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Shanti Devi and ors. Vs. Prem Chand Aggarwal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 107 of 1978
Judge
Reported in14(1978)DLT73; 1978RLR584
ActsDelhi Rent Control Act, 1958 - Sections 15(1)
AppellantShanti Devi and ors.
RespondentPrem Chand Aggarwal
Advocates: O.P. Tyagi and; J.P. Sharma, Advs
Cases ReferredK. G. Malhotra vs. Vijay Kumar
Excerpt:
.....15(1) for payment of arrears of rent and thereafter rent month by month--whether applies to legal representatives of the deceased tenant or is purely personal to the tenant.; the landlord filed an application for eviction on two grounds : (1) non-payment of arrears of rent and (2) misusers of the premises. on december 3, 1970 the rent controller passed an order under section 15(1) of the delhi rent control act, 1958 requiring the tenant to deposit the arrears of rent at the rate of rs. 40 p.m. within one month and thereafter to continue to deposit the rent month to month by the 15th till the disposal of the petition. the tenant complied with the order. on 24th december, 1971 the tenant sure prakash dies and an application was made for bringing on record his legal..........only, namely: (a)that the tenant has neither paid nor tendered the whole of the arrears of the 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 provided in section 106 of the transfer of property act, 1882; *** *** *** sub-section(2) of section 14 provides as under: (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: provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent.....
Judgment:

R.N. Aggarwal, J.

(1) This is an appeal by the heirs and legal representatives of a tenant against the order of the Rent Control Tribunal dated March 1, 1978, by which the order of the Additional Rent Controller passing an order of eviction was affirmed.

(2) This appeal raises an interesting question of law. The relevant facts are these: the deceased Suraj Prakash was a tenant of the premises described as a shop situate in premises No. 115-A, Kamla Nagar at a monthly rent of Rs. 40. The landlord Prem Chand filed an application for the eviction of Suraj Prakash and Sham Sunder on two grounds (1) non-payment of arrears of rent and (2) misusers of the premises.

(3) Suraj Prakash in reply asserted that he alone is the tenant and Sham Sunder has got no interest or right in the tenanted premises.. The above plea of the tenant was upheld and it is no longer in controversy. The plea of the landlord as regards the non-payment of the rent was that the tenant was in arrears of rent since October 1968 and inspire of the notice of demand had not paid the arrears of rent. The reply of the tenant to the above plea was that there was no valid notice of demand and that he had paid Rs. 500 in advance to the landlord and the landlord has not given credit for the said amount. It was also pleaded by the tenant that there was no valid notice for terminating the tenancy.

(4) On December 3, 1970, the Rent Controller passed an order under section 15(1) of the Delhi Rent Control Act (hereinafter referred to as the Act) requiring the tenant to deposit the arrears of rent at the rate of Rs. 40 per month within one month and thereafter to continue to deposit the rent month to month by the 15th of every following month till the disposal of the petition. It is not disputed that the tenant had deposited the arrears of rent within the specified period.

(5) On December 24, 1971, the tenant Suraj Prakash died and an application was made for bringing on record his legal representatives. The application was dismissed by the Rent Controller but on appeal the application was allowed and the legal representatives (the appellants herein) were brought on record.

(6) On January 16, 1975, the Additional Rent Controller allowed the application and passed an order of eviction against the legal representatives on the ground that the legal representatives had defaulted in complying with the order under section 15(1). The legal representatives took an appeal to the Rent Control Tribunal but thenappeal was dismissed on March 1, 1978. The Tribunal took the view that the legal representatives were bound to comply with the order under section 15(1) and since they had not complied with the said order the order of eviction passed against them is valid and they cannot claim benefit of section 14(2) of the Act

(7) It is not in dispute that there was default on the part of the legal representatives in complying with the order under section 15(1).

(8) On behalf of the appellants it is contended by Mr. Tiagi that after the death of the tenant the order under section 15(1) lost its effect by force of law and the legal representatives were under no legal obligation to comply with the order under section 15(1) and, thereforee, no order of eviction could be passed against the legal representatives on the ground of default in compliance with the order under section 15(1).

(9) On behalf of the landlord it is contended by the learned counsel Mr. Sharma that after the death of the tenant the legal representatives of the tenant represented the estate of the tenant and the legal representatives can put forward only such contentions as are appropriate to their representative character but not the contentions which were personal to the deceased tenant, and that the courts below having found that the tenancy of the deceased tenant had been validly terminated, no other defense was open to the legal representatives and, thereforee, the landlord is entitled to the order of eviction and the legal representatives are bound to restore the possession of the demised premises to the landlord. Mr. Sharma in support of his above contention relied upon a Full Bench decision of this Court in Kedar Nath and another v. Smt. Mohani Devi and others, : AIR1974Delhi171 , and a decision of the Supreme Court in J. C. Chatterjee & Others v. Shri Sri Kishan Tandon and another. : [1973]1SCR850 .

(10) The facts of the first case were that Kedar Nath, the predecessor -in-interestof the appellants therein filed two separate eviction applications under section 14 of the Rent Control Act, 1958, against his tenants, who held two separate premises on lease under him. The tenancy in both the cases was terminated earlier. In S.A.O. 6 of 1968 the tenant was Naubat Ram and his eviction was sought on the grounds (a) non-payment of arrears of rent, after service of notice of demand ; (b) sub-letting without landlord's consent ; and (c) misuse of the premises. In the second case S.A.O. 54 of 1968, the tenants were Prabhu Dayal and Mamman Lal and their eviction was sought on the grounds of (a) non-payment of arrears of rent ; (b) subletting ; (c) misuse of premises; (d) substantial damage to the premises and (e) non-residence of the tenants in the premises. The tenants in both the premises died while the proceedings were pending before the Additional Controller. Their legal representatives, who did not dispute their character as such, were brought on record and amended petitions were filed. It may be added that during the pendency of the appeals the landlord Kedar Nath died and his legal representatives were also ordered to be brought on record. The Additional Rent Controller dismissed the applications on the view that the relationship of landlord and tenant was no longer subsisting between the parties and, thereforee, the petitions were not maintainable under the Rent Control Act. The landlord took an appeal to the Tribunal but he concurred with the views of the Additional Rent Controller. He also found that the right to sue did not survive and consequently dismissed the appeals. Against the aforesaid orders the landlord filed two appeals before the High Court which were referred to a Full Bench of five Judges in view of an earlier decision in K. G. Malhotra vs. Vijay Kumar : AIR1973Delhi265 in which it was held that on the death of the statutory tenant, an application for eviction under section 14 of the Rent Control Act could not proceed further and that the landlord would have to file a separate suit based on title in a Court having general jurisdiction, as the legal representatives do not inherit the tenancy or the statutory protection. The Full Bench in Kedar Nath and another (supra) did not agree with the earlier Full Bench decision in K. G. Malhotra's case. Their Lordships in para 30 of the judgment thus summed up the case:

'TOsum up, the relief the landlord claimed in his applications under Section 14 against the tenants, whose tenancies had already been determined and who were alleged to have lost the protection of section 14 of the 1958 Act, could, thus, be claimed on their death against their legal representatives. The right to sue on the basis of the applications under Section 14 of the 1958 Act, which were pending before the Controller, thereforee, survived in favor of the landlord and against the respondents in S.A.O. 6 of 1968 and the respondents Nos. 1 to 4 in S.A.O. 54 of 1968 who were rightly held to be the legal representatives of the deceased tenants ; and were correctly brought on record as such. The jurisdiction of the Controller to deal with the said applications after the death of the tenants remained unaffected. The proceedings under Section 14(1) of the 1958 Act, thereforee, have to be continued against the said legal representatives. Since the power of the Controller to pass an order for recovery of possession depends on the existence of one or more of the condition specified in clauses (a) to (1) of the proviso to sub-section (1) of Section 14, the landlord has to establish that they do exist. In answer thereto, the legal representatives who have been brought on record may put forward such contentions as are appropriate to their representative character, but not the contentions which were personal to the deceased tenants. They would, of course, be entitled to support their aforesaid contention by such evidence, as they may be able to adduce. If the Controller finds that one or more of the aforesaid conditions exist, nothing would prevent him from passing an order for the recovery of the premises in favor of the landlord and against the legal representatives. In case the Controller comes .to the finding that the landlord has not been able to establish any of the grounds which are mentioned in clauses (a) to (1) of the proviso to Section 14(1) then he would have no power to pass an order for recovery of possession for the reason that the conditions on which his power to order recovery of possession rests, do not exist. The landlord may then file, if so advised, a regular suit for possession in the civil court, which would be on a different cause of action.'

(11) In the case J. C. Chatterjee & Others (supra), the facts were that Shri Kishan Tandon, the respondent therein, had filed an application for eviction against B. N. Chatterji from a residential premises. The eviction was sought on the ground that the landlord required the house bona fide for the residence of himself and his family. The tenant contested the suit and alleged that the landlord did not require the premises bona fide. The Munsif held in favor of the landlord and decreed the suit for ejectment. Against that order the tenant filed an appeal in the Court of the District Judge. The District Judge found that the landlord did not require the premises reasonably and bona fide and allowed the appeal, and dismissed the suit. Against the judgment of the District Judge the landlord filed an appeal to the High Court. During the pendency of the appeal the tenant B. N. Chatterji died and his widow and children were brought on record as his heirs and legal representatives. When the appeal came up for hearing it was urged by the landlord that the deceased tenant after the determination of the tenancy was only a statutory tenant and under the Rajasthan Rent Control Act, the protection granted by section 13 is not available to the heirs of the tenant and as such even if it be held that the landlord has failed to prove the reasonable and bona fide requirement, the appellant (landlord) is entitled to a decree. A single Judge of the High Court upheld the contention of the appellant and came to the conclusion that it was not necessary to go into the question of bona fide and reasonable necessity of the landlord as that was only a protection provided to the statutory tenant personally under section 13 of the Rent Control Act and since the tenancy had been duly terminated by notice and there was no other bar to the passing of the decree in favor of the landlord the Judge set aside the order to the District Judge and restored the decree passed by the Munsif. Against the order of the High Court the legal representatives of the tenant went in appeal to the Supreme Court. A Division Bench of the Supreme Court while rejecting the appeal observed :

'Aperson remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a 'statutory tenant'. Such a person is not a tenant at all, he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long a's he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal ; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute.

ONthe death of a statutory tenant pending eviction suit or appeal his heirs and legal representatives brought on record cannot claim the status of tenant within S. 3(vii) of the Act as no rent is payable by them. If the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the court. thereforee, the only contentions that they could put forward in the second appeal by the landlord were the contentions appropriate to their representative character and not one which was personal to the deceased. The defense of want of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives.'

(12) From a reading of the above two authorities the principle of law that emerges is that the legal representatives of a statutory tenant can only put forward such contentions as are appropriate to their representative character but not the contentions which were personal to the deceased tenant and also that the legal representatives are under no obligation to pay the rent.

(13) Before discussing the arguments raised at the- bar, I shall brietly notice the provisions of the Delhi Rent Control Act which have bearing on the points canvassed. The relevant part of section 14(1) reads as under:

'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 order 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 the 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 provided in section 106 of the Transfer of Property Act, 1882; *** *** ***

SUB-SECTION(2) of section 14 provides as under:

(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: PROVIDED that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.'

THErelevant provisions of section 15 with which we are concerned in this case read as under:

'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 Controllers 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.

*** *** *** (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.'

(14) A reading of the above provisions would show that if a tenant, in arrears of rent, fails to pay the arrears within two months of the notice of demand, he incurs a disability of eviction under clause (a) to the proviso to section 14(1) but he can get rid of this disability by complying with the order made under section 15(1). Thus, if the tenant makes payment or deposits the rent, as required by section 15(1) no order for the recovery of possession can be made on the ground specified in clause (a) of the proviso to section 14(1).

(15) The language employed in section 15(1) clearly shows that an order under section 15(1) applies only to a tenant. It has been held in J. C. Chatterpee (supra) that after the death of a statutory tenant his legal representatives brought on the record cannot claim the status of tenant as no rent is payable by them. From the above, it would follow that the legal representatives of a deceased statutory tenant are not bound to comply with an order under section 15(1) and, thereforee, the reason given by the Courts below for the order of eviction of the legal representatives would not be legally correct and cannot be sustained. But this finding does not solve the controversy.

(16) The deceased tenant had incurred the disability of eviction by non-payment or arrears of rent, after notice of demand. The protection afforded to a statutory tenant to pay the arrears of rent under section 15 and save himself from the disability of eviction is purely .personal to the tenant and the legal representatives can take no advantage of it. Once it is found that the tenancy had been duly terminated by notice the landlord would be entitled to an order of eviction in his favor. There appears to be no escape from this conclusion in view of the judgment of the Supreme Court in the case J. C. Chatterjee (supra) and the decision of the Full Bench of this Court in Kedar Nath (supra),

(17) Mr. Tiagi referred to Damadilal and others v. Parashram and others, : AIR1976SC2229 . In the above case Madhya Pradesh Rent Control Act was under consideration. While construing the definition of 'tenant' in section 2(i) of the Madhya Pradesh Accommodation Control Act, their Lordships held:

'THEdefinition of tenant in Section 2(i) makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must thereforee be the same unless any provision of the Act conveyed a contrary intention. Under the M.P. Act such a tenant retains an interest in the premises and not merely a personal right of occupation. Section 14 read with Section 2(i) makes it clear that the so-called statutory tenant has the right to sub-let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him. Thu,s the statutory tenant under Section 2(i) has a heritable interest in the premises.'

(18) The above authority was considered by Mr. Justice AvadhBehari in the case Mohan Lal etc. v. Shri Ki?han etc. 1978 RLR 300 and in paras 65 and 66 His Lordship observed :

'....THEreasoning of Damadi Lal's case (supra) does not apply to the Delhi Rent Act as there is a contrary intention indicated in the Amendment Act of 1976. The legislature has given relief to the statutory tenant of the residential premises. None to the statutory tenant of commercial premises. It is against this the Delhi Rent Act has to be construed. In the light of the Amendment Act 1976, it has to be understood. One can find the general purpose and policy of the Act by reading it as a whole in the light of the circumstances which existed when it was passed or of the mischief which it must have been intended to remedy.

THEreasoning of the majority in Anand Nivas (supra) applies to the statutory tenant of the commercial premises. He has no estate or interest in the premises occupied by him but only a personal right to remain in occupation. As Shah, J. said : 'HISpersonal right of occupation is incapable of being transferred or assigned. . . . '

(19) On a consideration of the definition of 'tenant' in the Delhi Rent Control Act, as amended by Act 34 of 1976, I am inclined to agree with the view taken by Mr. Justice Avadh Behari. Even otherwise also the decision in Damadilal and others (supra) is of no help to the appellants. I specifically put to Mr. Tiagi if he claimed the status of tenants for the heirs and legal representatives of the deceased tenant. He gave no clear reply for the obvious reason that in case he claims the status of tenants for the legal representatives they would be liable to eviction for non-compliance with the order under section 15(1).

(20) Mr. Tiagi next contended that there was no valid notice terminating the tenancy inasmuch as, according to the landlord, there were two tenants Suraj Prakash and Sham Sunder but no notice of termination of the tenancy was served on Sham Sunder and, thereforee, the eviction petition must fail. This argument is wholly without substance. The notice for terminating the tenancy was admittedly served on Suraj Prakash. The petition was only contested by Suraj Prakash. Sham Sunder did not put in appearance. The plea taken by Suraj Prakash was that he alone is the tenant and Sham Sunder had no right or interest in the tenancy. This plea of Suraj Prakash was accepted and, as already stated, is no longer in controversy. In the circumstances, there was no need to serve any notice terminating the tenancy on Sham Sunder. I agree with the finding of the Courts below that the tenancy was validly terminated.

No other point was urged at the bar.

(21) In the result I dismiss the appeal, though for a reason different from the one given by the Rent Controller and the Tribunal. The respondent shall have his costs from the appellants. The counsel fee is fixed at Rs. 500. The stay order granted on March 22, 1978, is vacated.


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