has not sought permission of the Court to institute fresh petition on the same or similar cause of action. The petition has been unconditionally withdrawn. The only reason assigned by PW-2, Shri Mehar Singh for withdrawal of the earlier petition was that it was withdrawn on some technical grounds. The Court is of the considered view that once the permission as stipulated under Order 23 of the Code of Civil Procedure has not been sought, the present petition was not maintainable. - 7 - 13. Mr. Satyen Vaidya, learned counsel for the landlord has strenuously argued that the provisions of the Code of Civil Procedure are not applicable under the Rent Control Act. Mr. Bhupender Gupta, learned Senior Advocate has argued that the principles of the Code of Civil Procedure will be applicable to the proceedings under the Rent Control Act. He has relied upon Dr. Shri Bhagwan Singh Vs. Shri Ramesh Kumar, 1981(1) RLR, 130, wherein the learned Single Judge has held as under (para 8):- “I have thoroughly considered the arguments of the parties. I am of the view that even if the provisions of Order 23 rule 1 may not be strictly applicable to the proceedings under the Act its principles are still applicable, when there is no provision to the contrary, in the Act itself. At the same time, I am of the view that even an appellate Court (in the present case the Appellate Authority) is competent to allow the withdrawal of the petition, with a permission to file a fresh one, especially when both the parties consented to the same. It is to be noticed that on the application filed by the respondent, under order 23, rule 1, the learned counsel for the petitioner had consented that the application be allowed, but on payment of costs. The Appellate Authority assessed the costs at Rs.100. I had put it to the learned counsel for the petitioner (whether his client had received the costs, as awarded, or was prepared to accept the same, if offered to him. It was, however, specifically asserted by the learned counsel for the petitioner that even if the costs were offered to him - 8 - he would have refused to receive the same and would not also receive it even now. It is contended by the learned counsel for the respondent that his client had offered the costs and is still prepared to pay the same if not already paid. Under the circumstances, I am inclined to hold that the equity is very much in favour of the respondent.” 14. He has also relied upon Mehtab Singh v. Tilak Raj Arora and another, AIR 1989 Punjab and Haryana, 12, wherein their Lordships of Punjab and Haryana High Court have held that if the provisions contained in Section 11, Order 2, Rule 2, Order 9, Rule 9 and Order 23 Rule 1(4) of Code of Civil Procedure are held to be not applicable to the proceedings before the Rent Controller, it would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant, as the case may be, would be able to harass time and again on the cause of action and for the same relief. Their Lordships have held as under (para-6):- “If the various provisions noticed above are held to be not applicable to the proceedings before the Rent Controller, it would necessarily result in the violation of the maxim that no man should be vexed twice over the same cause of action and the landlord or the tenant as the case may be, would be able to harass time and again on the same cause of action and for the same relief. For example, a landlord after the full trial of his petition for ejectment at the stage of arguments feeling that - 9 - the petition is likely to fail, would get it dismissed as withdrawn and institute a fresh one again on the same cause of action. He would be able to repeat the same process time and again if the principles underlying the provisions of O. 23, R. 1(4) are held to be not applicable to the proceedings before the Rent Controller. Similarly if the provisions of O. 2, R. 2 of the C.P.C. are held to be not applicable, a landlord would be able to file ejectment application on one ground although many other grounds may be available for the same relief at a given time. After having failed on that ground till the highest Court, he would be able to institute another petition on the second ground and thus go on fighting litigation and harassing the opposite party. Same would be the situation with regard to the provisions of O. 9, R. 9 of the C.P.C. and the landlord would be able to get his petition dismissed in default at any stage of the proceedings and file a fresh one on the same cause of action resulting in the abuse of the process of the Court and harassment of the opposite party. All these principles as held in Lal Chand’s case (AIR 1977 SC 789) (supra), are conceived in the larger public interest and founded on equity, justice and good conscience, which required that no man should be vexed twice on the same cause of action. We are, therefore, of the considered view that even though the Code of Civil Procedure is not applicable as such to the proceedings before the Rent Controller; but the general principles contained in the Code, including the one noticed above which are based on justice, equity and good conscience would govern those proceedings and the two decisions relied upon by the learned counsel for the respondent in Ram - 10 - Parkash v. Nathu Ram, 1984 Cur LJ (Civ & Cri) 96 and Raghbir Kaur v. Gurmej Singh, (1985) 87 Pun LR 266 are, accordingly overruled.” 15. The learned Single Judge of Punjab and Haryana High Court in Sardari Lal Jain Versus Smt. Dhanwanti Devi, 2002(2) RCR, 296 has held that though the provisions of C.P.C. are not applicable to the proceedings under Rent Act but the principles which are the basis and foundation for the administration of justice would undoubtedly be applicable to these proceedings. He has held as under (para-3):- “In the reply filed by the tenant, it was alleged that the previous petition for ejectment filed by the landlady was dismissed by the learned Rent Controller on 16.1.1985 and the second petition was also dismissed on 2.3.1985 and that another petition was also dismissed by the learned Rent Controller and that the petitioner was barred from taking of the same plea under Order 23 Rule 1 CPC. It was denied that the shop was lying closed. On the other hand, it was alleged that since he was suffering from prolonged ailment of T.B., he was unable to do any work for quite sometime from 1980 onwards and that he had never ceased to occupy the said shop for a continuous period of four months. The Rent Controller, vide order dated 18.9.1993, dismissed the ejectment petition on the ground that on account of dismissal of the previous ejectment petitions, the ground that the tenant has ceased to occupy the premises for a continuous period of four months without sufficient cause, was not available to the landlord as the period of four - 11 - months had not expired between the previous petition and the new petition. However, on merits, it was held that in fact the tenant had ceased to occupy the demised premises for more than four months prior to the filing of the present petition. The ejectment petition however was dismissed on the ground that this plea was not available to the landlord in the present petition because of the dismissal of the previous petition. The appeal filed by the landlord was accepted and it was held that the provisions of Rule 1 of Order 23 CPC were not applicable to the proceedings under the Act and, therefore, the present petition could not be held to be barred under Order 23 Rule 1 CPC and the dismissal of the previous petition would be no bar to the filing of the present petition. Aggrieved against this order of the learned Appellate Authority, the present revision petition was filed by Surinder Kumar, Legal Representative of Sardari Lal, since Sardari Lal tenant in the meanwhile had expired.” 16. Mr. Bhupender Gupta, learned Senior Advocate has also placed strong reliance on Sarguja Transport Service Versus State Transport Appellate Tribunal, M.P., Gwalior, and others, (1987) 1 SCC 5 wherein their Lordships of Hon’ble Supreme Court have held that the principles underlying Order 23 Rule 1 are different from res judicata under Section 11 of the Code of Civil Procedure. Their Lordships have held that the principle underlying Rule 1 of order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avail - 12 - of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Their Lordships have held as under (para-7):- “The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in sub-rule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying R. 1 of O. XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of R. 1 of O. XXIII. The principle underlying the above rule is founded on - 13 - public policy, but it is not the same as the rule of res judicata contained in S. 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating- under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of R .1 of O. XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.” 17. In the instant case, both the Courts below have overlooked Section 18 of the Act, which reads thus:- “Section 18. The Controller shall summarily reject any application under sub-section (2) or sub- section (3) of Section 14, which raises substantially issues as have been finally decided in a former proceeding under this Act.” 18. Mr. Satyen Vaidya, learned counsel for the landlord has argued that the tenants have waived the ground of - 14 - maintainability of the present petition after the earlier petition was withdrawn on 3.4.1997. However, in the reply to para 18(a)(iv) of the petition filed by tenant Amarjeet Singh, it is specifically mentioned that the landlord was estopped from filing and maintaining the petition. A bare perusal of Section 18 of the Act makes it abundantly clear that the same is analogous to Section 11 of the Code of Civil Procedure. In the instant case, the landlord has filed fresh eviction petition after abandoning the earlier petition and has not sought permission to institute fresh petition on the same cause of action. Thus, the present petition was not maintainable. It was also hit by Section 18 of the Act. The tenants could not be vexed twice over the same cause of action. The learned Rent Controller has come to just conclusion that in the instant case, Order 23 Rule 1 CPC was attracted and thus, the petition was not maintainable. The finding recorded to the contrary by the appellate authority is against the well settled principles of law, as discussed hereinabove. The learned appellate authority has not correctly appreciated the contents of Ex.PW-2/H. It is true that before the learned appellate authority, the petition filed by the landlord earlier, the reply filed by the tenants and the issues framed were not on record. However, the fact of the matter is that earlier petition was also filed on the same grounds which were contained in the notice dated 2.7.1992 vide Ex.PW-2/H. Consequently, it is held that - 15 - the earlier petition was abandoned by the landlord and he has not sought permission as discussed above to institute fresh petition and the principles contained under Order 23 Rule 1 CPC read with Section 18 of the Act are attracted in the present case and the same was not maintainable. 19. The judgment reported in The Commissioner, Hindu Religious and Charitable Endowments, Madras v. V. Krishnaswami and another, AIR 1975 Madras 107, cited by Mr. Satyen Vaidya, learned counsel for the landlord is not applicable in the facts and circumstances of the present case. 20. Now the Court will advert to the first ground of eviction, i.e. change of user on the basis of which ejectment has been ordered by the learned appellate authority. According to the landlord, the premises were let out to late Shri Gurdit Singh for non-residential purpose, however, the same has been changed to residential purpose as well. 21. Mr. Satyen Vaidya, learned counsel for the landlord has drawn the attention of the Court to rent notes Ex.PW-2/C and Ex.PW-2/E. According to him, only one shop bearing No.29 was let out to late Shri Gurdit Singh. He has further argued that Amarjeet Singh has started living in the shop and thus, changed the user of the same. 22. Mr. Bhupender Gupta, learned Senior Advocate has drawn the attention of the Court to Sections 2(e) and 2(h) of - 16 - Himachal Pradesh urban Rent Control Act, 1987. Same read as under:- “ …….. 2. (e) “non-residential building” means a building being used – (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the building resides therein; PROVIDED that if a building is let out for residential and non-residential purposes, separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as non-residential. Explanation. – Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence. …….. (h) “residential building” means any building which is not a non-residential building;” 23. Landlord has appeared as PW-1. In his examination-in-chief, he has deposed that he usually remains - 17 - outside Shimla in connection with his business. In his cross- examination, he has admitted that he generally lives at Una and he did not know how many daughters and sons Gurdit Singh had. He has further admitted in his cross-examination that he is residing at Una since 1986. He has denied the suggestion that Amarjeet Singh used to live in Roop Mehal building. Thereafter