Research › Search › Judgment

Delhi High Court · body

2000 DIGILAW 698 (DEL)

RAM PARKASH TEWARI v. SURAJ BHAN YADAV

2000-08-21

MADAN B.LOKUR

body2000
Madan B. Lokur ( 1 ) THE appellant is a tenant in a shop in the suit premises bearing No. Q-35 (Old No. 1501/2), Mohan Park, Naveen Shahdara, Delhi, ( 2 ) THE case of the respondent was that the appellant had not tendered or paid rent from 9/10/1977 despite repeated requests. Accordingly, the respondent issued him a notice of demand dated 25/11/1978. This notice was duly served upon the appellant but he failed to tender or pay the arrears of rent. Consequently, the respondent was left with no other option but to file a petition for the eviction of the appellant under the provisions of Clause (a) of the proviso to section 14 (1) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act ). ( 3 ) CLAUSE (a) of the proviso to Section 14 (1) of the Act and Section 14 (2) of the act read as follows: "14. Protection of tenant against eviction - (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant: provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or 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 Section 106 of the Transfer of Property Act, 1882 (4 of 1882); (b) to (1) xxx xxx xxx (2) No order for the 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 deposit as required by Section 15: provided that no tenant shall be entitled to the benefit under this sub- section, 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. " ( 4 ) THE defence of the appellant was that he had already paid the rent to the respondent and there was no outstanding due from him. He further contended that the respondent had taken a loan of Rs. 3. 000. 00 from the appellant which he was entitled to adjust towards the future rent. ( 5 ) DURING the pendency of the eviction petition, the learned Additional Rent controller (hereinafter referred to as the Controller) passed an order under the provisions of Section 15 (1) of the Act on 7/07/1979. By this order, the appellant was directed to deposit the arrears of rent within one month and to pay future rent with effect from 8/10/1978 month by month. This date was fixed on the basis of the contention of learned Counsel for the appellant that rent had been paid till this date. ( 6 ) THE appellant did not comply with the order dated 7/07/1979 and, therefore, the respondent moved an application under the provisions of Section 15 (7) of the Act on 10/08/1979 for striking out the defence of the appellant. ( 7 ) ON 22/08/1979, the appellant moved an application for permission to deposit the arrears of rent and also for condonation of delay in depositing the rent. The respondent naturally objected to the prayer made in this application. On 1 1/09/1979 the learned Controller passed an order allowing the application of the respondent for striking out the defence of the appellant and also rejecting the application for condonation of delay in depositing the rent. ( 8 ) THE respondent then led his evidence and by an order dated 30/01/1980 the learned Controller allowed the eviction petition and ordered the eviction of the appellant. ( 9 ) FEELING aggrieved, the appellant filed an appeal being RCA No. 215/1980 before the learned Rent Control Tribunal (hereinafter referred to as the Tribunal ). By the impugned order dated 3/03/1980, the appeal was dismissed by the learned Tribunal. ( 10 ) IT may be mentioned for the record that the appellant had, at some point of time, applied for fixation of standard rent. This application was dismissed in default on 28/04/1980. Nothing, however/ turns on this and no submissions were made in this regard. ( 11 ) THE appeal was taken up for final disposal on 30th and 31/01/1997. This application was dismissed in default on 28/04/1980. Nothing, however/ turns on this and no submissions were made in this regard. ( 11 ) THE appeal was taken up for final disposal on 30th and 31/01/1997. However, no one appeared on behalf of the appellant with the result that the appeal was dismissed for non-prosecution. ( 12 ) ON an application moved by the appellant, the appeal was restored to its original number but it transpires that in the interregnum, the respondent took possession of the suit premises on 12/07/1999. ( 13 ) LEARNED Counsel for the parties made their submissions before me on 2 4/07/2000 and 2/08/2000 when judgment was reserved. ( 14 ) LEARNED Counsel for the appellant urged that since there was a dispute about the rate of rent, therefore, the learned Controller ought to have passed an order under Section 15 (3) of the Act instead of under Section 15 (1) of the Act. This question, to my mind, is really academic for the reason that the appellant did not challenge the order passed under Section 15 (1) of the Act. From the orders passed by the learned Controller and the learned Tribunal, it appears that this ground was not even urged before them by the appellant. Moreover, on the facts of this case, it makes no difference whether the order should have been passed under Section 15 (1) or under Section 15 (3) of the Act because, in any case, the deposit of arrears of rent and future rent was not made by the appellant. ( 15 ) THE principal contention urged by learned Counsel for the appellant was that his client had admittedly committed only his first default in depositing the arrears of rent and, therefore, he ought to have been granted the benefit of Section 14 (2) of the Act. ( 16 ) THE relevant provisions of the Act indicate that if a tenant defaults in the payment of rent, the landlord is obliged to issue a notice demanding rent from him. This is as per Clause (a) of the proviso to Section 14 (1) of the Act. If the notice of demand is not complied with, then the landlord may institute an eviction petition. This is as per Clause (a) of the proviso to Section 14 (1) of the Act. If the notice of demand is not complied with, then the landlord may institute an eviction petition. If need be, the learned Controller may-then pass an order under the provisions of section 15 of the Act directing the tenant to deposit the arrears of rent and to deposit future rent month by month. The question is: what happens if the tenant does not comply with an order passed under Section 15 of the Act? ( 17 ) SUB-SECTIONS (1), (3) and (7) of Section 15 of the Act are relevant and they read as follows; "15. When a tenant can get the benefit of protection against eviction - (1) In every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to Sub-section (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. (2) xxx xxx xxx (3) If, in any proceeding referred to in Sub-section (1) or Sub-section (2), there is any dispute as to the amount of rent payable by the tenant, the controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of Sub-section (1) or Sub- section (2), as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf. (4) to (6) xxx xxx xxx (7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. " ( 18 ) TO answer the question posed above, four decisions of the Supreme Court were cited before me. These decisions are: (I) Hem Chand,etc. etc. v. The Delhi Cloth and General Mills Co. Ltd. andanr. , etc. etc. , AIR 1977 SC 1986 ; (ii) Shyamcharan Sharma v. Dharamdas, AIR 1980 SC 587 ; (iii) Ram Murti v. Bhola Nath 6- Am. , AIR 1984 SC 1392 ; (iv) Subhash Mehta v. Dr. S. P. Choudhary (dead) by L. Rs. , AIR 1990 SC 1009 . ( 19 ) INSOFAR as Hem Chand is concerned, it was held in Ram Murti that that decision ". . . . . . although not expressly overruled, cannot stand with the subsequent decision in Shyamcharan s case. . . . . . ". Consequently, it may not be appropriate to rely on Hem Chand. It must, however, be mentioned that Hem Chand was cited before me only for the purposes of showing the development of the law. ( 20 ) SINCE Shyamcharan was diametrically opposed to Hem Chand, it may be profitable to refer to Ram Murti which resolves the controversy between the two conflicting decisions. It must, however, be mentioned that Hem Chand was cited before me only for the purposes of showing the development of the law. ( 20 ) SINCE Shyamcharan was diametrically opposed to Hem Chand, it may be profitable to refer to Ram Murti which resolves the controversy between the two conflicting decisions. ( 21 ) INSOFAR as Ram Murti is concerned, it may be worthwhile to read what the supreme Court had to say. In paragraph 16 of the Report the Supreme Court stated ". . . . . if the defence is not to be struck out under Section 15 (7) it means that the tenant has still the defences open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection under Section 14 (2 ). " Further in the same paragraph it was held that "if the Rent Controller has the discretion under section 15 (7) not to strike out the defence of the tenant, he necessarily has the power , to extend the time for payment of future rent under Section 15 (1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control. " ( 22 ) IT may be mentioned that the view expressed in Ram Murti was affirmed by the Supreme Court in Kamla Devi v. Vasdev, AIR 1995 SC 985 . Paragraph 23 of the Report is relevant and this reads as under: "we are unable to uphold the contention or" the appellant that the case of Ram murti v. Bhola Nath, (1984) 3 SCC 111 : AIR 1984 SC 1392 , was wrongly decided and reliance was wrongly placed in that case on the decision of a Bench of three Judges of this Court in the case of Shyamcharan Sharma v. Dharamdas, (1980) 2 scc 151 : AIR 1980 SC 587 . In our view. Sub-section (7) of Section 15 of the delhi Rent Control Act, 1958 gives a discretion to the Rent Controller and does not contain a mandatory provision for striking out the defence of the tenant against eviction. The Rent Controller may or may not pass an order striking out the defence. The exercise of this discretion will depend upon the facts and circumstances of each case. The Rent Controller may or may not pass an order striking out the defence. The exercise of this discretion will depend upon the facts and circumstances of each case. If the Rent Controller is of the view that in the facts of a particular case the time to make payment or deposit pursuant to an order passed under Sub-section (1) of Section 15 should be extended, he may do so by passing a suitable order. Similarly, if he is not satisfied about the case made out by the tenant, he may order the defence against eviction to be struck out. But, the power to strike out the defence against eviction is discretionary and must not be mechanically exercised without any application of mind to the facts of the case. " ( 23 ) THE fourth decision, that is, Subhash Mehta was decided on its own peculiar facts as is clear from a reading of paragraph 7 of the Report. ( 24 ) THE position, as it emerges from a reading of the various provisions of the act and the interpretation given to them by the Supreme Court is this: if a tenant complies with an order passed under Section 15 (1) of the Act then, of course, he can contest the eviction petition by raising all his defences. If a tenant does not comply with an order passed under Section 15 (1) of the Act, then the only option available to the landlord is to move an application under Section 15 (7) of the Act to have the defence of the tenant struck off. ( 25 ) WHEN an application under Section 15 (7) of the Act is made by the landlord, the learned Controller has only two options available to him. The learned Controller may either dismiss the application or allow it. If the learned Controller dismisses the application then, as held in Ram Murti, the tenant can raise all defences and he has the right to claim the benefit under Section 14 (2) of the Act, if he does not succeed.- ( 26 ) I am really concerned with the second option, namely, when the learned controller allows an application filed under Section 15 (7) of the Act and strikes out the defence of the tenant. ( 27 ) IN such a situation, it is quite obvious that the order striking out the defence of the tenant is passed because of his failure to comply with an order passed under section 15 of the Act. There is a further consequence of not complying with an order passed under Section 15 of the Act. This is mentioned in Sectionl4 (2) of the Act. ( 28 ) SECTION 14 (2) of the Act provides that an order for recovery of possession cannot be passed "if the tenant makes payment or deposit as required by Section 15 in other words, a tenant is entitled to claim the benefit of Section. 14 (2) of the Act if he complies with an order passed under Section 15 of the Act. This is clear from a plain reading of Section 14 (2) of the Act. Conversely, and if I may use a cricketing term, a "reverse sweep" of this would mean that if a tenant fails to pay or deposit rent as required by Section 15, an order for recovery of possession can be passed against him. ( 29 ) ACCORDING to learned Counsel for the appellant, a tenant is entitled to claim the benefit of Section 14 (2) of the Act (regardless of his conduct) in the case of a fust default. Reliance was placed on paragraph 17 of Ram Murti. ( 30 ) FOR the purposes of easy reference, paragraph 17 of Ram Murti is repro- duced below: "the further contention advanced by learned Counsel for the respondents that in a case of consecutive defaults the proviso to Section 14 (2) is attracted, cannot be accepted for obvious reasons. On a plain construction, it provides that no tenant shall be entitled to the benefit under Section 14 (2) if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent for that premises for three consecutive months. On a plain construction, the proviso is attracted only in a case where the tenant has been saved from eviction in an earlier proceeding for eviction before the rent Controller under Section 14 (l) (e) of the Act i. e. the tenant must have enjoyed the benefit of Section 14 (2) in a previously instituted proceeding. On a plain construction, the proviso is attracted only in a case where the tenant has been saved from eviction in an earlier proceeding for eviction before the rent Controller under Section 14 (l) (e) of the Act i. e. the tenant must have enjoyed the benefit of Section 14 (2) in a previously instituted proceeding. " ( 31 ) LEARNED Counsel for the appellant contended that the last sentence of this paragraph makes it clear that a tenant can be denied the benefit of the proviso to section 14 (2) of the Act only if he has already availed its benefit in an earlier proceeding. . ( 32 ) I am afraid that there is a bit of a mix-up in understanding what the supreme Court has decided. Of course, the benefit of Section 14 (2) of the Act can be availed of by a tenant only once. That is what Section 14 (2) of the Act says and that is what the Supreme Court says. ( 33 ) IT is true that the Supreme Court has used the expressions "in an earlier proceeding for eviction" and "in a previously instituted proceeding. " However, these expressions have to be understood in the context in which they are used, namely, in the case of a tenant making consecutive defaults in paying or depositing future rent as required (in that case) under Section-15 (l) of the Act. The context was not of disobedience of an order passed under Section 15 of the Act. ( 34 ) BEFORE me, the question is one of disobedience of an order passed under section 15 (1) of the Act. The question is whether a tenant can avail the benefit of section 14 (2) of the Act if he fails to comply with an order passed under Section 15 of the Act. In other words, the question is not of availing the benefit of Section 14 (2) of the Act for a second time: the question is of availing the benefit of Section 14 (2) of the Act for the first time if there is non-compliance with an order passed under section 15 of the Act. In other words, the question is not of availing the benefit of Section 14 (2) of the Act for a second time: the question is of availing the benefit of Section 14 (2) of the Act for the first time if there is non-compliance with an order passed under section 15 of the Act. ( 35 ) THE answer to this question as per my analysis above, is that if a tenant does not comply with an order passed under Section 15 of the Act, and if his defence is struck out under the provisions of Section 15 (7) of the Act, then he is not entitled to the benefit of Section 14 (2) of the Act, even in the case of a first default. The reason is the use of the words "if the tenant makes payment or deposit as required by section 15" occurring in Section 14 (2) of the Act. In other words, the benefit of Section 14 (2) can be claimed by a tenant only if he meets its pre-condition, which is compliance with an order under Section 15 of the Act. ( 36 ) THEREFORE, the first submission of learned Counsel for the appellant is rejected. ( 37 ) THE next contention of learned Counsel for the appellant was that his application for condonation of delay in depositing the rent ought not to have been dismissed by the learned Controller. May be so. The fact, however, remains that the order passed by the learned Controller on 11/09/1979 dismissing the application for condonation of delay was not challenged by the appellant who, therefore, accepted the order. Even when the appellant filed an appeal against the order of eviction, he did not challenge the order declining to condone the delay in , depositing the rent. Even in the grounds of appeal filed in this Court, no such contention has been raised. The argument has been raised by learned Counsel for the appellant for the first time when me appeal was being heard. Given the facts as mentioned above, I see no reason to entertain this contention raised by learned counsel for the appellant for the first time during the oral hearing of the case. ( 38 ) UNDER the circumstances, since both the contentions of learned Counsel for the appellant have been rejected, there is no option but to dismiss the appeal. It is so ordered. ( 38 ) UNDER the circumstances, since both the contentions of learned Counsel for the appellant have been rejected, there is no option but to dismiss the appeal. It is so ordered. There will, however, be no order as to costs. The record of the lower Court be sent back. Appeal dismissed.