D.D. Gandhi vs A.L. Soni

P.D. Desai, C.J.—The revision petition arises out of a proceeding for eviction of the Petitioner taken out by the Respondent. An order of eviction was passed therein by the Rent Controller and the same was confirmed by the Appellate Authority.

The grounds on which the eviction was sought were: (a) arrears of rent on and with effect from August 5, 1972 to September 30, 1974; (b) use of the demised premises for a purpose other than that for which they were let; (c) acts on the part of the Petitioner which were likely to impair materially the value or utility of the building in which the demised premises are comprised; and (d) acts or conduct on the part of the Petitioner which constituted nuisance to the occupiers of the buildings in the neighbourhood. The Rent Controller up-held the claim for eviction on grounds (a) and (b) but rejected the same so far as grounds (c) and (d) are concerned. The Appellate Authority dismissed the appeal.

An incidental issue which arose for determination in the course of the proceedings was concerning the rate at which the rent was payable in respect of the demised premises. The case of the Respondent was that the agreed rent was Rs. 160/- per month in addition to water charges at the rate of Rs. 5/- per month and the municipal taxes. The case of the Petitioner on the other hand was that the agreed rent was Rs. 50- per month inclusive of water charges and the municipal taxes. The controversy was resolved by the Rent Controller by partly up-holding the claim of the Respondent; the monthly rent of the demised premises was found to be Rs. 160/- and the liability with respect to the payment of water charges alone was held to be of the Petitioner. In appeal, the Appellate Authority up-held the decision of the Rent Controller on the said issue.

It will be convenient to dispose of first the challenge to the decision recorded by the Rent Controller and confirmed by the Appellate Authority on the issue relating to the rate of rent of the demised premises. The Appellate Authority has discussed the entire material evidence, oral as well as documentary, bearing on this issue in paragraphs 6 to 13 of the judgment under appeal and upheld the finding of the Rent Controller that the rent of the demised premises was Rs. 160/- per month excluding water charges at the rate of Rs. 5/- per month but inclusive of the municipal taxes. The Petitioner, who argued the case in person, attempted to challenge the said finding. In support of the challenge, my attention was drawn more particularly to the deposition of Darshan Lal Gupta, RW-5, the Municipal Secretary, Dharamshala, and to an extract from the Assessment Register of the Municipal Committee, Dharamshala, for the; year ending 1972-73, Annexure RW-5/A, in respect of the demised premises. The extract shows that, the annual, rental value of the demised premises was assessed at Rs. 600/-. To the similar, effect is the deposition of the Municipal Secretary. Under cross-examination, however, the witness stated; that he was unable to state as to when the entry was effected and at whose instance. He further stated that ordinarily such entries were being made after questioning the person available on the spot, whether the person be the landlord or the tenant. The Petitioner urged that the entry accordingly made in the Assessment Register, which was an official document, should have been preferred to the other evidence on the record of the case. I am afraid this submission cannot be accepted for more than one reason. First, the Appellate Authority has considered and appreciated this evidence arid preferred not to rely upon it for the reasons recorded in paragraph 11 of the judgment. The matter, therefore, falls within the realm of appreciation of evidence and it is ordinarily not open to this Court in the exercise of revisional jurisdiction to re-appreciate the evidence. Secondly, in view of the deposition of the Municipal Secretary, it is evident that the entry is not shown to have been made at the instance of the Respondent and the possibility cannot be ruled out that the Petitioner himself might have supplied the requisite information. Thirdly, the Respondent was not cross-examined with respect to the entry nor has the Petitioner stated anything about the same in his own deposition. The Respondent had, therefore, no opportunity to explain the circumstances under which the entry came to be made. In my opinion, no ground is made out for interference with the concurrent findings recorded on this issue by both the authorities below.

The question which then survives for consideration is whether the order of eviction on the two grounds on which it is [ founded is sustainable. The learned Counsel for the Respondent fairly stated that so far as the ground relating to arrears of rent is concerned, it does not survive any longer in view of the fact that the Petitioner had deposited the amount due within a period of 30 days from the date of the eviction order passed by the Rent Controller and he is, therefore, entitled to the benefit of the second proviso of Clause (1) of Sub-section (2) of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1971. The case does not, therefore, require examination from that angle.

The only ground which survives for consideration, there-few e, is whether the order of eviction can be supported on the basis of the user of the demised premises by the Petitioner, for a purpose other than that for which they were let The allegation'' in support of this ground was that the, Petitioner had bought four heads of cattle and was tethering them in the verandah of the demised premises and that he was stacking grass and fodder in a portion of the verandah and that one of the rooms forming part of the demised premises was so being used as a store house for dry grass arid fodder. The Petitioner admitted that he was tethering a cow but according to him that was being done in a temporary shed put up in the rear, portion of the demised premises arid that too with the approval of the Respondent. He denied the allegation that, four heads of cattle were being tethered in the verandah or any; portion of the demised premises aria also that fodder etc. was being stacked in one of the rooms forming, part of the, demised premises. The Rent Controller found that the Petitioner had started tethering a cow within: the demised premises 15.days after he occupied the same and that there was no evidence to establish that the Respondent had approved of or acquiesced in such user of the demised premises. The Rent Controller held that the use of the demised premises for such purposes amounted to a change of, user, in the eye of law and that the Petitioner was, therefore, liable to suffer an order of eviction. This finding pf the Rent Controller was substantially tip-held by the Appellate Authority who found that the Petitioner had constructed a shed for tethering a cow and that he was tethering the same in the said shed as well as in a portion of the demised premises and that this was being done without the consent or knowledge of the Respondent and that there being a change in the user of the demised premises in that manner, the order of eviction was correctly made.

In my opinion, both the authorities below erred in law in ordering the eviction of the Petitioner on the facts found and on the grounds alleged. The tethering of a cow in separate shed, or even in a portion of the demised premises, would not constitute a change in the user of the denied premises or a user for a propose other than that for which they were let till and so long as those premises were continued to be occupied by the Petitioner for the purposes of residence and the tethering of the cow was an act ancillary or incidental to the use of the premises for the purpose of residence., fie it stated in. this connection that it is riot the case of the Respondent that the Petitioner was carrying on the business of dairying in the demised premises and that thereby the demised premises were being used for commercial purpose instead of residential purposes. Even if such a case: had been pleaded arid proved it would have been necessary to find out still whether the dominant user of the demised premises continued to be for residential purposes and whether only a portion of the premises was being incidentally used for commercial purpose. In my opinion, on the facts and in the circumstances of the case, the tethering of a cow in a temporary shed or even within the demised premises does not attract the liability for eviction on the ground that the demised premises have been used for a purpose other than that for which they were let. The order of eviction passed against the Petitioner cannot, therefore, be sustained.

The learned Counsel for the Respondent sought to sustain the order of eviction on the two grounds decided against him by the Rent Controller. I have not permitted him to urge those grounds in view of the fact that the Respondent had not preferred Cross-Objections against the findings of the Rent Controller on the issues decided against him nor had he tried to support the decision of the Rent Controller before the Appellate Authority on the basis of the evidence led at the trial on the issues which were decided against him.

For the foregoing reasons, the revision petition partly succeeds and it is allowed to the extent that the order of eviction passed against the Petitioner is quashed and set aside. Rule made absolute accordingly with no order as to costs.

Before parting with the case, it is necessary to point out that before dismissing the appeal it was the duty of the Appellate Authority to have considered and to have recorded a finding whether or not the Petitioner had availed of the protection afforded by the second proviso appended to Clause (i) of Sub-section (2) of Section 14 of the Act and whether or not, under such circumstances, the order of eviction, insofar as it was founded on the ground of non-payment of rent, survived at the appellate stage. Section 14, Sub-section (2), Clause (i), empowers the Rent Controller to order the eviction of a tenant on his being satisfied, inter alia, that the tenant has not paid or tendered the rent due by 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. The second proviso to the said clause reads as follows:

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 tenant pays the amount due within a period of 30 days from the date of order.

The effect of the proviso aforesaid is to provide to the tenant a sort of locus penitential by affording him an opportunity to pay the amount found due by the Rent Controller within the specified time limit and, if he does so, to relieve him of the liability of being evicted from the demised premises pursuant to the order of eviction passed on the ground of non-payment of the rent due from him. If the tenant decides not to challenge the decision ordering his eviction on the ground of non-payment of rent and also avails of the opportunity to pay or deposit the amount due soon after his eviction is ordered, the question whether or not he has qualified for the protection conferred by the second proviso by the fulfilment of all its conditions may require examination, if any, at the hands of the executing court. However the tenant may prefer an appeal against the order of eviction I and then pay or deposit the amount due within the specified time-limit. In such a case, it will indeed be inevitable for the Appellate Authority to ascertain and find, at an appropriate stage, which cannot be later than the time when the appeal reaches final hearing, whether, on the facts and in the circumstances of the case, the impugned order is rendered otiose on account of the tenant having meanwhile availed of the benefit j conferred by the second proviso. Even in cases where the order of eviction is founded on more than one ground, one of such grounds being the non-payment of rent and an appeal is carried against the said order, it will be necessary for the Appellate Authority to undertake the same exercise, whether or not the finding on the issue of non-payment of rent is assailed. Not to do so may sometimes amount to ignoring the mandate of law since the effect of the dismissal, if any, of the appeal without considering the said subsequent development will be to maintain the eviction on the said ground although, in the meantime, the tenant might have satisfied the conditions which entitle him to protection against eviction for the nonpayment of rent. Even if there is a dispute in such cases as to the rate at which the rent is payable or as to the factum of nonpayment of rent as claimed and such dispute is decided by the judgment, the Appellate Authority will have to record a further finding, in light of such decision, whether or not the tenant can be regarded as having qualified for the protection afforded by the second proviso, if he claims to have paid any amount within the specified time limit lam told that ordinarily the Appellate Authorities leave this issue, to be decided in the course of the execution proceedings. Such a practice, if prevalent, is not proper and it does not conform to the requirement of law and it must be discarded forthwith. The Appellate Authorities in the State will bear in mind these observations while deciding appeals in cases where the order of eviction is based solely on the ground of non-payment of rent or on the said ground amongst others.