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Aftab Ahmad and anr. Vs. NasiruddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberS.A.O. No. 278 of 1971
Judge
Reported inAIR1977Delhi121; 12(1976)DLT217; 1976RLR405
ActsDelhi Rent Control Act, 1958 - Sections 15(1) and 15(7); Code of Civil Procedure (CPC), 1908 - Sections 141 - Order 23, Rule 1
AppellantAftab Ahmad and anr.
RespondentNasiruddIn and anr.
Appellant Advocate Y.K. Sabharwal, Adv
Respondent Advocate K.K. Mittal and ; M. Dayal, Advs.
Excerpt:
.....rent. in this connection i would like to point that the provisions of section 15(1) enable the rent controller to direct the payment of rent to the landlord or to direct its deposit. at the same time, the respondents could not have raised this plea that they were under the belief that the proceedings were stayed and thereforee they did not have to make any deposits, all these questions have arisen as a direct consequence of the failure of the controller to give a choice to the tenant to either make the payment in court or to pay the landlord directly. 5. i think the legislature was perfectly well aware of what it was doing when it drafted section 15(1), to say that the tenant can be directed to pay to the landlord or to deposit the money in court. 15(1) then, this default is clearly..........some time in august, 1963, and for various reasons, the matter is still pending before the rent controller on 10th june, 1964 an order was passed under section 15(1) of the act directing the respondents to deposit the arrears of rent and monthly rent as required by that section. this order left open the question whether the relationship of landlord and tenant actually existed and stated that the order was being passed without prejudice to the contentions of the respondents that they were not tenants of the appellants. the arrears of rent were deposited on 15th july, 1964, which was five days beyond the period allowed by the order, but as the courts were closed till that date for vacation, this delay has no legal effect. the deposit of the rent for the months of august, september,.....
Judgment:
ORDER

1. By an order dated 17th December, 1970, the Rent Controller struck out the defense of the respondents under Section 15(7) of the Delhi Rent Control Act, 1958, but stated that this would not affect the rights of the respondents to lead evidence on the question of title and on the question whether there was a relationship of landlord and tenant. On appeal, the Rent Control Tribunal reversed the order and now the appellants have come in appeal under Section 39, of the Delhi Rent Control Act to seek restoration of the order passed by the Controller. The facts on record show that the appellants had applied for ejectment of the respondents some time in August, 1963, and for various reasons, the matter Is still pending before the Rent Controller On 10th June, 1964 an order was passed under Section 15(1) of the Act directing the respondents to deposit the arrears of rent and monthly rent as required by that Section. This order left open the question whether the relationship of landlord and tenant actually existed and stated that the order was being passed without prejudice to the contentions of the respondents that they were not tenants of the appellants. The arrears of rent were deposited on 15th July, 1964, which was five days beyond the period allowed by the order, but as the Courts were closed till that date for vacation, this delay has no legal effect. The deposit of the rent for the months of August, September, October and November, 1964 was made on 17th October, 1964. This deposit in so far as it related to the month of August, 19164 was late by over a month but the deposit for the other months was either before time or not much delayed. Thereafter, the deposit of rent for the subsequent period from 1st December, 19,64 to 31st January, 1968 i.e. a period of 38 months, was deposited on 22nd December, 1967. This deposit was obviously very much belated, and normally, it should have led to the striking out the defense of the respondents. However, there are some unusual circumstances to explain why this delay took place. This deposit was made only after the appellants had applied to have the defense of the respondents struck out under the provisions of Section 15(1) of the Act, which was by an application moved on 27th November, 1967. On the making of the deposit for 38 months aforementioned, the appellants moved another application to withdraw the deposited amount and also allowed their application for striking out the defense to be dismissed for non-prosecution. Thereafter, the respondents continued to deposit the rent regularly, but on 12th May, 1970 the appellants again applied for striking out the defense of the respondents on the ground that there had been defaults in complying with the order under Section 15(1). It is clear that the defaults are the same as were mentioned in the previous application, as there were no additional defaults.

2. I now come to set out the circumstances which explain why the respondents made such a belated deposit as the one made on 22nd December, 1967. A regular civil suit had been filed by the respondents to challenge the ownership of the appellants which failed in the trial court as well as in the appellate court and a second appeal was filed in this High Court. Before the Rent Controller, the respondents applied for a stay of the pending eviction petition, on the ground that the questions in dispute as regards title were to be decided in their separate civil suit. The stay was refused by the Controller and a revision petition was filed against the order to the High Court, In that revision (C.R. 185-D of 1965) the respondents applied again for a stay of the proceedings before the Rent Controller and a stay order was passed on 21st April, 1965, which continued to be in force till 15th January, 19,70. Thus for nearly five years the proceedings before the Rent Controller were stayed by the orders of the High Court. During this period, the respondents were under the impression that they did not have to make any deposit of rent and accordingly they did not make any deposit of rent before the Rent Controller till 22nd December, 1967. On the other hand, the appellants claimed that the stay order did not amount to a stay of the order directing the deposit of monthly rent, and that is why they moved the application for striking out the defense in November, 1967. This led to the deposit of the rent being made by the respondents. The appellants thereafter withdrew that amount and let their application for striking out the defense to be dismissed for non-prosecution. Thereafter, the respondents made the deposit of monthly rent for three years regularly and within time before the second application for striking out the defense was moved on 11th May, 1970. 1 am now told that the deposits of rent have also been made regularly right up to date, which means that the respondents have made the deposits regularly up to-date and the only defaults that can be found, are the defaults which occurred before December, 1967 which were also the defaults mentioned in the previous application for striking out the defense,

3. The Rent Control Tribunal has decided in favor of the respondents on two grounds. Firstly, it was satisfied that the default occurred because the respondents were under a mistaken belief that they were not required to deposit the rent because of the stay of proceedings, ordered by the High Court. The Controller found this substantiated from the fact that as soon as the application was moved under Section 15(7) they deposited the entire rent and thus showed that they did not want to withhold the arrears of rent deliberately, Furthermore, it held that the failure of the first application dated 27th November, 1967 under Section 15(7) of the Act which was not pressed, followed by the subsequent application dated 17th December, 1968 for permission to withdraw the amount showed that this very claim had not been pressed earlier by the present appellants. For these reasons, the order of the Rent Controller striking out the defense was set aside.

4. At the hearing of this appeal, two or three questions have struck me as being of some considerable importance. Firstly, the proceedings were stayed for five years by the High Court and accordingly came to a stand-still before the Controller. During that Period the respondents thought that they did not have to make any deposit of rent. The Tribunal thought that this view was not correct but has thought it was an understandable view. I have analysed the case law, and it seems to me that the matter is not at all as free from doubt as the Rent Control Tribunal thought. The effect of the order staying proceedings should normally, put a stop to further proceedings before the Controller. The order under Section 15(1) in the present case was an order for making a deposit in the court monthly. This meant that the respondents had to go to the Controller every month and make an application to deposit the rent. They then had to make the deposit and subsequently the appellants had to make an application to withdraw the deposited amount and finally get an order from the court allowing them to take away the money. If the proceedings were stayed, surely these orders could not be passed by the Controller as they were in some sense judicial orders passed in the ejectment case. I do not know if the stay of proceedings actually means a complete stay of such proceedings also but I think it can legitimately be argued that it does amount to such a stay. No lay person can understand whether a stay order of this type operates as a stay of such proceedings or not. There are various types of interim orders that may be passed and continue in force even when the proceedings, in a suit are stayed. For instance, an interim injunctions may not stand discharged merely by a stay, and there may be many other types of orders which may from their very nature not be stayed when a suit is stayed. An order under Section 15(7) of the Act, is an order striking out the defense of the tenant in an ejectment case. Surely, it is an order which affects the merits of the case. I for one, cannot clearly say whether the stay of proceedings in the case, also amounts to a stay of the order directing the deposit of a monthly rent. In this connection I would like to point that the provisions of Section 15(1) enable the Rent Controller to direct the payment of rent to the landlord or to direct its deposit. The Controller generally directs a deposit, with the result that the parties and the Controller have to -face the problem of passing orders every month in respect of the amount actually deposited, and subsequently, further orders to allow the landlord to withdraw the amount. If it is left to the tenant either to make the deposit, or to pay the money direct to the landlord in the tenant's discretion, much of the time of the Controller could be saved, and a lot of administrative work would become unnecessary. If, in the present case the order had been one of not only depositing in court but also to pay the amount directly to the landlord, many of the problems that have since arisen would not have arisen at all. The tenant would have had no cause to say that the proceedings had been stayed and hence he thought he had not to deposit the rent. If the landlord refused to accept the rent for any reason, the tenant could inform the Controller of this fact. At any rate, the landlord would not have been compelled to come to the court to get the payment. At the same time, the respondents could not have raised this plea that they were under the belief that the proceedings were stayed and thereforee they did not have to make any deposits, All these questions have arisen as a direct consequence of the failure of the Controller to give a choice to the tenant to either make the payment in court or to pay the landlord directly.

5. I think the Legislature was perfectly well aware of what it was doing when it drafted Section 15(1), to say that the tenant can be directed to pay to the landlord or to deposit the money in court. The choice was obviously left with the tenant so as to enable him to pay with the greatest convenience. By compelling the tenant to come to the court, the court is in fact making it highly inconvenient for a number of persons living throughout the Union Territory of Delhi to pay their landlords because of the distance and personal inconvenience involved in going to the Court monthly, to make the deposits. It is obvious that everybody in this Union Territory, does not live next to the Court, and it may be that a large number of persons have to ' cover a considerable distance, and incur a loss of wages and time, just to make a monthly deposit of rent which they can easily pay to the landlord by just handing over the money or by sending it by money-orders or cheques, which is much easier than coming to the Court, to make an application, and then make a deposit in Treasury which may take a whole working day. The same problem also confronts landlords in withdrawing the deposits. By compelling the tenant to make the deposit only in court, the Controller is doing a considerable dis-service to the population of the Union Territory of Delhi.

6. In this case if the order had been to pay the landlord, or to make the deposit in Court, the effect of the stay of proceedings would not at all have affected the tenant's obligation to pay the rent to the landlord because, in such a case he would not need an order of the Court to make subsequent monthly payments. For these several reasons, and on account of the nature of the order passed under Section 15(1), 1 think that it was legitimate for the Rent Control Tribunal to come to the conclusion that the respondents were in fact misled as to the effect of the stay order passed.

7. Coming now to the question as to whether the delay in making the deposit should lead to the striking out the defense, this depends on how the Court or Controller has to apply Section 15(7) to the facts of the case. The Controller has the option to strike out the defense or not to strike out the defense depending on how he views the action of the tenant. The Rent Control Tribunal has examined this question in detail. I think I need not repeat what has been said elsewhere, that, what has to be seen is whether there was a willful or contumacious default in complying with the order directing payment of rent. The tenant has obviously not deposited the rent for a considerable period and if the order of stay of proceedings does not operate as an order staying the order under S. 15(1) then, this default is clearly willful or contumacious. The delay is as long as three years. Very unusual circumstances must exist before it can be held that this was a default other than willful or contumacious. Even a misunderstanding of the-law may not make this a pardonable mistake, hence ordinarily the defense should be struck out. Unfortunately this involves a decision of the further question as to whether the stay order actually operates as a stay of the order under Section 15(1) or not. I have already expressed my doubts on the effect of the stay of proceedings, and I would not like to resolve those doubts because, I am satisfied that this is not a case which is likely to arise very often. I think, generally when the stay order is passed, the Court should clarify its scope and hence, when the proceedings were stayed for five years or so, the court should have clarified whether the tenant was to continue to deposit the rent or not during that period. In the circumstances and because I am now proceeding to decide this case on the alternative point, I refrain from expressing my final view as to whether the order under Section 15(1) was stayed when the entire proceedings were stayed by the High Court's order.

8. I now come to the alternative reasoning which have prevailed with the Rent Control Tribunal. As he says, this default took place prior to December, 1967. An application was moved by the appellants in November, 1967 for striking out the defense of the respondents. Thereafter, the respondents deposited the arrears of rent which were withdrawn by the appellants by means of a subsequent application some time in September, 1968. The application for striking out the defense was apparently dismissed for non-prosecution. The present application, which was filed in 1970 was Med on substantially the same grounds as before, in fact all the defaults mentioned were before December, 1967. The learned counsel for the appellants contends that as the proceedings were stayed up to 1970, the previous proceedings could not continue and thereforee, the previous application was not pressed. I think this does hot make any difference to the legal position. Once an application has been presented claiming a relief and it is not pressed and is dismissed, a subsequent application is barred. This I take it, is the effect of Order 23 Rule 1 read with Section 141 of the Code of Civil Procedure, I would, thereforee, agree with the Rent Control Tribunal that having taken advantage of the first application to the extent of obtaining the arrears of rent from the respondents and then having withdrawn that rent, the appellants cannot proceed to get the defense struck out on the very same ground by a subsequent application. Furthermore, since December, 1967, the respondents have made subsequent deposits, all of them in time, and they have continued to deposit the rent up to date. thereforee, this does not seem to be a suitable case in which the defense should be struck out because of the very peculiar circumstances of the case. I would, thereforee dismiss the appeal and leave the parties to bear their own costs. It is to be seen that this eviction petition has been pending for a very long time and, thereforee, should be decided as soon as possible. Parties are directed to appear before the Rent controller on 19th March

9. Appeal dismissed.


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