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Mohd. Usman Vs. Mohd. Siddiq and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 1 of 1977
Judge
Reported in28(1985)DLT279; 1986(10)DRJ51
ActsDelhi Rent Control Act, 1958 - Sections 14
AppellantMohd. Usman
RespondentMohd. Siddiq and anr.
Advocates: M. Ahmed, Adv
Cases ReferredHari Rajkishore Aggarwal v. Raj Kumar
Excerpt:
.....so. the cause of action would, however, arise after the expiry of 2 months of the service of the notice of demand.;slum areas (improvement and clearance) act, 1956 - a second application for eviction of the tenant, after one application has failed, on the basis of the earlier permission by the competent authority, is competent. - - (3) the respondents filed a second application for eviction on the ground of non-payment of rent on september 19, 1973. it was averred that the appellant had not paid the arrears of rent due from may 1, 1972 inspire of service of the notice of demand and was not entitled to the benefit of the provisions contained in section 14(2) of the act having already enjoyed the benefit of these provisions in the earlier application. ex r-2 is the notice dated june..........that the appellant had not paid the arrears of rent due from may 1, 1972 inspire of service of the notice of demand and was not entitled to the benefit of the provisions contained in section 14(2) of the act having already enjoyed the benefit of these provisions in the earlier application. holding that the appellant had not paid the arrears of rent within two months of the service of the notice of demand and had committed second default for more than three consecutive months, an order for eviction of the tenant was made by the rent controller on august 16, 1974. the appeal filed against the said order was dismissed by the rent control tribunal on september 4, 1976. hence this second appeal. (4) mr. m. ahmed, learned counsel appearing for the appellant urged that filing the second.....
Judgment:

G.C. Jain, J.

(1) This second appeal is directed against the order of the Rent Control Tribunal, Delhi dated September 4, 1976.

(2) The appellant Mohd. Usman was admittedly in possession of the premises in dispute bearing municipal No. 1754, GaliMirJumla,LalKuan Bazar, Delhi, as a tenant under the respondents Mohd. Siddiq and Mohd. Salim on a monthly rent of Rs. 23.00 . On October 5, 1967 the respondents made an application to the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 seeking permission to file an application for eviction of the appellant from the said premises on the grounds of non payment of rent, substantial damages to the disputed premises and sub letting. The Competent Authority by its order dated Dec. 11, 1968 granted the permission to institute eviction proceedings against the appellant but only on the ground of non payment of rent. The respondents thereafter made an application for eviction of the appellant under proviso (a) to sub-section (1)of Section 14 of the Delhi Rent Control Act (hereinafter called the Act) i.e. on the ground of non-payment of rent. The said application was dismissed giving the appellant benefit of Section 14(2) of the Act.

(3) The respondents filed a second application for eviction on the ground of non-payment of rent on September 19, 1973. It was averred that the appellant had not paid the arrears of rent due from May 1, 1972 inspire of service of the notice of demand and was not entitled to the benefit of the provisions contained in Section 14(2) of the Act having already enjoyed the benefit of these provisions in the earlier application. Holding that the appellant had not paid the arrears of rent within two months of the service of the notice of demand and had committed second default for more than three consecutive months, an order for eviction of the tenant was made by the Rent Controller on August 16, 1974. The appeal filed against the said order was dismissed by the Rent Control Tribunal on September 4, 1976. Hence this second appeal.

(4) Mr. M. Ahmed, learned counsel appearing for the appellant urged that filing the second application for eviction a fresh permission from the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1959 was required. No such permission was admittedly obtained and thereforee the eviction petition was not maintainable. This contention, in my view, has no merit. The respondents admittedly had obtained the permission for filing an application for eviction on the ground of non-payment of arrears of rent earlier. It did not stand exhausted on the dismissal of the first application. The second application on the basis of that permission was competent. It was so held by this court in Hari Rajkishore Aggarwal v. Raj Kumar, 1978 (2) Ren C. R 680

(5) Learned counsel for the appellant referred me to the order of the Competent Authority where it was observed that the appellant was not expected to secure alternative accommodation, within his means. These observations are of no consequence. Still the permission to file the petition for eviction was granted. The legality of the order could not be challenged before the Controller or the Tribunal. The remedy of the appellant was by way of a writ petition under Article 227 of the Constitution of India.

(6) It was then argued that by notice dated January 23, 1973, Ex.A-4, the respondents called upon the appellant to pay the arrears of rent by the expiry of the tenancy month commencing on February 1, 1973. Thus two Months clear time was not given and thereforee the notice was illegal. This contention also has no substance. The Act does not provide any form for the notice of demand. All what is essential is a demand for the payment of arrears of rent. After the demand the landlord has to wait for a period of two months from the date of service of the notice of demand. The cause of action would arise only when the tenant fails to pay the arrears of rent within two months of the service of the notice of demand. The landlord is not required to give two months time for payment in the notice itself. The notice would not be illegal on the ground that landlord has called upon the tenant to pay arrears of rent within a month or so. Of course, the cause of action would arise only after the expiry of the period of two months of the service of notice of demand.

(7) It was also argued that pursuant to the notice served upon the appellant by the Municipal Corporation of Delhi he spent Rs. 1229.00 on repairs of the premises and was entitled to adjust that amount. Ex R-2 is the notice dated June 16, 1973 whereby the respondents-landlords as well as the appellant-tenant, were directed to demolish the dangerous portion. The appellant was not required to effect repairs by means of this notice. Moreover according to the allegations in the written statement filed on February 18, 1974 the repairs were made with effect from September 22, 1973, i.e. after the accrual of the cause of action and filing of the eviction petition. In any case except the bald statement of the appellant there is no evidence to prove that he spent any amount on repairs.

(8) In conclusion I find no merit in the appeal and dismiss the same. The appellant is, however, allowed six months time to vacate the premises Parties are left to bear their own costs,


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