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Subhash Mehta Vs. S.P. Chaudhry - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 241 of 1979
Judge
Reported in19(1981)DLT97; 1981(2)DRJ7
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantSubhash Mehta
RespondentS.P. Chaudhry
Advocates: R.K. Garg,; G.S. Vohra,; V.J. Francis,;
Cases ReferredAct. In Munshi Lal v. Thakur Prem Chand
Excerpt:
.....arrears of rent and for future payment by 15th of the month following : arrears paid but future rent deposited late. controller strikes off defense under section 15(7) but on appeal order was set aside : controller finally passes an order of eviction on the ground of failure to deposit future rent as per order under section 15(1). appeal dismissed by tribunal-tenant files second appeal in high court.; section 14(l)(a) of the delhi rent control act gives a right to the landlord to evict the tenant on the ground of non-payment of rent but section 14(2) of the act gives protection to the tenant if he complies with the provisions of section 15 of the act--a tenant is required to comply with the entire order under section 15 in order to avail the protection given under section 14(2) of..........of possession and he cannot refuse landlord's prayer for eviction. the full bench held that the rent controller has no right to condone the delay, if any, in making payment according to the requirements of section 15(1) of the act. as the tenant had failed to deposit the rents in accordance with the order under section 15(1) the defense of the tenant was also struck out by the controller and the order was maintained by the full bench of this court. the supreme court on appeal, however, held that the controller is not bound to strike off the defense under section 15(7) of the act even if the tenant had committed default in deposit of rent in compliance with the order under section 15(1) of the act. the supreme court held that section 15(7) conferred a discretion on the controller to.....
Judgment:

Sultan Singh, J.

(1) This second appeal has been filed by the tenant- appellant under Section 39 of the Delhi Rent Control Act, 1958 (the Act) against the order of the Rent Control Tribunal dated August 18, 1979 by which his appeal was dismissed and the order of the Additional Controller dated February 14, 1978 was affirmed finally maintaining the order of eviction passed against him on the ground of non-payment of rent. The appellant is a tenant under the respondent in a portion of property at D-32, South Extension Part Ii, New Delhi, on a monthly rent of Rs. 800.00 besides electricity and ter charges. The respondent served a notice dated November 27, 1972, demanding arrears of rent from September 1. 1972, and not getting the response, instituted eviction application on March 13, 1973, giving rise to the present appeal, for eviction of the appellant on various ground s including the ground of non-payment of rent specified in clause (a) of the proviso to sub-section (1) of Section 14 of the Act. It was held that the appellant-tenant had not paid rent since September 1, 1972 in spite of notice of demand dated November 27, 1972. During the pendency of the eviction proceedings the Controller on 1.6.1973 passed an order under Section 15(1) of the Act directing the appellant to deposit arrears of rent at the rate of Rs. 800.00 per month from September 1, 1972 within one month from the date of the order and to continue to deposit future monthly rent at the said rate by the 15th of the succeeding month. It appears that the appellant- tenant deposited all arrears of rent in accordance with the said order under Section 15(1) of the Act, but committed default with regard to deposit of future rent every month within time specially with respect to rent for the months of September and October, 1973. Instead of depositing rent of these two months by the 15th of the succeeding month, the rent, it seems, was deposited on December 1, 1973. The respondent filed an application for striking off defense under Section 15(7) of the Act. The Controller struck out the defense but an appeal the order striking off the defense was set aside by the Tribunal by order dated July 30, 1974 and the appeal filed by the respondent in this Court was dismissed. The Additional Controller finally by his order dated February 14, 1978 held that the appellant had not paid rent since 1.9.72 inspire of notice of demand dated 27.11.72 and has failed to deposit rent as per order under section 15(1) of the Act. The Controller thereforee passed an order of eviction against the appellant on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14 of the Act. The appeal filed by the appellant was dismissed by the Tribunal and hence this second appeal.

(2) Learned Counsel for the appellant argues that the application of the respondent for striking off the defense of the appellant under section 15 (7) of the Act was dismissed by the Tribunal which order was confirmed by this Court and thereforee the appellant did not commit any default of the order passed under Section 15(1) of the Act. He further says that arrears of rent admittedly were deposited in compliance with the order under section 15(1) of the Act and there was only a technical default by failing to deposit rent for September and October 1973. He further argues that the appellant- tenant having complied with the order under Section 15(1) of the Act relating to the arrears of rents, no order of eviction can be passed against him under section 14(l)(a) of the Act.

(3) Section 14(l)(a), 14(2) and 15 of the Act pertaining to eviction of a tenant on the ground of non-payment of rent are as under :

'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 an 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:- (a) that the tenant has neither paid nor tendered the whole of the arrears of 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 : '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 subsection, 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.'

'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, aftergiving 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 the rent were legally recoverable from the tenant including the period subsequent thereto 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. (2) 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 proceeding, 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 accordance with the provisions of the said sub-section. (3) If, in any proceeding referred to in sub-section (1) or sub-section (2), there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section (1) or sub-section (2), as the case may be until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date of which the standard rent is fixed or such further time as the Controller may allow in this behalf. (4) If; in any proceeding referred to in sub-section (1) or sub section (2), there is any dispute as to the person or persons to whom the rent is payable, the Controller may direct the tenant to deposit with the Controller the amount payable by him under sub-section (1) or sub-section (2) or sub-section (3), as the case may be, and in such a case, no person shall be entitled to withdraw the amount in deposit until the Controller decides the dispute and makes an order for payment of the same. (5) If the Controller is satisfied that any dispute referred to in sub-section (4) has been raised by a tenant for reasons which are false or frivolous, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application. (6) If a tenant makes payment or deposit as required by sub-section (1) or sub-section (3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such costs as he may deem fit to the landlord. (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.'

(4) The scheme of the Act provides that cause of action for eviction of a tenant on ground of non-payment of rent accrues to a landlord when he serves a notice of demand for the arrears of rent upon the tenant in the manner provided in section 106 of the Transfer of Property Act and the tenant neither pays nor tenders the whole of the arrears of rent legally recoverable from him within two months of the date of service of the notice of demand. Thus cause of action on ground of non-payment of rent consists of the demand and the failure of the tenant to pay or tender within two months. The landlord thereafter may file a petition for eviction of the tenant on ground of non-payment of rent. The tenant is again granted an opportunity to protect himself against eviction. Provision is made under sub-section (1) of Section 15 of the Act requiring the Controller to order the tenant either to pay to the landlord or deposit the arrears of rents within one month from the date of the order and to continue to pay or deposit future monthly rent by the 15th of each succeeding month. If a tenant complies with such an order under section 15(1) of the Act in its entirely, section 14(2) of the Act comes into action. Section 14(2) of the Act provides that no order for recovery of possession shall be passed under Section 14(l)(a) of the Act if the tenant has deposited or paid rent in accordance with order under section 15. Inother words cause of action that accrued to the landlord under section 14(l)(a) stands wiped out if the tenant complies with the order for deposit of rent passed under section 15 of the Act. Section 15 of the Act has got various sub-sections. Sub-section (1) requires arrears of rent and future monthly rent to be deposited by the tenant. Sub-section (2) does not apply to cases of non-payment of rent but it applies only to cases of eviction on grounds other than non-payment of rent. Sub-section (3) provides for fixation of interim rent if there is a dispute as to the amount of rent payable by the tenant and it further requires the Controller to pass an order according to sub-section (1) or (2) of Section 15. It 'further provides that after the determination of the rent payable by the tenant, he shall be required to pay the arrears on the basis of the determined rent within one month of the date of the order or such further time as the Controller may grant to the tenant. Sub-section (4) refers to cases where there is a dispute as regards the person to whom rent is payable. The tenant in all cases under sub-sections (l)(2)(3) or (4) is required to deposit arrears of rents and future monthly rent. Sub-section (5) provides for frivolous disputes if raised by the tenant under sub-section (4) of the Act. Sub-section (6) provides that no order for recovery of possession on ground of non-payment of rent would be made if the tenant has made payment or deposit in compliance with order passed either under sub-section (1) or sub-section (3). The object of sub-section (1), (3) and (4) is to provide further protection to a tenant who has failed to pay or tender rents inspire of demand notice under Section 14 (l)(a) of the Act. Sub-section (7) provides that if the tenant fails to pay or deposit rent as required by Section 15 i.e. under sub-sections (1), (2), (3) or (4), the defense of the tenant against eviction may be struck out and the Controller may proceed with the hearing of the eviction application. The object of section 15(7) of the Act is to require the tenant to pay or deposit arrears of rents as well as future monthly rent in accordance with the order that might have been passed under any of the sub-sections (1), (2), (3) or (4) of section 15 of the Act during the pendency of eviction proceedings contested by the tenant. The defense is to be struck off if there is willful failure or deliberate default on the part of the tenant. The discretion is conferred upon the Controller who is to exercise the same in a judicial manner to strike off the defense of the tenant after considering the circumstances of the particular case. Sub-section (7) is not mandatory but directory. But it does not mean that if defense has not been struck off, on an application filed by the landlord the default in deposit committed by the tenant in accordance with the order under sub-section (1) or any other sub-section of Section 15 of the Act stands condoned for purposes of section 14(2) of the Act. The object of an order passed under sub-sections (1), (2), (3) or (4) of section 15 of the Act and that passed under section 15(7) is entirely different. Under Section 15(7) when default is committed the defense of the tenant may be struck out meaning thereby he would not be allowed to defend himself against eviction. If defense is not struck out under Section 15(7) of the Act it means he is permitted to defend the eviction proceedings inspire of his having committed default in deposit of either arrears of rent or future monthly rent within the time allowed by law. Now coming to Section 14(2) of the Act, its language appears to be simple in the sense that a tenant is protected from eviction on ground of nonpayment of rent only if he complies with the order for deposit or payment of rent made under section 15 of the Act, i.e. under sub-section (1), (3) or (4).

(5) The protection of sub-section (2) of section 14 extends to such tenant only who had made payment or deposit of all the rent as required by section 15 which must mean the whole of section 15. In other words if a tenant complies with an order under section 15(1) regarding deposit of arrears of rent but fails to deposit future monthly rent by the 15th of each succeeding month he commits a default. He thus does not pay or deposit rent as required byorder under section 15 of the Act and is thereforee not entitled to protection under section 14(2) of the Act. Section 14(2) of the Act is a restriction on the rights of the landlord under which a tenant is granted an opportunity to protect himself if he has failed to comply with the notice of demand served by the landlord upon him as required by section 14(l)(a) of the Act. There is no indication either in Section 15 or Section 14(2) of the Act that a tenant would not be liable to eviction if he fails to pay or deposit in accordance with the order for deposit or payment made under section 15 of the Act. No other provision in the Act has been brought to my notice to give relief to a tenant who fails to deposit either arrears of rent or the future monthly rent directed to bedeposited under any of the sub-sections of section 15 of the Act. As already stated, ground of non-payment of rent is available to a landlord when the tenant fails to pay or tender whole of the arrears of rent legally recoverable from him within two months of the service of the notice of demand. This right of the landlord can be wiped out only when the tenant strifitly, complies with the order for deposit or payment made under Section 15.Learned Counsel for the appellant strongly contends that once defense of a tenant has not been struck off on account of his default in depositing future monthly rent, he is deemed to have complied with section 15(1) of the Act. I do not see any force in this argument. As already stated the object and intention of Section 15(7) and other sub-sections of Section 15 are different. The learned Counsel for the appellant relies upon Mrs. Santosh v. Om Parkash, 1980 Raj. L. R. 355, decided by the Supreme Court. This was a case relating to striking off defense under section 15(7) of the Act. The Supreme Court laid down the circumstances under which the defense of a tenant may be struck off. This judgment does not say that a tenant committing default in payment of rent as directed by the Controller is deemed to have paid or deposited rents in accordance with Section 15 of the Act, if the Controller has refused to strike off tenant's defense under section 15(7) of the Act. Learned Counsel for the appellant next relies upon Hem Chand v. Delhi Cloth & General Mills Ltd., : [1978]1SCR241 . Hem Chand was tenant of D.C.M. He failed to pay rents inspire of notice of demand. An order under Section 15(1) of the Act was passed directing him to deposit arrears of rent as well as future monthly rent in accordance with section 15(1) of the Act. The tenant committed default in payment of arrears of rents as well as future monthly rent in accordance with order made under section 15(1) of the Act. The Full Bench of this Court : AIR1972Delhi275 held that when a tenant makes default indepositor payment under section 15 of the Act the Controller is to pass an order for the recovery of possession and he cannot refuse landlord's prayer for eviction. The Full Bench held that the Rent Controller has no right to condone the delay, if any, in making payment according to the requirements of Section 15(1) of the Act. As the tenant had failed to deposit the rents in accordance with the order under Section 15(1) the defense of the tenant was also struck out by the Controller and the order was maintained by the Full Bench of this Court. The Supreme Court on appeal, however, held that the Controller is not bound to strike off the defense under section 15(7) of the Act even if the tenant had committed default in deposit of rent in compliance with the order under Section 15(1) of the Act. The Supreme Court held that Section 15(7) conferred a discretion on the Controller to strike off the defense and that it cannot be struck off as a matter of course. The Supreme Court, however, confirmed the view of this Court that if there is non-compliance of both sections 14(l)(a) and 15(1) of the Act the cause of action of the landlord praying for possession of the premises on the ground of failure to pay arrears of rents survives and the landlord can proceed with the application and make out his case. The Supreme Court agreed with the Full Bench view of this Court that 'Rent Controller has no discretion to extend the time prescribed under Section 15(1). Obviously the Supreme Court held that if a tenant has failed to deposit arrears of rent within one month of the date of order under section 15(1) the Controller has no jurisdiction to extend the time, and similarly if a tenant does not deposit future monthly rent by the 15th of each succeeding month as ordered and required under section 15 of the Act, the Controller has no jurisdiction to extend the time and allow a tenant to deposit future monthly rent beyond the 15lh day of succeeding month. The Supreme Court also nowhere laid down that if the tenant complires with the order for deposit of rent with respect to arrears of rent he is deemed to have complied with the order under section 15(1) and is entitled to protection under Section 14(2). As already stated, the case before the Supreme Court pertain to default with respect to arrears of rent as well as future monthly rent and thereforee the various observations made therein must be held to mean that a tenant is required to comply with the entire order under section 15(1) of the Act to avail protection under section 14(2) of the Act. The Supreme Court in para No. 9 observed :

'THERent Control Act protects the tenant from such eviction and gives him an opportunity to pay the arrears of rent within two months from the date of notice of demand as provided in Section 14(l)(a). Even if he fails to pay, a further opportunity is given to the tenant to pay or deposit the arrears within one month under section 15(1). Such payment or deposit in compliance with the order under Section 15(1) takes away the right of the landlord to claim recovery of possession on the ground of default in payment of rent. The legislature has given statutory protection to the tenant by affording him an opportunity to pay the arrears of rent within one month from the date of the order. The statutory provisions cannot be modified as rights of parties depend on the compliance with an order under section 15(1). In the circumstances, we agree with the Full Bench that the Rent Controller has no discretion to extend the time prescribed under Section 15(1)'.

(6) This observation of the Supreme Court also leads me to conclude that a tenant is required to comply with the entire order under section 15(1) in order to claim protection under section 14(2). An order under section 15(1) is with regard to deposit of arrears of rent within one month of the date of the order and future monthly rent by the 15lh of each succeeding month. In Den Dayal v. Mst. Zamani Begum, S.A.O. 168/73, decided on 14-2-1975 this Court held that a tenant to get protection under section 14(2) of the Act is required to deposit not only the arrears of rent but future monthly rent by the 15th of each succeeding month, i.e. in accordance with the order passed under section 15(1) of the Act. This Court again in Madan Lal v. Hukam Chand and others 1977(2) R.C.J. 643, held :

'ITmust, thereforee, be held that inspire of the fact that the delay in depositing the future rent was condoned for the purpose of Section 15(7) of the Act, that condensation does not ensure to wipe out the default completely and the landlord is entitled to claim the benefit of the said defaults in complying with the order under section 15(1) by the tenant and to claim an order for eviction as stated in section 14(2) of the Act.'

(7) In that case there was default in deposit of future monthly rent month by month during the pendency of the petition in accordance with the order passed under section 15(1) of the Act. In Munshi Lal v. Thakur Prem Chand, 1970 R.C.J. 496, also there was default in deposit of future monthly rent in pursuance of an order passed under section 15(1) of the Act, and an order of eviction was granted to the landlord under section 14(l)(a) read with Sections 14(2) and 15 of the Act. In that case an order for deposit of rent was passed under section 15(3) read with section 15(1) of the Act. The tenant had failed to deposit future interim rent under section 15(3) of the Act. I, thereforee, do not find any infirmity in the impugned order. The appeal is thereforee dismissed with costs. Counsel fee Rs. 300.00 .


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