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PETITIONER: MADAN MOHAN

       Vs.

RESPONDENT: KRISHAN  KUMAR SOOD

DATE OF JUDGMENT12/01/1993

BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) VERMA, JAGDISH SARAN (J) VENKATACHALA N. (J)

CITATION:  1993 SCR  (1) 107        1994 SCC  Supl.  (1) 437  JT 1993 (1)   162        1993 SCALE  (1)71

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.- Special leave granted. 2.   With  the consent of learned counsel for  the  parties, the appeal itself was heard. 3.   The respondent is a tenant at the rate of Rs 183.33 per month in the premises in dispute i.e. shop No. 50, The Mail, Shimla.  On March 7, 1983, late Smt Dhani Devi, predecessor- in-interest  of  appellant  No.  2  and  Shri  Madan  Mohan, appellant  No. 1, filed an application for eviction  of  the respondent on various grounds.  One of the grounds on  which the eviction was claimed was 441 non-payment  of  rent.   It  was  stated  in  the   eviction petition  that  the respondent was in arrears of  rent  with effect  from March 1, 1980 to February 28, 1983.   The  Rent Controller  on July 29, 1986 passed an order of eviction  on the ground of non-payment of arrears of rent.  The operative part of the said order is as under:               "In  the  light of my finding on issue  No.  1               above,  the  application  is  allowed  on  the               ground  of non-payment of arrears of rent  and               the petition fails on other grounds.  However,               the  respondent shall not be evicted from  the               premises  in  question  if  he  pays  to   the               petitioner or deposits in this court a sum  of               Rs 6,600, being arrears of rent from March  1,               1980 to February 28, 1983 @ Rs 2,200 p.a. plus               interest  thereon @ 6 per cent p.a.  amounting               to  Rs  609.39,  up to February  2,  1983  and               further interest on Rs 6,600 @ 6 per cent p.a.               from  March 1, 1983 till August 28, 1986  plus               costs assessed at Rs 100 within a period of 30               days from today." 4.   On August 13, 1986 the respondent deposited a sum of Rs

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8,500   in  the  court  of  the  Rent  Controller,   Shimla. According to the appellants, decree holders, the amount  due inclusive of interest and costs up to March 29, 1986 was  Rs 8,661.29  and till the date of deposit it worked out  to  Rs 8,677.79 if the interest was to be calculated at the ordered rate till August 13, 1986. 5.   According  to the appellants the amount  deposited  was not in accordance with the order of the ejectment dated July 29,  1986  and  was  short, and  they  filed  the  execution petition  before the Rent Controller seeking  possession  of the suit premises. 6.   On  the  execution  petition being  opposed,  the  Rent Controller framed the following two issues: "(a)  Whether the tender made by the respondent of the  rent amount is short as alleged? (b) Relief." 7.   By  an  order dated May 18, 1990  the  Rent  Controller while deciding issue No. 1 held that the tender made by  the respondent  was  short to the tune of  Rs  161.29.  However, while  deciding issue No. 2, the Rent Controller allowed  15 days’  time  from the date of the order for deposit  of  the said amount. 8.   The appellants being aggrieved by the order of the Rent Controller dated May 18, 1990 filed revision petition in the High  Court.  It was submitted on behalf of  the  appellants that  the executing court had no jurisdiction to extend  the time for making good the deficiency of Rs 161.29 inasmuch as since  period  of  30 days has been fixed  by  the  Himachal Pradesh  Urban Rent Control Act, 1987 (hereinafter  referred to as ’the Act’) itself, the court could not either  enlarge or abridge this period. 9.   By  the impugned judgment dated December 17, 1991,  the High Court dismissed the revision petition.  The High  Court while  interpreting the words "amount due" occurring in  the third proviso to Section 14(2)(i) of the Act held that these words  referred to arrears of rent only and do  not  include interest and costs. 10.  It  will  be noticed that neither of  the  parties  had challenged  the  order July 29, 1986 by which the  order  of eviction  was  passed on the ground of  nonpayment  of  rent against the respondent but the respondent had been given the liberty  of  avoiding  eviction provided  he  deposited  the amounts as stated in the 442 order within the period of 30 days from the date of the said order.  Before the High Court it was submitted on behalf  of the appellants that the executing court had no  jurisdiction to extend the time to make good the deficiency in the amount as  directed  by  the order dated July  29,  1986.   It  was submitted on behalf of the appellants that since the  period of 30 days had been fixed in the Act itself the court  could not  enlarge or abridge this period.  The High Court  agreed with  this  submission  but posed  a  question  for  itself, whether shortfall of Rs 161.29 which had been ordered to  be deposited constitutes arrears of rent or interest and costs. While  following an earlier decision of the same High  Court reported as Om Parkash v. Sarla Kumari1 the Himachal Pradesh High  Court interpreted the word "amount due"  occurring  in the third proviso to Section 14(2)(i) of the Act wherein  it had  been held that in order to save eviction the tenant  is required to deposit only arrears of rent due at the time  of filing  application  for eviction and not  arrears  of  rent together with interest and costs within the statutory period of 30 days from the date of eviction order.  After answering the  question  the  High  Court  took  the  view  that   the

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deficiency of Rs 161.29 pertains to interest and costs.   So far  as the arrears of rent which amounted to Rs  6,600  for the period in question i.e. from March 1, 1980 to March  28, 1983 at the rate of Rs 2,200 p.a. is concerned, it had  been deposited within 30 days.  In view of this finding the  High Court was of the view that the respondent was not liable  to be  evicted.   High Court also held that the  order  of  the executing  court  extending  time to deposit  Rs  161.29  in pursuance  of  its  order  dated July  29,  1986  is  of  no consequence.               11.   The  relevant part of Section 14 of  the               Act may be noticed:               "14.   Eviction  of tenant.- (1) A  tenant  in               possession of a building or rented land  shall               not  be  evicted therefrom in execution  of  a               decree passed before or after the commencement               of  this Act or otherwise, whether  before  or               after  the termination of the tenancy,  except               in accordance with the provisions of this Act.               (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  from 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:               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 the rate of 9  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  time               aforesaid:               1  (1991) 1 Sim LC 45               443               Provided  further that if the arrears  pertain               to the period prior to the appointed day,  the               rate  of interest shall be calculated  at  the               rate of 6 per cent per annum:               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               (ii)  to(iv) *   *   *;or                              or  (v)          *            *               *;               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:" 12.  A reading of the aforesaid relevant part of the section shows  that  sub-section  (1) of Section 14  creates  a  ban

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against  the eviction of a tenant except in accordance  with the provisions of the Act.  The ban is liable to be  lifted. Subsection  (2) of Section 14 provides the circumstances  in which  the  ban is partially lifted.  It  contemplates  that where  an  eviction petition is filed, inter  alia,  on  the ground   of  non-payment  of  rent  by  the  landlord,   the Controller  has to be satisfied that the tenant has  neither paid nor tendered the rent in the circumstances mentioned in clause  (i)  of sub-section (2) of Section 14.   He  has  to arrive  at  this  satisfaction  after  giving  a  reasonable opportunity of showing cause against it to the tenant.   But there  may be cases where the tenant, on being given  notice of such an application for eviction, may like to contest  or not  to  contest the application.  The tenant is  given  the first  chance to save himself from eviction as  provided  in the  first  proviso  to clause (i)  of  sub-section  (2)  of Section 14.  This first proviso contemplates that the tenant may  on the first hearing of the application  for  ejectment pay  or  tender in court the rent and interest at  the  rate mentioned  in the proviso on such arrears together with  the cost  of application assessed by the Controller and in  that case the tenant is deemed to have duly paid or tendered  the rent  within the time as contemplated by clause (i) of  sub- section (2) of Section 14.  Where the tenant does not  avail of  this  opportunity of depositing as contemplated  by  the first  proviso  and waits for an ultimate  decision  of  the application  for  eviction on the ground  of  nonpayment  of rent,  the Controller has to decide it and  while  deciding, the  Controller has to find whether the ground contained  in clause  (i) of sub-section (2) of Section 14 has  been  made out  or  not.  If the Controller finds that  the  ground  as contemplated by clause (i) of sub-section (2) of Section  14 is made out, he is required to pass an order of eviction  on the  ground of non-payment of rent due from him.   A  second opportunity  to  avoid  eviction is provided  by  the  third proviso to clause (i) of sub-section (2) of Section 14.  But the  second  opportunity  is provided  after  the  order  of eviction.   The benefit of avoiding eviction arises  if  the tenant pays the "amount due" within the period of 30 days of the date of order. 13.  The  question  is  what is the  meaning  of  the  words "amount due" occuring in the third proviso to clause (i)  of sub-section (2) of Section 14 of the Act. 444 14.  It  will be noticed that there is no provision  in  the Act for giving powers to the Controller to direct payment or deposit  of ’pendente lite’ rent for each month  during  the pendency of the petition for eviction of the tenant.   First proviso to sub-section (2) of Section 14 shows that in order to  show payment or valid tender as contemplated  by  clause (i) of sub-section (2) of Section 14 by a tenant in default, he  has to pay on the first date of hearing the  arrears  of rent along with interest and costs of the application  which are to be assessed by the Controller.  Surely where a tenant does  not  avail of the first opportunity and  contests  the eviction petition on the ground of non-payment of arrears of rent and fails to show that he was not in default and  court finds  that  the  ground  has been made  out,  an  order  of eviction  has  to follow.  Therefore, it does not  stand  to reason that such a tenant who contests a claim and fails  to avoid order of eviction can still avoid it by merely  paying the rent due till the date of the filing of the  application for  ejectment.   The third proviso to clause  (i)  of  sub- section   (2)   of  Section  14  should  also   receive   an interpretation  which will safeguard the rights of both  the

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landlord  and  tenant.  The "amount due"  occurring  in  the third proviso in the context will mean the amount due on and up to the date of the order of eviction.  It will take  into account  not merely the arrears of rent which gave cause  of action to file a petition for eviction but also include  the rent  which  accumulated  during the  pendency  of  eviction petition  as well.  If the tenant has been paying  the  rent during  the  pendency  of  the  eviction  petition  to   the landlord,  the "amount due" will be only arrears which  have not  been  paid.   The landlord, as per the  scheme  of  the section, cannot be worse off vis-a-vis a tenant who was good enough to deposit in court the arrears of rent together with interest  and  costs on the first date of hearing.   If  the interpretation  given  by  the High Court  is  accepted  the result  would  be  that the tenant will  be  better  off  by avoiding to pay the arrears of rent with interest and  costs on  the first date of hearing and prefer suffering order  of ejectment after contest and then merely offer the amount due as  mentioned  in  the application for  ejectment  to  avoid eviction.    This  could  not  be  the  intention   of   the legislature. 15.  In  such cases it will be advisable if  the  Controller while passing the order of eviction on the ground  specified in  clause (i) of sub-section (2) of Section 14 of  the  Act specifies  the "amount due" till the date of the  order  and not  merely  leave  it to the parties to  contest  it  after passing  of the order of eviction as to what was the  amount due. 16.  Surely the Rent Control Acts, no doubt, are measures to protect  tenants from eviction except on  certain  specified grounds if found established.  Once the grounds are made out and  subject to any further condition which may be  provided in  the Act, the tenants would suffer ejectment.  Again  the protection  given  in the Acts is not to  give  licence  for continuous litigation and bad blood. 17.  Surely  the  legislature which made the Act  could  not have  envisaged that after the parties finish off one  round of  litigation,  the party should be  relegated  to  another round  of  litigation  for recovery of  rent  which  accrued pendente  lite.  Whatever protection Rent Acts give they  do not give blanket protection for "non-payment of rent".  This basic minimum has to be complied with by the tenants.   Rent Acts  do not contemplate that if one takes a house on  rent, he can continue to enjoy the same without payment of rent. 445 18.  The  order which the Controller passed was a  composite order of eviction in the sense that if the tenant wanted  to save himself from eviction, he had to comply with the order. The order which was passed by the Controller cannot be  said to  be  an order without jurisdiction.  It may  be  a  right order; it may have been a wrong order.  It was not a nullity that  the executing court will ignore it. But at  the  stage when   the  execution  application  was  filed,   the   Rent Controller could not go behind its own order dated July  29, 1986.   If the Controller could not go behind its own  order in  execution proceedings, surely the High Court  could  not also  go behind the order in revision against the  order  of Controller  refusing execution.  It was not the  appropriate stage for the High Court to examine what order ought to have been  passed  or to limit the efficacy of the order  to  its interpretation of the words "amount due" as mentioned in the third  proviso to clause (i) of sub-section (2)  of  Section 14.  The question which the High Court posed never arose.               19.   Mr Thakur, who appeared on behalf of the               respondent submitted:

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             (1)   that sub-section (2) of Section 14 gives               discretion to the Controller to pass an  order               of  eviction  or  not  to  pass  an  order  of               eviction  even  if  the  ground  mentioned  in               clauses  (i)  to  (v) of  sub-section  (2)  of               Section 14 are made out;               (2)   that  the  order of eviction  which  was               passed  is  not the final order in  the  sense               that it is an interim order.  The final  order               is passed only after the expiry of 30 days  if               the  tenant  fails  to  avail  of  the  second               opportunity  provided by the third proviso  to               clause (i) of sub-section (2) of Section 14. 20.  With due respect to learned counsel for the  respondent we  are not able to persuade ourselves to agree with  either of his submissions.  It is true that subsection (2) uses the expression  "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". 21.  It  will be noticed that the Controller is required  to dismiss  the eviction application if he is not satisfied  as to  the existence of any ground mentioned in clauses (i)  to (v)  of sub-section (2) of Section 14 of the Act  but  where the  Controller  is satisfied with existence of any  of  the grounds  mentioned in clauses (i) to (v) of sub-section  (2) of Section 14 the Controller has no discretion to decline to pass  the  order of eviction.  In the context in  which  the expression  " may" is used it means "shall".  Otherwise  the section would read that "not only the Controller can  reject an application when he is not satisfied with the ground  but is  also entitled to dismiss the application when he  is  so satisfied".   Such an intention cannot be attributed to  the legislature  particularly  when  the  consequences  of  non- satisfaction   is   expressly  mentioned.    Even   if   the consequences  of non-satisfaction was not mentioned, we  are of  the view that the expression "may" occuring would  still mean "shall" and all that would mean is that if the  grounds are  not  made  out,  he  will  be  bound  to  dismiss   the application and if the grounds are made out, he is bound  to pass the order of eviction.  If any other interpretation  is given  to  the  word "may" the  section  may  itself  become subject-matter   of  challenge  under  Article  14  of   the Constitution   of   India.   The  Court   shall   avoid   an interpretation  which make the provisions violative  of  the Constitution, if possible. 446 22.  Coming  to  the second submission, as we  have  noticed earlier,  clause (i) of sub-section (2) of Section 14  gives two  opportunities  to the tenant to  avoid  eviction.   The first opportunity to avoid eviction is if the tenant  avails of the benefit of first proviso.  This opportunity is before the   passing  of  the  order  of  eviction.    The   second opportunity  is  after the order of  eviction.   The  order, which  is passed for eviction, is final in the sense  it  is not  an interim order.  If the tenant avails of  the  second opportunity as provided in the third proviso then the  order of  eviction becomes inexecutable and he saves himself  from eviction. 23.  Having  found that the question posed and  answered  by the  High Court was not relevant at the stage it was  posed, namely during the execution proceedings and, therefore,  the order is bad. 24.  The validity of the order of the executing court  dated May  18,  1990 now needs to be  considered.   The  executing

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court, on consideration of the evidence recorded during  the execution   proceedings  held  that   the   judgment-debtor, respondent,  himself calculated the interest for the  period March  1, 1983 to February 28, 1986 with the result that  Rs 161.29  p.  was deposited less by  the  judgment-debtor  and thought  that it had power to extend the time for making  up the deficiency and accordingly extended the time. 25.  So far as the Himachal Pradesh High Court is  concerned it has consistently taken the view that the executing  court has  no such power since the time is fixed by  the  statute. R.S.  Pathak,  C.J. (as His Lordship then  was)  in  Krishan Kumar v. Gurbux Singh2 while interpreting the third  proviso to Section 14(2)(i) of the Act took the view thus:               "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 either 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." 26.  Mr Thakur, learned counsel for the respondent, referred us  to Shyamcharan Sharma v. Dharamdas3; (2)  Santosh  Mehta (Miss) v. Om Prakash4; (3) Ram Murti v. Bhola Nath5 and  (4) Ganesh  Prasad  Sah  Kesari v. Lakshmi  Narayan  Gupta6  and submitted  that this Court had, in spite of there  being  no express  provisions to extend time, taken the view that  the court  has  inherent powers to extend time  for  deposit  of rent.  We are of the view that the reliance placed on  these cases is wholly misplaced. 2    (1977) 2 RCR 62 (HP) 3    (1980) 2 SCC 151 4    (1980) 3 SCC 610 5    (1984) 3 SCC 111 6   (1985) 3 SCC 53 447 27.  It may be noticed that the case of Shyamcharan  Sharma3 related  to the powers of the Court under Section  13(6)  of the  Madhya Pradesh Accommodation Control Act,  1961.   This Act  contemplated  an eviction petition  being  filed  under Section  12  and  one of the grounds for  eviction  was  for failure  of  the tenant to pay or tender within  two  months from  the  date of service of notice of demand of  rent  and Section  12(3) thereof provided that the order  of  eviction will  not be passed on this ground if the tenant  makes  the payment of deposit as required by Section 13.  Section 13(1) contemplated that when a suit has been instituted on any  of the grounds against the tenant for his eviction, the  tenant shall, within one month of the service of summons on him  or within  such  further time as the court may, allow  in  this behalf,  deposit  in the court or pay to  the  landlord  the arrears  of  rent and shall also continue to pay,  month  by month, the future rent as well.  Sub-section (5) of  Section 13 contemplated that if the deposit was made as contemplated

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by  sub-section (1) of Section 13 no order for  recovery  of possession  should be made on the ground of default  in  the payment  of  rent.  Sub-section (6) of Section  13  provided that  if the tenant fails to pay any amount as  required  by Section 13 the court had the power to strike out the defence and  proceed  with the hearing of the suit.   While  dealing with  the  powers under Section 13(6) of the said  Act  this Court took the view that the court had discretion to  strike off the defence or not even if there is delay in  depositing rent  falling  due after institution of suit  for  eviction. The Court held: (SCC p. 154, para 4)               "  In  case of non-deposit or  non-payment  of               rent  by  the tenant, Section  13(6)  vests  a               discretion in the Court to order striking  off               the  tenant’s  defence  against  eviction;  it               neither clothes the landlord with an automatic               right  to  an eviction decree nor  visits  the               tenant with the penalty of such a decree being               automatically  passed.  If the court  has  the               discretion to strike off or not to strike  off               the  defence,  it has  further  discretion  to               condone  the default and extend the  time  for               making   the  payment  or  deposit.   Such   a               discretion  is a necessary implication of  the               discretion  not to strike off the defence.   A               different    construction   might   lead    to               perversion of an object of the Act,     namely               ’adequate protection of the tenant’." 28.  An express provision for extending time for deposit  or payment was not made in  Section    13(1)    because     the consequences  of non-payment was proposed to be  dealt  with separately  by  Section 13(6) and the discretion  to  extend time is incidental to the discretion in the said section  to strike off or not to strike off the defence. 29.  This  view in Shyamcharan Sharma case’ was followed  by this Court in Santosh Mehta case4 and Ram Murti case5  which were the cases under the Delhi Rent Control Act, 1958, which also  had  the  provisions similar  to  the  Madhya  Pradesh Accommodation  Control Act, 1961 contemplating direction  by the  court  to direct the tenant to pay  the  pendente  lite rents  which  have  become  due  and  consequences  for  not complying with such directions. 30.  Again the case of Ganesh Prasad Sah Kesari6 related  to the  provisions for striking out the defence for failure  of the tenant to deposit arrears of rent within 15 days of date of  the  court’s  order and this Court  again  followed  the decision in the case of Shyamcharan Sharma3. 448 31.  These cases have no application where the final  orders were  passed  after  satisfaction  of  the  Controller   for entitling  the  landlord  to seek eviction  on  the  grounds specified in the Act. 32.  Mr  Thakur  then submitted that this Court  should  not exercise its powers under Section 136 of the Constitution of India  as  the  rent laws are meant for  protection  of  the tenants.   Rent Control Acts are necessary  social  measures for protection of tenants.  The Rent Control Laws have tried to  balance the equity.  Landlord is duty bound  to  satisfy the ground of eviction mentioned in various Rent Acts and if he  does  not satisfy, he cannot get the order  of  eviction merely  because  the Act restricts his  rights.   There  are certain  Rent Acts which, even when a ground of eviction  is satisfied,  still confer powers on the Rent  Controllers  to consider the question of comparative hardship and it is only in those types of cases, if the Controller is satisfied,  he

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can decline passing orders of eviction.  But if there is  no such limitations, the Rent Controllers, after the ground  of eviction  specified  in  the  Act  is  made  out,  have   no discretion  to  reject the application.  Once the  order  of eviction  is passed, in the circumstances like the  present, the executing court is duty bound to execute its orders.  No question of equity or hardship arises at that stage. 33.  We are in complete agreement with the view expressed by R.S.  Pathak,  C.J.  (as  His  Lordship  then  was)  in  the aforesaid case of Krishan Kumar2. 34.  In  the  present case the tenant spared no  efforts  to harass  the  landlords.  After the order of  eviction  dated July  29,  1986 the matter did not rest there.   The  tenant again failed to pay the rent and the landlord was forced  to file another eviction petition on the ground of  non-payment of  rent for the period from March 1, 1983 to  November  30, 1986  and it was only after the filing of the said  eviction petition  and  in order to avoid eviction he  deposited  the rent.   The matter did not rest there even and it  was  only after the notice of the special leave petition was issued in the present case that the tenant chose to pay the rent  from December 1, 1986 after keeping it in arrears for practically six years. 35.  In view of the aforesaid facts and circumstances of the case we set aside the impugned order of the High Court dated May 17, 1991 and the order of the Rent Controller dated  May 18,  1990 and direct the Rent Controller, Shimla,  to  issue the  warrants of possession for ejectment of the  respondent from    the    premises   in   dispute   and    place    the landlords/appellants in possession. 449