Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 780 (HP)

Suresh Kumar v. Proju Devi

2017-07-07

DHARAM CHAND CHAUDHARY

body2017
JUDGMENT Dharam Chand Chaudhary, J. (Oral) - The judgment under challenge is Annexure P-1 passed by learned Appellate Authority under the provisions of H.P. Urban Rent Control Act (hereinafter referred to as the `Act'' in short) in Rent Appeal No. 40-S/14 of 2015 dated 27.7.2016. 2. The impugned judgment has been assailed on several grounds, however, mainly that learned Appellate Authority has failed to appreciate that the petitioner (hereinafter referred to as the `respondent-tenant'') was not served with the notice of Eviction Petition issued by learned Rent Controller. His further grouse is that learned Rent Controller has decided the Rent petition behind his back and without affording him opportunity of being heard. The respondent-tenant was paying the rent to the petitioner-landlady regularly, hence never remained in arrears of rent, however, this aspect of the matter has also not been taken into consideration. 3. The petitioner is owner of `Nag Devi Niwas'' Sanjauli, Shimla-171006. On 1.11.2011 the respondent was inducted as tenant in Set No. I of second floor comprising two rooms, one bathroom-cum-toilet, kitchen and common verandah, hereinafter referred to as the `demised premises'' by the petitioner-landlady. The rent allegedly was agreed upon as Rs. 4000/- per month. An application registered as CMP No. 5308 of 2017 has also been filed with a prayer to allow the respondent-tenant to place on record the paying slip whereby a sum of Rs. 32000/- was deposited in the bank account of Vikas (since dead), the son of the petitioner-landlady. 4. The petitioner-landlady has filed petition for eviction of the respondent-tenant on the ground of arrears of rent as according to her he had paid the rent only to the tune of Rs. 35,000/- leaving the balance i.e. Rs. 85,000-/payable to her. The notice of the petition was issued to the respondent-tenant on his both addresses given in the memo of parties. The service of notice issued to him on his home address i.e. village Bajoha, P.O. Tharola, Tehsil Kotkhai, District Shimla was received by him. The copy of notice is available on record of the Rent Controller. The notice issued to him on the address of rented accommodation i.e. the accommodation let out to him by the petitioner-landlady however could not be served perhaps Sanjauli being a big town and in the address there was no mention as to in which area of Sanjauli town the demised premises namely Nag Devi was situated. The notice issued to him on the address of rented accommodation i.e. the accommodation let out to him by the petitioner-landlady however could not be served perhaps Sanjauli being a big town and in the address there was no mention as to in which area of Sanjauli town the demised premises namely Nag Devi was situated. The original notice is available on record and the Process Server has reported like this while returning the notice `unexecuted''. 5. Anyhow, learned Rent Controller has treated the respondent-tenant having been validly served on his home address and on the returnable date i.e. 30.6.2014 since he failed to put in appearance, therefore, was ordered to be proceeded against exparte after calling the petition thrice. Exparte evidence produced by the petitioner-landlady by way of affidavit was taken on record and on hearing learned counsel representing her as well as taking into consideration the evidence so come on record, Learned Rent Controller has determined the rent as Rs. 4000/- per month and held the respondent-tenant in arrears of the rent to the tune of Rs. 85,000/-. The eviction of the respondent-tenant, as such, was ordered from the demised premises, however, the order was left to be enforced against him after 30 days of the date of the order in case he failed to deposit the arrears of rent in the meanwhile. 6. Anyhow, the arrears towards rent was not deposited by the respondent-tenant within the stipulated period. Consequently, the petitioner-landlady has initiated execution proceedings against the respondent-tenant before learned Rent Controller. In the meanwhile, he preferred an appeal under Section 24 of the Act before learned Appellate Authority, which now stands dismissed vide the judgment under challenge in this petition. It is canvassed that the respondent-tenant has condemned unheard as he was not served with the notice issued to him in the Rent Petition. The impugned order is stated to be harsh and oppressive as according to Mr. Chandel, learned Counsel the children of the respondent-tenant are studying in school and in the event of his eviction from the demised premises, their career is likely to be affected adversely. It has also been urged that respondent is ready and willing to deposit the arrears towards rent up to date. 7. Mr. Chandel, learned Counsel the children of the respondent-tenant are studying in school and in the event of his eviction from the demised premises, their career is likely to be affected adversely. It has also been urged that respondent is ready and willing to deposit the arrears towards rent up to date. 7. Mr. Sirkeck, learned Counsel representing the petitioner-landlady has urged that the failure on the part of the respondent-tenant to deposit the arrears towards rent within stipulated period and in order to show the bonafide, no attempt in this regard even was made during the pendency of the appeal in the lower Appellate Court, the order of eviction having attained finality call for no interference by this Court in the exercise of limited revisional jurisdiction vested in it. 8. The present is a case where the eviction of the respondent-tenant has been sought on the ground of he being in arrears of rent. The only ground the petitioner-landlady has raised in the eviction petition is that the demised premises is required by her for providing accommodation to her daughter-in-law as her granddaughter is now school going and has been enrolled in the Convent of Jesus and Mary, Chelsea, Shimla. 9. The respondent-tenant did not appear and contest the eviction petition. The claim that he was not served with notice issued in the eviction petition is not correct because as per the record he was served therewith on his home address i.e. village Bajoha, P.O. Tharola, Tehsil Kotkhai, District Shimla. The copy of the notice received after its due execution is available in the record of learned Controller below. It is not his case that the notice was not received by him nor he ever disputed his signature thereon. Therefore, irrespective of his service could not be effected on his local address i.e. the demised premises perhaps for want of complete address, it cannot be said that he was not served in the Rent Petition legally and validly. The appropriate remedy available to him was to have approached learned Rent Controller for setting aside the exparte order on coming to know about it in November 2015 as he stated in the grounds of appeal preferred in the lower Appellate Court. The appropriate remedy available to him was to have approached learned Rent Controller for setting aside the exparte order on coming to know about it in November 2015 as he stated in the grounds of appeal preferred in the lower Appellate Court. In order to show his bonafide to have deposited the arrears towards rent on seeking permission of learned Rent Controller and had any such permission declined, would have resorted to other and further remedy available to him in accordance with law. 10. True it is, that an appeal against the impugned order was also competent and maintainable before learned Appellate Authority. However, in order to show his bonafide to pay the arrears of rent, an application for seeking permission would have been filed in the lower Appellate Court. This has also not been done. It is, therefore, doubtful that he intends to pay the arrears towards rent to the petitioner-landlady. The paying slip of State Bank of India Annexure P-3 to CMP No. 5390 of 2017 is hardly of any help to the respondent-tenant for the reason that even if this document is believed to be true, a sum of Rs. 32,000/- was thereby deposited in the account of Vikas, the son of the petitioner-landlady on 3.8.2011 i.e. well before his induction as tenant in the demised premises. The application as such is dismissed. 11. The present is not a case where it can be said that opportunity of being heard was not provided to the respondent-tenant and rather it is he who himself failed to appear before learned Rent controller after service of the notice of the Eviction Petition upon him. On his failure to deposit the arrears towards rent within the stipulated period a valuable right has accrued in favour of the petitioner-landlady which cannot be taken away merely on conjectures and surmises. Learned Lower Appellate Court, as such, has rightly dismissed the appeal the respondent-tenant preferred against the order of his eviction from the demised premises passed by learned Rent Controller, Court No. VIII, Shimla. Otherwise also, the scope of interference by the High Court while exercising the revisional jurisdiction vested in it is limited and confined only to rarest cases of grave miscarriage of justice caused to the aggrieved party on account of misconstruction and mis-appreciation of the facts of the case and evidence available on record by the lower Court. Otherwise also, the scope of interference by the High Court while exercising the revisional jurisdiction vested in it is limited and confined only to rarest cases of grave miscarriage of justice caused to the aggrieved party on account of misconstruction and mis-appreciation of the facts of the case and evidence available on record by the lower Court. The present is not a case of this nature because it is the respondent-tenant himself who is at fault as instead of putting appearance before learned Rent Controller he has allowed himself to be proceeded against exparte and not contesting the petition. 12. For all the reasons hereinabove, there is no merit in this petition and the same, as such, is dismissed. 13. Before parting, since learned Counsel representing the respondent-tenant has brought to the notice of this Court a human problem i.e. children of respondent-tenant studying in school at Shimla, the same need to be dealt with by taking a liberal and pragmatic approach and on humanitarian grounds. Some reasonable time is required to be given to him for vacation of the demised premises so that the academic session of his children is over and if so advised, he is in a position to arrange some alternative accommodation. Mr. Sirkeck, learned Counsel representing the petitioner-landlady is not averse to the grant of some reasonable time to the respondent-tenant for vacation of the demised premises. However, according to him, on deposit of payment of the arrears of rent as determined by learned Rent Controller as on 30th April 2014 and thereafter use and occupation charges per month as assessed by this Court. In this view of the matter, the respondent-tenant is directed to handover the vacant possession of the demised premises on or before 31st December 2017 subject to payment of arrears towards rent i.e. Rs. 85000/- determined by learned Rent Controller as on 30th April 2014 and thereafter the use and occupation charges that is w.e.f. 1.5.2014 till 30th June, 2017 assessed @ Rs. 4000/- per month in the peculiar facts and circumstances of this case within three months from today. The future amount i.e. on and Ist July, 2017 he shall pay regularly to the petitioner-landlady on or before 7th day of each and every month under proper receipt. 4000/- per month in the peculiar facts and circumstances of this case within three months from today. The future amount i.e. on and Ist July, 2017 he shall pay regularly to the petitioner-landlady on or before 7th day of each and every month under proper receipt. The failure on the part of the respondent-tenant to pay the amount towards arrears of rent/use and occupation charges in the manner as aforesaid shall entail in his eviction from the demised premises forthwith and in that event the petitioner-landlady shall have every right to recover the amount in question from the respondent-tenant in accordance with law. 14. The petition and also the application CMP No. 5390 of 2017 are accordingly disposed of. 15. Pending application(s), if any shall also sand disposed of and the interim order vacated.