Delhi High Court
Devinder Singh And Ors. vs Municipal Corporation Of Delhi on 9 November, 1995
Equivalent citations: 60(1995)DLT869, 1996RLR101, 1996 A I H C 1546, 1996 WLC(RAJ)(UC) 101 (1995) 60 DLT 869, (1995) 60 DLT 869
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT Arun Kumar, J.
(1) The petitioners filed an eviction petition on the grounds contained in Clauses (a) and (j) of the proviso to Sub-section (l ) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act) on 17th November, 1989 for eviction of the respondent from suit premises located at Premises No. 3474, Nicholson Road, Delhi. The premises had been let out to the respondent at a monthly rent of Rs. 170.75p excluding water and electricity charges.
(2) A notice dated 1st May, 1986 claiming the arrears of rent with effect from 1st August, 1985 had been duly served on the respondent through its Commissioner on 3rd May, I 986. Inspite of the service of the said notice the respondent had failed to pay the arrears of rent within two months. The eviction petition as already stated was filed on 17th November, 1989. It was stated in para 19 of the eviction petition that the permission of the Competent Authority under the Slum Areas (Improvement & Clearance) Act was obtained on 2nd February, 1989. A certified copy of the order of the Competent Authority granting permission to institute an eviction petition was filed Along with the eviction petition.
(3) The tenant was duly served in the eviction petition but was proceeded ex parte on 14th March, 1990 because it failed to appear. No written statement was even filed on behalf of the tenant. An order under Section 15(1) of the Act was passed on 20th March, 1991 directing the respondent tenant to deposit arrears of rent at the rate of Rs. 170.75p. per month w.e.f. 18th November, 1989 within one month of the said order. The tenant was further directed to continue to pay or deposit rent month by month by the 15th of each succeeding month. On 24th July, 1992 the respondent made an application before the Addl. Controller for setting aside the ex parte order. The application was dismissed on 29th July, 1994. The petitioner led their ex parte evidence on 30th August, 1994. The eviction petition was, however, dismissed by the Addl. Controller on 7th September, 1994. The appeal of the landlords before the also failed and was dismissed in liming on 28th November 1994. The Tribunal passed a speaking order while dismissing the appeal in liming. The present petition is directed against the decisions of the authorities below.
(4) The case of the petitioners for consideration in the present petition is about the decisions of the authorities below on Clause (a). So far as the case of the petitioners on Clause (j) is concerned, the findings of the authorities below is not challenged by the landlords and, therefore, this Court need not go into that aspect atall.
(5) The eviction petition under Clause (a) was rejected by the authorities below on the ground that the same should have been filed within the period of limitation for recovery of arrears of rent. In the present case the arrears of rent sought to be recovered vide notice dated 1st May, 1986 were w.e.f. 1st August, 1985. The eviction petition was, however, filed on 17th February, 1989. On the said date the arrears of rent as claimed in the notice dated 1st May, 1986 had all become time barred and, therefore, the authorities below were of the view that the petition itself was not maintainable under clause (a) of the proviso to Sub-section (1) of Section 14 of the Act. In this connection it is worthwhile to reproduce Clause (a) which is as under:-
"(A)that the tenant has neither paid nor tendered the whole of the arrears of the 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."
(6) It would be seen from the above quoted provision that the words "rent legally recoverable" are used in the context of the notice which has to be served by the landlords. In other words the notice should be regarding arrears of rent which are legally recoverable by the landlords from the tenant. The notice should not be claiming rent for a period for which it had become time barred. A notice under Clause (a) is a sina qua non for a petition under section 14(1)(a) of the Act. Without service of a notice as stated in the said provision a petition will not be maintainable. In the present case there is nothing wrong with the notice because when the notice was served the arrears of rent which were claimed in the notice, were clearly within time and, therefore, legally recoverable. There is no dispute regarding service of notice. The notice has been proved as Ex. AW1 /3. The controversy has arisen on the basis of the fact that the eviction petition was filed on 17th November, 1989, i.e. when the arrears of rent claimed in the notice had become time barred. The question for consideration is - Can an eviction petition under Section 14(1)(a) of the Act be dismissed on such a ground?
(7) In this connection it has to be noted that as per the provisions of Section 19 of the Slum Areas (Improvement & Clearance) Act no eviction petition on the grounds contained in clauses other than Clause (e) of the proviso to Sub-section (I ) of Section 14, read with Section 25B can be filed without obtaining permission of the Competent Authority appointed under the said Act for the properties situated within slum areas. There is no dispute that the property in the present case is located in a slum area as per the said Act. Secondly, it is not disputed by the learned Counsel for the respondent that permission of the Competent Authority under the Slum Areas (Improvement & Clearance) Act was required before instituting an eviction petition in the present case. As already noticed, the landlord stated in the eviction petition in para 19 that the permission of the Competent Authority (Slums) was obtained only on 2nd February, 1989. The eviction petition was filed on 2nd November, 1989. Thus without the permission of the Competent Authority the eviction petition could not have been filed.
(8) The learned Counsel for the respondent submits that the cause of action pleaded on the basis of service of notice as required under Clause (a) of the Act arose in May 1986 and the eviction petition ought to have been filed at least within three years from the said date. The period of three years is suggested on the basis of Article 137 of the Limitation Act. Thus according to the learned Counsel for the respondent tile eviction petition itself was barred by time on the date when it was instituted.
(9) The answer to this argument advanced on behalf of the learned Counsel for the respondent is, firstly the provisions of Limitation Act as such do not apply in proceedings under the Delhi Rent Control Act as held by this Court in Mohd. QMesh v. Smt Roopa Photedar 1990RLR 112 & jagdish Prasad v.Phoolwati Devi, 1980 Rlr 367.
(10) The second aspect is that even assuming for the sake of argument that Article 137 applies in the present case, time from which the period begins to run is when the right to apply accrues. In the present case the right to apply accrued only after the permission was granted by the Competent Authority under the Slum Areas (Improvement & Clearance) Act, i.e. on 2nd February, 1989. Therefore, I find no merit in the argument advanced on behalf of the Counsel for the respondent that the eviction petition was barred by time.
(11) A reference to Clause (a) of proviso to Sub-section (I ) of Section 14 of the Act shows that the arrears of rent claimed in the notice should be legally recoverable on the date on which the notice is served. The words "rent legally recoverable" are used in the context of notice. The said provision does not lay down any requirement that on the date of institution of the eviction petition also the arrears of rent claimed in the notice should be legally recoverable. The notice is a sine qua non for institution of a petition under this clause of the proviso. It is intended to give a tenant a chance to pay the arrears of rent before the landlord is driven to the final step of instituting an eviction petition. If the tenant fails to avail of the opportunity granted to him by the said provision, the cause of action arises in favor of the landlord to institute an eviction petition. Learned Counsel for the petitioners landlords has relied on Day a Singh v. Bhagwan Singh & Sons, 1976 Rlr 539. In the said judgment this Court has taken a similar view on the point. I am in the respectful agreement with the said view.
(12) Learned Counsel for the respondent also contended that the notice Ex. Aw 1 /3 became ineffective or non cst in view of the rent for subsequent period paid by the respondent to the landlords. In this behalf the learned Counsel relied on contents of para 4 of the reply filed by the respondent in the present proceedings. The respondent had stated in the said para about sending of three cheques to the petitioners towards arrears of rent. These cheques were allegedly sent much beyond the period covered under notice served upon the respondent by the landlords as referred to above. Secondly it is clear from the pleadings of the respondent itself that the petitioners did not receive any payment under the cheques referred to by the respondent and, therefore, in fact there was no payment of rent. Learned Counsel for the petitioners stated at the Bar that the respondent never paid any rent after the service of notice. In fact it has been pointed out that in the eviction petition the tenant had been proceeded ex parte at a very early stage. The respondent tenant had also failed to comply with the order under section 15(1) of the Act passed by the Addl.Controller on 20th March, 1991. Therefore, there is no basis for the contention raised on behalf of the respondent regarding payment of rent for subsequent period. The same is factually incorrect as no rent has been paid for the period subsequent to service of the notice under reference by the respondent to the landlords.
(13) Thus there is no escape from an eviction order being passed under Clause (a) of the proviso to Sub-section (1) of Section 14 of the Act. Non-compliance of the notice dated 1st May, 1986 (Ex.AW 1/3) is clearly established. Further there is noncompliance of order under Section 15(1) of the Act. Therefore, not only that an eviction order is liable to be passed against the respondent, the respondent is not entitled to the benefit under Section 14(2) of the Act in view of the non-compliance of the order under Section 15(1) of the Act.
(14) The result is that the petition is accepted. The judgments of both the authorities below are set aside. The eviction petition filed by the petitioners regarding the premises in suit as shown in red in the site plan filed Along with the eviction petition is allowed. An-eviction order is passed in favor of the petitioners and against the respondent under Section 14(1)(a) of the Act regarding the suit premises as per site plan filed Along with the eviction petition.
(15) Though there is no statutory requirement for grant of time, yet keeping this fact in view that the respondent is allegedly running a school in the suit premises, time is granted to the respondent to vacate the tenancy premises by or before 30th April 1996.