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Himachal Pradesh High Court · body

2015 DIGILAW 1668 (HP)

Harjinder Singh v. Maan Singh

2015-11-16

SURESHWAR THAKUR

body2015
JUDGMENT : Per Sureshwar Thakur, J. The petitioners/landlords herein had instituted a petition for eviction of the respondent/tenant herein from the demised premises on the ground of the tenant/respondent herein having fallen in arrears of rent from 1.6.1995 to 31.8.2001 at the rate of Rs.1200/- per mensem along with house tax, interest and increase of rent at the rate of 10%. The detailed calculations of the lump sum amount in which the respondent herein has fallen into arrears of rent stand extracted hereinafter:- i) Rent from 1.1.95 to 31.8.2001 Rs.90,000/- ii) Interest @ 9% Rs.25,312/- iii) House tax from 1995-96 to 2000-2001. Rs.9,450/- iv) 10% increase of rent from April 2000 to August 2001 i.e.17 months Rs.2,040/- v) Interest at the rate of 9% on the Increased rent from 1.4.2000 to 31.8.2001. Rs.130/- Total recoverable amount Rs.1,26,932/- 2. The learned Rent Controller on a perusal of the evidence adduced before it discerned therefrom that since the petitioners herein had discharged the onus on the apposite issues, hence it proceeded to render an order of eviction of the respondent herein from the demised premises. Nonetheless, it was mandated therein that the order of eviction shall not be executable, if the arrears of rent w.e.f. April and May 1995 at the rate of Rs.1000/- per month, at the rate of Rs.1100/- per month w.e.f. 1.6.1995 till 30.6.1998, at the rate of Rs.1210/- per month w.e.f. 1.7.1998 to 30.6.2003 and at the rate of Rs.1331/- per month w.e.f. 1.7.2003 till date along with interest at the rate of 9% and costs assessed at Rs.500/- are deposited by the respondent within a period of 30 days of the order of the learned Rent Controller. The respondent herein standing aggrieved by his being ordered to be evicted from the demised premises by the learned Rent Controller, instituted an appeal therefrom before the learned Appellate Authority under the relevant provisions of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the ‘Act’). The respondent herein standing aggrieved by his being ordered to be evicted from the demised premises by the learned Rent Controller, instituted an appeal therefrom before the learned Appellate Authority under the relevant provisions of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the ‘Act’). The petitioners herein also being aggrieved by the findings recorded by the learned Rent Controller in his impugned order qua the factum of theirs being entitled to the contemplated statutory enhancement of rent @10% under the provisions of Section 5 of the Act w.e.f. 1.6.1995, besides the petitioners herein also standing aggrieved by the order of the learned Rent Controller assessing rent @ Rs.1100/- per mensem qua the demised premises payable by the respondent herein to them contrary to their claim for rent qua it in the sum of Rs.1200/- per mensem as projected by them in the petition for eviction of the respondent herein from the demised premises constrained them to also impugn the aforesaid findings qua the quantum of rent per mensem payable qua the demised premises by the respondent herein to them, by theirs instituting an appeal therefrom before the learned Appellate Authority. Both the appeals instituted by the petitioners herein as well as by the respondent herein before the learned Appellate Authority were decided by a common judgment, whereby Civil Misc. Appeal No.2 of 2003 was partly accepted, whereas Civil Misc. Appeal No.3 of 2003 was dismissed. Concomitantly, the impugned order of the learned Rent Controller was partly set aside, inasmuch as the petitioners herein were held entitled to receive rent from the respondent herein qua the demised premises at the rate of Rs.1000/- per mensem w.e.f. 1.6.1995 and at the rate of Rs.1100/- per mensem from 1.6.2000 till 16.6.2003, the date of order of ejectment, with 9% interest as well as costs of petition as awarded by the ld. Rent Controller. The petitioners are aggrieved by the findings recorded by the learned Appellate Authority assessing rent payable to them by the respondent herein qua the demised premises @ Rs.1000/- per mensem besides stand aggrieved by the findings recorded by the learned Appellate Authority whereby benefit of 10% statutory increase has been permitted to be availed of by them from the respondent herein qua the demised premises from 1.6.2000 till 16.6.2003. Apart therefrom the petitioners herein are aggrieved by the factum of the learned Appellate Authority having declined to them the relief of theirs being statutorily entitled to recover arrears of house tax as levied qua the demised premises by the authority concerned besides leviable in future. 3. The brief facts of the case are that the petitioners herein have filed the eviction petition for eviction of the respondent herein from the shop in dispute, situate in Ward No.1 on Una-Nangal Road, near ITI, Una. The shop was let out to the respondent by Sh. Banta Ram predecessor- in-interest of the petitioners in April, 1995 at the rent of Rs.1200/- per month plus house tax as imposed by the M.C. Una. The shop in dispute was purchased by Banta Ram from its original owner Smt. Krishana wife of Ram Murti. The respondent is in arrears of rent from 1.6.1995 to 31.8.2001, besides the respondent herein is also in arrears of rent on account of 10% increase from April, 2000 to August 2001. 4. The respondent-tenant has contested the petition and averred that the shop in dispute was taken on rent by him from Smt. Krishna in the year 1988 @Rs.1000/- per month including house tax. The respondent made the payment of the rent regularly to Banta Ram till his death and thereafter to petitioner No.1 till May, 2001. The respondent refused to enhance the rent to Rs.1500/- in April, 2001 as requested by the petitioners. Thereafter, the petitioners constructed a store, latrine and bathroom on the first floor and obstructed the flow of water which was seeping through the roof of the shop in dispute. The petitioners also started flowing the water of water tap through the roof of the shop and did not change the tap and flow despite requests. The petitioners did not accept the payment of rent for the period May, 2001 onwards. 5. On the pleadings of the parties, the following issues were framed by the learned Rent Controller:- 1. Whether the respondent is in arrears of rent, if so, to what amount? OPP. 2. Relief. 6. Now the petitioners/landlords have instituted the instant Civil Revision before this Court, assailing the findings, recorded by the learned Appellate Authority in its impugned judgment. 7. On the pleadings of the parties, the following issues were framed by the learned Rent Controller:- 1. Whether the respondent is in arrears of rent, if so, to what amount? OPP. 2. Relief. 6. Now the petitioners/landlords have instituted the instant Civil Revision before this Court, assailing the findings, recorded by the learned Appellate Authority in its impugned judgment. 7. Initially the acerbic controversy inter se the parties at contest qua the entitlement of the petitioners herein from the respondent herein of rent qua the demised premises @Rs.1200/- per mensem, is to be set at rest. The learned Appellate Authority had relied upon legal notice Ext.PW.2/A served by the respondent herein through his counsel upon the petitioner No.1 herein, wherein there is a recital of the respondent herein tendering to the petitioners herein rent qua the demised premises @Rs.1000/- per mensem since April 1995 till October 1996 apposite receipts qua tendering of rent by the respondent herein to the petitioners herein stood not issued by the latter to the former. In the reply furnished by the petitioners herein to notice Ext.PW.2/A and which reply of the petitioners herein to Ext.PW-2/A stands comprised in Ext.PW.4/A, a mere recital exists therein of the respondent herein agreeing to tender to the petitioners herein rent qua the demised premises quantified @Rs.1200/- per mensem, which quantum of rent per mensem qua the demised premises stood tendered by the respondent herein to the petitioners herein only for the months of April and May, 1995, where after the respondent herein stopped tendering rent qua the demised premises at the aforesaid rate to the petitioners herein. Apart therefrom, there is a recital therein of receipts portraying the factum of tendering of rent by the respondent herein to the petitioners herein qua the demised premises for the months of April and May, 1995, @ Rs.1200/- per mensem having stood issued by the petitioners herein to the respondent herein. Apart therefrom, there is a recital therein of receipts portraying the factum of tendering of rent by the respondent herein to the petitioners herein qua the demised premises for the months of April and May, 1995, @ Rs.1200/- per mensem having stood issued by the petitioners herein to the respondent herein. However, the aforesaid recital in Ext.PW-4/A is ex facie for the reasons as assigned hereinafter false:- (a) Ext.PW.4/A pronouncing the factum of the petitioners herein not issuing receipts to the respondent herein nor also theirs accepting rent from the respondent herein qua the demised premises subsequent to May 1995, on the score of the respondent herein not tendering the orally agreed rent inter se them qua the demised premises @Rs.1200/- per month per se appearing to be contrived as well as invented/arising from the factum of (i) the petitioners abandoning to receive rent qua the demised premises from the respondent herein for the period subsequent to May, 1995, even when given the admission of the petitioners herein portrayed in Ext.PW-4/A of the tenant/respondent herein defraying to them rent qua the demised premises, previously quantified @Rs.1200/- per month, unveils an inference of theirs refusal to accept rent comprised in the sum of Rs.1200/- per mensem subsequently tendered to them by the respondent/tenant qua the demised premises, being a pure invention. In sequel, the petitioners refusing to accept rent @Rs.1200/- per mensem qua the demised premises from the respondent herein subsequent to May 1995 gives a boost to an inference of even up till May 1995, also the respondent/tenant herein defraying to the petitioners/landlords herein rent qua the demised premises quantified @1000/- per mensem especially when only on adduction at the instance of the petitioners/ landlords the apposite receipts though issued by them to the respondent/tenant herein portraying the factum of the latter previously tendering to them rent constituted in the sum of Rs.1200/- per mensem qua the demised premises, would have given sustenance to the propagation aforesaid by the petitioners herein, of the respondent herein tendering to the petitioners rent qua the demised premises quantified @ Rs.1200/- per mensem. However, the withholding by the petitioners herein of the aforesaid receipts constrains an inference of the propagation of the petitioners herein of the tenant/respondent herein defraying to them rent qua the demised premises quantified @Rs.1200/- per mensem up till May 1995 galvanizing no legal formidability, (b) there being no documentary evidence adduced on record comprised in a rent agreement executed inter se the predecessor-in interest of the petitioners/landlords or the petitioners with the tenant/respondent herein qua the demised premises obliging the latter to defray to the former rent qua the demised premises comprised in the sum of Rs.1200/- per mensem. In aftermath, it is held that the findings recorded by the learned Appellate Authority of the tenant/ respondent herein being liable to defray to the petitioners/landlords herein them rent qua the demised premises in the sum of Rs.1000/- per mensem beyond May 1995, does not suffer from any legal infirmity arising from any misappreciation of apposite evidence or its discarding relevant evidence. 8. Hereinafter, it has to be determined, whether the petitioners/landlords were entitled to the benefit of statutory enhancement of rent in the percentum contemplated in the apposite provisions constituted in the “Act”. The factum of the predecessor-in-interest of the petitioners herein having acquired title to the demised premises in the month of March, 1995 under sale deed Ext.PW.5/A, would clinch the aforesaid factum of the commencement or the initiation of the period wherefrom the benefit of statutory enhancement in rent, in the statutorily envisaged percentum is claimable by the petitioners qua the demised premises from the respondent/tenant herein. The entitlement or the statutory right vesting in the petitioners/landlords to claim the benefit of enhancement in rent qua the demised premises from the respondent/tenant occurs or arises only on theirs being invested with an absolute ownership qua the demised premises. The right statutorily bestowed upon the petitioners/ landlords to claim the benefit of statutory enhancement in rent qua the demised premises in the percentum envisaged in the “Act”, is an individual or a right in personam besides a corporeal right. Its accrual arises or occurs not from the date of induction of the respondent herein as a tenant in the demised premises, rather its benefit is accruable to the landlord besides its occurrence is co-terminus with the acquisition of title to the demised premises by the landlord. Its accrual arises or occurs not from the date of induction of the respondent herein as a tenant in the demised premises, rather its benefit is accruable to the landlord besides its occurrence is co-terminus with the acquisition of title to the demised premises by the landlord. In case the conferment of the said right upon the petitioners/landlords is construed to be co terminus with the inception or initiation of tenancy in favour of the respondent herein, especially when prior to March 1995, the predecessor-in-interest of the petitioners herein did not hold title to the demised premises nor hence the landlord was entitled to receive rent qua the demised premises from the respondent/tenant, it would tantamount to creating the germane statutory right in favour of the landlord even when he did not hold title to the demised premises, besides would concomitantly tantamount to vestment or bestowment of a right in the landlord to obtain from the tenant qua the demised premises the benefit of statutory enhancement of rent in the percentum envisaged in the apposite provisions of the Act aforesaid, for a period even when he did not hold absolute title to the demised premises also would sequel conferring the benefit of the statutory provisions qua the aforesaid facet in a non-individualistic entity inasmuch as in the demised premises, which bestowment would conflict with a right reserved in the landlord/owner alone to claim the benefit of statutory enhancement in rent qua the demised premises from the tenant in the percentum envisaged in the apposite provisions of the “Act”. Consequently, it is held that the findings of the learned Appellate Authority qua the benefit of statutory enhancement in rent from the tenant qua the demised premises though being affordable to the petitioners herein in the statutorily envisaged percentum yet its computation being reckonable on completion of the statutory period commencing from March 1995, whereto the predecessor –in – interest of the petitioners/landlords acquired absolute title to the demised premises besides his having hence become the landlord of the demised premises where onwards he was hence then entitled to receive rent qua it from the respondent/tenant, do not suffer from any infirmity. 9. A perusal of Ext.PW.3/A unfolds the factum of the authority concerned having demanded house tax in the sum of Rs.9450/- from Banta. 9. A perusal of Ext.PW.3/A unfolds the factum of the authority concerned having demanded house tax in the sum of Rs.9450/- from Banta. The underscoring of, in Ext.PW.3/A of the predecessor-in-interest of the petitioners herein being enjoined to defray to the authority concerned house tax in the sum of Rs.9450/- from 1995-96 to 2000-2001 gives leverage for clinching an inference of his while having acquired title to the demised premises under Ext.PW-5/A in March 1995, naturally his being as such for the period commencing from 1995-96 till 2000-01 liable to pay house tax to the authority concerned in the sum recited therein. The learned 1st Appellate Court had refused to afford to the petitioners herein their statutory entitlement to claim house tax from the respondent herein as stood assessed qua the demised premises by the authority concerned under Ext.PW.3/A, besides had disentitled the petitioners herein to demand house tax from the respondent herein as levied/leviable in future qua the demised premises by the authority concerned, on the score of the petitioners herein having not made a demand/claim in writing from the respondent/tenant enjoining the latter to defray to them house tax as stood levied or leviable in future qua the demised premises, by the authority concerned. The aforesaid reasoning as afforded by the learned Appellate Authority in not affording to the petitioners herein their right to demand and receive from the respondent/tenant, house tax as stood levied besides leviable in future by the authority concerned qua the demised premises, is in open and blatant conflict with an inherent right in the aforesaid regard vesting in the petitioners/landlords under Section 10 of the Act, whose provisions stand extracted hereinafter and which envisage the vesting of a statutory right in the landlords to stake a claim for house tax from the respondent/tenant as stood levied besides leviable in future qua the demised premises by the authority concerned. “10. Increase of rent on account of payment of rates etc. of local authority but rent not to be increased on account of payment of other taxes etc. “10. Increase of rent on account of payment of rates etc. of local authority but rent not to be increased on account of payment of other taxes etc. (1) Notwithstanding anything contained in any other provisions of this Act, the landlord shall be entitled to increase the rent of a building or rented land, and if after the commencement of the tenancy any fresh rate, cess or tax is levied in respect of the building or rented land by the Government or any local authority, or if there is an increase in the amount of such a rate cess or tax being levied at the commencement of tenancy: Provided that the increase in rent shall not exceed the amount of any such rate, cess or tax or the amount of the increase in such rate, cess or tax, as the case may be. (2) Notwithstanding anything contained in any law for the time being in force or in any contract, no landlord shall recover from his tenant the amount of any tax or any portion thereof in respect of any building or rented land occupied by such tenant by increase in the amount of the rent payable or otherwise, save as provided in sub section (1).” The vesting of a statutory right in the petitioners/landlords to receive from the tenant/respondent the amount of cess or local tax as stood levied or leviable in future qua the demised premises by the authority concerned, cannot stand infringement or denudation on the mere ground as untenably communicated by the learned Appellate Authority in its impugned judgment, of it being defrayable by the tenant to the landlord only when the latter makes a demand qua it in writing from the former. A statutory right is an inherent indefeasible right flowing in favour of the beneficiary under the aforesaid relevant provisions of the Act dehors its having been not claimed in writing by the latter from the person upon whom the statutory duty qua its defrayment to the person entitled to receive it, is fastened. A statutory right is an inherent indefeasible right flowing in favour of the beneficiary under the aforesaid relevant provisions of the Act dehors its having been not claimed in writing by the latter from the person upon whom the statutory duty qua its defrayment to the person entitled to receive it, is fastened. Consequently, even when prior to the demand qua the aforesaid statutory benefit having found manifestation in the rent petition, no demand was made in writing by the petitioners qua its defrayment qua the demised premises from the respondent herein, nonetheless the aforesaid omission would not either whittle or defeat the right of the petitioners herein to claim it even in the rent petition, it being a right vested by a statute in the landlords/petitioners. 5. Consequently, it is held that the findings of the learned Appellate Authority denying the aforesaid statutory benefit to the petitioners herein on the ground of theirs having proceeded to stake a claim from the respondent herein qua house tax comprised in a sum of Rs.9450/- as stood levied or leviable in future qua the demised premises by the authority concerned only in the rent petition whereas they were enjoined to also previously claim it in writing from the respondent, infracts and transgresses the mandate of Section 10 of the “Act” and is liable to reversed. 6. The result of the above discussion is that the petition is partly allowed to the extent that the findings of the learned Appellate Authority denying the statutory benefit to the landlords to stake a claim for house tax comprised in a sum of Rs.9450/- qua the demised premises from the respondent herein as stood levied or leviable in future qua it by the authority concerned infracts and transgresses the mandate of Section 10 of the ‘Act’ and is accordingly set aside. The impugned order is modified to that extent. However, the findings of the learned Appellate Authority qua the petitioners/landlords being entitled to from the respondent herein rent qua the demised premises @Rs.1000/- per mensum w.e.f. 1.6.1995 and at the rate of Rs.1100/- from 1.6.2000 till 16.6.2003 the date of order of ejectment with 9% interest is affirmed.