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Budh Prakash Sethi Vs. Sumitra Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 228 of 1974
Judge
Reported in20(1981)DLT116; 1981(2)DRJ166
ActsDelhi Rent Control Act, 1958 - Sections 27; Punjab Relief of Indebtedness Act, 1934 - Sections 31
AppellantBudh Prakash Sethi
RespondentSumitra Devi
Advocates: Keshav Dayal,; R.B. Gupta,; R. Dayal,;
Cases ReferredJag Ram Nathu Ram vs. Shri Surinder Kumar
Excerpt:
.....of rent at rs, 35.00 per month but there had been no express order directing the appellant to deposit rent under section 15(1) of the act and that there was no express finding by the additional controller in his order dated 5th october, 1957 that the appellant had enjoyed the benefit under section 14(2) of the act. bhambari, (1977) 1 del 705 in support of his contention that there should have been a specific order passed under section 15(1) of the act in the earlier proceedings for holding that the tenant has enjoyed the benefit under section 14(2) of the act. from the final order in the earlier proceedings dated 5th october, 1967 it appears that there was no dispute about the service of notice of demand and the failure of the appellant-tenant to pay or tender rent due from him. it..........rent. the eviction application was dismissed. from the record it appears that the excess amount of rent deposited by the appellant was adjusted towards rent for the period ending 30th february, 1968. (3) the landlord filed another eviction application against the appellant on 4th september, 1971 from which this second appeal has arisen. he alleged that the appellant had failed to pay arrears of rent at rs. 30.00 per month for the period from 1st march, 1968 besides rs. 10.00 on account of rent for the remaining period of february, 1968. a sum of rs. l,240.00 in all was thus claimed for the period ending 31st july, 1971. he further alleged that the appellant had not paid rent at rs. 30.00 per month for three consecutive months. the appellant in his written statement pleaded that he had.....
Judgment:

Sultan Singh, J.

(1) This appeal on behalf of the tenant under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') is directed against the order of eviction passed against him under Section 14(1)(a) read with the proviso to Section 14(2) of the Act.

(2) The appellant was inducted as a tenant in shop No. 14, Krishna Market, Lajpat Nagar, New Delhi by Anant Ram, Predecessor of the respondents (hereinafter called 'the landlord') in 1962 at a monthly rent of Rs. 50.00 . He sent a notice of demand dated 7th November, 1964 and another notice dated 30th February, 1965 requiring the appellant to pay arrears of rent for the period from 1st February, 1963 onwards. The appellant, it appears, neither paid nor tendered the rent due. The landlord on 22nd April, 1965 filed an eviction petition under Section 14(1)(a) of the Act alleging that the appellant neither paid nor tendered the arrears, of rent in spite of service of notice of demand. The appellant claimed fixation of standard rent of the premises and pleaded that he had paid rent up to 31st July, 1964. He also claimed certain amount on account of repairs and electricity charges alleged to have been paid by him on behalf of the landlord. The Additional Controller vide order dated 4th August, 1965 fixed the interim rentatRs.35.00 per month and directed the appellant to deposit all arrears of rent at the said rate with effect from 1st August, 1964 within one month from that date and also to deposit future rent by the 15th of the succeeding month. The appellant complied with the said order. The Additional Controller by order dated 5th October, 1967 fixed standard rent of the premises at Rs. 30.00 per month with effect from 1st June, 1965. It was observed that the appellant had deposited rent up to August, 1967 in compliance with the earlier order dated 4th August, 1965. 1965. It was also held that the appellant had paid rent for the period ending 31st July, 1964. The excess amount deposited by the appellant during the period from June, 1965 to August, 1967 was ordered to be adjusted towards the future rent. The eviction application was dismissed. From the record it appears that the excess amount of rent deposited by the appellant was adjusted towards rent for the period ending 30th February, 1968.

(3) The landlord filed another eviction application against the appellant on 4th September, 1971 from which this second appeal has arisen. He alleged that the appellant had failed to pay arrears of rent at Rs. 30.00 per month for the period from 1st March, 1968 besides Rs. 10.00 on account of rent for the remaining period of February, 1968. A sum of Rs. l,240.00 in all was thus claimed for the period ending 31st July, 1971. He further alleged that the appellant had not paid rent at Rs. 30.00 per month for three consecutive months. The appellant in his written statement pleaded that he had been regularly depositing rent in court, as the landlord had refused to accept the rent tendered personally and through money order. He pleaded that he deposited Rs. 340.00 on 30th March, 1969, Rs. 300.00 on 1st November, 1969, Rs. 180.00 on 1st June, 1970 Rs 180.00 on 16th December, 1970, Rs. 340.00 on on 28th July, 1971 and Rs. 120.00 on 25th January, 1972 and that the said deposits were for the period ending 30th November, 1971. He further pleaded that notice of deposit of rent was sent to the landlord but he did not withdraw the amount from court. He also pleaded that rent tendered by money order was refused by the landlord. The landlord in his eviction application had not pleaded service of any notice of demand. His plea was only that a notice under Section 106 of the Transfer of Property Act was served. The tenant-appellant in his written statement denied the receipt of notice under Section 106 of the Transfer of Property Act.

(4) The Additional Controller and the Tribunal have held that a notice dated 23rd December, 1970 was served upon the appellant that he neither paid nor tendered the rent due, that he had enjoyed the benefit under Section 14(2) of the Act in the previous litigation and thereforee an order of eviction was passed against the appellant. The landlord died on 16th December, 1973 and the respondents are his heirs and legal representatives.

(5) Learned counsel for the appellant contends that the eviction application does not disclose any cause of action, that the appellant had not enjoyed the benefit under Section 14(2) of the Act and lastly he submits that the landlord had no cause of action to institute the eviction application as the appellant had already deposited the rent turn the period ending on 30th November, 1970 on or before the issue of the notice of demand dated 23rd December, 1970.

(6) In para 18(a) of the eviction application, the ground of eviction is worded as under :-

'1.That the respondent is regular defaulter and has not paid rent we.f. 1.3.1968 till 31.7.71 amounting to Rs 1230.00 and Rs. 10.00 for the 10 days of February, 1968. 2, That the respondent was ordered by the Additional Rent Controller on 4th August, 1965 under section 15(1) to deposit the arrears of rent. The respondent has once enjoyed the benefit of Section 15(1). The eviction petition was finally dismissed on 5.10,1967 by Shri D. C. Aggaiwal, Additional Rent Controller. The Additional Rent Controller fixed standard rent @ Rs. 30.00 p.m. w.e.f. 1.6,65. The respondent deposited rent @ Rs. 35.00 p.m. up to September, 1967. The extra amount @ Rs. 5.00 was deposited for 2 years 4 months which comes to Rs. I 10.00 . Thus Rs. 140.00 comes for 4 months and 20 days. Thus the rent paid by the respondent up to January, 1968 and 20 days'of February, 1968. Thereafter the respondent did pay the rent at the rate of Rs. 30.00 p.m. for three consecutive months. Even the respondent did not pay the rent after the service of notice. The respondent had made default intentionally'.

In para 18(b) it is stated that notice under Section 106 of the Transfer of Property Act was served.

(7) The cause of action for claiming eviction under Section 14(1)(a) consists of the facts that notice of demand has been served upon the tenant and that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months from the date of service of the notice of demand. According to the pleadings, I find that a sum of Rs. l,240.00 is due to the respondents as rent for the period ending 31st July, 1971. There is no allegation that the appellant neither paid nor tendered the arrears of rent after the notice of demand. Thus the eviction application does not disclose cause of action for instituting eviction proceeding under Section 14(1)(a) of the Act. The eviction application is, thereforee, liable to be rejected under Order 7 Rule Ii of the Code of Civil Procedure. In any case the eviction application is liable to be dismissed on merits as well which aspect I shall deal hereinafter.

(8) Learned counsel for the appellant next submits that in the previous litigation decided on 5th October, 1967 although an order was made on 4th August, 1965 and the tenant-appellant complied with the said order by depositing the entire arrears of rent at Rs, 35.00 per month but there had been no express order directing the appellant to deposit rent under Section 15(1) of the Act and that there was no express finding by the Additional Controller in his order dated 5th October, 1957 that the appellant had enjoyed the benefit under Section 14(2) of the Act. Learned counsel for the appellant contends that for availing the benefit under Section 14(2) of the Act there must have been an earlier order under Section 15(1) of the Act directing the tenant to deposit the arrears of rent and future rent. He says that the order dated 4th August, 1965 in the earlier proceedings was not an order under Section 15(1) of the Act. He relies upon Shri Kahan Chand Makan v. Shri B S. Bhambari, (1977) 1 Del 705 in support of his contention that there should have been a specific order passed under Section 15(1) of the Act in the earlier proceedings for holding that the tenant has enjoyed the benefit under Section 14(2) of the Act. The Division Bench, however, observed, 'In case no order under Section 15(1) of the Act is made. or claimed that it should be made by the landlord, the payment or deposit of rent by the tenant cannot be regarded as having been made as required by Section 15 of the Act'. It appears that the Division Bench was considering the case where the dispute was only regarding an order under section 15(1) of the Act. Section 14(2) of the Act specifically refers to payment or deposit as required by Section 15 to give benefit to the tenant. Section 14(2) of the Act reads as under :

'S. 14(2) : No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or 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'.

(9) A bare reading of this provision shows that if payment or deposit has been made under any of the sub-sections of Section 15 of the Act no order for the recovery of possession can be passed against the tenant. If an eviction petition is filed on the ground of non-payment of rent as mentioned in Section 14(1)(a) of the Act, an order for deposit of rent can be passed either under Section 15(1) or under Section 15(3) of the Act. In cases where there is no dispute about rate of rent an order can be made under Section 15(1) of the Act. In cases where there is a dispute about the rate of. rent, order for deposit is possed under Section 15(3) of the Act. In the earlier case between the parties although the agreed rent was Rs. 50.00 p. m., there was a dispute about the standard rent and thereforee the Additional Controller by his order dated 4th August, 1965 had fixed the interim rent at Rs, 35.00 per month. Thus I hold that the previous order for deposit of rent passed on 4th August, 1965 was an order under Section 15(3) of the Act. From the final order in the earlier proceedings dated 5th October, 1967 it appears that there was no dispute about the service of notice of demand and the failure of the appellant-tenant to pay or tender rent due from him. Thus from the said judgment it is clear that the cause of action for eviction of the appellant had accured to the landlord under Section 14(1)(a) of the Act. An express order was passed requiring the appellant to deposit arrears of rent aswell as future rent which was complied by the appellant. It must thereforee be held that the appellant enjoyed the benefit of Section 14(2) of the Act. It was only under that provision of law that the eviction was not ordered. The Division Bench has observed that the existance and proof of an order for deposit in the earlier proceedings covered by Section 14(1)(a) of the Act is essential in order to deprive the tenant of the protection to which the proviso to Section 14(2) of the Act gives him. Thus an order can be passed either under Section 15(1) or 15(3) of the Act and if the same is complied with and other conditions of Section 14(1)(a) of the Act are also proved the tenant is deemed to have enjoyed the benefit under Section 14(2) of the Act. It is not necessary to mention in the order the provision of rent Act under which order for depositing rent was passed. Such a provision may be determined by reference to its contents. Similarly in the final order it is not necessary to state that the tenant has enjoyed benefit under Section 14(2) of the Act. This may also be determined by reading the order as a whole. The previous order read as a whole means that the appellant enjoyed benefit under Section 14(2) of the Act. I, thereforee, hold that the appellant enjoyed the benefit under Section 14(2) of the Act in the previous eviction proceedings decided on 5th October, 1967.

(10) Learned counsel for the appellant vehemently argues that the landlord had no cause of action to institute the eviction application as the appellant had already deposited rent for the period ending 30th November, 1970 before 23rd December, 1970, when the notice was issued. It is not disputed that rent for the period ending 30th November, 1970 stands deposited by the appellant-tenant by means of deposit challans Exs. R-4, R-5, R-6 and R-7. These deposits are referred to by the appellant in his written statement besides others. But it is not necessary to refer to subsequent deposits. The Controller and the Tribunal have held that the said deposits were invalid as the amount was not deposited within 21 days of the tiins referred to in Section 26 for payment of the rent. Learned counsel for the appellant submits that there is no specific provision under the Act for deposit of rent for more than one month, and thereforee all deposits made by the appelliant should be treated as payment under Section 31 of the Punjab Relief of Indebtedness Act, 1934.is argument is that the appellant-tenant is a person who owes money and the landlord is a creditor within the meaning of Section 31 of the Punjab Relief of Indebtedness Act, 1934. He thereforee says that the appellant having deposited all arrears of rent is deemed to have said the same to the landlord. Section 31 of the Punjab Relief of Indebtedness Act, 1934 reads as under:

'S.31 : Deposit in court : (1) Any person who owes money may at any time deposit in court a sum of money in full or part payment to his creditor. (2) The court on receipt of such deposit shall give notice thereof to the creditor and shall, on his application pay the sum to him. (3) From the date of such deposit interest shall cease to run on the sum so deposited'.

(11) Learned counsel for the respondents submits that the rent is not a debt and as such the appellant cannot take advantage of Section 31 of the said Act. I do not agree. Section 31 of the Punjab Relief of Indebtedness Act, 1934 has been worded in the widest possible term. It has used the words, 'any person who owes money'. The word 'debtor' as defined in the said Act has not been used. Further the word ''money' has been used and not the word 'debt'. In other words any person who owes money to his creditor is entitled to make payment in full or in part. As soon as the deposit is made, the court is to give notice to the creditor and pay the same to him, Thus, it is clear that if atenant deposits arrears of rent under Section 31 of the Punjab Relief of Indebtadness Act in the civil court he is deemed to have paid the rent so deposited to his landlord . Reference in this connection may be made to Mangat Rai and another vs. Kidar Nath and another, 1961 (1) R. C. J. 326 The Supreme Court in that case treated the deposit under Section 31 of the said Act in the civil court as deposit under the rent Act to the credit of the landlord. It is also observed therein that a tenant fully answers the description of the opening words of Section 31 of the Punjab Relief of Indebtedness Act, 1934 which are to the effect 'any person who owes money'. In tact if a tenant deposits rent even before the issue of a notice of demand it is a solid proof of his bona fides in the matter and the legal position would be that if the rent is deposited before the notice of demand it would be deemed to have been said to the landlord.

(12) But the difficulty for the appellant is that the deposits were not made under Section 31 of the Punjab Relief of Indebtedness Act in any civil court but were made under Section 27 of the Act in the office of the Rent Controller. Thus in the circumstances of the present case it cannot be held that the deposits under Exs. R-4, R-5, R 6 and R-7 were made under Section 31 of the said Act. I may, however, observe that if the appellant had deposited the rent in the civil court under Section 31 of the said Act it would have been a valid payment to the landlord.

(13) Next it is contended by the counsel for the appellant that the finding by the Controller and the Tribunal that the deposits were invalid in view of Section 28 of the Act is contrary to law. He says that the period of limitation mentioned in Section 28(1) of the Act is not mandatory. Section 26 of of the Act provides that a tenant shall pay rent within the time fixed by the contract or in the absence of such contract by the 15th day of the month next following the month for which it is payable. Time for payment of rent is admittedly not fixed by any contract between the parties. It, thereforee, follows that under Section 36 of the Act the appellant was required to pay by the 15th of the succeeding month and he was to deposit within 21 days thereafter if the landlord had refused to accept the rent. Reading of Sections 26 and 27 shows that the tenant is supposed to fender the rent every month within 15 days of the expiry of the month. It further provides that if the rent tendered by the tenant is not accepted by the landlord he is to deposit the same within 21 days. The tenant is required to give various particulars as mentioned in Section 27 of the Act. Thus it seems that there is no provision in the Act for the deposit of rent for more than a month. Section 28(1) of the Act provides that the deposit would be invalid if it is not deposited within 21 days referred to in Section 26 of the Act. Section 28(1) of the Act uses the word 'shall' to make the deposit invalid, if not made within 21 days. Learned counsel for the appellant submits that the limitation of 21 days for deposit of rent as mentioned in Section 28(1) of the Act is only directory. He further says that the deposit of rent with the Controller amounts to payment of the same to the landlord although it had been made more than 21 days of its becoming due. He relies upon S. L. Kapur v. Dr. Mrs. P. D. Lal, 1975 R. C. R. 394 and M/s. Jag Ram Nathu Ram vs. Shri Surinder Kumar 1978 (2) R. C. R. 439 wherein it has been held that the limitation of 21 days for deposit of rent mentioned in Section 28(1) of the Act is directory. It has also been held that if the amount has been deposited with the Controller it would amount to a tender to the landlord.

(14) Section 27(3) of the Act provides that the Controller shall intimate the fact of deposit of rent to the landlord. The four deposits were made under Section 27 of the Act and thereforee it must be held that in the ordinary course notices of deposit were served upon the landlord but he did not make any application for withdrawal of the deposits under Section 27(4) of the Act. Under Section 27(5) of the Act the landlord is entitled to contest the various allegations made by a tenant in his application for deposit and if he satisfies the Controller that the statements made by the tenant in his application for deposit were untrue, the Controller is authorised to levy a fine upon the tenant. It seems that the landlord did not challenge the various allegations offacts made by the tenant in his deposit application by taking action under Sub-section 5 of Section 27 of the Act and thereforee it may be presumed that the allegations made by the tenant in his deposit application were correct. From the evidence on record it is clear that the tenant personally tendered rent, he also sent rent by money orders which were returned to the appellant. The appellant thereafter deposited the rent, as already stated under Section 27 of the Act. The tenant, as already held, had enjoyed benefit under Section 14(2) of the Act and after the passing of the final order in the earlier proceeding, the landlord did not accept rent from him presumably to create a ground of eviction for the second time within the meaning of the proviso to Section 14(2) of the Act and obtain an order of eviction against the appellant. On the other hand, the appellant had been trying his best to protect himself against eviction by tender and deposit of rent. Learned counsel for the respondents submits that as the deposits under Section 27 of the Act were invalid, the same cannot betreated as payment for the period ending 30th November, 1970 to the landlord. I am of the view that if the deposit is made under the rent Act for payment to the landlord and which is available unconditionally to him, such deposit should be treated as payment to the landlord. The same is the position with respect to the deposits made under Section 31 of the Punjab Relief of Indebtedness Act, 1934. As already observed, under Section 31 of the Punjab Relief of Indebtedness Act any person who owes money is entitled to deposit in court the money owed by him either in full or in part in the name of his creditor. This proposition would apply to a tenant who owes money by way of rent. I am, thereforee, of the view that the tenant had already paid rent for the period ending 30th November, 1970 by depositing the same under Section 27 of the Act with the Rent Controller by virtue of deposit challans Exs R-4, R-5, R-6 and R-7 and that the said deposits amount to payment to the landlord and that no rent was due to the landlord on 23rd December, 1970 when the notice of demand was issued to the appellant. Thus the landlord had no cause of action to institute the application for eviction under Section 14(1)(a) of the Act. The Controller and the Tribunal in my view erred in holding that the deposits under Section 27 of the Act were invalid. It appears that the two judgments of this court in M/s. Jag Ram Nathu Ram (Supra) and S. L. Kapur (Supra) were not brought to their notice.

(15) All deposits of rent made by the appellant may be withdrawn by the respondents. The appellant tenant, I may clarify, is entitled to deposit rent under Section 31 of the Punjab Relief of Indebtedness Act, 1934 in the Civil Court to protect himself against eviction.

(16) I, thereforee, accept the appeal setting aside the order of the Controller and the Tribunal passing an order of eviction against the appellant. The eviction application filed against is hereby dismissed with costs. Counsel Fee. Rs. 300.00.


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