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Himachal Pradesh High Court · body

2005 DIGILAW 286 (HP)

WAZIR CHAND v. AMBAKA RANI

2005-08-11

A.K.GOEL, K.C.SOOD, V.K.GUPTA

body2005
JUDGMENT V.K. Gupta, C.J.—Because of an incongruous situation having arisen, owing to an apparent conflict between an earlier Division Bench judgment of this Court and a subsequent judgment by the Supreme Court, this Reference, to resolve the incongruity, has been referred to this Full Bench. The Division Bench judgment of this Court was in the case of Om Parkash v. Sarla Kumari and others, reported in 1991(1) Sim. LC 45, and the subsequent Supreme Court judgment was in the case oiMadan Mohan and another v. Krishan Kumar Sood, reported in 1994 Supp (1) SCC 437. 2. What exactly is the point of controversy involved in this case? The point of controversy involved for adjudication before us is directly relatable to two provisos forming part of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (1987 Act, for short). These are: the first proviso and the third proviso to Clause (i) of sub-section (2) of Section 14 of 1987 Act (hereafter these two provisos are to be referred to as the "first proviso" and the "third proviso", as the context may require). The relevant extract of Section 14 of 1987 Act, as would be applicable to our case is reproduced hereunder which reads thus:— "14.(1) A tenant in possession of a building or rented land shall not be evicted therefrom 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 tenants shall apply to the Controller for a direction in that behalf. (2) A landlord who seeks to evict his tenants 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 per cent per annum on such arreas 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” 3. The first proviso stipulates that if on the first hearing of the application for ejectment the tenant pays or tenders the arrears of rent as well as interest at the rate of 9% per annum on such arrears and also pays the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid the rent within the time mentioned in Clause (i) of sub-section (2). The relatability of the fact situation forming the subject-matter of the first proviso is to the first hearing of the application for ejectment. The relatability of the fact situation forming the subject-matter of the first proviso is to the first hearing of the application for ejectment. In other words, whenever an application for ejectment is filed before a Rent Controller on the ground that the tenant has not paid or tendered the rent due from him either within 15 days after the expiry of the time fixed in the agreement of tenancy, or by the last day of the month next following that for which the rent was payable, if there was no agreement of tenancy between the tenant and the landlord, and such an application comes up before the Rent Controller on the first hearing date, if on such first hearing date the tenant pays or tenders the arrears of rent alongwith interest and cost, he shall be deemed to have duly paid the rent within the time aforesaid with the consequence that the eviction proceedings against him shall stand terminated. If, however, on such an eviction application having been filed by the landlord, on the first date of hearing if the tenant does not pay or tender the arrears of rent with interest and costs, in other words does not avail of the special benefit offered to him by the first proviso, the eviction proceedings against him shall commence and if the Rent Controller at the culmination of the eviction proceedings finds and holds that the tenant was indeed in default in so far as the arrears of rent are concerned he shall make an order directing the tenant to put the landlord in possession of the building. It is at the stage of the passing of the final order of eviction on the ground of nonpayment of rent that the third proviso comes into play which stipulates that a tenant against whom the Controller has passed the eviction order on the ground of non-payment of rent due from him may still (despite the passing of the eviction order against him) not be evicted as a result of the said order if he pays the "amount due" within a period of 30 days from the date of the passing of the order. Whereas, therefore, in the first proviso the tenant can get the benefit of the eviction proceedings being terminated on the first hearing of the application upon his paying the arrears of rent, interest thereupon at the rate of 9% per annum as well as the costs of the application, under the third proviso the tenant can have the benefit of the eviction order not being put into execution if he pays within 30 days from the date of the passing of the eviction order the "amount due". 4. What then is the meaning of the expression "amount due" as it has been used in the third proviso? Does the expression "amount due" include or should it includes the arrears of rent, (and if so upto and for what period) as well as interest upon the arrears of rent and the costs of the application, or does it or should it include only the arrears of rent (for whatever period), excluding from its ambit and applicability the interest element upon the arrears of rent and the costs of the application? This precisely is the question of law which has been referred to this Full Bench for consideration and adjudication. The Division Bench judgment of this Court on this question of law in the case of Om Parkash v. Sarla Kumari and others (supra) held as under:— "13. With these observations, we answer the reference as under:— "The expression the amount due occurring in the third proviso to Section 14(2)(i) comprises only the arrears of the rent due and not the arrears of rent together with interest at the rate of 9 per cent per annum on such arrears and the cost of eviction petition as assessed by the Controller." 5. The first proviso as well as the third proviso came up for consideration and appropriate interpretation before the Supreme Court in the case of Madan Mohan and another v. Krishan Kumar Sood (supra) and their Lordships of the Supreme Court while dealing with the distinctive application of the two provisos, the first proviso dealing with the stage at the first hearing of the eviction application and the third proviso relating to a stage after the passing of the final eviction order, held that a tenant cannot be better off in a situation where he fails to avail of the opportunity granted to him in the first proviso and waits for all the long years thereafter and allows himself to suffer an eviction order and then decide to pay the arrears of rent. The following observations in para 14 of the said judgment are apposite and we quote:— "14. 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, he has to pay on the first date of hearing the arrears of rent alongwith 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 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 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 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." 6. Had the Legislature in the third proviso used the expression "arrears of rent" instead of the expression "amount due", perhaps the legislative intent could be held discernible that the Legislature intended that the tenant should only pay the arrears of rent and nothing more, nothing less. This could not be the intention of the legislature." 6. Had the Legislature in the third proviso used the expression "arrears of rent" instead of the expression "amount due", perhaps the legislative intent could be held discernible that the Legislature intended that the tenant should only pay the arrears of rent and nothing more, nothing less. Since, however, the Legislature has used the expression "amount due" in the third proviso, we should have no hesitation in holding that the Legislature clearly intended that if a tenant wished to avoid the execution of the final eviction order, he has to pay the "amount due" not merely the "arrears of rent" and as per our construction, the expression "amount due" occurring in the third proviso should include the components and the elements of the arrears of rent payable uptill the date of the passing of the eviction order as well as interest upon such arrears of rent at the rate of 9 per cent per annum and the costs of the application, as would be assessed by the Controller. In our such construction we are guided by the ratio and the observations in para 14 of the Supreme Court judgment in Madan Mohan and another v. Krishan Kumar Sood (supra) because there is no manner of doubt that the landlord as per the Scheme of Section 14 of the 1987 Act cannot be wrose 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 very first date of the hearing of the eviction application (as per first proviso). If the view taken in the Division Bench judgment of this Court in the case of Om Parkash v. Sarla Kumari and others (supra) is accepted and if the interpretation given to the expression "amount due" in that judgment is also accepted, as observed by their Lordships of the Supreme Court the result would be that a tenant would 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 eviction after contest and then, upon the passing of the order of eviction merely offer the arrears of rent as mentioned in the application for ejectment and succeed to avoid his eviction. Such surely could not have been the intention of the Legislature. 7. Such surely could not have been the intention of the Legislature. 7. The legislative intent can also be clearly discerned from the fact that in the third proviso the Legislature advisedly did not use the expression "rent due" or "arrears of rent due". Had the Legislature used either of these two expressions or any other similar expression in the third proviso, perhaps one could argue that the legislative intent was that the tenant should be held liable to pay the rent or the arrears of rent only But by using the expression "amount due" in the third proviso the Legislature clearly intended that the arrears of rent alongwith interest and costs, as has been stipulated in the first proviso, should be paid by the tenant after the eviction order is passed against him if the tenant wanted to avoid the enforcement or the execution of the eviction order. Based upon the aforesaid observations, therefore, we have no hesitation in holding that the expression "amount due" as occurring in the third proviso includes the arrears of rent uptil the date of the passing of the final eviction order, as also the interest upon such arrears of rent at the rate of 9 per cent per annum and the costs of the application as would be assessed by the Rent Controller. The Division Bench judgment of this Court in the case of Om Parkash v. Sarla Kumari and others (supra) laying down ratio to the contrary and giving contrary interpretation to the expression "amount due", not being a good law is hereby over-ruled by us. We also declare that any other judgment of this Court adopting a contrary view or giving a contrary interpretation of the expression "amount due", not being a good law, shall stand over-ruled. 8. We also declare that any other judgment of this Court adopting a contrary view or giving a contrary interpretation of the expression "amount due", not being a good law, shall stand over-ruled. 8. In Madan Mohan and another v. Krishan Kumar Sood (supra), their Lordships of the Supreme Court while interpreting third proviso and holding that the tenant is liable to pay not merely the arrears of rent which gave cause of action to file a petition for eviction, but also the rent and the arrears of rent which accumulated during the pendency of the eviction petition, in para 15 of the judgment suggested that it would be advisable if the Controller while passing the order of eviction on the ground specified in Clause (i) of sub-section (2) of Section 14 of 1987 Act also specifies the exact "amount due" till the date of the passing of the order and not leave it to the parties so that after passing of the eviction order the parties start a fresh contest, a fresh bout of litigation and raise fresh disputes about how much amount was exactly due from the tenant to the landlord. The following observations in para 15, being apposite are reproduced hereunder:— "15. 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 the 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." 9. Taking a cue from the aforesaid observations of their Lordships of the Supreme Court in Madan Mohan and another v. Krishan Kumar Sood (supra), we hereby issue a binding direction to all the Rent Controllers in the State that whenever a Rent Controller passes an eviction order in terms of Section 14(2)(i) of the 1987 Act, it must in the same eviction order, in its concluding part specify the exact amount of rent payable by the tenant to the landlord, of course, alongwith interest and costs. Undoubtedly, based on the ratio in Madan Mohan and another v. Krishan Kumar Sood (supra), the rent payable by the tenant to the landlord, which the Rent Controller would be specifying in the order of eviction would be the arrears of rent up til the filing of the eviction petition under Section 14(2)(i) as well as the arrears of rent which have accumulated during the pendency of eviction petition, right up to the date of passing of the eviction order. The purpose behind the Rent Controller specifying in the eviction order the exact amount of rent payable by the tenant is to directly link it with the third proviso so as to effectively enable the tenant to know with certainty the amount that he is liable to pay to save his eviction. 10. There can be situations and circumstances where a tenant may have a grievance that even though the Rent Controller in the final eviction order has specified the amount of rent payable by the tenant to the landlord, yet while doing so the Rent Controller did not take into account any amount paid by the tenant by way of arrears of rent during the pendency of the eviction petition. Disputes and controversies can arise with regard to this aspect of the matter, in as much as in certain situations and circumstances a tenant can contend and agitate that during the pendency of the petition he had been paying the rent to the landlord and despite such payments having been made by him, the Rent Controller did not reflect such payments nor took note of them, nor adjusted such payments while assessing and specifying, in the course of final eviction order the rent payable by the tenant to the landlord. To avoid the happening of any such eventuality, we wish to observe and direct that the onus to prove that the tenant had been paying any rent or arrears of rent during the pendency of the eviction petition, with a view to claim adjustment of such amount in the final analysis, would lie on the tenant alone and upon no one else. The only way in which such apprehended dispute can effectively be avoided is for the tenant to conclusively establish before the Rent Controller, before the passing of the final eviction order, that the tenant had actually paid a specified amount by way of arrears of rent during the pendency of eviction petition. A duty, therefore, would be cast, always on the tenant to establish beyond any doubt before the Rent Controller, before the passing of final eviction order, that during the pendency of the eviction petition the tenant had paid a particular amount towards the arrears of rent so that the tenant gets the amount adjusted in the final analysis. With a view to minimize and ourtail any scope for any dispute on this account we wish to observe and lay down as a binding principle of law that any prudent tenant in normal course of wisdom would like to avoid any dispute about establishing the fact of such payment being made during the pendency of the eviction petition by taking recourse to Section 21 of the 1987 Act because the endeavour of every tenant should be to establish beyond any doubt conclusively the fact of any amount of rent having been paid during the pendency of the petition. After all, when the landlord and the tenant are locked in a litigation over the fact of the tenant allegedly having committed defaults and the landlord seeking eviction of the tenant from the property in question on the ground of default, it cannot legitimately be believed that the tenant in the face of such litigation would risk payment to the landlord without his insisting on conclusive proof of such payment having been made. The Rent Controller, therefore, while taking note of any such submission of the tenant has to take into account above referred circumstances and, therefore, while passing the final eviction order and specifying the exact amount payable, has to give credit and adjustment only to such amount which the tenant claims it has paid as has been conclusively established. Any claim of the tenant which is shrounded in doubt, or which does not have the trappings of any conclusive proof, has to be rejected. 11. The Reference accordingly is answered in the aforesaid terms. Any claim of the tenant which is shrounded in doubt, or which does not have the trappings of any conclusive proof, has to be rejected. 11. The Reference accordingly is answered in the aforesaid terms. The revision petition, in the light of the aforesaid answer to the Reference shall now be listed before an appropriate Single Bench for disposal in accordance with law.