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2009 DIGILAW 428 (CAL)

Renu Chani v. N. N. Misra

2009-06-19

KALIDAS MUKHERJEE

body2009
Judgment :- (1) This second appeal under Section 27 of the Andaman and Nicobar Islands Rent Control Regulation, 1964 is directed against the judgment and order passed by the learned District Judge, Andaman and Nicobar Islands in Misc. Appeal No.005 of 2006 on 23.01.2008 whereby and where under the learned Judge of the First Appellate Court dismissed the appeal affirming thereby the order of learned Civil Judge, Senior Division dated 1.6.2006 striking out the defence against eviction of the defendant/appellant. (2) The suit was instituted by the plaintiffs before the learned trial Court for eviction, recovery of arrears of rent and damages. It is the case of the plaintiffs that the defendant is a tenant in respect of suit premises under the plaintiffs according to English calendar month. Originally the contractual rent was Rs.800/-per month which was subsequently enhanced to Rs. 950/-per month on mutual consent. The defendant had been paying the monthly rent at the rate of Rs. 950/-per month from March, 1993 to January, 1994 and receipts were also granted to her for such payments. But on 21st October, 1994, four money orders from the defendant were received at a time by the plaintiff No.1 due to sheer inadvertence, each for a sum of Rs. 1,600/- towards the rent purporting to be the rent for the period of eight months from February.1994 to September, 1994. The arrears of rent as aforesaid is thus being deliberately and mischievously sent by the defendant at the rate of Rs. 800/-per month withholding illegally a total amount of Rs.1200/-out of the total rent. The suit for eviction was instituted on the ground of default in payment of rent. (3) The defendant filed a written statement contending in para 4 that the defendant paid enhanced the rate of rent at the rate of Rs. 950/-per month under compulsion and severe threat of eviction. The learned trial Court vide order No.45 dated 20.7.2004 directed the defendant to deposit the arrears of rent amounting to Rs.34,200/- to be paid in three equal instalments payable from the month of August, 2004 including the current rent within 15 days of each succeeding month and the petition under Section 14(1) of the Rent Control Regulation was disposed of. The learned trial Court vide order No.45 dated 20.7.2004 directed the defendant to deposit the arrears of rent amounting to Rs.34,200/- to be paid in three equal instalments payable from the month of August, 2004 including the current rent within 15 days of each succeeding month and the petition under Section 14(1) of the Rent Control Regulation was disposed of. On 19.8.2004, the plaintiff filed an application for review of the earlier order dated 20.7.2004 under Order 47 Rule 1 of Civil Procedure Code and vide Order No. 54 dated 6.9.2005, the review application was allowed directing the defendant to pay arrears of rent amounting to Rs.1,26,350/-for the period from August, 1994 to August, 2005 within a month. Thereafter, vide Order No. 63 dated 1.6.2006, the plaintiffs petition under Section 14(7) of the Rent Control Regulation was allowed striking out the defence of the defendant against eviction. Being aggrieved by the said order dated 1.6.2006, the defendant preferred an appeal before the learned District Judge. The learned District Judge vide judgment and order dated 23rd January, 2008 dismissed the appeal. Being aggrieved by the said judgment and order passed by the learned District Judge, the instant second appeal has been preferred by the defendant. (4) In this second appeal under Section 27 of Andaman and Nicobar Islands Rent Control Regulation, 1964, the following substantial questions of law were formulated:-(i) "For that there is substantial question of law on the point that in a civil suit filed under 13 (1)(a) of the A and N Islands Rent Control Regulation, 1964, the trial Court is required to follow the procedures prescribed under Section 14(1) and 14(3) of the said regulation within the time framed thereunder; (ii) For that the there is substantial question of law when the monthly rent has been disputed by, both landlord and tenant (respondent/appellant hereinabove), the learned trial Court ought to have determined the interim rent first within the stipulated period of 15-days of the first date of hearing of the proceeding." (5) The learned Counsel appearing on behalf of the appellant submits that the rate of interest was Rs. 800/- per month and not Rs. 9507-per month as alleged in the plaint. Learned Counsel has drawn my attention to Section 26 of the Regulation which provides that every order passed by the Court is appealable within 30 days from the date of such order. 800/- per month and not Rs. 9507-per month as alleged in the plaint. Learned Counsel has drawn my attention to Section 26 of the Regulation which provides that every order passed by the Court is appealable within 30 days from the date of such order. It is contended that under Section 14(1), the learned trial Court is to calculate the arrears of rent as alleged at the rate it was last paid and under sub-section 3, the learned Court is required to fix an interim rent pending the fixation of standard rent. It is submitted that the learned trial Court did not take recourse to the provisions contained in Section 14(1) and (3) of the Regulation, although the rate of rent was disputed by the defendant. It is contended that the order passed by the learned trial Court and subsequently upheld by the learned First Appellate Court regarding striking out defence being illegal, the same are liable to be set aside. The learned Counsel contends that the review application is not maintainable, in as much as, there is no provision in the Regulation for entertaining a review application and no opportunity of being heard has been given to the defendant while passing an order for review. It is contended further that the suit was filed under Section 13(1)(a) of the Regulation and as rate of rent was disputed, the provision contained in Section 14(3) came into play and the learned trial Court not having taken recourse to the provisions of Section 14, the order of striking out the defence cannot be sustained. (6) The learned Counsel appearing for the respondents submits that the plaintiffs averred in para 4 of the plaint that the defendant paid rent at the rate of Rs.950/-per month and in para 4 of the written statement, the defendant averred that the rent was paid at the rate of Rs.950/- per month although, allegedly, under compulsion. As regards the review application, the learned Counsel for the respondents submits that defendant got ample opportunity of being heard in connection with the review application and they having not preferred any appeal against the Order No.45 dated 20th July, 2004 or Order No.54 dated 6.9.2005 regarding the direction of the learned trial Court towards the arrears of rent, the defendant cannot challenge the order impugned whereby the learned trial Court struck out the defence. The learned Counsel has referred me to the decision reported in 1969 RCR 861 (Delhi) (M.M.Chawla v. J.S.Sethi) and submits that similar provision has been enacted in Section 15(3) of the Delhi Rent Control Act, 1958. It is contended that there no ground to interfere with the impugned order passed by the learned Judge of First Appellate Court. (7) In order to ascertain whether the rate of rent was disputed or not, it is necessary to look into the pleadings of the parties. In para 4 of the plaint, it has been averred that the defendant had paid monthly rent at the rate of Rs.950/-per month from March, 1993 to January, 1994 and receipts were also granted for such payment and it was further stated in para 5 that the defendant sent arrears of rent at the rate of Rs.800/- per month which the plaintiff No.1 due to sheer inadvertence received the same. As against such averment, the defendant stated in the para 4 of the written statement that the defendant paid enhanced rate of rent at the rate of Rs.950/-under compulsion and severe threat of eviction. (8) From such pleadings, it is clear that the defendant paid rent at the rate of Rs.950/-per month. (9) From Order No.45 dated 20th July, 2004, it appears that the defendant was directed to pay arrears of rent at the rate of Rs.34,200/-by three instalments. Subsequently, in the review application filed on 19th August, 2004 the plaintiffs contended that there was no provision in the Regulation for granting instalments and that the arrears of rent was Rs.1,26,350/-, After filing of review application, several dates were fixed and it appears from Order No.50 dated 14th February, 2005 that opportunity was given to the defendant for filing written objection. From the order passed by the learned trial Court, it appears that no written objection was filed by the defendant against the review application. Subsequently, by Order No. 54 dated 6th September, 2005, the learned trial Court recorded that learned Advocates for both sides filed hazira and no objection was filed by the defendant against the review application. From the order passed by the learned trial Court, it appears that no written objection was filed by the defendant against the review application. Subsequently, by Order No. 54 dated 6th September, 2005, the learned trial Court recorded that learned Advocates for both sides filed hazira and no objection was filed by the defendant against the review application. It was further recorded that the review application was taken up for hearing as the learned Advocate for the defendant was found absent on repeated calls and it was ultimately taken up for hearing at 4 p.m. The learned Judge of the trial Court ultimately allowed the review application directing the defendant to pay Rs.1,26,350/-for the arrears of rent from August, 1994 to August, 2005. Thereafter, vide Order No.60 dated 3.4.2006, the learned trial Court upon an application filed by the defendant extended the time to comply with the order dated 6.9.2005 for payment of arrears of rent. The learned trial Court allowed the petition and directed the defendant to deposit the outstanding dues. But the fact remains that the defendant did not pay the arrears of rent and ultimately by the order impugned, the learned Judge of the trial Court vide Order No. 63 dated 1.6.2006 allowed the petition under Section 14(7) of Rent Control Regulation striking out the defence of the defendant against eviction. (10) From the above facts, it is clear that the defendant was given opportunity to file written objection against the review application. Moreover, the defendant did not prefer any appeal against the Order No.45 dated 20th July, 2004 or the Order No. 54 dated 6.9.2005. The contention of the learned Advocate appearing for the appellant that the defendant was not given opportunity of being heard with regard to the review application, therefore, under the aforesaid circumstances, cannot be accepted. (11) The most striking feature is that when the learned Judge of the trial Court by an Order No.54 dated 6.9.2005 calculated the arrears of rent at the monthly rate of Rs.950/- per month and directed to pay Rs.1,26,350/-, the defendant vide Order No.60 dated 3.4.2006 by filing an application sought for permission from the learned trial Court to pay the arrears of rent as directed by the Court and prayed for extension of time. It, therefore, follows that the defendant accepted the rate of rent at Rs.950/- per month. It, therefore, follows that the defendant accepted the rate of rent at Rs.950/- per month. Under the aforesaid circumstances, it cannot be said that the rate of rent as averred by the plaintiffs in the plaint was ever disputed by the defendant. (12) As regards the applicability of the provisions contained in Section 14(1) and (3) of the Regulation, it appears that as the defendant did not dispute the rate of rent, the said provisions did not come into play. There was no occasion for the learned trial Court to follow the procedure prescribed under Section 14(1) and 14(3) of the Regulation. (13) Having heard the learned Counsels of both sides, materials-on- record and the provisions of law, I find that the learned Judge of the First Appellate Court was justified in dismissing the appeal. There is no ground to interfere with the findings arrived at by the learned Judge of the First Appellate Court. There is no merit in this second appeal. The second appeal, therefore, is dismissed. There will be no order as to costs.