( 2025:HHC:31153 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 134 of 2024 along with CMP Nos. 26025 & 26028 of 2024. Reserved on: 28 th August, 2025. Decided on : 11 th September, 2025. Vijay Kumar .... Petitioner. Versus Khem Chand (deceased) through LRs Arun Kumar & Ors. ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Deepak Gupta, Advocate. For the Respondents: Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lall, Advocate, for respondents Nos. 1, 3 and 4. Mr. Anuj Gupta, Advocate, for respondents No.5 and 6. Satyen Vaidya, Judge. This Revision Petition has been filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (for short “the Act”) assailing the order dated 06.09.2024 passed by the learned Rent Controller, Court No.(3), Shimla in CMA No. 458 of 2024. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:31153 ) 2. The facts in brief are that the respondents are landlords in respect of residential premises consisting of three rooms, one kitchen, one bath, latrine and verandah in 4th floor of the building No. 139-140, Lower Bazar, Shimla (for short “the demised premises”). 3. On the application of the landlords, an eviction order stands passed by the learned Rent Controller-IV, Shimla on 28.03.2012 in Rent Petition No. 57/2 of 2000/98 against the petitioner and proforma respondents herein and their mother Smt. Sarla Devi (now deceased). The appeal filed against the aforesaid eviction order was also dismissed by the Appellate Authority (IV), Shimla on 02.08.2014 as rent Appeal No. 37-S/14 of 2014/12. 4. The eviction has been ordered on the ground that the landlords required the demised premises bonafide for rebuilding and reconstruction with a rider that the order of eviction would not be available for execution unless the landlords had valid sanctioned plan for rebuilding and reconstruction in their favour from the competent authority. Learned Appellate Authority has affirmed the eviction order passed by the learned Rent Controller without any modification. 3 ( 2025:HHC:31153 ) 5. Respondents No.1 and 2 herein had filed Civil Revision No.203 of 2017 before this Court raising challenge to the aforesaid rider placed in the eviction order, however, the said revision petition was dismissed as withdrawn vide order dated 22.11.2021. 6. Thus, the eviction order passed by the learned Rent Controller and affirmed by the Appellate Authority has attained finality. 7. Landlords have filed execution petition before the learned Rent Controller to execute the aforesaid eviction order. Petitioner and proforma respondents have preferred objections in the execution petition. One of the objections is that the order of eviction was inexecutable for want of valid sanctioned plan for rebuilding and reconstruction. The landlords are contesting the objections by asserting that the valid sanctioned plan was available with them. According to the landlords, the plan had been sanctioned by the Municipal Corporation on 02.12.1996. 8. Thus, one of the questions before the executing Court was whether the plan sanctioned by the Municipal Corporation on 02.12.1996 fulfilled the requirement of eviction order? 4 ( 2025:HHC:31153 ) 9. During the pendency of the execution petition, the petitioner and proforma respondents herein filed an application under Order 14 Rule 5 of the Code of Civil Procedure with a prayer to frame an issue with respect to the disputed question of facts and law more particularly on the question of validity of sanctioned plan dated 02.12.1996. 10. Landlords contested the application. 11. The prayer made by the petitioner and proforma respondents herein was rejected by the executing Court vide impugned order. 12. Perusal of the impugned order reveals that the learned Executing Court after noticing the exposition of law as laid down in Hari Dass Sharma vs. Vikas Sood and Ors., (2013)5 SCC 243 and in M/s Panna Lal and sons vs. Arun Kumar & Ors, CMPMO No. 471 of 2022, decided by this Court on 27.12.2023 had arrived at the conclusion that the execution of the eviction order could not be withheld for want of approved revised plan and on such reasoning, the exercise of jurisdiction to frame the issue was declined. 13. The impugned order in so far as it refused to frame the issue needs no interference for the reason that the question posed before the executing Court by the petitioner 5 ( 2025:HHC:31153 ) and proforma respondents herein was with respect to in- executability of eviction order for want of valid sanctioned plan. On the other hand, landlords were relying upon a sanctioned plan dated 02.12.1996. In view of the respective stands of the parties, no formal issue was required to be framed as the adjudication on the questions would not require any further evidence. Nonetheless, it was incumbent upon the executing Court to adjudicate whether sanctioned plan dated 02.12.1996, as claimed by landlords, fulfilled the requirements of eviction order. 14. The other part of the impugned order whereby the objection raised by the petitioner and proforma respondents has been rendered redundant cannot be sustained. The fact remained that the execution of eviction order that had attained finality, was made subject to existence of a valid sanctioned plan for proposed rebuilding and reconstruction from the competent authority. No doubt in Hari Dass and Panna Lal (supra), the requirement of sanctioned plan as pre condition, for passing of eviction order of eviction on the ground of bonafide requirement of landlord for rebuilding and reconstruction of the building, has been negated. Nonetheless, the fact remains that in the instant case eviction order was passed subject to the condition as noticed above. 6 ( 2025:HHC:31153 ) The eviction order having attained finality binds the landlords and tenant alike. The landlords, thus, were bound by the eviction order passed in their favour subject to condition as noticed above. 15. Thus, the executing Court was obligated to decide the question on its own merits, which exercise is clearly missing in the instant case and amounts to refusal to exercise jurisdiction in accordance with law. 16. In result, though the prayer of the landlord for framing of issue cannot be sustained, the impugned order is set aside to the extent it amounts to rejection of objections of the petitioner on merits. It is ordered that the learned executing Court will decide all the objections raised by the petitioner and proforma respondents including the objection as to in-executability of eviction order for want of valid sanctioned plan on their own merits in accordance with observations made hereinabove and unimpressed by what has been held in the impugned order. 17. With the aforesaid observations, the instant civil revision petition is disposed of. CMP No. 26025 of 2024. 18. This application has been filed by the applicants/landlords with a prayer to hold that the petitioner 7 ( 2025:HHC:31153 ) and proforma respondents have no tenancy rights in the demised premises. 19. It is averred that originally the tenancy was in the name of Janeshwar Lal. His tenancy rights had devolved upon his widow Smt. Sarla Devi only and exclusively. The petitioner and proforma respondents are the children of Janeshwar Lal and Sarla Devi and as per section 2(j) of the Act, they are not the persons who could be said to have inherited the tenancy rights of late Shri Janeshwar Lal. 20. As per the applicants/landlords, the eviction petition was filed on 22.04.1998. Learned Rent Controller passed the order of eviction on 23.08.2012 and at that time Smt. Sarla Devi was alive. It has also been submitted that Smt. Sarla Devi was alive even at the time of decision of appeal on 02.08.2014 and also when the execution petition was filed. Smt. Sarla Devi is stated to have died during the pendency of the execution petition. 21. It has also been submitted that none of the children of late Shri Janeshwar Lal resided in the premises in dispute and the premises has not been used by any of the aforesaid persons for the last more than three years. 22. The non-applicants have filed the reply and have refuted the averments made in the application. A question 8 ( 2025:HHC:31153 ) has been raised as to the maintainability of the application in the present proceedings. It is submitted that after the demise of original tenant, the tenancy rights were inherited by all the legal heirs and they succeeded to the tenancy rights as joint tenants. Since, the non-applicants at the time of demise of original tenant were residing with him, as such, they had succeeded to the tenancy rights of the original tenant. 23. Section 2(j) of the Act provides that in case of death of tenant during the subsistence of tenancy, the tenancy rights are inherited by all his legal heirs, who ordinarily were residing with him in the tenanted premises at the time of his death. All of them inherit the tenancy jointly 24. In Suresh Kumar Kohli vs. Rakesh Jain and another (2018) 6 SCC 708 the Hon’ble Supreme Court has held as under: “24. We are of the view that in the light of H.C. Pandey vs. G.C. Paul (1989) 3 SCC 77, the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenants is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all 9 ( 2025:HHC:31153 ) the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenants is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail.” 25. Thus, to hold whether any of the legal heirs of deceased has inherited the tenancy rights, adjudication has to be made on the basis of facts established. As noticed above, the parties are at dissent as to the status of the non- applicants in the demised premises. 26. It is not evident from the record that the issue sought to be raised by the applicant/landlord before this Court had earlier been raised or adjudicated. That being so, this Court while exercising revisional jurisdiction that too against miscellaneous order passed in the execution petition by the executing Court will not venture into adjudication on a disputed question of fact. 27. Thus, the prayer made in the application cannot be granted. However, the applicants/landlords shall be at liberty to raise the issue before the executing Court, if so advised, and in case such issue is raised, the executing Court shall 10 ( 2025:HHC:31153 ) decide the same in accordance with law. Accordingly, the instant application is dismissed. CMP No. 26028 of 2024. 28. This application has also been filed by the applicants/landlords with a prayer to hold and direct that the petitioner/non-applicant and proforma respondents No.5 and 6 are liable to pay use and occupation charges @ Rs.1,20,000/- per month for the demised premises w.e.f. 22.04.1998. 29. It is claimed that the applicants/landlords have become entitled to use and occupation charges on the date of filing of eviction petition i.e. on 22.04.1998. In alternative, it has been submitted that the date of entitlement for use and occupation charges at least would be 28.03.2012 when the order of eviction was passed. 30. Reliance has been placed on an order passed by this Court in Rent Revision No.212 of 2016, titled as Champeshwar Lall Sood vs. Gurpartap Singh and Ors, in which use and occupation charges @ Rs.250/- per sq. ft. were ordered from the date of eviction order in respect of non- residential premises in Middle Bazar Shimla. Similarly, another order passed by this Court on 15.09.2022, in Civil Revision No. 29 of 2021, titled as Jeevan Khanna vs. Arun 11 ( 2025:HHC:31153 ) Kumar & Ors., has also been pressed into service to assert that the said order pertained to a non-residential premises in the same building in which the demised premises were located and in that case the use and occupation charges @ Rs.500/- sq. ft. had been fixed. 31. Learned counsel for the applicants/landlords has further placed reliance on the judgment passed by the Hon’ble Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 to claim the right for use and occupation charges. 32. The prayer has been opposed on the ground that the principle laid down in Atma Ram properties (supra), was in the specific fact situation arising under the Delhi Rent Act. It has also been stated that the applicants/landlords cannot raise time barred claim in the present proceedings. Another objection as raised by the non-applicants is that in terms of judgment passed by the Hon’ble Supreme Court in Raichurmatham Prabhakar and another vs. Rawatmal Dugar, (2004)4 SCC 766, tenancy merely remains in abeyance, in the case where eviction is ordered on the ground of bonafide requirement for rebuilding and reconstruction and in such view of the matter the use and occupation charges cannot be allowed. 12 ( 2025:HHC:31153 ) 33. No doubt, the law laid down in Atma Ram Properties (supra) has its basis in deterring the person, after order of eviction, from prolonging the litigation. With that perspective, the right to claim use and occupation charges has been upheld in favour of landlord as a pre-condition for stay the execution of eviction order, at the asking of person ordered to be evicted, during the pendency of the appeal or revision. 34. The tone and tenor of instant application reveals that though the eviction order had been passed on 28.03.2012, the applicants/landlords had never come forward to claim use and occupation charges from the petitioner and proforma respondents, until the filing of this application. Appeal against the eviction order was filed on 07.05.2012 and was decided on 02.08.2014. During this period, the landlord did not make any endeavor to claim use and occupation charges. Similarly, Civil Revision No.203 of 2017 remained pending before this Court till 22.11.2021 but again no prayer for use and occupation charges was made by the landlords. 35. This Court in the instant revision petition has not been called upon to examine the legality of eviction order which already has attained finality. The instant petition has been filed against a miscellaneous order passed in the 13 ( 2025:HHC:31153 ) execution proceedings. Noticeably, this Court has not passed any order or issued direction staying the proceedings even in the pending execution. It being so, the principle in Atma Ram Properties (supra) cannot be strictly invoked by the landlord in the instant proceedings. 36. Further, in order to impose use and occupation charges, there has to be some material in the shape of quantified data to establish the return that would have been available to the landlord on re-letting the demised premises, had the same been vacated immediately on passing the eviction order. The landlord has relied upon two judgments of this Court in Champeshwar Lal and Panna Lal (supra) to exemplify the quantum of use and occupation charges in the vicinity of the demised premises. The premises in both the said cases were nonresidential. Indisputably, the residential and nonresidential premises cannot be compared for the purpose of rent. For such reason also this Court will not be in a position to determine the rate of use and occupation charges. 37. This court while exercising limited revisional jurisdiction under the Act against a miscellaneous order passed by the Executing Court will not enhance the scope by 14 ( 2025:HHC:31153 ) asking the parties to lead evidence on disputed questions of facts. 38. The application is accordingly disposed of, however, the landlord will be at liberty to claim use and occupation charges in accordance with law before the executing Court and in such event the executing Court shall take its independent decision on the prayer of the landlord after affording opportunity of being heard to both sides. The application is accordingly disposed of. (Satyen Vaidya) Judge 11th September, 2025. (jai)