Himachal Pradesh High Court
Smt. Sumeeta Sood (Since Deceased) ... vs Sh. Naresh Kumar Sood on 30 November, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 148 of 2016.
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Reserved on : 6th November, 2018.
Decided on : 30th November, 2018.
Smt. Sumeeta Sood (since deceased) through her legal heirs .....Petitioner/landlord.
Versus Sh. Naresh Kumar Sood Coram:
r to The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
..Respondent/tenant.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Rajeev Lochan, Advocate.
For the Respondent: Mr. K.S. Thakur, Advocate.
Sureshwar Thakur, Judge The learned Rent Controller, upon, Rent Petition No.113/2 of 2010, rendered a verdict of eviction, vis-a-
vis, the tenant, qua the demised premises, on proven grounds (a) of, the tenant falling, hence, in arrears of rent, w.e.f. 1.12.2007 to 14.03.2012 @ Rs.2000/- per 1 Whether reporters of the local papers may be allowed to see the judgment?
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month, (b) and, upon, the ground appertaining to the respondent/tenant, rather ceasing to occupy the demised premises, for a continuous period of two years. In, the, operative portion of the verdict, recorded by the learned Rent Controller, the hereinafter extracted, hence, apt portions, stands, borne therein:
"In view of my findings on the issues No.1,2,3, 4 and 5 above, petition succeeds and the same is allowed and the petitioner is held entitled to recover amount to the tune of Rs.2,09,990/- i.e. arrears of rent at the rate of Rs.2,000/- per month plus statutory interest @9% per annum w.e.f.
December, 2007 to 14.3.2012 and amended interest @ 12% per annum w.e.f. 15.3.2012 till today i.e. 18.3.2015, and respondent is directed to pay/deposit the aforesaid entire amount within a period of 30 days from today i.e. 18.3.2015, the date of passing of this order, falling which respondent shall be liable to be evicted from the demised premises."::: Downloaded on - 04/12/2018 22:56:37 :::HCHP
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The tenant being aggrieved aggrieved therefrom, hence, preferred an appeal, before the learned Appellate Authority, and, upon the apposite Rent Appeal No.13-S/14 of 2015, the learned Appellate Authority, hence, recorded a verdict, in disaffirmation, vis-a-vis, the verdict recorded aggrieved therefrom, r to by the learned Rent Controller.
hence,
The landlord, being
assails the verdict
pronounced by the learned Appellate Authority, upon, Rent Appeal No.13-S/14 of 2015.
2. Briefly stated the facts of the case, are ,that the petitioner/landlord has instituted the rent petition seeking eviction of the respondent/tenant from the premises i.e. one shop situated in ground floor of four storeyed building which stand built on the land comprised in Khasra No.667, Sanjauli Bazar, Shimla-6, H.P. It has been pleaded by the petitioner/landlord that the demised premises is situated in Municipal Corporation area and she is the owner of the demised premises. The ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...4...
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demised premises is non residential. The respondent is tenant over the demised premises at monthly rent of Rs.2000/-, and, it was rented out in the year 1995 to the respondent. The respondent is in arrears of rent from 1.12.2007 to 30.11.2010 at the rate of Rs.2,000/- per mensem which come to Rs.72,000/-, and, the interest at the rate of 9% per annum which come to Rs.9,990/- and total arrears of rent Rs.81,990/-. The respondent has also ceased to occupy the demised premises for a continuous period of two years prior to the filing of the present petition without any reasonable cause. The shop in question was rented out for carrying out the business of service station of vehicles to the respondent. But, no work of business of service station of vehicles has been carried out for th last two years and the demised premises are lying locked which has impaired the value and utility of the demised premises. Hence the petition.
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3. The respondent/tenant, in his reply, filed to the eviction petition, has taken preliminary objections qua non existence of relationship of tenant and landlord, maintainability, estoppel etc. On merits, the respondent has admitted that the demised premises is situated in Sanjauli Bazaar, within the Municipal area. But, the respondent has denied that the petitioner is the landlord and he is the tenant of the petitioner over the demised premises. The respondent has pleaded that Sh. Rakesh Kumar was his landlord to whom the rent was paid by him. However, the respondent has admitted that the demised premises is non residential and its monthly rent is Rs.2,000/ and it was rented out to him. The respondent has pleaded that the shop in question was taken on rent by him from Sh. Rakesh Kumar for business and he has right too run business in the demised premises. The rent of the demised premises was offered to Sh. Rakesh Kumar, who had been receiving the rent previously and ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...6...
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the rent was even tendered to him by way of cheque through registered letter. But the register letter was not received by Rakesh Kumar for the reasons best known to him and he is not liable to pay rent alongwith interest to Rakesh Kumar. Rakesh Kumar has not intimated him about the transfer of rights/attornment of the right in favour of the petitioner. Therefore, the petitioner has no right, title or interest to claim the rent along with interest from him. The respondent has also denied that the demised premises remained locked for a continous period of 12 months, prior to the filing of the present petition without reasonable cause. But the respondent has pleaded that the demised premises never remained closed. He has some dispute and difference with Swaraj Mazda Company which has to pay about Rs. Forty lakh to him. Therefor,e his business come to stand still. He had to bear loss in business and the shop is still open and it ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...7...
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never remained closed for continuous period of 12 months.
4. The landlord/petitioner herein filed rejoinder to the reply of the tenant/respondent herein, wherein, he denied the contents of the reply and re-affirmed and re-
5. to asserted the averments, made in the petition.
On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-
1. Whether the respondent is in arrears of rent w.e.f. 1.12.2007 to 30.11.2010 @ Rs.2,000/- per month, as alleged?OPP.
2. If issue No.1, is proved in affirmative, whether the petitioner is entitled to recover the aforesaid amount along with statutory interest as alleged?
OPP.
3. Whether the respondent has ceased to occupy the demised premises for continuous period of two years, as alleged?OPP ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...8...
4. Whether Rakesh Kumar is the .
landlord of the demised premises, if so, its effect?OPR
5. Whether the petitioner is estopped by his acts and conduct from filing the present petition, as alleged?OPR.
6. Relief.
6. On an appraisal of evidence, adduced before the learned Rent Controller, the learned Rent Controller, hence, allowed the petition of the landlord/petitioner herein. In an appeal, preferred therefrom, by, the tenant/respondent herein, before, the learned Appellate Authority, the latter allowed the appeal, and, reversed the order(s) recorded by the learned Rent Controller.
7. Now the landlord/petitioner herein has instituted the instant Civil Revision Petition, before this Court, for hence assailing the findings recorded, in its impugned order, by the learned Appellate Authority.
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8. The statutory ground, constituted, in the rent petition, as, filed before the learned Rent Controller, and, appertaining to the entitlement, of, the landlord to seek eviction, of, the tenant from the demised premises, on anvil, of the tenant falling, within, the mischief of sub-
section(5) of Section 14, of, the Himachal Pradesh Urban Rent Control Act (hereinafter referred to as the Act), (a) imperatively, for ensuring qua validity, vis-a-vis, the afore espoused ground, hence being aptly determined, (b) enjoins existence of cogent evidence, in tandem therewith being adduced by the landlord, (c) and, for, making the apt afore gaugings, this Court, is, constrained, to, ad verbatim, reproduce the phraseology thereof, sub-section (5) of Section 154 of the Act, is, cast in the hereinafter extracted phraseology:-
"(5) Where a landlord who has obtained possession of the building or rented land in pursuance of an order under sub-section (3) does not occupy it himself or if possession was obtained by him for his family in pursuance of an ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...10...
order under sub-clause (iii) of clause (a) of sub-section.
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(3), his family does not occupy the residential building, or if possession was obtained by him on behalf of his son in pursuance of an order under clause (d) of sub-section (3) his son does not occupy it for the purpose for which the possession was obtained, for a continuous period of twelve months from the date of obtaining possession or if possession was obtained under sub-section (2) of section 15 he does not occupy it for personal use for a continuous period of3 months from the date of obtaining possession or where a landlord who has obtained possession of a building under clause (c) of sub-section (3) puts that building to any use other than that for which it was obtained or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly."
9. Apparently, the hereinabove extracted phraseology, of, the aforesaid apt statutory ground, cast in sub-section(5) of Section 14 of the Act, (I) makes visible emergences, qua hence the landlord being ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...11...
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enjoined to adduce cogent proof qua (a) the tenant ceasing to occupy the tenanted premises, (b) and the factum, of, afore cessor, of, occupation, of, the tenanted premises, by the tenant, enjoins eruption of clear, and, cogent proof qua hence it, rather, spanning over, a, continuous period of 12 months; (c) and the afore cessor, of, occupation, of, the demised premises, being without any reasonable cause. A deeper delving thereinto, is, necessary, for, rather garnering, the appropriate salient nuance thereof, and, thereafter this Court, is, enjoined, to mete, an, apt connotation, to, the statutory phrase "ceased to occupy", as occurs therein, and, also is hence enjoined, to, make ascription(s), vis-a-vis, the befittingly acquired connotation, by the further therein borne statutory phrase "for a continuous period of twelve months".
10. The statutory phrase "ceased to occupy" as, is, borne therein, has, a, grave, and, somber significance, (i) ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...12...
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given the legislature, in its wisdom, in substitution, of, the coinage possession, rather engrafting therein, the afore statutory phrase, (ii) the legislative wisdom, behind engraftment, of the aforesaid statutory phrase therein, is to preclude, the tenant, to in the garb of his holding, symbolical possession, of the demised premises, and, despite, his locking the demised premises, hence, rear a ground, that, he hence yet holds rather symbolic possession, of, the demised premises, and, thereupon, is entitled, to, frustrate his eviction thereof, (iii) now given the afore legislative wisdom, existing behind, the engraftment, of, the statutory phrase "ceased to occupy", in sub-section (5) of Section 14 of the Act, (iv) thereupon, the natural eruption(s), of, the afore connotation rather, is, qua the tenant, being enjoined to adduce cogent proof, qua his, not leaving unattended, the demised premises nor his latching the demised premises, hence, reiteratedly leaving it unattended, (v) ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...13...
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whereupon, it woud be befitting to hold qua his not holding, the, requisite animus deserendi. However, on, evident eruption, of, the afore animus deserendi, yet, the tenant would save his eviction from the demised premises, (vi) upon, his adducing evidence qua, a, reasonable cause besetting him, whereupon, he was led to hence fall within the statutory mischief, borne in the opening part of sub-section (5) of Section 14 of the Act,
(vii) wherewithin, a, mandate, is, enshrined that, upon, his ceasing to occupy the demised premises, for, a continuous period of 12 months, rather, his being entailed to suffer, an, order of eviction, therefrom.
Furthermore, the afore proven animus deserendi, of, the tenant concerned, is to occur, for, a continuous period of 12 months, and, the afore phase, of, 12 months, naturally is to be ascribed, an apt import, of it, appertaining to 12 months, hence, preceding the institution of the eviction ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...14...
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petition, dehors, the afore import, not standing, explicitly engrafted in sub-section (5), of, Section 14 of the Act.
11. Even though, the learned counsel appearing for the landlord has contended with vigour, that, the appreciation, of the evidence appertaining, to, the afore statutory ground, of, eviction rather suffers, from, a gross infirmity. However, the afore contention rather ex-facie, lacks hence legal strength, given the proven consumption of electricity, by the tenant, vis-a-vis, the demised premises, (i) commencing from July, 2008, and, ending upto November, 2010. The afore proven consumption of electricity, by the tenant, vis-a-vis, the demised premises, acquires an aura of conclusivity, qua no cogent evidence, for dislodging, the afore proven fact, being adduced by the landlord, (ii) comprised in the afore consumption being inefficacious, (iii) and, in, the landlord rather placing on record, the, best documentary evidence, qua the door of the tenanted premises, for the ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...15...
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afore period or 12 months, prior, to the institution of the eviction petition, rather evidently carrying locks.
However, when the aforesaid evidence remained unadduced by the landlord, and, when the petition, for eviction, cast upon the aforesaid statutory ground, stood presented before the learned Rent Controller concerned, on 19.11.2010, thereupon, with this Court, ascribing the afore connotation to the statutory phrase "continuously for a period of twelve months", reiteratedly qua it appertaining, to a phase 12 months prior to the institution, of, the eviction petition, (i) thereupon, when in open discord, with the afore connotation, as, ascribed to the afore statutory phrase, (ii) the tenant rather has proven qua his consuming electricity, vis-a-vis, the demised premises, upto, November, 2010, (iii) rather begets the apt corollary qua the tenant falling outside, the mischief of sub-section (5) of Section 14 of the Act, also, his proving qua his not carrying the requisite ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...16...
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animus deserendi, comprised in his provenly, leaving the demised premises hence unattended or his locking the demised premises.
12. Be that as it may, the learned Appellate Authority, though, framed an issue appertaining, to the learned Rent Controller, falling in grave error, in ordering the eviction of the tenant, from, the demised premises, on anvil, of his falling into the arrears of rent, yet, the learned Appellate Authority rather failed to render specific findings, vis-a-vis, the afore ground, and, hence ex-facie has committed a gross illegality and impropriety.
Nonetheless, bearing in mind the afore extracted apposite portion, of the verdict, pronounced by the learned Rent Controller, besides bearing in mind the provisions, of, the apposite third proviso, occurring in sub-section (2), of, Section 14 of the Act, proviso whereof ad verbetim extracted hereinafter:-
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"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;"
(i) this court is constrained to form a firm conclusion qua the statutory phrase "if the tenant pays the amount due within a period of 30 days from the date of order" (ii) hence carrying the apt connotation qua the tenant, for rather saving his eviction, from the demised premises, his being ejoined to liquidate, the, judicially pronounced liability, appertaining, to his falling into arrears of rent, by his not depositing, the rent before the learned Rent Controller, rather his proceeding to make the apt payment, directly hence to the landlord concerned, (iii) the afore conclusion falls in tandem, with, the verdict pronounced by this Court in CMPMO No.156 of 2015, titled as Sanjay Kumar vs. Pushpa Devi, decided on 6th ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...18...
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January, 2016, the relevant paragraph No.23 whereof stand extracted hereinafter:-
"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 orders. 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 depositing the rent in the Court. Section 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 ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...19...
thirty days from the date of passing of the .
order."
13. Be that as it may, the tenant was also enjoined to adduce evidence in tandem therewith. However, a perusal of records, omits to make an apt disclosure qua the afore manner of liquidation, of, the apt judicially pronounced liability, being hence liquidated by the tenant, vis-a-vis, the landlord. Contrarily, upon, the aggrieved tenant rearing an appeal, against, verdict, of, eviction, pronounced qua him, by the learned Rent Controller, his, through CMP No. 4-S/6 of 2015, instituted on 21.04.2015, rather hence visibly beyond the period of one month, occurring in the third proviso, to sub-section (2) of Section 14 of the Act, hence making, a successful endeavour, to purportedly mete compliance with the verdict pronounced, by the learned Rent Controller, (i) whereunder, the latter concluded qua the tenant, falling in arrears of rent, (ii) and, thereafter in the operative ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...20...
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portion, of the verdict, it, computed the afore quantum of arrears along with interest accrued thereon, (iii) thereupon, the tenant was obliged, for, hence saving his eviction, vis-a-vis, the demised premises, and,upon, the afore ground, hence, make direct payment of the afore quantum of rent, vis-a-vis, the landlord.
apparently, he failed to do so, thereupon, with the tenant r However, transgressing, the mandate of the afore apt 3 rd proviso, he hence stands concluded to facilitate his eviction, from, the demised premises, and, thereupon, it is concluded that, vis-a-vis, the afore statutory ground, the tenant is enjoined, to, suffer eviction, from, the demised premises.
14. The above discussion unfolds qua the conclusions arrived by both the learned Appellate Authority with respect to the tenant/respondent herein being not entitled to be evicted from the demised premises on the ground of his being ceased to occupy the demised premises continuously, for a period two months, ::: Downloaded on - 04/12/2018 22:56:37 :::HCHP ...21...
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being based upon a proper and mature appreciation of evidence on record. However, the learned Appellate Authority has committed, a, gross error in its not rendering an affirmative finding on the ground of the respondent/tenant, being liable to be evicted from the arrears of rent. .
r to demised premises, on account of his falling into the
15. In view of above discussion, the present petition is partly allowed, and, the impugned judgment rendered by the learned Appellate Authority, upon, Rent Appeal No.13-S/4 of 2015 is modified to the afore extent.
All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 30 th November, 2018. Judge.
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