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Daya Singh Vs. Bhagwan Singh and Sons and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 183 of 1971
Judge
Reported in12(1976)DLT305; 1976RLR539
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantDaya Singh
RespondentBhagwan Singh and Sons and ors.
Advocates: F.C. Bedi,; S.K. Puri and; P.C. Khanna, Advs
Cases ReferredRatan Lal Gir v. Farshi Bibi. Applying
Excerpt:
.....cause of action for passing order under section 15 (1) - notice of demand need not be confined to legally recoverable amount - landlord free to demand such rent as he bona fidely believed it to be legally due to him - notice had not exhausted itself since it was never complied with by tenant nor was it waived by landlord by express or implied act on his part - no legal bar for instituting petition for eviction on basis of old notice - held, petition not dismissed as based on stale cause of action. - - the controller allowed the said application and repelled the contention of the respondents that the notice of demand referred to above had exhausted itself and was not available to constitute a good cause of action for passing of an order under section 15(1) of the act. (4) reference..........objection of the respondents that the notice relied upon by the appellant did not claim arrears of rent legally recoverable in the petition and as such could not form the basis of an order under section 15(1) of the act. this order of the tribunal has been challenged in this appeal. (4) reference may be made to clause (a) of the proviso to subsection (1) of section 14 of the act as well as section 15(1) of the act. they respectively read as follows : '14(1)(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 (4 of 1882); 15(1): in.....
Judgment:

B.C. Misra, J.

(1) The material facts in the appeal are that the respondents are tenant in respect of a shop in Connaught Place on a rent of Rs. 90.53 per month. On 17th November, 1963 the appellant landlord served a notice on the respondents requiring them to pay arrears of rent for the period from September, 1962 to October, 1963. It is the admitted case of the parties that the said notice had not been complied with within the period of two months as required by clause (a) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 59 of 1958 therein referred to as the Act nor has the same been paid even by now.

(2) On 8th April, 1969 the appellant landlord filed the petition for eviction on the ground of non-payment of rent and unlawful subletting, the grounds mentioned in clauses (a) and (b) of the proviso to sub-section (1) of section 14 of the Act. Since the eviction has been sought on the ground mentioned in clause (a) the controller was required by section 15 of the Act to pass an order for deposit of arrears and future rent. The appellant landlord, however, filed an application on 27th October, 1969 requesting the Controller to pass an order for payment of arears which were legally recoverable. On that date, it is not disputed, that the arrears only for the period from first April, 1969 were legally recoverable and the arrears for the previous period were barred by time and could not be recovered in a court of law. The respondents were, however, liable to pay future rent from the date of the order as provided by section 15 of the Act. The Controller allowed the said application and repelled the contention of the respondents that the notice of demand referred to above had exhausted itself and was not available to constitute a good cause of action for passing of an order under section 15(1) of the Act.

(3) Feeling aggrieved, the respondents filed an appeal before the Tribunal, which reversed the order and accepted the objection of the respondents that the notice relied upon by the appellant did not claim arrears of rent legally recoverable in the petition and as such could not form the basis of an order under section 15(1) of the Act. This order of the Tribunal has been challenged in this appeal.

(4) Reference may be made to clause (a) of the proviso to subsection (1) of section 14 of the Act as well as section 15(1) of the Act. They respectively read as follows :

'14(1)(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 (4 of 1882); 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 rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the months 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.'

(5) The scheme of the Act appears to be that the landlord is required to serve the notice of demand for the arrears of rent on the tenant in the manner provided by section 106 of the Transfer of Property Act. The tenant by clause (a) has been given the right and option to pay or tender the arrears of rent which be legally recoverable from him within two months of the date on which the notice had been served on him. The requirement of law is not that the landlord must demand only the legally recoverable arrears of rent. In fact, so far as the landlord is concerned he is entitled to contend that even the time barred rent is payable to him and although his remedy to receive the same may be barred, still his right to obtain the same remains in tact, since limitation bars the remedy and does not, unless otherwise provided by the law, extinguish the right. In a Full Bench decision Rullia Ram Hakim Rai v. S. Fateh Singh, the High Court of Punjab held that the landlord could serve a notice demanding time barred rent as well and the tenant in order to escape eviction was bound to pay the whole of it. Under the Delhi Rent Control Act, the provision for payment by the tenant is different and the tenant is not required to pay anything more than what was legally recoverable. The expression legally recoverable would apply to the rent the payment of which is not prohibited by law or which could be recovered by a suit.

(6) Again there may be genuine and bona fide dispute between the landlord and tenant, e.g., some amount may have been deposited by the tenant with the Controller under section 27 of the Act, which the landlord may not have realised or known about, or the tenant may be entitled to some adjustment, i.e., under section 13 of the Act, or there may be some genuine dispute about the contractual rate of rent or the period for which it was due. Under the circumstances, to held that the tenant can escape the fulfillment of his obligation to pay the rent by pointing out any technical default in the notice of the landlord would be to place a premium on a defaulting tenant and its result would be wholly undesirable. In Lalshankar Mulji Joshi v. Kantilal Mohanlal Parikh, the Bombay High Court found that a notice could not be invalid merely because the rent had been demanded for the month for which it was not due. It was observed that it was well settled that a liberal construction should be put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of the expiry of the notice ; and that the test of its sufficiency was not what its contents would mean to a stranger ignorant of all the facts and circumstances touching the premises to which the notice purported to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances and the mistakes should not be construed with a desire to find faults. In this decision the High Court purported to follow a decision of the Supreme Court in Raghunath Ravji Dandekar v. Anand Narayan Apte, decided on 5th April, 1966 where their Lordships of the Supreme Court while considering the validity of a notice, which demanded Rs. 7,000.00 when actually, according to the courts below only Rs. 6.900.00 were due observed that they were not able to understand how the notice to quit under the Transfer of Property Act would be had because of a mistake or oversight in demanding more than was due under section 12(2) of the Rent Act.

(7) Section 26 of the Act casts a duty on the tenant to pay the arrears of rent regularly every month within 15 days of its becoming due and if the landlord fails to accept the tendered rent, the tenant has been given the option to deposit it with the Controller within a period of 21 days in accordance with the provisions of section 27 of the Act. The notice envisaged by clause (a) section 14(1) is only intended to act as a reminder to the tenant that he has failed to fulfill his obligation to pay the rent and to receive notice that if he does not avail of the locus potentiate to pay arrears within a period of two months from the receipt of the notice, legal proceedings for his eviction in accordance with law are likely to be instituted.

(8) It, thereforee, follows that the notice of demand, if otherwise bona fide need not be confined to the legally recoverable amount. For compliance with it the right of the tenant under the Act is to pay or tender the legally recoverable amount only and that too within two months of the date of the service of the notice.

(9) Similarly, section 15(1) casts a duty upon the Controller to hear the parties and then direct the tenant to pay to the landlord or deposit with the Controller within the time allowed the amount calculated at the rate of rent at which it was last paid, including the period subsequent thereto up to the end of the months previous to that in which payment or deposit is made. This provision again does not take into consideration the legality or validity of the notice of demand which lays down that the validity of the notice is not to be considered at the time of passing of an order under section 15 of the Act. If the validity of the notice is not to be considered at that stage and the Controller has to arrive at his own finding with regard to the rate of rent, the period for which the arrears be due after hearing the parties, then the duty is cast upon the Controller to order the payment of only so much of the rent as be legally recoverable from the tenant and he has no jurisdiction to order the payment of the rent which be barred by time, or otherwise not legally recoverable, for instance, where the limit to sue has expired, standard rent may during the period may have been fixed ad interim or otherwise and the tenant is excused from paying more than the standard rent.

(10) Consequently the law does not impose an obligation upon the landlord to demand in the notice only the legally recoverable rent. He is free to demand such rent as he bonafide believes legally and properly due to him but the duty is cast upon the Controller by the provisions of sub-section (1) of section 15 of the Act, aswell as sub-section (2) of the said section for ordering payment of only legally recoverable rent from the tenant. As such the argument that notice of demand must also be in respect of the legally recoverable rent is fallacious and is not supported by the scheme or language of the statute or any authority.

(11) The matter may be looked at from another point of view. As has been held by this court in Subhash Chander v. Rehmat Ullah, no period of limitation applies to the petitions for eviction. Under clause (a) the landlord is required to serve a notice of demand. If the landlord serves that notice some amount of rent may possibly become time barred during the currency of the notice or the interval, which may intervene between the service of the notice and the filing of the petition for eviction. In such a case the notice may never cover the whole of the legally recoverable rent due on the date of petition and some part of the arrears of rent which may validly be due on the date of the notice may turn out not to be legally recoverable on the date of the petition. This only shows that words legally recoverable occurring in sections 14 and 15 of the Act apply to the situations envisaged by the statutory provisions alone and they cannot by analogy or otherwise be extended to govern the contents of notice which the landlord is required to serve, nor can the validity of the notice be tested by the provisions of the Limitation Act.

(12) The notice of demand and the notice to quit furnish the cause of action. Such a notice does not become ineffective or exhausted unless and until it is either complied with by the tenant or it has been waived by the landlord by any express or implied act on his part; for instance the acceptance of rent and assent to the subsistance of the lease or issuance of a subsequent notice in conffict with the previous notice or it may have merged in the institution of proccedings and the decree or decision of the court. In other words, unless and until the notice is complied with by the tenant or expressly or implied with drawn by the landlord or is extinguished by an act or order of the court, the notice remains alive and the cause of action remains effective. In cases occurring under section 116 of the Transfer of Property Act it has been held that once a notice to quit has been given and the contractual tenancy has been terminated, the tenant becomes a statutory tenant and the contractual tenancy is not restored unless and until the landlord assents to a fresh contract of tenancy and the mere payment of rent or even issuance of a second notice does not supersede the determniation of the tease. Reference may be made to Bhawanji Lakhamshi v. Himatlal Jamnadas, where their Lordships considered their earlier decisions reported as Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden, Ganga Dutt Murarka v. Kartik Chandra Doss', Mangilal v. Sugam Chand, and Manujendra Dutt v. Prosad Roay Choadhary. Again in Pritibat Devi v. Banke Bihari Lal, the Division Bench of the High Court held that mere delay in instituting an action for ejectment by the landlord did not amount to his assent to the continuance of the tenant's possession and a new tenancy as contemplated by section 116 of the Transfer of Property Act did not come into existence. This decision referred to an authority of the supreme Court in Ganga Dutt Murarka v. Kartik Chandra Das, where it was observed that upon the determination of the lease, it is the duty of the lessee to deliver up possession and if he continues in possession the landlord has a right to eject him forthwith and if he does not and there is neither assent or dessent on his part for continuance of occupation of such person, the later becomes a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. Reference may also be made to Ratan Lal Gir v. Farshi Bibi. Applying the analogy, I am of the view that mere delay on the part of the landlord to follow his notice by institution of eviction proceedings does not give the lessee any right makes the notice ineffective, stale or non est and the same continues to be valid and effective, unless otherwise provided by any statute, particularly when there is no period of limitation prescribed for instituting a petition for eviction.

(13) In the circumstances of the case, there is no doubt that the notice dated 17th November, 1968 was issued in respect of rent from September, 1962 to October, 1963, which were admittedly due and legally recoverable on the date of the notice. The notice has not exhausted itself since it has never been complied with by the tenant nor has the said notice been waived by the landlord by any express or implied act on his part which may have the effect of with drawing the notice. For institution of a petition for eviction there is no limitation prescribed. As such, there is no legal bar to the institution of a petition for eviction on the basis of the old notice. The penalty that the landlord suffers and he has suffered in the instant case is that he cannot obtain an order from the Controller for payment of any arrears of rent which be not legally recoverable on the date of the filing of the petition and he must lose the rent for the time they were time barred. But the petition for eviction was valid and legally maintainable and there is no scope for unjustifiable extending any principle of law and import a concept of legally recoverable in the notice without the mandate of any statutory provision. In the instant case, the petition could not be dismissed on the ground that it was based on any stale cause of action, since, in my opinion, the cause of action still survived and it had not become infructuous or barred by any provision of law. I agree with the reasoning and conclusion of the court of first instance and reverse the appellate order of the Rent Control Tribunal.

(14) As a result, the appeal is allowed. The order of the Rent Control Tribunal is set aside and the order of the Controller is restored. The order of the Controller passed under section 15(1) of the Act is confirmed. As the time for deposit of rent allowed by the Controller has since expired, the respondents are given one month's from today to comply with the order in accordance with law. The respondents will pay to the appellant costs of this appeal.


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