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Ram Murti Vs. Bhola Nath and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 163 of 1977
Judge
Reported in22(1982)DLT426
ActsGeneral Clauses Act, 1897 - Sections 27; Evidence Act, 1872 - Sections 114; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantRam Murti
RespondentBhola Nath and anr.
Advocates: B.T. Nayyar and; K.B. Rohtagi, Advs
Cases ReferredIn Ram Sumar vs. Janki Prasad
Excerpt:
.....of order under section 15(1)--whether time under section 15(1) could be extended.; the rent controller fixed interim rent and passed an order under section 15(1) at rs. 18/- per month, and land lord's appeal against this order was dismissed. the controller finally fixed the rent at rs. 80/-per month and directed deposit of arrears. on appeal, the case was remanded by tribunal. there was non-compliance of order under section 15(1). the controller ordered eviction. dismissing the appeal.; 1. section 27 of the general clauses act, 1897, provides that where any central act or regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting it by..........rent from 1st of december, 1965 up to date at the rats of rs. 80 per month within one month. the rent deposited already shall be deducted'.(9) he submits that the additional controller by these observations modified the earlier order dated 14th february, 1969 and it merged with order dated 7th august, 1972. 'i do not agree. the additional controller directed the appellant to deposit only the balance of arrears of rent. these observations clearly mean that the appellant was to deposit at rs. 80 per month after deducting the rent already deposited by him. there is no ground to hold that the order dated , february, 1969 merged with the order dated 7th august, 1972. (10) however under section 35(1) of the act, a tenant is required to deposit arrears of rent and future monthly rent at the.....
Judgment:

Sultan Singh, J.

(1) The tenant, in his second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') challenges the judgment and order of the Rent Control Tribunal dated 23rd August, 1977 affirming on appeal the order of the Additional Controller dated 8th March, 1976 directing his eviction under Section 14(l)(a) of the Act.

(2) Briefly the facts are that on 19th December, 1968 Bhola Nath, respondent filed a petition for eviction of the appellant and one Basant Lal under Section 14(l)(a)(b) of the Act alleging that the appellant was his tenant in quarter No. 16137 Ab, Tilak Nagar, New Delhi on monthly rent of Rs. 80 besides other charges, that he in spite of a notice dated 8th October, 1968 demanding arrears of rent for the period from 1st June, 1961, failed to pay the same and that he had sublet, assigned or otherwise parted with the possession of two rooms of the tenancy premises to Basant Lal without obtaining his consent. The appellant in his written statement challenged the validity of the notice of demand and pleaded that the rent was Rs. 18 per month. He denied the ground of sub-letting. The Additional Controller by judgment dated 14th February, 1969 passed an order under Section 15(1) of the Act directing the appellant to deposit all arrears of rent at Rs. 18 per month for the period from 1st December, 1965 within one month and future monthly rent by the 15th of the succeeding month.' The respondent-landlord filed an appeal challenging the order dated 14th February, 1969 on the ground that the Controller ought to have directed the appellant to deposit rent @ Rs. 80 per month. The Rent Control Tribunal dismissed the landlord's appeal. The Additional Controller by his judgment dated 7th August, 1972 passed an order of eviction under Section 14(l)(a) of the Act and held that the agreed rate of rent was Rs. 80 per month. The appellant was directed to deposit balance of arrears for the period' from 1st December, 1965 at Rs. 80 per month within one month and was allowed to deduct the amount already deposited by him to get the benefit under Section 14(2) of the Act. The eviction application under Section 14(l)(b) of the Act was dismissed. The respondent-landlord filed an appeal before the Tribunal claiming eviction under Section 14(l)(b) of the Act. The appellant also filed an appeal challenging the agreed rate of rent and other findings. The Tribunal accepted the two appeals and remanded the case for recording additional evidence and decision in accordance with law. The Additional Controller after recording evidence by his judgment dated 8th March, 1976 held that a valid notice of demand was served upon the appellant, that he committed default in complying with the order dated 14th February, 1969 passed under Section 15(1) of the Act and thereforee he held that it was unnecessary to determine whether the agreed rent was Rs. 18 or Rs. 80 per month. An order of eviction against the appellant under Section 14(1)(a) was passed and the landlord's claim for eviction under Section 14(l)(b) of the Act was dismissed. The appellant's appeal by judgment dated 23rd August, 1977 was dismissed by the Tribunal confirming order of the Additional Controller.

(3) Learned counsel for the appellant has challenged the impugned order on the following grounds : 1. The eviction application does not disclose any cause of action; 2. No valid notice of demand under Section 14(1)(a) of the Act was ever served upon the appellant ; 3. The order dated 14th February, 1969 requiring the appellant to deposit arrears of rent with effect from 1st December, 1965 at the interim rate of Rs. 18 per month merged with the order dated 7th August, 1972 of the Additional Controller and as order dated 7th August, 1972 was set aside by the Tribunal on 25th April, 1974 the order dated 14th February, 1969 is also deemed to have been set aside. 4. In any case after the acceptance of the appeals by the Tribunal on 25th April, 1972 remanding the case to the Additional Controller, there was no automatic revival of the order dated 14th February, 1969 passed under Section 15(1) of the Act. 5. The dispute whether agreed rent or the last paid rent was Rs. 80 or Rs. 18 per month has not been determined and thereforee the Rent Control authorities have no jurisdiction to pass the order of eviction. 6. There was no default in deposit of arrears of rent but there was only some delay in deposit of future monthly rent under Order dated 14th February, 1969 and the Rent Control Authorities ought to have condoned the same.

(4) Dealing with the first submission that the eviction application does not disclose any cause of action, learned counsel invites my attention to para 18(l)(a,) of the petition which reads as under :

'(1)Non-payment of arrears of rent with effect from 1st June, 1961 at the rate of Rs. 80 per month in spite of repeated demand and registered notice of demand dated 8-10-1968. (2) That respondent No. 1 has sublet, assigned or otherwise parted with the possession of two rooms of the said building to respondent No. 2 without the consent of the petitioner'.

(5) He submits that the landlord has not pleaded that the tenant neither paid nor tendered the arrears of rent within two months of the date of service of notice of demand, I do not agree. The landlord has pleaded that he is claiming eviction on ground of non-payment of rent for the period from 1st June 1961 at the rate of Rs. 80 per month in spite of registered notice of demand dated 8th October, 1968. No such plea was taken before the Rent Control authorities. The second ground of eviction under Section 14(1)(b) of the Act is not challenged by the petitioner. Thus it cannot be held that the eviction petition does not disclose any cause of action within the meaning of Order 7 rule 11 of the Code of Civil Procedure. The petition for eviction does disclose a cause of action.

(6) Notice of demand dated 8th October, 1968 Exclaiming arrears of rent at the rate of Rs. 80 per month from 1st June, 1961, was sent under certificate of posting as well as by registered A.D. post. The envelope containing the notice was received back with the remark's 'refused'. This refusal was made on 10th October, 1968. The appellant tenant appearing as his own witness did not say anything about the receipt or non-receipt of the notice of demand. Ex. A.R. 612 is the certificate of posting. Ex. A.W. 611 is the returned envelope. The notice sent in this envelope was taken out by the Additional Controller and was marked as Ex. CX. Learned counsel for the appellant submits that the notice was not refused and notice alleged to have been sent under certificate of posting was never received. He further submits that the appellant never had knowledge of the contents of the notice.

(7) Section 27 of the General Clauses Act, 1897 says that where any Central Act or Regulation authorises or requires any document to be served by post,. then unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent in the manner provided in the said section. Similarly presumption is raised under illustration (2) to Section 114 of the Indian Evidence Act where it is stated that the court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. The presumption under the said two provisions is rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. There is no evidence in rebuttal. Thus it must be held that the notice of demand dated 8th October, 1968 was duly served on or about 10th October. 1968 and the appellant is deemed to have knowledge of its contents. In Harcharan Singh vs . Smt. Shivrani and others, : [1981]2SCR962 it has been observed as follows :

'IT is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must. be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, thereforee, be reasonable to hold that when service is effective by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act'.

No invalidity in the notice has been pointed out, I thereforee hold that notice of demand is valid.

(8) The learned counsel next submits that order dated 14th February, 1969 merged with order dated 7th August, 1962 and the same was set aside by Tribunal on 25th April, 1974. The Additional Controller in his judgment dated 7th August, 1982 held Rs. 30 per month as the agreed rate of rent. As the appellant was directed to deposit arrears of rent @Rs. 18 per month by order dated 14th February, 1969 be directed him to deposit the balance of arrears up to date within one month after deducting the amount already deposited. This .does not mean that the previous order dated 14th February, 1969 was superseded or it merged in the later order. Learned counsel for the appellant refers to the following passage of the Additional Controller's judgment dated 7th August, 1972:

'In these circumstances, believing the applicant's evidence, it must be held that agreed rate of rent is Rs. 80 per month. Respondent No. 1 as stated above had been ordered to deposit the arrears of rent at the rate of Rs. 18 per month, but since agreed rate of rent is held to be Rs. 80 per month order under Section 15(1) is thereforee modified to the extent that respondent No. 1 shall deposit arrears of rent from 1st of December, 1965 up to date at the rats of Rs. 80 per month within one month. The rent deposited already shall be deducted'.

(9) He submits that the Additional Controller by these observations modified the earlier order dated 14th February, 1969 and it merged with order dated 7th August, 1972. 'I do not agree. The Additional Controller directed the appellant to deposit only the balance of arrears of rent. These observations clearly mean that the appellant was to deposit at Rs. 80 per month after deducting the rent already deposited by him. There is no ground to hold that the order dated , February, 1969 merged with the order dated 7th August, 1972.

(10) However under Section 35(1) of the Act, a tenant is required to deposit arrears of rent and future monthly rent at the rate of rent last paid. In the instant case there was dispute about the last paid rent. The order dated 14th February, 1969 directing the appellant to deposit rent at Rs. 18 per month may be called an interim order meaning thereby that after determination of the last paid rent or the agreed rent, farther order can be passed requiring the tenant to deposit. In Pritam Das vs. Kumari Jiya Rani, 1981 R L R 492 it has been held that the order for deposit of interim rent can be passed on prima facie view of the evidence and that such an order is not final and that parties can give fuller evidence in final hearing and subsequently further order can be passed. In Ram Sumar vs. Janki Prasad, 1981 Raj Law Rep 518 I held that if after trial Controller finds more amount due from tenant, he can be directed to deposit arrears found due and such an order would be an additional order and not in supersession of the earlier order. Thus order of deposit @ Rs. 18 per month was interim order under Section 15(1) and the order dated 7th August, 1972 holding agreed rent to be Rs. 80 and directing the appellant to deposit balance of arrears was the final order under Section 15(1) of the Act.

(11) Next it is submitted that the order dated 7th August, 1972 of the Additional Controller was set aside on 25th April, 1974 by the Tribunal and the case was remanded. The contention is that when the order dated 7th August, 1972 was set aside the previous order dated 14th February,. 1969 is deemed to have been set aside. It is not correct to say so. The appellant never challenged the previous order dated 14th February, 1969 passed under Section 15(1) of the Act, that order was passed on his admission as he had pleaded that the agreed rent was Rs. 18 per month. It was on account of this admission that the Additional Controller directed the appellant to deposit rent @ Rs. 18 per month. There is thus no ground to hold either that the order dated 14th February, 1969 merged with the order dated 7th August, 1972 or that with the setting aside of the order dated 7th August, 1972 the previous order dated 14th February, 1969 was also set aside. I hold that though the order dated 7th August, 1972 was set aside by the Tribunal on 25th April, 1974 the order dated 14th February, 1969 under Section 15(1) of the Act subsisted.

(12) As already stated the Tribunal by order dated 25th April, 1972 remanded the eviction proceedings to the Addl. Controller. Learned counsel for the appellant submits that by remand there was no automatic revival of the order under Section 15(1) of the Act passed on 14th February, 1969. He submits that the Additional Controller ought to have passed a fresh order requiring the appellant to deposit arrears of rent and future rent. I do not agree. In the instant case, the facts are that order dated 7th August, 1972 only was set aside by the Tribunal on 25th April, 1974 and order dated 14th February, 1969 was not set aside. Since the order dated 7th August, 1972 was set aside it would mean that the eviction application remained pending and all other orders prior to 7th August, 1972 on the record stood revived. It is not the argument of the learned counsel for the appellant that the Addl. Controller was required to start de novo trial of the eviction petition. This is not the intention of the Act. What is set aside by the Tribunal in appeal is only the order dated 7th August. .1972. In Smt. Radhey Bai and others vs. Smt. Javitri Sharma, 1975 R.C.J. 279 an order under Section 15(2) of the Act was passed but the main petition for eviction was dismissed in default of appearance of the landlady. On appeal the main petition for eviction was restored. It was held that with the restoration of the main petition the interlocutory order under Section 15(2) of the Act revived with the restoration of the petition and that the proceedings would commence from the stage at which they were pending before the dismissal.

(13) Next it is submitted by the learned counsel for the appellant that though the Additional Controller in his order dated 7th August, 1972 determined the agreed rent or last paid rent as Rs. 8Q but after remand the Additional Controller did not determine the rate of rent payable by the appellant. The Additional Controller did not determine the rent on the ground that the appellant had committed ' default in complying with the order dated 14th February, 1969 passed under Section 15(1) of the Act. In eviction proceedings under Section 14(l)(a) of the Act the landlord is required to have a notice, of demand requiring the tenant to pay legally recoverable arrears of rent within the period of two months from the date of service. If the tenant neither pays nor tenders the arrears of rent, cause of action accrues to the landlord. After the filing of the eviction case a tenant is protected, if he deposits or pays the arrears of rent and future monthly rent in accordance with Section 15 of the Act. Under Section 15(1) the Controller is required to pass tie order for deposit at the rate last paid but when there is a dispute the Controller is entitled to pass the order on the basis of the rate of rent admitted by the tenant. In this case the appellant was directed to deposit arrears of rent @ Rs. 18 per month on his own admission. After the determination of the dispute regarding the rate of rent the Controller had jurisdiction to pass a fresh order for the deposit of the balance of arrears of rent as was done by the Additional Controller in his order dated 7th August, 1972, but that order now stands set aside. The question thereforee is whether after remand by the Tribunal, was it necessary for the Controller to determine the agreed rate of rent when it is apparent from the record that the appellant did not comply with the order dated 14th February, 1969 passed under Section 15(1) of the Act. After filing of the eviction case passing of an order under Section 15 is mandatory. It has been held by the Full Bench in Pritam Das (Supra) that an interim order can be passed under Section 15 on prima facie view of the evidence and subsequently after trial further order can be passed under Section 15 of the Act. Reference to Section 14(2) of the Act will show that the tenant is given protection against eviction under Section 14(l)(a) of the Act if he complies with the order under Section 15 of the Act. Thus if orders more than one are passed under Section 15 of the Act, the tenant is required to comply with all the orders passed under the said Section. If the tenant has failed to comply with any order under Section 15 of the Act he would not be entitled to protection under Section 14(2) of the Act, I, thereforee, hold that it was not necessary for the Rent Control Authorities to decide the dispute about the rate of rent when the tenant had failed to comply with the order requiring him to deposit rent under Section 15(1) of the Act.

(14) The Controller and the Tribunal on the evidence on record have held that the appellant-tenant deposited only arrears of rent in accordance with order dated 14th February, 1969 at Rs. 18 per month but committed default in deposit of future rent for the months of May, June, July and August, 1975. The rents for May and June, 1975 were deposited by him on 14th August, 1975 although the same were to be deposited on or before 15th June, 1975 and 15th July, 1975 respectively. Similarly the rents for July and August, 1975 were deposited on 19th September, 1975 while the rent for July and August, 1975 ought to have been deposited by 13th August, 1975 and 15th September, 1975 respectively. There is default in deposit of rents for these four months. Thus the appellant did not comply with order dated 14th February, 1969 under Section 15 of the Act.

(15) Faced with this difficulty, learned counsel submits that if the tenant has deposited arrears of rent and has failed to deposit future monthly rent he is not liable to be evicted. I do not agree. As already stated. Section 15(1) of the Act requires deposit of arrears of rent as well as future monthly rent at the rate last paid. Protection is afforded to the tenant under Section 14(2) of the Act when he deposits rent in accordance with order under Section 15 of the Act. The tenant is entitled to protection only if he deposits not only the arrears of rent but also future monthly rent in accordance with order passed under Section 15 of the Act. In Subhash Mehta vs . Dr. S.P. Chaudhary, : 19(1981)DLT97 , it has been held that the tenant is entitled to protection under Section 14(2) of the Act only if he deposits not only arrears of rent also future monthly rent as ordered under Section 15(1) of the Act.

(16) Learned counsel for the appellant next submits that the delay in deposit may be condoned by this court. It is not possible. In Hem Chand vs . Delhi Cloth& General Mills Co. Ltd. and another, : 1977CriLJ1004 it has been held by the Supreme Court that the Rent Control authorities have no direction to extend time prescribed under section is (1) of the Act. An order under Section 15 of the Act? requires a tenant to deposit arrears of rent within one month from the date of the order and future rent by the 15th of the succeeding month. I thereforee, cannot condone the delay.

(17) There is thus no merit in the second appeal. It is dismissed with no order as to costs. The appellant is granted one month to vacate the premises.


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