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Hari Kam Dhupar Vs. Rajinder Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 164 of 1971
Judge
Reported inAIR1973Delhi145; 9(1973)DLT142
ActsDelhi Rent Control Act, 1958 - Sections 9; Code of Civil Procedure (CPC), 1908 - Sections 149
AppellantHari Kam Dhupar
RespondentRajinder Singh and anr.
Advocates: B.I. Singh and; R.K. Maheshwari, Advs
Cases ReferredM. M. Chawla v. J. S. Sethi. Learned
Excerpt:
.....- standard rent - section 9 of delhi rent control act, 1958 -whether tenant can claim fixation of standard rent when landlord filed suit for eviction on ground of arrears of rent - right to apply for fixation of standard rent vested in tenant independently of ground on which his eviction may be sought by landlord - tenant can pray for fixation of standard rent in written statement even when eviction is sought by landlord on ground other than of arrears of rent. - - the failure to specify a rent is, thereforee, a fatal defect. (3) such a defect cannot be waived by the failure of the opposite party to object to it at once. no trace of any such intention in the statute, and there does not seem any good reason why it should be inferred from the general policy of the statute. 'hall*,the..........of the patents designs and trade marks act, 1883 required that an application must be made in a form prescribed in the schedule. nevertheless lord halsbury i. c., held that- 'the objection that no distinct claim is made-, is one of form only, and i think the legislature did not intend to make the direction, which undoubtedly the act contains, a condition upon the non-compliance with which the patent should be void. there is.no trace of any such intention in the statute, and there does not seem any good reason why it should be inferred from the general policy of the statute.' lord herschell, with whom lord morris concurred, observed : 'the act does not provide that if this requirement is not complied with the patent shall be void, and i think, it is impossible to imply any such.....
Judgment:

V.S. Deshpande, J.

(1) An application 'in the prescribed manner' has to be filed under section 9(1) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) for fixation of standard renter for an increase of standard rent and under the proviso to section 14(1) of the Act for the recovery of possession of the premises from the tenant. Accordingly a composite Form A of application for all these three purposes has been prescribed in the Rules made under the Act. Only the relevant entries suited to the particular purpose of the application have to be filed by the applicant who is at liberty to strike out those entries which are not applicable.

(2) The landlord Hari Ram Dhupar made an application against the tenants Rajinder Singh and Rattan Singh for their eviction under clause (b) of the proviso to section 14(1) of the Act on the ground that they had sub-let the premises, This application was made on 17th December, 1968 using the prescribed composite form of application. The landlord, however, filled all the entries in the application including those which were suitable only in an application including fixation of standard rent. On 10th February 1969, the tenants filed a written statement not only denying the claim of the landlord for eviction but also provingthat the standard rent of the premises befixed. The lease of the premises had been granted on 20th April, 1967. The limitation 'for an application for .fixation of standard rent fixed by section 12 of the Act was two years from the date of the commencement of the tenancy. The prayer in the writ ten statement made on 10th February, 1969 for fixation of standard rent was, thereforee, made within limitation. On 28th November, 1969 the application for eviction was amended and a written statement to the amended application was filed on 23rd January, 1970 reiterating the prayer for fixation of standard rent On 5th January, 1970 the landlord made an application under section 15(2) of the Act for an order by the Court directing the tenants to pay to him the arrears of rent and the monthly rent. On 11th March, 1970 a reply to this application was filed by the tenants again stating that the contractual rent was high and a standard rent should be fixed. On 24th March, 1970 Shri S. R. Goel, Additional Rent Controller passed an order for payment of rent under section 15(2) and also observed therein that the plea for fixation of standard rent was barred by time. This observation apparently related only to the plea for fixation of standard rent taken in the reply filed on 11th March, 1970 to the application of the landlord made under section 15(2). On 7th August 1970, however, the tenants pointed out that their original prayer for the fixation of standard rent was made within limitation and prayed that the standard rent be fixed accordingly. This prayer was resisted by the landlord on the ground that the observation of the Additional Rent Controller made on 24th March 1970 that the plea for fixation of standard rent was barrel by time operated as rest judicata. Shri Jaspal Singh, Additional Rent Controller, however, held that the application for fixation of standard rant as originally made on 10th February, 1969 was within limitation and that the standard rent could be fixed as prayed for therein. Against this order of 14th October, 1970 the landlord went in appeal but the Rent Control Tribunal agreed with the Additional Rent Controller and dismissed the appeal.

(3) In this second appeal Shri Bharat Inder Singh learned counsel for the appellant has urged two grounds, namely :-

(1)That the prayer of the tenants mad' on 10th February, 1969 for the fixation of standard rent was not made 'in the prescribed manner' as required by section 9; and (2) That the order of Shri Sr Goel, Additional Rent Controller made on 24th March 1970 holding that the plea for fixation of standard rent was barred by time was rest judicata

Learned counsel, thereforee, contended that the orders of the Rent Control Tribunal and that of the Controller should be set aside and the prayer of the tenants for the fixation of the standard rent should be rejected as barred by time.

(4) Let us consider the contentions in the appeal in the order in which they are made. Contention No. 1 :-In construing the expression 'in the prescribed manner' we have to inquire whether the words therein are mandatory or directory. The purpose of prescribing the manner of making the application is to ensure that the necessary averments are made in the application so that to Controller can have the necessary material before him to fix the standard rent. In so far as the expression 'in the prescribed manner' is understood to require that the essential facts required to be stated therein must be stated, it is arguable that it is mandatory particularly when the avermentis so basic that an application cannot be entertained without it. The analogy of Order Vii rule 11 (a) of the Code of Civil Procedure is apposite. If a plaint does not disclose a cause of action, then it is liable to be rejected. Similarly, if an application for the fixation of standard rent does not contain some such averment without which the application cannot be said to be 'in the prescribed manner' at all, then the application may be said to be incomplete or had in law. The mandatory nature of such a requirement in an application for the fixation of standard rent may be illustrated by reference to a decision of the Queen's Bench Division in Chapman v. Earl, Paragraph 2 of Schedule 3 to the Rent Act, 1965 (of the U. K.) required that an application shall be in the prescribed from and contain the prescribed particulars in addition to the rent which It is sought to register. The rent which was to be registered was equivalent to the standard rent with which we are concerned. The application in that case omitted to state the rent which it sought to register. The contention that the application was. thereforee, defective was upheld by Fisher J. speaking for the Court for the following reasons:-

(1)The specification in the application of a particular rent is fundamental to the whole scheme of Schedule 3. Paragraph 2 does not merely treat the proposed rent as one of the prescribed particulars. The prescribed particulars are to be given 'in addition to the rent which it is sought to register'. (2) An application for the registration of rent does not mean an application at large, but an application for the registration of a particular rent. The failure to specify a rent is, thereforee, a fatal defect. (3) Such a defect cannot be waived by the failure of the opposite party to object to it at once. Even, thereforee at a subsequent stage this application remains a nullity. (4) Ordinarily a non-compliance with a procedural requirement is not mandatory. But the requirement to state the rent sought to be registered is not a procedural requirement and this case is, .therefore, an exception to the rule.

On the other hand, the expression 'in the prescribed manner' will not be construed as mandatory insofar as it relates to the mere form as distinguished from the substances of the matter. For instance, an application may not be made in the tabular form given as Form A in the Rules. It may be made in the ordinary form of a pleading consisting of paragraphs. If the particulars required in such an application are substantially stated, then the mere fact that the application is not in a prescribed form will cot make it defective. For, the substance of the requirements is complied with even though the mere form of it may not be complied with. In Seth Banarsi Das v.The Cane Commissioner, the appellant had left certain blanks in the prescribed from of application and had also omitted to sign it. It was argued that the form was defective and as such liable to be rejected. The argument was, however, negatived by the Supreme Court on a review of the case-law and it was obeserved at page 782 of the report that non-compliance with requirements which were merely a matter of form would, not attract the penal consequences provided that a substantial compliance with the terms and conditions set out in the form was made. A literal compliance with the form was not essential. In Vickers Sons and Co. v. Siddell, section 5(1) of the Patents Designs and Trade Marks Act, 1883 required that an application must be made in a form prescribed in the Schedule. Nevertheless Lord Halsbury I. C., held that-

'the objection that no distinct claim is made-, is one of form only, and I think the legislature did not intend to make the direction, which undoubtedly the Act contains, a condition upon the non-compliance with which the patent should be void. There is.no trace of any such intention in the statute, and there does not seem any good reason why it should be inferred from the general policy of the statute.' Lord Herschell, with whom Lord Morris concurred, observed :

'the act does not provide that if this requirement is not complied with the patent shall be void, and I think, it is impossible to imply any such condition'. In Jackson (Francis) Developments Ltd v. 'Hall*, the argument was that if the tenant failed to specify in his application any of the matters required by the regulation as, for instances, if he failed to specify the name of the landlord or of his address or specified them wrongly, the application would be nullity. The argument was rejected by Denning I. J. in the following word;

'The Act of 1949 does not require an application to a rent tribunal to be in any prescribed form ............ it gives the Minister power to make regulations with regard to proceedings before rent tribunals, and that. no doubt, includes power to give directions as to the form which applications should take. But the Minister has no power to impose formal conditions of validity on an application, when Parliament itself has required none. The regulations must, thereforee, be construed as directory and not imperative, for otherwise the Minister would be exceeding his powers '. In Regina v. London Rent Assessment Panel, the decision in Chapman v. Earl referred to above was distinguished. The application for the registration of a rent in that case was not signed and was accompanied by a letter. The argument that the application was invalid was rejected with the following observation at page 973 : 'so far as the merits are concerned, there is no doubt that they were the tenants' application'.

(5) The Court, thereforee, looked to the substance of the averments and not to the form in which they were made. In the light of the above law, we may examine whether the averments for the fixation of the standard rent were sufficient to enable the Controller to proceed to fix the standard rent in the present case. Firstly the premises in this case were construted by the landlord. It was, thereforee, within the personal knowledge of the landlord as to what was the cost of construction of the house and the market value of the land on which it was constructed at the Commitment of the construction. These factors were to be the basis on which the standard rent would be fixed under section 6 of the Act. In the composite application made by the landlord for eviction, there were certain columns in which the information to be filled related entirely to the fixation of the standard rent. These columns were filled by the landlord even though he was not bound to fill them. The fact remains that all the information necessary for the fixation of the standard rent was given by the landlord himself in the composite application. For instance, in column (7) details of fittings were given as electric fittings. In column (8) details of accommodation available were given as one shop in house No. B-4/ 4A, Model Town, Delhi, shown in the red in the site plan attached. In column (10) the amenities available were stated to be lighting, water and sanitation. In column (12) the date of completion of the construction was stated to be 9th January, 1967 and the cost of construction was stated to be Rs. 20.000.00. It was also stated that the completion report had been obtained from the local authority. In column (13) the rateable value was stated to be Rs. 1,522.00per annum for the purpose of the house tax of the whole building. In column (15) it was stated that the rent of the premises had not been previously fixed under any statute. In column (17) it was stated that no addition or alteration had been made since the rent was fixed. All these particulars were necessary only for the fixation of standard rent and not for eviction. In the written statement filed by the tenant on 10th February, 1969, it was stated that the premises and their extend were fully shown in the rent agreement between the parties, that the rent claimed was too high and that the standard rent should be fixed. It was further stated that the cost of construction stated by the landlord was too high and it could not be more than Rs. 1.440.00 and that the tenants would file estimates of the cost of construction in due course. it was also pointed out that standard rents for neighbouring houses had been fixed by the Controller and that the standard rent of these premises should be fixed in accordance with the standard rents of the neigobouring premises. It is clear to me that these averments in the pleadings of both the parties, taken together gave a full picture to the Controller for fixation of standard rent. The word ' application ' merely means that the applicant must make sufficient averments to get the relief desired. It does not mean that the averments must be put in the technical form of an application. This is why the Supreme Court regarded the prayer for fixation of standard rent made in the written statement as sufficient in M. M. Chawla v. J. S. Sethi. Learned counsel for the appellant contended that the ground on which eviction was sought by the landlord in M.M. .Chawla's case was arrears of rent and, thereforee, it was relevant for the tenant to plead in defense that the standard rent should be fixed. It was contended that the plea for the fixation of standard rent in the present case by the tenant was not relevant as the ground on which eviction was sought was not arrears of rent but sub-letting. I am unable, however, to restrict the ratio of the decision of the Supreme Court as suggested by the learned counsel. The right to apply for the fixation of standard rent is vested in the tenant quite independently of the ground on which his eviction may be sought by the landlord. The tenant can, thereforee, pray for the fixation of standard rent in a written statement even when his eviction is sought by the landlord on a ground other than the arrears of rent. Lastly it was contended that no court-fee was paid on the written statement by the tenants to make it an application for the fixation of standard rent. it is true that originally such court-fee was not paid but I find that later on court-fee has been paid by the tenants. On the principle underlying section 149 Civil Procedure Code the Controller had a discretion to allow the ten- ants to pay the court fees later even after the original period of two year for making the application had expired. This contention of the appellant is, thereforee, rejected. Contention No. 2 :-A perusal of the order dated 24th March, 1970, of the Additional Rent Controller Shri S. R. Goel makes it clear that it was an order passed under section 15(2) of the Act ordering payment of rent to the landlord by the tenants. The observation that the prayer for fixation of standard rent was barred by time was only incidental. It n'as made under the wrong impression that the prayer was made for the first time by the tenants in their reply dated 11th March, 1970 to the application of the landlord made on 5th January, 1970, for an order under section 15(2). There was no reference to the prayer made by the tenants for the fixation of standard rent in their written statement filed on 10th February, 1969. It cannot be said, thereforee, that the order dated 24th March, 1970, rejected the application of the tenants for the fixation of standard rent made on 10th February, 1969. It follows, thereforee, that the order dated 24th March, 1970 did not act as rest judicata between the parties regarding the application for fixation of standard rent dated 10th February, 1969. That order is, thereforee, no bar to the fixation of standard rent. The decision of Shri Jaspal Singh, Additional Rent Controller was, thereforee, correct and rightly upheld by the Rent Control Tribunal. The appeal is, thereforee, dismissed with costs.


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