JAGBIR SINGH v. ROSHAN LAI — 1998 DIGILAW 79 (HP)

JUDGMENT (Kuldip Chand Sood, J.): Petitioner Shri Jagbir Singh,(hereinafter referred to as "the Landlord") consisting of one room, one glazed verandah, a kitchen, store, a bath-room, and a Latrine, situate in the ground floor of Shanti Niwas near Manohar Bhawan, Ahuja Colony, Sanjauli, Shirnla-6. Shri Roshan Lal Mamta is the tenant (hereinafter to be referred to as "the tenant") of these premises (premises for short) at a monthly rental of Rs.300/- per month. The premises were originally owned by one Smt. Shanti Devi. The premises were purchased by the landlord on February 1, 1993 by a registered sale deed Ext. PA. 2. The landlord filed a petition under Section 14(2) (i) of the Himachal Pradesh Urban Rent Control Act, 1987 (Rent Apt for short) for the eviction of the tenant on the ground of non-payment of rent due from the tenant with effect from February 1, 1993 to August 31, 1994 along with taxes at the rate of 8% and interest at the rate of 9% per annum. The case of the landlord is that the tenant is in arrears of rent from the date of the purchase of the premises by him, i.e., February 1, 1993 and the rent has not been paid by the tenant in spite of the requests made by him. It is the further case of the landlord that the tenant is colliding with the previous owner and has manufactured certain "so-called receipts of the rent" in order to harass the landlord and defeat his claim for the arrears of rent. 3. The tenant resists the petition. The tenant, in his reply, denies relationship of landlord and tenant between the parties. He denies the purchase of the premises by landlord from Smt. Shanti Devi, the previous owner. It is also denied that the landlord over requested the respondent for the payment of rent. It is, however, admitted that the tenant is occupying the premises on lease at a monthly rent of Rs.300/- per month. Liability to pay municipal taxes is denied. 4. It is the case of the tenant that he has already paid rent to Smt. Shanti Devi upto January, 1995 and he, therefore is not liable to pay rent till January, 1995. 5. The learned Rent Controller vide his order dated October 23, 1997 found that the tenant is in arrears of rent w.e.f. February 1, 1993. 4. It is the case of the tenant that he has already paid rent to Smt. Shanti Devi upto January, 1995 and he, therefore is not liable to pay rent till January, 1995. 5. The learned Rent Controller vide his order dated October 23, 1997 found that the tenant is in arrears of rent w.e.f. February 1, 1993. It was also held by the learned Rent Controller that the tenant is liable to pay municipal taxes at the rate of 8% of the monthly rent along with simple interest at the rate of 9% per annum on the arrears of rent. The plea of the tenant there is no relationship of landlord and tenant between the parties is rejected. The learned Rent Controller accordingly directed the eviction of the tenant if the tenant fails to pay the arrears of rent together with municipal taxes and interest, as determined by the learned Rent Controller, within one month from the date of the order. 6. Feeling dis-satisfied with the orders of the Rent Controller, the landlord filed on appeal before the learned Appellate Authority, Shimla. The Appellate Authority vide its order dated March 2, 1999, replying upon agreement (Ext.PX) held that the tenant was to pay the rent to Smt. Shanti Devi even after the transfer of the premises by her to the landlord and, therefore, has validly paid the rent to Smt. Shanti Devi upto December, 1994. 7. Feeling aggrieved, the landlord has filed the present revision petition under Section 24(5) of the Rent Act. 8. I have heard Mr. Ajay Kumar, learned counsel for the landlord-petitioner and Mr. Naresh Sood, learned counsel for the tenant- respondent. 9. Mr. Naresh Sood, learned counsel for the respondent contends that the revisional jurisdiction of this Court is limited only to the legality of the impugned order and this court should refrain from re-appraising the evidence. 10. Sub-section (5) of Section 24 of the Rent Act clothes the High Court with the revisional jurisdiction, for the purpose of satisfying itself as to the legality or propriety of such order or proceedings. 10. Sub-section (5) of Section 24 of the Rent Act clothes the High Court with the revisional jurisdiction, for the purpose of satisfying itself as to the legality or propriety of such order or proceedings. Sub- section (5) to Section 24 may be reproduced as under: "The High Court may, at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit". 11. The plain reading of sub-section(5) of Section 24 shows that the High Court under its revisional jurisdiction is not only entitled to satisfy itself about the legality of me impugned order of the Appellate Authority but also its propriety. The contention of Mr. Ajay Kumar is that the learned Appellate Authority has mis-read the evidence. It has relied upon document Ext.PX observing that the document was relied upon by the landlord himself who is factually incorrect as the document Ext.PA was introduced in evidence in the examination-in-chief of the respondent. This has resulted in mis- carriage of justice. Mr. Ajay Kumar refers to Miss Mohani Suraj Bhah v. Vinod Kumar Mittal, 1986(1) SCC 687 and submits that the powers of the High Court under Section 24(5) of the Rent Act are wide and not confined merely to examine the order of the appellate authority. In fact, submits the learned counsel for the landlord, that the revisional powers under the Rent Act are wider in scope as compared to the revisional powers of the High Court under Section 115 of the Code of Civil Procedure. True it is, the scope of the revisional powers of the High Court under Section 15(5) of the East Punjab Urban Rent Urban Rent Restriction Act, 1949 came to be interpreted in Miss Mohinis case (supra). It is not disputed that the provisions of Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 are in Para material with the provisions of Section 24 (5) of the Rent Act. In Mohanis case (supra), it was found that while appreciating the material on record, the appellate authority and the High Court fell into an error, which vitiated its conclusion. In Mohanis case (supra), it was found that while appreciating the material on record, the appellate authority and the High Court fell into an error, which vitiated its conclusion. It is in this context that Their Lordships observed: "It cannot be disputed that the powers of the High Court under Section 15(5) of the Act are wide and not confined merely to examining the legality of the appellate authoritys order nor are those powers akin to the revisional powers of the High Court under Section 115 of the CPC." 12. Thus, the powers of this court under Section 24(5) of the Act are wider in a multitude. The High Court can interfere, after re- appraising the evidence, if the conclusions arrived at by the appellate authority are based on mis-reading of evidence or otherwise not based on material on record. 13. Now the question which arises for consideration is whether the tenant was in arrears of rent and, therefore, liable to be evicted under Section 14(2) of the Rent Act. 14. Sub-Section (l) of Section 14 of the Rent Act prohibits eviction of a tenant in accordance with the provisions of the Rent Act. Sub-Section (2) of Section 14 details the ground on which a tenant can be evicted. Clause (i) to this sub-section deals with the eviction of the tenant on the ground of non-payment of rent, of the tenanted premises, due to the landlord. Sections 14(1) and 14(2) may be reproduced for convenience: "14(1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. (2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied. (2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied. i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 percent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of 6 per cent per annum; Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non-payment of rent due from him, shall not be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order; or ii) that the tenant has after the commencement of this act without the written consent of the landlord-(a) transferred his rights under the lease or sublet the entire building or rented land or any portion thereof, or b) used the building or rented land for a purpose other than that for which it was leased; or iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or (iv) that the tenant has been guilty of such acts and conduct as are nuisance to the occupiers of buildings in the neighbourhood; or (v) that the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause; the Controller may make an order directed the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejected the application: Provided that the controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate." 15. A bare perusal of Section (14 (2)(i) of the Act shows that a landlord can seek eviction of the tenant if the tenant fails to pay or tender the "rent due " from him in respect of the tenanted premises within 15 days when it becomes due, in terms of the agreement of tenancy and in the absence of any such agreement by the last day of the month next following that for which the rent is payable. 16. According to the tenant, no rent is due to the landlord inasmuch as the tenant has paid the rent to Smt. Shanti Devi upto December, 1994 as per the agreement Ext. PX. 16. According to the tenant, no rent is due to the landlord inasmuch as the tenant has paid the rent to Smt. Shanti Devi upto December, 1994 as per the agreement Ext. PX. 17. The learned Appellate Authority misread the evidence in appreciating the agreement Ext.PX. The appellate Authority concluded that there was an agreement (Ext.PX) between the landlord and the previous owner Smt. Shanti Devi and even after the sale of the building to the landlord, the tenant shall continue to pay the rent to the previous owner Smt. Shanti Devi. Therefore, there was nothing wrong in the tenant having paid the rent to said Smt. Shanti Devi even after the execution of the sale Ext. PA. The Appellate Authority in the impugned orders observed: "On the contrary the agreement Ex.PX relied upon by the landlord himself shows that the tenant was given to understand that he was to continue to pay rent to the previous owner Smt. Shanti Devi even after the transfer of the demised premises by her in favour of the landlord, because there was an agreement between Smt. Shanti Devi and the landlord for the re-conveyance of the demised premises by the latter to the former." Firstly, as pointed out by the learned counsel for the landlord, this agreement Ext. PX was not relied on by the landlord. Perusal of the statement of the tenant as RWI shows that in fact, this agreement was introduced in evidence by the tenant himself in his examination-in- chief. It is the evidence of the tenant Shri Roshan La] (RWI) that he was the witness to the agreement of sale Ext.PX between Smt. Shanti Devi and Jagbir Singh. In that agreement, both Jagbir Singh and Smt. Shanti Devi had agreed that the tenant would continue to pay rent to Jagbir Singh. It is his further evidence that he did not pay the rent to any person after January, 1995 as he had received notice from the Court. 18. It is the own evidence of the tenant as RWI that it was agreed to between Smt. Shanti Devi and the landlord Jagbir Singh that the tenant would continue to pay rent to the landlord. The learned counsel for the tenant submits that this has incorrectly been recorded. A perusal of the agreement Ext. 18. It is the own evidence of the tenant as RWI that it was agreed to between Smt. Shanti Devi and the landlord Jagbir Singh that the tenant would continue to pay rent to the landlord. The learned counsel for the tenant submits that this has incorrectly been recorded. A perusal of the agreement Ext. PX would show that it was agreed that the tenant shall continue to pay rent to Smt. Shanti Devi. 19. Be that as it may. Firstly, the conclusion of the learned Appellate Authority that agreement Ext. PX was relied upon the the landlord is erroneous. The conclusion is not based on the evidence on record. As noticed earlier, this agreement was introduced by the tenant in his examination-in-chief. Secondly, the agreements Ext.PX merge into the document of sale Ext.PA which was executed by the previous owner of the premises Smt. Shanti Devi on February 1, 1993. The agreement has no significance after the execution of sale deed. 20. Section 50 of the Registration Act mandates that every document of the kinds mentioned in clauses(a), (b), (c) and (d) of Section 17, sub- section(l) and clauses(a) and (b) of Section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not. Now Section 17 relates to the document of which registration is compulsory. Sub- clause (b) of Section 17(1) makes all non-testamentary instruments including sale deed which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of rupees one hundred and upwards. Thus, sale deed Ext. PA supersedes any unregistered agreement between the parties. The sale deed Ext. PA specifically mentions that the premises are in occupation of the tenant and that after the transfer of the property by way of sale, the landlord shall hold, possess and utilise the said property without any interruption by the seller or any other person claiming through or under her. There is no agreement or convenient in the sale deed that the rent shall continue to be received even after the transfer of the property to the landlord by the original owner Smt. Shanti Devi. 21. Mr. There is no agreement or convenient in the sale deed that the rent shall continue to be received even after the transfer of the property to the landlord by the original owner Smt. Shanti Devi. 21. Mr. Ajay Kumar, learned counsel for the petitioner-landlord submits that the landlord is entitled to the rents and profits of the premises from the date when he purchased this property. A combined reading of clause(a) to sub-section (4) and clause(a) to sub-section (6) of Section 55 of the Transfer of Property Act shows that from the date of completion of the sale, the purchaser is entitled to all the benefits including rent from the tenants. These are equitable clauses and therefore clause(s) to sub-section 4 of Section 55 declares that right to receive rents profits shall continue to remain with the seller until the ownership of the property passes to the buyer. Similarly, the purchaser is entitled to rents and profits only from the date of completion of the sale of property under clause (a) to sub-section (6) of Section 55. However, Section 50 of the Transfer of Property Act protects a tenant who pays any rent, without notice to the vendor. Section 50 may be reproduced for convenience: "No person shall be chargeable with any rents or profits of any immovable property, which he has, in good faith, paid or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery was made had no right to receive such rents or profits." 22. A bare perusal of Section 50 shows that a tenant is protected from paying rent twice provided he had paid the rent in good faith and without notice of the right of the transferee to receive rent, 23. It is the case of the tenant that he was not aware of the transfer of property by original owner Smt. Shanti Devi in favour of the landlord and that he came to know about this transfer only in January, 1995 and having come to know about the transfer has not paid the rent to the original owner. 24. It is admitted position that the landlord did not serve any notice on the tenant about he having the property or his right to receive the rent from the tenant. 24. It is admitted position that the landlord did not serve any notice on the tenant about he having the property or his right to receive the rent from the tenant. The case of the landlord is that he orally informed the tenant about the fact of having purchased the premises. The landlord admits in his cross-examination "the house was purchased by me in February, 1993. I did not issue any written notice to respondent Ram Lai about the purchase of this house. I orally informed him about this." In the absence of written notice, it is not possible to hold that the tenant had a notice about the transfer of the premises by original owner to the landlord and, therefore, any payment made by the tenant to the previous owner would be protected under Section 50 of the Act. 25. This apart, Section 109 of the Act provides that transferee is not entitled to the arrears of rent due before the transfer and if the lessee, not having reasons to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent again to the transferee. Proviso to Section 109 stipulates: (a) The transferee is not, in the absence of the contract to the contrary, entitled to arrears of rent due before the transfer and (b) If the lessee, without notice of such transfer, pays rent to the original owner, then the lessee is not liable to pay such rent over again to the transferee. 26. The conclusion from the record of this case is that the tenant having paid the rent to the original owner is not liable to pay the rent to transferee landlord for the period he paid the rent to the original owner without notice. The rent petition was filed on September 8, 1994. It is the case of the tenant that he came to know about the purchase of the premises by the landlord from the notice received by him from the Court. It is the evidence of the tenant (RWI) that he did not pay rent to any person after January, 1995 as he had "received notice from the landlord through Court". -The landlord in the circumstances is not entitled to recover the rent from the tenant upto January, 1995. The petition was filed on September 8, 1994. It is the evidence of the tenant (RWI) that he did not pay rent to any person after January, 1995 as he had "received notice from the landlord through Court". -The landlord in the circumstances is not entitled to recover the rent from the tenant upto January, 1995. The petition was filed on September 8, 1994. At that time, no rent was due to the landlord from the tenant. 27. Faced with the situation, Mr. Ajay Kumar learned counsel for the landlord contents that this petition was decided by the learned Rent Controller on October 23, 1997 and, therefore, the tenant is in arrears of rent from at least February, 1995 till October, 1997 when the orders were made by the learned Rent Controller. 28. As noticed earlier, a landlord is entitled to seek eviction of the tenant if the tenant has failed to pay or tender the rent due from him in respect of the premises on rent with him. The word due has variety of meaning depending on the context in which it is used. It has generally been defined to be that which is owed: that which custom, stature or law required to be paid. In the shorter Oxford Dictionary Third Education the word due, as an adjective is stated to mean (i).....(ii) that which is due to anyone legally or morally; (iii) that which is due by anyone legally or morally; (iv)..... Expression due as defined in Webster Dictionary means "that which is owned; that which custom, statute or law required to be paid and that which anyone has right to demand, claim or possess." There is no scope of dispute that rent of the premises from February, 1995 onwards is legally and morally due from the tenant to landlord 29. Mr. Naresh Sood, learned counsel for the tenant contends that "rent due" would mean the rent which was due on the date of filing of the petition under Section 14 of the Act, whereas, the expression "amount due" would include the rent which was due at the time of filing of the eviction petition and the rent which may became due pendent lite. Therefore, argues, Mr.Naresh Sood, if no rent was due to the landlord at the time of filing of the petition, the tenant cannot suffer eviction for the rent which became due pendente lite. Therefore, argues, Mr.Naresh Sood, if no rent was due to the landlord at the time of filing of the petition, the tenant cannot suffer eviction for the rent which became due pendente lite. I am afraid, the argument is fallacious and cannot be accepted. Clause (i) to subsection) of Section 14 of the Act contemplates the eviction ef the tenant on the ground that the tenant has not paid or tendered the "rent due" from him. The first provide to this sub-section protects tenant from eviction if the tenant on the first hearing of the application for his eviction tenders the arrears of rent and interest at the rate of 9% per annum on such arrears together with the cost of the application as assessed by the Controller- The third proviso saves tenant from eviction if he pays "amount due" within a period of 30 days from the order of eviction. Third proviso, does not speak about the payment of the statutory interest at the rate of 9% per annum and the costs of the application as contemplated under the first proviso. It is manifest that the "amount due" includes the rent due, statutory interest at the rate of 9% per annum on the rent due and the cost of the application as assessed by the Controller. 30. In Madan Mohan and another v. Krishna Kumar Sood, 1993(1) RCJ 170, the Apex Court interpreting the provisions of Section 14(2) observed: ..."The third proviso to clause (i) of sub-section (2) of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant. The "amount due" occurring in the third proviso in the context will mean the amount due on and upto the date of order of eviction. It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction hut also include the rent which accumulated during the pendency of eviction petition as well. If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the "amount due" will be only arrears which have not been paid. The landlord as per the scheme of the Section cannot be worse of vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing. The landlord as per the scheme of the Section cannot be worse of vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing. If the interpretation given by the High Court is accepted the result would be that the tenant v/ill be better off by avoiding to pay the arrears of rent with interest and costs on the first date of hearing and prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejctment to avoid eviction. This could not be the intention of the legislature." (Emphasis supplied.) Thus, the expression "rent due" and "amount due" for the purpose of Section 14(2) of the Act would mean the "rent" and "amount due" rill the date of order and not merely on the date of filing of the petition under Section 14(2) of the Act. 31. In paragraph 17 of the judgment, Their Lordships observed: "Surely the legislature which made the Act would not have envisaged that after the parties finish of one round of litigation, the party should be relegated to another round of litigation for recovery of rent which accrued pendente lite. Whatever protection Rent Acts give they do not give blanket protection for "non payment of rent". This basic minimum has to be compiled with by the tenants. Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent." (Emphasis supplied.) 32. In the facts of this case, as discussed earlier, the tenant may be absolved of his liability to pay the rent for the period he had no notice of the transfer of the premises by the original owner to the landlord, e.g., from February 1, 1993 till January, 1995 when tenant, according to his own admission, became aware of such transfer. However, the tenant cannot escape the liability to pay the rent to landlord from February, 1995 onwards. As observed by Their Lordships in Madan Mohans case supra, the Rent Act does not contemplate that if one takes the house on rent, he can continue to enjoy the same without payment of rent. However, the tenant cannot escape the liability to pay the rent to landlord from February, 1995 onwards. As observed by Their Lordships in Madan Mohans case supra, the Rent Act does not contemplate that if one takes the house on rent, he can continue to enjoy the same without payment of rent. The tenant, in the facts of this case, is in arrears of rent from February, 1995 onwards and is liable to suffer eviction for non-payment of rent under section 14(2)(i) of the Act. 33. In result, the appeal is accepted. The impugned order of the Appellate Authority dated March 2, 1998 is set-aside. The tenant shall put the landlord in vacant possession of the premises. However, if the tenant pays arrears of rent w.e.f. February 1,1995 to the date of this judgment at the rate of rupees 300/-per month and the municipal corporations taxes at the rate of 8% on monthly rent together with interest at the rate of 9% per annum on such arrears and the cost of the petition assessed at rupees 3000/- within 30 days from today, to the landlord, he shall not be evicted from the premises. 34. In view of the orders passed in the revision petition, no orders are required to be passed in C.M.P.No. 171 of 1999.