KULDIP SINGH JOHAR v. V. D. NARANG — 1982 DIGILAW 66 (DEL)

Yogeshwar Dayal ( 1 ) THIS second appeal has been filed by tenant, S. Kuldip Singh Johar, against an order of ejectment under Clause (a) of the Proviso to Sub-sec. (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act") passed by the 1st Addl. Rent Controller, Delhi, vide judgment dated 9th May, 1977 as affirmed by the judgment of the Rent Control Tribunal dated 28th March, 1980. ( 2 ) THE landlord gave a notice of damand dated 16th July, 1973 which was received by the appellant on 23rd July, 1973, claiming arrears of rent with effect from 15th May, 1973 till 14th July, 1973 at the rate of Rs. 175. 00 per month. According to the notice of damand, the month of tenancy begins on the 15th of each English Calendar month ending on the 14th of the next following month. The notice of demand required of the appellant to pay arrears within two months of the receipt thereof. ( 3 ) ON 4th October, 1973, the eviction petition, out of which this appeal his arisen, was filed. In the eviction petition, in paragraph 18 (a) (1) thereof, it was averred : "that the respondent is in arrears of rent with effect from 15-5-1973 and the respondent 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 the arrears of rent haa been served on him as required by law. "i am not referring to the other pleadings of this paragraph because order of ejectment has been passed only on the aforesaid ground. ( 4 ) IN the written-statement, it was inter alia stated that the landlord had been harassing the tenant in respect of supply of water. He shuts off the booster pump specially in summer. He trespassed into the premises. He cut off the pipe connecting the reservoir on 30-10-1973 and an application under Section 45 of the Act was moved by the tenant in the court of Sh. Mohd. Shamim, Addl. Rent Controller, for restoration of water connection. In spite of the order of the learned Addl. Rent Controller, the landlord did not restore it. He cut off the pipe connecting the reservoir on 30-10-1973 and an application under Section 45 of the Act was moved by the tenant in the court of Sh. Mohd. Shamim, Addl. Rent Controller, for restoration of water connection. In spite of the order of the learned Addl. Rent Controller, the landlord did not restore it. ( 5 ) IN reply to paragraph 18 (a) (1) of the petition, the tenant pleaded as under vide para 10 of the written statement : "in reply to para 18 (a), it is submitted that : (i) Rent for the period 15-6-73 to 14-7-73 was paid by cheque No. SDA 002834, dated 17-8-73 issued on the United Bank of India, Sardarjang Branch for Rs. 175. 00 , which the petitioner wilfully did not get it enchased for ulterior reasons. He had now got enchased another cheque in lieu thereof viz. No. SDA 009283, dated 11-12-73 for Rs. 525. 00. (ii) Rent for the period from 15-7-73 to 14-8-73 was paid by cheque No. SDA 002836, dated 15-9-73, issued on the United Bank of India, Sardarjang Branch for Rs. 175. . 00. The patitioner has got this cheque cashed, but he has not given a receipt thereof. He is entitled to appropriate Rs. 100. 00 as rent for this period. (iii) Rent for the period 15-8-73 to 14-9-73 has been paid by cheque No. SDA 002837, dated 14-10-73, issued on the United Bank of India, Sardarjang Branch for Rs. 171. 00 (after deducting Rs. 4 for repairs of electrics witches) which the petitioner did not got it enchased, but he has got encashed the other cheque in lieu thereof, as mentioned in item (i) above. (iv) Rent for the period 15-9-73 to 14-10-73 was remitted by money order for Rs. 175. 00 (which is more than the standard rent) on 19-11-73, which he refused to receive. He got this amount by cheque mentioned in item (i) above. He has received Rs. 175. 00 vide cheque No. SDA 009284, dated 11-12-73. " ( 6 ) THE landlord was directed to file replication. In reply to paragraph 10 of the written-statement, the laadlord stated in the replication an under: "para 10 of the written statement as stated is not admitted. He has received Rs. 175. 00 vide cheque No. SDA 009284, dated 11-12-73. " ( 6 ) THE landlord was directed to file replication. In reply to paragraph 10 of the written-statement, the laadlord stated in the replication an under: "para 10 of the written statement as stated is not admitted. Whatever arrears of rent the respondent has paid to the petitioner they were made by cheques but after the expiry of the period of notice of demand. The petitioner has received the same without prejudice to his rights. The respondent is still in arrears of rent w. e. f. 15th Oct. 73 and an order under Section 15-A of the Act directing the respondent to deposit all arrears of rent and future rent month by month at the rate of Rs. 175. 00 per month at which it was last paid be made. The reply which the respondent sent to the petitioner falsely and illegally denied the just claim of the petitioner. " ( 7 ) ON 29-5-1974, the learned Addl. Rent Controller passed order under Section 15 (1) of the Act directing the appellant to deposit arrears of rent due with effect from 15-4-1974 up-to-date within one month of the date of the order. ( 8 ) THE learned Addl. Rent Controller vide his order dated 3-5-1977 found that the appellant had not complied with the order under Sec. 15 (1) of the Act and, therefore, the appellant could not take benefit of Section 14 (2) of the Act. However, on the question whether the tenant-appellant had complied with clause (a) of the proviso to Sub-sec. (1) of Section 14 of Act, the learned Addl. Rent Controller took the view in paragraph 4 of the judgment dated 9-5-1977 as under : "by notice Ex. A. W. 2/2 the respondent was called upon to pay arrears of rent w. e. f. 15-5-73 upto date within a period of 2 months. Notice is dated 16-7-73 and it appears to have been served on the responden on or before 23-7-73, in view of the reply of the respondent A. W. 2/3. It is very much apparent that the respondent has not complied with this notice when he sent first cheque for a sum of Rs. 175. 00 on 17-8-73 rent for the month from 15-7-73 to 14-8-73 had also accrued and similarlysubsequent cheque was also for a sum of Rs. 175. It is very much apparent that the respondent has not complied with this notice when he sent first cheque for a sum of Rs. 175. 00 on 17-8-73 rent for the month from 15-7-73 to 14-8-73 had also accrued and similarlysubsequent cheque was also for a sum of Rs. 175. 00 to escape on order of eviction on the ground of non-payment of rent, it was necessary that the respondent should have sent rent in. respect of not only the rent which was demanded but also rent which could have accrued within a period of 2 months upto date of the payment (See S. L. Kapoor vs. Dr. Mrs. P. D. Lal, 1975 RG. R. 394 ). Consequently, the ground of non-payment of rent existed when the petition, was filed. " ( 9 ) THE learned Addl. Rent Controller accordingly passed order of ejectment. ( 10 ) THE tenant, dissatisfied with the decision of the learned Addl. Rent Controller, went up in appeal before the Tribunal. The Tribunal dealt with this aspect of the matter in paragraphs 14 and 15 of its judgment dated 28th March, 1980. It will be noticed that the learned Addl. Rent Controller as well as the learned Tribunal passed the order on the basis of averments contained in paragragraph 10 (i) of the written-statement. In this paragraph, the tenant had specifically averred that rent for the period 15-6-73 to 14-7-73 was paid by cheque dated 17-8-73 for Rs. 175. 00 which the landlord wilfully did not got encashed for ulterior reasons. Therefore, it boils down to this that both, the learned Addl. Rent Controller and the Tribunal, proceeded on the assumption that tender was made for the rent for the period 15-6-73 to 14-7-73. They, however, took the view that this tender was not valid. ( 11 ) I would, therefore, proceed to examine whether this tender was valid or not. To recaptulate, it will be noticed that in the ejectment application no grievance was made by the landlord about payment or non-payment of rent for the period 15-5-1973 to 14-6-1973 which, inter alia, was demanded in the notice of demand dated 16-7-1973. Both the courts below have proceeded on the assumption that this tender was made but was invalid. To recaptulate, it will be noticed that in the ejectment application no grievance was made by the landlord about payment or non-payment of rent for the period 15-5-1973 to 14-6-1973 which, inter alia, was demanded in the notice of demand dated 16-7-1973. Both the courts below have proceeded on the assumption that this tender was made but was invalid. According to the courts below, this tender was bad because at the stage when this tender was made, arrears of rent also fell due with effect from 15-7-1973 to 14-8-1973 and because the rent due for the period 15-7-1973 to 14-8-7973 was not tendered, the tender made by means of the aforesaid cheque for the period 15-6-1973 to 14-7-1973 was also bad and the landlord was entitled not to accept it or encash the aforesaid cheque dated 17-8-1973. In support of this view, both the courts below have relied upon certain observations of B. G. Misra. J. (as his Lordship then was) in the case S. L. Kapur v. Dr. Mrs. P. D. Lal, 1975 Rent Control Reporter 394, wherein the learned Judge made the following observation in paragraph 11 of the judgment at page 399 of the report: "considered from another point of view, the notice of demand required the amount to be paid within two months and the tenant was legally bound to pay the arrears of rent due till then including the previous period as well as for the notice period and subsequently till the date of deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 12 ) IT will be noticed from the facts of case before Misra, J. that the notice of damand, as contemplated by clause (a) of the proviso to Sub-scc. (1) of Section 14 of the Act was dated 24th April, 1969 and was served on the tenant in that case on 8th May, 1969. The notice claimed arrears of rent for a period of three months. The rent-note required the payment of rent at the commencement of tenancy month. The month of tenancy commenced from 11th day of Calendar month and expired on the 10th of the next following month. The notice claimed arrears of rent for a period of three months. The rent-note required the payment of rent at the commencement of tenancy month. The month of tenancy commenced from 11th day of Calendar month and expired on the 10th of the next following month. The deposit was made by the tenant in the court of the Addl. Rent Controller on 11th June, 1969, for the period 11th January to 10th May. It was also a case of second default where the tenant had already taken benefit of Sec. 15 (1) of the Act and all that the landlord had to show was that the tenant had committed default in payment of rent for three consecutive months as provided in the proviso to Scc. 14 (2) of the Act. The observations of Misra, J. in considering the case from another point of view on the facts of that case thus appear to be obiter. ( 13 ) THE question as to the meaning of the aforesaid clause (a) of the proviso to Sub-sec. (1) of Sec. 14 of the Act came up directly for consideration before Sultan Singh, J. in the case reported as Daulat Ram v. Som Nath awl others, XIX (1981) D. L. T. 1, wherein Sultan Singh, J. took the view that if the rent was not legally recoverable on the date of notice of damand, the tenant would not be liable to pay or tender such amount. ( 14 ) THE view taken by Sultan Singh, J. is in direct conflict with the aforesaid observations of Misra, J. ( 15 ) CLAUSE (a) of proviso to Sub-sec. (1) of Section 14 of the Act reads as under: "provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of the possession of the premises on one of more of the following grounds only, namely : (a) that 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 the arrears of rent has been served on him by the landlord; in the manner provided in Sec. 106 of the Transfer of Property Act, 1882. "this clause has legislative history behind it which I propose to examine in brief and to the extent it is relevant for this case. ( 16 ) SIMILAR provision existed in the Delhi and Ajmer-Marwara Rent Control Act, 1947 (hereinafter referred to as "the 1947 Act") as also in the Delhi and Ajmer Rent Control Act, 1953 (hereinafter referred to as "the 1952 Act" ). The relevant provision in the 1947 Act was proviso to clause (a) of Sub-sec. (1) of Section 9 of the said Act which reads as under : 9. " (1) Notwithstanding anything contained in any contract, no court shall pass any decree in favour of a landlord or make any order in favour of a landlord whether in execution of a decree or otherwise, evicting any tenant, whether or not the period of the tenancy has terminated, unless it is satisfied cither- (a) that the tenant has neither paid nor tendered the whole of any arrears of rent due, within one month of the service on him in the manner provided in Section 106 of the Transfer of Property Act, 1882, of a notice of demand by the landlord : Provided that no eviction shall be ordered under this clause if the tenant pays in court on the first day of hearing such arrears of rent together with the costs of the suit. . . . . . ". It will be noticed that under the provision of the 1947 Act, it was the duty of the tenant to pay arrears of rent due within one moth of notice of damand and if the tenant failed to pay, he had to deposit the arrears of rent together with costs of the suit on the first day of hearing in court to avoid eviction. ( 17 ) THE aforesaid provision remained in force till the 1952 Act came into operation. The aforesaid provision in the 1947 Acthad created lot of difficulties for the tenants. The first difficulty was that what the clause contemplated was that the tenant was supposed to pay or tender the whole of arrears of rent due (whether recoverable legally or not ). The aforesaid provision in the 1947 Acthad created lot of difficulties for the tenants. The first difficulty was that what the clause contemplated was that the tenant was supposed to pay or tender the whole of arrears of rent due (whether recoverable legally or not ). Another trouble which gave rise to lot of litigation was that the tenants had to compute not only the arreass of rent but had also to compute costs of the suit and if the tenants made default in calculating cither of them, they were liable to ejectment. Still another drawback was that it was not known what was the first day of hearing. Was it the date when the tenant appeared in court in pursuance of summons or was it the date when he was to file written-statement or when issues were settled. ( 18 ) HOWEVER, the Legislature replaced the 1947 Act by the 1952 Act and the provisions as contained in Section 9 (1) (a) of the 1947 Act also underwent a change. The proviaions of Section (1) (a) of the 1947 Act were replaced by proviso (a) to Sub-sec. (1) of Section 13 of the 1952 Act. Proviso (a) along with Sub-sec. (1) of Section 13 of the Act of 1952 reads as under: "13. (1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated): Provided that nothing in this Sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied: (a) that the tenant has neither paid nor tendered the whole of the arrears of rent due within one month of the date on which a notice of demand for the 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 (IV of 1882)". The only change made in the 1952 Act, to remove the difficulty of the tenant, was that Sub-sec. (2) of Section 13 provided that the court could grant further time if the tenant did not deposit arrears of rent then due together with costs of the suit on the first day of hearing. The only change made in the 1952 Act, to remove the difficulty of the tenant, was that Sub-sec. (2) of Section 13 provided that the court could grant further time if the tenant did not deposit arrears of rent then due together with costs of the suit on the first day of hearing. So, the only difficulty which the 1952 Act removed -was that it gave power to the court to extend time for deposit by the tenant in court. ( 19 ) TO safeguard the interests of the landlord in dealing with the recalcitrant tenants, the 1952 Act introduced a provision in Section 13 (5) of the Act which contemplated that if the tenant contested the claim for ejectment, the landlord could apply to the court to call upon the tenant not only to deposit arrears of rent but also future rents month by month, but in making that order the court had the discretion to pass such an order. If the court exercised discretion to pass such an order and the tenant failed to comply with that order, the court was bound to strike off the defence of the tenant. In that regard, the court had no discretion. ( 20 ) AGAIN, if the tenant took the benefit of deposit in court to avoid ejectment, he could enjoy that benefit every time a notice of demand was served on him even if he failed to pay or tender. He could avail of the benefit of deposit in court on the first day of hearing even if he had not paid or tendered in spite of notice of demand and thereby defeat application for ejectment on the ground of non-payment of rent every time. ( 21 ) BUT all other problems of the tenant still persisted. ( 22 ) IT was in this situation that in 1928, when the present Act was passed, the Legislature thought it fit to remove the difficulties of the tenant and the landlord seen in the light of the working of the 1947 Act and the 1952 Act. This was done by introducing a provision like clause (a) of the proviso to Sub-sec. (1) of Sec. 14 of the Act as well as provisions like Section 14 (2) and 15 of the Act. This was done by introducing a provision like clause (a) of the proviso to Sub-sec. (1) of Sec. 14 of the Act as well as provisions like Section 14 (2) and 15 of the Act. ( 23 ) TO obviate the problems of the landlord where a recalcitrant tenant, whether he contests or does not contest claim for ejectment and yet fails to pay within the time stipulated in spite of notice of demand having been served on him, the Act made a substantive provision of Section 15. But where the tenant made a default in the payment of rent after service of notice of demand, but complied with the provisions of Section 15, the Legislature gave him another lease of life by permitting him to deposit arrears of rent as required by Section 15 (1) of the Act and here it made a departure from the 1947 Act as well as the 1952 Act inasmuch as it was for the court to determine the arrears of rent which the tenant was required to deposit. Nothingwas left in doubt as to the arrears of rent. It will also be noticed that by order under Section 15 (1) of the Act, the court determines prima facie the arrears of rent till the passing of the final order. ( 24 ) THE other change brought about was that unlike the 1952 Act if the tenant made a default in depositing rent in pursuance of order under Section 15 (1) of the Act, either in respect of arrears or future rents, it was the discretion of the court to strike off the defence of the tenant as against the mandatory provision contained in Sub-section (5) of Section 13 of the 1952 by virtue of which the court was bound to strike off the defence of the tenant. Even as to proviso to clause (a) of Sub-sec. (1) of Section 9 of the 1947 Act and proviso (a) to Sub-sec. (1) of Section 13 of the Act of 1952, the 1958 Act made a change in that it made an explicit provision. Clause (a) of proviso to Section 14 (1) of the Act, as extracted in the earlier part of this judgment, may be contracted with proviso (a) to Sub-scc. (1) of Section 13 of the 1952 Act. (1) of Section 13 of the Act of 1952, the 1958 Act made a change in that it made an explicit provision. Clause (a) of proviso to Section 14 (1) of the Act, as extracted in the earlier part of this judgment, may be contracted with proviso (a) to Sub-scc. (1) of Section 13 of the 1952 Act. ( 25 ) IT will be noticed that the period within which the amount claimed in the notice must be paid or tendered has been increased from one month to two months. The second change is that "instead of arrears of rent due" being claimable in the notice of demand, it is made explicit that the "tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him". The meaning of the clause as contained in the 1958 Act is that landlord cannot claim amount more than permitted by law i. e. if the amount of claim is barred by limitation, it cannot be claimed in the notice of demand and give cause of action to the landlord to file a petition on the ground of non-payment of rent or non-tendering of the sum legally recoverable and demanded in the notice of demand. The cause of action is not that the tenant has not tendered or paid arrears of rent which have become due subsequent to the notice of demand. The cause of action is that the tenant has neither paid nor tendered the legally recoverable arrears of rent demanded in the notice. The only rider is that the sum demanded should be legally recoverable i. e. if notice of demand is given in December for rents due for the months of October and November which have become legally recoverable, the tender has to be made within two months. The amount has to be as claimed in the notice of demand and not any arrears of rent which become due after the notice of demand i. e. the whole of arreara of rent legally recoverable as referred to in the notice of demand and not rents which may become due after the notice of demand. The amount has to be as claimed in the notice of demand and not any arrears of rent which become due after the notice of demand i. e. the whole of arreara of rent legally recoverable as referred to in the notice of demand and not rents which may become due after the notice of demand. ( 26 ) I am in respectful agreement with the view of Sultan Singh, J. in the aforesaid case ( 27 ) THE position, therefore, boils down to this that as per the ejectment application rent due for the month of May, 1973 was not claimed to be in arrears or not having been paid within the time allowed by the notice. What was claimed to be arrears was the rent for the period with effect from 15-6-73 to 14-7-73. Both the court below have accepted, as stated earlier, that the tender was made by cheque dated 17-8-1973 before the expiry of the period of notice. This cheque related to arrears of rent for the period 15-6-1973 to 14-7-1973. Thus, there is no infirmity in the tender made by the tenant. It would have been a different matter if, as in the present case, the arrears of the rent claimed were for two months and the landlord declined to accept the tender of rent piecemeal. But here, we find that no grievance was made about the tender of rent for the period 15. 5-1973 to 14-6-1973 i. e. the landlord accepted piecemeal tender and when the tender was again made for the rest of the period there was no legitimate ground to refuse it. ( 28 ) IT is submitted by Mr. Jain that the cheque dated 17-8-1973 was not received by the landlord. I am afraid this submission cannot be entertained in second appeal. Both the courts below have proceeded on the assumption that there was tender of the cheque dated 17-8-1973 within the period of notice. ( 29 ) IT appears that the tenant-appellant failed to comply with the order under Section 15 (1) of the Act, yet this is not a handicap for him since in the present case he has established that he had paid and/or tendered the rent as demanded in the notice of demand within the time permitted by the aforesaid provision and, therefore, there was no cause of action available to the tenant on that ground. ( 30 ) THE result is that this appeal succeeds. The impugned orders of the learned Addl. Rent Controller and the learned Rent Control Tribunal are set aside and the ejectment application of the landlord is dismissed. ( 31 ) PARTIES arc left to bear their own costs.