Himachal Pradesh High Court
Sanjay Kumar vs Smt. Pushpa Devi on 6 January, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
.
CMPMO No. 156 of 2015
Reserved on : 5.1.2016
Date of Decision : January 6 , 2016
Sanjay Kumar ... Petitioner
of
Versus
Smt. Pushpa Devi ... Respondent
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? Yes. 1
For the petitioner : Mr. G. C. Gupta, Senior Advocate with
Mr. Ramakant Sharma, Advocate, for the petitioner.
For the respondent : Mr. Bhupinder Gupta, Senior Advocate with Mr.
Janesh Gupta, Advocate, for the respondent.
Sanjay Karol, J.
Smt. Pushpa Sharma (landlady) filed a petition for ejectment against Prabhat Kumar (tenant) and Sanjay Sharma under the provisions of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the "Act").
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 22. The Rent Controller-II, Dehra, Distt. Kangra, HP, in terms of judgment dated 19.6.2014, passed in Rent .
Petition No. 3/11/06, titled as Pushpa Sharma vs. Prabhat Kumar & others, allowed the petition on a limited ground of non payment of rent. Operative portion of the order reads as under:-
of "As a sequel to my findings on various issues that have been framed between the parties, the rt Respondents are found in arrears of rent at the rate of Rs. 700/- per month with interest @ 9% per annum since April, 2004 and therefore the total arrear is calculated to be a sum of Rs. 1,24,790/-, which is due and payable by the Respondents to the applicant regarding the demised premises and for non- payment of these arrears the respondents are ordered to be evicted from the demised premises. It is made clear that in case the Respondents pay the rent due from them to the applicant regarding the demised premises as calculated above, within a period of 30 days from the date of this order, this order of eviction shall not be available for execution. The application accordingly stands disposed of. Let a Memo of Costs be drawn."
3. Undisputedly, pursuant thereto, memo of costs was drawn which in toto, is reproduced as under:-
"DECREE SHEET IN ORIGINAL SUIT/MEMO OF COSTS"::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 3
IN THE COURT OF AKSHI SHARMA, CIVIL JUDGE (JUNIOR DIVISION)-CUM-RENT CONTROLLER COURT NO. II, DEHRA, DISTRICT KANGRA-H.P. .
RENT PETITION No. 3/11/06 Smt. Pushpa Sharma D/o Sambhu Ram Sharma, Resident of Jawalamukhi, Tehsil Dehra, District Kangra, H.P. ... ... Petitioner.
-vs-
1. Parbhat Kumar s/o Bakshi Ram, Mandir Road, Ward No. 2, Jawalamukhi, Tehsil Dehra, District of Kangra, H.P. at present R/o Rainkha P.O. Sihorpain, Tehsil Dehra, District Kangra, H.P.
2. Sanjay Sharma s/o Shri Bakshi Ram, Mandir Road, Ward No. 2 Jawalamukhi Tehsil Dehra, District rt Kangra, H.P. ... ... Respondents.
Claim for petition for eviction of tenant for non- payment of rent from April, 2004 to Aug., 2006 to the tune of Rs. 20,300/- Under Sec. 14(2)(i) and also for sub-letting of premises U.S. 14(2)(ii)(a) of the H.P. Urban Rent Control Act, 1987.
This petition coming on this day for final disposal before me (Akshi Sharma, Civil Judge (Jr. Div.)-cum-Rent Controller Court No. 2, Dehra District Kangra, H.P. in the presence of Shri H.C. Uppal, Adv. for the petitioner and Shri. K.K. Sarmai, Advocate, for the respondents. It is ordered that the Respondents are found in arrears of rent at the rate of Rs. 700/- per month with interest @ 9% per annum since April, 2004 and therefore the total arrear is calculated to be a sum of Rs. 1,24,790/-, which is due and payable by the respondents to the applicant regarding the demised premises and for non-payment of these arrears the respondents are ordered to be evicted from the demised premises. It is made clear that in case the Respondents pay the rent due from them to the applicant regarding the demised premises as calculated above, within a period of 30 days from the date of this order, this order of eviction shall not be available for execution. The application accordingly stands disposed of.
::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 4Given under my hand and the seal of the court, this 19th day of June, 2014.
Sd/-
.
Rent Controller-II, Dehra, District Kangra, H.P. MEMO OF COSTS.
Petitioner Respondents
1. Stamps on petition 80.00 1. Stamps on petition Nil.
2. Stamp for service 13.00 2. Stamp for service 10.00
3. Stamp on P.A. 06.00 3. Stamp on Power 12.00
4. Rent Arrears 124790.00 4. Miscellaneous 42.00
5. Miscellaneous 18.00
Total 124907.00
of
Total 64.00
Sd/-
Rent Controller-II,
rt Dehra, District Kangra, H.P."
[Emphasis supplied]
4. Finding the tenant to have defaulted in
complying with the statutory provisions, the landlady filed an application for execution of the order/decree, pleading non payment of `117/- as cost and `936.80p as interest (this being the amount from the date of passing of the order till the date of deposit), which was resisted by the tenant on the ground that in terms of order dated 19.6.2014 so passed by the Rent Controller (Civil Judge, Jr. Division) a sum of `1,24,790/- stood deposited on 15.7.2014, which was within the statutory period of 30 days.
5. Vide impugned order dated 6.5.2015 passed by the Rent Controller Dehra, Distt. Kangra, H.P., in Execution ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 5 Petition No. 37/2014, titled as Smt. Pushpa Devi vs. Sanjay Kumar, such application stands allowed with the issuance of .
warrants of possession.
6. Assailing the same, Mr. G.C. Gupta, learned Senior Advocate, assisted by Mr. Ramakant Sharma, learned counsel for the petitioner, argues that:-
of
(i) The amount due, as quantified by the learned Rent Controller stood deposited by the rt tenant. This was in line with the ratio of law laid down by the apex Court in Madan Mohan & another vs. Krishan Kumar Sood [1994 Supp. (1) SCC 437].
(ii) Failure on the part of the Rent Controller to quantify the component of costs and the interest (from the date of passing of the order up to the date of deposit) cannot be a ground or reason good enough to evict the tenant.
(iii) Costs quantified in the decree sheet/memo of costs, was a ministerial function and cannot be said to be an order passed by the Rent Controller indicating the 'amount due' as explained in Madan Mohan (supra).
7. On the other hand Mr. Bhupinder Gupta, learned Senior Advocate, assisted by Mr. Janesh Gupta, learned counsel for the respondent, while supporting the order for ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 6 the reasons assigned therein, elaborated that preparation of a decree sheet, detailing the memo of costs, is part of a .
judicial function and that memo of costs is part of an order of eviction. In any event and regardless of the directions contained in the order, statutory interest was required to be paid from the date of passing of the order, till the time of of deposit of the amount due, which, in any case, was not done. rt
8. Evidently in the order dated 19.6.2014, the Rent Controller did not quantify the amount of costs payable by the tenant. Only the amount of arrears of rent, alongwith interest @ 9%, due and payable w.e.f. April, 2004, till the date of passing of the order, were calculated and quantified to be a sum of `1,24,790/-. This amount was determined to be the total arrears due and payable by the tenant. To this extent submission made by Mr. G. C. Gupta, learned Senior Advocate is factually correct.
9. However, contention that the tenant was under
an obligation to pay only this amount is legally unsustainable.::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 7
10. Statutory provisions are unambiguously clear. (i) There is a legal obligation upon the tenant to comply with .
the statutory provisions to avoid ejectment from the premises. (ii) The Rent Controller had also directed the memo of costs to be drawn, which undisputedly was so done, the very same day, wherein not only the amount of of arrears due and payable but also the costs stood quantified.
Thus the total amount which the Rent Controller himself rt quantified was ` 1,24,907/- [`1,24,790/- (arrears) plus `117 (costs)] and not ` 1,24,790/-.
11. It is not the case of the tenant that memo of costs was not supplied to him alongwith the copy of the order passed by the Rent Controller. In fact, memo of cost is part and parcel of the order, which in fact becomes executable.
12. For determining the controversy in issue, the relevant provision of the "Act" is 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 commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act.::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 8
(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 of 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 rt 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 pays the amount due within a period of 30 days from the date of the order; or
(ii) to (iv) ... ... ; or
(v) ... ... ;::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 9
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 application:"
[Emphasis supplied]
13. There is no ambiguity in the statutory provisions, of which are clear, self explanatory and self serving. If the amount of arrears alongwith interest is paid/tendered by the rt tenant within the statutory period, he is saved from being evicted from the demised premises. The "Act" itself provides two opportunities to the tenant for avoiding the order of ejectment. First, prior to the passing of the order of ejectment and second after it is so done.
14. The apex Court in Madan Mohan (supra) qualified the "amount due" occurring in the third proviso to clause (i) of sub-Section (2) to mean the amount due on and up to the date of passing of the order of eviction. It would not only take into account the arrears of rent giving rise to the cause of action for filing a petition for ejectment, but also include the rent accumulated till the passing of the order in such petition for ejectment. The Court further held that the third proviso to clause (i) of sub-section (2) of Section 14 should ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 10 also receive an interpretation which would safeguard the rights of both the landlord and tenant, for, the protection .
given in the Act is not to give licence for continuous litigation and bad blood. To avoid any ambiguity, Court observed as under:
"15. In such cases it will be advisable if the of 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 rt 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 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]
15. In Shrimati Asha Gupta vs. Shri Yas Paul, 2000 (3) Shim. L.C. 183, this Court had to deal with a case where the Rent Controller, while passing the final order failed to quantify the amount fallen due during the pendency of the eviction petition. In an appeal filed by the landlord, the error ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 11 stood corrected and as such the tenant was directed to pay the amount due, including the rent due and payable up to .
the date of passing of the order, alongwith interest and cost, within a period of 30 days. Alleging that the appellate Authority had no jurisdiction to extend the statutory period of time, the Court on the doctrine of merger, repelled the of same. (Para - 31)
16. While dealing with the case of a tenant where rt there was non compliance of the statutory provisions, in depositing the entire amount due, this Court in Bilasi Ram vs. Bhanumagi, 2007 (1) Shim. L.C. 88 observed that in the light of authoritative pronouncement in the case of Wazir Chand vs. Ambaka Rani & another, reported in 2005 (2) Shim. L.C. 498, based upon and in the light of law laid down in Madan Mohan (supra), the expression "amount due"
occurring in the third proviso includes the arrears of rent, the interest thereupon @ 9% per annum and the amount of costs. If the tenant fails to deposit the same within a period of 30 days from the date of the order, the only option available in law is to enforce the eviction order. The Court observed that "whether the shortfall is Re.1/- or the shortfall ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 12 is more than Re. 1/-, if there is any shortfall in the deposit of the amount, the eviction order has to be executed, because .
by not depositing the amount due in its entirety, the tenant forfeits the concession granted to him under the aforesaid third proviso and the only option thereafter is to execute the eviction order".
of
17. In Rewat Ram vs. Ashok Kumar & others, 2012 (3) Shim. L.C. 1265, this Court was dealing with a case rt where the tenant was in default of ` 8.62 paise. Since the default was in breach of the statutory protection, it directed execution of the order passed by the Rent Controller and while doing so, it reiterated the formula for calculating interest on the arrears of rent, by observing as under:
"13. In fact as per the law now laid down it is obvious that the amount due shall not only include arrears up to the date of the filing of the petition but must include the arrears of rent up to the date of deposit of the amount. However, I cannot loose sight of the fact that the present petition was decided by the Rent Controller in the year 1999 and he did not have the advantage of the judgments which are being relied by me. He, therefore, worked out the arrears from the date when the rent was not paid till the date of institution of the petition and he in clear cut terms held that the tenant was in arrears of rent of Rs. 1050/-. The tenant has deposited this amount of Rs. 1050/- along with interest. The only question is whether he has deposited the full amount of interest or not since, there was a clear cut order that the amount due as arrears is only Rs. 1050/-. In case the landlord was aggrieved by such an order he could ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 13 have approached the Appellate Court but in an execution proceedings cannot claim that the amount due more than Rs. 1050/-. Therefore, the amount due .
as per the order of the Tribunal was Rs. 1050/- as arrears of rent, the interest thereupon and costs of Rs. 400/-. There is an acknowledged formula for calculating interest on arrears of rent because rent accrues at the end of every month and interest on each month's rent will be different. This formula reads as follows:Rent x No. of months x (No. of months+1) x 9/2 x 12
x 100.
of
14. In this case, the arrears of rent have been calculated Rs. 1050/-. The only question is with regard to the interest payable on such amount.
Admittedly, the rent was paid after 42 months. rt Therefore, the interest payable is 50 x 42 x 43 x 9/2 x 12 x 100 = 338.62. Costs of Rs. 400/- were also awarded.
Therefore, the total amount payable was Rs. 1050+costs of Rs. 400 + interest on the arrears of rent Rs. 338.62 i.e. Rs. 1788.62/-. As against this only an amount of Rs. 1780/- was deposited and the calculations given by the learned Court are totally wrong. Therefore, the short fall was of Rs. 8.62 paise."
[Emphasis supplied]
18. To settle the incongruous situation, which had arisen, owing to an apparent conflict between the judgment rendered by a Two-Judge Bench of this Court in Om Parkash v. Sarla Kumari and others, 1991(1) Shim LC 45, wherein it was held that 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 ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 14 arrears and the cost of eviction petition as assessed by the Controller, and the subsequent decision rendered by the .
Apex Court in Madan Mohan (supra), a three-Judge Bench of this Court in Wazir Chand (supra), observed as under:
"7. The legislative intent can also be clearly discerned from the fact that in the third proviso the Legislature advisedly did not use the expression of "rent due" or "arrears of rent due". Had the Legislature used either of these two expressions or any other similar expression in the third proviso, perhaps one could argue that the legislative intent was that the tenant should be held liable to pay the rt rent or the arrears of rent only. But by using the expression "amount due" in the third proviso the Legislature clearly intended that the arrears of rent alongwith interest and costs, as has been stipulated in the first proviso, should be paid by the tenant after the eviction order is passed against him if the tenant wanted to avoid the enforcement or the execution of the eviction order.
Based upon the aforesaid observations, therefore, we have no hesitation in holding that the expression "amount due" as occurring in the third proviso includes the arrears of rent uptil the date of the passing of the final eviction order, as also the interest upon such arrears of rent at the rate of 9 per cent per annum and the costs of the application as would be assessed by the Rent Controller. The Division Bench judgment of this Court in the case of Om Parkash v. Sarla Kumari and Ors. (supra) laying down ratio to the contrary and giving contrary interpretation to the expression "amount due", not being a good law is hereby over-ruled by us. We also declare that any other judgment of this Court adopting a contrary view or giving a contrary interpretation of the expression "amount due", not being a good law, shall stand over-ruled."
.........
"9. Taking a cue from the aforesaid observations of their Lordships of the Supreme Court in Madan ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 15 Mohan and Anr. v. Krishan Kumar Sood (supra), we hereby issue a binding direction to all the Rent Controllers in the State that whenever a Rent .
Controller passes an eviction order in terms of Section 14(2)(i) of the 1987 Act, it must in the same eviction order, in its concluding part specify the exact amount of rent payable by the tenant to the landlord, of course, alongwith interest and costs.
Undoubtedly, based on the ratio in Madan Mohan and Anr. v. Krishan Kumar Sood (supra), the rent payable by the tenant to the landlord, which the Rent Controller would be specifying in the order of eviction of would be the arrears of rent uptil the filing of the eviction petition under Section 14(2)(i) as well as the arrears of rent which have accumulated during the pendency of eviction petition, right up to the date of passing of the eviction order. The purpose behind the rt Rent Controller specifying in the eviction order the exact amount of rent payable by the tenant is to directly link it with the third proviso so as to effectively enable the tenant to know with certainty the amount that he is liable to pay to save his eviction."
19. In compliance of the aforesaid directions, in terms of the first proviso, the Rent Controller, in the operative portion of the order, has quantified the amount of arrears of rent and the interest due and payable thereupon, upto the date of passing of the order.
20. It is true that the amount of costs is not so quantified in the order, but then when one peruses the Memo of Costs, prepared on the same date and by the Rent Controller himself, one finds it to have been quantified. The expression "cost of application assessed by the Controller"
::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 16evidently stands complied with. The Memo of Costs, under different heads does specify the amount due and payable .
by the tenant to be `1,24,907/-, which, in the instant case, undisputedly was not deposited. Only a sum of `1,24,790/-
stood deposited by the tenant, in the Treasury, vide challan dated 15.7.2014. Thus, there was a shortfall of `117/- on of this count.
21. In the proceedings under the Act, the Rent rt Controller as also the appellate authority do pass the order on the application/appeal and prepare memo of cost(s). The order is only formal expression of a decision. To a limited extent, Section 25 of the Act makes certain provisions of the Code of Civil Procedure, applicable. Though technical rules and procedural law are not applicable to the proceedings before the Rent Controller, yet general principles of CPC are made applicable. In the State of Himachal Pradesh, in terms of the Rules and Orders of the Punjab & Haryana High Court, as made applicable to the State of Himachal Pradesh [Volume (1), Chapter 11 Part C], expenses to be included in cost are defined. They are in Rule-6. In exercise of its powers, the Rent Controller quantifies the costs and ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 17 prepares a memo which is formally known as "memo of costs". To this effect even a form is also circulated by the .
concerned authorities. Hence preparing of memo of costs cannot be said to be a ministerial act. Section 26 of the Act makes the order passed by the Controller executable as a decree of a civil court, which is also to exercise all powers of as such. It is in this backdrop that the decree sheet/memo of costs is prepared by the Controller.
rt
22. The words "tender" and "pay" have not been defined under the Act. This Court in Satsang Sabha, Akhara Bazar, Kullu vs. Shrimati Kartar Kaur, Latest HLJ 2003 (HP) 1006, observed as under:
"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."::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 18
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.
of At this juncture it be only observed that the Act does provide a mechanism for depositing the rent in the Court.
rt 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.
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 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 ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 19 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 of order never came up for consideration in any of the decisions referred to hitherto before.
rt
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 and as laid down in Madan Mohan (supra), Bilasi Ram (supra) and Rewat Ram (supra), no question of equity or hardship would arise for consideration, at this stage.
28. Interest on the rent has to be calculated from the date when the amount of rent fell due and not the date of the institution of the petition or the passing of the order.
::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 20Now in the instant case, the tenant was liable to pay interest, till the date of payment of the amount due. What .
is "amount due" is the arrears of rent, interest and the costs, as is so specified in the first proviso and clarified in Madan Mohan (supra), wherein the Court held that the purpose behind the Rent Controller, specifying in the of eviction order, the exact amount of rent payable by the tenant is to directly link it with the third proviso so as to rt effectively enable the tenant to know with certainty the amount that he is liable to pay to save eviction.
29. It is submitted on behalf of the petitioner that litigant cannot be allowed to suffer on account of the fault of the Judicial Officer who did not quantify the cost. Though not specifically argued but in effect maxim "Actus curiae neminem gravabit" is invoked.
30. What is this maxim, came up for consideration before the apex Court in its various judicial pronouncements. In Jang Singh vs. Brij Lal & others, AIR 1966 SC 1631 the apex Court held as under:-
"6. ... ... It is therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 21 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, of 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 rt 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 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"."
31. A Constitution Bench of the apex Court in A. R. Antulay vs. R. S. Nayak & another, (1988) 2 SCC 602 has reiterated the principle by holding that an act of the Court shall prejudice no man as the maxim "Actus curiae neminem gravabit" is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. It further held as under:-
::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 22"82. Lord Cairns in Rodger v. Comptoir D'escompte De Paris [(1869-71) LR 3 PC 465, 475: 17 ER 120] .
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 court' is used, it does of 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 rt 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.
83. This passage was quoted in the Gujarat High Court by D. A. Desai, J. speaking for the Gujarat High Court in Soni Vrajlal v. Soni Jadavji (AIR 1972 Guj.
148), as mentioned before. It appears that in giving directions on 16/02/1984, this court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of Sections 6 and 7 of the 1952 Act and the binding nature of the larger bench decision in Anwar Ali Sarkar case (1952 SCR 284) which was not adverted to by this court. The basic fundamentals of the administration of justice are simple. No man should ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 23 suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of .
irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case of which requires emphasis."
... ...
"103 The Privy Council in Dehi Bakhsh Singh v. rt Habid Shah, {(1913) ILR 35 All 331} pointed out that an abuse of the process of the court may be committed by the court or by a party. Where a court employed a procedure in doing something which it never intended to do and there is an abuse of the process of the court it can be corrected. Lord Shaw spoke for the Law Lords thus :
Quite apart from S. 151, any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.
It was pointed out by the Privy Council in The Bolivar (AIR 1916 PC 85) that :
Where substantial injustice would otherwise result, the court has, in their Lordships' opinion, an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties. . . .
Indian authorities are in abundance to support the view that injustice done should be corrected by ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 24 applying the principle actus curiae neminerm gravabit - an act of the court should prejudice no .
one."
32. The apex Court in Johri Singh vs. Sukh Pal Singh & others, (1989) 4 SCC 403 had an occasion to deal with a case where there was a shortfall of deposit in the decretal of amount. Dealing with the situation the Court observed as under:
rt "20. In the third category of cases, namely, non-
deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has the discretion under S. 148, C.P.C. to extend the time even though the time fixed has already expired provided it is satisfied that the mistake is bona fide and was not indicative of negligence or inaction as was the case in Jogdhayan vs. Babu Ram [(1983) 1 SCC 26]. The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the Court applying the maxim 'actus curiae neminem gravabit' - an act of the Court shall prejudice no man, as was the case in Jang Singh (AIR 1966 SC 1631) (supra). While it would be necessary to consider the facts of the case to determine whether the inadvertent mistake was due to any action of the Court it would be appropriate to find ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 25 that the ultimate permission to deposit the challaned amount is that of the Court."
.
33. In State of Rajasthan & another vs. Surendra Mohnot & others, (2014) 14 SCC 77, Hon'ble Mr. Justice Dipak Misra, J. speaking for the Bench observed as under:
of "28. We have already stated the legal position with regard to legal impact as regards the concession pertaining to the position in law. That apart, we think rt that an act of the Court should not prejudice anyone and the maxim actus curiae neminem gravabit gets squarely applicable. It is the duty of the Court to see that the process of the court is not abused and if the court's process has been abused by making a statement and the same court is made aware of it, especially the writ court, it can always recall its own order, for the concession which forms the base is erroneous."
34. The doctrine cannot be invoked in the instant case as there is no fault of the Court. It is true that the act of the Court should not prejudice anyone but it is also true that the process of the Court cannot be allowed to be abused by any person.
35. In the instant case can it be said that the petitioner is prejudiced on account of any of the acts of the ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 26 Court? In my considered view - no, for the memo of cost so prepared by the Court is evidently clear. The lapse, if at all, .
is on the part of the petitioner who either under ill-advise or on account of his callous conduct deposited such amount which is not in consonance with the order and the Act.
36. As stands laid down by the Full Bench of this of Court in Wazir Chand (supra), it is the duty of the tenant to be vigilant and explain the reason or cause for shortfall in rt the amount of 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 landlady. He directly, without tendering it to her and not on account of her refusal, deposited the amount in the Court, which he did purely at his risk, responsibility, so also consequences. It is not his case that on account of any legal advise it was so done.
38. A Constitution Bench of the Apex Court in Hindustan Petroleum Corporation Limited vs. Dilbahar ::: Downloaded on - 15/04/2017 19:40:34 :::HCHP 27 Singh, (2014) 9 SCC 78 had an occasion to deal with the powers of the Court to examine the correctness or legality .
of the decisions rendered by the subordinate courts/tribunals. The Court observed as under:-
"Whether or not a finding of fact recorded by the subordinate court/tribunal is "according to law", of is required to be seen on the touchstone whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the rt evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross miscarriage of justice." ... ...
39. There is neither any illegality nor any perversity warranting interference by this Court.
In view of the aforesaid discussion, present petition is dismissed. Pending application(s), if any, also stand disposed of accordingly.
(Sanjay Karol), Judge.
January 6 , 2016 (PK)
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