V.S. Deshpande, J.
(1) Second Appeal from the order of Shri C.G. Suri, Rent Control Tribunal, Delhi dated 31-8-66 affirming that of Shri Asa Singh Gill, Rent Controller, Delhi dated 21-10-1965.
(2) This is a tenant's appeal against the order of eviction passed against him under proviso (a) to section 14(1) of the Delhi Rent Control Act, 1958, (hereinafter called the Act), for non-payment of arrears of rent. The order was initially passed by the Rent Controller, Delhi and was confirmed in the first appeal by the Rent Control Tribunal. Hence this second appeal.
(3) The appellant, Shri Chawla, was the tenant of the suit premises, of which the respondent Shri Sethi, was the landlord. The agreed rate of rent was Rs. 160.00 per month. When the rent fell in arrears for the first time, Shri Sethi filed a petition (Exhibit A-20), for the eviction of Shri Chawla under proviso (a) to Section 14(1) of the Act, claiming that the rent was in arrears from 1-6-1961 to 31-1-1962. In his reply, (Exhibit A-21), Shri Chawla pleaded that the rent was due nto from l-6-1961,but from 1-8-1961. The Controller passed an order (Exhibit A-24) under Section 15(1) of the Act, ordering Shri Chawla to deposit the arrears of rent with effect from 1-7-1961 without prejudice to his contention regarding the payment of rent for July, 1961. The arrears were accordingly deposited by Shri Chawla and it was admitted by both the sides in both the lower Courts that in view of the said deposit, Shri Chawla was nto evicted from the suit premises.
(4) Shri Chawla again defaulted in payment of rent for three consecutive months of December, 1962, January and February, 1963. On his failure to pay the same within two months of the notice of demand. Shri Sethi filed the present application for the eviction of Shri Chawla again under proviso (a) to Section 14(1) of the Act. Shri Chawla resisted the application on the ground that there were no arrears of rent as he had made payments unsupported by receipts. But, these payments were held nto to have been proved and this finding of facts was taken to be conclusive by the learned counsel for the appellant before me. Shri Chawla had also pleaded that he had sent a money order of Rs. 320.00 to the landlord on the 19th March, 1963. Shri Sethi denied that the money order was ever brought to him and both the Courts below held that Shri Chawla had failed to prove the making of a valid tender of Rs. 320.00 to Shri Sethi by this money order.
(5) In paragraph 11 of the written statement Shri Chawla stated that the contractual rent was excessive and nto according to law. He said that the standard rent of the premises could nto be more than Rs. 50.00 per month and that standard rent of the suit premises be fixed. Both the Courts below, however, held that the question of the fixation of standard rent could nto arise, inasmuch as this could be done only under Sub-Section (3) of Section 15 of the Act, if an order for deposit of rent is passed under Sub-Section (1) or Sub-section (3) of Section 15. But, no such order for deposit could be made, inasmuch as Shri Chawla had already once gto the benefit of an order under Section 15 in the previous case. The proviso to Sub-Section (2) of Section 14 of the Act debars Shri Chawla from making deposit under Section 15 and get the application for eviction dismissed second time. Both the Courts, thereforee, ordered the eviction of Shri Chawla.
(6) In the second appeal, the concurrent decision of the Courts below was assailed on the following grounds, viz.:
(1)Shri Chawla was nto in default of payment of rent for three months;
(2)Even if he was in such a default, he should have been ordered to deposit the arrears of rent under Section 15 and the learned lower Courts were wrong in thinking that such an order could nto be made in view of the proviso to Section 14(2) of the Act; and
(3)That the Controller was bound to fix the standard rent of the premises as prayed for by Shri Chawla.
(1)This contention was based on two grounds; viz. (a) that Shri Chawla had sent money order to Shri Sethi of Rs. 320.00 on the 19th March, 1963 and (b) that Shri Chawla had made a security deposit of three months rent with Shri Sethi, which was held subsequently in Suit No. 35/66 decided on 12-3-1968 by the Sub- Judge, I Class, Delhi to be adjustable against the arrears of rent. Regarding sending of the money order, the following observations may be made. Firstly, the money order is purported to have been sent on the 19th March, 1963 i.e. after the default in payment of rent for December, 1962, January and February, 1963, was made. The sending of the money order could not, thereforee, cure the default unless the landlord had agreed to waive the default expressly or impliedly by accepting the said amount. Secondly, the amount of rent in arrears was Rs. 480.00. The sending of Rs. 320.00 was not, thereforee, a valid tender. Thirdly, the concurrent findings of the Courts below that Shri Chawla has nto proved that he had sent a correctly addressed money order to Shri Sethi is a finding of fact nto open to challenge in the second appeal. The learned counsel for the appellant argued that the presumption that the appellant had sent the money order to the respondent should have been drawn by the learned lower Court's under Section 114(f) of the Evidence Act. Even the failure to draw such a presumption cannto be said to be substantial question of law, which alone can be urged before me in view of Section 39(2) of the Act. For, the drawing of the presumption is determined by the facts and circumstances of the case. But, even if, this argument of the learned counsel were to be considered, it would appear to be untenable. The receipt produced by Shri Chawla for having sent the money order of Rs. 320.00 to Shri Sethi does nto contain any address of Shri Sethi at all. No presumption could, thereforee, arise that the amount was sent to the respondent and to no other person of that name. Further, it is nto known whether the correct address of the respondent was given by the appellant on the said money order. The appellant could have proved this fact by summoning the original money order in Court. He did nto do so. Lastly, the original money order itself might have been returned to the appellant with the money and the appellant could have produced the same to show that it was sent to the correct address. In the absence of any proof by the appellant that the money order was correctly addressed to the respondent the presumption that the money order must have reached the appellant in due course cannto arise in the present case. The observations of the Privy Council in Harihar Banerji v. Ram shashi Roy regarding such a presumption do nto apply to the present case, inasmuch as the decision of the Calcutta High Court upheld by the Privy Council was that the letter must be 'properly directed' to the addressee, so that the presumption may arise. It cannto be said that the money order in the present case was properly directed to the respondent inasmuch as there is absolutely no proof that it was correctly addressed to the respondent.
(7) As for the security deposit of three months alleged to have been kept by Shri Chawla with Shri Sethi, this plea was never taken by Shri Chawla before either of the learned lower Courts. The plea was a question of fact and cannto be raised for the first time in second appeal, particularly when even in the grounds of second appeal it was nto raised by Shri Chawla. The appellant has filed an uncertified copy of the judgment dated 12-3-1968 by Sub-Judge, I class, Delhi, on the internal page No. 7 of which the learned Judge has said that from the perusal of the document filed before him. Exhibit D-l, it was clear that three months rent was to be adjusted on the termination of the lease. The lease in the present case was terminated only when the order of eviction against Shri Chawla was passed by the Rent Controller. The security deposit could nto be adjusted against the arrears of rent till then. It follows, thereforee, that Shri Chawla could nto have urged before the Rent Controller that the security deposit should be deemed to have been paid against the arrears of rent for December, 1962, January and February, 1963. This must have been the reason why Shri Chawla did nto take such a plea in either of the learned lower Courts or in the grounds of appeals before me. For the above reasons, thereforee, I find that Shri Chawla had committed a default in payment of rent for three months as concurrently held by both the learned lower Court.
(2)As I read the Scheme of the Act, the general rule that a tenant is nto to be evicted by a landlord is laid down in the Principal part of Sub-section (1) of Section 14 of the Act. The proviso thereto however, lists a number of exceptions to the rule. The very first exception (a) allows the Controller to make an order of eviction against the tenant on the ground that a tenant has been in arrears of rent, which are nto paid within two months of the notice of demand by the landlord. This exception however, is itself subject to a counter exception embodied in the principal part of Sub-Section (2) of Section 14, which says that no order for recovery of possession of any premises shall be made on the ground of 'non-payment of arrears of rent' as specified in Clause (a) of the proviso to Sub-Section (1), if the tenant makes payment or deposits the rent as, required by Section 15. The counter-exception is thus, nto fully spelt out by Sub-Section (2) of Section 14. A reference has to be made to Section 15 to know about the payment or deposit referred to in Sub-Section (2) of Section 14. Sub-Section (1) of Section 15 makes it incumbent on the Controller in every proceeding for eviction under Clause (a) of the proviso to Sub-Section (1) of Section 14 to direct the tenant to pay to the landlord or deposit with the Controller the arrears of rent within one month from such a direction given by the Controller to the tenant. Sub-Section (3) of Section 15 supplements this provision by laying down that if there is a dispute as to the amount of rent payable by the tenant the Controller shall fix an interim rent until the standard rent is fixed, having regard to the provisions of the Act. Shri Chawla, in the present case, averred that the contractual rent was excessive and that the standard rent could nto be more than Rs. 50.00 per month, if it is fixed. He also prayed that it should be fixed by the Controller. Ordinarily, thereforee, the Controller would have made the order fixing an interim rate of rent and would have ordered the tenant to make the payment or deposit the arrears of rent according to the interim rate of rent until the standard rent could be fixed in accordance with the provisions of the Act.
(8) There were weighty reasons why the order of payment or deposit of rent under Sub-Sections (1) and (3) of Section 15 could nto be made by the Rent Controller in this case. The upper most reason which occurred to the Controller and the Rent Control Tribunal was that an order for deposit of rent under Sub-Section (1) of Section 15 had been made in the previous case and the tenant had gto the benefit of such an order therein, inasmuch as the landlord was prevented from evicting the tenant in the previous case, even though the tenant had been in arrears of rent and a cause of action for eviction had arisen against him under proviso (a) to Sub-Section (1) of Section 14 of the Act. The learned counsel for the appellant could nto dispute that in both the lower Courts it was admitted at the Bar that Shri Chawla had gto the benefit of nto being evicted from the premises on making the deposit under Sub-Section (1) of Section 15 of the Act read with Section 14(2) thereof in the previous case. He, however, sought to displace the effect of the said admission by arguing that in law, the appellant could nto be said to have gto the benefit in the previous case as contemplated by the proviso to Sub-Section (2) of Section 14. He argued that such a benefit meant a finding by the Rent Controller that the tenant was in arrears of rent, but was nevertheless nto liable to be evicted in view of the subsequent deposit of the rent by him under Sub-Section (1) of Section 15. He says that such a finding was nto made in the previous case and, thereforee, the appellant could nto be said to have gto the benefit referred to in the proviso to Sub-Section (2) of Section 14. He says that the mere making of an order for the deposit of the rent under-Sub-Section (1) of Section 15 could nto terminate the previous proceeding. He cited the Supreme Court decision in V. N. Vasudeva v. Kirori Mal, to say that the order to deposit the rent under Sub-section (1) of Section 15 was nto a final order, but an interim or provisional order subject to further decision on merits. He sought to draw a distinction between Sub-Section (6) of Section 15 and Sub-Section (2) of Section 14 and said that the proviso to Sub-Section (2) of Section 14 [as distinguished from Sub-Section (6) of Section 15] become applicable only after the finding interims referred to above, was given by the Rent Controller and nto otherwise. The learned counsel for the respondent pointed out that the appellant could nto retract from the admission of his having gto the benefit of the deposit under Section 15(1) in the previous proceeding and that he could nto raise a new point regarding the nature of such benefit without the permission of the Court and relied upon the decision of the learned Chief Justice in Pritam Singh. v. Suraj Prasad, (3). While no such permission was either sought by the appellant or given by me in the present case and while I agree that the appellant could nto retract from the admission made by him in both the lower Courts, I shall briefly dispose of his argument in the interest of completeness of this decision.
(9) The basic fact which is admitted by both the parties is that a previous application was filed by Shri Sethi to evict Shri Chawla on the ground of non-payment of rent and in that application an order for depositing the arrears of rent under Sub-Section (1) of Section 15 was passed by the Controller. Shri Chawla deposited the arrears of rent with the result that Shri Sethi was unable to evict him from the suit premises. It is common sense to understand that this was a benefit actually availed of by Shri Chawla. It is further undeniable that he gto this benefit only because he deposited A the arrears of rent under Section 15(1). It is true, as observed by the Supreme Court, that the orders under Sections 15(1) and 15(3) are nto necessarily final. At the same time it is to be borne in mind that in the majority of cases the deposit of rent arrears by the tenant effectively deprives the landlord of the remedy of eviction and virtually terminates the proceedings as observed by H. R. Khanna, J., in Trilok Chand v. Ram Kishan Dass, (4). Theoretically speaking, the Controller may still choose to decide whether the arrears of rent were actually due from the tenant to the landlord and after giving a finding about the same, he may say that the landlord is nto entitled to the relief of eviction in view of the deposit of rent arrears by the tenant. It is nto known whether the Controller did so in the previous case or not. Even if he did nto do so and merely terminated the proceedings after the deposit of rent by the tenant, the termination of the proceedings could nto be said to be without jurisdiction. If the tenant wanted the Controller to give a finding about the tenant being in arrears, he could have gone in appeal to the Tribunal against the termination of the proceedings by the Controller. He did nto do so. The termination of the proceedings, thereforee, became final. It also meant that the Controller had held that the tenant was in arrears and this was why he asked the tenant to deposit the arrears of rent. It is because of the finality of the order of the Controller that it follows that the tenant must be said to have received the benefit of Section 14(2) and Section 15(6) in getting the application of the landlord for eviction defeated. The substance of the contents of Section 14(2) and Section 15(6) is the same. It is, thereforee, difficult to draw any distinction between them. It is true that it is only Section 14(2) which has a proviso. Section 15(6) does nto have it. The reason is that Section 14(2) expressly refers to the payment or deposit as required by Section 15. The proviso to Section 14(2) is, thereforee, in effect a proviso to both Section 14(2) and the relevant provisions of Section 15 viz. Sub-Sections (1), (3) and (6) thereof. Though the admissions made at the Bar in the Courts below referred to Shri Chawla having enjoyed the benefit of Section 15 in the previous case, the same admissions would be good to show that Shri Chawla had received the benefit of Section 14(2) inasmuch as the relevant provisions of Section 15 were referred to in Section 14(2).
(10) It was further argued for the appellant that even if he had enjoyed the benefit of Sections 14(2) and 15(6) in the previous case, the proviso to Section 14(2) should nto be applied to him. The reason why it should nto be so applied was nto given, but it was argued that the proviso is nto mandatory but directory and the Court had a discretion in giving another opportunity to the tenant for depositing the rent. Apart from the fact that the tenant in this case has no particular merit justifying grant of another opportunity to deposit under Section 15(1) or Section 15(3), it appears to be that on a correct construction, the proviso to Section 14(2) would seem to be mandatory and nto directory. Firstly, it uses the word 'shall' and nto the word 'may'. Secondly, the proviso was introduced for the first time in the Delhi Rent Control Act, 1958 and its specific purpose seems to be as follows: Under Section 13(2) of the Delhi and Ajmer Rent Control Act, 1952 no decree or order for recovery of possession could be passed for non-payment of rent if the tenant deposited the rent arrears together with the costs of the suit. This provision is analogous to the provisions of Section 14(2) and Section 15(6) of the Delhi Rent Control Act, 1958. Under the Delhi and Ajmer Rent Control Act, 1952, the tenant could defeat the landlord's suit for recovery of possession ad infinitum. The tenant could tire the landlord out by defaulting to pay and later by depositing the arrears of rent with costs of the suit in Court. This would have involved the tenant an additional expense, but would have caused more expense and trouble to the landlord. The Legislature must have felt that there must be some limit to the remedy available to the tenant and he should nto be allowed the benefit of depositing the arrears of rent and defeating the eviction proceedings ad infinitum. This was why the proviso was added to Section 14(2) of the present Act. According to the famous rule of construction in Heydon's case (5) the Construction of the proviso to Section 14(2) is to be guided by the previous state of law containing the defect and the mischief therein which was remedied by the addition of the proviso to Section 14(2) by the Legislature. The very purpose of adding the proviso being to disable the tenant from defeating the eviction proceedings ad infinitum, it must be held that the proviso means what it says and is mandatory. The Controller has no discretion, thereforee, but is bound to refuse the benefit of Section 15(1) and Section 15(3) read with Sections 14(2) and 15(6) if the proviso to Section 14(2) applies. On this point also, the appellant fails.
(3)The learned counsel for the appellant referred to the provisions of Section 4(1), Section 5(1) and Section 48 of the Act to show that notwithstanding any agreement to the contrary, the landlord can recover only the standard rent from the tenant and if he recovers any rent in excess of the standard rent then a penalty can be imposed upon him. There can be no dispute about the meaning of these provisions and indeed such provisions are inevitable in a Statute the very purpose of which is to regulate the payment of rent by a tenant to a landlord. But the learned counsel for the appellant stretched the meaning of these provisions to the extreme and argued that wherever the word 'rent' occurred in the Act, it should be construed as ''standard rent' and, thereforee, the words 'arrears of the rent legally recoverable' in proviso (a) to Section 14(1) should be construed to mean arrears of standard rent. As the appellant contended that the standard rent of the premises was nto more than Rs. 50.00 per month, while the landlord has been recovering from him rent at the rate of Rs. 160.00 per month, on a proper account being made, it would be found that the tenant was nto in arrears at all. With this wider contention, I am unable to agree. It is an elementary principle of construction that two different words used in the Statute do nto ordinarily mean one and the same thing. For instance, the preamble of the Act says that the Act is to provide for the control of rents. Obviously, it is by controlling the rents that a standard rent is arrived at. It is clear, thereforee, that the word 'rent' and the expression 'standard rent' are used in different senses. The expression 'standard rent' has been defined in Section 2(k) read with Sections 6 and 7. The expression 'basic rent' providing a base for the calculation of standard rent is also defined in Section 2(a) and the second Schedule to the Act. These provisions do nto fix any particular amount as being the standard rent. They only lay down various criteria for the determination of standard rent. The standard rent is to be determined by the Controller under Section 9 of the Act. Unless and until it is so determined, the contractual rent between the parties is prima fade legal and valid. Since Section 4(1) says that no tenant shall be liable to pay to the landlord any amount in excess of the standard rent, the question arises whether in the absence of determination of the standard rent, the landlord is prevented from recovering the contractual rent from the tenant. The answer is that he is nto so prevented. The act does nto say that all contractual rents are abolished and that in each tenancy the standard rent must be determined by the Controller. thereforee, in all tenancies in which standard rent is nto determined, contractual rent would continue to be recovered. Even after standard rent is determined, contractual rent may still operate in its own sphere. Under Sub-Section (7) of Section 9 in fixing the standard rent, the Controller has to specify the date from which the standard rent shall operate. The date so fixed shall nto be earlier than one year prior to the date of the application for the fixation of the standard rent. This would mean that rent for a period prior to the date from which the fixation of the standard rent is to operate will be recoverable on the basis of contract.
(11) The learned counsel for the appellant, however, construed the above mentioned words as to mean that whatever may be the rent mentioned in the contract, it shall mean only the standard rent and nothing more than the standard rent can be recoverable from the tenant by the landlord. This argument is understandable when standard rent is fixed or is known either on admission or otherwise. But, if it is nto known or determined, the difficulty with this argument is that it would make illegal recovery of the contractual rent even for the period for which no standard is fixed. This construction would, thereforee, be contrary to the express provision of Section 9(7) of the Act referred to above. The words 'legally recoverable in proviso (a) to Section 14(1), thereforee, mean precisely what they say. Such rent is either the contractual rent or the standard rent, if the latter has been determined by the Controller under the provisions of the Act. If the standard rent has nto been determined the contractual rent is legally recoverable and would be covered by these words. I find, thereforee, that it cannto be said a priori that no landlord can revolver any rent from the tenant, which is nto the standard rent even if no standard has been determined.
(12) Even after the standard rent has been fixed, the standard rent will apply only to that period of tenancy for which it has been fixed. In respect of the rest of the period, the contractual rent will remain valid. Since the appellant cannto refuse to pay the contractual rent unless and until the standard rent is determined, it becomes very important to examine whether the standard rent could or could nto be Determined by the Controller in the present case. Apart from the fact that the appellant was nto entitled to the benefit of Sections 14(2) and 15(6) read with Sections 15(1) and 15(3) as pointed out by the learned lower Court there is a deeper reason why the appellant was nto entitled to the fixation of the standard rent in the present case. The reason is that the standard rent can be determined only on an application made to the Controller and that too within the limitation as provided by Section 12 of the Act. Admittedly, the limitation for such an application had expired in the present case. The learned counsel for the appellant argued that the written statement filed by Shri Chawla before the Rent Controller could be treated as an application for the fixation of standard rent. No doubt, there is no technical meaning to the word 'application' and a prayer made in the written statement even may be construed as application. The obstacle in the way of Shri Chawla, however, was that the said prayer was made after the expiry of the limitation. The learned counsel for the appellant however, argued that no limitation was prescribed if the plea for fixation of standard rent was raised by way of defense. He relied upon L. Manohar Lal v. Madan Lal L.Lacchman Das v. Goverdhan Das, and Simplex Manufacturing Co. v. Hindustan Tools Manufacturing Co. for this proposition. Firstly there is no provision in the Delhi Rent Control Act, 1958 for the determination of standard rent except by way of an application under Section 9, to which the limitation prescribed by Section 12 applies. Even when the dispute regarding the standard rent arises under Section 15(3) of the Act, an interim rate of interest is fixed there under 'until the standard rent in relation thereto is fixed having regard to the provisions of the Act'. It is significant that Section 15(1) fully and Section 15(3) partly deal with a proceeding for the recovery of possession by the landlord on the ground of non-payment of arrears of rent. The petitioner in such a case being the landlord the plea for the fixation of standard rent may be taken by the tenant as a non-applicant or respondent Nevertheless, the standard rent even at the instance of a respondent or a non-applicant has to be fixed 'having regard to the provisions of the Act.' These words immediately refer to the provisions governing the fixation of the standard rent, viz. Section 9 and 12 among others. Sections 9 and 12 restrict the fixation of the standard rent only by way of application. They are, thereforee, necessarily, subject to the limitation prescribed for the making of the application. If the tenant were to be allowed to pray for the fixation of standard rent at any time whatever, then the limitation prescribed by Section 12 could easily be circumvented. It is difficult to imagine that the Legislature intended Section 12 to be circumvented by the mere trick of making the prayer in a written statement, instead of in an application. I have already shown above that the written statement itself would be regarded as an application if it makes a prayer for the fixation of the standard rent. There is no merit, thereforee, in the contention that a written statement is exempt from the requirement of limitation for the fixation of standard rent.
(13) The above mentioned decisions relied upon by the learned counsel for the appellant were given under the provisions of the Delhi and Ajmer Rent Control Act, 1952. Section 8 of the old Act was worded differently than Section 9 of the existing Act. Under Section 8 of the old Act, the Court may on an application made to it for the purpose 'or in any suit or proceeding'' fix the standard rent. ........ .The words 'or in any suit or proceeding' in juxtaposition to the proceeding words' on an application made to it for the purpose' show that standard rent could be fixed nto only on an application, but also in the course of any suit or proceeding. The limitation for the fixation of standard rent prescribed by Section Ii of the old Act related only to the making of the application. This was why it had to be held under the old Act that no limitation was prescribed for the fixation of standard rent otherwise than on an application. In Section 9 of the existing Act, the words 'or in any suit or proceeding' are omitted. The effect is that the Controller has to determine the standard rent under Section 8 only on an application made in the prescribed manner and nto otherwise. It is true that under the old Act, the Civil Court had the jurisdiction to fix the standard rent and thereforee, the words 'in any suit' occurred in Section 8 thereof. The omission of these words in Section 9 of the existing Act may be explained by the fact that under Section 50 of the existing Act, the jurisdiction of the Civil Court to fix the standard rent is ex- eluded. But the omission of the words 'in any proceeding' in the present Act cannto be explained merely by exclusion of the jurisdiction of the Civil Court, to determine the standard rent. The words 'any proceeding' are broad enough to include the proceeding before the rent Controller. The only reason why these words are omitted in the existing Act can be that under the existing Act, the fixation of the standard rent can be made only on an application and nto otherwise. So construed, the circumvention of the limitation provision in Section 12 is also avoided. The statute has to be so construed that no provision of it becomes either surplus or easily avoidable.
(14) For the above reasons, thereforee, the appeal is dismissed with costs.