DEVI DAYAL v. ZAMANI BEGUM — 1975 DIGILAW 20 (DEL)

B. C. MISRA ( 1 ) THIS second appeal has been filed by the tenant under Section 39 of the Delhi Rent Control Act 59 of 1958 (hereinafter referred to as the act ), against the appellate order of Mr G. C. Jain. Rent Control Tribunal, dated 25th April, 1973, by which he has dismissed in limine the appeal of the tenant and affirmed the order of Mr. Mohd. Shamim, Additional Controller, dated 21sit April, 1973, finally maintaining the order of eviction passed against the appellant on the ground of non-payment of rent. ( 2 ) THE material facts of the case are that the appellant is a tenant under the respondent in respect of a portion of house No. 8/356, Katra Sheikh Raza, Hauz Kazi, Delhi on a rent of Rs. 35 per month. The respondent landlady served a notice dated 27th October, 1969 on the appellant on 30th October, 1969 demanding arrears of rent for the period from 1st April, 1969 and not getting response she instituted the petition giving rise to the present appeal on llth June, 1970 for eviction of the tenant on the ground of non-payment of rent being ground specified in clause (a) of the. proviso to subsection (1) of Section 14 of the Act. It was alleged in the petition (and, it is significant to notice) that the appellant tenant had not paid rent since 1st May, 1964 and the respondent landlady was obliged to institute the suit for recovery of the amount from. the said date up to March, 1967, which suit was decreed for payment of Rs. 1,260. The non-payment of rent subsequent to the period covered by the said suit was claimed as a ground of eviction. During the pendency of the petition. Mr. Jaspal Singh, Additional Controller passed an order on 30th September, 1970 under Section 15 (1) of the Act directing the appellant tenant to deposit arrears of rent with effect from 1st May, 1967 at the rate of Rs. 35 per month and continue to pay future rent at the said rate by the 15th day of the succeeding month. It appears that the appellant deposited the arrears of rent, but admittedly committed default in payment of future rent for one of the months namely February, 1971. 35 per month and continue to pay future rent at the said rate by the 15th day of the succeeding month. It appears that the appellant deposited the arrears of rent, but admittedly committed default in payment of future rent for one of the months namely February, 1971. Eventually on 4th April, 1972 the Controller struck off the defence of the appellant under sub-section (7) of Section 15 of the Act. An appeal against the said order striking off the defence was dismissed by the Rent Control Tribunal on 27th October, 1972. The result is that the order striking off the defence of the appellant has become final. ( 3 ) THEREAFTER, the respondent landlady produced ex parte evidence in support of the claim and having established it to the satisfaction of the Additional Controller, has obtained an order for eviction by the impugned order, dated 21st April, 1973. Feeling aggrieved the appellant before me filed an appeal before the Rent Control Tribunal, which failed. The Rent Control Tribunal after hearing the counsel recapitulated the facts mentioned above and in particular noticed that the appellant had deposited a sum of Rs. 1505 on 27th October, 1970 within one month of the order of the Controller dated 30th September, 1970 under Section 15 (1) of the Act as against Rs. 1,435 which was the arrears due from 1st May, 1967 to 30th September, 1970. He, however, found that the appellant had committed default in payment of rent for subsequent period. It was pressed before the Tribunal that the appellant was not liable to eviction since he had deposited the arrears of rent which was the subject-matter of the notice and the eviction petition and that his failure to deposit future rent in accordance with Section 15 (1) of the Act did not constitute a default for which the petition for eviction could be allowed. The Tribunal did not find any force in the submission and dismissed the appeal in limine. ( 4 ) FEELING aggrieved, the appellant has filed this second appeal. Mr. The Tribunal did not find any force in the submission and dismissed the appeal in limine. ( 4 ) FEELING aggrieved, the appellant has filed this second appeal. Mr. Budhiraja in support of the appeal has contended (1) that the order under subsection (1) of Section 15 of the Act had been passed without jurisdiction, since the same ought to have been passed after the validity of the notice of demand (besides other factors like the rate of rent and the period for which t arrears were due, etc.) had finally. been determined, and (2) that on the payment of the arrears of rent till then, the petition for eviction must have been dismissed or at all events, it failed by operation of law and there was no jurisdiction left with the Controller to strike off the defence of the appellant under Section 15 (7) of the Act nor to pass an order for eviction. Lastly, the counsel has contended that the ground mentioned in clause (a) had not been established and the order for eviction was legally not sustainable. ( 5 ) I shall take u,p the last contention of the counsel first. Section 26 of the Act requires the tenant to pay rent within the time fixed by the contract or in the absence of such contract by the fifteenth day of the month next following the month for which it is payable and it the Landlord does not receive it, the tenant can deposit it with the Controller within 21 days. Proviso to sub-section (1) of Section 14 of the Act lays down that the Controller may, on an application made to him in the prescribed manner, make an order for recovery of the premises on one or more of the following grounds, namely, (a) the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act. 1882 vide clause (a ). 1882 vide clause (a ). An analysis of the aforesaid statutory provision shows that on the failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of the service of a notice of demand for the arrears, the tenant renders himself liable to eviction on the ground mentioned in clause (a) of the aforesaid proviso. So far as the proviso (a) is concerned, it does not require any other ingredient excepting that the arrears of rent must be legally recoverable from him and the tenant must have failed to pay the same within two months ofthe notice of demand. In the instant case, a notice of demand dated 27th October, 1969 had been served on the appellant on 30th October, 1969 and so within two months of the same, that is to say by 30th December, 1969, it was the duty of the tenant appellant to pay all the arrears of rent up to that date. There is no dispute between the parties with regard to arrears of rent being due for the period in the case, since in respect of arrears for previous period, a suit for recovery had been instituted in civil court. Admittedly, the tenant failed to comply with the notice and pay or tender the arrears of rent due within the time allowed. The section does not require any other ingredients. In the impugned order dated 21st April, 1973, the Additional Controller has recorded a finding that the copy of the notice, (Ex. A-l) had been served on the tenant vide postal acknowledgment (. Ex. A-2) and the statements of A. W. 1 and the landlady A. W. 2 had established the ingredients of clause (a) mentioned above. Consequently the tenant had rendered himself liable to eviction on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14 of the Act. ( 6 ) AT this stage, it may be noticed that sub-section (2) of Section 14 has prescribed an exception to the aforesaid proviso. It is to the effect that no order for recovery of. possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or deposits as required by Section 15. It is to the effect that no order for recovery of. possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or deposits as required by Section 15. A further proviso has been provided to the said exception. It is to the effect that no tenant shall be entitled to the benefit under sub-section (2) if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months. The result is that if a tenant complies with the order of the court passed under. Section 15 (1) of the Act, a locus paenitentiae is provided to the tenant to escape eviction on the ground mentioned in clause (a) stated above. This locus paenitentiae is, however, not available to the tenant on subsequent occasions if he persists in default in payment of rent for three consecutive months. This question, however, does not arise because the present is a case of first default only. ( 7 ) HOWEVER, it is clear that in order to take advantage of the exception made in first part of sub-section (2) the tenant must comply with the whole of the order of the Controller passed under Section 15 (1) of the Act including the order for payment of future rent. In the facts of the case, it is established that the tenant has failed to comply with the aforesaid order in full and has not deiposited the future rent in compliance of the said order. He has, therefore, not complied with the provisions of sub-section (2) and has disentitled him from seeking its benefit and escape the eviction. In this view of the matter, the appellate order of the Tribunal is not assailable. ( 8 ) MR. Budhiraja has, however, strongly contended and pressed his first contention. He has urged that the order under Section 15 (1) was without jurisdiction. There is no basis for the said submission. In this view of the matter, the appellate order of the Tribunal is not assailable. ( 8 ) MR. Budhiraja has, however, strongly contended and pressed his first contention. He has urged that the order under Section 15 (1) was without jurisdiction. There is no basis for the said submission. Firstly, in my opinion the appellant cannot be allowed to raise the said contention at this stage of the case when the order passed under Section 15 (1) of the Act had not been appealed against and had become final, when for failure to comply with the said order, the defence of the appellant has finally been struck off. The contention of the appellant in the defence to the said application for striking off defence was that he had complied with the order in full and that he failed to comply with the order for payment of future rent in respect of one month on account of illness and some other circumstances beyond his control, (which excuse was found to be untenable ). The Controller then found that there were no grounds for condoning the delay and he passed an order for striking off the defence. An appeal against the same failed and the order has become final. The appellant, therefore, cannot be allowed to challenge the basic order passed under Section 15 (1), when his defence has been struck off. ( 9 ) MOREOVER, I am unable to find any jurisdictional infirmity in the order of the Controller passed under Section 15 (1) of the Act. The order directed the tenant to pay all arrears of rent at the rate of Rs. 35 per month calculated from May, 1967 within one month from tha date of the order, besides future rent at the said rate month by month by the fifteenth of each succeeding month. In that order the Controller found that the landlady was entitled to an order under Section 15 (1 ). of the Act in respect of rent with effect from 1st May, 1968 and he repelled the contention advanced on behalf of the tenant, that institution and pendency of the suit was a bar to the passing of this order. The plea of oral payment was also rejected. It was pointed out that no other point had been taken by either side during the course of arguments. The plea of oral payment was also rejected. It was pointed out that no other point had been taken by either side during the course of arguments. However, in view of the pendency of the suit, the Additional Controller had also ordered that the landlord will not withdraw the rent deposited till orders to that effect had been passed by the Court. Mr. Budhiraja submits that at that stage it was the duty of the Controller to decide the question of validity of the notice as well. I am unable to accept tha submission that because of the failure of the Controller to do so, the order passed by him, (which has become final between the parties) was without jurisdiction. ( 10 ) MR. Budhiraja next contends that on payment or deposit of arrears of rent in compliance with the order under Section 15 (1) the petition has come to an end by operation of law and he was under no legal duty to deposit any future rent thereafter. I do not find any force in the submission. The judicial proceedings in a case naturally do not come to an end without a final order or by operation of law. In this case they ended when the Controller passed the impugned order dated 2. 1st April, 1973. Surely, She tenant appellant could not take it upon himself to decide the question as to when the proceedings had legally terminated. If he were of the view that the proceedings had been terminated, he should have made an application before the Controller to strike off the case. Instead of doing so, he chose to commit default for a month and then has come out with a false plea. There is no force in the plea and the same has rightly been repelled by the Rent Control Tribunal. As and resuit, I do not find any merit in the appeal and dismiss the same. There will be no order as to costs, as there has been no appearance on behalf of the respondent. ( 11 ) AS I was pronouncing this order. Mr. G. S. Mathur has appeared for the respondent landlady and has, accepting the request of counsel for the appellant, jointly prayed that the order of eviction be not executed till 15th April, 1975. It is ordered accordingly.