Krishan Kumar vs Gurbax Singh

R.S. Pathak, C.J.—This revision petition is directed against an order of the Appellate Authority allowing an appeal arising out of an execution proceeding.

A shop situated at Nalagarh was let out by the Respondent to the Petitioner. It appears that the Respondent subsequently applied to the Rent Controller for an order of eviction u/s 14(2)(i) of the Himachal Pradesh Urban Rent Control Act, 1971, and on April 30, 1975, the Rent Controller made an order holding that the Petitioner had defaulted in payment of rent and was liable to be evicted. He directed the eviction of the tenant in case the rental arrears were not paid within one month of the date of the order. The Petitioner, taking the month as consisting of 31 days, paid the rent on the 31st day. The Respondent took out execution of the order of eviction. An objection was taken by the Petitioner against the execution proceeding that the rent had been paid within one month as directed by the Rent Controller. The objection was found in order, and accordingly the execution application was dismissed. The Respondent appealed, and the appeal has been allowed by the Appellate Authority by its order dated February 23, 1977. The Appellate Authority has held that the Petitioner should have deposited the arrears of rent within 30 days as envisaged by the second proviso to Section 14(2)(ii) of the Himachal Pradesh Urban Rent Control Act, 1971, and that having failed to do so he was liable to be evicted.

In this revision petition, learned Counsel for the Petitioner contends that the Rent Controller having granted a period of one month to the Petitioner to deposit the rental arrears and the deposit having been made within that period, the Petitioner could not be evicted. It is urged that as the order disposing of the original petition for eviction specified a period of "one month", it was not open to the Appellate Authority to go behind that order in an execution proceeding, and hold that only "30 days" were allowed. I am unable to accept the contention. The second proviso to Section 14(2)(i) provides:

14(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 by himin 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 6 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid:

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 order, or

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the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:

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It is apparent that the statute itself provides a period of 30 days from the date of the order for payment of rental arrears by the tenant. On such payment, the statute declares, effect will not be given to the order of eviction. The statute does not leave the determination of the period to the Rent Controller. It is not open to the Rent Controller, when disposing of the petition for eviction, to make an order cither abridging or enlarging the period of 30 days. Indeed, the period having been determined by the statute itself, no order was necessary by the Rent Controller.

There being no power in the Rent Controller to vary the period mentioned in the statute, it is apparent that the order made by him in the execution proceedings is a nullity. The appellate authority is right in the view taken by it.

There is no force in this revision petition. It is rejected.