IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 334 of 2000. Date of decision: 7.4.2010. Smt. Kewal Mahajan and others …Appellants. Versus Deshinder Krishan Khanna …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants : Mr. G.D.Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the respondent : None. Kuldip Singh , Judge (Oral) The defendants are in appeal against judgment, decree dated 1.4.2000 passed by learned District Judge, Shimla in Civil Appeal No. 29-S/13 of 1998 affirming judgment, decree dated 15.1.1998 passed by the learned Sub Judge, Court No.2, Shimla in case No. 35/1 of 1997/90. 2. The brief facts of the case are that the respondent had filed a suit for possession of a residential set consisting of three rooms, a bath room and a latrine in the second floor of Mahajan Niwas, Sanjauli, and also for recovery of Rs. 6375/- on account of the value of missing /stolen articles and damages, against the appellants. The case of the respondent is that appellant 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes 2 Smt. Kewal Mahajan is the owner of the building known as ‘Mahajan Niwas’ Sanjauli. She let out a residential set consisting of three rooms, a bath room and a latrine, situated on the second floor of the said building to the respondent on monthly rent of Rs.1500/- on 15.1.1990. The tenancy was created through appellant No.2 husband of appellant No.1 and appellant No.3, who is son of appellant No.1. The respondent occupied the suit premises and placed some furniture and other articles in the premises, though, he had not started residing therein. He paid rent upto 15.7.1990 to the landlady. 3. On 5.7.1990 the respondent was admitted in Deen Dayal Upadhaya Hospital, Shimla for the operation of his injured toe, he remained in the hospital upto 23.7.1990. On 5.7.1990 the appellant Balwant Rai Mahajan engaged two coolies and carried some of the belongings of the respondent which he had kept in the suit premises to his father’s residence in Metropole Hotel. The respondent at that time was also at his father’s place because he had gone there to collect his clothes and other belongings, which he had required in the hospital. On the inquiry of respondent, Balwant Rai Mahajan told that he had broken open the lock and occupied the suit premises. It is the case of the respondent that some other articles which the respondent had kept in the suit premises, were not among the articles which appellant Balwant Rai Mahajan carried through the coolies. The respondent has estimated the value of such articles Rs. 5000/-. 4. The respondent immediately reported the matter to the police in writing. Soon after that the respondent filed the suit for possession of the suit premises and also for recovery of Rs.5000/- on account of the value of the missing articles. The damages at the 3 rate of Rs. 25/- per day for the period from 5.7.1990 to the date of filing of the suit, Rs. 1375/- were also calculated. 5. The appellants contested the suit by filing written statement. It has been denied that rent upto 15.7.1990 had been paid by the respondent. They took the stand that rent only upto 15.6.1990 had been paid. The appellants took the stand that on 4.7.1990 respondent himself vacated the premises and handed over the possession to them. The appellants denied the rest of the case of the respondent. 6. The learned Sub Judge decreed the suit of the respondent for recovery of possession but dismissed the remaining claim of the respondent on 15.1.1998. The decision dated 15.1.1998 was carried in appeal by the appellants. In the appeal cross- objections were also filed by the respondent. The learned District Judge on 1.4.2000 dismissed the appeal as well as cross-objections. The appellants have come in second appeal against the judgment, decree dated 1.4.2000 passed in appeal as well as in cross- objections. The appeal has been admitted on the following substantial questions of law:- 1. Whether the decree passed by both the courts below impugned in this appeal is un-executable for the reason that the premises in question have already been let out to the tenant by the land lords-appellants? 2. Whether the subject matter of the dispute is beyond the jurisdiction of Civil Court and it was the jurisdiction of the Rent Controller who could have decided the controversy involved in the present appeal? 3. Whether the findings recorded by the courts below against the appellants are vitiated on account of mis-reading and mis- appreciation of pleadings and evidence adduced on record? 4 7. I have heard Mr. G.D.Verma, learned Senior Advocate appearing for the appellants, none appeared on behalf of the respondent and have also gone through the record. It has been submitted on behalf of the appellants that the suit filed by the respondent is bad for want of necessary party as the appellants had rented out the premises to a person after it was vacated. It has been submitted that the decree is not executable as the person, who is now in possession has not been impleaded as party. The perusal of the impugned judgment, decree indicates that no such objection was taken by the appellants either in the trial Court or in the lower appellate Court at the time of hearing of the appeal, though the appellants in the grounds of appeal in the lower appellate court have stated that landlord immediately after the vacation of premises by respondent had let out the premises to Adarsh Kumar who is none else but son of appellants No.1, 2. This is after thought plea of the appellants. Moreover, the objection taken in the grounds of appeal cannot be considered unless and until it was pressed at the time of hearing before the lower appellate Court. The objection that decree is not executable for not impleading person who is presently allegedly occupying the premises was not taken at the appropriate stage by the appellants, therefore, substantial question of law No.1 is decided against the appellants. 8. The learned counsel for the appellants has submitted that the Civil Court has no jurisdiction over the subject matter of the controversy involved in the appeal. In so far as second substantial question of law is concerned, again the appellants have not taken any objection with respect to jurisdiction of the Civil Court in the pleadings 5 nor there is an issue to this effect, therefore, substantial question of law No.2 is also decided against the appellants. 9. In support of substantial question of law No.3, the learned counsel for the appellants has submitted that respondent of his own had vacated the premises and the possession of the premises was not taken forcibly by the appellants. It has been submitted that the Courts below have wrongly relied the statements mark ‘A’ and ‘B’ which were given in the criminal case. In fact, the learned District Judge has observed that statements mark ‘A’ and ‘B’ should have been exhibited because these are the certified copy of the statements which are per se admissible in evidence. Mark ‘A’ is the certified copy of the statement of respondent made in the criminal case and mark ‘B’ is the statement of one Lal Chand Kapoor which was also made in the criminal case. The learned lower appellate Court has rightly observed that alleged contradictions in these statements cannot be considered as these statements were not put to the witnesses when they appeared in the court to explain the statements. 10. The respondent in his statement has clearly stated that premises was forcibly occupied by the appellants on 5.7.1990 and some of his belongings were brought to the residence of his father by appellant No.2 through two coolies. It was suggested to this witness that on 5.7.1990 itself he had lodged a written complaint to the police against the appellants and a criminal case was instituted against the appellants on the basis of that complaint. DW-1 Balwant Rai Mahajan has stated that possession was handed over on 5.7.1990 by respondent but in written statement it has been pleaded that 6 premises was vacated by respondent on 4.7.1990. Thus, there is material contradiction in statement made by DW-1 in the court and pleaded case of appellants in the written statement regarding date of handing over of possession by respondent. The learned lower appellate Court has rightly taken into consideration conduct of respondent in lodging the complaint immediately on 5.7.1990 which supports the case of the respondent that he was thrown out of the premises by the appellants illegally and his premises was unauthorisedly occupied by them. PW-5 Lal Chand Kapoor has supported the case of the respondent. 11. The learned district Judge has rightly appreciated the material on record. The learned counsel for the appellants has failed to make out any case that the learned District Judge has not considered the relevant piece of evidence or has considered some evidence which is not admissible in law. The substantial question of law No.3 is also decided against the appellants. No case for interference is made out. The appeal fails and is accordingly dismissed. No costs. ( Kuldip Singh ) Judge. April 7, 2010. (GR)