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Himachal Pradesh High Court · body

2002 DIGILAW 252 (HP)

H. S. GOOLERY v. ASHOK KUMAR SONI

2002-09-05

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The present revision petition has been directed against the order dated 14.8.2000 of the learned Rent Controller passed in Execution proceedings allowing the objections of the respondent and dismissing the execution petition preferred by the petitioners for the enforcement of the ejectment order dated 18.3.1982 passed in Rent Case No. 172/2 of 1976. 2. The petitioners are the landlords while the respondent is the tenant. The landlords filed a petition under Section 14 of the H.P. Urban Rent Control Act, 1971, being Rent Case No. 172/2 of 1976 for the ejectment of the tenant on 5.8.1974 before the learned Rent Controller (2), Shimla on the following two grounds:— (i) non-payment of rent for the period 1.3.1973 to 315.1974; and (ii) the tenant has committed such acts so as to materially impairing the value or utility of the tenanted premises. 3. The learned Rent Controller on 18.3.1982 allowed the petition and ordered the ejectment of the tenant from the tenanted premises on both the grounds. The tenant was found to be in arrears of rent for the period as claimed by the landlords. The tenant was also held to have committed such acts so as to impair materially the value and utility of the building. 4. The tenant in pursuance of the order dated 18.3.1982 deposited the arrears of rent along with costs and interest. A total sum of Rs. 7,000 was deposited by the tenant on 16.4.1982, that is, within the stipulated period prescribed under the law. Such amount was received and withdrawn from the court by the landlords on 26.6.1982 without any objection and protest. 5. The tenant preferred an appeal, against the order dated 18.3.1982 of the learned Rent Controller, before the learned Appellate Authority assailing the findings of the learned Rent Controller on both the grounds of ejectment. The appeal was partly allowed by the learned Appellate Authority on 8.6.1987. The learned Appellate Authority set aside the findings of the learned Rent Controller holding the tenant to be guilty of having committed such acts so as to materially impair the value and utility of the tenanted premises. The ejectment order on the ground of non payment of rent was, however, upheld and the tenant was held to be in arrears of rent for the period claimed by the landlords. 6. The ejectment order on the ground of non payment of rent was, however, upheld and the tenant was held to be in arrears of rent for the period claimed by the landlords. 6. Still aggrieved, the tenant came up before this court by way of a revision petition, being Civil Revision No. 217 of 1987. Such revision petition was dismissed on 3.1.1996 as having been withdrawn with liberty to the tenant to agitate the questions/points raised in the execution proceedings. 7. The landlords then on 22.5.1996 filed an execution petition for enforcement of the ejectment order dated 18.3.1982. It was averred that since the whole of the arrears of rent for the period 1.3.1973 till the date of passing of ejectment order dated 18.3.1982, in terms of the ratio laid down by the Apex Court in Madan Mohan and another v. Krishan Kumar Sood, 1994 Suppl. (1) SCC 437, had not been deposited/paid by the tenant within the stipulated period of 30 days from the date of the ejectment order, the tenant was liable to be evicted in execution of the ejectment order dated 18.3.1982. 8. Objections were preferred by the tenant. It was pleaded that since the entire arrears of rent along with interest and cost as claimed by the landlords for the period 1.3.1973 to 31.5.1974 stood paid/deposited within the stipulated period, the tenant was not liable to be evicted in pursuance of the order dated 18.3.1982. 9. It may be stated that admittedly the rent for the period beyond 31.5.1974 has been received by the landlords in the subsequent successive ejectment proceedings preferred by them against the tenant on the around of non-payment of rent. 10. The learned Rent Controller vide the impugned order dated 14.8.2000 came to the conclusion that the arrears of rent as claimed by the petitioners for the period in question, that is, 1.3.1973 to 31.5.1974 (fifteen months) along with interest and costs stood paid by the tenant within the prescribed period and as such the tenant was not liable to be evicted in pursuance of the ejectment order dated 18.3.1982. 11. There is no denying, that arrears of rent only for the period in question, that is, 1.3.1973 to 31.5.1974 were paid/deposited by the tenant along with costs, taxes and interest on 16.4.1982 in pursuance of the order dated 18.3.1982. 11. There is no denying, that arrears of rent only for the period in question, that is, 1.3.1973 to 31.5.1974 were paid/deposited by the tenant along with costs, taxes and interest on 16.4.1982 in pursuance of the order dated 18.3.1982. Arrears for the period 1.6.1974 to the date of the order were not deposited. 12. In Madan Mohans case (supra), the landlord therein had filed a petition for ejectment of the tenant, inter-alia, on the ground of non- payment of rent for the period March, 1980 to February, 1983. An order of ejectment on such ground was passed by the Rent Controller on 29.7.1986. In the execution proceedings for the enforcement of the order dated 29.7.1986, it was the case of the tenant that he had paid the rent ae per the directions of the Rent Controller. On the other hand, according to the landlord, there was a shortfall in the payment of rent. An issue was, therefore, framed by the Rent Controller as to whether there was shortfall in the payment of rent by the tenant. The Rent Controller answered the issue in the affirmative. However, after holding that there has been shortfall in the payment of rent by the tenant, the Rent Controller allowed 15 days time to the tenant to pay/deposit the amount. Aggrieved by such order of the Rent Controller, the landlord filed a revision petition before this court. It was contended that the Rent Controller had no power and jurisdiction to extend time for making good the deficiency and shortfall in the payment of rent. A learned Single Judge of this Court dismissed the revision petition. Interpreting the words "amount due" appearing in the third proviso to Section 14(2) of the H.P. Urban Rent Control Act, 1971, it was held that the said expression applied only to arrears of rent and not to interest and costs. Aggrieved by the order dismissing his revision petition, the landlord went up in appeal before the Apex Court. 13. Interpreting the provisions of Section 14 (2) of the H.P. Urban Rent Control Act, the Apex Court held that an error was committed by this court in interpreting the words/expression "amount due" as only arrears of rent and not interest and costs. It was held that the said expression included arrears of rent as also interest and costs. 13. Interpreting the provisions of Section 14 (2) of the H.P. Urban Rent Control Act, the Apex Court held that an error was committed by this court in interpreting the words/expression "amount due" as only arrears of rent and not interest and costs. It was held that the said expression included arrears of rent as also interest and costs. It was further ruled that since payment by the tenant was not made as per orders of the Rent Controller within the stipulated period of 30 days, there was shortfall and the tenant was liable to be evicted and it was obligatory for the Executing Court to issue warrant of possession. 14. The Apex Court, interpreting the provisions contained in Section 14(2), H.P. Urban Rent Control Act, observed:— "It will be noticed that there is no provision in the Act for giving powers to the Controller to direct payment or deposit of "pendente lite" rent for each month during the pendency of the petition for eviction of the tenant. First proviso to sub-section (2) of Section 14 shows that in order to show payment or valid tender as contemplated by clause (i) of sub-section (2) of Section 14 by a tenant in default, has to pay on the first date of hearing the arrears of rent along with interest and costs of the application which are to be assessed by the Controller. Surely where a tenant does not avail of the first opportunity and contests the eviction petition on the ground of non-payment of arrears of rent and fails to show that he was not in default and Court finds that the ground has been made out, an order of eviction has to follow. Therefore, it does not stand to reason that such a tenant who contests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment. 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 up to the date of the order of eviction. 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 up to the date of the 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 but also include the rent which accumulated during the pendency of eviction petition as well. If the tenant has been paying the rent during ihe 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 off 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 will 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 ejectment to avoid eviction. This could not be the intention of the legislature." 15. The Apex Court further considering the provisions of the Section went on to observe that the words "may make an order" must be read as "shall make an order", otherwise the provisions might violate Article 14, Constitution of India. It was also held that once the Rent Controller passed a composite order of eviction and payment of rent, it had to be complied with. Such an order might be right or wrong, it could not be said to be without jurisdiction. Such order was not a nullity and the Executing Court could not ignore it and once it was established that there was non-compliance with the order, consequence must follow. 16. Such an order might be right or wrong, it could not be said to be without jurisdiction. Such order was not a nullity and the Executing Court could not ignore it and once it was established that there was non-compliance with the order, consequence must follow. 16. The Apex Court further mandated in the form of advice as under: "In such cases it will be advisable if the Controller while passing the order of eviction on the ground specified in clause (i) of subsection (2) of Section 14 of the Act specifies the "amount due" till the date of order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due. Surely the Rent Control Acts, no doubt, are measures to protect tenants from eviction except on certain specified grounds if found established. Once the grounds are made out and subject to any further condition which may be provided in the Act, the tenants would suffer ejectment. Again the protection given in the Acts is not to give licence for continuous litigation and bad blood." 17. In the present case, the Rent Controller while deciding issue No. 2 in favour of the landlords come to the conclusion that the tenant had fallen in arrears of rent, taxes etc. as claimed by the landlords in their petition, that is, for the period 1.3.1973 to 31.5.1974, and that the tenant was liable to be ejected on such ground. Finally, while passing an ejectment order on the ground of non- payment of rent, the Rent Controller had neither specified the "amount due" nor called upon the tenant to pay/ deposit such amount due within the stipulated period of thirty days in terms of third proviso to Section 14(2), H.P. Urban Rent Control Act. Even in the absence of the direction by the Rent Controller, the tenant had deposited the amount, which according to him was due to that time on 16.4.1982, within the stipulated period of thirty days. 18. It has been held by this Court in Shrimati Asha Gupta v. Shri Yas Paul, 2000 (3) Shim. L.C. 183, the Court may also bear in mind a well known principle that no litigant should suffer for the fault of the Court, which principle is reflected in the well known maxim ACTUS CURIE NEMINEUM GRAVABIT. 19. 18. It has been held by this Court in Shrimati Asha Gupta v. Shri Yas Paul, 2000 (3) Shim. L.C. 183, the Court may also bear in mind a well known principle that no litigant should suffer for the fault of the Court, which principle is reflected in the well known maxim ACTUS CURIE NEMINEUM GRAVABIT. 19. Therefore, once the tenant has been held to be in arrears of rent for the period 1.3.1973 to 31.5.1974 and in the absence of the amount due having been specified by the Rent Controller, once the tenant had deposited the amount held to be in arrears, such tenant cannot be subsequently told that the order of the Rent Controller was not correct and that he was liable to pay the entire amount due and since there was default on his part in making the payment as required by the third proviso to Section 14 (2) of the Act, he must vacate the tenanted premises. 20. There is yet another aspect of the case. It is the admitted case of the landlords that after the passing of the order dated 18.3.1982 ordering eviction of the tenant on the around of non-payment of rent, the landlords had subsequently filed a number of eviction petitions against the tenant on the ground of non-payment of rent for the period after 31.5.1974. In all such petitions rent for such period after 31.5.1974 have been paid by the tenant and received by the landlords. One of such petition being Rent Case No. 31/2 of 1984 decided on 1.4.1987 wherein arrears ot rent up to the period 30.4.1987 along with interest and costs were deposited on 28.4,1987. Therefore, the cause, if any, which may have been available to the landlords after the passing of the ejectment order dated 18.3.1982 does not survive. 21. In coming to the above conclusion, I am supported by the decision of the Apex Court dated 26.11.1997 in Civil Appeal No. 657 of 1997 (Arun Kumar v. Faquir Chand). For the foregoing reasons, there is no merit in the present revision petition. The same is accordingly dismissed with costs quantified at Rs. 2,200/-. Revision dismissed.