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Mohammadatique Siudiqui Vs. Anusahmed - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 306 of 1972
Judge
Reported in10(1974)DLT215; 1974RLR422
ActsDelhi Rent Control Act, 1958 - Sections 15
AppellantMohammadatique Siudiqui
RespondentAnusahmed
Advocates: G.N. Aggarwal and; V.B. Andley, Advs
Cases ReferredM. L. Ahuja v. Lachman Dass
Excerpt:
.....present case, on an application made by the tenant for fixation of standard rent, the additional rent controller fixed the interim rent on march 7, 1972, at rs. 55/- per month, by consent of parties, although the agreed rent was admittedly rs. 110/- per month, and he also directed that the said interim rent of rs. 55/- per month should be paid by the tenant from august 17, 1971, the date of institution of the application. in the meantime, on november 3, 1971, the landlord filed on application for eviction of the tenant under section 14. on march 22, 1972, the additional controller shri v. s. aggarwal, passed the impunged order under section 15(1) of the act directing the tenant to pay arrears of rent at the rate of rs. 110/- per month from september 1, 1971, up to the date of the order..........act, 1958, for fixation of the standard rent. in that proceeding, shri v. s. aggarwal, additional rent controller, delhi, passed an order on march 7, 1972, under section 10 of the act fixing, by consent of the parties, interim rent for the premises at rs. 55.00 per month during the pendency of the application for fixation of standard rent. the order stated that the interim rent was fixed with effect from august 17, 1971.(4) then, on march 22, 1972, the application for eviction came up before the additional controller for passing an order under section 15(1) of the delhi rent control act, 1958, regarding the payment of arrears of rent. it was contended on behalf of the appellant- tenant that the interim rent had already been fixed at rs. 55.00 per month under section 10 of the act and,.....
Judgment:

T.V.R. Tatachari, J.

(1) This Second Appeal against Order has been filed by Mohd. Atique Siddiqui against an order, dated October 20, 1972, of Shri G. C. Jain, Rent Control Tribunal, in Rent Control Appeal, R.C.A. No. 316 of 1972, whereby an order, dated March 22, 1972, passed by Shri V. S. Aggarwal, Additional Controller, Delhi, in Suit No. 83 of 1972, directing the appellant herein to deposit arrears of rent at the rate of Rs. 110.00 P.M. was affirmed.

(2) The respondent Munshi Anus Ahmed, filed an application under Section 14 of the Delhi Rent Control Act, 1958, for eviction of the appellant herein from the suit premises, inter alias on the ground that the appellant had not paid arrears of rent in spite of a demand. It was alleged in the application that the appellant had not paid the arrears of rent from April 1, 1971, at the agreed rate of Rs. 110.00 per month despite service of a notice of demand. In his written statement, the appellant admitted the relationship of landlord and tenant between himself and the respondent. He, however, pleaded that the standard rent of the premises could not be more than Rs. 10.00 per month, that rent from April 1, 1971, to August 31, 1971, at the rate of Rs. 110.00 per month was paid on September 2, 1971, but no receipt was given to him by the respondent and that the ground of non-payment of arrears of rent was not available to the respondent as the latter had already received the arrears of rent and there was no notice for the subsequent period demanding the arrears of rent for the said period.

(3) The appellant-tenant had earlier filed an application on August 17, 1971, under Section 9 of the Delhi Rent Control Act, 1958, for fixation of the standard rent. In that proceeding, Shri V. S. Aggarwal, Additional Rent Controller, Delhi, passed an order on March 7, 1972, under Section 10 of the Act fixing, by consent of the parties, interim rent for the premises at Rs. 55.00 per month during the pendency of the application for fixation of standard rent. The order stated that the interim rent was fixed with effect from August 17, 1971.

(4) Then, on March 22, 1972, the application for eviction came up before the Additional Controller for passing an order under Section 15(1) of the Delhi Rent Control Act, 1958, regarding the payment of arrears of rent. It was contended on behalf of the appellant- tenant that the interim rent had already been fixed at Rs. 55.00 per month under Section 10 of the Act and, thereforee, the tenant was liable to pay arrears of rent under Section 15(1) of the Act at the rate of Rs. 55.00 per month only. But, by his order, dated March 22, 1972, Shri V. S. Aggarwal, Additional Controller, held that under Section 15(1) of the Act an order has to be made directing the tenant to pay the landlord or deposit in Court the rent calculated at the rate at which it was last paid, and that the fact that interim rent was fixed at Rs. 55.00 per month under Section 10 of the Act in the proceedings for fixation of standard rent was immaterial. Dealing next with the contention on behalf of the tenant that rent from April 1, 1971, to August 31. 1971, had already been paid, the learned Controller observed that the said alleged payment was denied by the landlord and the same was, thereforee, a matter to be determined on evidence later one, and that since there was no plea of payment for the subsequent period, i.e. from September 1, 1971, onwards, the tenant must be held liable to suffer an order under Section 15(1), and the question of notice of demand for the said subsequent period could be considered at the stage of evidence. Accordingly, he ordered that the appellant-tenant shall deposit arrears of rent -at the rate of Rs. 110.00 per month from September 1, 1971, up to the date of the order, and the rent for the subsequent period shall be paid by the fifteenth day of each succeeding month.

(5) Against the said order, the tenant preferred an appeal, R.C.A. No. 316 of 1972, to the Rent Control Tribunal, Delhi. The landlord also filed cross-objections in which he contended that there was nothing on the record to show that the tenant had paid the arrears of rent for the period April 1, 1971, to August 31, 1971, that the onus of proving the payment was on the tenant and, thereforee, the Controller should have directed the tenant to deposit the arrears of rent with effect from April 1, 1971, onwards.

(6) By his order, dated October 20, 1972, the Tribunal Shri G. C. Jain, held that in view of the decision in M. L. Ahuja. v. Lachhman Das, 1970 R.C.R. 347 the tenant was liable to pay rent at the rate at with it was last paid and, thereforee, the order of the Controller was correct. As regards the cross-objections, the Tribunal held that in view of the decision of this High Court in Shrimati Kulwant Kaur v. Shri Jiwan Singh, S.A.O. No. 91 of 1971, (1) decided on November 4, 1971, no order could be passed in respect of the period April 1, 1971, to August 31, 1971, as there was a dispute about the amount payable, and in such a case no order could be passed without' deciding the dispute finally. In the result, the Tribunal dismissed both the appeal and the cross-objections. Against that order of the Tribunal, the tenant, Mohd. Atique Saddiqui preferred the present second appeal, S.A.O. No. 306 of 1972, to this Court.

(7) Shri G. N. Aggarwal, learned counsel for the appellant-tenant contended that on the principle of resjudicata and also for the reason that it was by consent of the parties, the interim rent fixed on March 7, 1972, under Section 10 of the Act in the proceedings for fixation of standard rent, was binding on the parties, and that the Controller ought to have directed the tenant to pay arrears of rent at the same rate, i.e. Rs. 55.00 per month under Section 15(1) of the Act.

(8) As stated earlier, on August 17, 1971, the tenant filed an application for the fixation of standard rent under Section 9 of the Delhi Rent Control Act, 1958. Section 10 of the Act provides that if an application for fixing standard rent is made under Section 9, the Controller shall as expeditiously as possible make an order fixing the interim rent to be paid by the tenant to the landlord pending final decision on the application, and that he shall also appoint the date from which the said interim rent shall be deemed to have effect. In the present case, Shri V. S. Aggarwal, Additional Controller, fixed the interim rent on March 7, 1972, at Rs. 551- per month by consent of parties although the agreed rent was admittedly Rs. 110.00 per month, and' he also directed that the said interim rent of Rs. 55.00 per month should be paid by the tenant from August 17, 1971, the date of institution of the application. In the meantime on November 3, 1971, the landlord filed an application for eviction of the tenant under Section 14. On March 22, 1972, the Additional Controller Shri V. S. Aggarwal, passed the impugned order under Section 15(1) of the Act directing the tenant to pay arrears of rent. at the rate of Rs. 110.00 per month from September 1, 1971, up to the date of the order as well as for the subsequent period till the disposal of the application for eviction. The Tribunal affirmed the said order. The question for consideration is whether the Additional Controller ought to have directed the tenant to pay or deposit arrears of rent at the rate of of Rs. 55.00 per month, the interim rent which had by then been fixed by him under Section 10 of the Act.

(9) The reason given by the Additional Controller was that under Section 15(1), the Controller is required to make an order directing the tenant to pay to the landlord or deposit anamount calculated at the rate of rent at which it was last paid. The same reason found favor with the Rent Control Tribunal also. But, both the Additional Controller and the Rent Control Tribunal omitted to note that Section 15(3) provides as under :

'15(3).If, in any proceeding referred to in sub-section (1) or sub-section (2), there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section (1) or sub-section (2) as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf.'

Section 15(1) has to be read together with section 15(3). On reading sections 15(1) and 15(3) together, it is obvious that while Section 15(1) deals with a case there is no dispute as to the amount of rent payable by the tenant, Section 15(3) deals with a case where there is such a dispute. The words 'amount of rent' mentioned in Section 15(1) mean in the context the amount of rate of rent, and the dispute mentioned in the sub-section may be either about the agreed or contractual rate of rent or about the standard rate of rent or both. As pointed out by S. K. Kapur J. in S. K. Chatterjee and another v. J. N. Ghoshal 68 Plr 354 the words 'in dispute as to the amount of rent payable by the tenant' in subSection (3) of Section 15 referred to the dispute arising between the parties on account of claim of a party for fixation of standard rent, and that the interim rent fixed under sub-section (3) in accordance with the provisions therein is made adjustable on the basis of the standard rent ultimately fixed. In the present case, there was no dispute between the parties about the agreed or contractual rate of rent. But, there was a dispute about the rate of standard rent and, thereforee, Section 15(3) was attracted. In fact, in view of the said dispute about the rate of standard rent, the Additional Controller fixed the interim standard rent under Section 10 at Rs. 55.00 per month. Thus, when there was a dispute about the rate of standard rent, Section 15(1) is not to be read in isolation, but has to be read along with Section 15(3), and an order under Section 15(1) has to be made with reference to the interim rent mentioned in Section 15(3) and not with reference to the rate of rent at which the rent was last paid by the tenant to the landlord. Now, the question is as to what the rate of interim rent under Section 15(3) is to be, when, as in the present case, interim rent had already been fixed under Section 10. The only reasonable answer seems to be that the interim rate of rent under Section 15(3) should be the same as the interim rate of rent fixed under Section 10. This is because the interim rate of rent fixed under Section 10 by the Controller, being by an order made by the statutory authority by virtue of the provision in Section 10 of the Act, is binding on both the parties, and the tenant is bound to pay rent at the said interim rate of rent to the landlord. If under Section 15(3), the Controller can fix a different rate of interim rent, it also, being by an order passed by the statutory authority by virtue of the provision in section 15(3) of the Act, would be equally binding on the parties, and the tenant would be bound to pay rent at the rate of interim rent fixed under Section 15(3). In other words, there would be different rates of interim rent fixed by the statutory authority under the provisions of the Act, and the tenant would be between the horns of a dilemma as to which order he has to comply with. The said dilemma would be resolved, and the two provisions in Sections 10 and 15(3) would be harmonised if it is held that the Controller should fix the interim rate of rent under section 15(3) at the same rate as the rate of rent fixed under Section 10 in a case where the interim rate of rent under Section 10 had already been fixed as in the present case. It thus follows that in the present case, the Additional Controller should have ordered the payment of the arrears of rent under Section 15(1) at Rs. 55.00 per month.

(10) There is, however, another aspect to be considered. As stated earlier, the Additional Controller directed the tenant to pay the arrears of rent from September 1, 1971, to March 22, 1972, and thereafter till the disposal of the application for eviction. The interim rent under Section 10 was fixed on March 7, 1972, and as held by the Supreme Court in M. M. Chawla v. J. S. Sethi 1969. R.C.A. 861 a tenant is liable to pay rent at the contractual rate until standard rent is fixed. The interim rent fixed under Section 10 is virtually an interim standard rent and, thereforee, the tenant, in the present case, was liable to pay arrears of rent at the contractual or agreed rate of rent till the date on which the interim rent under Section 10 was fixed. In other words, the appellant tenant ought to have been directed under Section 15(1) to pay or deposit an amount calculated at Rs. 110.00 from September 1, 1971, to March 7, 1972, and thereafter at Rs. 55.00 per month.

(11) V. B. Andley, learned counsel for the respondent-landlord, referred to the decision in, M. L. Ahuja v. Lachman Dass, 1970 R.C.R. 347. In that case, S. N. Andley J. (as his Lordship then was) observed in paragraph 8 that the language employed in Section 15(1) clearly means that the amount which can be ordered to be paid has no connection with the standard rent even if the standard rent has been fixed already, and that the order will be in respect of the rate of rent which was last paid or, in other words, the contractual or actual rent last paid. It has to be noted that the said observation was made in a situation falling under Section 15(1) only, and not in a situation in which there is a dispute about the rate of rent payable within the meaning of Section 15(3). This has been pointed out by the learned Judge himself in paragraph 12 of the judgment as under :

'IT is only in a case of dispute as to the rate of rent when the Court makes an order fixing the interim rent and such an order is effective until the standard rent in relation to the premises is fixed. If standard rent is fixed during the pendency of the proceedings, sub-section (3) provides that the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within the time specified. This sub-section cannot be called in aid in this case where an order was passed under sub-section (1) of Section 15 on the basis that there was no dispute as to rent last paid.' The said decision is thus in no way contrary to the view expressed by me above, and the learned counsel cannot derive' any assistance from it.

(12) For the foregoing reasons, the second appeal S.A.O. No. 306 of 1973, is allowed, the orders of the Rent Control Tribunal and the Additional Controller are modified, and the tenant is directed to pay or deposit in the Court of the Controller the arrears of rent at the rate of Rs. 110.00 per month from September 1, 1971 to March 7, 1972, and thereafter at the rate of Rs. 55.00 up to the date of this judgment, within six weeks from this date, and to pay rent in future at the same rate of Rs. 55.00 per month by the 15th of each succeeding month till the disposal of the application for eviction by the Additional Controller. In the circumstances, the parties are directed to bear their own costs throughout.


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