IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 225 of 2009 Reserved on: 15.3.2011 Date of decision: 26.04.2011 Rewat Ram …Petitioner. Versus Ashok Kumar and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Vikram Thakur, Advocate. For the respondents No.2 to 4: Mr. Paras Dogar, Advocate. For the respondents No. 5 to 7: Mr. Mahesh Kumar, Advocate. Deepak Gupta, J. 1. The present petition is directed against the order of the Rent Controller, Joginder Nagar, dated 6.1.2009 whereby he rejected the execution petition filed by the petitioner and proforma respondents No. 5 to 7 (here-in-after referred to as the landlords). 2. The brief facts of the case are that the landlords filed a petition for ejectment of respondents No. 2 to 4 here-in and Smt. Agyawati, who has since expired in the Court of the Rent Controller, Jogindernagar. The learned Rent 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Controller vide his order dated 22.3.1999 held that the tenants were liable to be evicted on the ground of non-payment of rent and the operative portion of the eviction order reads as follows- “Therefore, it is proved on record that the respondents are in arrears of rent w.e.f. October, 1995 and the rent if calculated at the rate of Rs.50/- per month from October, 1995 till 30.6.1997 on which date the petition was filed, the same comes to Rs.1050/- and as such the respondents can be safely held to be in arrears of rent amount of Rs.1050/- and the respondents are also held liable to pay interest upon the said arrears of rent at the rate of 9% per annum to the petitioners.” 3. It is obvious that the Rent Controller calculated the arrears of rent due only for the period from October, 1995 till 30.6.1997 when the petition was instituted and did not calculate the arrears of rent, if any, which fell due pending the disposal of the petition. 4. The tenants deposited a sum of Rs.1780/- as rent on 18th April, 1999. According to the landlords, on 18th April, 1999 the amount due and payable alongwith interest was Rs.1788.62 paise and therefore, there was a short fall of Rs.8.62 paise in depositing the rent and hence the tenants 3 are liable to be evicted for non-compliance of the eviction order. 5. Section 14(1) and 14(2)(i) of the H.P. Urban Rent Control Act read as follows:- “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. (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 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 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% per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have dully paid or tendered the rent within the time aforesaid; 4 Provided further that if the arrears pertain to the period prior to the appointed ay, the rate of interest shall be calculated at the rate of 6% 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” 6. A bare reading of this provision clearly shows that a landlord can apply for eviction of a tenant in case the tenant has not paid or tendered the rent due from him in respect of the rented premises within the stipulated time. Since the Rent Control legislation is in the nature of a legislation to protect the tenant, the legislature in its wisdom included a proviso that if the tenant on the first hearing of the application for ejectment pays or tenders the arrears of rent alongwith interest @ 9% per annum alongwith the costs assessed by the Rent Controller, the tenant shall be deemed to have duly paid or tendered the rent within time and therefore no order of eviction can be passed. 7. We are not concerned with the second proviso since admittedly the arrears relate to the 5 period after the appointed day i.e. 18th August, 1997 and all the arrears which are subject matter of this petition fell due after the said date. 8. By the third proviso to this sub section the legislature gave another protection to the tenant. Even after the order of eviction is passed the tenant can avoid being affected if he pays or deposits the arrears of rent alongwith interest @ 9% per annum alongwith costs of the petition as assessed by the Rent Controller. 9. These provisions have come up for consideration in a number of cases. A Division Bench of this Court in Om Parkash vs. Sarla Kumari and others, 1991(1) Sim.LC 45, held that the “amount due” in the third proviso is only the arrears of rent and not interest. This judgement of the Division Bench was overruled by the Apex Court in Madan Mohan and another vs. Krishan Kumar Sood, 1994 Supp(1) SCC 437, wherein the Apex Court held as follows:- “12. A reading of the aforesaid relevant part of the section shows that sub-section (1) of Section 14 creates a ban against the eviction of a tenant except in accordance with the provisions of the Act. The ban is liable to be lifted. Sub-section (2) of Section 6 14 provides the circumstances in which the ban is partially lifted. It contemplates that where an eviction petition is filed, inter alia, on the ground of non-payment of rent by the landlord, the Controller has to be satisfied that the tenant has neither paid nor tendered the rent in the circumstances mentioned in clause (i) of sub Section (2) of Section 14. He has to arrive at this satisfaction after giving a reasonable opportunity of showing cause against it to the tenant. But there may be cases where the tenant, on being given notice of such an application for eviction, may like to contest or not to contest the application. The tenant is given the first chance to save himself from eviction as provided in the first proviso to clause (i) of sub-section (2) of Section 14. This first proviso contemplates that the tenant may on the first hearing of the application for ejectment pay or tender in court the rent and interest at the rate mentioned in the proviso on such arrears together with the cost of application assessed by the Controller and in that case the tenant is deemed to have duly paid or tendered the rent within the time as contemplated by clause (i) of sub section (2) of Section 14. Where the tenant does not avail of this opportunity of depositing as contemplated by the first proviso and waits for an ultimate decision of the application for eviction on the ground of non- payment of rent, the Controller has to decide it and while deciding, the Controller has to find whether the ground contained in clause (i) of sub-section (2) of Section 14 has been made out or not. If the Controller finds that the ground as contemplated by clause (i) of sub-section (2) of Section 14 is made out, he is required to pass an order of eviction on the ground of non-payment of rent due from him. A second opportunity to avoid eviction is provided by 7 the third proviso to clause (i) of sub section (2) of Section 14. But the second opportunity is provided after the order of eviction. The benefit of avoiding eviction arises if the tenant pays the "amount due" within the period of 30 days of the date of order. 13. The question is what is the meaning of the words "amount due" occuring in the third proviso to clause (i) of sub-section (2) of Section 14 of the Act. 14. It will be noticed that there is no provision in the Act for giving powers to the Controller to direct payment or deposit of 'pendente lite' rent for each month during the pendency of the petition for eviction of the tenant. First proviso to sub-section (2) of Section 14 shows that in order to show payment or valid tender as contemplated by clause (i) of Ss. (2) of Section 14 by a tenant in default, he has to pay on the first date of hearing the arrears of rent along with interest and costs of the application which are to be assessed by the Controller. Surely where a tenant does not avail of the first opportunity and contests the eviction petition on the ground of non-payment of arrears of rent and fails to show that he was not in default and court finds that the ground has been made out, an order of eviction has to follow. Therefore, it does not stand to reason that such a tenant who contests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment. The third proviso to clause (i) of Ss. (2) of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant. The "amount due" occurring in the third proviso in the context will mean the amount due on and up to the date of the order of eviction. It will take into account 8 not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction petition as well. If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the "amount due" will be only arrears which have not been paid. The landlord, as per the scheme of the section, cannot be worse off vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing. If the interpretation given by the High court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and costs on the first date of hearing and prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction. This could not be the intention of the legislature. 15. In such cases it will be advisable if the Controller while passing the order of eviction on the ground specified in clause (0 of Ss. (2 of Section 14 of the Act specifies the "amount due" till 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, 9 17. Surely the legislature which made the Act could not have envisaged that after the parties finish off one round of litigation, the party should be relegated to another round of litigation for recovery of rent which accrued pendente lite. Whatever protection Rent Acts give they do not give blanket protection for "non-payment of rent". This basic minimum has to be complied with by the tenants. Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent.” 10. The Apex Court in no uncertain terms held that a tenant who pays the rent after an order of eviction is passed can in no circumstances be placed on a better footing than a tenant who pays the arrears of rent on the first date of hearing. A reading of the first proviso shows that on the first date of hearing, a tenant, can avoid an order of eviction if he deposits not only the rent but also the interest due thereupon and the costs as assessed by the Rent Controller. Obviously, the interest has to be calculated from the date when the interest fell due and is not the day of the institution of the petition or any other date. 11. The question which arises in this petition is whether a tenant who deposits the amount due 10 after an order of eviction is passed can claim that he is liable to deposit the interest only from the date of the institution of the petition? The answer is obviously no. The Full Bench of this Court in Wazir Chand vs. Ambaka Rani and another, 2005(2) Shim.L.C.498 again considered the import of Section 14(2)(i) after taking note of the judgement of the Apex Court in Madan Mohan’s case supra and held as follows:- “9. Taking a cue from the aforesaid observations of their Lordships of the Supreme Court in Madan Mohan and another vs. 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 of Madan Mohan and another vs. 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 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 ruing the pendency of eviction petition, right up to the date of passing of the eviction order. The purpose behind the Rent Controller specifying in the eviction order the exact amount of rent payable by the tenant is to directly link it with the third 11 proviso so as to effectively enable the tenant to know with certainty the amount that he is liable to pay to save his eviction. 10. There can be situations and circumstances where a tenant may have a grievance that even though the Rent Controller in the final eviction order has specified the amount of rent payable by the tenant to the landlord, yet while doing so the Rent Controller did not take into account any amount paid by the tenant by way of arrears of rent during the pendency of the eviction petition. Disputes and controversies can arise with regard to this aspect of the matter, in as much as in certain situations and circumstances a tenant can contend and agitate that during the pendency of the petition he had been paying the rent to the land lord and despite such payments having been made by him, the Rent Controller did not reflect such payments nor took note of them, nor adjusted such payments while assessing and specifying, in the course of final eviction order the rent payable by the tenant to the landlord. To avoid the happening of any such eventuality, we wish to observe and direct that the onus to prove that the tenant had been paying any rent or arrears of rent during the pendency of the eviction petition, with a view to claim adjustment of such amount in the final analysis, would lie on the tenant alone and upon no one else. The only way in which such apprehended dispute can effectively be avoided is for the tenant to conclusively establish before the Rent Controller, before the passing of the final eviction order, that the tenant had actually paid a specified amount by way of arrears of rent during the pendency of eviction petition. A duty, therefore, would be cast always on the tenant to establish beyond any doubt before the Rent Controller, before 12 the passing of final eviction order, that during the pendency of the eviction petition the tenant had paid a particular amount towards the arrears of rent so that the tenant gets the amount adjusted in the final analysis. With a view to minimize or ourtail any scope for any dispute on this account we wish to observe and lay down as a binding principle of law that any prudent tenant in normal course of wisdom would like to avoid any dispute about establishing the fact of such payment being made during the pendency of the eviction petition by taking recourse to Section 21 of the 1987 Act because the endeavour of every tenant should be to establish beyond any doubt conclusively the fact of any amount of rent having been paid during the pendency of the petition. After all, when the landlord and the tenant are locked in a litigation over the fact of the tenant allegedly having committed defaults and the landlord seeking eviction of the tenant from the property in question on the ground of default, it cannot legitimately be believed that the tenant in the face of such litigation would risk payment to the landlord without his insisting on conclusive proof of such payment having been made. The Rent Controller, therefore, while taking not of any such submission of the tenant has to take into account above referred circumstances and, therefore, while passing the final eviction order and specifying the exact amount payable, has to give credit and adjustment only to such amount which the tenant claims it has paid as has been conclusively established. Any claim of the tenant which is shrounded in doubt, or which does not have the trappings of any conclusive proof, has to be rejected.” 13 12. Thereafter, a learned Single Judge of this Court in Bilasi Ram vs. Bhanumagi, 2007(1) Shim.LC 88, while considering the provisions of Section 14 held as follows:- “4. By now it is well established, in the light of the authoritative pronouncements by a Full Bench of this Court in the case of Wazir Chand vs. Ambaka Rani and another, reported in 2005 (2) Shim. L.C. 498, based upon and in the light of the ratio in the case of Madam Mohan and another vs. Krishan Kumar Sood, reported in 1994 Supp (1) Supreme Court Cases 437, that the expression “amount due” occurring in the aforesaid third proviso includes the arrears of rent, the interest thereupon @ 9% per annum and the amount of costs. It is also a well settled proposition of law by now that if the tenant fails to deposit the amount due within a period of 30 days from the date of the order, the only option available in law is to enforce the eviction order. Whether the shortfall is Re.1/- or the shortfall 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. 5. While interpreting the aforesaid third proviso in the light of the fact situation that there occurred a shortfall, howsoever small, in the matter of deposit of the amount due, the Court cannot take into consideration either any extenuating circumstance or any circumstance based upon leniency or 14 amplitude or any other circumstance which may be based upon or linked with any compelling reason or reasons of difficulty or discomfiture. If there is a shortfall with respect to the deposit of the amount due within a period of 30 days or if the amount due has not been deposited within the aforesaid period of 30 days and even if the deposit is late by one day, concession granted under the aforesaid third proviso immediately goes away. There is no escape to that.” 13. In fact as per the law now laid down it is obvious that the amount due shall not only include arrears upto the date of the filing of the petition but must include the arrears of rent upto 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 judgements 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/- alongwith interest. The only question is whether he has deposited the full amount of 15 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 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. 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. Therefore, the interest payable is 50 x 42 x 43 x 9 2 x 12 x 10 = 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 16 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. 15. In view of the law discussed above, if there is a short fall, the Court has no right to extend the time, whatever be the short fall. In this case, the tenant not only did not deposit the amount which was due upto the date when he deposited the arrears but there is a shortfall in the deposit of arrears also. Therefore, the landlord is entitled to the possession of the premises. The petition is accordingly allowed and the order of the learned Rent Controller is set-aside with costs assessed