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2017 DIGILAW 1069 (HP)

B. K. Sons (deceased) through LRs. v. Babu Lal

2017-09-15

SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. On 25.7.2003, Babu Lal respondent (hereinafter referred to as ‘landlord’) filed a petition for ejectment against petitioner M/s B.K. and sons (hereinafter referred to as ‘tenant’) on the ground of non-payment of rent w.e.f. 1.3.2003. 2. Significantly, in the response, tenant admitted (a) factum of tenancy (b) amount of rent to be Rs.1650/- per month. Also, it stood averred that rent for the month of March, 2003 was adjusted against necessary repairs/white wash/painting carried out for the maintenance of the shop. Rent for the months of April, May and June, 2003, though tendered, was refused, hence sent by way of money order, which also was not accepted by the landlord. Resultantly, an amount of Rs.9900/- was deposited as rent for the period April, 2003 to September 2003, with the Rent Controller, Shimla. 3. On the basis of pleadings of the parties, Rent Controller framed the following issues: (i) Whether the respondent/tenant is in arrears of rent of the demised premises from 1.3.2003 at the rate of 1650/- P.M. till date as alleged? ….OPP (ii) Whether the petition is not maintainable as alleged? …..OPR. (iii) Whether there is no cause of action in favour of the petitioner as alleged? …OPR (iv) Relief. 4. To prove the same, landlord examined himself as PW1 and tenant examined Brij Gopal as RW1. Significantly, none of the parties led any documentary evidence. 5. Based on the ocular evidence of the two witnesses, Rent Controller, vide order dated 17.8.2005, passed in case No. 28/2 of 2003, titled Sh. Babu Lal versus M/s B.K. and sons, by answering the issues in favour of the landlord, passed an order of ejectment holding the tenant to be in arrears of rent w.e.f. 1.3.2003 till 1.8.2005, for a period of 28 months and thus, quantified the arrears due and payable to be a sum of Rs.46200/-. Additionally, landlord was held entitled to interest @9% per annum thereupon and cost of Rs.1000/-. 6. It is a settled principle of law that to avoid execution of such an order of eviction, tenant is statutorily protected if he were to deposit the amount due so quantified by the Rent Controller, within a period of 30 days from the date of passing of the order. (3rd proviso to clause (i) of sub-Section 2 of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987, for short “the Act”). (3rd proviso to clause (i) of sub-Section 2 of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987, for short “the Act”). 7. It is not in dispute that subsequent to the passing of order of ejectment by the Rent Controller, on 15.9.2005 tenant deposited an amount of Rs.43000/- in the Treasury. Though there is nothing on record to establish that prior to such deposit, the amount was actually tendered to the landlord and/or, acceptance thereof refused by him. It may only be clarified that deposit of the amount in the Treasury was with the permission of the Rent Controller. 8. It cannot be disputed that the amount so deposited was not in terms of the direction contained in the order passed by the Rent Controller. Thus making the order to be executable and the tenant not entitled to the statutory protection contained in the proviso. 9. However, independently aggrieved of the findings returned by the Rent Controller, in the petition for ejectment filed by the landlord, tenant also preferred an appeal under Section 24 of the Act. 10. Record reveals that delay in filing the appeal was condoned and during the pendency of the appeal, tenant filed an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, seeking permission to place on record documents relating to certain proceedings and other documents, indicating legal tender of rent due and admissible to the landlord. These documents pertain to the period both prior to the filing of the petition for ejectment and subsequent to its decision. 11. Such an appeal stands dismissed by the Appellate Authority, in terms of judgment/order dated 14.1.2008, passed in Rent Appeal No. 21-S/14 of 2007/06 titled as M/s B.K. & Sons versus Sh. Babu Lal. Findings on merit, qua non-payment of rent stand affirmed. 12. Noticeably, the Rent Controller finding such application to have been filed only with the purpose of delaying the proceedings and necessary ingredients so required for allowing the application to be missing, rejected the same. 13. Babu Lal. Findings on merit, qua non-payment of rent stand affirmed. 12. Noticeably, the Rent Controller finding such application to have been filed only with the purpose of delaying the proceedings and necessary ingredients so required for allowing the application to be missing, rejected the same. 13. Having heard learned counsel for the parties as also perused the record, so made available, this Court is of the considered view that even if application is considered to have been allowed and the documents allowed to be adduced in evidence, even then the tenant cannot be held entitled to the benefit of statutory protection, thus, saving his ejectment from the tenanted premises. 14. However, it is clarified that if the documents filed alongwith the application for additional evidence are ignored, tenant has not established (a) the amount of rent tendered by him to the landlord (b) deposit of any amount of rent with the Rent Controller (c) receipt of any rent by the landlord through money order (d) any amount spent for carrying out the repairs of the tenanted premises. The findings are thus borne out from the record. 15. Independent of such findings and view, this Court proceeds to otherwise examine the findings by accepting the documents to be admissible in evidence. 16. In so far as merits are concerned, one only finds the tenant to have taken a contradictory stand. The receipt dated 11.3.2003 of money order reveals that the landlord did receive a sum of Rs.1650/-. But then this document does not indicate as to for what purpose the amount was received. Assuming it to be the amount of rent, still it cannot be inferred that it pertained to the month of March 2003, as is so urged now. In fact, the stand taken is mutually contradictory. In the written statement, it is the specific plea of the tenant that rent for the month of March 2003, was adjusted against the repairs carried out in the tenanted premises of which there is no proof, thus the plea is false. 17. Still further, it is argued that the tenant had filed an application under Section 21 of the Act for deposit of the rent, in which an amount of Rs.11550/- stood deposited on 21.11.2003. Let us examine what is the effect thereof. Such application for deposit of rent was filed on 14.10.2003. 17. Still further, it is argued that the tenant had filed an application under Section 21 of the Act for deposit of the rent, in which an amount of Rs.11550/- stood deposited on 21.11.2003. Let us examine what is the effect thereof. Such application for deposit of rent was filed on 14.10.2003. The application was incomplete, not accompanied with the requisite request for deposit of the amount in the Court, as is so required under Section 21 of the Act. Realizing that the application is defective and perhaps liable to be rejected, on 12.11.2003, tenant moved a separate application seeking permission to deposit the said amount of Rs.11550/-, which was so done very same day. 18. Significantly, this amount of Rs.11550/-, as per the tenant’s own admission was for the period from May, 2003 to November, 2003, whereas petition for ejectment was allowed for non-payment of rent w.e.f. 1.3.2003. 19. Also what is crucial for determination of the instant case is that in the said application, there is no finding of the Rent Controller that the landlord had refused to accept the amount, prompting the tenant to move such an application and deposit the same in the Court. The fate of the application filed by the tenant, resulted into dismissal in default for want of prosecution. Thus, there is no finding of any authority of a valid tender or refusal to accept the rent so quantified by the Rent Controller in the order of eviction. 20. There is yet another document. It is a money order sent by the tenant to the landlord. Even this document would not make any difference. It does not specify the purpose or period of rent, if any. 21. The language of Section 14 of the Act is clear. Tenant is liable to be evicted “if he has not paid or tendered the rent due from him”. Now what is the meaning of expression “tender” is no longer res integra. It stands settled by this Court in case titled Hans Raj Khimta versus Smt. Kanwaljeet Kaur alias Sardarni Babli reported in Latest HLJ 2016 (1) HP 303. 22. Section 20 of the Act enables the tenant to deposit the rent with the Rent Controller but then, this must precede tender of the amount due to the landlord, and his refusal to accept the same. 23. 22. Section 20 of the Act enables the tenant to deposit the rent with the Rent Controller but then, this must precede tender of the amount due to the landlord, and his refusal to accept the same. 23. In Hans Raj case (supra), this Court, after considering judicial pronouncements rendered by various Courts, including the apex Court, has held the amount due to include the component of rent, interest and cost. 24. In the instant case, there is nothing on record to establish that the amount of Rs.11550/- so deposited by the tenant with the Rent Controller was (a) towards complete amount so determined by the Rent Controller to be due and payable as arrears of rent (b) deposited pursuant to the same having been tendered to and refused by the landlord (c) In any case such deposit was within 30 days of the passing of he order. Hence it is not a legal tender of rent entitling the tenant for statutory protection against an order of eviction. 25. Thus, for all the aforesaid reasons, in the instant case, it cannot be said that findings returned by the authorities below, holding the tenant to be in arrears of rent are perverse, illegal or erroneous. As such, present petition, devoid of merit, is dismissed. 26. Pending applications, if any, also stand disposed of.