Shakuntla Devi vs Satpal Sharma & Ors

Sandeep Sharma, J

( Through video conferencing)

By way of instant Civil Revision petition filed under Section 115 of the Code of Civil Procedure, petitioner-judgment debtor (hereinafter, ‘JDâ€)

has laid challenge to order dated 06.11.2020, passed by learned Rent Controller, Shimla, District Shimla, H.P. whereby, objections filed by Judgment

Debtor under Section 47 read with Section 151 of CPC, have been dismissed (Annexure P-8).

Precisely, the challenge to aforesaid order passed by executing Court below is on two grounds:-

(i) Since respondent-DH has no valid sanctioned plan in his favour, petitioner-JD, cannot be ordered to be evicted.

(ii) Executing Court below has exceeded its jurisdiction by making observation in the impugned order that contention of JD that she has been held

entitled for reentry is of no consequence as right of reentry is available to the JD only after rebuilding and reconstruction of the building.

Besides above, learned Senior Counsel representing the J.D., argued that Executing Court in execution proceedings could not have recorded finding

that execution petition is maintainable solely on the ground that building in which the premises is housed, has been found unsafe and unfit for human

habitation, especially, when eviction was also sought on the ground of rebuilding and reconstruction. Having taken note of the controversy inter se

parties, this Court with a view to cut-short the controversy, passed following order on 5th January, 2021, which reads as under:

“Mr. Neeraj Gupta, learned Senior Counsel representing the petitioner-JD, on instructions, states that petitioner-JD would be content

and satisfied in case this court before upholding the order impugned in the instant proceedings verifies factum with regard to correctness

and genuineness of the claim of the respondent/DH that sanction has been granted in his favour for rebuilding/reconstruction of premises

i.e. Building No. 31, Galli No. 7, Middle Bazaar, Shimla.

Mr. Sumit Sood, learned counsel for the respondent/DH contends that bare perusal of order dated 6.11.2020 whereby objections under

Section 47 CPC having been filed by the petitioner/JD have been dismissed itself suggests that building plan stands sanctioned vide order

dated 10.9.2012 and same still holds good, especially in view of the deletion of Section 251 of Municipal Corporation Act and as such,

there is no requirement, if any, to ascertain aforesaid factum from the Municipal Corporation Shimla.

Be that as it may, this court, with a view to cut short the controversy at hand, directs Mr. Naresh Gupta, learned standing counsel for

Municipal Corporation, Shimla to verify from the records as to whether respondent/DH has been given sanction to rebuild/reconstruct the

premises in question vide sanction order dated 10.9.2012 or not. If yes, then whether it is subsisting or stands withdrawn.

Mr.Gupta, while doing aforesaid in terms of instant order may also keep in mind that on account of deletion of Section 251 of Municipal

Corporation Act now there is no necessity, if any, to get the sanctioned plan renewed/revalidated. Let report in terms of aforesaid order be

filed by Mr. Gupta, on 7.1.2021. enabling this Court to pass appropriate orders in the instant case.â€​

Pursuant to the aforesaid directions issued by this Court, Mr. Naresh Gupta, learned Standing Counsel for Municipal Corporation, Shimla, on

instructions, informed this Court that sanction order dated 10.9.2012, issued in favour of respondent-DH qua the premises in question, i.e., Building No.

31, Galli No.7, Middle Bazar, Shimla is valid and subsisting as of now. Since, sanction order dated 10/11 September, 2012, is valid and subsisting, first

ground raised on behalf of petitioner -JD deserves outright rejection.

Careful perusal of order dated 18.3.2011, passed by learned Rent Controller, Shimla in Rent Case No. 30/2 of 2007, clearly reveals that respondent-

DH, sought eviction of petitioner-JD from residential premises as detailed hereinabove on the ground of rebuilding and reconstruction as well as the

building being unsafe and unfit for human habitation. Learned Rent Controller, Shimla vide order dated 18.3.2011, held that the building housing the

demised premises has become unsafe and unfit for human habitation and that the building in question is bonafide required by the petitioner for

rebuilding and reconstruction, which cannot be carried out without the demised premises being vacated by the tenant. Petitioner-JD laid challenge to

the aforesaid judgment before Appellate Authority by way of Rent Appeal No. 76-S/14 of 2013/11 but such appeal came to be partly allowed vide

judgment dated 13.1.2015, whereby appellate authority held petitioner/judgment debtor entitled for benefit of proviso to clause 4 of section 14 (3) off

the Act, as a consequence of which petitioner became entitled to be re-inducted on the basis of previous tenancy in same building, location and area.

While passing aforesaid order, learned appellate authority has very carefully mentioned in operating part of judgment that the relief given herein above

is in addition to directions of the learned rent Controller. Careful perusal of para 58 of judgment rendered by Appellate Authority reveals that

Appellate Authority while modifying the judgment dated 17.1.2006 passed by Rent Controller directed petitioner to hand over vacant position of

premises within 3 months, enabling decree holder to commence construction and complete the same within the period of one year. Since it stands

clarified in the aforesaid judgment passed by appellate authority that tenant shall be re-inducted on the basis of observations made in judgment after

reconstruction of building, there was no occasion for learned executing court below to make observation that contention of JD that she has been held

entitled for re-entry is of no consequence as right of re-entry is available only after rebuilding and construction of building. Needless to say executing

court cannot go beyond judgment and decree sought to be executed in execution proceedings. Once it stand specifically ordered in judgment sought to

be executed that tenant shall have right of re-induction after re-construction of building, there was no occasion for executing court below to observe in

para 8 of impugned order that execution petition is maintainable solely on the ground that the building in question has been found to be unsafe for

human habitation, which finding/observation made by court below is otherwise contrary to judgment sought to be executed.

Consequently, in view of above, impugned order dated 6.11.2020 is modified to the extent of observations made herein above and

petitioner/judgment debtor is given time till 31st January, 2021 to hand over vacant possession of premises in question enabling respondent/DH to

commence construction. Petitioner/Judgment Debtor may file an undertaking by way of an affidavit before this court within a week that in any

eventuality she would hand over the vacant possession of the premises in question on or before 31.3.2021, failing which she would render herself liable

for penal consequences. It is clarified that aforesaid order passed by this Court shall have no bearing as far as suit for recovery, if any, for realization

of use and occupation charges, filed by respondent is concerned, which shall be decided on its own merits. Petition stands disposed of in above terms.

Pending applications, if any, also stand disposed of. Interim directions, if any, are also vacated.