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Kamla L.M. Harvettaker Vs. Om Parkash - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 245 of 1973 and Civil Miscellaneous Appeal No. 1633 of 1973
Judge
Reported in10(1974)DLT172; 1974RLR247
ActsDelhi Rent Control Act, 1958 - Sections 14(2) and 15
AppellantKamla L.M. Harvettaker
RespondentOm Parkash
Advocates: V.K. Krishana,; K.L. Rathee Bala,; Krishanan and;
Cases ReferredDelhi Cloth and General Mills Co. Ltd. v. Hem Chand
Excerpt:
.....for three consecutive months. proviso is not at all contemplating the same proceedings in which the benefit has already been given to the tenant, like in the present case. thus the argument longhn noval that unless there are three consecutive months default in complying with order passed under section 15, no order for eviction could have been passed, must be rejected as being without merit and clearly against the language of the statute......of law of protection to the tenant conferred by section 14(2), there must be three consecutive months default, and as admittedly there was only one default in the present case, no eviction order could have been passed. in my view the argument is misconconved the scheme of the act is that proviso to section 14(1) gives grounds on which the order for recovery of premises can be passed. clause (a) of proviso to section 14(1) gives the ground of eviction on account of non-oayment of arrears of rent. if in spite of service of notice of demand on the tenant exhibit a-2, the arrears of rent arc not paid as required by clause (a), eviction would have normally followed. however, sub-section (2) of section 14 gives protection to the tenant by providing an exception that inspire of clause (a).....
Judgment:

Rajindar Sachar, J.

(1) This is tenant's second appeal against the judgment of the Rent Control Tribunal by which it passed an eviction order against the appellant from the premises in dispute under clause (a) to Proviso to Section 14(1) of the Delhi Rent Control Act, 1958 (to be called the Act).

(2) The respondent Om Parkash, brought an application for eviction against the appellant from the premises in dispute. The grounds for eviction were non-payment of arrears of rent and also bona-fide requirement by the respondent-landlord owner as well as the substantial damage to the premises. The appellant resisted the application.

(3) The Additional Rent Controller by his order dated 21st September, 1972 held that the respondent was the landlord owner of the premises and that the same had been let out for the residential purposes and were also required by the landlord for residence of self and the members of the family. He also found that as the appellant had not paid or tendered the arrears of rent for the month of February, 1971, as directed under Section 15(1), he was not, thereforee, entitled to the benefit of Section 14(2) of the Act and he consequently directed the eviction of the appellant under clause (a) of proviso to Section 14(1) of the Act.

(4) The tenant filed an appeal before the Rent Control Tribunal who by his order dated July 19, 1973, has affirmed the finding of the Rent Controller that the respondent was the landlord qua the appellant and that there was relationship of landlord and tenant between the parties. The Tribunal disagreeing with the Rent Controller held that the respondent was not entitled to claim eviction on the ground of bonafide requirement under clause (e) to Proviso to Section 14(1) of the Act. He, however, affirmed the finding of the Rent Controller and upheld the order of eviction against the appellant under clause (a) to proviso to Section 14(1) of the Act. Aggrieved against the said order, the tenant has come up in second appeal to this Court.

(5) Mr. Menon appearing for the appellant has not challenged the finding of the courts below that the respondent had become the landlord of the appellant and that there was relationship of the landlord and tenant between the parties. The only ground urged by Mr. Menon was that the appellant was entitled to the benefit of provision of section 14(2) of the Act and an order of eviction under clause (1) to Proviso to Section 14(1) could not have been passed in law. Now clause (a) to Proviso to Section 14(1) states that the Controller may make an order for recovery of the premises on the ground :

'THATthe 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.'

Section 14(2) further reads as under :

'NOorder for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to subsection (1). if the tenant makes payment or deposits 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.'

(6) Exhibit A-2 is the copy of the notice dated 29th April 1970 by which arrears of rent were demanded from the appellant. By this notice the appellant was called upon to pay the arrears of rent with effect from 1st November, 1969 up todate at the rate Rs. 110.00 p.m. The courts below found that the arrears were not tendered within two months of the service of the notice of demand, and this finding was not challenged before me. On 25th November, 1970 an order was passed under section 15(1) by the Additional Rent Controller directing the appellant to deposit the arrears of rent with effect from 1st November, 1969 within one month and to continue to pay the future rent by 15th of the succeeding month. It is not in dispute that the arrears of rent were paid as directed by the Rent Controller. However, the rent for the month of February was deposited only on March 16, 1971, instead of March 15,1971. On 18th April, 1971 the defense of the appellant was struck out by the Additional Rent Controller bit that order was set aside in appeal and the case was remitted back to the Rent Controller. Both the courts have found that the rent for the month of February, 1971. was deposited on 16th March, 1971, though the suggestion was given by the counsel that the application for deposit was prepared and presented on 15th March, 1971, but the same was not entertained by the dealing clerk in the absence of the ejectment petition number. This Explanationn has not been accepted by the courts below which found that the challan of the deposit from the Nazir was issued on 16th March, 1971, and the entry in the 'Amant Register' was also for 16th March. 1971 instead of 15th March, 1971. The appellant also did not state in her evidence that she moved the court on 15th March, 1971 or that she tendered the amount on that date. Nothing has been shown to me how and in what manner this finding of the courts below is incorrect. It must, thereforee, be held that there was a default in complying with the order passed under section 15(1) in so far as the appellant deposited the amount on 16th March, 1971, instead of 15th March, 1971.

(7) Mr. Menon however argued that even on the finding that there was such a default in complying with the order under section 15(1) of the Act the only consequence is set out in Section 15(7) and to attract further consequence of law of protection to the tenant conferred by Section 14(2), there must be three consecutive months default, and as admittedly there was only one default in the present case, no eviction order could have been passed. In my view the argument is misconconved The scheme of the Act is that proviso to section 14(1) gives grounds on which the order for recovery of premises can be passed. Clause (a) of proviso to section 14(1) gives the ground of eviction on account of non-oayment of arrears of rent. If in spite of service of notice of demand on the tenant Exhibit A-2, the arrears of rent arc not paid as required by clause (a), eviction would have normally followed. However, sub-section (2) of Section 14 gives protection to the tenant by providing an exception that inspire of clause (a) of Proviso to Section 14(1) being satisfied, no order for the recovery of possesson of any premises shall be made on the ground specified in clause (a) of the provio to sub-section (1), if the tenant makes payment or deposit as required by section 15. In the present case in spite of arrears not having been paid within two months of notice of demand, there would have been no eviction after the appellant had complied with the order under Section 15(1) by paying arrears had she not further defaulted in the payment of rent of February, 1971. It is at this stage that Mr. Menon seeks to invoke to his aid proviso to section 14(2) by contending that there must be default for 3 consecutive months before eviction could be ordered. I do not appreciate how proviso to section 14(?) has any relevancy to the case of the appellant. If proviso applies the whole of section 14(2) is not attracted and the tenant could not get its benefit. In the present case the appellant has been given the benefit of section 14(2) because no eviction order was passed straightaway against her inspire of clause (a) of proviso to section 14(1) being satisfied and she was permitted to deposit rent as directed in the order passed under section 15(1). Proviso to sub-section 2 of section 14 only comes into play in a case where in an earlier proceeding for eviction brought against the tenant under clause (a) of Proviso to section 14

(1)the tenant has already been given the benefit of making payments as directed by Section 15(1) but he again defaulted in payment of rent of those premises for three consecutive months. Proviso to section 14

(2)envisages a subsequent eviction proceedings in which the tenant may be desirous to take advantage of sub-section (2) of section 14 of the Act, and the circumstances in which it will be denied to him. Thus, even in a subsequent eviction proceedings brought under clause (a) of Proviso to section 14(1), the tenant will be able to take benefit of section 14(2) and the consequent order for deposit of rent under section 15, if he has not defaulted for three consecutive months and not otherwise. Proviso is not at all contemplating the same proceedings in which the benefit has already been given to the tenant, like in the present case. Default in payment of 3 consecutive months mentioned in Proviso to section 14(2) is not in the same proceedings where an order has already been passed under section 15 but in subsequent eviction proceedings where tenant invites an order to bepassed under section 15. In the present case appellant has already got the benefit and thereforee it is pointless to invoke proviso to sub-section (2) of Section 14. The present is a case were the benefit having been given to the tenant to comply with the order under Section 15 there has been adefault by her in depositing the rent by 16th instead of 15th. Thus the argument Longhn Noval that unless there are three consecutive months default in complying with order passed under section 15, no order for eviction could have been passed, must be rejected as being without merit and clearly against the language of the statute.

(8) The next question is whether the default having occurred the Rent Controller could have refused to pass an order of eviction on the ground that the delay was only for one day and was not contumacious In this connection reference may be made to full bench decision of this Court in Delhi Cloth and General Mills Co. Ltd. v. Hem Chand, where it has been held :

'......IFeviction is claimed by the landlord under clause (a) of the proviso to sub-section (1) of Section 14, and the tenant fails to make the payment or deposit as required by Section 15 the Controller shall have no power to condone the delay to have the effect to wipe off the default.'

(9) It was sought to be suggested that as the order under Section 15(7) striking off the defense was set aside by Tribunal it follows that no eviction could be ordered on the basis of that very default must be rejected. because as observed in the above F. B. case 'the order of the Controller refusing to strike out the defense under sub-section (7) of Section 15 in such a case will not have the effect of depriving the the landlord of this right'.

(10) An effort was made by Mr. Menon to distinguish the full bench decision on the ground that in that case the future rent for which the default had been committed was for seven months where as in the present case the default is only for one month. I do not think that this distinction is of any consequence because what was held by the I Air 1079 Delhi 176 full bench was that whenever there is a default in not complying with anorder to pay rent as directed by section 15, eviction has to beordered. There was no qualification or exception that one default could be condoned.

(11) No doubt it is very unfortunate that an order of eviction has to be passed against the appellant for a single default and of one day, but in view of the full bench becision, there is no other alternative.

(12) The result is that the order of the Tribunal would have to be upheld.

(13) Before I part with the case I may mention that C. M. 1633/73 has been filed in which it has been prayed that the case be referred to a larger bench of five judges for reconsidering the full bench decision of Delhi Cloth Mills. In my view I do not find any circumstances to refer the matter to the larger bench and sitting singly I must follow it.

(14) The result is that the appeal fails and is dismissed. But I will allow three months' time to the appellant to vacate the premises. There will be no order as to costs.


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