Himachal Pradesh High Court
Shri Yaseen vs Mohd. Gulzar on 5 July, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 245 of 2017 Reserved On : 8.3.2018 .
Date of decision: 5.7.2018
Shri Yaseen ...Petitioner
Versus
Mohd. Gulzar ...Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes.
For the Petitioner:
For the Respondent:
r to
Mr.Bhupinder Gupta, Senior Advocate with
Mr.Janesh Gupta, Advocate.
Mr.V.S. Chauhan, Advocate.
Vivek Singh Thakur Judge
Instant petition has been filed against impugned order dated 18.3.2017 passed by learned Appellate Authority (Additional District Judge, Shimla) camp at Rohru under Section 24(2) of H.P. Urban Rent Control Act (herein after referred to as the Act in short) in CMP No. 22-R/6 of 2017 in appeal registered as F No. 6/2017, whereby learned Appellate Authority after distinguishing judgment of this Court passed in Hans Raj Khimta Vs. Smt. Kanwaljeet Kaur alias Sardami Babli reported in Latest HLJ 2016 (HP) 303, has Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 2 CMPMO No. 245 of 2017 stayed operation of order passed by Rent Controller, assailed in the appeal.
2. I have heard learned counsel for the parties and gone .
through the record.
3. Petitioner-landlord had filed an eviction petition against respondent-tenant on the grounds of arrears of rent as well as bonafide requirement for personal use. Learned Rent Controller had passed eviction order against respondent-tenant on both grounds with further direction to respondent-tenant to deposit arrears of rent in the sum of `1,79,523/- within a period of 30 days from the date of order i.e. 9.12.2016.
4. As per record, on 6.1.2017, an application bearing date 5.1.2009 was presented on behalf of respondent-tenant before the Rent Controller, which was ordered to be listed on 7.1.2017 after checking and report by the office. There was undated affidavit filed in the application, which appears to have been attested by Notary on 7.1.2017. Respondent-tenant had also got his statement recorded before the Rent Controller on 7.1.2017, whereupon Rent Controller had passed an order on that very day i.e. 7.1.2017, disposing of the application by allowing deposit of arrears of rent and rent for the month of January, 2017 by respondent-tenant with direction to Naib ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 3 CMPMO No. 245 of 2017 Nazir of the Court to deposit the cheque dated 7.1.2017 amounting to Rs. 1,74,369/- and to create FDR in the name of landlord in whose favour the cheque was issued by respondent-tenant. It was also .
directed that respondent-tenant shall inform petitioner-landlord about deposit of rent immediately. Thereafter notice returnable on 17.1.2017 was also ordered to be issued to landlord to receive the rent.
5. On 10.01.2017, petitioner-landlord had filed Execution Petition No. 2/10 of 2017 under Section 26 of the Act before the Rent Controller, stating therein that respondent-tenant had failed either to tender or to pay the arrears to the petitioner-landlord within 30 days from the date of order and had also refused to vacate the premises on request made by petitioner-landlord.
6. On 16.1.2017, respondent-tenant preferred an appeal against eviction order dated 9.12.2017 along with an application under Section 5 of Limitation Act for condonation of delay in filing the appeal and the said appeal was ordered to be registered on 17.1.2017. On 15.3.2017, petitioner-landlord represented himself through counsel and filed reply to application under Section 5 of Limitation Act, whereafter the application was considered and disposed of being infructuous with findings that respondent-tenant ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 4 CMPMO No. 245 of 2017 had applied for copy of order dated 9.12.2016 on the same day and it was prepared on 23.12.2016 and the appeal was within limitation from the date of preparation of copy of order.
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7. Petitioner-landlord had contested the interim stay application filed with the appeal under Section 24(2) of the Act, refuting the grounds taken in the application and specifically stated that respondent-tenant had failed to pay the rent to landlord within 30 days from the date of order and no intimation had been given to landlord regarding deposit of the same, if any, in the court, as per mandatory requirement under the Act as well as in consonance with pronouncement of this High Court in Hans Raj Khimta's case reported in Latest HLJ 2016 (HP) 303. Aforesaid application for interim stay was considered and decided on 18.3.2017 by returning findings that notice was given to the landlord within 30 days from the date of decision and first step had been followed by the tenant and therefore, law laid down by this High Court in Hans Raj Khimta's case was not applicable in the facts and circumstances in hand and operation of impugned eviction order was ordered to be stayed during pendency of the appeal.
8. In instant petition, order dated 18.3.2017 granting interim stay in favour of tenant after distinguishing the judgment in Hans Raj ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 5 CMPMO No. 245 of 2017 Khimta's case is under challenge. By referring pronouncement in Hans Raj Khimta's case, it is contended that respondent-tenant had only alternative to pay the rent to land owner directly and the .
respondent-tenant had failed to make payment of arrears of rent to land owner within 30 days and thus even if it is considered that he had deposited arrears of rent within 30 days before the Rent Controller, he will not have protection of 3rd proviso to Section 14(2) of the Act.
9. Relying upon copy of challan dated 9.1.2017 placed on record as Annexure P-4, it is also contended that even deposit of amount due in the Court was also beyond statutory period of 30 days, as period of 30 days had expired on 8.1.2017. It is also contended that despite taking categorical stand that tenant had not tendered/paid the arrears of rent to petitioner-landlord within stipulated period, disentitling him from getting stay of execution of eviction order, learned Appellate Authority had wrongly stayed the eviction order. It is submitted on behalf of landlord that no material was placed on record with regard to alleged contention of tenant that tenant and landlord were not in talking terms with each other and landlord had refused to receive the amount due, constraining tenant to deposit the amount due in the Court and no notice had ever been ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 6 CMPMO No. 245 of 2017 given by tenant to landlord expressing his intention to pay amount due to the landlord within 30 days before passing the order of eviction.
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10. It is also stated in grounds raised by landlord that entertaining appeal and application for interim stay along with it, without taking up application under Section 5 of Limitation Act first, seeking condonation of delay in filing appeal filed beyond its statutory period and also continuing with proceedings in appeal without condoning delay in filing the appeal, learned Appellate Authority has committed material illegality and irregularity, rendering the impugned order incapable of being sustained.
11. Petition has been resisted by and on behalf of tenant by contending that landlord had avoided receipt of amount of arrears of rent payable to him in pursuance to the eviction order dated 9.12.2016 and had been trying to frustrate the right of tenant available under 3rd proviso to Section 14(2)(i) of the Act and thus tenant had no other option except to approach the Rent Controller by filing an application to deposit the arrears of rent in the Court and as such the tenant had filed such application in the Court within time of 30 days along with cheque issued for payment of arrears of rent along with rent form the month of January, 2017. Reliance has been put upon ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 7 CMPMO No. 245 of 2017 affidavit filed and statement made by tenant on 7.1.2017 in support of application filed to deposit the rent in the Court. According to him tenant had approached the court well within stipulated period and his .
application was allowed before expiry of 30 days on 7.1.2017, as 30 days had to expire on 8.1.2017. It is further argued that deposit of cheque/amount tendered by tenant in the Court in the treasury on a later date beyond 30 days, but after tendering the same by tenant within prescribed period, is an internal matter of the office of Rent Controller, for which tenant cannot be penalized. Applicability of judgment in Hem Raj Khimta's case is also disputed in the facts and circumstances of the case stating that in present case Rent Controller had issued notice to landlord on the very same date when amount was tendered in the court on 7.1.2017 within 30 days of eviction order.
12. Section 14 of the Act provides eviction of tenant on various grounds including eviction for arrears of rent under sub Section (2) of the Act. In first proviso to this sub Section, opportunity has been provided to tenant to get the proceedings for eviction terminated by making payment of arrears of rent as provided in the said proviso. 3rd proviso provides an opportunity to tenant to make eviction order ineffective on payment of amount due by the tenant ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 8 CMPMO No. 245 of 2017 within a period of 30 days, for which his eviction is ordered. In any case, if tenant opted not to make payment of amount due within 30 days, but to assail the eviction order, he is free to do so.
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13. Section 21(1) of the Act confers a right upon tenant to deposit the rent in the Court, where landlord does not accept any rent tendered by tenant within the time referred to in Section 20 of the Act.
14. Manner to tender rent has been prescribed in Section 21 of the Act, which reads as under:-
"21 (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 delivery a receipt referred to therein or where there is a bonafide doubt as to the person or persons to whom the rent if payable, the tenant may deposit such rent with the Controller in the prescribed manner.
(2) The deposit shall be accompanied by an application by the tenant containing the following particulars namely;-
(a) the building or rented land for which the rent is deposited with a description sufficient for identifying the building or rented land;
(b) the period for which the rent is deposited;
(c) The name and address of the landlord or persons claiming to be entitled to such rent: and
(d) Such other particulars as may be prescribed.
(3) On such deposit of the rent being made, the Controller shall send in the prescribed manner a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of the deposit.
(4) If an application is made for the withdrawal of any deposit of rent, the Controller shall, if satisfied that the applicant is the person ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 9 CMPMO No. 245 of 2017 entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed:
Provided that no order for payment of any deposit of rent shall be made by the Controller under this sub-section without .
giving all persons named by the tenant in his application under sub-section (2) as claiming to be entitled to the payment of such rent an opportunity of being heard and such order shall be without prejudice to the rights of such persons to receive such rent being decided by a court of competent jurisdiction.
(5) If at the time of filing the application under sub-section (4), but not after the expiry of thirty days from receiving the notice of deposit, the landlord or the person or persons claiming to be entitled to the rent complains to the Controller that the statements in the tenant's application of the reasons and circumstances with led him to deposit the rent are untrue, the Controller, after giving the tenant an opportunity of being heard, may levy on the tenant a fine which may extend to an amount equal to two months rent if the Controller is satisfied that the said statements were materially untrue and may order that a sum out of the fine realized be paid to the landlord as compensation.
(6) The Controller may, on the complaint of the tenant and after giving an opportunity to the landlord of being heard, levy on the landlord a fine which may extend to an amount equal to two months rent, if the Controller is satisfied that the landlord, without any reasonable cause, refused to accept rent through tendered to him within the time referred to in Section 20 and may further order that a sum out of the fine realized be paid to the tenant as compensation."
Section 20 of the Act reads as under:-
::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 10 CMPMO No. 245 of 2017"Section 20(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 authorized 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 authorized agent, by order, direct the landlord or his authorized 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 grant a certificate to the tenant in respect of the rent paid."
15. Section 24 of the Act provides for filing of appeal by any person aggrieved by order passed by Rent Controller before the Appellate Authority, notified by the State and also empowers the Appellate Authority to grant stay during pendency of appeal.
Relevant provision reads as under:-
"Section 24 (1) (a) The State Government may, by a general or special order, by notification, confer on such officers and authorities, as it thinks fit, the powers of Appellate Authorities for the purposes of this Act, in such area or in such classes of cases as may be specified in the order.
(b) Save as otherwise provided in this Act, any person aggrieved by an order passed by the Controller, except the orders for the recovery of possession made by the Controller in accordance with ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 11 CMPMO No. 245 of 2017 the procedure prescribed under Section 16, may within fifteen days from the date of such order or such longer period as the appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the Appellate Authority having jurisdiction. (in .
computing the period of fifteen days, the time taken to obtain a certified copy of the order appealed against shall be excluded)."
16. It is no longer resintegra that period of 30 days provided in 3rd proviso of Section 14(2) (i) of the Act to deposit the amount cannot be absurd or enlarged beyond 30 days by Rent Controller or Appellate Authority and even in case where stay has been granted against order of eviction of Rent Controller and period of 30 days would start from the passing of eviction order by Rent Controller.
(See 1993(1) RCR 290 (SC), 1994 Supplement Shimla L.C. 242, ILR Himachal Series 1982, 279)
17. The Apex Court in Smt.Priya Bala Ghosh and others Vs. Bajranglal Singhania and another, 1992 (1) RCR 313 (SC) has observed that law has to be broadly construed, because it is not intended to trap the tenant into a situation so that the landlord can evict him and there may be several situations which may arose and necessitate the remittance of rent by tenant through alternative mode.
18. Section 21 of the Act is applicable in those cases where there is refusal to accept any rent as provided under Section 20 of the Act and there is no specific provision for depositing the amount due in ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 12 CMPMO No. 245 of 2017 the Court under 3rd proviso of Section 14(2) of the Act. However, there may be several situations as observed by the Apex Court in Smt.Priya Bala Ghosh's case Supra, where landlord may avoid .
receipt of amount due within 30 days so as to frustrate the right of tenant, provided under the aforesaid 3rd proviso, resulting into compulsion of tenant to deposit the rent in the court within 30 days and in such a situation Section 21 of the Act may not be strictly applicable, but principles of Section 21 of the Act broadly shall be applicable in case of payment under 3rd proviso of Section 14(2) of the Act. Provisions of Section 21 of the Act unambiguously indicates that deposit of rent by tenant in the Court is an exception and for this reason only, it is provided in 21 (5) of the Act that in case statement in tenant's application for reasons and circumstances, allowing him to deposit the rent, are found untrue, the Rent Controller after giving the tenant an opportunity of being heard may levy a fine, which may be to the extent of amount equal to two months' rent and to pay the said fine to the landlord as compensation. Therefore, in a case of deposit of amount due by tenant under 3rd proviso of Section 14 of the Act in the Court, instead of making payment to the landlord, there must be cogent and convincing material on record to establish that amount was duly tendered by the tenant to landlord within 30 days of passing ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 13 CMPMO No. 245 of 2017 of eviction order and there was refusal of landlord to accept the same.
Payment/deposit of amount due under 3rd proviso takes away the right of landlord to evict the tenant accrued after adjudication of the .
petition filed by landlord without assailing the same by tenant. As held in Hans Raj Khimta's case, this proviso speaks about payment of amount, but not deposit of the same in the court. Deposit in the Court, being exception, must be allowed only after strict proof of failure of making payment on account of act and conduct of landlord.
19. Section 24(2) of the Act empowers the Appellate Authority to grant stay during pendency of appeal. Power conferred on the Appellate Authority under this sub section is not subject to deposit of amount due under 3rd proviso to Section 14 of the Act.
The Appellate Authority can grant stay during pendency of appeal independent of compliance of provisions of 3rd proviso to Section 14(2) of the Act. Tenant has a right to assail eviction order passed against him in appeal and to apply for grant of stay during pendency of appeal under Section 24 of the Act, irrespective of deposit of amount due under 3rd proviso of Section 14(2) of the Act. Tenant has an option to terminate the execution of eviction order passed for arrears of rent by depositing amount due within 30 days of passing of eviction order, but at the same time, he has a right to file an appeal ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 14 CMPMO No. 245 of 2017 without resorting to provisions of 3rd proviso of Section 14(2) of the Act. Therefore, the Appellate Authority may or may not grant stay without or with deposit of amount due to be paid by tenant under 3rd .
proviso of Section 14(2) of the Act, as deposit or non deposit of amount due under 3rd provision of Section 14(2) of the Act is immaterial for exercising the powers under Section 24(2) of the Act.
Appellate Authority may or may not direct the tenant to deposit the arrears of rent at the time of grant of stay during pendency of appeal, 14(2) of the Act.
r to but that is not inhibited by the provisions of 3rd proviso of Section
20. Ratio of law laid down in Hans Raj Khimta's case is not that amount under 3rd proviso of Section 14(2) of the Act cannot be deposited in the Court in any eventuality, but for language of 3rd proviso of Section 14(2), the Court has held that for payment of amount due under this proviso, tenant has to tender the amount to landlord directly and it was held that in given facts and circumstances of that case, provisions of Section 21 of the Act, cannot be invoked, as there was neither any tender by the tenant nor any refusal by landlord in accepting the rent. It was further observed that it was not the case of the tenant that after depositing the amount in the Court, an intimation was sent to landlord, rather, no request was made to ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 15 CMPMO No. 245 of 2017 landlord for withdrawal of the same and it was only after expiry of statutory period of 30 days, when the landlord filed an application for execution, he learnt that amount stood deposited in the Court.
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Therefore, as per ratio of law laid down in Hans Raj Khimta's case, deposit of amount in the Court under 3rd proviso of Section 14 of the Act under exceptional circumstances, is not prohibited.
21. Under 3rd proviso of Section 14(2) of the Act, it is provided that if the tenant pays the amount due within a period of 30 days from the date of order, he shall not be evicted, as a result of order passed by Controller for eviction on the ground of non-payment of rent due from him. As discussed above, it is now settled that 3rd proviso speaks about payment of amount by the tenant and not deposit of the same by him in the Court. There is no specific provision dealing with the situated in which tenant can deposit the amount due under this proviso, instead of making payment to the tenant. However, Section 21 of the Act provides deposit of rent by the tenant in case landlord does not accept any rent tendered by tenant within the time referred to in Section 20 of the Act. This Section does not provide deposit of amount in the Court, where amount could not have been paid for exceptional circumstances beyond the control of tenant, like the landlord refuses to accept any ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 16 CMPMO No. 245 of 2017 rent tendered by tenant under 3rd proviso of Section 14(2) of the Act.
However, as discussed above, in exceptional circumstances, tenant can deposit the amount in the Court, in case he is able to make out .
the ground for such deposit, but uncertainly there must be clinching evidence that he had made sincere, serious and genuine efforts to make the payment to the landlord within 30 days from the date of order of his eviction, as provide under 3rd proviso of Section 14(2) of the Act. Making of payment to landlord under this proviso within 30 days, is a rule and deposit of such rent in the Court is exception and for making out an exception there must be pressing circumstances in favour of the tenant, which required to be brought on record and proved by him. Whether such exceptional circumstances exist in present case or not is a matter of fact.
22. Absence of any express provision for deposit of amount in the Court under 3rd proviso of Section 14(2) of the Act makes intention of legislature very clear that emphasis under this provision is for payment within 30 days to the landlord and therefore, strict interpretation of provisions of this proviso is warranted, meaning thereby that unless exceptional circumstances are made out, the tenant must have to make payment to the landlord within 30 days.
::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 17 CMPMO No. 245 of 201723. In present case, Appellate Authority has passed the interim order staying the operation of eviction order during pendency of appeal and in the said order he has based his finding on reasons .
for grant of such interim order on submissions of learned counsel for tenant claiming that landlord was refusing to take arrears of rent and the said arrears of rent had been deposited with the Rent Controller.
For substantiating these submissions, statement of tenant dated 7.1.2017 recorded by Rent Controller and order passed by Rent Controller on 7.1.2017 along with record report of Process Server was also placed on record and on the basis of these documents and oral submissions, Appellate Authority had concluded that notice to the landlord had been given within 30 days from the date of decision and thus first step had been followed by tenant and accordingly ratio of law laid down in Hans Raj Khimta's case was considered not to be applicable in the facts and circumstances of the case.
24. Landlord has referred an application bearing date 5.1.2009 for deposit of amount due in the Court, affidavit filed in its support and statement dated 7.1.2017 made by tenant in the Court in support thereof and also copy of challan, whereby arrears of rent were tendered by Rent Controller for deposit on 10.1.2017. Perusal of record of application dated 5.1.2009 filed to deposit amount due in ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 18 CMPMO No. 245 of 2017 the Court also depicts that as per report of concerned dealing assistant notice to landlord was issued on 11.1.2017. In application (on which date was typed as 5.1.2009), simple averments are that .
tenant wanted to deposit arrears of rent along with rent of month of January in the Court within one month from the date of order of eviction. This application was filed on 6.1.2017, which was ordered to be listed after report on 7.1.2017. It appears that thereafter an affidavit was sworn by tenant stating therein that he was not in talking terms with landlord and wanted to deposit the rent in the Court and in his deposition made on 7.1.2017 in the Court, tenant had stated that he intended to tender the rent in the court for the reasons that landlord was not in talking terms with him nor did he accept the same, whereas tenant was ready and willing to make the payment. The application is silent about the reasons for which the tenant intended to deposit the amount in the Court instead of making the payment thereof to landlord. The application was filed on 6.1.2017, whereas affidavit in support thereof, improving the reasons for tendering the rent in the Court, was sworn on 7.1.2017 and on the very same day statement of tenant was also recorded by the Rent Controller.
25. Application as well as affidavit and statement of tenant is completely silent about the fact that amount due was ever tendered to ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 19 CMPMO No. 245 of 2017 landlord as provided under 3rd proviso of Section 14(2) of the Act, much less anything stating about the date and time of such tender.
The Appellate Authority, on the basis of contents of order dated .
7.1.2017 passed by Rent Controller, has also considered the plea of tenant that notice about the deposit was also given to the landlord.
There is no notice or oral averments with regard to any such notice issued by tenant to the landlord for making payment of amount due.
The order dated 7.1.2017 depicts only passing of order to issue notice to landlord to receive the rent/amount due deposited by tenant in the Court and it is a fact, as evident from record that even the said notice was issued only on 11.1.2017, which was received back with undated report of Process Serving Agency, stating therein that landlord was not found at home, but his nephew Ishan was found there, who had informed that landlord was out of station. Thereafter, on 3.2.2017, notice was again issued for the next date i.e. 30.3.2017, which was served upon landlord. However, these notices also did not contain any reference of deposit of rent by tenant in the Court and also lacks about any information /direction to landlord to receive any such rent/amount due deposited by tenant in the Court. These summons only contains the title of case/application along with number thereof, address of landlord, next date of hearing and stamp ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 20 CMPMO No. 245 of 2017 of concerned Superintendent Grade-II with his initial. In these notices, no other information transmitted to the landlord. It is pertinent to note that 30 days after passing of eviction order dated .
9.12.2016 had expired on 8.1.2017.
26. Perusal of record transpires that at the time of allowing deposit of amount in the Court, the Rent controller, in its order, dated 7.1.2017, has mentioned that he had asked the counsel for the tenant as to why the amount had not been paid in favour of the landlord whereupon the counsel for the tenant had stated that tenant was ready to tender the rent in favour of landlord, but, the landlord was not in talking terms with the tenant and had not received the rent.
Thereafter, the Rent Controller had recorded the statement of the tenant to that effect. No such or any other reason was assigned at the time of filing of the application to deposit the amount due in the Court. Only, it was stated that tenant had been asked to deposit the arrears of rent and thus, he wanted to deposit the same in the Court.
The response of the counsel for the tenant as well as statement of tenant recorded in accordance with the response of the counsel that landlord was not receiving the rent despite tendering the same to him is not substantiated from the record. Despite that, on the basis of same, the Rent Controller concluded that tenant intended to tender ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 21 CMPMO No. 245 of 2017 the amount due within thirty days to landlord, but, for his refusal for acceptance, tenant was depositing the same in the Court.
Observation of Rent Controller that applicant accompanying the .
affidavit substantiate the plea of tenant is also contrary to the record.
There is nothing on record to establish and corroborate the statement of tenant and to establish on record that landlord had not received the rent.
27. The appellate authority has relied upon aforesaid order, dated 7.1.2017, passed by Rent Controller allowing the application to deposit the amount due in the Court, statement of tenant made before the Rent Controller, submissions of counsel for the tenant and also report of the Process Server for holding that ratio of law laid down in Hans Raj Khimta's case is not applicable; that notice was issued by the tenant to landlord for receiving the rent; landlord was refusing to accept the same; and on giving notice to landlord within thirty days from the date of decision, first step has been followed by the tenant.
Whereas it emerges from record that no notice, either by tenant or by the Rent Controller, was issued to the landlord within thirty days of passing of the order to deposit the amount due. In fact, tenant has not issued any notice and notice by Rent Controller was issued on 11.1.2017. Perusal of notices issued on 11.1.2017 by the office of ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 22 CMPMO No. 245 of 2017 Rent Controller reflects that these notices do not contain any information with regard to deposit of amount by the tenant in the Court. As these notices were not issued within thirty days nor .
tendered to landlord during that stipulated period, the report of Process Server thereon that landlord was not found at home is inconsequential for deciding the issue in dispute in present case.
28. Finding of the appellate authority, that Hans Raj Khimta's case is not applicable, is also misconceived. Ratio of law laid down in Hans Raj Khimta's case is that payment of amount due to the landlord under 3rd proviso of Section 14 (2) of the Act, is rule and deposit of the same in the Court is exception and for exercising the exception, a case is to be made out on the basis of substantial, probable and reliable evidence on record adopting strict interpretation of the rule. Therefore, in every case, where such issue arises, Hans Raj Khimta's case is relevant.
29. As discussed above, the appellate authority has not taken into consideration the entire facts and circumstances at the time of passing of impugned order, but, may be for the reason that at that time, he was considering the interim stay application on the basis of material placed before him; better course to him would have been, before confirming the interim stay and also returning its findings with ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 23 CMPMO No. 245 of 2017 regard to applicability of Hans Raj Khimta's case, to requisition the entire record and to pass the order accordingly.
30. Failure to make payment within 30 days shall make the .
eviction order passed for arrears of rent enforceable, subject to right of tenant to file an appeal against such eviction order, whereas, payment of amount due under 3rd proviso excludes the right of landlord to evict the tenant for such arrears of rent. Appellate authority is competent to grant interim stay with respect to eviction order under challenge in appeal without insisting for deposit of amount and tenant also has right to file appeal without depositing the amount due and in such a situation, appellate authority may or may not insist for deposit of amount for grant of interim stay. However, in present case interim stay has been granted on the ground that amount due has been paid in terms of 3rd proviso of Section 14 (2) of the Act. It is undisputed that tenant has preferred an appeal against the eviction order and landlord has also filed Execution Petition. Any finding in favour of either party would prejudice the right of another party in pending appeal preferred by tenant.
31. Therefore, instead of returning findings on merits as to whether tenant has made payment of amount due as prescribed in 3rd proviso of Section 14(2) of the Act or not, matter is disposed of with ::: Downloaded on - 09/07/2018 22:59:38 :::HCHP 24 CMPMO No. 245 of 2017 observation that impugned order passed by Appellate Authority in the interim application shall not be considered as final verdict on the issue and its findings shall be confined only to the disposal of said .
interim stay application preferred by tenant being passed on the basis of limited material placed before appellate Court and the Appellate Authority shall decide the said issue afresh during final adjudication of the appeal without being influenced by anything and obviously, on the basis of material already placed on record, but keeping in view the ratio of law laid down by the Courts, as discussed supra and also, considering the entire material already on record, but not made available before the said Authority at the time of disposing of interim stay application.
32. Parties are directed to appear before Appellate Authority at Rohru on 18th July, 2018, which shall decide the appeal including the issue raised in present petition in light of the observations made hereinabove, as expeditiously as possible, keeping in view the order of seniority of the appeal viz-a-viz other pending appeals.
33. Petition is disposed of in aforesaid terms.
(Vivek Singh Thakur), th 5 July, 2018 Judge.
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