Himachal Pradesh High Court
Neelam Singha vs Bawa Jung Bahadur on 14 March, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Civil Revision No. 201/2018
Date of decision : 14.3.2019
____________________________________________________________
Neelam Singha .....Petitioner
Versus
Bawa Jung Bahadur ...Respondent
Coram
r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes
For the Petitioner: Mr. Ajay Kumar, Senior Advocate
with Mr. Dheeraj K. Vashisht,
Advocate.
For the Respondent: Mr. Sanjay Rangta, Advocate.
Tarlok Singh Chauhan, Judge (oral):
This revision petition is directed against the order dated 7.9.2018 passed by the learned Rent Controller, whereby he dismissed the objections filed by the tenant/petitioner by holding that the deposit of arrears of rent made by her in the court was not valid and legal and ::: Downloaded on - 19/03/2019 22:03:59 :::HCHP 2 consequently ordered issuance of warrant of possession .
against the tenant.
2 The parties shall be referred to as the "landlord"
and "tenant".
3 The facts lie in narrow encompass. The landlord filed eviction petition No. 135/2 of 2015/2012 and the same was dismissed dated 21.1.2017.
r to by the learned Rent Controller vide order In appeal preferred by the landlord, the learned Appellate Authority set aside the order of the learned Rent Controller vide order dated 27.7.2017 and allowed the eviction petition on the ground of nonpayment of rent, which was quantified at Rs.14,774/. It was further ordered that the order of eviction would not be available for execution in case the arrears of rent are deposited within one month.
The tenant deposited the arrears of rent within the stipulated period before the learned Rent Controller vide draft dated 18.8.2017. But, despite this deposit, the landlord filed an execution petition against the tenant on the ground that she had not given notice regarding deposit of the arrears of rent.
::: Downloaded on - 19/03/2019 22:03:59 :::HCHP 34 The tenant filed objections, wherein she stated .
that she had offered the rent to the landlord and it was after his refusal to accept the rent that she was constrained to deposit the same before the learned Rent Controller.
5 Surprisingly enough, the learned Rent Controller allowed the execution petition and directed warrant of possession to be issued qua the tenanted premises by holding that the deposit of the rent in the court was not in accordance with the decision rendered by a coordinate bench of this Court in Hans Raj Khimta vs. Kanwaljeet Kaur alias Sardarni Babli, Latest HLJ 2016 HP 303, wherein it was held that the rent had to be directly paid to the landlord and not to be deposited in the court.
6 It is vehemently argued by the Mr. Ajay Kumar, learned Senior Advocate assisted by Mr. Dheeraj K. Vashisht, Advocate, representing the tenant that his client was required to comply with the direction as passed by the learned Appellate Authority in the lis inter se the parties and having complied with the same, she cannot be made to suffer for no fault of her. On the other hand, Mr. Sanjay Rangta, ::: Downloaded on - 19/03/2019 22:03:59 :::HCHP 4 Advocate, representing the landlord, would argue that the .
judgment passed by the High Court in Hans Raj Khimta's case (supra) is binding on all the courts and tribunals and therefore, rent could not have been deposited by the tenant in the court.
7 I have heard the learned counsel for the parties 8 to and have also gone through the records of the case carefully.
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 ::: Downloaded on - 19/03/2019 22:03:59 :::HCHP 5 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.
10 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 - 19/03/2019 22:03:59 :::HCHP 6 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 mistake of technical procedure of justice are simple. No man should suffer because of the the court. No man should suffer a wrong by irregularities. Rules or procedures are the handmaids 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 186971 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, ::: Downloaded on - 19/03/2019 22:03:59 :::HCHP 7 and when the expression 'the act of the 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 - 19/03/2019 22:03:59 :::HCHP 815 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 curiae neminem gravabit".
r to to be neutralized by applying the aforesaid maxim "actus 16 It is not to suggest that the judgment passed by a coordinate bench of this Court is not binding on this Court, but in the peculiar facts and circumstances, once the learned Appellate Authority had set aside the order of the learned Rent Controller on the limited extent of nonpayment of arrears of rent quantified at Rs.14,774/ without further direction to the tenant in respect of paying rent directly to the landlord, obviously the aforesaid judgment in the given circumstances, could not have been applied by the learned Rent Controller.
17 In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed.
::: Downloaded on - 19/03/2019 22:03:59 :::HCHP 9Resultantly, the impugned order 7.9.2018 is quashed and set .
aside and the execution petition filed by the landlord is dismissed. Pending application(s), if any, stands disposed of.
The parties are left to bear their own costs.
13.3.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
::: Downloaded on - 19/03/2019 22:03:59 :::HCHP
10
The basic fundamentals of the administration of justice are .
simple. No man 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 handmaids of justice and not the mistress of the justice.
r to
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