IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C. Revision No. 116/2010 Reserved on : 21.7.2010 Decided on: 13.8. 2010. Ashwani Kumar. ...Petitioner. Versus Gopi Chand. ... Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Ajay Kumar, Advocate. For the Respondent : Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate. Justice Rajiv Sharma, Judge. This revision petition has been preferred by the petitioner under section 24 (5) of the Himachal Pradesh Urban Rent Control Act, 1987 against the order dated 19.8.2009 passed by the Appellate Authority (2), Kangra at Dharamshala in Rent Appeal No. 1-K/2009. Material facts necessary for the adjudication of this petition are that the petitioner instituted petition under section 11 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as ‘the Act’ for convenience sake) before the Rent Controller No.1, Kangra for restoration of electricity supply and construction of back wall measuring 9’x4’ of shop owned by respondent-landlord. Respondent filed reply to the same. Petitioner has also moved an application under section 11 Whether the reporters of the local papers may be allowed to see the Judgment? 2 (3) of the Act for interim orders to restore electricity and for the construction of back wall of shop in his possession, as tenant. Landlord filed reply to the same. Learned Rent Controller vide order dated 16.1.2009 directed the respondent-landlord to restore/provide the electricity connection in the demised premises to the petitioner. Respondent-landlord preferred an appeal before the Appellate Authority under section 24 of the Act. Petitioner also filed cross-objections. The Appellate Authority allowed the appeal preferred by the landlord on 19.8.2009 and also held that the cross-objections preferred by the tenant were not maintainable for the construction of wall. Hence, this petition by the petitioner. Mr. Ajay Kumar has strenuously argued that the order passed by the Appellate Authority is not in accordance with law. According to him, tenant has made out a case for interim relief under section 11 (3) of the Act and the Rent Controller has wrongly denied the relief of construction of wall. He has supported order dated 16.1.2009 whereby the landlord has been directed to restore the electricity. He further contended that the cross-objections preferred by the tenant were maintainable before the Appellate Authority. Mr. Bhupender Gupta learned Senior Counsel has supported the order passed by the Appellate Authority. I have heard the learned counsel for the parties and have perused the pleadings carefully. Case of the petitioner, in a nutshell, is that he is tenant in the premises for the last 30 years and he is running the business of sale of medicines in wholesale in the name and style of Pitamber Medical Agencies. He has paid rent to the respondent upto 31.3.2008. According to him, electricity of the petitioner has been disconnected and the landlord has removed the wall on 12.10.2008. Case of the 3 landlord precisely is that tenant has relinquished the tenancy and handed over the vacant possession to him and has accepted Rs. 35,000/- on 14.6.2008. The tenant has specifically made averment in petition filed under section 11 (3) of the Act that the landlord was bent upon to dispossess him from the disputed shop. In reply to this para, landlord has averred that the petitioner wants to get the wall constructed on the gallery which is the only access to the upper storey. Tenant has projected, as noticed above, that he was tenant and was in possession of the shop. According to the landlord, the possession was permissible and conditional. The tenant is in possession of the shop. He is selling his merchandise from this shop. The landlord has disconnected the electricity of the shop and also removed the wall. Since the petitioner is a tenant in the premises in question, he could not be deprived of the amenities by the landlord. Case is at a very initial stage and the parties are yet to lead their evidence to establish their respective pleas, including whether the tenant has relinquished his tenancy, as claimed by the landlord or not. Mr. Bhupender Gupta has strenuously argued that the petitioner has ceased to be tenant after he relinquished the tenancy in favour of the landlord. This question can only be determined after the issues are framed by the Rent Controller and the parties lead their evidence. Their Lordships of the Hon’ble Supreme Court in M/s. A.C. Estates versus M/s Serajuddin and Company and another, AIR 1966 SC 935 while interpreting section 2 (h) of the West Bengal Premises Tenancy Act, 1956 have held that the word “tenant” is defined in section 2 (h) of the Act to include any person continuing in possession after the termination of his tenancy but shall not include any person against whom any decree or order for eviction had been made 4 by a court of competent jurisdiction. Their Lordships have held as under: “9. The next question is whether the respondent was entitled to the benefit of the Act which came into force on March 31, 1956. On that date a suit was pending against Po based on the notice given to him in July 1954 determining his tenancy. The argument on behalf of the appellant is that as Po's tenancy had been determined by the end of August, 1954 by virtue of the notice referred to above, the respondent was no longer sub- tenant on March 31, 1956 as the tenancy of the tenant of the first degree had itself come to an end. This in our opinion is not correct. This word "tenant" is defined in S. 2(h) of the Act to include any person continuing in possession after the termination of his tenancy but shall not include any person against whom any decree or order for eviction had been made by a Court of competent jurisdiction. In view of this inclusive definition of the word "tenant in the Act Po would continue to be a tenant under the Act though his tenancy had been determined by notice and he ceased to be a tenant only on August 22, 1956, when the decree for ejectment was passed against him. It is true that the definitions in S. 2 are subject to anything being repugnant in the subject or context. But we see nothing repugnant in the subject or context of S. 16(3) to persuade us to hold that the definition of tenant in S. 2(h) would not apply to a case under S. 16(3). The Act is a measure for the protection of tenants and sub-tenants and should not be so interpreted as to take away the protection which it intends to give to them. We are therefore of opinion that Po continued to be a tenant upto August 22, 1956 and therefore the respondent continued to be a sub-tenant after the coming into force of the Act.” Similarly, their Lordships of the Hon’ble Supreme Court in Mani Subrat Jain versus Raja Ram Vohra, AIR 1980 SC 299 while interpreting section 2 (i) of the East Punjab Urban Rent Restriction Act, 1949 have held that the expression 'tenant' includes' a tenant continuing in possession after the termination of the tenancy in his favour. Their Lordships have held as under: “6. Section 2 (i) reads : 5 "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 the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cartstand or slaughter house or of rents for shops has been farmed out or leased by a municipal, town or notified area committee; (emphasis added). In this context, we may also read Section 13 (1) which is integral to and makes impact upon the meaning of S. 2 (i) even if there be any marginal obscurity. 13. Eviction of tenants, - (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended. (emphasis added). The expression 'tenant' includes 'a tenant continuing in possession after the termination of the tenancy in his favour'. It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause. Even here, we may mention by way of contrast that Subudhi's case (supra) related to a statute while the definition in S. 2 (5) of that Act expressly included "any person against whom a suit for ejectment is pending in a court of competent jurisdiction" and more pertinent to the point specially excluded "a person against whom a decree or order for eviction has been made by such a court". We feel no difficulty in holding that the text, reinforced by the context, especially Sec. 13, convincingly includes ex- tenants against whom decrees for eviction might have been passed, whether on compromise or otherwise. The effect of the compromise decree, in counsel's submission, is that the 6 tenancy has been terminated. Nobody has a case that the appellant is not continuously in possession. The conclusion is inevitable that he remains a tenant and enjoys immunity under S. 13 (1). The exclusion proceedings must, therefore, fall because the statutory roadblock cannot be removed. Indeed, an application under the Act was filed by the landlord- defendant which was dismissed because the ground required by the Act was not made out.” In view of section 2 (j) of the Himachal Pradesh Rent Control Act, 1987 and as per the law laid down by their Lordships of the Hon’ble Supreme Court the petitioner is a tenant in the premises in question and he is entitled to protection of section 11 of the Act. Now, the Court will advert to the reasoning given by the Appellate Authority while accepting the appeal. The only reason assigned by the Appellate Authority is that the learned Rent Controller has not given specific findings that the electricity was disconnected and the wall was removed by the landlord to coerce the petitioner to vacate the premises. Petitioner, as noticed above, has specifically taken this ground in his petition that the landlord was bent upon for evicting him. Case is at a very initial stage and the parties have yet to lead their evidence. It will be only after the issues are framed by the Rent Controller that the findings can be returned whether the landlord has disconnected the electricity and removed the wall to coerce the petitioner to evict the premises. The Rent Controller, at this stage, when he is considering sub-section (3) of section 11 of the Act is to see, prima facie, whether the landlord-tenant relationship is in existence and the electricity/essential supply or services have been disrupted by the landlord. He has also to see prima facie case, balance of convenience and irreparable loss and injury to the party while considering application under sub-section (3) of section 11 of the Act. 7 Now, the Court will advert to the issue whether the cross- objections are maintainable before the Appellate Authority either by landlord or tenant. In the instant case, the Appellate Authority has come to a conclusion that the cross-objections were not maintainable preferred by the tenant. It is true that all the provisions of the Code of Civil Procedure are not made applicable under the Himachal Pradesh Urban Rent Control Act, 1987, however, the fact of the matter is that the Appellate Authority being persona designata is entitled to devise its own procedure within the parameters prescribed by the Act itself. Mr. Ajay Kumar has placed strong reliance on Bhagavatula Pullayya versus M. Anandam Chetti, AIR 1972 AP 66. Learned Single Judge (Chinnappa Reddi, J as My Lord was at that time) has held that order 41 rule 22 of the Code of Civil Procedure being not inconsistent with any of the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, was applicable to the proceedings before the Appellate Authority under the Act. Learned Single Judge has held as under: “5. Sri A. V. Krishnarao also urged that the provisions of order 41, rule 22 were also applicable to the case. In 1969- 2 APLJ 290, Kuppuswami, J., speaking for the Division Bench observed:- “We are inclined to agree with the view that the provisions of the Civil P.C. would as far as possible be applied to the proceedings under the Rent Control Act, in cases where adequate provision is not made in the Act or the rules and provided that the provisions sought to be applied are not inconsistent with any express provision of the Act or with the scheme and purpose of the enactment.” 6. I am of opinion that the provisions of Order 41, Rule 22, Civil P.C. are not inconsistent with any of the provisions of the Act and are, therefore, applicable to proceeding before the appellate authority under the Act. 7. The petitioner, therefore, was entitled, both on general principles and on the application of order 41 Rule 8 22 to sustain the order of the Rent Controller before the Appellate Authority on the grounds decided against him by the Rent Controller.” Similarly, learned Single Judge of Punjab and Haryana High Court in Jugraj Pal versus Bhim Sain, 2001 (2) RCR 294 has held that even if the provisions of the Code of Civil Procedure are not applicable to the rent proceeding, still by implication the learned Rent Controller and the Appellate Authority being persona designata are entitled to evolve their own procedure for the decision of the appeal or the proceedings. Learned Single Judge has held as under: “6. It was argued at the first instance by the learned counsel for the petitioner that the cross-objections filed by the landlord were not permissible in view of the provisions of C.P.C. and specially under Order 41 Rules 22 CPC are not applicable to these proceedings. In support of his contention, the learned counsel for the petitioner has relied upon a judgment of this Court reported in Ram Dass v. Smt. Sukhdev Kaur and another, 1981 (2) RCR (Rent) 23 (P&H) (DB) :AIR 1981 Punjab and Haryana 301. On the contrary, the learned counsel for the respondent has relied upon a judgment of this Court reported in Jagdish Rai Chandna v. Swaran Dass, 2000 (1) R.C.R. 373 and submitted that though the strong provisions of C.P.C. as envisaged under Order 41 are not applicable to proceedings under the East Punjab Urban Rent Restriction Act but the principles are applicable and the Hon’ble High Court was pleased to observe that the cross-objections of the landlord are maintainable before the appellate authority. 7. I do not subscribe to the contention raised by the learned counsel for the petitioner. The proceedings under the East Punjab Urban Rent Restriction Act are to be conducted by the controllers and the appellate authorities being persona designata. They can devise their own procedure within the confines prescribed by the Act itself for dispensation of justice between the parties. Even if the strong provisions of C.P.C. are not applicable to the rent proceedings, still by implication the learned Rent 9 Controller and the Appellate Authority being persona designata are entitled to evolve their own procedure for the decision of the appeal or the proceedings.” Accordingly, it is held that the tenant was entitled to file cross- objections on general principles and also on the applicability of order 41 rule 22 of the Code of Civil Procedure before the Appellate Authority on the grounds decided against him by the Rent Controller. Moreover, the Appellate Authority being persona designata could evolve its own procedure to do the justice between the parties on the well settled principles of law and procedure. Consequently, the findings recorded by the Appellate Authority are declared erroneous whereby it has not granted the relief to the tenant for reconstruction of wall by holding that the cross-objections were not maintainable on his behalf. Similarly, the findings recorded by the Appellate Authority that the Rent Controller has not given specific findings that the landlord has disconnected the electricity and removed the wall to evict the tenant that too at the initial stage of the petition are liable to be set aside. In view of the observations made hereinabove, the petition is allowed. Order passed by the Appellate Authority is set aside. The landlord is directed to restore the electricity to the tenant within a period of one week from today. The tenant is permitted to reconstruct the wall and the reasonable expenditure to be incurred by him can be deducted from the rent. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Rajiv Sharma), Judge. 13.8. 2010. *awasthi*