Case Name: Om Prakash vs. Suresh Kumar
Case No.: Civil Appeal Nos.833834 Of 2020
Coram: Justice M. Khanwilkar
Facts of the case
- The facts very briefly are that the appellant being the owner of the premises having three rooms with one veranda, admeasuring 36.53 square meters situated in Ward No. 6, M.C. Area, near Sabji Mandi, Mahal, Hamirpur, Himachal Pradesh had inducted the father of the respondent as its monthly tenant in the year 1969 to use it for nonresidential purpose and the respondent was in occupation thereof when the appellant filed eviction proceedings before the Rent Controller for possession.
- The respondent, at the relevant time, was carrying on business as a cloth merchant in the suit premises. During the hearing of the said petition, the learned counsel for the respondent tenant had urged before the High Court that the tenant was ready and willing to handover possession of the suit premises subject to the landlord (present appellant) agreeing to re-induct him as a tenant in equivalent area occupied by him in the suit building.
- In response to the said submission, the learned counsel appearing for the present appellant, unequivocally, stated before the High Court that the appellant was not aversive to the offer so made by the tenant. The appellant changed his Advocate and then filed review petition before the High Court asserting that he had never instructed his counsel to make such statement before the Court regarding reinduction of the respondent tenant in the newly constructed shops.
- The principal argument of the appellant is that the statement made by his counsel before the High Court was not binding on him, as it was made without his instructions. For that, reliance has been placed on the decision of this Court in Himalayan Coop. Group Housing Society vs. Balwan Singh & Ors.
- Under the liberty given, the respondent has filed an affidavit of one Ram Swaroop, son of Mr. Prithvi Chand, a qualified Architect, accompanied by the relevant sketches/plan(s) and photographs of the building from outside, as well as, floorwise in support of the stand taken earlier that the appellant can provide access to the upper floors through the staircase outside the newly constructed building, without disturbing the possession of the respondent on the ground floor thereat.
- The appellant, however, by filing an affidavit, has pointed out that the staircase already constructed is on the rear side of the building within the premises (being triplex house) and it is not possible to provide additional access to the first and second floors from outside the building.
- The appellant is also placing reliance on the photographs in support of this submission. The moot question is: whether the appellant should be bound by the statement made by his counsel before the High Court that the respondent tenant will be re-inducted in the equal area in the newly constructed building within one month from the date of completion of the construction work.
- From the tenor of the statement made before the High Court on behalf of the appellant, it is obvious that it is an unequivocal statement made by the engaged counsel by the appellant to espouse his (appellant’s) cause before the High Court. Further, the statement was in respect to the commitment of the appellant qua the subject matter of the proceedings in which the counsel was engaged and instructed to appear.
- Not only that, right from the beginning and even before this Court, an attempt was made by the parties to explore the possibility of working out an amicable solution, as is evident from the order dated before the respondent was put to notice of these appeals, and more particularly.
Arguments advanced by the parties
- The appellant filed review petition before the High Court by engaging another Advocate for reasons best known to him. This Court has deprecated the conduct of such petitioners and has opined that such review petitions should not be encouraged and need to be dismissed, as expounded in Tamil Nadu Electricity Board & Anr. vs. Raju Reddiar & Anr.
- Not only that, even before this Court, the appellant, advisedly, showed a willingness to explore the possibility of settlement as is evident from different orders recorded above. It is obvious that the delivery of possession of the suit premises, then in possession of the respondent, was expedited and made over to the appellant only after the intervention of this Court, which indulgence was shown because the appellant had expressed an inclination to spare a portion of premises for the respondent.
- The argument of the appellant that the respondent cannot take benefit of amendment to Section 14(3)(c) of the Himachal Pradesh Urban Rent Control Act, 1987 in the form of Himachal Pradesh Rent Control (Amendment) Act, 2008, will be of no avail to the fact situation of the present case.
- For, in this case, the appellant is obliged to abide by the unequivocal statement made before the Court to reinduct the respondent tenant in the newly constructed building and to provide him same area which was being used by him earlier, namely, 36.53 square meters. Considering the above, the appellant cannot be permitted to extricate himself from the obligation flowing from the impression given to the Court (before the High Court and again before this Court) and need to be bound by the same.
- However, from the subsequent affidavits filed before this Court, it is obvious that the entire ground floor cannot be given to the respondent. Initially, the appellant had given an offer to accommodate the respondent on the upper floor, but it is noticed that the staircase going towards the upper floors (namely, first and second floor) in the newly constructed building passes through the ground floor itself. The same is erected at the rear side within the building (being triplex house).
- In other words, it is possible to provide access to the upper floors from the rear side of the building, which also opens on the road (as a car parked at that entrance can be seen in the photographs) or portion of plot being Khasra No. 778 (now owned by the appellant’s son). The fact remains that the staircase has been erected in such a manner, for the reasons best known to the appellant, that the access to first and second floors would be possible only through the ground floor premises, as it is inside the building and not outside the building.
Order of the court
The order/decree passed by the High Court vide impugned judgment as under:
1. The appellant shall construct the brick wall separating ground floor premises in two portions in the manner mentioned hitherto within six weeks from today and handover the front portion premises to the respondent, where after the respondent can use the same for nonresidential purpose on monthly rent basis.
2. Also, the appellant shall pay the amount of Rs.74, 000/- (Rupees seventy four thousand only) towards compensation/damages and until such payment is made, the appellant shall desist from using the first and second-floor premises for any purpose.
3. We appoint the Chief Administrative Officer, District Court, Hamirpur as a receiver in respect of the newly constructed building situated at Ward No. 6, M.C. Area, near Sabji Mandi, Mahal, and Hamirpur, Himachal Pradesh owned by the appellant Om Prakash, to ensure proper implementation of the above terms and submit compliance report to this Court.
4. In case the appellant commits any breach of the condition of using the first and second floors until delivery of possession and payment of damages/compensation, the Chief Administrative Officer, District Court, Hamirpur shall report that fact to this Court forthwith and not later than one week from the knowledge thereof.
5. For determination of monthly rent upon reinduction of the respondent in the suit premises, the parties shall file a joint application before the Rent Controller at Hamirpur. The Rent Controller shall decide the same expeditiously and not later than six months from the date of presentation, per law after giving fair opportunity to both parties in that regard.
6. The appeals are partly allowed and the impugned judgments/decree stand modified in the aforementioned terms. There shall be no order as to costs. Pending interlocutory applications, if any, shall stand disposed of.
Edited by Vartika Gajendra Singh
Approved & Published – Sakshi Raje