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Chattar Singh Vs. Banarsi Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 276 of 1973
Judge
Reported in12(1976)DLT195; 1976RLR414
ActsDelhi Rent Control Act, 1958 - Sections 14
AppellantChattar Singh
RespondentBanarsi Lal
Advocates: M.S. Vohra and; M.L. Kapur, Advs
Cases Referred and Delhi Cloth & General Mills v. Hem Chand
Excerpt:
.....of delhi rent control act, 1958 - appeal under section 39 against eviction order on ground of non-payment of rent - whether appellant entitled to subsequent benefit under section 14 (2) against eviction on ground of non-payment of rent - facts revealed in eviction proceedings before controller arrears of rent and rate of rent were admitted by tenant and landlord - controller ordered tenant not be evicted if he paid arrears of rent - order under section 15 (1) passed by consent of parties - such composite order based on consent of parties not contrary to law - appellant had earlier taken benefit under section 14 (2) by escaping eviction on ground of non-payment of rent - as such appellant not entitled to subsequent benefit under section 14 (2) against eviction on ground of non-payment of..........indicate that a composite order on the compromise between the parties cannot be passed, and as held by the supreme court in roshan lal's (supra), the parties are fully entitled to compromise the matter so long as the grounds of eviction remain what are allowed by the statute. mr. vohra has also cited punjab national bank v the rent controller, smt. kamla l.m. harvettaker v. om parkash, and delhi cloth & general mills v. hem chand, but there is nothing in the said authorities to assist the appellant. (9) as a result, i find that the appellant has failed to make out his grounds of attack on the impugned order. there is no merit in the appeal and the same is dismissed with costs.--- *** ---
Judgment:

B.G. Misra, J.

(1) This second appeal under section 39 of the Delhi Rent Control Act, 59 of 1958, (hereinafter referred to as 'the Act'), has been filed by the tenant against the appellate order of the Rent Control Tribunal dated 19th September, 1973, by which it has dismissed the appeal and affirmed the order of the Controller, dated 4th May, 1973, finally ordering eviction of the tenant appellant on the ground of non-payment of rent mentioned in clause (a) of the proviso to subsection (1) of section 14 of the Act, read with section 14(2).

(2) The material facts of the case are that the appellant is a tenant in respect of premises at East Patel Nagar, on a rent of Rs. 3 5.00 per month. On the previous occasion he fell into arrears of rent and a petition for his eviction on the ground of non-payment of rent was instituted. This was disposed of by order of the Controller dated 19th August, 1960 (certified copy of which is Ex. A2 on the file). A detailed reference to this order will be made hereafter, suffice it to say for the moment that the order directed the appellant before me to pay Rs. 1000.00 as rent up to 31st July, 1960 and future rent at the rate of 35.00 per month, month by month by the 15th of each succeeding month ; and in default he was to be evicted. The appellant again fell into arrears for the period from September, 1967 to August, 1970 and the respondent landlord after serving the notice or demand and determination of tenancy (Ex. A3) instituted the petition giving rise to this appeal. The ground of eviction was non-payment of rent specified in clause (a) of the proviso to sub-section 14 of the Act. It was further alleged that the appellant had been in arrears of rent for a consecutive period of three months and that he was not entitled to obtain the benefit of section 14(2) of the Act since he had already obtained the benefit in the earlier proceedings. The appellant contested the petition and raised a number of objections which were all repelled and the order for eviction was passed by the Controller, which was affirmed by the Rent Control Tribunal. One of the defenses raised by the appellant that he had paid rent for the period in dispute was disbelieved by both the authorities below and the same being concluded by findings of fact has rightly not been agitated before me.

(3) Mr. Vohra, learned counsel appearing to support the appeal, has raised one main contention, namely, the previous order (Ex. A2) dated 19th August, 1960 can, in the circumstances of the case, not be deemed to be appellant having obtained the benefit under section 14(2) of the Act and as such the authorities below must have afforded another benefit against eviction to the appellant in the instant case The previous order (Ex A2) is reproduced below:

'ANapplication for the eviction of the tenant has been made on the ground of non-payment of rent. The respondent has appeared and stated that an order for his eviction be passed on the ground of nonpayment of rent. As agreed by the parties, if the respondent tenant pays Rs 1000.00 by 19.2.1961 and she future rent @ Rs. 35.00 month by month by 15th of each succeeding month, then he will not be ejected. The parties will bear their own costs. In the sum of Rs. 1000.00 the rent up to 31.7.60 is included.'

(4) The criticism of the learned counsel for the appellant of this order is that the Controller did not pass an order under section 15(1) of the Act which he was bound to do and that the order was passed on compromise of the parties and that it should have been followed by a final order dismissing the pettion on the ground of compliance with the order of payment under section 15(1) of the Act. Reference to Section 15(1) of the Act would show that in every proceeding forthe 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 is required, after giving the parties an apportunity of being heard, to 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 rent were legally recoverable from the tenant including the peroid subsequent there to 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. Sub-section (6) of section 15 says that if a tenant makes a deposit as required by sub- section (1)......... no order shall be made for recovery of possession on the ground of default in the payment of rent by the tenant .. ...Sub-section (7) provides that 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.

(5) In my opinion, the requirement of section 15(1) is that in a proceeding for eviction on the ground of non-payment of rent, the Controller is, after giving the parties an opportunity of being herd, required to make an order directing the tenant to pay the arrears of rent that were legdlly recoverable at the rate at which it was last paid within one month and also future rent. The Controller has thereby to fix the period for which the arrears were due after hearing both the parties. If these conditions are satisfied the order of the Controller would be a valid order under section 15(1) of the Act. In the aforesaid order in this case, the rate of rent is fixed; the period for which the arrears were due is determined; and only the time for payment had been extended beyond one month to about six months. This order had been passed by consent of the parties as is apparent from the order. No illegality or infirmity attaches to it. In Roshan Lal v. Madan Lal, the Supreme Court held that it was not tenable to argue that provisions of Order 23 Rule 3 of the Code of Civil Procedure did not apply to special statutes. The court has also observed that the orders and decrees of the court if based on admissions of the party were perfectly legal and valid if the grounds of eviction admitted by the tenant were not contrary to the provisions of the law. Applying the ratio of this authority, it would appear that the arrears of rent and the rate of rent were admitted by the tenant as well as by the landlord and the court was, thereforee, fully justisfied in accepting the same and passing its order on the basis of the agreement. The court was also fully entitled to give a longer time to the tenant to deposit the amount if both the parties had agreed to the same. The order is, thereforee, in full accord with the provisions of law and is legally valid.

(6) Mr. Vohra has further argued that it was necessary for the Controller to pass two orders; one under section 15(1) and the other under section 15(6) or under section 43 of the Act, finally disposing of the eviction petition. This argument is also falacious. All procedure is open to the court unless prohibited by law. The Controller has passed an order for eviction on the admission of the tenant, but has further ordered that he will not be evicted if (as is laid down in section 15(6)) he paid the amount according to the order. Such a composite order is clearly legal and valid particularly when it is based on the consent of the parties and is not contrary to any of the provisions of the Act. I may add here that during those days, it was the usual practice before the Controller and the Tribunal to pass such orders directing the payment of the arrears of rent and that if the same were not paid then eviction was to follow ; otherwise eviction petition was to be dismissed. The appellant before me has taken the fullest advantage of the said order and, thereforee, cannot challenge it as invalid. This leads us to the conclusion that under the said order the appellant has legally taken the benefit by escaping eviction on the ground of non-payment of rent by paying the arrears of rent according to his request and order of the Controller. This would clearly amount to benefit obtained under section 14(2) of the Act on the first occasion. In view of this finding, the appellant would not be entitled to a subsequent benefit against eviction on the ground of non-payment of rent laid down by the proviso to sub-section (2) of section 14 of the Act.

(7) The counsel for the parties have addressed lengthy arguments on the question as to what is the meaning and effect of the first benefit. In Smt. Sumitra Rani v. M/s Benret Coleman & Co. Ltd., and The Life Insurance Corporation of India v. Meghraj Mamulal, P.N. Khanna J. observed that if the petition for eviction on the ground of non-payment of rent was dismissed without there being an order passed under section 15(1) of the Act, the tenant had not only taken the benefit of escaping eviction, but also saving the inconvenience of further hearings in the matter and the law had been substantially complied with and it constituted the obtaining of the first benefit so as debar the obtaining of the subsequent benefit. Prithvi Raj J. in Ram Parkash v. Jagmohan Khanna, also took substantially the same view and the distinguished the decision of D.K. Kapur J. Mr. Vohra for the appellant has relied upon two decisions of D.K. Kapur J. in Rama Gupta v. Rai Singh Kain, and Tula Ram v. B.K. Aswami. In the first case it was held that the withdrawal of the first petition did not constitute any benefit and in the second case it was held that dismissal of the petition on compromise did not constitute a benefit. The cases where the benefit on the earlier occasion has been held not to have been obtained relate to cases where the petition had been dismissed as withdrawn or compromised without a legal order by the Controller. In paragraph 6 of the judgment in Ram Gupta's case (supra) my Lord Justice Kapur has himself observed that in Bhoj Datta v. Brij Narain Bagai, a case decided by him, he had held that 'when a conditional order of ejectment was passed, the condition being that the ejectment would be satisfied if the rent up to a particular date was paid to the landlord by the terant within the time mentioned in the order and that condition was eventually satisfied and eviction did not take place, it was a case of a tenant getting a benefit equivalent to that mentioned in section 14(2)'. His Lordship also observed that in such a case the order really amounted to the landlord extending the time which the Controller had given under section 15(1) of the Act. The aforesaid observations more aptly apply to the facts of the instant case. In the instant case, I do not have the slightest dout that the previous order (Ex. A 1) was clearly an order under section 15(1) of the Act and it satisfies all its essential requirements. The order is a composite one as finally disposing of the petition itself. There can, thereforee, be no doubt that the decisions of D.K Kapur J. on which the counsel for the appellant relies, do not help the appellant and the instant case turns on its own facts.

(8) Mr Vohra has lastly contended that in V.N. Vasudem vs. Kirort Mal, the court held that the proceedings do not terminate with the passing of the order under section 15(1) of the Act and that a final order would still have to be passed, but the said authority does not in the least indicate that a composite order on the compromise between the parties cannot be passed, and as held by the Supreme Court in Roshan Lal's (supra), the parties are fully entitled to compromise the matter so long as the grounds of eviction remain what are allowed by the statute. Mr. Vohra has also cited Punjab National Bank v The Rent Controller, Smt. Kamla L.M. Harvettaker v. Om Parkash, and Delhi Cloth & General Mills v. Hem Chand, but there is nothing in the said authorities to assist the appellant.

(9) As a result, I find that the appellant has failed to make out his grounds of attack on the impugned order. There is no merit in the appeal and the same is dismissed with costs.

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