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Springdales School, New Delhi and ors. Vs. Sati Tahilramani, New Delhi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberF.A.O. No. 21 of 1967
Judge
Reported inAIR1969Delhi7
ActsCode of Civil Procedure (CPC), 1908 - Sections 7 and 36 - Order 23, Rule 3 - Order 43, Rule 1 - Order 50, Rule 1; Delhi Rent Control Act, 1958 - Sections 14, 15(2), 35(1), 36(2), 37(2) and 38; Delhi Rent Control Rules, 1958 - Rule 23; Provincial Small Cause Courts Act - Sections 15(1) and 17(1) - Schedule - Article 4
AppellantSpringdales School, New Delhi and ors.
RespondentSati Tahilramani, New Delhi
Appellant Advocate G.S. Vohra and; M.K. Chawla, Advs
Respondent Advocate N.H. Hingorani and ; M. Wadhwani, Advs.
Cases ReferredCentral Bank of India Ltd. v. Gokal Chand
Excerpt:
.....filed under order 43, rule 1(m) of the code of civil procedure against the order of the additional rent controller, delhi, dismissing an application filed by the appellants-tenants for recording an alleged compromise on his file-it was held that the appeal is nto maintainable as provisions of the order 23, rule 3 of the civil procedure code was is nto applicable. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother..........under order 43, rule 1 (m) of the code of civil procedure against the order of the additional rent controller, delhi, dated 2-1-1967, dismissing an application filed by the said appellants-tenants for recording an alleged compromise in the application no. 877 of 1963, on his file.2. the above-mentioned application no. 877 of 1963 was filed by the respondent-landlord before the additional rent controller, delhi, under section 14 of the delhi rent control act, 1958, praying for the eviction of the appellants-tenants from the premises, 'sati villa', no. 1945/14, situated on patel road, west patel nagar, new delhi-12, and included in municipal ward no. 17, on the grounds of sub-letting, assignment or parting with the possession of the premises, misuse of the premises for a purpose other.....
Judgment:

1. This appeal was filed by the appellants-tenants under Order 43, Rule 1 (m) of the Code of Civil Procedure against the order of the Additional Rent Controller, Delhi, dated 2-1-1967, dismissing an application filed by the said appellants-tenants for recording an alleged compromise in the Application No. 877 of 1963, on his file.

2. The above-mentioned Application No. 877 of 1963 was filed by the respondent-landlord before the Additional Rent Controller, Delhi, under Section 14 of the Delhi Rent Control Act, 1958, praying for the eviction of the appellants-tenants from the premises, 'Sati Villa', No. 1945/14, situated on Patel Road, West Patel Nagar, New Delhi-12, and included in Municipal Ward No. 17, on the grounds of sub-letting, assignment or parting with the possession of the premises, misuse of the premises for a purpose other than that for which the premises were let out, etc.

3. In the course of the said proceedings, the respondent herein filed an application on 1-8-1966 under Section 15 of the Delhi Rent Control Act praying that the appellants-tenants may be ordered to deposit arrears of rent at the agreed rate of Rs. 1,300 per mensem with effect from 15-9-1964, and also to deposit the rent for the subsequent months at the said rate in accordance with the provisions of law. In the said proceedings, the appellants herein raised the plea of the fixation of standard rent. On 13-10-1966, the Additional Rent Controller passed an order directing the appellants-tenants Nos. 1 and 2 to deposit within one month from that date the arrears of rent at Rs. 1,300 per mensem from 15-9-1964 up to 13-10-1966, after deducting Rs. 350 per annum on account of costs of repairs for the years 1962 to 1965, and the said appellants-tenants Nos. 1 and 2 were further directed 'to deposit future rent at the said rate, month by month, by the 15th day of each next following month'. The case was ordered to come up on 19-11-1966.

4. Then, on 21-11-1966, the appellants-tenants filed an application under O. 23, R. 3, Civil Procedure Code, alleging, inter alia,--

(a) that after the order dated 13-10-1966 passed by the Rent Controller, the appellants met the respondent and a compromise was made;

(b) that the respondent wrote the compromise in the form of ft receipt in the following terms:--

'Received Rs. 32,400 up to 14th November, 1966. Deposit the future rent in my Savings Bank Account No. 94, United Commercial Bank, East Patel Nagar, New Delhi.'; (c) that thereafter the respondent herein having received the money and also the future rent in terms of the said agreement of compromise, wanted to resile from the compromise, and that the said compromise was liable to be recorded by the Rent Controller, and the respondent was estopped from denying the same;

(d) that the effect of the compromise was that the respondent herein continues to recognise the tenancy of the appellants on the terms stated by her, and also grants the future tenancy on payment of the existing agreed rate of rent, and that the appellants herein, in consideration thereof, gave up their claim to the fixation of standard rent and agreed to pay future rent at the agreed rate, and also to give up their claim for deduction of the amount due for repairs in respect of the year ending in February 1966; and

(e) that, thereforee, the application be disposed of in the said terms, and the compromise be recorded.

5. The respondent herein filed her reply to the said application for recording compromise, denying the alleged compromise, and resisting the said application filed under Order 23, Rule 3 of the Code of Civil Procedure. She pleaded in her reply that the real facts were--

(a) that on 17-10-1966, Mr. Y. Kumar, counsel for the appellants herein, came to the respondent's place and told her that he had come to pay the arrears in accordance with the order of the Rent Controller, that he also said that instead of depositing future rents with the Rent Controller, it would be convenient for him and also for the respondent herein if the payments were credited directly in the respondent's Bank Account, and suggested that if the respondent gave him her bank account number, he would have the rents credited month by month in her account, that Mr. Kumar also brought a typed letter addressed to the respondent and delivered one copy to her and gto her acknowledgment on another copy, and that the two relevant passages in the said letter were as under:--

'(i) The Court has passed an order for payment of the rent of 13, West Patel Nagar, less a deduction of Rs. 350 per annum for last four years.

(ii) Instead of depositing the amount in Court, I could deposit the money direct in your bank account if you agree and I can also do the same every following month.'

(b) that Mr. Kumar also gave the respondent herein a cheque for Rs. 32,400 for the arrears of rent, that the respondent took the cheque and gave Mr. Kumar a receipt and the number of her bank account, and that those arrears of rent were up to 14-11-1966 after deducting Rs. 1,400 on account of repairs for four years;

(c) that later, the respondent informed her counsel about what had happened, that the counsel told her that the Rent Controller had ordered the rents to be deposited with him, and that direct payment was likely to be misinterpreted, and that he advised that a joint application should be made to the Rent Controller for making a suitable modification in the order;

(d) that on 20-10-1966, the respondent herein accordingly sent a draft of the joint application to Mr. Kumar along with a covering letter;

(e) that on 16-11-1966, when the respondent had her bank account pass book brought up-to-date, she discovered that on 4-11-1966 a sum of Rs. 1,300 had been deposited in cash in her account, presumably for one month from 15-11-1966 to 14-12-1966;

(f) that, on the advice of her counsel, the respondent collected the cheque for Rs. 32,400;

(g) that the appellants herein, in the meantime, had filed an appeal against the order of the Additional Rent Controller passed on 13-10-1966 on the application under Section 15 of the Delhi Rent Control Act, and also an application for stay, and that no plea of compromise was set forth in the grounds of appeal or in the stay application;

(h) that no compromise was ever made, that all that was done was that instead of payment through the Rent Controller, direct payment was accepted, that the appellants' stay application in the aforesaid appeal itself referred to it as 'a mode of payment', that the deposit of Rs. 1,300 was made by the appellants herein in the bank account of the respondent without any previous notice to her, that the effect of the payment was nto to continue the tenancy or to create a new tenancy, and that it was incorrect to say that in consideration of the said payment, the appellants gave up any claim; and

(i) that the application was false and vexatious and was made with the object of delaying the trial of the eviction proceedings which had already been pending for nearly three years, and that the application should, thereforee, be dismissed.

6. The learned Rent Controller, on a consideration of the facts and the circumstances, held by his order dated 2-1-1967,--

(a) that in the grounds of appeal 'led by the appellants against the order under S. 15 of the Act, the appellants did nto refer at all to any compromise of the nature and consequences as was alleged by them, that in their application for stay filed in the aforesaid appeal, the appellants referred to the said arrangement as 'a mode of payment' that they did nto mention therein the alleged giving up of their plea for the fixation of standard rent or the deduction on account of costs of repairs, and that on the other hand, they reiterated in the grounds of appeal their plea for fixation of standard rent;

(b) that it was clear that what was actually sought to be managed by Mr. Y. Kumar was that the respondent herein might accept the arrears of the rent directly, that the future rents might be directly gto credited in her bank account instead or depositing the same with the Rent Controller in pursuance of the order of the Rent Controller, and that in that way the mode of payment was sought to be changed; and

(c) that it cannto be said that the said payment of arrears of rent was made, and the future rent was agreed to be gto credited in her bank account independently of the said order, or that she thereby agreed to continue the present tenancy or to create any future tenancy; and

(d) that no compromise, as alleged by the appellants herein, was actually effected, and as such there was no question of recording the same.

7. In the result, the Additional Rent Controller dismissed the application filed under Order 23, Rule 3 of the Civil Procedure Code, and directed the main case to come up for evidence.

8. It is against that order that the appellants have preferred the present appeal to this Court.

9. Shri N. H. Hingorani, the learned advocate for the respondent raised a preliminary objection that the appeal is nto maintainable. He contended--.

(1) that the application under Section 14 of the Delhi Rent Control Act was one for the recovery of possession of immovable property, and as such the provision in Order 23, Rule 3 of the Code of Civil Procedure was nto applicable to the proceedings before the Rent Controller in view of certain provisions of the said Rent Control Act, the Code of Civil Procedure, and the Provincial Small Cause Courts Act, and that, thereforee, the application filed Before the Rent Controller under Order 23, Rule 3 of the Code of Civil Procedure was itself nto maintainable;

(2) that even if Order 23, Rule 3 of the Code of Civil Procedure was applicable, and the application filed there under was maintainable, the order of the Rent Controller made on that application was nto appealable under Order 43, Rule 1 (m) of the Code of Civil Procedure, in view of the provision in Order 50, Rule 1 (b) of the Code of Civil Procedure; and

(3) that even if Order 23, Rule 3 and Order 43, Rule 1 of the Code of Civil Procedure were applicable, the order of the Rent Controller was one made under the Delhi Rent Control Act within the meaning of Section 38 thereof, and, thereforee, an appeal against that order lay to the Rent Control Tribunal under Section 38 of the Delhi Rent Control Act, and nto to the High Court.

10. To appreciate the aforesaid contentions, it is necessary to refer to some of the provisions of the Delhi Rent Control Act No. 59 of 1958, and the Code of Civil Procedure.

11. Section 35 of the Delhi Rent Control Act provides that--

'Each Controller shall exercise the power conferred, and perform the duties imposed, on Controllers by or under this Act.'

12. Section 36 of the said Act provides that--

'The Controller shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely:--.

(a) xx xx xx xx'

13. None of the matters referred to in Section 36 relates to the recording of a compromise and passing a decree or order in terms of the compromise under Order 23, Rule 3 of the Code of Civil Procedure. It is clear that the Controller has nto been conferred with all the powers as are vested in a Civil Court under the Code of Civil Procedure, but has been conferred with only the powers enumerated in Section 36, and as already stated, the recording of it compromise is nto one of the powers so conferred upon him.

14. Rule 23 of the Delhi Rent Control Rules, 1958, provides as follows;--

'In deciding any question relating to the procedure nto specifically provided by the Act and these rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908.'

This provision also did nto make all the provisions of the Code of Civil Procedure applicable to the proceedings before the Rent Controller, but only provided that the Controller shall be guided, as far as possible, by the provisions contained in the Code or Civil Procedure, and that too, only when a question relating to procedure was nto specifically provided by the Act and the Rules. This means also that the Rent Controller, in deciding a question relating to procedure nto specifically provided by the Act and the Rules, cannto apply a provision of the Code of Civil Procedure even as an analogy, if such application would ba contrary to or inconsistent with what is specifically provided by the Act and the Rules. In other words, Rule 23 does nto empower or enable the Rent Controller to adopt a procedure on the analogy of a provision in the Code of Civil Procedure, if such adoption would be contrary to or inconsistent with the intendment of a specific provision in the Act or in the Rules.

15. Section 37 of the Delhi Rent Control Act provides that--

'Subject to any rules that may be made under this Act, the Controller shall, while holding an enquiry in any proceeding before him, follow, as far as may be, the practice and procedure of a Court of Small Causes, including the recording of evidence.'

16. Chapter 4 of the Provincial Small Cause Courts Act (No. 9 of 1887), contains the provisions regarding the practice and the procedure of a Court of Small Causes. Section 17 of the said Act provides that--

'The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits.'

16-A. Reading Section 37 of the Delhi Rent Control Act and Section 17 of the Provincial Small Cause Courts Act together, it is clear that the Controller has to, as far as may be, follow the practice and procedure of a Court of Small Causes as prescribed in the Code of Civil Procedure and the Provincial Small Cause Courts Act, save in so far as is otherwise provided by that Code or by the Provincial Small Cause Courts Act. In other words, if any of the provisions of the Code of Civil Procedure are nto applicable to a Court of Small Causes, the said provisions will nto be applicable to the proceedings before the Rent Controller.

17. Section 7 of the Code of Civil Procedure provides that 'so much of the body of the Code as relates to suits excepted from the cognizance of a Court of Small Causes' shall nto extend to Courts of Small Causes. Order 30, Rule 1 (a) of the Code of Civil Procedure also provides that 'so much of this Schedule as relates to suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits' shall nto extend to Courts of Small Causes.

18. Section 15 of the Provincial Small Cause Courts Act read with Art. 4 of the second schedule to the said Act makes it clear that a suit for the possession of immovable property or turn the recovery of an interest in such property is excepted from the cognizance of a Court of Small Causes. An application under the proviso to Section 14 of the Delhi Rent Control Act is in the nature of a suit for possession of immovable property. thereforee, the provision under Order 23, Rule 3 of the Code of Civil Procedure for recording a compromise and for passing a decree or order in terms of the compromise, in so tar as it relates to a suit for possession of immovable property, cannto and does nto apply to an application under the proviso to Section 14 of the Delhi Rent Control Act. That being so, the Rent Controller cannto apply the provision in Order 23 Rule 3 of the Code of Civil Procedure even by way of analogy or guidance under Rule 23 of the Delhi Rent Control Rules, as it would be contrary to or inconsistent with the intendment of the provisions in Section 37 of the Delhi Rent Control Act, Section 17 of the Provincial Small Cause Courts Act, and Section 7 and Order 50, Rule 1 (a) of the Code of Civil Procedure read with Section 15 of, and Article 4 of the second schedule to the Provincial Small Cause Courts Act. Thus, the application filed in the present case before the Additional Rent Controller, under Order 23, Rule 3 of the Code of Civil Procedure, was itself nto maintainable, and should have been dismissed by the Additional Rent Controller on that ground.

19. Even otherwise, i. e., even if the application under Order 23, Rule 3 was maintainable, the further question which arises for determination is as to whether the order of the Additional Rent Controller on the said application was appealable under Order 43, Rule 1 (m) of the Code of Civil Procedure. Order 50, Rule 1 (b) of the Code of Civil Procedure clearly provides that Order 43 of the Code of Civil Procedure does nto apply to Courts of Small Causes. thereforee, no appeal can be preferred under Order 43, Rule 1 (m) of the Code of Civil Procedure against the order of the Rent Controller under Order 23, Rule 3 of the Code of Civil Procedure.

20. Shri Hingorani further contended that the order of the Additional Rent Controller on the application under Order 23, Rule 3 of the Code of Civil Procedure, was an order of the Controller made under the Delhi Rent Control Act within the meaning of Section 38 of the said Act, and that, thereforee, an appeal lay against that order to the Rent Control Tribunal under Section 38 of the said Act, and nto to the High Court. He relied upon the decision in the Central Bank of India Ltd. v. Gokal Chand, 1966 (2) Delhi Lt 262, which was affirmed by the Supreme Court in the Central Bank of India Ltd. v. Gokal Chand, 1967 (3) Delhi Lt 1, in support of his contention. On the other hand, Shri Vohra contended that the order of the Additional Rent Controller was nto an order under the Delhi Rent Control Act, but was an order under Order 23, Rule 3 of the Code of Civil Procedure, and that, thereforee, the appeal lay to the High Court. In my opinion, it is nto necessary for me to go into this contention, in the view taken by me regarding the appealability of the order passed by the Additional Rent Controller on the application filed under O. 23, Rule 3 of the Code of Civil Procedure.

21. Shri Hingorani next contended that even if the appeal to this Court lies under Order 43, Rule 1 (m) of the Code of Civil Procedure, the learned Additional Rent Controller was right in holding on the merits that there was no compromise as alleged by the appellants herein. As the learned counsel for both the parties desired to argue on the merits of the appeal as well, I heard their arguments on the merits also.

22. On the merits of the appeal, Shri Vohra submitted firstly that his clients should have been allowed an opportunity to adduce evidence in support of their application under Order 23, Rule 3 of the Code of Civil Procedure. There is no substance in this contention. As already stated, the respondent herein filed his application under Seciion 15(2) of the Delhi Rent Control Act on 1-8-1966. The appellants herein filed their reply to it on 12-9-1966. The Additional Rent Controller passed his order under Section 15 of the Act on 13-10-1966. Shri Y. Kumar gave the cheque for the arrears to the respondent herein on 17-10-1966. The respondent sent a letter with a draft joint application to the appellants on 20-100966. Shri Y. Kumar, without giving any reply to the said letter, filed an appeal before the Rent Control Tribunal on 25-10-1966 against the order of the Additional Pent Controller, dated 13-10-1966.

23. The main application for eviction filed under the proviso to Section 14 of the Act came up before the Additional Reat Controller on 19-11-1966 for further evidence. On that date, Shri Y. Kumar filed an application under Order 23, Rule 3 of the Code of Civil Procedure for recording the alleged compromise. The respondent herein filed her reply to that application on 30-11-1966, and on that date the case was adjourned to 20-12-1966. Again on 20-12-1966, the case was adjourned to 23-12-1966, on which date the arguments on the application under O. 23, R. 3 were heard. The Additional Rent Controller passed his order on the said application on 2-1-1967.

24. The above facts and dates are nto disputed. Either on 30-11-1966 or on 20-12-1966, the appellants did nto ask for any time or opportunity for adducing evidence in support of their application. The order of the Additional Rent Controller, passed on 30-11-1966, which was in Urdu, was translated into English by the Reader of my Court as follows :--

'The counsel for the parties are present. The reply has been filed. The documents have also been filed. The file has nto been received back from the appellate Court. The file be summoned for the 20th December, 1966. The documents produced will be admitted and denied on this date. The arguments on the respondent's application under Order 23, Rule 3, will be heard'.

The order passed by the Additional Rent Controller on 20-12-1966 as translated into English by the Reader of my Court was as follows :--

'The counsel for the parties are present. The file has been received. (They) want more time for arguments. Hence, the case to come up on the 23rd December, 1966'.

Thus, the appellants merely prayed for adjournment and never requested the Additional Rent Controller for time or opportunity for adducing evidence in support of their application. No such grievance was made by them even in the grounds of appeal to this Court.

Shri Vohra argued that it was the duty of the Additional Rent Controller to ask the parties to adduce evidence, and that he failed to do so. There is no such duty cast on the Controller to ask the parties to adduce evidence, when the parties themselves did nto offer to adduce evidence or request for time or opportunity to adduce evidence. It is for the parties to adduce such evidence as they may have in support of their contentions, and it is nto for the Rent Controller to invite the parties to adduce evidence. This contention of Mr. Vohra has, thereforee, no basis, and is rejected.

25. The next contention of Shri Vohra is that the finding of the Additional Rent Controller that there was no compromise as alleged by the appellants, was erroneous.

26. The letter of Shri Y. Kumar, dated 17-10-1966, does nto contain anything which is suggestive of the alleged compromise between the parties. He merely referred in that letter to the order for the payment of rent passed by the Rent Controller, and suggested only a different mode of payment of the amounts directed to be deposited. Even the receipt which is said to have embodied the terms of the compromise, does nto contain anything which supports the contention of the appellants. The original receipt was nto produced by the appellants at all. They only purported to extract it in their application dated 19-11-1966. The said receipt, as set out in the said application of the appellants, is as under :--

'Received Rs. 32,400 up to 14th November, 1966, Deposit the future rent in my Saving Bank Account No. 94, United Commercial Hank, East Patel Nagar, New Delhi.

Sati Ram Chand'.

27. It merely reads as a receipt for the sum of Rs. 32,400 which was admittedly given by cheque to the respondent and refers to the deposit of future rent in her Bank Account as suggested by Shri Y. Kumar in his letter, dated 17-10-1966. The amount of Rs. 32,400 represented the arrears for the period which ended on 14-11-1966, after deducting Rs. 1,400 on account of repairs for 4 years as provided in the order of the Additional Rent Controller. The subsequent deposit of the monthly rent of Rs. 1,300 on 4-11-1966, in the Bank Account of the respondent presumably for one month from 15-11-1966, was without any prior notice to the respondent and no compromise of the nature as was alleged by the appellants can be spelt out from the said deposit. The appellants filed an appeal on 25-10-1966 before the Rent Control Tribunal against the order of the Rent Controller, dated 13-10-1966. As pointed out by the learned Rent Controller, no plea of settlement or compromise was mentioned or set forth in the grounds of the said appeal or in the application for stay filed by the appellants in the said appeal.

All these circumstances do nto show at all that there was a compromise as was alleged by the appellants, but merely show that the respondent agreed to the direct payment of the future rents directed to be paid by the Additional Rent Controller in is order dated 13-10-1966, instead of their payment by deposit with the Rent Controller. In fact, in their application for stay referred to above, the appellants referred to the said arrangement as 'mode of payment'. Further, in the grounds of appeal against the order of the Rent Controller, dated 13-10-1966, the appellants reiterated their plea for fixation of standard rent and challenged the order of the Controller on the ground that the Controller directed the deposit of rent without at first fixing the standard rent or at least the interim rent. This clearly belies the version of the appellants that in the alleged compromise, the appellants agreed to give up the plea for fixation of standard rent in consideration of the continuance of the tenancy or the creation of a fresh tenancy.

28. On a consideration of all the circumstances, I am of the opinion that the Additional Rent Controller was right in holding that it is clear that what was actually sought to be managed by Shri Y. Kumar was that the respondent herein might accept the arrears of rent directly and the future rent might be directly gto credited in her Bank Account instead of depositing the same with the Rent Controller in pursuance of the aforesaid order of the Rent Controller; that, in that way, merely the mode of payment was sought to be changed; that it cannto be said that the payment of the arrears of rent was made, and the future rent was agreed to be gto credited in the respondent's Bank Account independently of the order of the Additional Rent Controller, dated 13-10-1966; and that it cannto also be said that thereby the respondent agreed to continue the present tenancy or to create any fresh future tenancy. I am also of the opinion, that the Additional Rent Controller rightly held that no compromise of the nature alleged by the appellants was effected by the parties, and, thereforee, there is no question of recording and passing an order or decree in terms of such compromise under Order 23, Rule 3 of the Code of Civil Procedure.

29. For the above reasons, the appeal fails, and is dismissed with costs.

GGM/D.V.C.

30. Appeal dismissed.


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