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Dharam Pal and Sons and anr. Vs. Parmeshwari Das - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 167 of 1977
Judge
Reported in20(1981)DLT197
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Constitution of India - Article 227
AppellantDharam Pal and Sons and anr.
RespondentParmeshwari Das
Advocates: Anoop Singh,; Manmohan Singh and; M.S. Vohra, Advs
Cases ReferredChatter Singh v. Banarsi Lal
Excerpt:
.....under section 15(1) read with section 24(1) of the delhi rent control act, 1958, passed by the rent controller - it was ruled that remedy of appeal being available, extraordinary jurisdiction of the high court could not be invoked - - l,500.00 was due for the period 1st december, 1972 to 31st september, 1973 which he failed to pay inspire of repeated demands. pal & sons which has not been duly terminated and the petition is also bad due to misguide of necessary parties. 5000.00 with a view towards keeping good and harmonious relations, the tenant did not insist for the execution of the rent note though he obtained receipt for rs. 150.00 per month petition for eviction would fail holding that benefit of section 14(2) of the act has been taken. he brought to my notice the order of..........tribunal dated 19th august, 1977 affirming the order dated 20th may, 1974 passed by the additional rent controller, delhi ordering eviction of the appellants on the ground contained in proviso (a) to sub-section (1) of section 14 of the act and also passing an order under section 15(1) of the act and holding that if the appellant deposits arrears of rent with effect from 1st december) 1972 up to date within one month @ 150.00 per month, the appellant will be entitled to the benefit of section 14(2) of the act. (2) the respondent landlord had filed a petition for eviction against the appellant on the ground that the appellant was habitual defaulter in the payment of rent and did not pay the same whenever it fell due. at present, it was stated, that a sum of rs. l,500.00 was due for the.....
Judgment:

Yogeshwar Dayal, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) is directed against the judgment of the Rent Control Tribunal dated 19th August, 1977 affirming the order dated 20th May, 1974 passed by the Additional Rent Controller, Delhi ordering eviction of the appellants on the ground contained in proviso (a) to Sub-section (1) of Section 14 of the Act and also passing an order under Section 15(1) of the Act and holding that if the appellant deposits arrears of rent with effect from 1st December) 1972 up to date within one month @ 150.00 per month, the appellant will be entitled to the benefit of Section 14(2) of the Act.

(2) The respondent landlord had filed a petition for eviction against the appellant on the ground that the appellant was habitual defaulter in the payment of rent and did not pay the same whenever it fell due. At present, it was stated, that a sum of Rs. l,500.00 was due for the period 1st December, 1972 to 31st September, 1973 which he failed to pay inspire of repeated demands.

(3) The petition for eviction was filed on or about 8th October, 1973.

(4) In the petition for eviction, it was stated that the premises are commercial, consisting of only one shop out of premises No. H-7, Bali Nagar, New Delhi-15, and were rented out for Rs. 150.00 per month besides electricity charges.

(5) It is also pleaded that the notice dated 9th July, 1973 was served on the tenant but no reply was received.

(6) In the written statement, the appellant inter-alia pleaded that the petition is not validly filed since the contractual tenancy of the tenant was in favor of M/s. D. Pal & Sons which has not been duly terminated and the petition is also bad due to misguide of necessary parties.

(7) In the petition the tenants are described as (1) M/s. Dharam Pal & Sons and (2) Dharam Pal son of Shri Thakur Dass.

(8) It was also pleaded in the written statement that M/s. Dharam Pal & Sons or Dharam Pal is not the tenant of the shop in dispute. The tenant of the shop in dispute is M/s. D. Pal & Sons.

(9) It was also pleaded that the rate of rent of Rs. 150.00 per month was inclusive of electricity charges as the landlord was bound to provide power connection. Since the electricity and power have not been provided by the landlord, the latter is not entitled to charge rent. It was also pleaded that the landlord obtained a sum of Rs. 5,000.00 as security for providing these facilities and, thereforee, the tenant is entitled to suspension of rent until these facilities are provided in the premises in dispute.

(10) In paragraph 14 of the reply it was further pleaded that the premises were let out to M/s. D. Pal & Sons on 18th September, 1970 when the said M/s. D. Pal & Sons paid a sum of Rs. 5000.00 as security on demand of the landlord and it was agreed that the landlord will issue a receipt for the said amount of Rs. 5000.00 and the parties then shall execute a regular rent note. Thereafter, the proprietor of M/s. D. Pal & Sons fell seriously ill and remained confined in the hospital for a period of about a fortnight. After his return from the hospital, he asked the landlord to issue a receipt and make arrangements for the execution of the rent note which the landlord avoided on the pretext that he should believeh im and that he (landlord) was not going to deny the fact of payment of Rs. 5000.00 With a view towards keeping good and harmonious relations, the tenant did not insist for the execution of the rent note though he obtained receipt for Rs. 5000.00 from the landlord.

(11) It was also pleaded that no rent is due from the tenant to the landlord and the tenant has made payment of the entire rent due up to July, 1973 for which the landlord did not issue any receipt. It was again stated that even earlier also the landlord at times issued receipts of rent paid to him regularly every month sometimes after three months and sometimes after four months. Besides, the tenant is entitled to adjustment of the amounts paid by it to the Delhi Electric Supply Undertaking towards the electricity charges paid by him for and on behalf of the landlord.

(12) The landlord filed a replication wherein he stated that the tenant appellant is unnecessarily stressing on 'D Pal' instead of 'Dharam Pal' which is one and the same. Regarding water and power connection it was denied that there was any such agreement as alleged by the tenant appellant.

(13) It was further denied that the rent of Rs. 150.00 included water and electricity charges. It was submitted that the electricity and water charges were payable by the tenant appellant according to consumption. The receipt of Rs. 5000.00 as security was denied.

(14) It was then pleaded that the tenant had made out a false plea as an excuse for non payment of rent. It was stated that the tenancy started on 1st October, 1970 and that the rent was outstanding from 1st December, 1972 and it was incorrect that the rent was paid up to July, 1973. It was also pleaded that no adjustment could be claimed for payments made to D E.S.U. for the rent was exclusive of the electricity charges.

(15) After the pleadings of the parties the matter came up before the Additional Rent Controller for passing orders under Section 15(1) of the Act.

(16) Before the Additional Rent Controller the tenant relied upon the decision of Deshpande,J. in the matter of Kulwunt Kaur v. Jeewan Singh, S.AO. No. 91 of 1971 decided on 25.10.1971 and contended that since the relationship of landlord and tenant is denied and it is pleaded that M/s. D. Paul & Sons is the tenant and also because the receipt of notice is also denied and there is dispute also as to arrears of rent, no orders could be passed under Section 15(1) of the Act till the evidence of the parties was recorded and the Rent Controller accordingly postponed the passing of the orders under Section 15(1) of the Act and deferred it till the evidence of the parties was recorded and a finding was given on the various points.

(17) It is in these circumstances that thereafter the parties led evidence and the Additional Rent Controller, by the impugned judgment held tliat the tenants as pleaded in the eviction petition were the tenants and the re is a relationship of landlord and tenants subsisting between the parties. The Additional Rent Controller also found that arrears of rent were due as claimed by the landlord from 1st December, 1972 and that the plea of the tenant that he had paid Rs. 5000.00 as security has not been established. He also found that the rate of rent of Rs. 150.00 per month did not include water or electricity charges. In the result the Additional Rent Controller passed the following order in paragraph 13 of his judgment :

(13)Accordingly for the reasons given above an order of eviction on the ground of non payment of rent is passed. But however, if respondent deposits arrears of rent from 1st December, 1972 up to date within one month at the rate of Rs. 150.00 per month petition for eviction would fail holding that benefit of Section 14(2) of the Act has been taken.'

(18) The tenant, being dissatisfied, went up in appeal before Shri P.K.Bahri, Rent Control Tribunal, Delhi, who affirmed the findings of the Additional Rent Controller and held that the ground of non payment of rent stood amply proved on record. He also found that no interim order under Section 15(1) of the Act was passed in view of the plea taken by the tenant for payment of rent and passed a final composite order by which he directed the appellant tenant to deposit arrears of rent as stated earlier.

(19) Before the Rent Control Tribunal, it was argued on behalf of the tenant that first a final order under Section 15(1) should have been passed and after the expiry of the period of one month, if the tenant had not complied with the said order, an eviction order could have been then passed but the Tribunal negatived this contention and held that the order passed by the Additional Rent Controller complied with the provisions of law and in this connection he drew support from the decision of B. C.Misra, J. in Chatter Singh v. Banarsi Lal, (1976) R.C.R. 641.

(20) At the time of admission of appeal this Court had admitted the appeal only for examining the question whether the composite order under Section 14(1)(a) and Section 15(1) of the Act, as passed by the learned Additional Rent Controller, was competent or not.

(21) Proviso (a) to Sub-section (1) of Section 14 and Sub-section (2) of Section 14 read as under : Sub-section (1).

'14(1)Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : Provided that the Controller may, on as application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: Proviso (a) to Sub-section (1). (a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882. (d) ......... (e) ......... ......... ......... (g) ......... (h) ......... (k) ......... Sub-section (2). (2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (1) of the proviso to Subsection (l)i if the tenant makes payment of deposit as required by Section 15: Provided that no tenant shall be entitled to the benefit under this sub-section, if having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.'

Sub-sections (1), (6) and (7) of Section 15 read as under. Sub-section (1):

'15(1).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 rent were legally recoverable from the tenant includings the period subsequent there to 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. Sub-section (6). (6) If a tenant makes payment or deposit as required by Subsection (1) section (3), no order shall be made for the recovery of possession on the ground of default the payment of rent by the tenant, but the Controller may allow such costs as he may deem fit to the landlord. Sub-section (7). (7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application.'

(22) Acombined reading of proviso (a) to Section 14(1) and sub section (2) of Section 14 shows that a tenant is liable to be evicted if he fails to comply with the provisions of proviso (a) to sub section (1) of Section 14 but in view of sub section (2) of Section 14 no order for recovery of possession will be made if the tenant makes payment or deposits as required by section 15.

(23) In the present case the landlord had applied to the Additional Rent Controller at the initial stage for an order under Section 15(1) of the Act since the tenant appellants were contesting claim for ejectment) but in view of the plea of the tenant denying even the relationship of landlord and tenant besides the factum of arrears of rent, the learned Additional Rent Controller had deferred passing of the order under Section 15(1) till all the evidence of the parties had been recorded. Thus at the stage at which order under Section 15(1) was being passed was the final stage of the suit. The Additional Rent Controller had found that the advance of Rs. 5,010.00 as alleged by the tenant was not substantiated and thus he was liable to be evicted for non payment of rent which had not been paid inspire of service of notice of demands as contemplated by proviso (a) to sub section (1) of Section

(24) At the same time he gave the tenant the benefit by passing an order under Section 15(1) of the Act and directed that in case the rent is deposited within one month of the order the appellant will be entitled to the benefit of Section 14(2) of the Act. The order passed by the learned Additional Rent Controller was in the nature of a composite order which could be passed in view of the postponement of the passing of the order under Section 15(1) at the initial stage of the trial.

(25) After having himself obtained the deferment of the order under Section 15(1) at the initial stage, the appellant cannot object to the composite order being passed at the end of the trial. Mr. M.S. Vohra learned counsel for the tenant-appellant, relied on the wordings of Section 14(2) and submitted that first an order under Section 15(1) should have been paussed and if there was non compliance then only order on the ground contained in proviso (a) to sub section (1) of Section 14 of the Act should have been passed.

(26) It will, however, be noticed from the order of the learned Additional Rent Controller which I had reproduced earlier that its purport in the same as Mr. Vohra is contending. The learned Additional Rent Controller in his order specifically stated that if the appellant makes payment of arrears of rent within one month of the order would be given the benefit of Section 14(2) of the Act. The order is strictly in accordance with Section 14(2) of the Act. Thus there is no merit in the appeal which fails and is dismissed with costs.

(27) During the hearing of the appeal, Mr. M.S. Vohra brought to my notice subsequent development that took place after the passing of the order under Section 15(1) of the Act. He brought to my notice the order of the learned Additional Rent Controller dated 25th January, 1975. This order was passed on the application of the landlord inter alias on the ground that the tenant had failed to make deposit within one month of the order under Section 15(1) of the Act. Though the period of one month expired during vacation and the deposit was made on the reopening date, yet the Additional Rent Controller held that the deposit was made beyond time and that he had no powers to condone delay and ordered the issue of warrants.

(28) After bringing the aforesaid order to my notice the learned counsel wanted this court to exercise suo moto powers under Article 227 of the Constitution to set aside the said order on the ground that the payment was made within time.

(29) I am not inclined to exercise suo moto powers under Article 227 of the Constitution as the order could be appealed against before the Tribunal under Section 39 of the Act. The other reason which disuades me from exercising suo moto power is that the premises in the present case are commercial and the tenant has died. The appeal was being continued by the legal representatives of the deceased tenant. The definition of tenant as contained in Section 2(h) of the Act has also undergone amendment and the tenancy is no longer heritable in the circumstances of this case.


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