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Baini Ram and ors. Vs. Jainti Pershad and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 234 of 1973
Judge
Reported in21(1982)DLT108; 1982(3)DRJ16
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 22
AppellantBaini Ram and ors.
RespondentJainti Pershad and anr.
Advocates: B.I. Singh,; S.S. Gautam and; S.L. Bhatia, Advs
Cases ReferredIndian Cable Co. Ltd. v. Their Workmen
Excerpt:
.....april 10, 1970 under section 15(1) of the act directing them to deposit the arrears of rent at rs. (4) under section 15(1) of the act, a tenant is required to deposit arrears of rent as well as future monthly rent. order under section 15(1) is passed with respect to arrears as well as future monthly rent......from 1st january, 1967 up to date within one month from the order and also to deposit future rent month by month by the 15th of the following month. the tribunal found that the arrears were deposited within one month of the date of the order but there were various defaults in deposisting future monthly rent. the tribunal thereforee maintained the order of eviction but only on the ground mentioned in clause (a) of the proviso to sub-section (1) of section 14 of the act. the appellants challenged the order of the tribunal. respondent no. 1 landlord also filed an appeal under section 39 of the act (s.a.0. no. 321 of 1973) claiming eviction of the appellants also, under clauses (b) & (e) of the proviso to section 14(1) of the act. by this order i will dispose of the two appeals. (3).....
Judgment:

Sultan Singh, J.

(1) This Second Appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is directed against the judgment and order of the Rent Control Tribunal dated 16th August. 1973 passing an order of eviction against the appellant-tenant under Section 14(l)(a) of the Act.

(2) Briefly stated the facts are that respondent No. 1 on 13th February, 1970 filed an application for eviction of the appellants and respondent No. 2 under clauses (a),(b) and (c) of the Proviso to Section 14(1) of the Act alleging that the appellants were tenants under him in a portion of Property No. 3862, Sarai Phoos, Tis Hazari, Delhi at a monthly rent of Rs. 201-, that they were in arrears of rent from 4th May, 1966 which they failed to pay in spite of service of notice of demand, that he was the owner of the suit premises, that the premises were let for residential purposes, that he required bona fide the premises for himself and for members of his family dependant upon him, that he had no other reasonably suitable residential accommodation at Delhi and further alleging that the appellants had sublet a portion of the suit premises to respondent No. 2. The Additional Controller by order dated 30th November, 1971 held that the appellants had complied with the order passed under Section 15(1) of the Act directing the appellants to deposit the arrears of rent for the period from 1st January, 1967 onwards at Rs.20.00 per month and thereforee they were entitled to benefit under Section 14(2) of the Act, that the appellants had sublet the premises without obtaining the consent of respondent No. 1, that respondent No. 1 required the premises bona fide for his residence. On appeal by the tenants-appellants the Rent Control Tribunal by order dated 16th August, 1973 held that the requirement of respondent No. 1 was not bona fide, that there was no evidence to show that the appellants had parted with the legal possession of any portion of the premises to respondent No. 2. On the ground of non-payment of rent, it was held that the appellants failed to comply with the order passed on April 10, 1970 under Section 15(1) of the Act directing them to deposit the arrears of rent at Rs. 20.00 per month with effect from 1st January, 1967 up to date within one month from the order and also to deposit future rent month by month by the 15th of the following month. The Tribunal found that the arrears were deposited within one month of the date of the order but there were various defaults in deposisting future monthly rent. The Tribunal thereforee maintained the order of eviction but only on the ground mentioned in clause (a) of the proviso to Sub-section (1) of Section 14 of the Act. The appellants challenged the order of the Tribunal. Respondent No. 1 landlord also filed an appeal under Section 39 of the Act (S.A.0. No. 321 of 1973) claiming eviction of the appellants also, under clauses (b) & (e) of the proviso to Section 14(1) of the Act. By this order I will dispose of the two appeals.

(3) The Controller on 10th April, 1970 passed an order under Section 15(1) of the Act directing the appellants-tenants to deposit the arrears of rent at the rate of Rs. 20.00 per month with effect from 1.1.1967 up to date within one month of the order and also to deposit future rent month by month by the 15th of the each following month. The appellants deposited Rs. 800.00 on 8th May, 1970 which was the amount of arrears for the period from 1st January, 1967 to 30th April, 1970. It is not disputed that the rent for the month of May and June was deposited on 8th June, 1970. This was a deposit within time. The next deposit of Rs. 40.00 was made on 1st September, 1970. This was obviously rent for the month of July and August, 1970. Rent for July, 1970 was required to be deposited on or before 15th August, 1970 but it was deposited on 1st September, 1970. Hence there was a default. Again rent for September and October and November, 1970 was deposited on 20th October, 1970. According to the order under Section 15(1) of the Act rent for the month of September was to be depointed on or before 15th October, 1970 but it was not deposited as such, and thereforee there was default in deposit of rent for the month of September, 1970. Several other defaults were also committed by the appellants. In other words it must be held that though the appellants deposited the arrears of rent due on the date of the order dated 10th April, 1970 passed under Section 15(1) of the Act, they committed default in depositing future monthly rent in accordance with the said order under Section 15(1) of the Act. Learned counsel for the appellants submits that as the arrears of rent were deposited and there was only default in depositing the future monthly rents, they are protected under Section 14(2) of the Act. Another objection raised by the appellants is that the ground of eviction on non-payment of rent was decided by the Controller against the landlord who did not file any appeal before the Tribunal and thereforee the Tribunal had no jurisdiction to pass an order of eviction on ground of non-payment of rent against the appellants under Section 14(l)(a) of the Act.

(4) Under Section 15(1) of the Act, a tenant is required to deposit arrears of rent as well as future monthly rent. If a tenant complies with such an ordere he is not liable to be evicted, as he is protected under Section 14(2) of the Act. Section 15(1) read with Section 14(2) of the Act stipulates that if an order for deposit is passed under Section 15(1) of the Act and the same is complied with, no order for eviction can be passed against the tenant. Order under Section 15(1) is passed with respect to arrears as well as future monthly rent. Protection is granted under Section 14(2) of the Act if there is compliance of the entire order passed under Section 15(1) of the Act. In other words, the tenant is entitled to protection under Section 14(2) of the Act only if he deposits the arrears of rent and also the future monthly rent as directed by an order under Section 15(1) of the Act, (See : Devi Dayal v. Mst. Zamani Begum S.A.O. No. 168 of 1973 decided on 14th February, 1973, Madan Lal v. Hukam Chand and Others. 1977 (2) R.C.J. 643, Munshi Lal v. Thakur Prem Chand 1970 R.C.J. 496 and Subhash Mehta v. Dr. S. P. Chavdhary, : 19(1981)DLT97 = 1981 D.R.J 7.

(5) Order 41 Rule 22 of the Code of Civil Procedure reads as under :

'(1): Any respondent though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favor ; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow'.

(6) Under this provision the respondent in an appeal has a right of upholding the decree of the court of the first instance on any of the grounds on which that court had decided against him. Besides this the respondent has also a right of taking any cross-objection to the decree which the respondent might have taken by way of appeal. The Additional Controller, in the instant case, passed the order of eviction against the appellants on the grounds mentioned in clauses (b) & (e) of Section 14(1) of the Act. But as regards the eviction on the ground of non-payment of rent the Controller observed that the appellants -tenants had complied with the order under Section 15(1) of the Act and thereforee the benefit was given to them of Section 14(2) of the Act. Factually this was a wrong statement. As already observed, the appellants had not complied with the order under Section 15(1) of the Act. The Tribunal after discussing the ground of eviction under clauses (b) & (e) of the Act conculded that the appellants were not liable to be evicted on those grounds. The question thereforee arises whether the Tribunal was justified in taking into consideration the various defaults committed by the appellants in complying with the order under Section 15(1) of the Act and maintain the order of eviction passed by the Controller under Order 41 Rule 22 of the Code. What is required is to support the decree or order of the lower court. The respondent in an appeal can support the decree on any of the grounds on which the trial court decided against him. Thus the landlord-respondent No. 1 was entitled to argue before the Tribunal that the order under Section 15(1) of the Act was not complied with by the appellants-tenants and as such he was entitled to an order of eviction on ground of non-payment of rent. In Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar FulsinJi and others, ' : [1965]1SCR712 it has been observed that Order 41 Rule 22 of the Code premises a party to support the judgment appealed against upon a ground which has been found against him in that judgment. In Management of the Northern Railway Co-operative Credit Society Ltd Jodhpnr v. Industrial Tribunal, Rajasthan, Jaipur and another, : (1967)IILLJ46SC it has been held that the respondent is entitled to support the decision of the Tribunal even on grounds which were not accepted by the Tribunal or on other grounds which may not have been taken notice of by the Tribunal while they were patent on face of record. The Judgment in Ramanbhai Ashabhai Patel (supra) was followed in Thenfule Nakhro Angami v. Smt. Revoluei alias Rani M. Shaiza : [1971]3SCR424 and The Employers in relation to the Management of the Indian Cable Co. Ltd. v. Their Workmen, : (1972)IILLJ121SC . Thus it must be held that the landlord -respondent No. 1 was entitled to claim an order of eviction before the Rent Control Tribunal on ground of non-payment of rent without filing an appeal. In other words, the landlord was entitled to an order of eviction on the ground of non-payment of rent and the Tribunal had jurisdiction to maintain the order of eviction without any appeal on behalf of respondent No. 1. There is no merit in the appeal and is hereby dismissed.

(7) In S.A.O. No. 321 of 1973 the appeal filed by respondent No. 1, no substantial question of law within the meaning of Section 39 of the Act is involved. The Tribunal after considering the evidence and circumstances of the case concluded that there was no evidence to show that the appellants had parted with the legal possession of the premises to respondent No. 2. The facts are that the wife of respondent No. 2 is the sister of the appellants. Respondent No. I was the owner of half share of the suit property, and the appellants were owner of the other half. The father of the appellants had died in the year 1948-49. The appellants executed a registered sale deed on 4th March, 1965, in favor of respondent No. 1 and thus respondent No. 1 became the owner of the entire property. The appellants attorney to respondent No. 1 as tenants in terms of a rent note dated 6th March, 1965 Ex. A.W. 1/3. The appellants and their sister, the wife of respondent No. 2, were already in occupation of the suit premises. After becoming tenants on and from 6th March, 1965 the appellants never violated clause (b) of the proviso to Section 14(1) of the Act. Their sister was already in occupation of a portion and it must be held that the appellants never sublet or otherwise parted with the legal possession of any portion under their tenancy after becoming tenants to respondent No. 2. The violation of Section 14(l)(b) of the Act by the tenant must be alter his becoming a tenant in the premises. As regards bona fide requirement the Tribunal after taking into consideration the evidence on record has concluded that the alleged requirement of respondent No. 1 was not bona fide. In second appeal under Section 39 of the Act this court will not interfere with the finding of fact arrived at by the Tribunal. Thus there is no merit in this appeal of the landlord-respondent NO. 1 and the same is also dismissed. No order as to costs in both appeals.


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