Himachal Pradesh High Court
Sh. Vivek Kumar Sharma vs Sh. Achal Jandev on 30 July, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.:440 of 2018.
.
Decided on: 30.07.2019.
Sh. Vivek Kumar Sharma ....Petitioner.
Versus
Sh. Achal Jandev ...Respondent.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Vipen Pandit, Advocate.
For the respondent : Mr. Rakesh Dhaulta, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 13.09.2018, passed in CMA No. 204/6 of 2018, titled as Sh. Vivek Sharma vs. Achal Jandev, passed by learned Rent Controller-II, Solan, vide which, learned Rent Controller has rejected the request of the petitioner/ applicant/tenant to deposit the rent.
2. Brief facts necessary for adjudication of the present petition are that a rent petition, i.e. Rent Petition No. ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP 20/2 of 2014 was filed by respondent Achal Jandev against the present petitioner under Section 14 of the H.P. Urban .
Rent Control Act, 1987, which was allowed by learned Rent Controller vide order dated 17.07.2018 in the following terms:-
"Judged in the light of my above detailed discussion the instant petition for eviction of respondent from the disputed premises on the ground of arrears of rent is allowed with costs. The respondent shall pay arrears of rent amounting to Rs. 89,382/- including statutory increase as detailed/calculated supra. The petitioners are also entitled to statutory interest of 12% on arrears of rent accruing between 1.5.2014 to 30.06.2018. The cost of present petition is assessed as Rs. 5000/- It is clarified that if the respondent pay to the petitioners/landlord or deposit into the court the aforesaid rent with interest as referred to above within a period of 30 days from today, the present petition shall be deemed to have dismissed on the ground of arrears of rent, whereas on the failure of the respondent for making the payment as referred to ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP above, this order shall be executable in accordance with law and the respondent shall also be liable for .
eviction from the suit premises on account of arrears of rent. The amount paid by respondent to the petitioners during pendency of petition shall be adjusted in arrears of rent. The file after its due completion be consigned to the record room."
3. Petitioner herein filed an application learned Rent Controller for permission to deposit the rent on r before 30.08.2018. It was mentioned in the application that the Court of learned Rent Controller had allowed the rent petition partly by directing the tenant to deposit a sum of 89,382/-
by mentioning that amount which has been paid by the tenant during the pendency of the petition be adjusted. It was further mentioned in the application that in terms of order passed by learned Rent Controller, the tenant was liable to deposit an amount of 13,500/- which was being deposited vide demand draft No. 730921, dated 31.07.2018 drawn at Corporation Bank, payable at Solan, in the Court of learned Rent Controller.
::: Downloaded on - 29/09/2019 01:31:11 :::HCHP4. In the said application, respondent herein/landlord was proceeded against ex parte on .
17.08.2018.
5. Vide impugned order, i.e. order dated 13.09.2018, this application of the tenant was dismissed by learned Rent Controller on the ground that application did not disclose whether or not tenant had first tendered the amount to the landlord and whether landlord had refused to accept the amount of arrears of rent. Relying upon the judgment of this Court in Hans Raj Khimta v. Smt. Kanwaljeet Kaur alias Sardarni Babli Latest, 2016 (1) HLJ 303 and in Pradeep Aggarwal v. Maya Poddar and Anr. (CMPMO No. 39 of 2018) learned Rent Controller held that under Section 14 of the H.P. Urban Rent Control Act, arrears of rent were to be directly paid to the landlord and could not be deposited in the Court until and unless there was sufficient evidence that landlord had refused to accept the arrears of rent. It further held that though vide order dated 17.07.2018, Court had directed the tenant to pay the arrears to the landlord or to deposit in the Court the arrears of rent, yet, tenant first had to tender the arrears to the landlord and only upon landlord's refusal to ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP accept the amount, he could approach the Court for tendering said amount. It further held that draft tendered by .
the tenant was in the name of the Court, whereas same should have been in the name of the landlord. On these bases, learned Rent Controller dismissed the application filed by the tenant by holding that tenant could not be allowed to deposit the arrears of rent amount in the Court.
6. Feeling aggrieved, petitioner/tenant has filed the present petition.
7. Learned Counsel for the petitioner has argued that the impugned order passed by the learned Rent Controller in the application filed by the tenant for depositing the arrears of rent was not sustainable in the eyes of law because order passed by learned Rent Controller in the rent petition on 17.07.2018 itself was self explanatory and application to deposit rent in Court was filed by the petitioner in terms of the said order.
8. On the other hand, learned Counsel for the respondent has argued that there was no infirmity with the order passed by the learned Rent Controller dismissing the application of the tenant to deposit the amount of arrears of ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP rent because in terms of the statutory provisions of the H.P. Urban Rent Control Act, the tenant was bound to pay the .
amount to the landlord and the same could have been deposited in the Court only if landlord has refused to accept the arrears of rent.
9. I have heard learned Counsel for the parties and also gone through order passed by learned Rent Controller in the eviction petition as also the impugned order.
10. The language used by learned Rent Controller while partly allowing the eviction petition in para 15 of the order dated 17.07.2018 is as under:-
"It is clarified that if the respondent pay to the petitioners/landlord or deposit into the court the aforesaid rent with interest as referred to above within a period of 30 days from today,"
11. It is amply clear from the language which was used in the order by learned Rent Controller that the tenant was either to pay the arrears of rent to the landlord or to deposit the same in the Court within a period of 30 days from ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP the passing of the order. There was no direction contained in the order that the tenant could have had deposited or .
tendered the rent amount in the Court only if landlord had refused to accept the same. This important aspect of the matter has not been taken into consideration by learned Rent Controller while passing the impugned order. By filing the application for tendering the rent in the Court, the tenant was just abiding by the terms of the order passed by learned Rent Controller on 17.07.2018. In the absence of there being a direction by learned Rent Controller that the arrears of rent were to be first tendered to the landlord and on his failure to receive the same, the same were to be deposited in the Court, learned Rent Controller, could not have had dismissed the application filed for depositing the arrears of rent in the Court on the ground that arrears should have been first tendered to the landlord and on his refusal to accept the same, the same could have been tendered in the Court. This is a hyper technical approach adopted by learned Rent Controller which is in derogation of the letter and spirit of the order passed by it while deciding the eviction petition on 17.07.2018.
::: Downloaded on - 29/09/2019 01:31:11 :::HCHP12. Learned Rent Controller in order dated 17.07.2018, had given option to the tenant to pay the arrears .
of rent to the landlord or deposit the same in the Court. After suffering eviction in the eviction proceedings, the tenant was to abide by the directions passed by learned Rent Controller and comply with them. This is exactly what the tenant did in the present case by depositing the amount of arrears of rent in the Court by moving the application in this regard.
13. This Court is not oblivious to the fact that the language of the order passed by learned Rent Controller in para 15 of the order dated 17.07.2018 was not in consonance with the provisions of Section 14 of the H.P. Urban Rent Control Act, however, in the peculiar facts of this case, the tenant could not have been made to suffer for the mistake which was committed by the learned Rent Controller while passing order dated 17.07.2018. Incidentally, this part of the order was not assailed by the landlord, who even did not care to appear before learned Rent Controller in the proceedings originating from the application which was filed by the tenant to deposit the arrears of rent.
::: Downloaded on - 29/09/2019 01:31:11 :::HCHP14. As far as the judgments relied upon by learned Rent Controller while passing impugned order, i.e. Hans Raj .
Khimta supra and Pradeep Aggarwal supra, are concerned, in my considered view, said judgments were not applicable in the facts of the present case. In none of the above two cases, there was any direction issued by learned Rent Controller at the time of allowing the eviction petition that the arrears of rent be paid by the tenant either to the landlord or the same be deposited in the Court. In the absence of any such direction, but obvious, the tenant was bound to first tender the arrears of rent to the landlord and in the event of landlord refusing to accept the case, the tenant could have had deposited the same in the Court by filing appropriate application.
15. In the present case, the direction passed by learned Rent Controller was either to pay the arrears of rent to the landlord or to deposit the same in the Court. In this view of the matter, the impugned order is not sustainable in the eyes of law.
16. At this stage, I shall be placing reliance upon judgment passed by Coordinate Bench of this Court dated ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP 14.03.2019, in case Neelam Singha vs. Bawa Jung Bahadur (Civil Revision No. 201/2018), relevant portion of which reads .
as under:-
"8. It is not in dispute that the learned Appellate Authority while allowing the petition of the land lord had directed the tenant to deposit the amount. Once the term "deposit" was used, essentially it would mean that the rent would have to be deposited in the court or else it would have been mentioned that the amount is required to be directly paid to the landlord and not deposited in the Court. Once that be so, then obviously no fault on the part of the tenant can be found much less prejudice caused to the landlord for depositing the arrears of rent in the Court.
9. The maxim "actus curiae neminem gravabit"
(meaning no prejudice shall be caused to anyone due to the fault of the court) must be invoked having regard to fact situation obtaining in the present case.
This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
::: Downloaded on - 29/09/2019 01:31:11 :::HCHP10 There is no higher principle for the guidance of the Court than the one that no act of courts should .
harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake as has been held by the Hon'ble Supreme Court in Jang Bahadur vs. Brij Lal, AIR 1966 SC 1631:-
"6..........It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a .
mistake of the Court he should be restored to the position he would have occupied but for that mistake.
This is aptly summed up in the maxim:Actus curiae neminem gravabit." 11 The basic fundamentals of the administration of justice are simple. No man r to should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the and maids of justice and not the mistress of the justice.
Ex debite justitiae, the courts must do justice to the aggrieved. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied.
12. The Lord Cairns in Alexander Rodger v. The Comptoir D'escompte De Paris, (Law Reports Vol. III 1869-71 page 465 at page 475) observed thus:
"Now, their Lordships are of opinion,that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of .
appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
13 The aforesaid observations have been repeatedly relied upon by the Hon'ble Supreme Court and reference in this regard can conveniently be made to the Five Judge Bench decision of the Hon'ble Supreme Court in A.R. Anutulay vs. R. S. Nayak and another, (1988) 2 SCC 602 para 82.
14 Once the peculiar fact as set out hereinabove comes to the notice of the court, even if there is any technicality, this Court should not feel shackled and decline to rectify that injustice or otherwise, the injustice noticed will remain forever.
::: Downloaded on - 29/09/2019 01:31:11 :::HCHP15 Now in the given circumstances once there was no fault on the part of the tenant, then obviously the Court was under obligation to undo the wrong .
done to the parties by the act of the court, especially where total undeserved or unfair advantage has been gained by the landlord invoking the jurisdiction of the court and the same, therefore, requires to be neutralized by applying the aforesaid maxim "actus curiae neminum gravabit"."
17. In view of the findings returned herein above as also the law laid down by Hon'ble Coordinate bench of this Court in Neelam Singha's case supra, this petition is allowed and impugned order dated 13.09.2018, passed by learned Rent Controller-II, Solan, in CMA No. 204/6 of 2018, titled as Sh. Vivek Sharma, vs. Achal Jandev, is quashed and set aside with a further direction to learned Rent Controller to accept the Bank Draft which was deposited by the petitioner/tenant before it as arrears of rent.
The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel) Judge July 30, 2019 (narender) ::: Downloaded on - 29/09/2019 01:31:11 :::HCHP