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Hafiz Zahir-ud-dIn Ahmad Vs. Shib Narain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 100U of 1962
Judge
Reported inILR1970Delhi376
ActsDelhi Rent Control Act, 1958 - Sections 14(2)
AppellantHafiz Zahir-ud-dIn Ahmad
RespondentShib Narain
Advocates: H.R. Khanna and; S.S. Chadha, Advs
Excerpt:
delhi rent control act (1958) - sections 14(2), 15(1) & 26--combined effect of--non-payment of rent by tenant--petition for eviction in consequence--when can be defeated. ; that from the provision of section 14(2), 15(1) and 26 of the act it appears that a tenant is under an obligation to make payment of the rent when it falls due in accordance with section 26. in cases of default, however, two locus paenitentiae are given to the tenant to avoid eviction: (1) to make payment of the rent within the period of two months after the service of a notice in that behalf and (2) to make payment or deposit within a month of the order made under section 15(1). but the benefit under section 15(1) is available only once and if such a benefit has been taken by the tenant, he cannto ask for the..........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.'(5) the proviso to sub-section (2) of section 14 talks of a default in the payment of rent for three consecutive months. admittedly, in this case there was no default in the payment of rent for three consecutive months immediately prior to the service of the notice. but there was such a default by the time the petition for eviction was filed. section 26 of the 1958 act imposes an obligation on every tenant to pay rent within the time fixed by contract or in the absence of such contract by the 15th day of the month next following the month for which it is payable. this obligation was nto.....
Judgment:

S.N. Andley, J.

(1) Shop No. 3865/4, Khirki Taffazul Hussain, Urdu Bazar, Delhi was constructed by the appellant in June 1957. On October 1, 1957, it was let to the respondent at a rent of Rs. 30.00 per month. Upon the application of the respondent under the Delhi and Ajmer Rent Control Act, 1952 (hereinafter referred to as the '1952 Act'), the Rent Court by its order dated November 2!, I960 fixed the standard rent of the shop at Rs. 11.46 Paise per month with effect from March 22, 1958. By the time the order fixing the standard rent was passed, the Delhi Rent Control Act 1958 (hereinafter referred to as the '1958 Act') had come into force. By notice dated December 29, 1960 the appellant called upon the respondent to pay the arrears of rent for the months of November and December 1960 failing which an application for eviction of the respondent was threatened to be filed The arrears of rent were demanded at the rate of Rs. 30.00 per month. The respondent replied to the notice on January 16, 1961, and stated that by reason of the fixing of standard rent, an excess amount of Rs. 550.35 Paise had already been paid to the appellant and that there were no arrears. There upon the appellant filed a petition for eviction of the respondent on March 8, 1961. The Rent Controller by his order dated October 20, 1961, granted a decree for eviction holding that the respondent was liable to pay rent at the rate of Rs. 30.00 per month by reason of the provisions of section 6(2)(b) of the 1958 Act and nto at the rate of Rs. 11.46 Paise per month, as contended by the respondent. He further held that the respondent having, in an earlier proceeding, obtained the benefit of an order under section 15(1) of the 1958 Act could nto claim the same benefit again by reason of the proviso to sub-section (2) of section 14 of the 1958 Act and since there was a default, as contemplated by the said proviso, the respondent had no defense.

(2) THE' respondent appealed to the Rent Control Tribunal who, by his judgment dated April 9, 1962, accepted the appeal and set aside the order of eviction. He further remanded the case to the Rent Controller to pass an order under section 15(1) of the Act directing the respondent to pay the arrears of rent at the rate of Rs. 30.00 per month. The landlord-appellant has appealed.

(3) The question that arises in this appeal is whether in the circumstances of this case, the respondent had disentitled himself to the benefit of an order under section 15(1) of the 1958 Act by reason of the proviso sub-section (2) of section 14. Clause (a) of the proviso to sub-section (2) of section 14 of the 1958 Act provides that an order of eviction can be made if the tenant has neither paid nor tendered the whole of the arrears of 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. Admittedly, such rent was nto paid by the respondent within the period specified in clause (a). Even in such a case if it satisfies the provisions of section 14(2) an order for eviction cannto be passed if the tenant makes the payment or deposit as required by an order under section 15(1). Section 14(2) of the 1958 Act is in these terms :-

'2-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 : 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.'

(4) Section 15(1) of the 1958 Act provides as follows :-

'(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 the rent were legally recoverable from the tenant including the period subsequent thereto 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.'

(5) The proviso to sub-section (2) of section 14 talks of a default in the payment of rent for three consecutive months. Admittedly, in this case there was no default in the payment of rent for three consecutive months immediately prior to the service of the notice. But there was such a default by the time the petition for eviction was filed. Section 26 of the 1958 Act imposes an obligation on every tenant to pay rent within the time fixed by contract or in the absence of such contract by the 15th day of the month next following the month for which it is payable. This obligation was nto discharged.

(6) It appears to me from the aforesaid provisions of the 1958 Act that the tenant is under an obligation to make payment of the rent when it falls due in accordance with section 26. In cases of default two locus paenitentiae are given to the tenant to avoid eviction (1) to make payment of the rent within the period of two months after the service of a notice in that behalf and (2) to make payment or deposit within a month of the order made under section 15(1). But the benefit under section 15(1) is available only once and if such a benefit has been taken by the tenant, he cannto ask for the same benefit again if he has defaulted for three consecutive months.

(7) The question whether the tenant is entitled to the benefit of an order under sub-section (1) of section 15 of the 1958 Act is to be determined as on the date of the presentation of the second or subsequent petition for eviction on the ground of non-payment of rent. If on that date there has been a default in the payment of rent for three consecutive months, the benefit of section 15(1) would nto be available to the tenant and this would be so even if at the time of the service of the notice, as contemplated by clause (a) of the proviso to sub-section (1) of section 14 of the 1958 Act, there was no default in the payment of rent for three consecutive months.

(8) The appellant contends that the question of the existence of three consecutive defaults is to be considered at the time when the Rent Controller is approached for an order under sub-section (1) of section 15 of the 1958 Act. This does nto appear to be so. The Rent Controller has to make an order under sub-section ( 1 ) of Section 15 for payment of the rent for the entire period specified in the sub-section irrespective of the arrears which are the subject matter of the notice. A payment or deposit under subsection (1) of Section 15 has to be made within the period specified by the Court in its order. thereforee, the date of the order under sub-section ( I ) of section 15 appears to me to be irrelevant for the purpose of determining the three consecutive defaults. The date of the notice is also nto relevant for the purpose of determining these defaults. If rent is nto paid to the landlord despite notice under clause (a) of the proviso to sub-section (1) of section 14 of the 1958 Act, the cause of action for eviction of the tenant accrues to the landlord and he can file a petition for eviction. Such a petition can be defeated only if there is no default in the payment of rent for three consecutive months in a case where a tenant has obtained the benefit of sub-section (1) of section 15 in a previous proceeding for eviction. If the date of the notice is to be the relevant date for the purpose of considering the three successive defaults, then, in the case of a second petition lor eviction where the tenant has already obtained a benefit, the notice of eviction will have to be postponed until there are three successive defaults. Such a construction will nto be consistent with the provisions of clause (a) of the proviso to sub-section (1) of section 14 of the 1958 Act.

(9) For these reasons, the Rent Control Tribunal was nto right in holding that the default in the payment of rent for three consecutive months must be antecedent to the date of the notice It is next contended by the respondent that standard rent having been fixed at Rs. 11.46 Paise per month, the respondent was liable only at that rate and nto at the contractual rate of Rs. 30.00 per month and. thereforee, there was an excess payment of Rs. 550.35 Paise to the appellant and there was no question of any rent being legally recoverable. For the reasons given in the order that I am making in Civil Revision No. 383-D of 1962 there is no substance in this contention.

(10) The result, thereforee is that this appeal is allowed; the order dated April 9, 1962 of the Rent Control Tribunal is set aside and the order dated October 20. 1961 of the Rent Controller is upheld. The appellant will have his costs of this appeal.


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