Himachal Pradesh High Court
Pradeep Aggarwal vs Maya Poddar And Another on 9 July, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMPMO No. 39 of 2018
Decided on: July 9, 2018
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Pradeep Aggarwal .........Petitioner
Versus
Maya Poddar and another ...Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
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For the petitioner: Mr. Pratap Singh Goverdhan,
Advocate.
For the respondents: Mr. Neeraj Gupta, Advocate.
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Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with the passing of orders dated 12.1.2018 and 3.1.2018 (Annexure P-2 and Annexure P-3 respectively), whereby applications having been filed by the petitioner-tenant (hereinafter, 'tenant') seeking therein direction to the respondents-landlords (hereinafter, 'landlords') to receive arrears of rent in terms of order dated 29.12.2017 passed by the learned Rent Controller-I, have been dismissed, tenant has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, for quashing and setting aside the impugned orders detailed herein above, with a further prayer Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -2-to issue direction to the landlords to receive arrears of rent in terms of order of eviction passed by learned Rent Controller.
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2. Briefly stated, the facts of the case as emerge from record are that tenant suffered order of eviction on the ground of arrears of rent passed by learned Rent Controller-I, Solan, in a petition having been filed by the landlords.
Learned Rent Controller, vide order dated 29.12.2017, while passing order of eviction against tenant held landlords entitled to arrears of rent to the tune of Rs. 2,63,510/-, however, such order of eviction was subject to payment of arrears of rent within thirty days of pronouncement of order.
Pursuant to passing of aforesaid order by the learned Rent Controller, tenant filed an application No. 1/6 of 2018 dated 30.12.2017 (Annexure P-3) before the Rent Controller, praying therein to issue direction to the landlords to receive arrears of rent in compliance of order dated 29.12.2017, passed in rent petition titled Maya Poddar and another vs. Pradeep Aggarwal and issue receipt thereof in favour of the tenant. Learned Rent Controller below having perused office report, issued dasti notice to the landlords for 3.6.2018, however, on 3.6.2018, notices issued to landlords came to be received back duly served through one Shri Pankaj, but despite service, landlords failed to put in appearance in the ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -3- court. On the same day, learned Court below took up case again after lunch but despite repeated calls, neither, .
landlords nor any counsel appeared on their behalf.
3. Careful perusal of order dated 3.1.2018 passed by learned Rent Controller, Solan, suggests that tenant Pradeep Aggarwal stated on oath that he has brought payment of arrears of rent to the tune of Rs. 2,70,000/- to be given to the landlord in terms of order dated 29.12.2017 passed by learned Rent Controller. Statement on oath recorded by learned Rent Controller is on record (Annexure P-5). Learned Rent Controller taking note of the averments contained in the application filed by the tenant, proceeded to dispose of the application, that too without assigning any reasons. Court below, while dismissing the application came to the conclusion that since the landlords haev not come present to receive the amount, application has become infructuous and as such, same is dismissed. Allegedly, after passing of the aforesaid order, tenant moved another application on 4.1.2018 bearing No. 7/6 of 2018 (Annexure P-4) before the learned Rent Controller-I, seeking therein permission to deposit arrears of rent in terms of order passed by it in Rent Petition No. 29/2 of 2013. In the said application, tenant averred that since despite service, landlords failed to put in ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -4- appearance before the court below as such he may be allowed to deposit the money on account of arrears of rent in the .
court itself. However, learned Rent Controller, Solan, again dismissed the application No. 7/6 of 2018 (Annexure P-4) vide order dated 12.1.2018 (Annexure P-1). Perusal of aforesaid order also suggests that at first instance, court below issued dasti notice to the landlords for 12.1.2018 but despite service, landlords chose not to remain present in the court on 12.1.2018. On 12.1.2018, court below repeatedly passed over the matter however, subsequently in the post-
lunch session, court proceeded against landlords ex parte and dismissed the application having been filed by the tenant. In the aforesaid background, tenant has approached this Court in the instant proceedings, seeking therein quashment of orders dated 12.1.2018 (Annexure P-1) and 3.1.2018 (Annexure P-2).
4. Mr. Pratap Singh Goverdhan, learned counsel representing the tenant vehemently argued that since landlords failed to receive the rent after passing of the order of eviction, tenant had no option but to move an application before the learned Rent Controller notifying therein his intention to deposit/pay the arrears of rent. He further argued that even after rejection of first application having ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -5- been field by the tenant, he (tenant) filed another application, seeking therein permission to deposit rent in the court itself, .
because despite service, landlords failed to put in appearance in the court. Mr. Pratap Singh Goverdhan, learned counsel representing the tenant argued that impugned orders passed by learned Rent Controller are not sustainable in the eye of law because in the given facts and circumstances of the case, tenant had no option but to approach the Court seeking therein permission to deposit the rent in terms of order dated 29.12.2017. While referring to the impugned order dated 3.1.2018, Mr. Goverdhan, argued that no specific reason has been assigned in the order passed by learned Rent Controller, while rejecting the prayer having been made by the tenant, rather, court has simply arrived at a conclusion that since landlords have chosen not to come present despite service, application has become infructuous and same is disposed of accordingly. While referring to the findings returned by the learned Rent Controller in its order dated 12.1.2018 (annexure P-1) Mr. Goverdhan made a serious attempt to persuade this Court to agree with his contention that learned Court below has wrongly placed reliance upon the judgment passed by this Court in Hans Raj Khimta vs. Smt. Kanwaljeet Kaur alias Sardarni Babli, Latest HLJ 2016 (HP) ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -6- 303, because in that case, Hon'ble Apex Court, while interpreting expression used in third proviso i.e. "pays" and .
not "deposit", arrived at a conclusion that the rent is to be directly paid to the landlord and not deposited in the court, since there is no mechanism to deposit the same in the Court. He contended that since landlords refused to receive the rent within stipulated period, tenant had no option but to approach the court notifying his intention to pay an amount of Rs. 2,70,000/- on account of arrears of rent. He further argued that it stands duly recorded in the impugned order, Annexure P-2 that tenant had come with an amount of Rs.
2,70,000/- in the Court with the intention to pay to the landlords, who despite having received notice from the court, failed to appear and as such, it can be safely concluded that landlords willfully not appeared in the court so that money is not received by them within the stipulated period of thirty days, whereafter, tenant shall be evicted automatically for non-compliance.
5. Mr. Neeraj Gupta, learned counsel representing the landlords, while refuting aforesaid submission made by Mr. Goverdhan, learned counsel representing the tenant, argued that there is no illegality or infirmity in the impugned orders, Annexures P-1 and P-2, passed by learned Rent ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -7- Controller as such, same deserve to be upheld. Mr. Gupta, while placing reliance upon judgment passed by this Court in .
Hans Raj Khimta (supra), argued that there is no provision to deposit the amount in the court after passing of order by the learned Rent Controller, rather, amount, if any, in terms of order passed by Rent Controller is to be paid directly to the landlord. Mr. Gupta, while inviting attention of this Court to Section 14 of the Urban Rent Control Act contended that careful perusal of provisions contained therein nowhere envisages a situation, whereby a tenant can deposit amount with the Rent Controller. He further argued that neither Section 20 nor Section 21 provides for such mechanism and as such, learned Rent Controller below rightly dismissed the applications having been filed by the tenant, who despite there being a specific direction to make payment within a period of thirty days, failed to pay arrears of rent, as a consequence of which he is liable to be evicted from the demised premises. Mr. Gupta further argued that there is no material placed on record by the tenant suggestive of the fact that he, at the first instance, ever approached the landlords with arrears of rent and as such, submission having been made by the learned counsel representing the tenant that application annexure P-3 came to be filed in the competent ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -8- Court of law after refusal of the landlords to receive the rent, is not tenable. Mr. Gupta further contended that prayer made .
in the application could be considered by the court below had the tenant placed material on record suggestive of the fact that he had approached the landlords with arrears of rent but they refused to accept the same, however, in the case at hand, tenant before making an effort to make payment of rent to the landlords, directly approached the court below, seeking therein direction to landlords to accept the rent, which otherwise is not provided/envisaged under the provisions of law governing the field. Lastly, Mr. Gupta argued that since there is no provision under the Act to deposit the rent in the court after suffering order of eviction, prayer made in the present petition deserves outright rejection being devoid of merit.
6. I have heard the learned counsel for the parties and gone through the record carefully.
7. Having carefully perused the applications filed by the tenant vis-à-vis impugned orders passed thereupon by the court below, it is quite apparent that immediately after passing of eviction order dated 29.12.2017 by learned Rent Controller-I, Solan, tenant moved an application dated 30.12.2017 (Annexure P-3) notifying therein his intention to ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP -9- make payment qua arrears of rent as quantified by the learned Rent Controller. When landlords, despite having .
received notice, failed to appear in the Court, tenant moved another application dated 4.1.2018 (Annexure P-4), seeking therein permission of the court below to deposit amount on account of arrears of rent. It is also not in dispute that in both the applications, court below before ascertaining correctness and genuineness of the prayer made therein, issued dasti notices to the landlords, who after having received notices in both the applications, failed to put in appearance.
8. Having carefully perused the provisions contained in Section 14 of the Urban Rent Control Act, this Court is in agreement with Mr. Neeraj Gupta, learned counsel representing the landlords that there is no provision, whereby a tenant can deposit amount with the Rent Controller.
Similarly, there is nothing in Sections 20 and 21 of the Act which provides for such a mechanism.
9. A Coordinate Bench of this Court in Hans Raj Khimta (supra), while dealing with scope of Section 14 of the Act ibid, has categorically held that the expression issued in third proviso to Section 14 is "pays" and not "deposit". Court also held that the Section does not provide for depositing ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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amount with the Rent Controller after order is passed and as such, only meaning which can be given to the expression .
"pays" (third (proviso) and "tender" (Part (i) of sub-section (2) of Section 14 of the Act) is that amount is directly to be paid to the landlord and not to be deposited in the court. It would be appropriate to take note of following paragraphs of the aforesaid judgment:
"4. Careful perusal of the aforesaid provisions leads to one conclusion. Section 14 of the Act does not envisage a situation whereby tenant can deposit the amount with the Rent Controller.
Neither does Sections 20 and 21 provide for such a mechanism. In fact the latter provision deals with a totally different fact situation, enabling the law abiding tenant to deposit the rent upon refusal of the landlord in accepting the same.
5. Evidently the provisions of the Section save the tenant from getting the order of ejectment executed only and only if the amount due is paid within the stipulated period of time.
6. The expression used in the third proviso is "pays" and not "deposit" the amount so determined by the Rent Controller. The Section itself does not provide for deposit of the amount with the Rent Controller, after the order is passed. As such the only meaning which can be given to the expression "pay" (third proviso) and "tender" (Part (i) of sub-section 2 of Section 14) is that the rent is to be directly paid to the landlord and not deposited in the Court. In the given facts and circumstances provisions of Section 21 cannot be invoked, for there was neither any tender by the tenant nor any refusal by the landlord in accepting the rent. In fact the tenant herself does not rely upon the said provisions, for ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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she did not deposit the rent by filing the application as stipulated under the provisions. Significantly no intimation of deposit of rent was sent to the landlord within thirty days from the .
date of passing of the order.
7. It is not the case of the tenant that after depositing the amount in court, an intimation was sent to the landlord. No request was made to the landlord for withdrawal of the same. It is only after expiry of the statutory period of 30 days, when the landlord filed an application for execution, did he learn that the amount stood deposited in the Court.
8. Though such fact would not have any bearing on the outcome of the present petition, but is only reflective of the mindset of the tenant, who even for the subsequent period, in perpetuity continued to commit default in payment of rent, thus forcing the landlord to file another petition for ejectment, pendency of which is not disputed before this Court.
9. The tenant also cannot be allowed to take advantage of the fact that the cheque deposited by her stood encashed and entered in the records of the Rent Controller. The cheque was in the name of the Rent Controller and not the landlord.
As such, court encashed it. There was no prayer made before the Rent Controller for remitting the rent to the landlord or informing him of such action. The tenant took recourse to such action at his own peril. It is also not her case that she did so under any legal advise.
10. Having carefully perused facts of the case, which were before the Coordinate Bench of this court in case supra, this Court finds that the facts of the present case are peculiar and not same to the case referred to herein above. In the ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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aforesaid case, Coordinate Bench of this Court in para-9 has observed as under:
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"9. The tenant also cannot be allowed to take advantage of the fact that the cheque deposited by her stood encashed and entered in the records of the Rent Controller. The cheque was in the name of the Rent Controller and not the landlord.
As such, court encashed it. There was no prayer made before the Rent Controller for remitting the rent to the landlord or informing him of such action. The tenant took recourse to such action at his own peril. It is also not her case that she did so under any legal advise."
It appears that in the aforesaid case, there was no prayer made before the Rent Controller for remitting rent to the landlord or inform him of such occasion. Recording of aforesaid fact in aforesaid judgment rendered by the Coordinate Bench of this court itself suggests that facts of the present case are quite different from that of above case. In the case at hand, as stands duly proved on record that tenant by way of filing application on 30.12.2017 notified his intention to the landlords to deposit arrears of rent in terms of order of eviction recorded by learned Rent Controller.
11. True it is, that there is no material adduced on record save and except averments contained in the petition at hand, that after passing of order of eviction, effort, if any, was made by tenant to contact landlords with arrears of rent, but ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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once application was moved, seeking therein direction to the landlords to accept the arrears of rent, copy whereof was also .
made available to the landlords alongwith summons, it can be safely inferred /presumed that intention of the tenant to pay the rent in terms of eviction order passed by learned Rent Controller was duly notified to the landlords. It is not in dispute that landlords despite having received notice, failed to appear before the court, which action itself corroborates the averments contained in the present petition that the landlords refused to receive payment from the tenant on account of arrears of rent in terms of the order of eviction. No doubt, there is no provision under law to deposit amount in the court after passing of order of eviction but in this case, landlords intentionally and solely with a view to cause eviction on account of non-payment of arrears of rent, refused to receive the rent, and as such, the tenant had no other option but to approach the Rent Controller notifying therein his intention to deposit the rent within stipulated period. It has been specifically averred in the petition that on 16.1.2018 i.e. prior to expiry of 30 days granted by learned Rent Controller, tenant not only approached landlords with arrears of rent, rather, he also made an endeavour to procure bank account number of the landlords from the concerned ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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bank. Landlords have not specifically repudiated aforesaid averments contained in the petition, rather, very vaguely and .
evasively, it has been stated by the landlords that it has no concern whatsoever with the payment of rent in terms of order of eviction recorded by court below.
12. Otherwise also, as has been noticed herein above, once application was filed by the tenant before learned Rent Controller, it ought to have disposed of the same by assigning cogent and convincing reasons but shockingly no reasons, whatsoever, have been assigned in the impugned orders and applications having been filed by tenant have been dismissed on the ground that since despite notice, none has come present on behalf of the landlords to receive the arrears of rent, applications stand rendered infructuous and as such, same are disposed of accordingly. While passing impugned orders dated 3.1.2018 and 12.1.2018, learned Rent Controller has failed to take note of the peculiar facts and circumstances of the case. Learned Rent Controller below solely, while placing reliance upon judgment in Hans Raj Khimta (supra) and coming to the conclusion that since there is no provision to deposit rent in the court, dismissed the application, whereas, it, having taken note of the peculiar facts and circumstances of the case, especially initial ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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application having been filed by tenant, wherein he had notified his intention to pay the rent, ought to have examined .
and decided the matter accordingly.
13. There can not be any quarrel with the proposition of law laid down in Hans Raj Khimta (supra) that there is no provision to deposit rent in the court, rather, it is to be given directly to the landlord, but as has been noticed herein above, such findings came to be returned by Coordinate Bench of this Court in a different set of circumstances. In the case before the Coordinate Bench, no prayer was ever made before the Rent Controller for remitting rent to the landlord or informing him of such action but in the present case, it is apparently clear from the first application dated 30.12.2017, that the tenant had not only notified his intention to deposit arrears of rent in terms of order of eviction passed by the learned Rent Controller, rather he had brought the money to be paid to the landlords with him. In the first application, tenant never made any prayer for depositing the rent in the court, but sought direction to the landlords to receive arrears of rent in terms of order dated 29.12.2017 passed in the rent petition. Subsequently, second application came to be filed on behalf of tenant after passing of order dated 3.1.2018, in the first application filed by the tenant, whereafter, definitely, he ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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had no option but to deposit the rent in the court, especially in view of refusal of the landlords to receive the rent.
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14. At the cost of repetition, it may be observed that definitely nothing has been placed on record by the tenant to prove that at the first instance he had approached the landlords with arrears of rent but having taken note of the fact that landlords despite having received notice issued by the learned Rent Controller on two occasions failed to put in appearance, this court has no hesitation to conclude that the landlords had no intention to receive the rent in terms of order dated 29.12.2017, so that tenant is evicted on this ground. Otherwise also, once notices were issued by learned Rent Controller, it was bounden duty of the landlords to come present and dispute the claim made by the tenant that he had approached the landlords for payment of arrears of rent after passing of eviction order dated 29.12.2017. But, since in the instant case, landlords failed to appear before the court below despite having received notices, adverse inference is required to be drawn against them.
15. Consequently, in view of detailed discussion made herein above, present petition is allowed. Orders dated 12.1.2018 (Annexure P-1) and 3.1.2018 (Annexure P-
2), are quashed and set aside. Landlords are directed to ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP
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receive the arrears of rent in terms of order dated 29.12.2017 passed by learned Rent Controller-I, Solan, in Rent Petition .
No. 29/2 of 2013. Since amount stands deposited in the Registry of this Court, same may be remitted to the saving bank account of the landlords, on their making application to this effect. Pending applications, if any, are also disposed of.
(Sandeep Sharma) Judge July 9, 2018 (Vikrant) ::: Downloaded on - 13/07/2018 23:01:08 :::HCHP