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1991 DIGILAW 556 (DEL)

HARBHAGWAN PRABH DAYAL v. MOHAMMND ISHAQ

1991-10-11

S.C.JAIN

body1991
S. C. Jain, J. ( 1 ) THIS order will dispose of this second appeal No. SAO 410/85 and fourty three other connected second appeals (bearing No. SAO 38/86, to 41/86, 221/86 to 226/86, 147/87, 159/87 to 161/86, 167/87 to 181/87, 185/87 to 194/87, and 198/87 to 201/87) as common questions of law and facts are involved in these appeals. ( 2 ) TO brief, the facts are that S/shri Harbhajan Prabh Dayal sons of late Shri Jal Kishan Dass, hereinafter referred to as the appellants, had filed applications under Section 27 of the Delhi Rent Control Act against Mohd. Ishaq (now deceased) for depositing of rent for the shop in dispute with the allegation that the respondent bad been avoiding to receive rent since 1. 7. 77. He wanted to and enhance the rent as such with malafide Intention he was not accepting rent though tendered to him legally. Even despite service of notice dated 15. 12. 77 Mohd Ishaq. refused to accept the same and in these circumstances the appellant was forced to deposit the arrears of rent under Section 27 of the Delhi Rent Control Act after obtaining the order of the Addl. Rent Controller in this regard. ( 3 ) THE appellant continued to deposit rent month by month in the Court of the Addl. Rent Controller after obtaining the order in this regard as the respondent refused to accept the rent tendered to him in accordance with the provisions of the Delhi Rent Control Act. ( 4 ) THE respondent filed objections to the application under Section 27 of the Delhi Rent Control Act but those objections were dismissed in default on 15. 3. 85 and the amount lying deposited in the Court of the Addl. Rent Controller was allowed to be withdrawn by the respondent without prejudice. The appellant claimed that a fine equal to two months rent should have been imposed upon the landlord for his refusal to accept the rent though tendered to him In accordance with law. The Addl. Rent Controller did not accept this plea of the appellant and dismissed the same by observing that it was not a fit case where fine could be imposed on the landlord. The appeals before the Rent Control Tribunal were also dismissed. ( 5 ) AGGRIEVED by the orders of the Courts below (he appellants have preferred these second appeals. Rent Controller did not accept this plea of the appellant and dismissed the same by observing that it was not a fit case where fine could be imposed on the landlord. The appeals before the Rent Control Tribunal were also dismissed. ( 5 ) AGGRIEVED by the orders of the Courts below (he appellants have preferred these second appeals. ( 6 ) LEARNED Counsel for the appellants argued that the appellants have been harassed by the respondent since July, 1977 so as to coerce them to increase the rent with heavy consideration failing which they were threatened to eviction from the demised premises which is amply proved and demonstrated by the facts on record. ( 7 ) ACCORDING to the learned Counsel, the appellants have always been complying with the statutory requirement of the act while tendering the arrears of rent for each month and the respondent should be penalised for forcing and compelling the appellants to file as many as sixty petitions under Section 27 of the Delhi Rent Control Act but the Rent Control Tribunal took the view that it was not a fit case for imposing a fine under Section 27 (6) of the Delhi Rent Control Act and this finding of the Rent Control Tribunal is erroneous and is against the provisions of law. Chapter IV of the Delhi Rent Control Act provides that discretion should be exercised judicially and not in an arbitrary and whimsical wav. The order passed by both the Courts below show that the discretion used by them cannot be said to be judicious. ( 8 ) LEARNED Counsel for the respondents, who are legal representatives of late Mohd. Ishaq who was the landlord and was dealing with this matter. submitted that Mohd. Ishaq had since died and these respondents knew nothing about this case. According to the learned Counsel, the said action of Mohd. Ishaq complainted of In these proceedings was his personal action and the same bad come to an end with his death on the principle ennunciated in the maximum "actio personal is moritor cum persona" being the obligation cast on Mohd, Ishaq by and/or under Section 27 and penal consequences arising out of non discharge of those obligations stood determined by his death and his legal heirs cannot be fined for his acts. ( 9 ) HE further argued that under Section 27 (6) of the Delhi Rent Control Act the word used is may and it is the discretion of the Rent Controller either to impose a fine or not under the provisions in this connection. Both the Courts below have exercised their discretion judicially and from the impugned order it cannot be said that the exercise of discretion by the Courts below is whimsical or arbitrary. ( 10 ) IN all these appeals the appellant want that the Court should impose statutory fine equal to two months rent under the provisions of the Delhi Rent Control Act and for an order for being compensated out of the said fine. ( 11 ) SECTION 27 (6) of the Delhi Rent Control Act reads as under : "the Controller may on the complaint of the tenant and after giving an opportunity to the landlord of being heard, levy on the landlord a fine which may extend to an amount equal to two months rent, if the controller is satisfied that the landlord without any reasonable cause refused to accept rent though tendered to him within the time referred to in Section 26 and may further order that a sum out of the fine realised be paid to the tenant as compensation. " ( 12 ) A perusal of this Section shows that it is the discretion of the Rent Controller to levy on the landlord a fine which may extend to two months rent if he is satisfied that the landlord without any reasons refused to accept the rent within two months (time) referred to under Section 26 of the Delhi Rent Control Act. In order to attract the provisions referred to under the subsection (6) of Section 27 it should be proved on record that the refusal to accept rent was deliberate and malafide with a view to harass the tenant. In these cases, both the Courts below came to a concurrent finding that there was no deliberate or malafide intention on the part of the landlord in refusing to accept the rent and in those circumstances they found that it was not a fit case where the fine could be imposed. The discretion exercised by them cannot be said to be arbitrary or malafide. Moreover, the landlord Mohd. The discretion exercised by them cannot be said to be arbitrary or malafide. Moreover, the landlord Mohd. Ishaq who allegedly refused to accept the rent though tendered to him has since died and legal representatives-the respondents had no knowledge about the personal act of Mohd. Ishaq. From the record it is apparent that this dispute regarding the payment of rent has become a chronic disease. The appellant has been depositing rent month by month simply for the sake of deposit in the Court. Needless to say that the landlord had been put to a great trouble in withdrawing the deposited amount of rent. The awarding of fine is discretionery and the cost can be imposed only in appropriate cases. I do not find any merit in these appeals. The same are dismissed. The parties are left to bear their own costs.