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Mehrose Ice Cream Afrozen Food Company Vs. Jaswant Rai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 213 of 1977
Judge
Reported in15(1979)DLT364; 1979RLR432
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Transfer of Property Act, 1882 - Sections 114
AppellantMehrose Ice Cream Afrozen Food Company
RespondentJaswant Rai
Advocates: F.C. Bedi and; Ravinder Sethi, Advs
Cases ReferredBhoj Dutta v. Brij Narain
Excerpt:
.....the arrears of rent 'within one month of the date of the order' and also to pay or deposit current rent month by month and after making such an order, the controller must under section 14(2) of the act wait atleast for one month before proceedings to make an order for recovery of possession and in as much as the controller had passed at one and the same time as the order under section 15(1) without allowing an interval of one month, the provisions of section 14(2) of the act were rendered nugatory. the objection raised by the tenant as to jurisdiction was over-rule and an appeal preferred to the rent control tribunal was also dismissed and hence the instant second appeal was filed :; 1. that by the strict letter of the law, after making an order under section 15(1), the..........the arrears of rent 'within one month of the date of the order', and. also to pay or deposit current rent 'month by month'. it was argued that after making such an order, the controller must wait atleast one month before proceeding to make an order for recovery of possession,, because section 14(2) says : 'noorder 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'.there is no proviso to that sub-section which is not relevant. in the present case, it was submitted, the order for recovery of possession. had been passed at one and the same time as the order under section 15(1), without allowing an interval of one month, thus, rendering.....
Judgment:

T.P.S. Chawla, J.

(1) This is a second appeal under section 39 of the Delhi Ren,t Control Act 1958 (the 'Act') and the relevant facts are as follows.

(2) A firm called Mebrose Ice Cream and Frozen' Food Company was the tenant of two shops, and appurtenances, on the ground floor of the market at Greater Kailash, New Delhi. Jaswant Rai was the landlord. On 19th July 1971, the landlord applied under section 14(1)(a) of the Act for an, order for recovery of possession on' the gronud that the tenant had not paid arrears of rent. The tenant entered appearance on 25th August 1971 and sought more time to file a written statement. Adjournments for this purpose werc granted five times, but no written statement was filed. On the last occasion the case was fixed for filing of a written statement on 28th October 1971. No one appeared on behalf of the tenant on that day. Consequently, an order to proceed ex parte against the tenant was made, and the landlord was directed to produce his evidence on 30th October 1971. After the landlord's evidence had been recorded. the matter was adjourned for hearing arguments on 5th November, 1971, on which date judgment was reserved. An order for recovery of possession was passed by the Additional Controller on 11th November 1971.

(3) There was no appeal against that order, but on 21st December 1971 the tenant applied for setting it aside. On this application there were protracted proceedings. Ultimately, it was dismissed on 18th February 1975. It was held that there was no sufficient cause for the non-appearance of the tenant on 28th October 1971. An appeal against this order to the Rent Control Tribunal was dismissed on 8th December 1976. No second appeal was filed.

(4) Then, the landlord tried to execute the order for recovery of possession. He was met with an objection filed by the tenant on 10th February 1977 that the order for recovery of possession, was a nullity as it had been made without jurisdiction, and, thereforee, could not be executed. The objection' was overruled on 28th February 1977. An appeal to the Rent Control

(5) In his orderor recovery of possession the Additional Controller found that arrears of rent were due from the tenant, and had not been paid or tendered to the landlord despite service of a notice of demand. He then said :

I, allow the petition, under Section 14(l)(a) arid order the respondent to deliver possession of the premises in dispute to the petitioner. However, in case the respondent company deposits in court or pays to the petitioner a-sum of Rs. 14,000.00 as arrears of rent up to 30-6-1971 and arrears of rent at the rate of Rs. l,700.00 with effect from 1-7-71 up todate within one month from the date of this order, then in that case the respondent company shall be entitled to the benefit of Section 14(2) and shall in that case shall (sic) not be liable to eviction under clause (a) of Section 14(1). The order is passed ex parte with costs assessed Rs. 30.00 .'

Admittedly, the tenant did not pay or deposit arrears of rent in, accordance with this order or at all.

(6) It was contended on behalf of the tenant before the authorities below, and is likewise contended here, that this order is a combination of two orders in one and violates section 14(2) of the Act. Hence, it was said to be a nullity as being in excess of jurisdiction.

(7) In every proceeding for recovery of possession on the ground mentioned in section 14(1)(a), the Controller is required by section 15(1) to make an, order directing the tenant to pay or deposit the arrears of rent 'within one month of the date of the order', and. also to pay or deposit current rent 'month by month'. It was argued that after making such an order, the Controller must wait atleast one month before proceeding to make an order for recovery of possession,, because section 14(2) says :

'NOorder 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'.

There is no proviso to that sub-section which is not relevant. In the present case, it was submitted, the order for recovery of possession. had been passed at one and the same time as the order under section 15(1), without allowing an interval of one month, thus, rendering section 14(2) nugatory.

(8) The same point was also put in another way. It was said that in' the very first sentence of the passage which I have quoted, the Additional Controller had made an order for recovery of possession and was functus ofiicio immediately thereafter. He could not, thereforee, go on to impose the condition subsequent stated in the next sentence, on' the fulfillment of which the order for recovery of possession was to cease to have effect.

(9) I agree that by the strict letter of the law, after making an order under section 15(1), the Controller must wait for a month to see whether that order is complied with or not. It is only then that it can be known whether the bar in. section 14(2) is to prevail. The joint effect of those two sections is to afford relief to the tenant where otherwise he is exposed to an' order for recovery of possession. They are reminiscent of section 114 of the Transfer of Property Act 1882 which is entitled 'Relief against forfeiture for non-payment of rent', and achieve a similar purpose. It is worth noting that' the side-note of section 15 reads: 'When a tenant can get the benefit of protection, against eviction'.

(10) But from this it does not follow that an order under section 15(1) conjoined with a conditional order for recovery of possession in invalid. Of course, the condition envisaged is that the order for recovery of possession shall have effect only after one month if, within that time, the order under section 15(1) has not been obeyed. Such composite orders have been frequently made, and have almost become a practice : They save unnecessary hearings and a prolongation of the proceedings:

(11) I repeatedly invited counsel for the tenant to state what prejudice a combined order had caused to his client. All that lie was able to say, after a full opportunity for consideration, was that if two separate orders had been made at different times his client would have been able to file two separate appeals, whereas, now, he had been able to file only one. Far from working to the prejudice of the tenant, surely, this is to his advantage. An appeal against a combined order enables him to contest each of the component parts. Thus, the tenant is able to secure in one appeal the same result that he might have got by two. I, thereforee, conclude that a combined order causes no prejudice to the tenant. At any rate, none was revealed to me.

(12) However, the question still remains as to whether such an order is legally valid. Counsel for the tenant cited In that case the tenant agreed that if he failed 'to pay in future the rent due for a month on or before the 10th of the succeeding month', the landlord may take possession of the premises forthwith. An order was made accordingly. There was nothing to suggest that any arrears of rent were due. The judge held that under the Rent Control Act in force in Madras an order for recovery of possession could only be passed if one of the grounds mentioned in the Act was established. Accordingly, respecting the case in hand, he said 'the Rent Controller had the jurisdiction to direct eviction, only if he found, as a fact, that the tenant had committed willful default in the payment of rent for the period preceding the application. By the consent order, the tenant had, in effect, 'renounced' his rights under the Act which was not permissible.

(13) It was in this context that the judge said the Rent Controller 'has no power to direct eviction on the basis of an anticipatory default'. Nevertheless, he made it clear that if arrears of rent had been found to be due, a conditional order of eviction could have been lawfully made. This appears from' the last paragraph of the judgment where he says :

If, this case, the joint endorsement had admitted that the tenant had committed default in the payment of rent and was thereforee liable to eviction, and if further an eviction order had been passed by the Rent Controller with a condition that it would remain suspended so long as the tenant continued to pay the rent regularly in future, and would come in,to force the moment he committed default it would perfectly be an enforceable order. But, unfortunately, that is not the case here.'

So, this case actually goes against the contention urged on' behalf of the tenant.

(14) In Chattar Singh v. Banarsi Lal, 1976 R.C.R. 641, a combined order of the same kind as the one presently under consideration' was passed by consent. It was subjected to the same criticism. The gist of the argument was that two separate orders, chronologically removed by one month, should have been, passed. B. C. Misra, J. rejected the argument saying 'All procedure is open to the court unless prohibited by law', and mentioned that such orders had become a 'usual practice'. He added that 'Such a composite order is clearly legal and valid praticularly when it is based on the consent of the parties and is not contrary to any of the provisions of the Act'. I agree with his reasons and his conclusion. It was argued that his judgment rested solely on the ground that the order there in question was made by consent. That is not so. He has in terms held that even otherwise the order was perfectly valid in' law.

(15) It is true that in Mohinder Singh v. Lajwanti, 1976 R.L.R. 62. D. K. Kapur, J has made some observations to the effect that a conditional order for recovery of possession cannot be made under the Act. But there is no discussion of the point, and it does not appear to have been fully argued. The main question in that case was as regards the mode of fixing interim ren,t under section 15. Besides, the whole judgment seems to have been delivered obiter, because, as the judge himself acknowledged, the appeal by the tenant had become 'infructuous' for he had already been evicted. On an earlier occasion, in Bhoj Dutta v. Brij Narain, Bagai, 1972 R.C.J. 293, the same learned judge was called upon to interpret a conditional order for recovery of possession, though in a rather different connection. There is nothing in that judgment to suggest that he thought such an order to be invalid.

(16) The alternative way in which counsel for the tenant stated his submission, gives too much importance to the literal meaning of the order. If the sequence of the two sentences that I have quoted from the order of the Additional Controller had been reversed, counsel would have had practically nothing to say. I would accept that having regard to the scheme of the Act, the correct way in which to frame a conditional order is to direct the tenant to pay or deposit the arrears of rent within one month, and then to add that in the event of non-payment within that time an order for recovery of possession would be deemed to have been passed. In substance, -this is really what the Additional Controller has done and obviously intended to do. Through oversight he has inverted the sequence. The order itself indicates that he had both section 15(1) and section 14(2) in mind. And, it is the substance which matters, not the mere form :

(17) For these reasons, I am not persuaded that the order made by the Additional Controller is a nullity or without jurisdiction. In any case, even had I reached the opposite conclusion the point could not have succeeded as an objection taken in the course of execution proceedings. Although the objection that a decree or order was made without jurisdiction can be taken' at any stage and in any proceeding, the plea must pertain to an 'inherent lack of jurisdiction' rendering the court 'incompetent to try' the case: Even' then the objection can be entertained only if it is patent on the fact of the record, and the court will not investigate into questions of fact: The contention that a decree or order is contrary to law does not go to jurisdiction, and is not entainable in the course of execution proceeding's. It may have been a good ground of appeal. Thus, if a suit is decreed though barred by time, the decree is executable notwithstanding the illegality:

(18) Counsel for the tenant cited some cases for the proposition that a decree which does not comply with or violates i mandatory provision of law is a nullity and cannot be executed : To the extent that those cases contain any observations not in harmony with the judgments of the Supreme Court to which I have just referred, they cannot be followed.

(19) In essence the argument of counsel for the tenant was that the order made by the Additional Controller violated section 14(2) of the Act, in that, in order for recovery of possession had been made without giving the tenant an opportunity to comply with an order under section 15(1). In my opinion, on a common sense construction, the order for recovery of possession was not intended to have effect unless the tenant did not pay the Specified arrears of rent within' one month. But even supposing it has to be read in a strictly literal way, the remedy was by appeal and not an objection in execution.

(20) This appeal is, thereforee, dismissed with costs. Counsel's fee Rs. 300.00 .


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