Brij Mohan vs Subhash Jain

Satyen Vaidya, J

The instant petition has been filed against the order dated 16.9.2025, passed by the learned Rent Controller, Sirmaur at Nahan in Execution Petition No. 12 of 2021, whereby the objection petition filed by the petitioner herein (tenant)has been dismissed and a warrant of possession has been ordered to be issued.

Respondent herein is holder of an order of eviction against the petitioner in terms of judgment dated 18.7.2018, passed by the learned Rent Controller-I, Nahan in Rent Petition No. 2/2 of 2013 as modified in appeal by the learned Appellate Authority-II, Sirmour at Nahan vide judgment dated 29.9.2018 in Rent Appeal No. 6-N/14 of 2018.

The parties, hereafter, for the sake of convenience, shall be referred to as tenant and landlord respectively.

The landlord had filed Rent Petition No. 2/2 of 2013 against the tenant on the grounds of personal bonafide requirement, change of user and arrears of rent. The learned Rent C ntroller-I, Sirmour at Nahan vide judgment dated 18.7.2018 allowed the petition only on the ground of arrears of rent. The landlord was held entitled to arrears of rent in the sum of Rs. 7,590/- along with nterest at the rate of 9% per annum till realization. It has been held that the tenant would not be evicted on the ground of arrears of rent if he deposited the amount within one month of the order.

Indisputably, the tenant had deposited the arrears of rent along with interest, as held due by the learned Rent Controller, within thirty days of the date of passing of order.

The landlord having remained dissatisfied with the order of eviction passed by the learned Rent Controller had assailed the same in appeal before the learned Appellate Authority-II, Sirmour at Nahan by way of Rent Appeal No. 6-N/14 of 2018. The appeal was decided on 29.9.2018. The order of learned Rent Controller was modified to the extent that the tenant was adjudged to be in arrears of rent to the t ne of Rs. 1,04,891/-. Since, the sum of Rs. 7,590/- was held to have already been deposited by the tenant, he was held liable to pay balance amount of Rs. 97,301/- within a period of thirty days from the date of order passed by the learned Appellate Authority.

It is again not in dispute that the tenant had deposited the amount with the learned Rent Controller, as held due by the learned Appellate Authority, within thirty days of the order passed by the said authority.

The landlord filed execution petition to execute the order of eviction passed against the tenant with the allegation that the tenant had failed to pay the amount of arrears of rent, as held due by the learned Rent Controller and learned Appellate Authority, to the landlord.

The tenant filed objection petition It was averred that the amount of arrears of rent were deposited by the tenant with the learned Rent Controller for want of residential address of the landl rd. It was further stated that the information in that behalf was given to the learned counsel representing the landlord at the relevant time. In order to show that the landlord had notice of deposit of arrears of rent by the tenant, reliance was placed on the contents of a notice issued by the landlord to the tenant on 26.10.2020, wherein the claim was made for the rent arrears w.e.f. October, 2018 till June, 2020 only without claiming any rent before October, 2018. It was also mentioned in the objection petition that in response to the notice dated 26.10.2020 of landlord, the tenant had sent a reply dated 5.11.2020 along with a demand draft of 11,140/- in favour of landlord with the information that out of demanded amount of Rs. 23,547/-, the balance had already been deposited by the tenant with the learned Rent Controller in excess of what had been ordered by the learned Rent Controller and the learned Appellate Authority. According to the tenant, the landlord had accepted the demand draft and had not made any further correspondence with the tenant.

The landlord filed reply to the objection petition and did not dispute the issuance of notice dated 26.10.2020 or reply sent by he enant on 5.11.2020. The landlord, however, alleged that he had not been informed about the deposit of rent by the tenant with the learned Rent Controller as the tenant had not sent any information in that behalf. It was further stated that the tenant was aware about the fact that one Sh. Dinesh Jain was the a ent of the landlord and as such, the information about deposit of rent should have been given to said agent.

The learned Rent Controller has dismissed the objection petition of the tenant vide impugned order. It has been held that the tenant had not provided any intimation to the landlord qua deposit of rent with the learned Rent Controller.

I have heard learned counsel for the parties and have also gone through the record carefully.

In Hans Raj Khimta vs. Smt. Kanwaljeet Kaur @ Sardarni Babli Latest HLJ 2016 (H ) 3030, it has been held that to constitute a valid tender, rent has either to be paid directly to the landlord or if deposited in the Court, intimation qua such dep sit has to be given to the landlord within thirty days from the date of passing of the order.

It is in the backdrop of the verdict in Hans Raj Khimta (supra) that the instant controversy has surfaced.

Indisputably, the tenant had made deposits of t e arrears of rent as held due by the learned Rent Controller and subsequently by the learned Appellate Authority in the Court within thirty days of passing of the respective orders. It is also not the case that the tender was short. The issue is whether the tenant had informed the landlord regarding the deposit of amount within thirty days.

As per version of tenant, he had informed the counsel representing the landlord about deposit of rent, as he was not having the address of the landlord. In order to prima-facie support his contention, the tenant had placed reliance on the conduct of landlord whereby he had claimed arrears of rent w.e.f. October, 2018 onwards by issuance of notice dated 26.10.2020. It had also been sought to be shown that the tenant in response to aforesaid notice of landlord had remitted a lesser amount than claimed by the landlord by informing that excess amount had been deposited before the learned Rent Controller and was req ired to be adjusted.

Learned c unsel for the tenant has also placed reliance on another fact whereby the landlord had preferred an application before the learned Rent Controller on 15.3.2022 for refund/release of the amount of arrears of rent deposited by the tenant, which subsequently was withdrawn on 21.4.2022 on the premise that execution petition had already been filed. In support of such contention, the copies of documents i.e. the application for withdrawal and order sheets of the proceedings held by the learned Rent Controller have been placed on record.

The impugned order reveals that the learned Rent Controller has not taken into consideration the aforesaid facts while dismissing the objection petition of the tenant. The learned Rent Controller has apparently been swayed only by the fact that the tenant had no document with him to prove his contention.

As noticed above, the specific averment of tenant was that he had informed he counsel of landlord at the relevant time. As per tenant, he had to do so in absence of address particulars of the landlord. In the memo of parties filed by the landl rd himself in Rent Petition No. 2/2 of 2013 as also in Rent Appeal No. 6-N/14 of 2018, the address of the landlord was submitted as under:

“Subhash Jain, son of Sh. Summat Prasad Jain, resident of Bara Chowk, Nahan, District Sirmour, H.P. presently residing at Mumbai.”

It was only in the execution petition No. 12/10 of 2021 filed on 12.11.2020 that the detail particulars of the address of landlord at Mumbai were provided. In these circumstances, the plea of the tenant that he had informed the counsel of landlord regarding deposit of arrears of rent for want of address of the landlord could not have been brushed aside without affording an opportunity to prove the fact whether the tenant had informed the counsel of the landlord.

The ratio in Hans Raj Khimta cannot be interpreted to mean that the intimation regarding the deposit of arrears of rent by the tenant to landlord has, in all circumstances, to be in writing only. Such an interpretation may lead to the tenant being put to disadvantageous position, as the landlord may try to avoid the receipt of inf rmation/intimation.

Further, by way of notice dated 26.10.2020 the landlord as sought the arrears of rent w.e.f. October, 2018 onwards only. The receipt of the balance amount as sent by the tenant in response to aforesaid notice by the landlord also cannot be said to be irrelevant to the controversy. Noticeably, the landlord had filed the execution petition on 12.11.2020 i.e. after exchange of the aforesaid correspondence.

Thus, the material that had been placed before the learned Executing Court had to be scrutinized at the touch stone of settled principles of law. In the facts of the case at hand, where the facts had been asserted by one and denied by the other, the best course would have been to allow the parties to prove their respective stands by leading evidence. In absence of adoption of such procedure, the rights of tenant apparently have suffered prejudice.

In result, the pe i ion is allowed. Impugned order dated 16.9.2025, passed by the learned Rent Controller Sirma r at Nahan in Execution Petition No. 12/10 of 2021 is set aside with direction to the learned Executing ourt to decide the objection petition afresh by framing appropriate issue(s) and by allowing the parties to prove their respective stand(s), in accordance with law. The parties are directed to appear before the learned Rent Controller-I, Nahan on 08.12. 2025.

The petition is accordingly disposed of. Pending applications, if any, also stand disposed of.