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V.P. Gulati Vs. Sumitra Soni - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 288 of 1971
Judge
Reported in9(1973)DLT307
ActsDelhi Rent Control Act, 1958 - Sections 15(2)
AppellantV.P. Gulati
RespondentSumitra Soni
Advocates: B.N. Nayar and; A.C. Sehgal, Advs
Cases Referred(Ram Prakash Kapur v. Bhagwann Devi
Excerpt:
.....it is open for landlord to file suit for balance amount during pendency of proceedings when rent controller under section 15 (2) fixed interim rent which is less than agreed rent - tenant contended that arrears of rent beyond three years not legally recoverable - during pendency of application landlord cannot file suit for recovery of rent - landlord entitled to file suit for recovery of arrears only after adjudication of application - appeal dismissed. - - ultimately the application failed because of want off notice by the landlord and was dismissed on 2. 2. 1968 (3) the landlord on 1. 1. 1970 filed another application for eviction on the ground of personal bona fide requirement. that case, however, is clearly distinguishable. now it is well settled that if an interpretation..........the question that arises in these proceedings is whether after interim rent has been fixed by the rent controller under section 15(2) of the delhi rent control act, 1958 (hereinafter called the act) which is less than the agreed rent as alleged by the landlord, it is open to the landlord to file a suit for the balance of the amount during the pendency of proceedings before the rent controller and as to when the limitation would start for the recovery of the difference of the amount between the interim rent and the agreed rent.(2) on 18.1.1964 the respondent-landlord filed an application for eviction of the appellant from the premises in dispute on the ground of bonafide need. an application under section 15(2) of the act was filed on 20. 8. 1964 for orders directing the tenant to.....
Judgment:

Rajinder Sachar, J.

(1) The question that arises in these proceedings is whether after interim rent has been fixed by the Rent Controller under section 15(2) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) which is less than the agreed rent as alleged by the landlord, it is open to the landlord to file a suit for the balance of the amount during the pendency of proceedings before the Rent Controller and as to when the limitation would start for the recovery of the difference of the amount between the interim rent and the agreed rent.

(2) On 18.1.1964 the respondent-landlord filed an application for eviction of the appellant from the premises in dispute on the ground of bonafide need. An application under Section 15(2) of the Act was filed on 20. 8. 1964 for orders directing the tenant to deposit the arrears of rent which was alleged to be Rs. 125.00 p. m and due from 1.4.1964. The tenant- appellant raised the plea of standard rent and the Rent Controller by his order dated 10. 1. 1966 fixed the interim rent at the rate of RS.IOO.00 p. m. Ultimately the application failed because of want off notice by the landlord and was dismissed on 2. 2. 1968

(3) The landlord on 1. 1. 1970 filed another application for eviction on the ground of personal bona fide requirement. On 30 1.1970 the respondent filed anapplication under Section 15(2) of the Act for an order directing the appellant to deposit the arrears of rent. The rent claimed was from 1.4. 1964 to 31. 12. 1969 which came to be a sum of Rs. 8625.00out of which the appellant was stated to have deposited rent of Rs. 3700 and a balance of Rs. 4925.00 was still due.

(4) The tenant appellant took up the plea that he could not be directed to pay the arrears for more than three years prior to the date of application. The Rent Controller by his order dated 18.3.1970 negatived this contention and directed the appellant to deposit the arrears for the period from 1.4 1964 onward at the agreed rate of rent i. e. Rs. 125.00. The tenant took up the appeal to the Rent Control Tribunal who has held that the interim rent having been fixed at Rs. 100.00 p. m. the landlord could only have claimed rent by filing a suit at that rate and not at the enhanced rate. He, thereforee, accepted the appeal partly and modified the order of the Rent Controller and,gave a direction to the appellant to deposit the arrears of rent for the period from 1. 4. 1964 to 31. 12. 1966 at the rate of Rs. 25.00 p. m. i. e. the difference between the agreed rent and the interim rent and at the rate of Rs. 125.00 with effect from 1. 1. 1967. The tenant is aggrieved against thjs order and, has come up in appeal to this court. The landlord is obviusisatified with the Tribunal's order as no appeal has been filed by him.

(5) Section 15(2) of the Act provides that 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 proceedings, 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 accortance with the provisions of the sub-section.

(6) The argument of the counsel for the appellant Mr. Nayar is that as arrears of rent beyond three years from the date of application are not legally recoverable, there is no jurisdiction in the Rent Controller or the Tribunal to give a direction to the appellant-tenant to deposit the rent for the period prior to three years. It is not disputed that so far as the order directing the appellant to deposit the arrears of rent for the period 1. 1. 1967 onward is concerned, the same was legally recoverable as being within three years from the date of application which was filed on 31. 1. 1970. The dispute really centres on the question whether the tribunal was correct in directing the deposit of the difference at the rate of Rs. 25.00 p.m. from 14.1964 (031.12.1966. It is also a common case that in the earlier proceedings the Rent Controller had passed an Older under Section 15(2) of the Act fixing the interim rent at the rate of Rs. 100.00p.m. payable from 1. 4. 1964 and that order remained in force up to 2.2.1968. The question, thereforee, arises whether limitation is to be calculated from 2. 2.1968 when the order of interim rent lapsed because tie main application was dismissed. If it is calculated from that date it is obvious that the claim would be within time as being within three years from the date of application i e. 30.1. 1970. The argument of Mr. Nayar, however, is that even though interim rent had been fixed at Rs. 100.00 it did not bar the landlord to rile a separate suit for the recovery of the balance of the amount and he not having done so, the claim is barred by time as being beyond three years. Mr. Nayar referred me to Narayaun Jiyangouda Patil v. Putlabai, Sirajul Haq Khan v. Sunni Central Board of Waqf', The Chemist, afirm v. Ishwarlat Karsondas Kapadia, and A. S. K. Krishnappa Chelliar v. S. V. V. Somiah, and urged that for calculating lime under Section 15(1) of the Limitation Act it has to be shown that the institution of suit in question had been stayed by an injunction or order and as there was no injunction issued against the landlord from filing a suit for recovery of the difference between the interim rent of Rs. 100.00 and the agreed rent of Rs. 125.00 p m. the said section would not be applicable and the period, thereforee, cannot be extended.

(7) Reference was also made to Shri Hari Shankar Saxena v. Shrimati Sarla Devi. That case, however, is clearly distinguishable. In that case, the Rent Controller had given a direction under Section 15(1) of the Act for depositing the arrears of rent from 1. II. 1959 to 30. 6 I960 and the application by the landlord had been filed on July 15, 1963. The landlord's plea in that case was that as the tenant had filed an application for fixation of standard rent and as it was only decided on 27. 12. 1961, he could not have claimed the arrears of rent prior to that period and as thereforee his application of July 15, 1963, was within three years of the date when the standard rent was fixed. This plea was rejected by the learned Single judge who held that the limitation began when the contr- actual rent became due and the landlord was not to wait till fixation of standard rent and as the standard rent was fixed only, in July, 1961, and as the rent was being claimed from November, 19'9 to May, I960 the landlord could not claim that because of the pendeny of the application for standard rent the limitation was saved, this case was distinguished in Prem Sheel Malhan v. Kumari Shanti Shnrma' In that case interim rent had been fixed under Section 10 of the Act during (be pendency of an application for fixation of the standard rent under Section 9. In that case the plea was raised that even if the interim rent is fixed under Section 10 which is less than the alleged contractual rent the landlord would be entitled to recover the whole of the contractual rent from the tenant in the civil court. This plea was specifically negatived and the learned judge held that as the fixation of the interim rent was within the jurisdiction of the Rent Controller the same would bar a suit in view of the specific provision of Section 50 of the Act It was also held that the benefit of Section 15(1) of Limitation Act would be available to the landlord in sucha case.Mr.Nayar had first contended that the only result of the fixation of the interim rent is that the tenant if he pays that rent avoids incurring the penalities provided under the Act, but his does not mean that the landlord could not at the same time file a civil suit for the recovery of the difference between the interim rent and the alleged agreed rent. I do not agree. The scheme of the Act does not envisage that even when interim rent has been fixed it would be open to the landlord to file a suit for the recovery at the contractual rent for the period for which the interim rent has been fixed under the Act Simultaneously proceedings in the civil court and before the Controller may lead to conflicting decisions. Now it is well settled that if an interpretation leads to a conflict of jurisdiction the same should be avoided. Reference to Section 50(l) of the Act shows that no civil court shall entertain any suit or proceeding in so far as it relates to any matter which Controller is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority. Now the Controller is admittedly authorised to fix the interim rent under Section 15(2) of the Act. The landlord if he was. thereforee, to go to the civil court asking for .the payment of rent at the rate higher than that fixed under section 15(2) by the Rent Controller would be asking for adjudication on a matter on which the Rent Controller is authorised under the Act to decide and which is specifically barred under Section 50(1) of the Act Sub-section (2) of Section 15 of the Act empowers the Controller to make an order on the tenant to pay to the landlord the amount of rent far a particular period. Taking the present case when the Rent Controller passed an earlier order under Section 15(2) on 10.1. 1966 fixing the interim rent at the rate of Rs. 100/ p.m. to be paid by the tenant from 1. 4 1964 it is apparent that from that period right till 2 2.1968 when the proceedings terminated the civil court could not have given any direction for payment of rent at an amount contrary to that fixed by the Rent Controller for that period. To accept the argument of Mr. Nayar would amount to accepting the proposition that the civil court could have directed that inspire of the Rent Controller giving a direction to pay rent at the rate of Rs 100.00 from 1 4.1964 the tenant should be directed to pay rent at the rate of Rs. 125.00 p m. This could not be done as it is prohibited by Section 50(1) of the Act.

(8) I was at one time inclined to refer this matter to a larger bench because of the improtance of the point. But I am relieved from this because Mr. Nayar, counsel for the appellant very commendably and fairly brought to my notice a decision on a similar matter given by a Division Bench in S. A. 0. No. 306/71 decided on II. 10.1972 (Ram Prakash Kapur v. Bhagwann Devi), (though the decision is against bids contention.) In that case in an application for eviction claim of Rs. 248U.00 was made for the arrears of Rent at the rate of Rs. 20.00 from 8 5.1959 to September, 1969. On the application of the tenant for fixation of standard rent and during the pendency of the proceedings interim rent had been fixed by the Controller at Rs. 80.00 effective from 8. 5 1959. Standard rent was finally determined by the court at Rs. 100.00 p. m. on 3. 10. 1969. The Division Bench held that the cause of action to enforce the claim of arrears of rent arose only when the standard rent was determined on 3. 10 1969 and thereforee the application filed on 3. 5. 1970 for recovery of the arrears was not barred by time. The view taken was that as the Controller was empowered to make under section 10 of the Act an order and as by virtue of Section 50 the jurisdiction of the civil court in respect of that matter is barred cause of action only acrued after the fixation of the standard rent on 3.10.1969 Applying the ratio of that case to the present case, it is apparent that during the period of the pendency of the. first application from 1.4 1964 to 2.2 1968 the respondent could not file the suit to recover the difference of arrears between the intermrent fixed at Rs. 100.00 and the agreed rent of Rs. 125/ It is only when the bar was removed by the dismissal of the application on 2. 2 1968 that the landlord could file Suit for the recovery of the arrears. I would thereforee, affirm the finding of the Rent Control Tribunal and dismiss this appeal but in the circumstances of the case there will be no order as to costs.

(9) The Tribunal had given to the tenant a period of one month to deposit the arrears. The operation of that order was stayed when this appeal was admitted. Asnow I am dismissing the appeal it is only fair that the appellant should be given one monthfrom today to deposit the arrears of rent and I would order accordingly.


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