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Rajinder Pershad Vs. Suraj Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberS.A.O. Nos. 228 to 230 of 1971, against order of Gian Chand Jain, Rent Control Tribunal, Delhi, D/-
Judge
Reported inAIR1973Delhi164
ActsDelhi Rent Control Act, 1958 - Sections 15(1)
AppellantRajinder Pershad
RespondentSuraj Mal and ors.
Appellant Advocate Daya Kishan and; Ravinder Sethi, Advs
Respondent Advocate Sultan Singh, Adv.
Cases Referred and Smt. Bhonri Devi v. Gope Ram
Excerpt:
tenancy - eviction - section 15 (1) of rent control act, 1958 - appellant owner of suit property - suit for eviction filed by appellant on ground of non-payment of rent by tenant inspire of notice of demand - respondent suspended payment of rent on ground that portion of premises surrendered to landlord - additional controller passed order under section 15 (1) directing respondents to deposit arrears of rent - under section 15 (1) order could not be passed unless controller determined rate of rent for reduced accommodation - ex parte eviction order set aside - held, tribunal justified in setting aside order of eviction and direction for payment of arrears of rent. - - but he has to be satisfied that the arrears of rent are due;.....effect from january 6. 1968, up too date within one month of the order and also to deposit future rent month by month by 15th day of each succeeding month. as there were dispute about the respondent tenants having been deprived of a portion of the premises, the amount deposited was not to be paid to the landlord till the final decision of the application. the order further stated, that there was no sufficient material for holding that the respondents were entitled to suspension of rent. nor was there any prima facie evidence to show that the agreed rent as more than rs. 60/- per month.4. the initial deposit of the arrears of rent was required to be made on or before may 21. 1970; but it was actually made on may 22, 1970. the rent due on july 20. 1970. on the application of the.....
Judgment:

1. This judgment will dispose of three second appeals: S. A. Os. 228, 229 and 230 of 1971, filed by the landlord. Rajinder Pershad and directed against the order dated June 1. 1971 of the Rent Control Tribunal, by which accepting the three appeals of the tenants, it set aside three separate orders passed by the Additional Controller. one under Section 15(1) of the Delhi Rent Control l Act'. 1958, herein called `the Act'. directing payment of rent. the other under Section 15(7) striking out the tenant's defense. and the third under Section 14(1)(a) of the Act. ordering eviction of the tenants.

2. The appellant landlord, filed an application under Section 14 of the Act for the eviction of the respondent-tenants from the premises in dispute on the ground that they had neither paid nor tendered the arrears of rent due at the rate of Rs. 75/- per month for the period from July 14. 1965 within two months of the service of notice of demand. The respondents pleaded that in the year 1961, a portion of the premises had been surrendered to the landlord. for which the rent was reduced to Rs. 60/- per month. The present landlord Rajinder Pershad, had purchased the property in 1965. when the respondents are alleged to have been deprived of certain other portions of the demised premises. This. according to the respondents. entitled them to invoke the doctrine of suspension of rent. No rent, according to them. was payable.

3. The Additional Controller passed an order under Section 15(1) of the Act. directing the respondents to deposit the arrears of rent at the rate of Rupees 60/- per month with effect from January 6. 1968, up too date within one month of the order and also to deposit future rent month by month by 15th day of each succeeding month. As there were dispute about the respondent tenants having been deprived of a portion of the premises, the amount deposited was not to be paid to the landlord till the final decision of the application. The order further stated, that there was no sufficient material for holding that the respondents were entitled to suspension of rent. nor was there any prima facie evidence to show that the agreed rent as more than Rs. 60/- per month.

4. The initial deposit of the arrears of rent was required to be made on or before May 21. 1970; but it was actually made on May 22, 1970. The rent due on July 20. 1970. On the application of the appellant, the tenants were held guilty of these defaults. Their defense was accordingly struck out by order dated October 3. 1970. On the ex parte evidence led on behalf of the landlord. the Additional Controller ordered eviction of the respondents on October 6. 1970.

5. When the matter came up before the Rent Control Tribunal in three separate appeals. a copy of the judgment dated June 1. 1970 passed by Mr. V. S. Aggarwal, Sub Judge. 1st Class. Delhi, in a suit between the parties was produced. The learned Sub Judge had held in that judgment that the tenants had been deprived of a portion of the demised premises and were entitled to a reduction in rent. allowing which their liability to pay the rent was fixed at the rate of Rs. 55/- per month. The Tribunal. thereforee. held that the respondents were liable to pay rent at the rate of Rs. 55/- per month only and not Rs. 60/- per month as directed by the Additional Controller. The order of the Additional Controller under that Section 15(1) of the Act, was set aside and a fresh order was passed under that Section allowing time to the tenants to deposit rent. In view of this, the other two orders of the Additional Controller were also set aside. All the three appeals of the tenants were accepted. Feeling aggrieved. the landlord has filed three separate second appeals in this Court arising out of the said three orders originally passed by the Additional Controller.

6. The landlord's second appeal, S. A. O. 228 of 1971 is in respect of the order passed by the Tribunal under Section 15(1) of the Act. In order to appreciate the contentions of the parties it is useful to set out Section 15 of the Act, which, after omitting portions not relevant for the present purposes. reads 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 S. 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 also paid for the period for which the arrears of rent were legally recoverable from the tenant including the period subsequent there to up tot he 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.

** ** ** ** (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 proceedings. 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.

** ** ** ** (7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application.'

Sub-section (3) deals with cases where standard rent is required to be fixed. It renders no assistance to the instant case. as the question of fixation of standard rent is not involved. Order under sub-section (1) has to be made as soon as the eviction application comes up before the Controller. If the rate of rent at which it was last paid as claimed by the landlord is not disputed by the tenant then there is no difficulty in passing order s directing payment at that rate for the period for which the arrears of rent are legally recoverable. If. however, the tenant raises a dispute regarding the amount which was legally recoverable from him. then the Controller has to decide the same, after giving the parties an opportunity of being heard, before he makes an order giving direction under sub-section (1). This dispute may be with respect to the period for which the rent is due or the rate at which it was last paid or any other matter without resolving which the Controller is unable to fix the amount which the tenant can be directed to pay or deposit. If the tenant seeks to invoke the doctrine of suspension of rent. the Controller has to decide the dispute so raised after giving the parties an opportunity of being heard. He has to conduct some sort of inquiry howsoever brief it may be. His decision may be based, as naturally it would be at that stage on prima facie evidence. But he has to be satisfied that the arrears of rent are due; and for this. the tenant's plea. If any. for a total or partial abatement of rent has to be considered.

7. The learned counsel for the appellant contended that the order under Section 15(1) is not a final order. but is merely preliminary to the trial of the case. For the purpose of an interim order. it is not necessary. contended the counsel. that there should be a full trial. He cited V. N. Vasudeva v. Kirori Mal Luhariwala. : [1964]6SCR181 , to support his contention. But the Supreme Court in that case found that the Rent Controller form the affidavits before him, could judge whether in the circumstances of the case 'any interim order ought or ought not to be made.' The Controller was found to have come to the conclusion that the rent had not been paid and the plea that it was withheld under an agreement was an after-thought and not true. This conclusion had appeared to the Tribunal. as it appeared to the High Court and the Supreme Court, to be sound. It was under these circumstances that the Supreme Court observed :

'Once such a conclusion is reached. it is quite manifest that the order was made after affording an opportunity to the appellant is entitled to lead oral evidence in regard to the agreement he alleges. but for that he will have an opportunity hereafter. At the moment he is being asked to deposit the arrears in Court, which admittedly are outstanding.'

The Supreme Court noticed a decision of the Calcutta High Court in Ramesh Chandra v. Sm. Subodhbala Dasi Air 1958 Cal 198 in which Harries, C. J. had observed that before making an order for the deposit of rent. a full enquiry should be made. In that Calcutta case, the tenant had pleaded an agreement for setting off the amount spent on repairs against the rent. Haries, C. J. had held that without ascertaining the truth of the plea that a large sum had been spent on repairs. an order to deposit the entire arrears of rent ought not to have been made. The Supreme Court did not express disapproval of this view. Rather it observed that

'facts in that case were entirely different as payment by the landlord for repairs was a part of the tenancy agreement and the rent under the tenancy could not be calculated without adverse to every term of the agreement of tenancy.'

The Supreme Court. thus. did not rule out cases. which may require some sort of full trail. even at this stage.

8. In the instant case. the tenant had put up a plea for abatement of rent on the ground that a part of the premises had been taken away from him. If the accommodation with the tenant had really been reduced. then the eviction was being claimed from premises different from those for which Rs. 60/- per month was the last paid rate of rent. The Controller had then to find out the rate of rent at which it was last paid for the reduced accommodation. And unless this was done, order under Section 15(1) could not be passed. It had to be determined. whether the portion of the premises taken away form the tenant was such as had rendered the remaining portion with the tenant. quite useless for the purpose for which the premises had been taken on rent and whether it was a case of total abatement of rent. Or again whether it was a case of partial abatement. If it was the latter case, then what was the last paid proportionate, rent for the reduced accommodation. from which the eviction is now claimed. For, it was only the proportionately reduced rent for the said reduced accommodation from which eviction is now sought, which can be said to be the rate of rent last paid for that accommodation.

The Additional Controller having not attempted to find out the rate of rent of which it was last paid and which could be attributed to the reduced accommodation for which eviction was claimed, was not acting within his jurisdiction to order payment at the rate of Rs. 60/- per month. The law requires the Controller to direct the tenant to pay or deposit the arrears of rent at the rate at which it was last paid; and if this rate is disputed. then order under Section 15(1) cannot be passed without first determining the same. (See judgments reported in M. L. Ahuja v. Lachhman Das 1970 Ren Cr 347; Mohan C. Vanjani v. Shanti Dass 1971 Ren Cr 914 and Smt. Bhonri Devi v. Gope Ram : AIR1971Delhi222 ). The Additional Controller had to consider the tenant's plea for abatement of rent on account of a portion of the premises alleged to have been taken away from his possession and also to determine whether such an abatement was total or partial and if partial to what extent. This not having been done. the order of the Additional Controller passed under Section 15(1) cannot be sustained and the Tribunal was in setting it aside.

9. The Tribunal found from the judgment of Shri V. S. Aggarwal, Sub Judge 1st Class Delhi, that the tenants' plea of abatement of rent had been upheld by the Civil Court and the rent had been reduced to Rs. 55/- per month. This, thereforee, was these rates of rent at which it was last paid for the accommodation from which eviction was claimed and this evidence was sufficient for this conclusion at this stage. The Tribunal. thereforee. was right in passing an order under Section 15(1) of the Act directing the respondent tenants to deposit the arrears of rent at the rate of Rs. 55/- per month with effect from January 6, 1968 up to dated within one month of the date of the order and also to deposit future rent by the 15th day of each succeeding month and to allow the respondents to adjust the amount already deposited in accordance with these directions. The landlord's appeal S. A. O. 228 of 1971. against this portion of the judgment is without any merit and is dismissed.

10. As a result of the setting aside of the order under Section 15(1) of the Act. the order passed under Section 15(7) of the Act could not be sustained. Nor could the ex parte order of eviction be justified. The Tribunal thereforee, was right in setting both these orders aside. The appeals. S. A. O. 230 of 1971 and S. A. O. 229 of 1971. thereforee. have no merit and are dismissed. In the peculiar circumstances of the case. however. the parties are left to bear their own costs in all the appeals. The parties shall appear before the Additional Controller for further proceedings on October 3, 1972.

11. Order accordingly.


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