Himachal Pradesh High Court
Hans Raj Khimta vs Smt. Kanwaljeet Kaur Alias Sardarni ... on 29 February, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
Civil Revision No. 128 of 2012
Reserved on : 5.1.2016
Date of Decision : February 29 , 2016
Hans Raj Khimta ... Petitioner/DH
of
Versus
Smt. Kanwaljeet Kaur alias Sardarni Babli ... Respondent/JD
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? Yes. 1
For the petitioner : Mr. Ajay Sharma, Advocate, for the petitioner.
For the respondent : Mr. R. K. Bawa, Sr. Advocate, with Mr. Ajay
Sharma, Advocate, for the respondent.
Sanjay Karol, J.
Petitioner who is the landlord filed a petition for ejectment against the respondent/tenant, inter alia on the ground of non payment of rent under the provisions of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the "Act"). Such petition stood decided by the Rent Controller, Solan, Distt. Solan, Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 2H.P. vide order dated 23.7.2009 passed in Rent Petition No. 14/2 of 2007, titled as Hans Raj Khimta vs. Smt. Kanwal Jeet .
Kaur alias Sardarni Babli whereby the tenant was ordered to deposit the arrears of rent up to 31.7.2009. As per statutory requirement, needful was to be done within a period of 30 days. There is no dispute that the said order has attained of finality. The amount due stood quantified by the Rent Controller. Undisputedly the tenant did not pay/tender the rt same to the landlord but instead deposited it with the Rent Controller vide cheque dated 13.8.2009. This was so done within a period of 30 days.
2. The issue which arises for consideration is as to whether such payment is a valid tender, entitling the tenant for the benefit of not being evicted, in terms of the third proviso of sub-section (2) of Section 14 of the Act, thus rendering the order of ejectment to be unexecutable?
3. For determining the controversy in issue, the relevant provisions of the "Act" (Section-14, Section 20 & Section 21) are reproduced as under:-
"Section 14 (1). A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 3 commencement of this Act or otherwise, whether before or after the termination of the tenancy, .
except in accordance with the provisions of this Act.
(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 -
of
(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 rt 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 percent 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 interest shall be calculated at the rate of 6 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 ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 4 pays the amount due within a period of 30 days from the date of the order; or .
(ii) to (iv) ... ... ; or
(v) ... ... ;
The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the of application:"
... ...
... ...
rt
"Section 20. Receipt to be given for rent paid. - (1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable.
(2) Every tenant who makes payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid to him duly signed by the landlord or his authorized agent.
(3) If the landlord or his authorized agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorised agent, by order, direct the landlord or his authorised agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 5 grant a certificate to the tenant in respect of the rent paid."
.
"Section 21. Deposit of rent by the tenant. - (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in section 20 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent of is payable, the tenant may deposit such rent with the Controller in the prescribed manner. (2). ... ..."
rt [Emphasis supplied]
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.::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 6
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 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 rt 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 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 ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 7 days, when the landlord filed an application for execution, did he learn that the amount stood deposited in the Court.
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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 of rent, thus forcing the landlord to file another petition for ejectment, pendency of which is not disputed before this rt 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. The apex Court in Madan Mohan & another vs. Krishan Kumar Sood, 1994 Supp. (1) SCC 437 explained the ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 8 purpose behind the Rent Controller specifying, in the order of eviction, the exact amount of rent payable by the tenant.
.
While harmoniously construing the provisions, and more specifically proviso to Section 14, Court reiterated that the tenant must effectively know with certainty the amount he is liable to pay, enabling him to comply with the clause of of exception, saving him from ejectment.
11. Now what is the meaning of the expression rt "amount due" is no longer res integra and stands sufficiently explained through various judicial pronouncements including Madan Mohan (supra) and CMPMO No. 156 of 2015, titled as Sanjay Kumar vs. Smt. Pushpa Devi, decided on 6.01.2016.
12. In Madan Mohan (supra) the Court observed that:
"15. In such cases it will be advisable if the controller while passing the order of eviction on the ground specified in clause (i) of sub-Section (2) of Section 14 of the Act specifies the "amount due" till the date of the order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due.
16. Surely the Rent Control Acts, no doubt, are measures to protect tenants from eviction except on certain specified grounds if found established. Once the grounds are made out and subject to any further condition which ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 9 may be provided in the Act, the tenants would suffer ejectment. Again the protection given in the Acts is not .
to give licence for continuous litigation and bad blood."
[Emphasis supplied]
13. This court in Sanjay Kumar (supra) observed as under:
"22. The words "tender" and "pay" have not been of defined under the Act. This Court in Satsang Sabha, Akhara Bazar, Kullu vs. Shrimati Kartar Kaur, Latest HLJ 2003 (HP) 1006, observed as under:
rt "16. In Sheo Ram vs. Thabar (AIR 1951 Punjab 309), the word tender has been defined to be offer of lawful money which must be actually produced to the creditor by producing and showing the amount to the creditor or to the person to whom the money is to be paid. A mere offer to pay does not constitute a valid tender. The law insists upon an actual, present physical offer.
17. The word 'pay' has been defined in Parmeshri v. Atti, (1957 PLR 318) to mean to give money or other equivalent in return for something or in discharge of an obligation."
23. The expression used in the third proviso is "pays" and not deposit. The Section itself does not provide for depositing the amount in the Court after passing of the order. As such the only meaning which can be given to the expression "pay" and "tender" is that the rent is to be directly paid to the landlady and not deposited in the Court. At this juncture it be only observed that the Act does provide a mechanism for ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 10 depositing the rent in the Court. Sections 20 and 21 of the Act deal with the same. But then in the given .
facts and circumstances these provisions cannot be invoked, for there was neither any tender by the tenant nor any refusal by the landlady to accept the rent. Significantly no intimation of deposit of rent was sent to the landlady within thirty days from the date of passing of the order.
of
24. Conjoint reading of the first and the third proviso of Section 14(2)(i) of the Act mandates that the tenant is also required to pay the stipulated rt interest, not only till the date of the passing of the order, but till the date of payment of the amount due, which could not have been calculated by the Rent Controller for want of certainty, as it was left to the discretion of the tenant to deposit the same within thirty days from the date of passing of the order. As such, the tenant was duty bound to calculate interest thereupon, and pay or tender the same to the landlady.
25. This question of payment of interest for the period up to thirty days, from the date of passing of the order never came up for consideration in any of the decisions referred to hitherto before.
26. It is neither the intent nor the mandate of the legislature that after the parties finish off one round of litigation, they would be relegated to another round of litigation for recovery of the amount due, which would include the costs and interest.
27. Once the order of eviction is passed, the executing Court is duty bound to execute its orders ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 11 and as laid down in Madan Mohan (supra), Bilasi Ram vs. Bhanumagi, 2007 (1) Shim. L.C. 88 and Rewat .
Ram vs. Ashok Kumar & others, 2012 (3) Shim. L.C. 1265, no question of equity or hardship would arise for consideration, at this stage."
... ....
"36. As stands laid down by the Full Bench of this Court in Wazir Chand (supra), it is the duty of of the tenant to be vigilant and explain the reason or cause for shortfall in the amount of rt deposit.
37. At the cost of repetition it is reiterated that protection under the Act is only till such time the tenant dutifully complies with the same. The third proviso necessarily has to be read conjunctively with the first proviso to the sub- Section. In the instant case, tenant did not pay the amount to the landlord. She directly, without tendering it to him and not on account of his refusal, deposited the amount in the Court, which she did purely at her risk, responsibility, so also consequences. It is not his case that on account of any legal advise it was so done.
14. A Full Bench of this Court in Wazir Chand vs. Ambaka Rani & another, reported in 2005 (2) Shim. L.C. 498, has also explained that the expression "amount due"
::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 12so used in the third proviso to the Section would include the component of rent, interest and the costs.
.
15. The apex Court in Atma Ram vs. Shakuntala Rani, (2005) 7 SCC 211 observed as under:-
"18. In E. Palanisamy v. Palanisamy, (2003) 1 SCC 123 the provisions of T. N. Buildings (Lease and Rent of Control) Act, 1960 came up for consideration. The requirement of the Act was somewhat similar to the Rajasthan Rent Act and the A. P. Rent Act considered by rt this Court in Kuldeep Singh v. Ganpat Lal , (1996) 1 SCC 243 and M. Bhaskar v. J. Venkatarama Naidu, (1996) 6 SCC 228. Reiterating the view in Kuldeep Singh v. Ganpat Lal, (1996) 1 SCC 243 and M. Bhaskar v. J. Venkatarama Naidu, (1996) 6 SCC 228 this Court observed : (SCC pp. 127 & 128, paras 5 & 8) "The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains expression provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i. e. to deposit rent in court. The last step can come only after the ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 13 earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal, .
(1996) 1 SCC 243 and M. Bhaskar v. J.
Venkatarama Naidu, (1996) 6 SCC 228.
* * * Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the of appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions rt contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking section 8 (5) of the Act without following the procedure contained in the earlier sub-sections i. e. sub-sections (2) , (3) and (4) of section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. "
19. It will thus appear that this Court has consistently taken the views that in Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision."::: Downloaded on - 15/04/2017 19:48:03 :::HCHP 14
16. There is serious default on the part of the tenant in complying with not only spirit but also letter of the law.
.
17. Hence for all the aforesaid reasons present petition needs to be allowed. Order dated 27.9.2012, passed by Rent Controller Solan, Distt. Solan, H.P. in Case No. 20/10 of 2009, titled as Hans Raj Khimta vs. Shrimati Kanwal Jeet of Kaur alias Sardarni Babli, is quashed and set aside.
Application filed by the landlord before the Rent Controller rt as also this petition stand allowed.
Pending application(s), if any, also stand disposed of accordingly.
(Sanjay Karol), Judge.
February 29 , 2016 (PK) ::: Downloaded on - 15/04/2017 19:48:03 :::HCHP