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Himachal Pradesh High Court · body

2017 DIGILAW 668 (HP)

Vas Dev v. Rama Rani

2017-06-14

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition the petitioner has assailed order dated 18.3.2017 passed by the Court of learned Senior Civil Judge, Court No. (1), Amb, District Una in Execution Petition titled Rama Rani vs. Vas Dev. 2. There is a very short moot issue involved in this petition. Admittedly, the eviction petition filed by landlord before learned Rent Controller was decided on 21.3.2011. Vide order so passed by learned Rent Controller the present petitioner was held to be in arrears of rent which were calculated by learned Rent Controller to be an amount of Rs. 51,570/- with interest (See Annexure-C appended with the judgment passed by learned Rent Controller). Eviction of the present petitioner was ordered on 21.3.2011 on the ground of arrears of rent with further direction that he shall not be evicted if he pays the amount of rent due towards the landlord within a period of 30 days from the date of the order. Petitioner deposited the said amount before learned Executing Court by way of FDR No. 378110 drawn upon Canara Bank on 20.4.2011. Learned Executing Court vide order dated 18.3.2017 ordered issuance of warrant of possession against him to handover the vacant possession of the premises in issue to the decree-holder on the ground that the tenant had not paid arrears of rent within 30 days as ordered by learned Rent Controller vide order dated 21.3.2011. 3. Mr. Modgil learned counsel appearing for the petitioner has vehemently argued that there is perversity in the findings so returned by learned Executing Court, as the learned Executing Court has erred in not appreciating that 30 days were to be calculated by excluding the date of pronouncement of the order passed by learned Rent Controller whereas learned Executing Court has counted the said date also as inclusive of 30 days. On the other hand Mr. Jeevan learned counsel appearing for the landlord has defended the impugned order on the ground that 30 days meant 30 days from the date of order which obviously includes the date of order. 4. In my considered view there is considerable force in the said contention of Mr. Modgil learned counsel for the petitioner. 5. On the other hand Mr. Jeevan learned counsel appearing for the landlord has defended the impugned order on the ground that 30 days meant 30 days from the date of order which obviously includes the date of order. 4. In my considered view there is considerable force in the said contention of Mr. Modgil learned counsel for the petitioner. 5. A perusal of Section 14 (2) of the Himachal Pradesh Urban Rent Control Act, 1987 demonstrates that it is provided therein that a 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. It is not mentioned therein that the date on which the pronouncement of the order was made by learned Rent Controller is to be calculated while counting 30 days. In view of the provisions of Section 8 of the Himachal Pradesh General Clauses Act, 1968 in my considered view the day on which the order is so pronounced by learned Rent Controller by no stretch of imagination can be included in the period of 30 days, so prescribed in the proviso to Section 14(2)(i) of the Act (Supra). 6. Section 8, of the Himachal Pradesh General Clauses Act, 1968, provides as under:- “8. Commencement and termination of time.- In any Himachal Pradesh Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from” and for the purpose of including the last in a series of days or any other period of time, to use the word to. 7. This Section is parameteria with Section 9 of the General Clauses Act, which reads as under:- “9. Commencement and termination of time.-(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from” and for the purpose of including the last in a series of days or any other period of time; to use the word to. (2) This section applies also to all Central Acts made after the third day of January, 1868 and to all Regulations made on or after the fourteenth day of January, 1887.” 8. Hon’ble Supreme Court of India in Tarun Prasad Chatterjee vs. Dinanath Sharma, (2000) 8 SCC 649 has held:- “12. Section 9 says that in any Central Act or regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word “from” and, for the purpose of including the last in a series of days or any period of time, to use the word to. The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word “from” is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word “to” is to be used. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless 1st January is excluded from the period of computation.” 9. Hon’ble Supreme Court of India in State of Himachal Pradesh and Another vs. Himachal Techno Engineers and Another, (2010) 12 SCC 210 has held:- “13. Section 9 of the General Clauses Act, 1897 provides that in any Central Act, when the word “from” is used to refer to commencement of time, the first of the days in the period of time shall be excluded. Therefore the period of “three months from the date on which the party making that application had received the arbitral award” shall be computed from 13.11.2007.” 10. Hon’ble Supreme Court of India in Econ Antri Limited vs. Rom Industries Limited and Another, (2014) 11 SCC 769 has held:- “24. Therefore the period of “three months from the date on which the party making that application had received the arbitral award” shall be computed from 13.11.2007.” 10. Hon’ble Supreme Court of India in Econ Antri Limited vs. Rom Industries Limited and Another, (2014) 11 SCC 769 has held:- “24. We shall now turn to Haru Das Gupta, where this Court has followed the law laid down in the above judgments. In that case, the petitioner therein was arrested and detained on 5.2.1971 by order of District Magistrate passed on that day. The order of confirmation and continuation, which has to be passed within three months from the date of detention, was passed on 5.5.1971. The question for decision was as to when the period of three months can be said to have expired. It was contended by the petitioner that the period of three months expired on the midnight of 4.5.1971 and any confirmation and continuation of detention thereafter would not be valid. This Court referred to several English decisions on the point apart from the above decisions and rejected this submission holding that the day of commencement of detention namely 5.2.1971 has to be excluded. 25. The relevant observations of this Court read as under: (Haru Dass Gupta case, SCC p. 641, para 5) “5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time 26 Page 27 limited for the doing of an act. The rule is well-established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmiths Company vs. The West Metropolitan Railway Company). This rule was followed in Cartwright vs. Maccormack where the expression “fifteen days from the date of commencement of the policy” in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren vs. Damson Bentley & Co. Ltd. a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart vs. Chadman and In Re: North, Ex-parte Wasluck). Ltd. a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart vs. Chadman and In Re: North, Ex-parte Wasluck). Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. [See Halsbury’s Laws of England, (3rd Edn.). Vol. 37, pp. 92 and 95.] There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here.” 26. We have extensively referred to Saketh. The reasoning of this Court in Saketh based on the above English decisions and decision of this Court in Haru Das Gupta which aptly lay down and explain the principle that where a particular time is given from a certain date within which an act has to be done, the day of the date is to be excluded, commends itself to us as against the reasoning of this Court in SIL Import USA where there is no reference to the said decisions. 27. It was submitted that in Saketh this Court has erroneously placed reliance on Section 12(1) and (2) of the Limitation Act, 1963. Section 12 (1) states that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. In Section 12(2) the same principle is extended to computing period of limitation for an application for leave to appeal or for revision or for review of a judgment. Our attention was drawn to Subodh S. Salaskar wherein this Court has held that the Limitation Act, 1963 is not applicable to the N.I. Act. It is true that in Subodh S. Salaskar, this Court has held that the Limitation Act, 1963 is not applicable to the N.I. Act. However even if the Limitation Act, 1963 is 28 Page 29 held not applicable to the N.I. Act, the conclusion reached in Saketh could still be reached with the aid of Section 9 of the General Clauses Act, 1897. However even if the Limitation Act, 1963 is 28 Page 29 held not applicable to the N.I. Act, the conclusion reached in Saketh could still be reached with the aid of Section 9 of the General Clauses Act, 1897. Section 9 of the General Clauses Act, 1897 states that in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient to use the word ‘from’ for the purpose of excluding the first in a series of days or any other period of time and to use the word to for the purpose of including the last in a series of days or any other period of time. Sub-Section (2) of Section 9 of the General Clauses Act, 1897 states that: “9. (2) This Section applies to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.” This Section would, therefore, be applicable to the N.I. Act. 28. The counsel, however, submitted that using two different words ‘from’ and ‘of’ in Section 138 at different places clarifies the intention of the legislature to convey different meanings by the said words. He submitted that the word ‘of’ occurring in Sections 138(c) and 142(b) of the N.I. Act is to 29 Page 30 be interpreted differently as against the word ‘from’ occurring in Section 138(a) of the N.I. Act. The word ‘from’ may be taken as implying exclusion of the date in question and that may well be governed by the General Clauses Act, 1897. However, the word ‘of’ is different and needs to be interpreted to include the starting day of the commencement of the prescribed period. It is not governed by Section 9 of the General Clauses Act 1897. Thus, according to learned counsel, for the purposes of Section 142(b), which prescribes that the complaint is to be filed within 30 days of the date on which the cause of action arises, the starting date on which the cause of action arises should be included for computing the period of 30 days. 29. We are not impressed by his submission. In this connection, we may refer to Tarun Prasad Chatterjee. 29. We are not impressed by his submission. In this connection, we may refer to Tarun Prasad Chatterjee. Though, this case relates to the provisions of the Representation of the People Act, 1951 (for short ‘the RP Act, 1951’), the principle laid down therein would have a bearing on the present case. What is important to bear in 30 Page 31 mind is that the Limitation Act is not applicable to it. In that case the short question involved was whether in computing the period of limitation as provided in Section 81(1) of the RP Act, 1951, the date of election of the returned candidate should be excluded or not. The appellant was declared elected on 28.11.1998. On 12.1.1999, the respondent filed an election petition under Section 81(1) of the RP Act, 1951 challenging the election of the appellant. The appellant filed an application under Order VII Rule 11 of the CPC read with Section 81 of the RP Act, 1951 praying that the election petition was liable to be dismissed at the threshold as not maintainable as the same had not been filed within 45 days from the date of election of the returned candidate. While dealing with this issue, this Court referred to Section 67-A of the RP Act, 1951 which states that for the purpose of the RP Act, 1951 the date on which a candidate is declared by the returning officer under Section 53 or Section 66 to be elected shall be the date of election of the candidate. As stated earlier, the appellant was declared elected as per this provision by the returning officer on 28.11.1998. Section 81, 31 Page 32 of the RP Act, 1951 which relates to presentation of petition reads thus: “81. Presentation of petitions. — (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation.—In this sub-section, ‘elector’ means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. * * * * * * (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.” Before analyzing this provision, this Court made it clear that it was an accepted position that the Limitation Act had no application to the RP Act, 1951. This Court then referred 32 Page 33 to sub-clause (1) of Section 9 of the General Clauses Act, 1897, which states that it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the words ‘from’ and for the purpose of including last in a series of days or any other period of time to use the word to. This Court observed that Section 9 gives statutory recognition to the well established principle applicable to the construction of statute that ordinarily in computing the period of time prescribed, the rule observed is to exclude the first and include the last day.” 11. Therefore, it is evident from the judgments of the Hon’ble Supreme Court of India referred to above that when the word “from” is used for the purpose of referring commencement of time, then the first of the days in the period of the time shall be excluded. The judgments so rendered by Hon’ble Supreme Court of India are while interpreting Section 9 of the General Clauses Act which is paramateria to the provisions of Section 8 of the Himachal Pradesh General Clauses Act. Coming to the facts of the present case in view of above no other conclusion can be drawn save and except that the date on which the order was pronounced by learned Rent Controller was to be excluded while computing 30 days time which was granted by learned Rent Controller for depositing the amount of arrears of rent. Coming to the facts of the present case in view of above no other conclusion can be drawn save and except that the date on which the order was pronounced by learned Rent Controller was to be excluded while computing 30 days time which was granted by learned Rent Controller for depositing the amount of arrears of rent. This is for the reason that proviso to Section 14 (2) (i) of the Himachal Pradesh Urban Rent Control Act, 1987 also unambiguously contemplates that a tenant against whom 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 said order if the tenant pays the rent due within a period of 30 days from the date of the order. 12. At this stage it is necessary to refer to a judgment passed by a Coordinate Bench of this Court in Harjeet Singh vs. Sh. Devnder Kishore Bansal, 2013 (2) Shim. LC 848 in which case the issue was whether the arrears of rent could be deposited on Monday if the 30th day which the tenant were granted to deposit the amount happened to be a Sunday. Para 3 of the said judgment is being quoted herein-below:- “The perusal of impugned order reveals that ejectment order on the grounds of arrears of rent was passed on 27.5.2011. The amount was deposited on 27.6.2011. The challan was passed on 25.6.2011 but amount could be deposited in the bank on 27.6.2011 as 26.6.2011 was Sunday.” 13. While holding that if the 30th day was Sunday then the amount could be deposited on the next day i.e. Monday, the computation of 30th days i.e. the time available to the tenant to deposit the arrears of rent was done by this Court by excluding the day on which the order was passed by learned Rent Controller. 14. Therefore, in my considered view, the order passed by learned Executing Court vide which it has issued warrant of possession against the present petitioner directing him to handover the vacant possession of the premises in issue to the decree-holder is not sustainable in the eyes of law. 14. Therefore, in my considered view, the order passed by learned Executing Court vide which it has issued warrant of possession against the present petitioner directing him to handover the vacant possession of the premises in issue to the decree-holder is not sustainable in the eyes of law. Learned Executing Court erred in not appreciating that 30 days which were granted to the tenant for depositing the arrears of rent have to be calculated by excluding the day on which the order was passed by learned Rent Controller. It is not the case of the decree-holder that the arrears of rent were not deposited by the tenant within 30 days if the date on which the order passed by learned Rent Controller is excluded. 15. Accordingly, in view of the discussion held hereinabove this petition is allowed. Order dated 18.3.2017 passed by learned Executing Court in Execution Petition titled Rama Rani vs. Vas Dev quashed and set aside. At this stage Mr. Rajiv Jiwan learned counsel appearing for the respondent submitted that according to the decree holder even the amount deposited by the tenant is not the entire amount which he was legally bound to deposit and there was a shortfall which otherwise renders him liable to be evicted in terms of the order so passed by learned Rent Controller. Be that as it may, as this is not an issue involved in the present petition this Court is not expressing any opinion on the same and it shall be open to the learned Executing Court to decide such issue, if assailed before it.