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M.L. Ahuja Vs. Lachman Dass - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 5D of 1966
Judge
Reported inILR1969Delhi673
ActsDelhi Rent Control Act, 1958 - Sections 15
AppellantM.L. Ahuja
RespondentLachman Dass
Advocates: G.L. Seth and; R.K. Makhija, Advs
Excerpt:
.....c.g. suri, rent control tribunal, delhi dated 10-12-65 confirming that of shri p.c. saini, addl. rent controller. - - the language employed clearly means that the amount which can be ordered to be paid has no connection with the standard rent of the premises even if standard rent has been fixed already. even upon such an application, the order that can be made by the controller is to pay the amount of rent legally recoverable and such an order has to be made in accordance with the provisions of sub-section (1). thereforee, even when an order is made under sub-section (2) of section 15, the rent which would be payable will be calculated at the rate of rent at which it was last paid and i am clearly of the view that the rent payable will be what may be described as the contractual or..........the purchase, the respondent on november 8, 1968 filed a petition in the court of the additional rent controller, delhi, for eviction of the appellant on three grounds, namely, (1) non-payment of rent; (2) bonafide personal requirement and (3) as the appellant had built and acquired vacant possession of a suitable residence else where. in paragraph ii of his petition, the respondent 'stated that the monthly rent fixed by the aforesaid managing officer was rs. 57.00 per month but the standard rent would nto in any way be less than rs. 250.00 per month. it was after the filing of this petition that a sale certificate was issued to the respondent on december, 18, 1960. in the written statement filed by the appellant it was contended, inter aha, that the respondent was nto the owner of the.....
Judgment:

S.N. Andley, J.

(1) This judgment will dispose of S.A.O. No 5-D and S.A.O. No. 6-D of 1966. I am dealing with these two appeals by a common judgment because some of the facts which have resulted in these two appeals are common

(2) Mr. P. C. Saini, Additional Rent Controller, Delhi, had passed an order dated December 8, 1964 dealing with two applications which had been filed before him by the respondent landlord. One application was for an order against the appellant-tenant to deposit in Court arrears of rent in accordance with the standard rent fixed and other application was for an order for payment of the amount deposited by the appellan tenant in pursuance of an order made under sub-section (1) of Section 15 of the Delhi Rent Control Act, 1958, Both these applications were allowed.

(3) As there were two separate and independent applications which had been decided by the aforesaid order, the appellant filed two appeals before the Rent Control Tribunal. These two appeals were dismissed by two orders dated December, 10, 1965 and it is against the dismissal of these appeals that the present two appeals have been filed.

(4) The appellant occupied flat No. 52, Khan Market, New Delhi. under the Managing Officer in the Rehabilitation Department of the Government of India. He was paying a rent of Rs. 57.00 per month. This property was purchased by the respondent and after the purchase, the respondent on November 8, 1968 filed a petition in the Court of the Additional Rent Controller, Delhi, for eviction of the appellant on three grounds, namely, (1) non-payment of rent; (2) bonafide personal requirement and (3) as the appellant had built and acquired vacant possession of a suitable residence else where. In paragraph Ii of his petition, the respondent 'stated that the monthly rent fixed by the aforesaid Managing Officer was Rs. 57.00 per month but the standard rent would nto in any way be less than Rs. 250.00 per month. It was after the filing of this petition that a sale certificate was issued to the respondent on December, 18, 1960. In the written statement filed by the appellant it was contended, inter aha, that the respondent was nto the owner of the property and that a civil suit regarding his title thereto was pending in the Civil Court; that there was no relationship of landlord and tenant between the parties and, thereforee, the respondent was nto entitled to payment of any rent. As to the quantum of rent, the rate of rent alleged by the respondent was denied and it was further pleaded that the standard rent of the premises would be Rs. 30.00 per month. It will, thereforee, be seen that in so far as the pleadings of the parties were concerned, the rate of rent was nto admitted by the appellant.

(5) However, the Additional Rent Controller, Delhi, passed an order on March 16, 1961 which could be passed only under section 15(1) of the Act. In this order, the Additional Rent Controller has stated that the appellant 'has nto challenged the rate of rent nor the period of payment'. Accordingly, the Additional Rent Controller ordered the respondent to deposit the arrears of rent with effect from November 5, 1957 at the rate of Rs. 57.00 per month within one month from the date of the order and the future monthly rent, month by month, by the 15th of every following month at the aforesaid rate. The Additional Rent Controller, Delhi, further added that his order will be 'without prejudice to the dispute between -the parties regarding the relationship of landlord and tenant. The amount will nto be paid to the petitioner until this dispute is decided.' This order became final between the parties as the appeal and the second appeal which had been filed by the appellant were dismissed.

(6) The civil suit which had been filed by the appellant challenging the title of the respondent was dismissed by the trial Court on March 31, 1962 but the appeal against such dismissal is pending.

(7) In the mean time on February, 6, 1961 the respondent filed a substantive petition for fixation of standard rent. In this petition the description of the premises was given as flat No. 53, Khan Market, New Delhi, although in fact the premises bear Municipal Number 52. Although the appellant was made a respondent in this petition, he did nto appear and exparte proceeded Rs. 245.00 per mensem as the standard rent of the premises. The appellant has emphasised the fact that the description of the premises or its Municipal Number are nto mentioned at all in the order fixing standard rent.

(8) To get the defect rectified, the respondent filed an application dated September 29, 1962 before the Additional Rent Controller, Delhi, under section 151 of the Code of Civil Procedure read with section 40 of the Act. By this application, the respondent prayed that he may be allowed to correct the flat number in the petition for faction of standard rent by substituting No. 52 for No. 53. The appellant opposed this application. By his order dated July, 31, 1963, the 1st Additional Rent Controller, Delhi, held that section 40 of the Act covered cases of mistake in orders and nto in applications and he, thereforee, dismissed the application. Against this dismissal, the respondent filed an appeal before the Rent Control Tribunal which was allowed by order dated February 10, 1964. The Rent Control Tribunal nto only allowed the application made by the respondent for making amendments in the petition for fixation of standard rent but also in the order fixing the standard rent. It may here be stated that no objection appears to have been raised by the appellant before the Rent Control Tribunal about the competency of the appeal or the jurisdiction of the Rent Control Tribunal to make the order for rectification prayed for. I am stating these facts only because Mr. G. L. Seth, learned counsel for the appellant, has challenged this order of the Rent Control Tribunal on the ground that it was without jurisdiction. He urged that the appeal was nto competent; the prayer in the application for rectification was to make the correction only in the petition for fixation of standard rent and nto in the order fixing the standard rent and no order could be made under section 40 of the Act for correction of errors in the pleadings. On these grounds, he urged that the order of the Rent Control Tribunal was without jurisdiction. In my view, the order of the Rent Control Tribunal became final between the parties and cannto be challenged in these proceedings.

(9) I may restate that the order of the Additional Rent Controller passed on March 16, 1961 making directions under section 15(1) of the Act had become final between the parties. Then on the basis of fixation of the standard rent at Rs. 245.00 per month and the rectification ordered by the Rent Control Tribunal, the respondent filed an application on August 20, 1964 in the court of Mr. P. C. Saini, Rent Controller, Delhi, praying that the appellant be ordered 'to deposit the difference of short deposit and also future rent at the rate of Rs. 245.00 per mensem.' On this very date, the respondent filed another application praying that the amount deposited by the appellant may be ordered to be paid over to the respondent. Both these applications were contested by the appellant and have given rise to the two appeals which are being disposed of by this order.

(10) SUB-SECTION (1) of section 15 of the Act is in these terms:-

'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.'

(11) It is clear from the language employed in this sub-section that no application is required praying for an order contemplated by this sub-section. The sub-section imposes a duty upon the Court to make the order for deposit of the arrears of rent and future rents. Such an order is to be made in every proceeding for recovery of possession on the ground of non-payment of rent. The amount which is ordered to be deposited is to be 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. The language employed clearly means that the amount which can be ordered to be paid has no connection with the standard rent of the premises even if standard rent has been fixed already. There may be a case where standard rent has been fixed at say Rs. 100.00 per month but the rent which was actually last paid for the period in question may be more or less than the standard rent fixed. Even so, the Rent Controller cannto under this sub-section make an order for payment of rent at the rate calculated according to the standard rent fixed and the order will be only in respect of the rate of rent which was last paid or, in other words, the contractual or actual rent last paid. Then Sub-section (2) of the section provides:-

'IF,in any proceeding for the recovery of possession of any premises on any ground other than that referred to in sub-section (1), the tenant contests the claim for eviction, the landlord may, at any stage, of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant and the Controller may, after giving the parties an opportunity of being heard make an order in accordance with the provisions of the said sub-section.'

(12) The proceeding contemplated by this sub-section must be a proceeding for the recovery of possession but on a ground 'other than' that referred to in sub-section (1). Further, the amount of rent must be 'legally recoverable' from the tenant. 'Other than' indicates an exception.

(13) WEBSTER'S Third New International Dictionary gives the following meanings to the word 'other':-

'BEING the one (as of two or more) left: nto being the the one (as of two or more) first mentioned or of primary concern: being the ones distinct from the one or those first mentioned or understood.'

(14) The expression 'other than' must mean that the proceeding referred to in sub-section (2) of section 15 is a proceeding in which the ground of non-payment of rent which is mentioned in subsection (1) of section 15 is nto one of the grounds for recovery of possession. thereforee, an application under sub-section (2) of section 15 would nto be maintainable in a proceeding for recovery of possession wherein one of the grounds is nonpayment of rent.

(15) It is to be noticed that in sub-section (1) and (2) of section 15, the expression which has been used is 'rent' and nto 'standard rent'. 'Standard rent' has been used only in sub-section (3) of section 15 to which I will come presently. It seems tome that sub-section (1) of section 15 contains a mandate to the Controller to make the order contemplated by it while an order under sub-section (2) can be made only upon the application of the landlord. Even upon such an application, the order that can be made by the Controller is to pay the amount of rent legally recoverable and such an order has to be made in accordance with the provisions of sub-section (1). thereforee, even when an order is made under sub-section (2) of section 15, the rent which would be payable will be calculated at the rate of rent at which it was last paid and I am clearly of the view that the rent payable will be what may be described as the contractual or actual rent and nto the standard rent whether fixed or to be fixed. There is, thereforee, no question of an application being filed under sub-section (2) of section 15, upon standard rent being fixed subsequently, after an order has already been made under sub-section (1) of section 15. Sub-sections (1) and (2) deal with two types of proceedings where one of the common factors is that the rate of rent at which it was last paid is nto in dispute. If that common factor is present, the order under either of these sub-sections can be only for payment of rent at this rate and nto at the rate of the standard rent.

(16) One contention which has been raised on behalf of the respondent is that the expression 'rent legally recoverable' as used in sub-section (2) of section 15 means the standard rent. I do nto agree with this contention. The rent directed to be paid even under sub-section (2) of section 15 is the same as in subsection (1). The expression 'rent legally recoverable' means rent for recovery of which a suit can be filed or, in other words, rent which has nto become barred by limitation.

(17) If in any proceeding there is a dispute as to the amount of rent payable by the tenant, proceedings have to be taken as provided in sub-section (3) of section 15 which is in these terms :-

'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.'

(18) It is only in case of a dispute as to the rate of rent that 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 cannto 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.

(19) The position with regard to S.A.O. 5-D of 1966 summed up is as follows: one of the grounds raised in the proceedings for recovery of possession was non-payment of rent; the Additional Rent Controller made an order according to the mandate of section 15(1) for payment at the rate it was last paid observing that there was no dispute as to this rate of rent: rent in accordance with this order has admittedly been deposited by the appellant; the application for deposit of the difference in the rent taking into consideration the standard rent fixed subsequently was made under section 15(2) and an order thereon was passed in favor of the respondent by the Additional Rent Controller which was upheld in appeal. For the reasons stated I am clearly of the opinion that this application dated August 20, 1964 filed by the respondent was in cto Control Tribunal in this behalf have to be set aside.

(20) The other point which has been raised in S.A.O. No. 6-D of 1966 relates to the interpretation of sub-section (4) of section 15 which is in these terms :-

'IF,in any proceeding referred to in sub-section (1) or sub-section (2), there is any dispute as to the person or persons to whom the rent is payable, the Controller may direct the tenant to deposit with the Controller the amount payable by him under sub-section (1) or sub-section (2) or sub-section (3), as the case may be, and in such a case, no person shall be entitled to withdraw the amount in deposit until the Controller decides the dispute and makes an order for payment of the same.'

(21) As I have stated earlier, the Additional Rent Controller, Delhi, in his order dated March 16, 1961 under section 15) of the Act had observed that the amount deposited will nto be paid to the petitioner unless this dispute is decided and the dispute which is referred to was regarding the relationship of landlord and tenant between the. parties. Sub-section (4) of section 15, thereforee, fully applies. This sub-section contains a prohibition against the withdrawal of the amount deposited until the Controller decides the dispute and makes an order for payment of the same. thereforee, this sub-section requires the decision of such a dispute by the Controller himself in the proceedings pending before him and by no other Court or authority in other proceedings. The Additional Rent Controller and the Rent Control Tribunal have observed that the dispute was to be decided in the suit pending between the parties. This clearly is an erroneous construction of the aforesaid order dated March 16,1961. In any case, the mandate of sub-section (4) of section 15 is clear and the mandate is that the landlord will nto be entitled to withdraw the amount deposited in pursuance of an order under sub-section (1) or sub-section (2) of section 15 until the Controller himself decides the dispute with regard to the person or persons to whom the rent is to be paid. This dispute has nto so far been decided by the Controller, and until that decision, the amount deposited cannto be allowed to be withdrawn. The Additional Rent Controller and, in appeal, the Rent Control Tribunal were wrong in holding that the respondent was entitled to withdraw the amount deposited inasmuch as the civil suit which had been filed by the appellant against the respondent regarding the relationship of landlord and the tenant had been decided and in allowing the respondent's application dated August 20, 1964, in this behalf.

(22) S.A.O. No. 6-D of 1966 has, thereforee, to be allowed and the order dated December 8, 1964 of the Additional Rent Controller, Delhi, and the order dated December 10, 1965 of the Rent Control Tribunal in this behalf have to be set aside.

(23) In the result both the appeals S.A.O. No. 5-D of 1966 and S.A.O. No. 6-D of 1966 are allowed and the orders dated December 8, 1964 of the Additional Rent Controller and the orders dated December 10, 1965 of the Rent Control Tribunal are set aside but in the circumstances of the case I leave the parties to bear their respective costs.


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