IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 260 of 2002 Date of Decision : October 19 , 2011 Om Parkash Appellant Versus Smt. Sarojni Devi Respondent Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Sanjeev Kuthiala, Advocate, for the appellant. For the respondent : Mr. Bhupender Gupta, Sr. Advocate, with Mr. Neeraj Gupta and Mr. Janesh Gupta, Advocates, for the respondent. Justice Sanjay Karol, J. (Oral) This is the defendant’s regular second appeal filed under Section 100 of the Code of Civil Procedure. The same was admitted on the following substantial questions of law:- “1. Whether the learned courts below misread and mis-appreciated the oral and documentary evidence, Ext. PW1/A, Ext. PA, Ext. PB and the statements of PW- 1, PW-2, PW-3 and DW-1 which has resulted in vitiating the findings? 2. Whether the arrears of amount due can be recovered beyond the statutory period of 3 years with Whether reports of Local Papers may be allowed to see the judgment? 2 respect to arrears of rent, contrary to the embargo of Section 52 of the Indian Limitation Act? 3. Whether a person, who is a stranger in the relationship of landlord and tenant between the parties and who does not fall within the scope of the definition of Section 2(a) of the H.P. Urban Rent Control Act, 1987 is competent to file a petition for eviction and thereafter a suit for recovery?” 2. During the course of hearing it was fairly stated that only substantial question of law No. 1 arises for consideration. 3. It cannot be disputed that plaintiff Smt. Sarojni Devi (respondent herein) had let out commercial premises in Kullu bazar to defendant Sh. Om Parkash (appellant herein). Order dated 24.11.1998 (Ext. PW 1/A) clearly establishes the fact that the Rent Controller, Kullu, District Kullu, H.P., on the asking of the plaintiff had passed order of eviction of the defendant from the said tenanted premises in Rent Petition No. 1 of 1997, titled as Smt. Sarojani Devi and another versus Sh. Om Parkash. The operative portion of the order reads as under:- “… Thus, by putting reliance on the statement of P.W. 1 Sat Parkash, I hold that respondent has not paid the balance amount of Rs. 10,000/-, towards the payment of Rs. 25,000/-, the security amount, as per rent deed, executed between the parties, on 16.1.1995. In the same way, the evidence of the petitioner that respondent has not paid rent of the demised premises @ Rs. 3,000/- per month, since 1/8/95 to 31/12/96, has 3 also to be believed because the respondent has failed to establish that he has paid the rent for the said period. The perusal of the petition shows that the rent for the said period, i.e., from 1/8/95 to 31/12/96 has been calculated to be Rs. 36,000/-, but the arrears of rent for the said period should have been Rs. 51,000/-. The present petition has been filed on 24/12/96. The rent for 24 days for the month of December, 1996 comes out to be Rs. 2400/-. Thus, the arrears of rent, which are due, from the respondent, w.e.f. 1-8-95 to 24-12- 96, i.e. till the date of filing of this petition are Rs. 50,400/-. The petitioners are also entitled to recover the balance security amount of Rs. 10,000/-. Thus, the total arrears of rent are to the tune of Rs. 60,400/-. Accordingly, I hold that respondent is in arrears of rent w.e.f. 1/8/95 to 24th December, 1996 to the tune of Rs. 50,400/- plus Rs. 10,000/-, the balance security amount, totalling Rs. 60,400/-. My answer to this issue, is in yes. RELIEF 10. In view of my findings on the above issue, I allow this petition and order the eviction of the respondent, from the demised premises, on grounds of non-payment of arrears of rent, i.e. Rs. 50,400/- w.e.f. 1-8-95 to 24-12-96 plus Rs. 10,000/- the balance amount of security. In case, the respondent tenders/deposits the above said arrears of rent, alongwith interest @ 9% per annum, with costs of the petition, quantified at Rs. 300/-, within one month from the date of order, he shall not be liable to be evicted from the demised premises. Memo of costs be 4 prepared. The file, after due completion, be consigned to G.R.R.” [Emphasis supplied] 4. It is not in dispute that the said order has attained finality and the defendant defaulted in complying with the same and as such, in an execution petition filed by the plaintiff, defendant was evicted from the premises on 24.3.1999. 5. Since defendant failed to pay the arrears of rent for the period 24.12.1996 to 24.3.1999, suit for recovery of a sum of `1,24,060/-, on the agreed rent of `3000/- per month, along with interest @ 18% p.a. was filed by the plaintiff on 9.4.1999. Defendant contested the same, inter alia, on the ground that rent stood paid to the plaintiff. 6. On the basis of pleadings of the parties trial Court framed the following issues:- “1. Whether the plaintiff is entitled to recover the suit amount. If so, to what extent and at what rate of interest as alleged? OPP 2. Relief.” 7. In terms of judgment and decree dated 19.6.2001, passed in Civil Suit No. 79 of 1999, titled as Smt. Sarojni Devi versus Shri Om Prakash, Senior Sub Judge, Kullu, H.P. decreed the suit by awarding interest @ 12% p.a. 5 8. In the defendant’s appeal, the District Judge, Kullu in terms of judgment and decree dated 1.4.2002, passed in Civil Appeal No. 77 of 2001, titled as Om Parkash versus Smt. Sarojni Devi, reduced the decretal amount from ` 1,24,060/- to `1,08,000/- for the reason that in law plaintiff could have recovered the amount only for a period of three years prior to the institution of the suit. 9. Finding fault with the judgment, Mr. Sanjeev Kuthiala, learned counsel for the appellant/defendant has contended that the Courts below failed to account for the sum of `25,000/- lying as security with the plaintiff, in terms of agreement dated 16.1.1995. According to him this amount was required to be adjusted against the decretal amount. My attention is invited to the statement of Smt. Sarojni Devi (PW-1) where she admits that a sum of `10,000/- against the security deposit was not received by the plaintiff, and also the statement of Sh. Sat Parkash (PW-2) who admits that sum of `15,000/- towards security deposit was received by the husband of the plaintiff. 10. On the other hand Mr. Bhupender Gupta, learned Senior Counsel for the plaintiff has invited my attention to the order dated 24.11.1998 (Ext. PW1/A) passed by the learned Rent Controller to contend that the amount of security was not 6 required to be adjusted since the defendant was required to pay the same in terms thereof. 11. I have perused the record. It is quite apparent that order (Ext. PW 1/A) has attained finality. Learned Rent Controller had directed the defendant to pay a sum of `10,000/- in addition to the arrears of rent. The same was not paid. The amount of security deposit, in any event is not subject matter of the instant suit. No recovery of this amount is sought to be effected by the plaintiff in the instant suit. Even though defendant admitted execution of the agreement dated 16.1.1995 between the parties but none-the-less he failed to place the same on record either before the Trial Court or lower Appellate Court. There is no justification for allowing the defendant’s application now taking on record the agreement dated 16.1.1995 for construing terms thereof. Plaintiff’s suit was with respect to arrears of rent only and the Courts below concurrently held the defendant liable to pay the same till the time of taking over possession of the tenanted premises and that too by the process of law. Whether the amount of security was to be forfeited in the event of breach of the terms of the agreement or whether the same was to be adjusted towards the rent is not established in law, on record. 7 12. Admissions with regard to the receipt of the security amount would in no manner advance the case of the defendant in view of order Ext. PW1/A which undisputedly has attained finality. 13. As such, I find no fault with the impugned judgment and decree passed by the Court below. 14. It cannot be said that the Courts below have mis-read, mis-appreciated any evidence (oral or documentary) placed by the parties on record. It also cannot be said that the findings are erroneous, perverse or have resulted into travesty of justice. Substantial question of law is answered accordingly. 15. Present appeal is dismissed. Pending application(s), if any, also stand disposed of accordingly. (Justice Sanjay Karol), Judge. October 19 , 2011 (PK)