IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 120 of 2010. Reserved on: 31.05.2011. Decided on: 29.07.2011. _____________________________________________________ Naresh Kumar and others. …Petitioners. -Versus- Tulsi Ram. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioners. : Mr. Romesh Verma, Advocate. For the respondent. : Mr. Bhuvnesh Paul, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This revision petition is directed against the judgment dated 30.06.2010, passed by the learned Appellate Authority, Shimla in Civil Misc. Appeal No. 46-S/14 of 2009. 2. Material facts necessary for the adjudication of this petition are that the petitioners-decree holders-landlords (hereinafter referred to as “the landlords” for convenience sake) had filed a petition against the respondent-judgment debtor- tenant (hereinafter referred to as “the tenant” for brevity sake) on the ground of arrears of rent and also for subletting of the premises by the tenant in favour of his sons without written consent of the landlord. The learned Rent Controller, Court No. (1), Shimla dismissed the petition, as far as the ground of subletting is concerned, however, the petition was allowed on the ground of non-payment of arrears of rent vide judgment dated 21.04.2004. The learned Rent Controller, Court No. (1), 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - Shimla has ordered the tenant to deposit a sum of `8658/- with interest @ 9% per annum from the date of accrual of amount due with costs of litigation, i.e., `1000/-. The order dated 21.04.2004 was ex parte. The tenant preferred an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte order, but the same was rejected on 14.12.2007. Thereafter, the landlord filed an Execution Petition for the execution of order dated 21.04.2004 vide Annexure P-3. The tenants filed objection petition under Section 47 of the Code of Civil Procedure. The landlords filed reply to the objections filed under Section 47 of the Code of Civil Procedure. The learned Rent Controller allowed the objections petition No. 2-11 of 2009 on 29.06.2009. The landlords preferred an appeal before the learned Appellate Authority. The same was dismissed on 30.06.2010. Hence, this revision petition against the judgment dated 30.06.2010. 3. Mr. Romesh Verma, learned counsel for the petitioners has vehemently argued that since the tenant has not deposited the amount ordered by the Rent Controller on 21.04.2004, he is liable to be evicted. He has put strong reliance on Wazir Chand Vs. Ambaka Rani and another Latest HLJ 2006, 271. 4. Mr. Bhuvnesh Paul, learned counsel for the respondent has supported the order dated 29.06.2009, passed by the learned Rent Controller and judgment dated 30.06.2010, passed by the learned Appellate Authority, Shimla. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. - 3 - 6. It is not in dispute that the eviction petition was dismissed by the learned Rent Controller as far as the ground of subletting is concerned. The order of eviction has been passed only for non-payment of arrears of rent on 21.04.2004, whereby the tenant was ordered to pay a sum of `8658/- with interest @ 9% per annum from the date of accrual of amount. This order has attained finality, since no appeal was preferred against this order. The application preferred by the landlord under Order 9 Rule 13 of the Code of Civil Procedure has been dismissed by the learned Rent Controller on 14.12.2007 by passing a reasoned order. The issues were framed by the learned Rent Controller, Court No. 1, Shimla, H.P. in objection petition No. 2-11 of 2009 on 30.05.2008. 7. Smt. Rama Devi has stepped into the witness box as OW-1 in support of her objections. According to her, she was residing in the disputed premises alongwith her husband, father-in-law and three children. According to her, the arrears of rent were tendered to Shri Naresh Kumar, who was the power of attorney of Shri Rewa Nand (decree-holder) on 05.04.2004 vide receipt Ex. OW-1/A. 8. RW-1 Naresh Kumar has reiterated the averments made in the reply to the objections. He has, though admitted that he had received the entire rent on 05.04.2004, but under protest. 9. The learned Rent Controller allowed the objection petition on 29.06.2009 by observing that the learned Rent Controller in his eviction order has not mentioned what rent was assessed by him. It was also observed that the Execution - 4 - Petition was not supported with the order of the learned Rent Controller in order to assess the rent of the disputed premises and the amount which was paid by the judgment debtor alongwith costs. According to the learned Rent Controller, the arrears of rent w.e.f. 01.01.1990 to 31.03.2004 had already been paid by the judgment-debtors to the decree-holder, which he had received prior to the order of eviction dated 21.04.2004. According to OW-1, the rent up to 31.12.2004 amounting to `9000/- has been paid to the decree-holder on 05.04.2004. In view of these observations, the objection petition was allowed. 10. The learned Appellate Authority, Shimla has observed that the landlord has concealed the material fact of receiving of a sum of `9000/- towards the arrears of rent w.e.f. 01.01.1990 to 31.03.2004. This amount was received by the landlord on 05.04.2004 and the eviction order was passed on 21.04.2004. According to the learned Appellate Authority, if this fact of receipt of amount had been brought to the notice of the learned Rent Controller, he ought not to have passed the order of eviction. The Court is of the considered view that both the Courts below have erred in law. They could not go beyond the order dated 21.04.2004. The order dated 21.04.2004 was required to be executed as such. The tenant was duly served for 25.08.2003, but he did not appear. In these circumstances, he was proceeded ex parte on 25.08.2003. His application under Order 9 Rule 13 of the Code of Civil Procedure also stood rejected on 14.12.2007. The payment of arrears of rent during the pendency of proceedings before the learned Rent Controller will not make the order non-executable. Moreover, this fact has - 5 - never been brought to the notice of the learned Rent Controller. Learned Rent Controller has held the landlords entitled to a sum of `8658/- with interest @ 9% per annum from the date of accrual of amount due with costs of litigation, i.e., `1000/-. 11. According to Mr. Romesh Verma, learned counsel for the petitioners, the amount due was `15,238/-. This amount has not been deposited by the tenant within a period of 30 days. The expression “amount due” has been explained by a Division Bench of this Court in Wazir Chand Vs. Ambaka Rani and another Latest HLJ 2006 271, which include the arrears of rent as well as interest upon the arrears of rent and the costs of the application. The Division Bench has held as under: “8. 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 percent 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 Vs. Sarla Kumari and others (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 good law, shall stand over-ruled.” 12. Accordingly, in view of the observations and discussions made hereinabove, the revision petition is allowed. The order dated 29.06.2009, passed by the learned Rent - 6 - Controller, Court No. 1, Shimla and the judgment dated 30.06.2010, passed by the learned Appellate Authority are set aside. The tenant is liable to be evicted. Consequently, the learned Rent Controller/Executing Court is directed to issue the warrant of possession/eviction on the basis of order dated 21.04.2004 on or before 29th August, 2011. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge July 29, 2011. (bhupender) - 7 - `