Vivek Singh Thakur, J
1. Invoking provisions of Article 227 of the Constitution of India, present petition has been preferred for setting aide order dated 8.9.2022 passed by
Rent Controller, Shimla in Execution Petition No. 78 of 2019, titled as Arun Kumar Vs. M/s Panna Lal and others, whereby Rent Controller has
dismissed an application under Order 14 Rules 1 and 2 of the Code of Civil Procedure, filed by the petitioners, for framing an issue in Execution
Petition.
2. Predecessor-in-interest of respondents/landlords had instituted Rent Application No. 56-2 of 2002/98, titled as Khem Chand Vs. M/s Panna Lal and
sons on 22.4.1998, which was allowed vide order dated 14.9.2010, ordering eviction of the petitioner/tenant from the premises in reference on the
ground that the premises was required bonafide by the landlord for re-building and re-construction and also on the ground that tenant had carried
additions and alterations in the premises without written consent of landlord, materially impairing the value and utility of the premises.
3. Appeal bearing No. RC 41-S/13(b) of 2010, preferred by tenant was partly allowed by the Appellate Authority vide judgment dated 30.7.2012,
whereby eviction of tenant, on the ground of material additions and alterations in the premises without consent of the landlords thereby impairing its
value and utility, was set aside and rest order of eviction was maintained, but subject to condition that Executing Court shall execute the order only on
production of duly sanctioned building plan by the petitioner and tenant shall have right of re- entry on equivalent area in the reconstructed building on
mutual terms of tenancy.
4. For implementation of aforesaid eviction order, Execution Petition No. 78 of 2019 has been preferred by landlord. On 31.8.2022, tenant had
preferred an application under Order 14 Rules 1 and 2 of the Code of Civil Procedure for framing an issue, ‘whether as on date, Decree Holders
are in possession of valid sanctioned plan for carrying out rebuilding?’
5. Aforesaid application was filed on the ground that there was no valid sanction or approved plan available with the landlords for construction/re-
building of the building and vide notification dated 11.8.2000 and notification dated 22.8.2022 has declared Lower Bazar, Shimla, including the building
in reference as core area and now it is House Umbrella Committee of Municipal Corporation, Shimla, which is competent to approve plans in the core
area and the approval and sanction of plan for reconstruction granted to the landlords vide Office Order No. 2001-AP, dated 2.12.1996, has lost its
efficacy and to substantiate this condition, tenant has relied upon letters dated 25.2.2016, 19.12.2014, 12.10.2012 and 30.6.2009 issued by Senior
Architect Planner/Architect Planner of Municipal Corporation, Shimla in the capacity of Public Information Officer, whereby it has been informed that
map was sanctioned in favour of landlords vide order dated 2.12.1996 for reconstruction of premises in reference and as on date, the said plan cannot
be considered to be sanctioned, because no correspondence was done by the owner for extension of time for reconstruction, as per record, and area
in reference is part of area declared as core area vide notification dated 22.8.2002 and as there is no information regarding starting of re-construction
work in the building, no sanction is valid and under the Notifications dated 11.8.2000 and 28.2.2011, plans have not been given extension and present
situation of the map approved in the year 1996 was that sanction stood lapsed and no application for renewal or extension of the said map has been
submitted.
6. The aforesaid application for framing of issue was opposed by the landlords by filing reply alongwith documents received under Right to Information
Act from Senior Architect Planner, wherein it was re-iterated that plan was sanctioned in favour of landlords vide order dated 2.12.1996 for
reconstruction of the shops in reference with condition that construction work will be completed within one year and further that before the years
2006-2007, who had started the work, no sanction as well as extension was required and in case construction is still incomplete there is no need for
extension of time and initial sanction is valid. A document, Notification dated 3.8.2022 issued to tenant has also been placed on record, whereby tenant
has been asked by the Municipal Corporation to vacate the premises with immediate effect to avoid risk of life and property because the premises in
reference was not safe for human habitation.
7. Taking into consideration the contentions of the parties and material placed before him, Executing Court/Rent Controller has opined that there
cannot be a trial within trial and sufficient material has been placed on record by both the parties, which can be appreciated and objection taken, can
be decided and adjudicated effectively on the basis of same and, therefore, there is no requirement and necessity of framing any issued, as proposed
by Judgment Debtor/tenant.
8. It has been contended on behalf of petitioner/tenant that with respect to validity of plan, landlords are relying upon the documents in evidence, which
is an information supplied under the Right to Information Act and the information received under the Right to Information Act is not a substantive
piece of evidence and, therefore, it cannot be taken into consideration by the Executing Court and, therefore, parties, especially Decree
Holders/landlords are required to prove existence of approved and sanctioned plan by leading evidence and for that purpose there is necessity to
frame an issue, as proposed by the petitioner/tenant and to adjudicate the same after giving opportunity to the parties to lead evidence and in case the
documents are considered without framing of issue and leading admissible evidence, petitioner/tenant would be deprived of cross-examining the
concerned official who have issued Right to Information dated 20.2.2019 and 23.1.2020 in favour of landlords, whereas the information rendered by
the concerned Officer vide aforesaid communication is contrary to the law laid down by the Supreme Court and this High Court as well as previous
letters issued by the same Officer.
9. So far as plea taken by the tenant that documents favouring landlords are not valid and admissible in evidence being information supplied under the
Right to Information Act, is not tenable because tenant itself is relying upon and referring the information received under the Right to Information Act
to establish that landlords are not in possession of valid approved map.
10. Execution proceedings are governed by provisions of Order 21 of the Code of Civil Procedure. Reading of these provisions no where creates any
obligation upon the Execution Court to frame issue regarding the question/objection raised before it in all cases. It provides that question raised before
the Executing Court shall be determined by the Court in the application for execution itself, but not by a separate suit and the Executing Court shall be
deemed to have jurisdiction to decide such question.
11. Petitioner/tenant, in order to substantiate its plea with respect to sanctioned and approved plan, is relying upon the information received under the
Right to Information Act, wherein it has also come on record that map was approved/sanctioned in favour of landlords in the year 1996, and for
validity of the said sanctioned plan respondents/landlords are also referring information received under the Right to Information Act and the Executing
Court in the impugned order has opined that the issue raised in objection by the tenant can be decided on the basis of material placed before him and
for that purpose, there is no necessity of mini trial within the trial.
12. Taking into consideration the material placed before me, I also concur with the opinion of the Executing Court and, therefore, there is no need to
frame issue in the present matter, as proposed by the tenant.
13. Rent Petition was filed in the year 1998 which was allowed in 2010. Thereafter matter was adjudicated in higher Court. Execution was filed in the
year 2019, i.e. about four years back and till date landlords are not able to receive the fruits of decree/order passed in their favour.
14. In present case in the year 1996, landlords were in possession of approved sanctioned plan for reconstruction and rebuilding, but the premises was
in possession of tenant and tenant did not vacate the premises, which has not been vacated till date, landlords was constrained to file Eviction Petition
on 22.4.1998, which was allowed on 14.9.2010. It was assailed by the tenant by filing appeal and appeal was decided on 30. 7.2012. Despite eviction
order, the premises was not vacated by the tenant, which lead to filing of Execution Petition in the year 2019, wherein objection have been preferred
by the Judgment Debtor/tenant in August, 2022 and an application has been filed for framing an issue. The facts and circumstances are clearly
suggesting that this application has been preferred only for lingering the proceedings, so as to deprive landlords from fruits of a decree passed in their
favour in the year 2010.
15. The Apex Court, in its recent judgment in case D. Sasi Kumar Vs. Soundrarajan reported in (2019) 9 SCC 282, wherein overruling the conclusion
of the High Court that bonafide occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final
adjudication of rights, has held that when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the
process if the benefit is declined it would only encourage the tenants to protract the litigation so as to defeat the right and further that if as on the date
of filing petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time lapse in the judicial process coming to
an end. Referring its previous pronouncement in Gaya Prasad Vs. Pradeep Srivastava (2001) 2 SCC 604, it is reiterated by the Apex Court that
landlord should not be penalized for the slowness of the legal system and the crucial date for deciding the bona fide requirement of landlord is the date
of application for eviction.
16. Supreme Court in Pasupuleti Venkateswarlu vs the Motor & General Traders, (1975) 1 SCC 770, has held as under:-
6 “… … …It is basic to our processual jurisprudence that the right to relief must be judged to exist as on date a suitor institutes the legal
proceeding… … …â€
17. Supreme Court in Rajeshwar and others vs. Jot Ram and another, (1976) 1 SCC 194: AIR 1976 SC 49, referring Pasupuleti Venkateswarlu’s
case; and Bhajan Lal vs. State of Punjab, (1971) 1 SCC 34; has held as under:-
“6. The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks
for it. Rut because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for,
the end product comes considerably late. But these higher Courts pronounce upon the rights of parties as the facts stood when the first Court was first
approached. The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one.
Actus curiae neminem gravabit(1). Precedential support invoked by the appellant's counsel also lets him down provided we scan the fact situation in
each of those cases and the legal propositions therein laid down.
7. The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a
material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become
meaningless or does not, by a myopic view, miss decisive alterations in fact-situations or legal positions and drive parties to fresh litigation whereas
relief can be given right here. The broad principle, so stated, strikes a chord of sympathy in a court of good conscience. But a seeming virtue may
prove a treacherous vice unless judicial perspicacity, founded on well-grounded- rules, studies the plan of the statute, its provisions regarding
subsequent changes and the possible damage to the social programme of the measure if later events are allowed to unsettle speedy accomplishment of
a re-structuring of the land system which is the soul of this which enactment. No processual equity can be permitted to sabotage a cherished reform,
nor individual hardship thwart social justice. This wider perspective explains the rulings cited on both sides and the law of subsequent events on
pending actions.
8. In P. Venkateswarlu v. Motor & General Traders (2) this Court dealt with the adjectival activism relating to post institution circumstances Two
propositions were laid down. Firstly, it was held that 'it is basic to our processual jurisprudence that the right to relief -must be judged to exist as on the
date a suitor institutes the legal proceeding'. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date
the action is instituted. Granting the presence of such facts, then he Is entitled to its enforcement. Later developments cannot defeat his right because,
as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The Court's procedural delays cannot
deprive him of legal justice or rights crystallized in the initial cause of action. This position finds support in Bhajan Lal v. State of Punjab, (1971) 1 SCC
34.â€
18. In State of U.P. and others vs. Harish Chandra and others, (1996) 9 SCC 309, Supreme Court has observed as under:-
“… … …Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the
performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition… … …â€
19. In the light of aforesaid pronouncements it is more than settled that right of landlords is to be adjudicated on the basis of date on which action is
instituted by the landlords.
20. In present case landlords were having a valid approved sanctioned map in their favour for reconstruction and rebuilding, but the work could not be
carried out for omission and commission of tenant, who did not vacate the premises. In such a situation entitlement of the landlords to execute the
order for eviction of tenant is to be considered on the basis of circumstances existing at the time of initiation of proceedings for eviction.
21. Considering facts and circumstances of the present case and pronouncement of the Supreme Court, I am of the considered opinion that landlords
are entitled to be considered to be in possession of approved sanctioned plan for execution of decree in order to fulfill the requirement of condition
imposed by the Appellate Authority, as at the time of initiation of proceedings for eviction, the landlord was having sanctioned/approved map for
reconstruction and re-building. Inability to execute the work on account of omission and commission on the part of tenant, who was occupying the
premises in reference, cannot be a ground for depriving the landlords from executing the decree/order in their favour, because the time has lost on
account of resistance of tenants to vacate the premises in reference, on the grounds which did not find favour of the Court and ultimately eviction
order was passed against the tenant.
22. The issue as to whether landlords would be able to carry out work immediately after eviction order or not or as they have to apply for fresh
approval for sanction of map, are not relevant for execution of decree in reference for the reasons narrated supra. These issues are between the
landlords and the concerned authority including Municipal Corporation, regulating the construction work in the concerned area and on account of these
issues tenant should not be permitted to manage depriving the execution of an order which was passed in favour of landlords in the year 2010 or at
least in the year 2012 by the Appellate Authority.
23. With aforesaid observation, I do not find any merit in the petition and accordingly, the petition is dismissed, so also pending application(s), if any.
