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Ram NaraIn Khanna Vs. S. Ishar Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 95 of 1971
Judge
Reported inILR1977Delhi139; 1977RLR549
ActsDelhi Rent Control Act, 1958 - Sections 15
AppellantRam NaraIn Khanna
RespondentS. Ishar Singh
Advocates: K.L. Vohra,; G.S. Vohra and; C.S. Duggal, Advs
Cases ReferredRam Prakash Kapur v. Smt. Bhagwanti Devi
Excerpt:
delhi rent control act (1958) - section 15--applicability and scope of various sub-sections thereof--comparison of provisions of the old act (delhi and ajmer rent control act, 38 of 1952) and the present act--procedure to be followed by the controller under the present act--expression 'after giving the parties an opportunity of being heard'--meaning of.; on reference of a larger bench by the single judge on the question as to the procedure the controller ought to follow before passing order under section 15 of the delhi rent control act, the division bench held as follows.-; 1. sub-section (1) of section 15 of the act applies to every proceedings for the recovery of possession on the ground of arrears of rent. sub-section (2) of the said section applies to any proceedings other than.....yogeshwar dayal, j.(1) this appeal has been placed before the division bench in view of order of reference to a larger bench dated 6th october, 1972, passed by t. p. s. chawla, j., and raises a question as to the procedure the controller ought to follow before passing order under section 15 of the delhi rent control act (hereinafter referred to as 'the act'). (2) the respondent-landlord instituted proceedings for eviction under the act against the appellant, the tenant. one of the grounds on which eviction was sought was that the tenant was in arrears in the payment of the rent. the case of the respondent-landlord in the eviction application was that the construction of the premises in question was completed on 13-3-1964 and the appellant is the first tenant in the said premises and that.....
Judgment:

Yogeshwar Dayal, J.

(1) This appeal has been placed before the Division Bench in view of order of reference to a larger bench dated 6th October, 1972, passed by T. P. S. Chawla, J., and raises a question as to the procedure the Controller ought to follow before passing order under section 15 of the Delhi Rent Control Act (hereinafter referred to as 'the Act').

(2) The respondent-landlord instituted proceedings for eviction under the Act against the appellant, the tenant. One of the grounds on which eviction was sought was that the tenant was in arrears in the payment of the rent. The case of the respondent-landlord in the eviction application was that the construction of the premises in question was completed on 13-3-1964 and the appellant is the first tenant in the said premises and that the premises were let out on 27-4-1964. It was further averred that the tenant was irregular in paying the rent and he has not paid the rent regularly since 26-11-1967. After 26-11-1967, the appellant, on various dates, paid Rs. 3,235.00 and now a sum of Rs. 2,685.00 , being the rent uptil 25-7-1970, is due from the appellant to the respondent-landlord. The appellant had not paid the amount due in spite of the notice of demand.

(3) The eviction petition itself was filed on or about 7th August,. 1970. It was also pleaded in the eviction application that a notice dated 19th May, 1970 was sent to the appellant but the same was received back on 25th May, 1970, the appellant having to accept the same.

(4) The appellant filed a written-statement dated 17th October, 1970 and took a preliminary objection that no notice terminating the tenancy has been served on the appellant nor has any notice of demand, as provided under section 14 of the Act, been served upon him. On the question of arrears, the appellant took up the position that the respondent sent a notice through Shri Suraj Pershad Gupta. Advocate, which was replied by the appellant through his Advocate on 21-2-1970 wherein it was explained that the respondent had received a sum of Rs. 1570.00 in account towards rent due from 27-4-1969 to 26-1-1970 and only a sum of Rs. 95.00 was due to the respondent on account of rent which amount too the appellant had sent to the respondent by money order which was not received by the respondent. Thereafter, the appellant had sent a sum of Rs. 465.00 (Rs. 555.00 plus Rs. 95.00 minus Rs. 185.00 ) being the rent as on 26-1-1970 and for the months of February, March and April, 1970 less the sum of Rs. IS5.00 on account of repairs and white washing of the premises, which amount the respondent had received by money order. It was also stated that now only rent. from May, 1970 onwards was due from the appellant which he was always willing to pay to the respondent provided the respondent issues a receipt for the same.

(5) The respondent filed a replication on 27th October, 1970 and submitted that the mere fact that rent for a particular period allegedly stood paid does not mean that the entire rent, in fact, stood paid. The various amounts sent were admitted but it was denied that they were for the period mentioned in the written statement. It was also submitted that the appellant was not legally entitled to deduct Rs. 185.00 or for that matter any amount towards repairs and white-washing.

(6) Along with the petition, the respondent also placed on record the original envelope containing the notice terminating the tenancy and notice of demand containing the postal endorsement of refusal by the appellant. The respondent also filed an affidavit dated 11-11-1970 staling that all the amounts were paid by the appellant by cheques and the rent was never paid in cash. It was also stated in the affidavit that from 26-11-1967 onwards, and up to the time of filing of the eviction petition, the appellant paid to the respondent a total sum of Rs. 3235.00 only on various dates by cheques and that now a sum of Rs. 2685.00 was due from the appellant to the respondent towards the arrears of rent up to 26-7-1970. It was also stated that after the filing of the present petition for eviction, the appellant sent to the respondent a sum of Rs. 465.00 through money orders.

(7) The appellant-tenant also filed an affidavit of 18-11-1970 wherein it was admitted that he was a tenant with effect from E 27-4-1964 on a monthly rent of Rs. 185.00 and that the appellant had paid rent to the respondent till 27-4-1969 which fact was acknowledged by Shri Suraj Pershad, Advocate, while sending a notice on behalf of the respondent. Thereafter, the appellant has paid a sum of Rs. 1570.00 from 27-4-1969 to 26-1-1970 by five cheques, two of which were dated 26-5-1969 for Rs. 585.00 and Rs. 45.00 respectively and the three others dated 21-7-1969, 8-9-1969 and 26-9-1969 for Rs. 370.00 , Rs. 400.00 and Rs. 200.00 respectively and thus after making the aforesaid payment of Rs. 1570.00 , only a sum of Rs. 95.00 fell due on account of arrears of rent till 26-1-1970 which amount the appellant had sent to the respondent by money order which was returned by the postal authorities on the ground that 'the petitioner was out of station'. It was also stated in the affidavit that thereafter the appellant paid a sum of Rs. 465.00 on account of rent for the months of February, March and April, 1970, less Rs. 185.00 on account of white washing etc. for the year 1969-70 and now the appellant has to pay the arrears of rent with effect from May, 1970 only.

(8) It will be noticed that after the parties had filed pleadings, the application was adjourned for arguments to 27-10-1970. On 27-10-1970, it was adjourned for arguments to 3-11-1970 and the appellant was directed to be present in court. It was also directed that the arguments will be heard on that date. On 3-11-1970. since counsel for one of the parties was not well, it was adjourned to 11-11-1970 and again on the same ground it was adjourned to 16-11-1970. On 16-11-1970, arguments were heard and the case was adjourned to 17-11-1970 for orders. On 17-11-1970, counsel for the appellant wanted to argue the matter further and the learned Additional Rent Controller instead of pronouncing the orders on that date, adjourned the same for further arguments to 18-11-1970. As noticed earlier, the respondent-landlord filed an affidavit dated 11-11-1970 on 17-11-1970 and the appellant filed his affidavit on 18-11-1970. On the same date viz., 18-11-1970, the learned Additional Rent Controller passed the order under section 15(1) of the Act, after consideration of the material placed by the parties on record.

(9) As stated above, the appellant had disputed the arrears claimed and also objected to the making of the order on other grounds but the learned Additional Rent Controller in his order dated 18-11-1970 found against the tenant on a prima facie view of the material placed before him. Throughout the order the emphasis is on the fact that all the conclusions are prima facie. No evidence, other than the affidavits, as stated above, was produced by the parties before the learned Additional Rent Controller for the purpose of deciding the contentions of the parties before the order was made.

(10) The appellant being dissatisfied with the order of the Additional Rent Controller went up in appeal before the Rent Control Tribunal and the Tribunal affirmed the order except on one point. Whereas the learned Additional Rent Controller had directed the appellant to deposit Rs. 2685.00 on account of arrears of rent due up to 25-7-1970 within one month of the date of the order as also the future rent at the same rate in accordance with section 15(1), the Tribunal while modifying the order of the learned Additional Rent Controller took into account the sum of Rs. 465.00 which was admitted by the landlord in his affidavit as having been received after the filing of the petition for eviction and directed the appellant to instead deposit a sum of Rs. 2220.00 towards the arrears of rent for the period. ending 25th July, 1970.

(11) The learned Tribunal also considered and decided the contentions of the parties on prima facie view of the material available on the record.

(12) Shri K. L. Vohra, learned counsel for the appellant, while placing reliance on the judgment of Deshpande, J. in Kulwant Kaur v. Jiwan Singh ; I.L.R. (1972) I Delhi 15 submitted that no order under section 15(1) of the Act could be passed as the arrears of rent were neither admitted nor proved by the landlord. It was submitted that the Controller has to give a final finding about the existence of the arrears before passing an order under section 15(1). He could not pass such an order on a prima fade view.

(13) It was submitted that non-compliance with the order under section 15(1) by the tenant would be visited with the penalty of striking out of the defense under section 15(7) which would result in the Controller passing an order for eviction against the tenant. If the Controller, thereforee, passes an order under section 15(1) without finally deciding the exact amount to the arrears of rent, and if ultimately during trial the Controller finds that arrears claimed were not due. irreparable damage would be caused to the tenant.

(14) Learned counsel also submitted that the tenant did not have reasonable opportunity of being heard before the order was passed under section 15(1) of the Act.

(15) Mr. G. S. Vohra, learned counsel for the respondent while placing reliance on the decision of the Supreme Court in V. N. Vasudeva v. Kirori Mal : : [1964]6SCR181 however, submitted that the observations of Deshpande, J. relied upon by the learned counsel for the appellant in Kulwant Kaur's case do not support his submission, and in any case the case has not been correctly decided as the aforesaid decision of the Supreme Court in the case of F V. N. Vasudeva was not brought to the notice of the learned Judge.

(16) For appreciating the rival contentions of the parties, it is necessary to know what was the law before the Act was passed, what was the mischief or the defect for which the law had not provided; G what remedy Parliament has provided and the reason for the remedy. It is thus necessary to refer to the provisions of the Delhi and Aimer Rent Control Act (No. xxxviii of 1952), hereinafter referred to as 'the- Old Act'.

(17) The Act repealed the Old Act, so far as it was applicable to the Union Territory of Delhi, by section 57 thereof.

(18) The following provisions of the Old Act, contained in proviso (a) to sub-section (1) of Section 13 thereof read with sub-section (2) and sub-section (5) are relevant and they are as under :

13.'PROTECTIONof a tenant against eviction :-

(1)Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favor of the landlord against any tenant (including a tenant whose tenancy is terminated) : Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied- (a) that the tenant has neither paid nor tendered the whole of the arrears of rent due within one month 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, 1382 (IV of 1882) ...........................................

(2)No decree or order for recovery of possession shall be passed on the ground specified in clause (a) of the proviso to sub-section (1), if, on the first day of the hearing of the suit or within such further time as may be allowed by the Court, the tenant pays in Court the arrears of rent then due together with the costs of the suit..... ....

(5)If the tenant contests the suit as regards the claim for ejectment, the plaintiff-landlord may make an application at any stage of the suit for an order on the tenantdefendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for the deposit of rent at such rate month by month as it thinks fit and the arrears of rent, if any, and on the failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or to deposit the rent at such rate for any month by the 15th of the next following month, the Court shall order the defense against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment; and the landlord may withdraw the amount of money in deposit without prejudice to his claim to any decree or order for recovery of possession of the premises.'

(19) It will be noticed from the provisions of the Old Act that once a petition for eviction had been filed by a landlord against a tenant on the ground of non-payment of arrears of rent after service of notice of demand, one of the ways in which a tenant could defeat the petition for ejectment based on the ground of non-payment of arrears of rent was that the tenant could pay in court on the first date of hearing or within such further time as may be allowed by the court the arrears of rent then due together with costs of the suit. If the tenant, for any reason, failed to pay in court the arrears of rent then due together with the costs of the suit and if later on the court, after trial, found that either no payment was made in court on the first day of the hearing or within such further time as may be allowed by the court or when the payment was short by any amount, the tenant was liable to suffer decree for ejectment.

(20) SUB-SECTION (5) of the Old Act was, however, a provision to safeguard the interest of the landlord. If the tenant contested the suit as regards the claim for ejectment, the landlord could make an application at any stage of the suit for an order on the defendant- tenant to deposit the arrears of rent, if any, as well as future rent, month by month, at the rate at which it was last paid. The court had the judicial discretion to pass this order after giving the parties an opportunity of being heard. Once an order was passed, whether for the deposit of the arrears of rent or future rent, month by month, the tenant was liable to deposit the same. On the failure of the tenant to deposit the arrears of rent or future rent as required by sub-section (5). it was obligatory on the part of the court to order the defense against ejectment of the tenant being struck out and the tenant was to be placed in the same position as if he had not defended the claim for ejectment and the landlord could withdraw the amount of money in deposit, without prejudice to his claim for a decree or order for recovery of possession.

(21) Under the provisions of sub-section (2) of Section 13 of the Old Act, the burden was on the tenant to calculate correctly the arrears of rent and the costs of the suit and to pay it in court off the first date of the hearing or within such further time as may be allowed by the court. It was not for the court to calculate or determine the amount for the tenant which he had to deposit. Even if the tenant bona fide calculated the arrears of the costs wrongly and, thereforee, failed to deposit the same, on the first day of the hearing or within such further time as the court may allow, he was not entitled to get any further opportunity to deposit to save himself from the order of eviction. Even compliance with the order under section 13(5) did not save him from eviction in this situation.

(22) The experience showed that the tenant, in order to avoid the risk of an order of ejectment being passed, and even though there may be bond fide dispute as to the arrears of rent then due or its tender, could not take the risk of not depositing the arrears of rent claimed together with costs of the suit on the first date of hearing. The reason was simple that if, for any reason, he was unable to substantiate his defense that the arrears of rent as claimed were not due, he was liable to ejectment.

(23) The purpose of sub-section (5) of Section 13 of the Old Act, however, was to protect the interests of the landlord so that the tenant who unnecessarily contested the claim for ejectment, or. if for any reason, the proceedings are prolonged or delayed by the tenant or otherwise, the tenant could be made to deposit in court the arrears of rent and future rent month by month till the decision of the case and in case of his failure to deposit the said amount, the court was bound to strike out his defense. The order for deposit under subsection (5), however, could only be passed if the landlord made an application in that behalf and not otherwise. The object was to discourage the tenant from contesting ejectment for the sake of harassing the landlord by keeping back the rent for the duration of the contest which may take several years. The landlord, on the other hand, was not put to the trouble of filing fresh suits for non-payment of rent after every few months.

(24) The order under section 13(5) was also required to be passed 'after giving an opportunity to the parties to be heard'.

(25) Having noticed the law which was there before the Act was passed, the mischief or defect under the Old Act may be noticed :

(1)The tenant had to itself calculate the arrears of rent and costs of the suit and deposit it in court on the first day of the hearing or within such further time as the court may fix. The risk was that of the tenant to calculate it correctly. There was no order required to be passed by the court for depositing the same by the tenant to avoid eviction. If he failed to calculate it correctly, even if the deposit was made in compliance with the order under section 13(5) of the Old Act, the tenant could not avoid the order of eviction. If the tenant failed to calculate correctly, there was no further provision for deposit during trial to save him from eviction.

(2)A mischievous tenant could harass the landlord by not paying the rent regularly even after service of notice of demand and could avoid eviction merely by depositing it on the first day of the hearing in court and every time the landlord would have to approach the court for eviction on the ground of non-payment of rent and be defeated in the said petition by the tenant by his depositing the arrears on the first day of the hearing or he would have to keep on filing suits for recovery of arrears of rent.

(3)If, for any reason, the tenant failed to make deposit of rent in compliance with the order under section 13(5) of the Old Act, the court had no discretion but was bound to make an order striking out the defense of the tenant against ejectment.

(26) In order to remedy these defects in the Old Act, the Parliament enacted the provisions of proviso (a) to Section 14 of the Act, Section 14(2) and Section 15 of the Act. Proviso (a) to Section 14(1) of the Act is similar to proviso (a) to Section 13(1) of the Old Act. Section 13(5) of the Old Act has been modified to remedy the defect in so far as the interests of the tenant were concerned and sub-section (2) of Section 14 of the Act was provided to give relief to the landlord against a mischievous tenant who was bent upon dragging the landlord to court time and again instead of paying the rent regularly.

(27) At this stage, the scheme of the provisions of Section 14 and Section 15 of the Act may be examined. Provisions relevant for purposes of the controversy are proviso (a) to Section 14(1). Section 14(2) and Section 15 of the Act, which are as under : Protection of tenant against eviction :

14.

(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 favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an application 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 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 povided in section 106 of the Transfer of Property Act, 1882 ........

(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(1)............ When a tenant can get the benefit of protection against eviction.

15.

(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)If in any proceeding for the recovery of possession of any premises on any ground other than that referred to in sub-section (1), the tenant contests claim for eviction, the landlord may, at any stage of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant and the Controller may, after giving the parties an opportunity of being heard, make an order in accordance with the provisions of the said sub-section.

(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)If, in any proceeding, referred to in sub-section (1) or sub-section (2), there is any dispute as to the person or persons to whom the rent is payable, the Controller may direct the tenant to deposit with the Controller the amount payable by him under sub-section (1) or subsection (2) or sub-section (3), as the case may be, and in such a case, no person shall be entitled to withdraw the amount in deposit until the Controller decides the dispute and makes an order for payment of the same.

(5)If the Controller is satisfied that any dispute referred to in sub-section (4) has been raised by a tenant for reasons which are false or frivolous, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application.

(6)If a tenant makes payment or deposit as required by subsection (1) or sub-section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such costs as he may deem fit to the landlord.

(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.

(28) SUB-SECTION (1) of Section 15 of the Act applies to every proceeding for the recovery of possession on the ground of arrears of rent. Sub-section (2) of the said section applies to any proceedings other than those mentioned in sub-section (1) which means that sub-section (2) applies only where the grounds for ejectment are other than the non-payment of arrears of rent. Even if one of the grounds for ejectment is non-payment of rent coupled with other grounds, it is sub-section (1) which is applicable and not sub-section (2).

(29) SUB-SECTIONS (3) and (4) apply to the proceedings referred to in sub-section (1) as well as sub-section (2). Sub-sections (3) and (4) have to be read along with sub-sectio (1) , sub-section (3) contemplates the dispute as to the amount of rent. That dispute can be either as to the rate of rent or the quantum of rent or as to the standard rent if the dispute is raised within limitation provided by Section 12 of the Act. Sub-section (3) contemplates the fixation of interim rent and an order for its payment or deposit in accordance with sub-section (1) or sub-section (2) as the case may be until the standard rent in relation to it is fixed if there is a dispute as to the rate of rent' last paid or the standard rent.

(30) SUB-SECTION (4), again like sub-section (3), applies to proceedings under sub-section (1) or sub-section (2). The dispute contemplated by sub-section (4) relates to the person or persons to whom the rent is payable i.e. the dispute relates as to who the landlord is. The dispute does not relate to the fact that the respondent to the ejectment application is a tenant or not. thereforee, under sub-section (4) a discretion is given to the Controller to direct the tenant to deposit the arrears of rent and future rent but a restriction in such a case is placed that the person claiming to be the landlord is not entitled to withdraw the amount in deposit until the Controller decides the dispute, namely, the dispute whether the applicant is a landlord or not and thereafter makes an order for payment of the same.

(31) It will be noticed that sub-section (3) and sub-section (4) contemplate payment of interim rent or the arrears of rent even before the determination of the entire dispute by the Controller. Subsection (6) itself puts the case under sub-section (1) or sub-section (3) on the same footing and makes no distinction between them.

(32) It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defense be tried. It is not that even on the deposit of the arrears of rent, in these circumstances, the case would come to an end.

(33) Now, let us refer back to the provisions of sub-section (1) of Section 15. This sub-section contemplates an order directing the tenant, not only to pay the arrears of rent within one month of the date of the order for an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant, including the rent for the period subsequent thereto up to the end of the month previous to that in which the payment or deposit is made, but also to continue to pay or deposit future rent month by month, by the 15th of each succeeding month at the same rate till the trial or the proceedings continue. The very fact that order under section 15(1) contemplates a direction for payment of rent month by month in future as well shows that the order under section 15(1) is not a final order in the sense that the trial terminates with the passing of the order and the deposit in accordance therewith. It is merely an order preliminary to the trial of the case and is made only where the rent has in fact not been paid.

(34) The very fact that it is a preliminary order also lends colour to the nature of hearing contemplated by section 15(1). For the purpose of an interim order, it is not necessary that there should be a full trial. It does not mean that there should not be a proper inquiry. Section 15(1) itself is not mandatory but is directory. In this connection, the observations of the Supreme Court in M. M. Chawla v. J. S. Sethi : [1970]2SCR390 may be adverted to with advantage. It may also be noticed that the Controller in appropriate cases can even postpone the passing of the order under Section 15(1), depending on the nature of bona fide dispute where prima facie there are no arrears or the dispute cannot be satisfactorily settled without recording further evidence. In fact, if subsection (3) of Section 15 is read with the provisions of sub-section (1), the Controller is required to fix within 15 days of the first date of hearing, an interim rent in relation to premises to be paid or deposited in court by the tenant. It cannot be assumed that when the Legislature was fixing a limit of 15 days of the day of the first hearing for fixation of interim rent when there is a dispute as to the amount of rent payable by the tenant under sub-section (3) in any proceeding referred to in sub-section (1) or sub-section (2) of Section 15, that the Legislature was contemplating that an order under sub-section (1) of Section 15 could only be passed after the parties had led their entire evidence during tiral of the petition and the Controller could not pass an order under Section 15(1) as a preliminary order, on a prima fade view after giving the parties an opportunity of being heard. Of course, the determination of arrears of rent in such a situation is final only for purposes of the order under sub-section (1). Such an order is not final for purposes of the trial. During trial, besides other defenses on merits the tenant will be entitled to show that the arrears as claimed in the ejectment petition were not due at all or something less was due. In case the tenant can establish that the rent was paid or tendered either before or after notice of demand or was not due and, thereforee, there was no cause of action to file the petition on the ground of non-payment of arrears of rent, the petition will have to be dismissed on that ground, and not on the ground that the tenant has complied with the order passed under section 15(1) of the Act. In case the tenant is unable to establish his defense but makes the requisite deposit as required by the order under section 15(1) of the Act, even then the petition will have to be dismissed in view of sub-section (6) of Section 15 of the Act read with sub-section (2) of Section 14. It will be noticed that the tenant shall be entitled to this benefit under subsection (6) of Section 15 only once in view of the provisions of subsection (2) of Section 14. Having obtained the advantage once, if the tenant again makes a default in payment of rent and a second eviction petition is filed on the ground of arrears of rent under proviso (a) to Section 14(1) of the Act, the tenant would not even be entitled to the passing of an order under section 15(1) of the Act and in such a situation to safeguard the arrears of rent and future rent, the landlord alone may be interested in having an order under section 15(1) of the Act being passed. The reason is simple. Even if the tenant complies with the order passed under section 15(1), in such a situation, he will not be able to take its benefit if the landlord establishes his case in the second petition on the ground contained in the aforesaid proviso (a) to section 14(1) of the Act.

(35) It is true that the provisions of sub-section (7) of Section 15 give a discretion to the Controller to strike out the defense of the tenant if the tenant fails to make payment or deposit as required by Section 15, but in case the order under 'section 15(1) is to be passed only after determination of the arrears of rent finally for purposes of the eviction petition, the occasion for exercising the power under sub-sec. (7) may not arise nor would there be anything left for directing the tenant to make future deposit month by month till the disposal of the petition.

(36) The scheme of Section 15 and proviso (a) to Section 14 of the Act came up for consideration before the Supreme Court in the aforesaid case of V. N. Vasudeva v. Kirori Mal Luhariwala : [1964]6SCR181 . That was also a case where the landlord had filed an ejectment petition on the ground of arrears of rent. The tenant was disputing the arrears of rent and was claiming a right to make adjustment of rent against his professional dues, and various other objections were raised.

(37) After filing the written-statement, the tenant was allowed to inspect the documents filed in the case and on the next date his statement was recorded and the case was adjourned for arguments. After hearing the arguments, the Rent Controller passed an order holding that there was no proof on the file to show that the tenant had any right to make any adjustment of the rent against his professional dues. The Rent Controller also said that if in an inquiry to be subsequently made, the tenant proved that the amount of fees had to be recouped from the rent, the amount would not be paid to the landlord. The order of the Rent Controller was upheld by the Tribunal and the High Court in second appeal. The tenant took the matter, by way of special leave, to the Supreme Court and the Supreme Court considered the nature of the order passed under section 15(1) and also the nature of inquiry contemplated by it before an order is passed under the said provision. The Supreme Court observed :

'ITwill be noticed that sub-section (3) also contemplates payment of interim rent determined by the Controller before the entire dispute is settled. Sub-section (6) puts the case under sub-s. (1) and sub-s. (3) on the same footing and makes no distinction between them. It is also possible to visualise cases in which the tenant may deposit the amount of rent under protest and claim that his defense be tried. It is not that even on the deposit of the arrears of rent in these circumstances the case would come to an end. The latter part of sub-section ( 1 ) further shows that not only the arrears have to be deposited but rent as it falls due has to be deposited month by month by the 15th of each succeeding month. This also shows that the order under sub-section (1) is not a final order but is preliminary to the trial of the case and is made only where the rent has in fact not been paid. For the purpose of an interim order it was not necessary that to there should have been a full trial. The Rent Controller had the affidavit of the appellant and he could judge whether in the circumstances of the case, an interim order ought or ought not to be made. He came to the conclusion that the rent was not paid and the plea that it was being withheld under an agreement was an after-thought and not true. The High Court and the Rent Control Tribunal have agreed with this view of the rent Controller and the conclusion appears to us to be sound. Once such a conclusion is reached, it is quite manifest that the order was made after affording an opportunity to the appellant to be heard.'

(38) Learned counsel for the appellant, however, relied upon the observations of the Supreme Court while distinguishing Ramesh Chandra v. Smt. Subodhbala Dasi: : AIR1952Cal198 where the Supreme Court was considering the observations of Harries, C.J. in that case. The Supreme Court made the foowing observations at page 444 of the report :

'(12)Reference was made in this connection to a decision of the Calcutta High Court reported in Ramesh Chandra v. Smt. Subodhbala Dasi : AIR1952Cal198 in which Harries, C.J. observed that before making an order for the deposit of the rent, a full enquiry should be made. That was a case in which the tenant had pleaded that there was an agreement between him and the landlord that any amount spent on repairs would be set off against the rent. Harries, C.J. 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. It is quite clear that the facts there were entirely different. Payment by the landlord for repairs was a part of the tenancy agreement and rent under that tenancy could not be calculated without advertence to every term of the agreement of tenancy. Here the special agreement which is pleaded is outside the tenancy agreement and allegation about the special agreement has been held to be an after-thought and false. It is thereforee difficult to apply the ruling to the present circumstances.'

(39) Reliance was placed particularly on the reasoning of the Supreme Court while distinguishing the decision of Harries, C.J. in the aforesaid case to the effect that in the case decided by the learned Chief Justice, the adjustment sought was for payment by the landlord for repairs to the tenanted premises being borne by the landlord which the tenant was entitled to set off under the agreement of tenancy and thus the adjustment sought there was part of the tenancy agreement and rent under that tenancy could not be calculated without adverting to every term of the tenancy. The Supreme Court distinguished the said decision by observing that in the aforesaid Calcutta case the special agreement pleaded was part of the tenancy agreement whereas the plea of the tenant in the case before the Supreme Court was outside the tenancy agreement.

(40) The Calcutta case dealt with the provisions of Section 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act. (XVII of 1950). The provisions of Section 14(4) of the Said Act are as under :

14.'(4)lf the tenant contests the suit, as regards claim for ejectment, the plaintiff-landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rats month by month and the arrears of rent, if any, and on the failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the court shall order the defense against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim for ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so.'

(41) A bare look at the aforesaid provisions would show that they are in pari materia with sub-section (5) of Section 13 of the Old Act and orders under section 13(5) of the Old Act were simply interim orders to safeguard the arrears and future rent due to the landlord. The orders were not final orders for purposes of the trial of the suit.

(42) Broadly speaking, a comparison of the analogous provisions of the Old Act and the Act shows the following changes:

(1) Apart from the tenant substantiating the defense during the trial of the eviction petition, whereas under the Old Act the tenant had to itself calculate the arrears of rent and costs of the suit and deposit it in court on the first day of the hearing or within such further time as may be allowed by the court, in every proceeding for eviction of the tenant on the ground of non-payment of arrears of rent, under the Act instead of leaving the risk of determination of the arrears of rent by the tenant, the Legislature provided for its being deposited by him on inquiry and order by the Controller to save him from eviction.

(2)Whereas Section 13(5) of the Old Act was meant to safeguard the interest of the landlord only. Section 15(1) is meant primarily by way of benefit to the tenant who gets another opportunity to avoid his eviction by complying with the order passed under section 15(1). The tenant also by complying with the order under section 15 avoids the consequences of his default of payment or tender before the filing of the petition.

(3)Under section 13(5) of the Old Act, in case of default, the court was bound to strike out the defense whereas under section 15(7) of the Act, in case of default in compliance with the order under section 15(1) or Section 15(2), the Controller has a discretion to strike out the defense or not.

(4)Under the Act, by complying with the order under section 15(1), the tenant can defeat the eviction application, whereas under the Old Act, the tenant did not have this advantage even if he complied with the order under section 13(5) of the Old Act.

(5)In a petition for eviction on the ground of non-payment of rent, whereas under the Old Act, the tenant could always defeat the petition by depositing the arrears of rent on the first day of the hearing or within such further time as may be allowed by the court, under the Act the tenant can avail of the benefit of avoiding the eviction by depositing the arrears of rent in court in pursuance of an order under section 15(1) only once.

(43) The mere fact that non-compliance with the order under section 15(1) may result in the striking out of the defense against ejectment under section 15(7) of the Act does not mean that an order u/s. 15(1) must be passed after finally determining the arrears of rent. The change brought about the Act as compared to the Old Act is that the tenant gets another chance of depositing the arrears of rent and future rent during the trial of his defense to save his eviction even if he fails to establish his defense.

(44) Having seen the nature of the order contemplated by section 15(1) as being in the nature of an order preliminary to the trial of the eviction petition, the nature of inquiry contemplated by the expression ' after giving the parties an opportunity of being heard' also becomes clear. For purposes of an interim order, it is not necessary that there should have been full trial.

(45) Once the conclusion is reached that an order under section 15(1) is in the nature of an order preliminary to the trial of the case it becomes clear as to the nature and the scope of the expression 'after giving the parties an opportunity of being heard'. The finding as to the arrears of rent under sub-section (1) or sub-section (3) is final only for purposes of these provisions and not final for the purpose of the trial. The aforesaid expression in the context in which it is used means that both the parties should know that the Controller is making an inquiry for purposes of section 15(1) and in that connection, apart from the pleadings of the parties, it is up to the parties to lead whatever evidence they consider necessary for the decision of the limited question involved in the inquiry. The expression docs not contemplate that the Controller should issue an invitation to the parties to lead oral or documentary evidence. It is for the parties, for purposes of the inquiry under section 15(1), to either file documents to show arrears or payment thereof or file affidavits in that behalf. Normally, such documents and affidavits by the parties would be sufficient for purposes of the inquiry under section 15(1) but if the question about arrears or their payment cannot be satisfactorily determined for purposes of section 15(1) and the party concerned makes out a case for examination of oral evidence, the Controller in his judicial discretion will grant that opportunity or decline to grant it, depending on the circumstances and the facts of each case. The same principles will apply for determination of questions involved under sub-sections (2), (3) and (4) of Section 15.

(46) As noticed earlier, the parties, apart from relying on the affidavits, did not make any request before the Additional Rent Controller to lead any further evidence with respect to the passing of the preliminary order under sub-section (1) of Section 15. If the parties had any grievance about their not getting the proper opportunity to put forward their case, then grievance should have been made before the Tribunal. On the facts of the present case, it cannot be allowed to be raised for the first time in second appeal.

(47) Since the order under section 15(1) is in the nature of an order preliminary to the trial and the determination of arrears of rent is final only for purposes of section 15(1) of the Act and is not final for purposes of the trial, the order of the Controller under section 15(1) will be on 'prima facie' view of the matter and cannot be final for purposes of the trial.

(48) The facts in the aforesaid case of Kulwant Kaur v. Jiwan Singh : may be noticed : In that case the petition for eviction was filed by the landlord against the alleged tenant. The tenant denied the relationship as being that of landlord and tenant but took up the position that the relationship was that of a mortgagor and mortgagee and not that of landlord and tenant. There was also an objection on merits that the notice to quit was not served on the tenant. The Rent Controller passed an order under section 15(1) asking the alleged tenant to deposit the rent and arrears thereof on what he called a 'prima facie' view. The appeal of the tenant had been dismissed both on the ground of limitation as well as on merits ; and the tenant had come up in second appeal. One of the questions posed by Deshpande, J. was :

'WHETHERthe Controller could pass the order under section 15(1) without finally deciding the question whether the petition for eviction was filed by a landlord against a tenant.'

While dealing with this question, Deshpande, J. observed :

'the order under section 15(1) has to be passed before the defense of the tenant on the merits of the case is finally decided. The very object of section 15(1) is that pending the decision of the petition for eviction, the Controller must see that the tenant continues to pay rent to the landlord at the rate at which it was last paid.'

We are in complete agreement with the approach of the learned judge thus far. The learned Judge then went on to observe:

'BUTthis pre-supposes that the order under section 15(1) is made in favor of the landlord and against the tenant. Two of the requirements of section 15(1) are, thereforee, (1) the relationship of landlord and tenant must exist between the parties, and (2) the arrears of rent must either be admitted or must be proved by the landlord before an order under section 15(1) can be made by the Controller against the tenant. In M. M. Chawla v. J. S. Sethi, : [1970]2SCR390 , the Supreme Court has held that if the tenant disputes the arrears of rent, the Controller must decide as to whether and what arrears of rent are payable by the tenant before he can order the tenant under section 15(1) to pay them. The Controller has thus to give a final finding about the existence of the arrears before passing an order under section 15(1). He cannot pass such an order on a prima facie view. Similarly, the Controller cannot pass such an order under section 15(1) on a prima fade view of the relationship of landlord and tenant.'

It will be noticed that the case of M. M. Chawla v. J. S. Sethi (supra), noticed by the learned Judge, dealt only with the question whether plea of standard rent could be raised in reply to a petition for eviction on the ground of non-payment of arrears of rent beyond the period of limitation prescribed by section 12 of the Act, and the Supreme Court on that aspect affirmed the decision of Deshpande, J. It is also true that the Controller, before passing an order under section 15(1), has to be satisfied that the defendant is a tenant in the premises, in view of sub-section (4) of Section 15 of the Act--(see observations of Shankar and Anand, JJ. in Ram Prakash Kapur v. Smt. Bhagwanti Devi 1973 A I R C J 328(5).

(49) It is also true that the Controller has to give a finding for purposes of section 15(1) as to the arrears of rent and the defendant being a tenant, but that does not mean that he cannot pass that order on the material placed before him while holding inquiry for purposes of section 15(1) only and he must postpone the decision about the arrears of rent and/or relationship between the parties till the end of the trial. Though determination about the arrears or the defendant being a tenant is final for purposes of section 15(1), yet at the same time it is 'prima facie' for purposes of the trial.

(50) It appears that these observations of Deshpande, J. have to be read along with the observations made by the learned Judge as quoted earlier. Deshpande, J. took exception to the use of the expression ' prima facie' while passing orders under section 15(1) of the Act and while determining the arrears and/or relationship of the parties for purposes of passing orders under section 15(1) of [he Act.

(51) It appears to us that this expression 'prima facie' is coined by the courts to distinguish a finding on a question at the interlocutory stage as opposed to a finding given at the final stage of the trial. At the same time, for purposes of section 15(1), the determination of relationship and/or arrears of rent have to be final only for the limited purpose of section 15(1), and in that sense the finding is prima facie as opposed to the determination of the question at the end of the trial. Deshpande, J. further wen,t on to observe :

'THEController has no jurisdiction to pass the order unless he first definitively finds that the relationship of landlord and tenant exists between the parties. The consequences of the wrong practice followed by the Controller and the Rent Control Tribunal, as in the present case, are serious. A non-compliance with the order under section 15(1) by the tenant would be visited with the penalty of striking off the defense under section 15(7) which would result in the Controller passing an order for eviction against the tenant. If the Controller, thereforee, passes an order under section 15(1) without deciding the relationship between the parties and the non-compliance of this order results in the eviction of the tenant and if ultimately the Controller finds that the relationship did not exist between the parties, irreparable damage would have been caused to the tenant by being evicted from the premises by the Controller who did not have jurisdiction to pass the order under section 15(1). Further, an order passed by the Controller under section 15(1) without first determining whether the relationship of landlord and tenant exists between the parties would be in contravention of the fundamental provisions of section 15(1) itself which requires the existence of the rclationship as a jurisdictional condition precedent to the exercise of the power by the Controller under section 15(1). Such an order would, thereforee, be without jurisdiction according to the reasoning of the Supreme Court in Dhulabhai and others v. State of Madhya Pradesh, : [1968]3SCR662 . It is not possible, thereforee, to countenance the present practice followed by the Controllers and the Rent Control Tribunal that the order under section 15(1) can be passed without first determining the jurisdictional condition about the existence of the relationship of landlord and tenant between the parties. It is to be noted that the Controller has only to determine such a jurisdictional condition before passing order under section 15(1).'

(52) Jt is also true that the Controller has no jurisdiction to pass the order unless he definitely finds that the alleged tenant is a tenant in the premises but it goes without saying that this finding again has to be given only for purposes of section 15(1) and the alleged tenant would still be entitled to plead on merits during trial that he is not the tenant of the person who claims to be landlord. It is, however, clarified that we do not understand the aforesaid observations of Deshpande, J. to mean that the definitive finding of relationship of landlord and tenant between the parties is final for the trial. The finding of relationship of landlord and tenant has again got to be prima facie as opposed to the ultimate finding given at the end of the trial.

(53) In view of the above, the appeal fails and is dismissed. Parties are left to bear their own costs.


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