Himachal Pradesh High Court
Satish Kumar & Anr vs Jagat Ram on 30 October, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 20 of 2019
.
Reserved on: 22.10.2019
Date of decision: 30.10.2019
Satish Kumar & Anr. .....Petitioners.
Versus
Jagat Ram ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes.
Whether approved for reporting?1
For the Petitioners: Mr. Y. P. Sood, Advocate.
For the Respondent: Mr. G. C. Gupta, Sr. Advocate with
Ms. Meera Devi, Advocate.
Tarlok Singh Chauhan, Judge (oral)
The petitioners are the landlords, who aggrieved by the order passed by the learned first Appellate Authority whereby it modified the order passed by the learned Rent Controller, have filed the instant revision petition.
2. Brief facts of the case are that the petitioners filed petition for eviction of the respondent on two grounds i.e. arrears of rent and that the respondent has ceased to occupy the tenanted premises. It was claimed by the petitioners that the respondent had not paid rent w.e.f. June, 1987 till filing of the petition. Petitioners further claimed that they had purchased the 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 2 building in question on 28.11.2014 and the previous owner had assigned the right of recovery of rent from the tenants in the .
building. The ground of cease to occupy was given up, therefore, not pressed.
3. The respondent contested the petition by denying relationship of landlord and tenant and also denied that that he was in arrears of rent.
4. The learned Rent Controller allowed the petition and came to the conclusion that there is relationship of landlord and tenant between the parties and the respondent was in arrears of rent qua the tenanted premises. The learned Rent Controller held the respondent to be in arrears to the tune of Rs.12,859/- w.e.f.
June, 1987 till date of passing of eviction order.
5. The respondent did not deposit the arrears of rent within 30 days from the date of order of the learned Rent Controller and assailed the order by filing an appeal before the learned Appellate Authority.
6. The learned Appellate Authority below though maintained the order of eviction but modified the same by holding that the learned Rent Controller did not take into consideration the Receipt Ext.PX, as per which the respondent claimed to have made payment of rent to the predecessor of the petitioners from July, 1987 to October, 1988 and on such basis ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 3 held the respondent to be in arrears of rent to the tune of Rs.9994/- instead of Rs.12,859/- as was held by the learned Rent .
Controller. The Appellate Authority further allowed 30 days time to the respondent for deposit of arrears of rent.
7. It is vehemently argued by Mr. Y.P. Sood, learned Counsel for the petitioners, that the findings recorded by the learned Appellate Authority are contrary to law and, therefore, deserve to be set aside. Whereas, Mr. G. C. Gupta, learned Senior Counsel, duly assisted by Ms. Meera Devi, learned Advocate, would argue that since the order passed by the learned Appellate Authority is in conformity with the provisions of the law, no interference is warranted and the same needs to be upheld.
I have heard learned Counsel for the parties and have gone through the records of the case.
8. At the outset, the relevant provisions of the Rent Act as contained in Sections 14 and 24 of the Act need to be reproduced:-
Section 14(2) - A Landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied:-
(i) - That the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 4 of any such agreement by the last day of the month next following that for which the rent is payable:
.
Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of [12 per cent] per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid:
Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of [12 percent] per annum.
Provided further that the 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; or Section 24(1)(a) sub Sections 4 -The decision of the appellate authority and subject only to such decision, an order, of the Controller shall be final and shall not be liable to be called in question in any court of law except as provided in sub-section (5) of this section.
(5) The High Court may, at any time, on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.
9. It would be noticed that as per third proviso to Section 14(2), in case the tenant against whom the Controller has made an order of eviction on the ground of non-payment of ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 5 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. Such orders in terms of Section 24 (4) is subject to the decision of the appellate authority which normally is to be treated as final except as provided in sub-section (5) of Section 24.
10. The learned Rent Controller on 23.08.2015 had rent, which reads as under:-
r to framed a specific issue regarding the tenants being in arrears of "Whether the respondent is in arrear qua demised premises?OPP."
11. After recording evidence, the respondent was found to be in arrears of rent and accordingly issue No. 1 was decided in favour of the landlords-petitioners and based upon the findings on this issue, the learned Rent Controller determined and calculated the arrears of rent to be Rs. 12,859/- as is evident from the perusal of para 25 of the order, the relevant portion whereof reads as under:-
25. In view of my findings on the issues No. 1, 3, 4, 5, 6, 7, 8 and 9 above, the petition of the petitioners succeeds and the same is as such allowed and consequently, it is held that the respondent is in arrears of rent qua the demised premises i.e. consisting of two rooms, kitchen, bathroom and toilet in Set No. 17, in the third floor of 108 Kalicharan building Krishna Nagar Cart Road, Shimla H.P. @ Rs.17/- per month from the month of June 1987 up till ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 6 today and the rent of the demised premises comes to be Rs. 12,859/-. The respondent is directed to pay the .
amount of arrears of rent to the petitioners within 30 days from the date of this order, failing which he shall be evicted from the demised premises. However, keeping in view the peculiar facts and circumstances of the case, the parties are left to bear their own respective costs. A memo of costs be prepared accordingly. The file after due completion be consigned to the record room."
12. It is not in dispute that the respondent did not deposit this amount and straightway challenged the findings of the learned Rent Controller on the ground that the findings recorded by the learned Rent Controller on all the issues are wrong as is evident from the grounds No. 1 to 4 of the appeal which are re-produced as it is:-
1. That the impugned order to the extent that the petition has been allowed on the grounds that arrear of rent is totally against law and facts of the case and as such, the findings thereof is liable to be set aside by dismissing the petition preferred by the respondents in its entirety.
2. That the findings against the appellant are based upon conjectures and surmises and non application of the mind of the court below to the facts and circumstances of the case.
3. That the findings of the court below on issue No. 1 is against law and facts of the case and as such the same are liable to be set aside. The respondents claimed arrears of rent since June 1987 however it was only in the year 2014 that they allegedly purchased building from its ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 7 previous owner Sh. Harish Chander. As per the allegations made by the respondents in the petition, they had been .
given a right to receive rent from tenants and in the entire building there are about 30 tenants against whom separate petition had been filed. It is submitted that the respondents had no right to file the petition prior to 2014 as they were not the owners and the landlords qua the premises in dispute. The cause of action if any to claim rent from the tenants arose in the year 2014 after the execution of sale deed in favour. Moreover, the original owner was the best evidence who could have deposed about the arrears of rent and no record was produced by the respondent to show that the appellant are in arrear of rent. The best evidence was withhold by the respondent and in the absence of the same, the petition was liable to be dismissed in its entirety. It is also submitted that it is unbelievable that no record will be maintained by the landlord regarding receipt of rent when there are 30 tenants in the premises as no person can orally remembered the amount due from each tenant. Further the respondent No. 1 during his cross-examination had shown his ignorance qua receipt of rent by the original owner. Moreover, the rent claimed in the petition had become time barred in view of judgment of Hon'ble High Court of H.P. Shimla. The court below while deciding the case also lost site of the receipt executed by Smt. Anapurna Devi in favour of the appellant on 23.06.1990. The entire documents have been overlooked by the court below without application of judicial mind.
4. That the finding of the court below on issue No. 3 to 9 are also wrong and contrary to the factual matrix of the case and no reasonable findings have been given by the court below while deciding the said issue below in case ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 8 No. 245-2 of 2015 passed by Ld. Rent Controller, Shimla dated 19.01.2018 so far as the same is against the .
appellant may be set aside with cost and consequently the petition preferred by the respondent may be dismissed in its entirety.
13. The learned Appellate Authority reversed the findings of the learned Rent Controller primarily on the ground that the learned Rent Controller had not assessed the "amount due" as was required of him in light of the judgment rendered by learned Full Bench of this Court in Wazir Chand vs. Ambaka Rani & Ors., 2006 (2) RCR (C) 202 and in view of the judgment of the Hon'ble Supreme Court in Madan Mohan and Anr. vs. Krishan Kumar Sood, 1994 Supp (1) SCC 437.
14. However, the learned Appellate Court admittedly did not consider the pre-requisite requirement of proviso 3 of Section 14(2) regarding the deposit of the amount. Learned Counsel for respondent would support the findings by canvassing that since the learned Rent Controller had not assessed the "amount due"
and rather had determined the arrears of rent, which is not the same thing as the "amount due", therefore, in such circumstances the respondent was not required to deposit the amount and could have deposited the same within 30 days of the order passed by the learned Appellate Authority.::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 9
15. In support of this contention, strong reliance is placed by the learned counsel for the respondent to the .
judgment of this Court in Raj Kumar vs. Roshan Lal and other, 1997 (3) SLC 491, more particularly, paras-11 to 21, which reads as under:-
11. There is no denying that a sum of Rs. 8170 stands deposited by the tenants as under:
Sl. No. Amount deposited Date of deposit
1. Rs. 1,320 1-7-1992
2. Rs. 1,850 16-10-1992
3. Rs. 5,000 15-6-1993 Section 14 (2)(i) of the Act insofar as it is relevant for the purpose of the present case reads:
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied:
(i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid:
Provided further that if the arrears pertain to the period prior to the appointed day, the rate of ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 10 interest shall be calculated at the rate of 6 per cent per annum;
.
Provided further that the 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; or. ...
11. The expression "amount due" appearing in second proviso to Section 14(2)(i) of the H.P. Urban Rent Control Act, 1971, corresponding to third proviso to Section 14(2) (is of the Act, came to be interpreted by a learned Single Judge (V P. Gupta, J.) of this Court in Kali Dass v. Swaran Singh,1980 ILR(HP) 191, as under:
"...Naturally the 'amount due' in the second proviso can only be interpreted as the amount which is calculated in accordance with the first proviso of Section 14(2)(i), i. e , it will include arrears of rent payable on the date of application and interest up-
to-date of actual payment of 6% per annum on such arrears of rent which were payable together with costs of application as assessed by the Controller. Besides this amount the tenant will be liable to pay any other amount, i.e., costs etc. of the litigation which may be the result of final order of eviction.
12. A similar question again came up for consideration before Anr. learned Single Judge (P. D. Desai, C. J.) in Om Parkash v. Sarla Kumari C.R. No. 228 of 1985. It appears that the interpretation given to the expression "amount due" in Kali Dass's case (supra) did not find favour with the then my Lord the Chief Justice. His lordship, therefore, referred the following question of law to a larger Bench:
Whether, on a true and proper construction of the third proviso to Clause (I) of Sub-section (2) of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987, the expression 'the amount due' therein occurring compromises of arrears of rent together with interest at the rate of 9% per annum on such arrears and the costs of the eviction petition ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 11 as assessed by the Controller or as comprising only the rent due as found by the Controller?
.
The Division Bench comprising of Hon'ble V.K. Mehrotra and Ms. Kamlesh Sharma, JJ. in Om Prakash v. Sarla Kumari, 1991 1 ShimLC 45, while answering the question referred, observed:
"The expression 'the amount due' occurring in the third proviso to Section 14(2)(i) comprises only the arrears of the 'rent due* and not the arrears of rent together with interest at the rate of 9 per cent per annum on such arrears and the cost of eviction petition as assessed by the Controller."
13. Following the above said ratio and the interpretation given to the expression 'the amount due', the learned Rent Controller in the present case, while holding the tenants to be in arrears of rent with effect from 1-8-1985 to 31-5-1988 amounting to Rs. 1320 and while passing an order of ejectment against them on the ground of non-
payment of rent, had directed in the following terms;-
"It is, however, clarified that if the Respondents pay to the Petitioners-landlords or deposit into the court the aforesaid amount of Rs 1320 within a period of 30 days hereafter, the present petition shall be deemed to have been dismissed on such ground as well failing which the order shall be executable in accordance with law...."
In Madan Mohan and Anr. v. Krishan Kumar Sood, 1993 1 SLJ 651, the meaning of the words "amount due"
occurring in the third proviso to Section 14(2)(i) of the Act came up for consideration before the apex Court. Their Lordships did not agree with the interpretation of the words "amount due" given by the Division Bench of this Court in Om Parkash's case (supra). It was held:
It will be noticed that there is no provision in the Act for giving powers to the Controller to direct payment ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 12 or deposit of "pendente lite" rent for each month during the pendency of the petition for eviction of the tenant. First proviso to Sub-section (7) of Section .
14 shows that in order to show payment or valid tender as contemplated by Clause (1) or Sub-section (2) of Section 14 by a tenant in default, he has to pay on the first date of hearing the arrears of rent alongwith interest and costs of the application which are to be assessed by the Controller. Surely where a tenant does not avail of the first opportunity and contest the eviction petition on the ground of nonpayment of arrears of rent and fails to show that he was not in default and court finds that the ground has been made out, an order of eviction has to follow. Therefore, it does not stand to reason that such a tenant who contests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment. The third proviso to Clause
(i) of Sub-section (2) of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant. The "amount due" occurring in the third proviso in the context will mean the amount due on and upto the date of the order of eviction. It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction petition as well. If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the "amount due" will be only arrears which have not been paid The landlord, as per the scheme of the section, cannot be worse off vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing. If the interpretation given by the High Court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and costs on the first date of hearing and prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction. This could not be the intention of the legislature.
14. In view of the interpretation given to the words "amount due" occurring in the third proviso to Section 14(2)(i) of the Act by the apex Court, the learned Appellate Authority while disposing of the appeal in the ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 13 present case, held that the deposit of only Rs. 1320 by the tenants which amount represented merely the arrears .
of rent for the period 1-8-1985 to 31-5-l988 was not a valid tender within the meaning of the third proviso to Section 14(2)(i) off the Act and, therefore, the tenants were liable to be evicted execution of the order of ejectment passed against them on the ground of non- payment of rent.
As stated above, a sum of Rs. 8170 stands deposited by the tenants by 15-6-1993. Such amount has been deposited within 30 days of the order dated 20-5-1993 of the Appellate Authority. Learned Counsel for the landlords has conceded that such amount covers the "amount due", that is, arrears of rent up to the date of order of the learned Appellate Authority, interest at the rate of 9 per cent per annum as well as the costs.
15. Therefore, the only question which requires consideration is whether the deposit made by the tenants within 30 days of the order of the Appellate Authority can be treated as a valid deposit/tender so as to save the tenants from ejectment within the meaning of third proviso to Section 14(2)(i) of the Act.
16. There is no denying that the statutory period of 30 days as provided under the third proviso to Section 14(2)
(i) of the Act cannot be extended. A tenant in order to save himself from eviction has to deposit the amount due within 30 days from the dale the order of ejectment is passed against him on the ground of non-payment of rent.
17. The question is as to from which date the period of thirty days is to be reckoned in the present case-whether ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 14 from 1-7-1992, that is, the date of order of the learned Rent Controller or from 20-5-1993, that is, the date of the .
order of the learned Appellate Authority?
18. The learned Counsel for the landlords has contended that the statutory period of thirty days has to be reckoned from the date of order of the learned Rent Controller since it was by this order that the tenants were found guilty of non-payment of rent.
On the other hand, it has been contended on behalf of the tenants that the "amount due" within the meaning of the third proviso to Section 14(2)(i) of the Act was specifically determined by the learned Rent Controller to be Rs. 1320 in terms of the interpretation of the expression "amount due" given by a Division Bench of this Court in Om Prakash's case (supra) Such amount was deposited by the tenants on the day of the order itself. It has further been contended that if during the pendency of the appeal before the learned Appellate Authority the term "amount due" has come to be differently interpreted by the apex Court, the tenants cannot be penalised for the same and the statutory period of 30 days should be reckoned from the date of the order of the learned Appellate Authority.
19. There is force in the contention of the learned Counsel for the tenants. It is not thatin no case the period of 30 days can be reckoned from the order of the learned Appellate Authority. There may arise some cases in which such period of 30 days may begin to run only from the date of the order of the learned Appellate Authority. To illustrate, in a given case filed by the landlords seeking eviction of the tenant on the ground of payment of rent, the Rent Controller may come to the conclusion that the tenant was not in a arrears of rent and that the arrears as ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 15 claimed by the landlord were not due. On appeal if such findings are set-aside by the Appellate Authority and the .
tenant is held to be in arrears of rent, then the period of thirty days, prima facie, will have to be reckoned from the order of the Appellate Authority. Similarly, in cases where the period for which the rent is found to be in arrears or the rate at which is rent is claimed is varied in appeal, a fresh period of thirty days will have to be reckoned from the date of the order of the Appellate Authority, provided, however, that in the latter cases, the "amount due" as per the order of the Rent Controller stood deposited within 30 days from the date of order of the Rent Controller.
20. In the present case as well, a fresh period of 30 days has to be reckoned from the date of order of the learned Appellate Authority since the "amount due" as assessed by the learned Rent Controller came to be varied in appeal in view of the interpretation of the expression "amount due" occurring in third proviso to Section 14(2)(i) of the Act by the apex Court in Madan Mohan's case (supra) during the pendency of the appeal before the learned Appellate Authority.
21. Since the entire "amount due" stands deposited within the statutory period of 30 days from the date of order of the learned Appellate Authority, the tenants are not liable to be evicted from the tenanted premises on the ground of non-payment of rent.
Resultantly, the present petition is allowed and the impugned order dated 20-5-1993 of the learned Appellate Authority directing eviction of the tenants on the ground of non-payment of rent is set-aside. No orders as to costs.
::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 1616. I am afraid that the aforesaid judgment instead of supporting the case of the respondent, in fact, supports the case .
of the petitioners because admittedly the tenant in Raj Kumar's case (supra) had deposited the arrears of rent as determined by the learned Rent Controller as is evident from para-6 of the judgment, which reads as under:-
6. The tenants did not assail the findings of the learned Rent Controller holding them to be in arrears of rent since 1-8-1986 and directing their eviction on such ground They,however, deposited the arrears of rent of Rs. 1320 in terms of the orders of the learned Rent Controller on 1-7-
1992, the day of the order of the learned Rent Controller itself.
17. It was in this background that the Court in para -19 of the judgment has categorically observed that in case where the period for which the rent is found to be in arrears at the rate at which the rent is claimed is varied in appeal, a fresh period of 30 days will have to be reckoned from the date of order of the Appellate Authority, provided, however, that in the latter cases the "amount due" as per the order of the Rent Controller. It is clearly evident from the aforesaid observations that where the arrears or rate of rent has been determined by the learned Rent Controller, even though same may not be termed to be amount due, the same has to be deposited in the 30 days from the date of order of the Rent Controller or else the appeal would not be ::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 17 maintainable. In other words the payment of rent due within the stipulated period of 30 days is a condition precedent and sine .
qua non for maintaining an appeal before the Appellate Authority or else the order of Rent Controller has to be treated to have attained finality and the appeal must be dismissed.
18. Learned counsel for the respondent would still argue that since the learned Rent Controller had not calculated the amount due as was required of him under the law and had rather calculated the arrears of rent, therefore, the order is void and need not be complied with by the respondent.
19. To say the least, even this contention is fallacious. It is settled legal position that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void.
20. The issue has been considered in detail by the Hon'ble Supreme Court in Krishna Devi Malchand Kamathia vs. Bombay Environmental Action Group, (2011) 3 SCC 363, wherein it was observed as under:-
"16.It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., 1996 AIR(SC) 906;::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 18
Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, 1997 AIR(SC) 1240; M. Meenakshi .
& Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors., 2006 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., 2009 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
17. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, 1991 AIR(SC) 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him.
While deciding the said case, this Court placed reliance upon thejudgment in Smith v. East Ellore Rural District Council, 1956 1 AllER 855 wherein Lord Radcliffe observed:-
"An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
18. In Sultan Sadik v. Sanjay Raj Subba & Ors., 2004 AIR(SC) 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 1919. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by .
the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.
21. Indubitably, it was the Rent Controller alone who had the jurisdiction to decide the petition, so he could decide it rightly or wrongly and the tenants if aggrieved had a right to assail the same before the Appellate Authority. However, while doing so, they were first required to comply with the third proviso to Section 14(2) of the Act at the time of filing of the appeal and only then was the appeal maintainable before the Appellate Authority.
22. That apart, it would be noticed that even the case of the tenants herein before the Appellate Authority was not that the rent Controller had not assessed the amount due and had only determined the arrears of rent, as it clearly evident from the grounds of appeal reproduced above.
::: Downloaded on - 31/10/2019 20:24:21 :::HCHP 2023. As a matter of fact, the issue in question is no longer res integra in view of the judgment rendered by a Coordinate .
Bench of this Court (Justice Sureshwar Thakur, J.) in Bharat Sanchar Nigam Litd. vs. Vinod Lakhan Pal, 2015 (4) ILR (HP) 652, wherein it was held that the statutory period of 30 days within which the liability of rent as determined against the tenant is enjoined to be defrayable to the landlord by the legally permissible mode, is neither extendable nor enlargeable.
24. In view of the aforesaid discussion and for the reasons stated above, the appeal filed by the tenants before the learned first Appellate Authority was not maintainable and was required to be dismissed as such. Accordingly, the revision is allowed. The judgment passed by the learned Appellate Authority is set aside and that of the learned Rent Controller is restored.
30th October, 2019 (Tarlok Singh Chauhan)
(sanjeev) Judge
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