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Mohinder Singh Vs. Jagan Nath Bansal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 252 of 1979
Judge
Reported in1983(4)DRJ332; 1983RLR230
ActsDelhi Rent Control Act, 1958 - Sections 14 and 15(1)
AppellantMohinder Singh
RespondentJagan Nath Bansal and anr.
Advocates: R.L. Kohli,; Ajit Singh and; Daya Kishan, Advs
Cases ReferredShri Khshbir Singh v. Shri Ajaib Singh
Excerpt:
.....order for deposit of rent is passed under section 15(1) of the act requiring the tenant to deposit rent arrears within one month and such an order is stayed by the appellate authority before the expiry of the period of one month, the tenant would be entitled to exclude the period during which the order under section 15(1) remained suspended, in calculating the period of one month for deposit of rent. delhi rent control act, 1958 - section 14(a). mere reference of notice in the eviction application does not mean that there is pleading of facts constituting the cause of action. the facts are to be pleaded specifically in the application. - - the tribunal maintained the order of eviction against the appellant on the ground that the appellant failed to comply with the condition regarding..........and order of the rent control tribunal dated 17th august, 1979 confirming the order of the rent controller dated 7-4-77 passing an order of eviction against him under section 14(1)(a) of the act. on 23-4-73 jagan nath bansal, respondent-landlord filed an application for eviction of mohinder singh, appellant-tenant from shop no. 147 pana uddian, bara bazar, narela. the respondent alleged that the appellant was his tenant in front portion of the said shop on a monthly rent of rs. 75.00 . the grounds of eviction pleaded in para 18(a) of the application read as under :- '18(a)(1)nonpayment of rent w.e.f. 13-2-1971 to 13-4-1973 @ rs. 75.00 per month i.e. rs. 1950.00 out of which the respondent paid rs. 100.00 only on 7-9-1971 now rs. 1850.00 is due from him. 2. sub-letting to shri har.....
Judgment:

Sultan Singh, J.

(1) The tenant in this second appeal under Section 39 of the Delhi Rent Cotrol Act, 1958 (for short 'the Act') challenges the judgment and order of the Rent Control Tribunal dated 17th August, 1979 confirming the order of the Rent Controller dated 7-4-77 passing an order of eviction against him under Section 14(1)(a) of the Act. On 23-4-73 Jagan Nath Bansal, respondent-landlord filed an application for eviction of Mohinder Singh, appellant-tenant from Shop No. 147 Pana Uddian, Bara Bazar, Narela. The respondent alleged that the appellant was his tenant in front portion of the said shop on a monthly rent of Rs. 75.00 . The grounds of eviction pleaded in para 18(a) of the application read as under :-

'18(A)(1)Nonpayment of rent w.e.f. 13-2-1971 to 13-4-1973 @ Rs. 75.00 per month i.e. Rs. 1950.00 out of which the respondent paid Rs. 100.00 only on 7-9-1971 now Rs. 1850.00 is due from him. 2. Sub-letting to Shri Har Nath. 3. Damaging the shutter causing substantial loss to the landlord.'

(2) In para 18(b) the respondent alleged that notice dated 23-1-73 was given and served and no reply was received.

(3) The appellant pleaded that the monthly agreed rent was Rs. 25.00 and not Rs. 75.00 , that the respondent had no cause of action against him, that he had paid or deposited rent for the period ending 30-4-73. The grounds of eviction alleged by the respondents were denied. The receipt of notice dated 23-1-73 was admitted by it was alleged that the same was invalid.

(4) The respondent before the Rent Controller did not press eviction on grounds of subletting and substantial damages to the premises. As there was dispute about the agreed rent the Controller by order dated 30-8-73 deferred the passing of an order under Section 15(1) of the Act till the conclusion of evidence. The respondent subsequently made an application that without prejudice to rights and contentions of the parties an order under Section 15(1) of the Act may be passed at the rate of Rs. 25.00 per month for the period from 1-5-73. Accordingly the Rent Controller on 23-7-75 passed an order under Section 15(1) of the Act directing the appellant to deposit arrears of rent @ Rs. 25.00 per month with effect from 1-5-73 within one month and future rent at the said rate by the 15th of the succeeding month. It is admitted that this order was complied with bythe appellant. The Rent Controller by judgment dated 7-4-77 held that the agresd rentwas Rs. 75.00 per month, and the notice dated 23-1-73 was duly served upon the appellant. He thereforee passed an order for recovery of posssssion. against the appellant, under Section 14(1)(a) of the Act, and directed him to deposit all arrears of rent @ Rs. 75.00 per month with effect from 13-2-71 up to date, less rent already deposited by him in court under Section 15(1) or Section 27 of the Act within one month from the date of order. The Rent Controller further observed that if the appellant deposits rent he would be entitled to benefit under Section 14(2) of the Act.

(5) The appellant filed an appeal before the Rent Control Tribunal on 23-4-77 challenging the judgment and order dated 7-4-77 of the Rent Controller. The Tribunal on 4-5-77 admitted the appeal and stayed the operation of the order dated 7-4-77 subject to appellant's depositing arrears on or before 31-5-77 at Rs 75.00 per month as directed by the Rent Controller. After notice of stay application the Rent Control Tribunal on 22-7-77 passed the following order :

'THEstay order is modified to the extent that the appellant shall also deposit future rent/demages by 15th of each succeeding month, failing which the stay order shall stand vacated.'

(6) The appellant deposited the arrears of rent in accordance with the Tribunal's order dated 4-5-77 on 31-5-77. He also deposited future monthly rent but committed default in depositing rent for the month of November, 1977. The rent for November 1977 of was to be deposited by 15th December but it was not so deposited. In other words, the stay order dated 4-5-77 modified by order dated 22-7-77 of the Tribunal stood vacated.the respondent took out execution proceedings before the Rent Controller on the ground that the appellant did not deposit the arrears of rent in accordance with the main order dated 7-477 directing him to deposit all arrears of rent @ Rs. 75.00 per month within one month from that date and also on the ground that the stay order passed by the Tribunal stood vacated as he had committed default. The Controller on 16-2-79 ordered for the issue of warrant of possession. The appellant filed another appeal challenging the said order before the Rent Control Tribunal. The Tribunal by the impugned judgment dated 17-8-1979 dismissed both the appeals of the appellant-tenant. This second appeal has been filed challenging the order of eviction confirmed by the Tribunal. The Tribunal has held that the agreed rent of the demised premises,was Rs 75.00 per month, that a valid notice terminating the contractul tenancy was served. The Tribunal maintained the order of eviction against the appellant on the ground that the appellant failed to comply with the condition regarding deposit of rent month by month. It appears that the Tribunal maintained the order for eviction on the ground that the tenant had failed to comply with the condition of stay order dated 4-5-77 modified by order dated 22 7-77 where by he was directed to deposit arrears of rent by 31-5-77 and future rent by the 15th of the each succeeding month. Hence this second appeal.

(7) Learned counsel for the appellant submits that the Rent Controller's order passing an order of eviction and requiring him to deposit all arrears of rent within one month was stayed by the Tribunal and the refore he was entitled to exclude the time during which the order dated 7-4-77 of the Rent Controller remained stayed. His submission is that the order requiring the appellant to deposit arrears of rent was stayed on 4-5-77 and automatically stood vacated on his failure to deposit monthly rent for November, 1977, on or before 15-12-77. He says that the appellant was granted one month by order dated 7-4-77 to deposit the arrears of rent and thus he was entitled to deposit all arrears of rent up to 7-5-77, but the order for deposit was stayed on 4-5-77 and automatically revived on 16-12-77. He says that in calculating the period of one month for deposit he was entitled to exclude the period from 4-5-77 to 15-12-77 during which the order for deposit of rent remained suspended. Learned counsel further submits that all arrears of rent were deposited by him on 31-5-77 and as such he had complied with the order dated 7-4-77. He further says that eviction application on ground of non payment of rent does not disclose any cause of action and as such liable to be rejected. There is force in the submissions of the learned counsel for the appellant.

(8) When an order for deposit of rent is passed under Section 15(1) of the Act requring the tenant to deposit arrears of rent within one month and such an order is stayed by the appellate authority before the expiry of the period of one month, the tenant would be entitled to exclude the period during which the order under Section 15(1) remained stayed in calculating the period of one month for deposit of rent. The appellant-tenant was given one month as deposit all arrears of rent at Rs. 75.00 per month after adjusting all rents paid or deposited by him. This period of one month ordinarily expired on 7-4-77 but the order dated 7-4-77, was stayed on 4-5-77 by the Tribunal. In other words the order for deposit of rent made on 7-4-77 was suspended on 4-5-77 and got revived automatically on the appellant's failure to comply with the order of the Tribunal requring him to deposit future monthly rent. The appellant committed default in depositing rent for November, 1977 by 15-12-77. Thus the order of the Rent Controller dated 7-4-77 became effective from 16-12-77. Thus the period from 4-5-77 to 15-12-77 during which order dated 7-4-77 for deposit remained suspended is to be excluded while calculating the period of one month from 7-4-77. This period would expire on 19-12-77. The appellant as already stated, had deposited all arrears of rent on 31-5-77 and thus the appellant complied with the order of the Rent Controller.

(9) Learned counsel for the respondent says that the order of the Rent Controller dated 7-4-77 did not merge with the order of the Tribunal dated 4-5-77 whereby the operation of the order of the Rent Controller was stayed subject to certain conditions. He refers to Shri Khshbir Singh v. Shri Ajaib Singh, 1982 (2) R C.J. 251 wherein it has been observed that the order of the trial court does not merge with the interim order of the appellate court. In that case there was no order staying the operation of the order passed by the Controller. The Tribunal in that case had only stayed dispossession on certain conditions and it was held that the order of the Controller did not merge with the interim order. In the present case, the operation of the order of the Rent Controller dated 7-4-77 was stayed on certain conditions. The Order of the Controller in the present case is in two parts ; (i) passing an eviction order under Section 14(1)(a) and (ii) passing an order requiring the tenant to deposit all arrears of rent within one month presumably under Section 15(1). The entire order was stayed by the Tribunal on 4-5-77, on condition of deposit of rent up to 31-5-77. Thus the facts of that case are not applicable to the present case and as such that judgment does not help the respondent.

(10) The Tribunal has passed the order of eviction against the appellant on the ground that the appellant failed to comply with the condition of stay order dated 4-5-77 modified by order dated 22-7-77. Failure to comply with any condition of the stay order does not authorise the Tribunal to pass an order for eviction under Section 14(1)(a) of the Act. In my opinion the Tribunal was not correct in passing an order of eviction for failure to comply with the condition granting stay of operation of the order of the Rent Controller.

(11) Learned counsel for the appellant further vehemently argues that the eviction application under Section 14(1)(a) of the Act does not disclose any cause of action and thereforee the same is liable to be rejected under Order 7 rule Ii of the Code of Civil Procedure. His submission is that the application for eviction under clauses (b) and (j) was not pressed by the landlord before the Rent Controller, and the application for eviction on ground of non payment of rent does not contain all the ingredients constituting the cause of action under clause (a) of the proviso to Section 14(1) of the Act. Under clause (a) of the proviso to Section 14(1) of the Act the cause of action consists of a notice of demand for payment of arrears of rent and failure of the tenant to pay or tender within two months of the receipt of the notice. The eviction petition only alleges the amount of arrears. There is no allegation that the rent was ever demanded or that the tenant neither paid nor tendered the arrears of rent. Thus the eviction application for non payment of rent as pleaded in para 18(a) does not disclose any cause of action and thereforee the same is liable to be rejected.

(12) Learned counsel for the respondent submits that under para 18(b) the landlord has referred to the notice dated 23-1-73 wherein a demand for payment of rent was made. His submission is that the notice dated 23-1-73 which was filed along with the eviction application may be read as a part of the pleadings. I do not agree. Mere reference of notice in the eviction application does not mean that there is pleading of facts constituting the cause of action. Moreover even if the notice dated 13-1-73 is read along with the eviction application, there is no allegation anywhere in the eviction application that the tenant neither paid nor tendered rent. Thus I am of the opinion that the eviction application on ground of alleged non payment of rent does not disclose any cause of action and consequently is liable to be rejected. (See : Dr. (Mrs.) N.D. Khanna v. M/s. Hindustan Industrial Corporation, New Delhi, : AIR1981Delhi305 ). The eviction application filed by the respondent instead of being dismissed is liable to be rejected as the same does not disclose any cause of action. The appeal is accepted. The application of the respondent is thereforee rejected under Order 7 Rule 11 of the Code of Civil Procedure but this rejection does not preclude the respondent landlord from presenting a fresh eviction application in respect of the same cause of action under Order 7 Rule 13 of the Code of Civil Procedure. No order as to costs.


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