Delhi District Court
Panchayti Dharmarth Trust vs Usha Gupta on 27 July, 2024
IN THE COURT OF MS. NEETU SHARMA, CCJ CUM
ARC, CENTRAL, TIS HAZARI COURTS
RC ARC 377/2019
CNR No. DLCT03-003507-2019
In the matter of :
Shri Panchayati Dharmarth Trust, Delhi,
Situated at:
66-67-E, Kamla Nagar, Delhi-110007.
Through its President/AR
Shri Satish Kumar Gupta and
Shri Vijay Kumar Gupta. ...Petitioner
Versus
Smt. Usha Gupta,
W/o late Shri Mukesh Kumar Gupta,
C/o 66-67-E, Kamla Nagar, Delhi-110007.
IInd Address:
2353-54, Kaakwan Gali,
Ghanta Ghar, Delhi-110007. ...Respondent
Eviction Petition under Section 14 (1)(a) of Delhi Rent
Control Act, 1958
Date of Institution :20.05.2019
Date on which judgment was reserved : 20.04.2024
Date of Decision : 27.07.2024
Decision : Petition allowed.
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.1/19
JUDGMENT
1. A trust has filed the instant eviction petition on the ground of non-payment of arears of rent despite service of notice as envisaged in Section 14(1)(a) of Delhi Rent Control Act. Petitioner is a registered trust and owns the property number 66- 67-E, Kamla Nagar, Delhi. It claims that earlier Mukesh Gupta was inducted as tenant in one shop on the ground floor of the property and on his death, Usha Gupta has inherited the tenancy. Last paid rent was Rupees 3100 per month. The respondent Usha Gupta has been a habitual defaulter and did not pay the rent from 01.04.2018 to 30.11.2018. The trust issued a notice dated 31 st December 2018 but the respondent did not pay the arears of rent within statutory period of 2 months. Hence this case.
2. On summons being served, the responded filed WS contending that trust is not a legal entity and cannot file the petition. She also questioned the authority of Satish Gupta and Vijay Gupta. She claimed that originally her father in law was inducted as tenant by the petitioner trust and the rent was Rs 240 but suddenly the petitioner trust started taking Rupees 3100 without any reason. She also denied to have received any notice from the petitioner.
3. Vide order dated 17th March 2021, Ld. Predecessor by invoking powers under Section 15(1) had directed the tenant/respondent to pay Rupees 3100 per month by 15 th of each succeeding month and also to clear the arears within a month.
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.2/19The tenant failed to comply with this direction and came up with an application praying for payment in instalments. Ld. Predecessor declined the request and vide order dated 2 nd February 2023 struck off the defence of respondent.
4. Thereafter, AR of the petitioner examined himself and was cross-examined on behalf of the respondent. Since defence was struck off, there was no occasion for leading any evidence in defence. As such, the matter was finally heard. I proceed to dispose of the case through the present judgement.
5. In this type of eviction proceeding, diverse situations may arise. The process therefore needs to be understood properly.
6. When a landlord files an eviction petition for non-payment of arrears, the Rent Controller has to try the case in terms of Section 37 which mandates him to adopt the procedure of small causes court. The Provincial Small Causes Courts Act provides for following the procedure envisaged in CPC which in turn says that such courts are required to follow all the procedure enshrined in CPC barring few such as settlement of issues. Rule 7 of Delhi Rent Control Rules says that every eviction petition shall be signed and verified in the manner provided in Rule 14 & 15 of Order 6 CPC. Rule 23 says that in all other matters, Rent Controller shall be guided by procedure of CPC as far as possible.
7. From the aforesaid, it becomes clear that the eviction petition has to be treated as a civil suit as far as possible.
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.3/19Meaning thereby that Rent Controller on receiving an eviction petition, should issue notice to the tenant. Following situation may arise:
Tenant does not appear to oppose the petition:-
8. If in pursuance to the notice given by Rent Controller tenant does not appear, the proceeding shall be conducted ex- parte. In terms of Rule 5 and Rule 10 of Order 8 CPC, the claims made by the petitioner may be treated as admitted. It may be held that the petitioner has been able to satisfy the necessary ingredients of Section 14(1)(a). Rent Controller may in his discretion ask the petitioner to bring evidence in support of the claims. Since the respondent is not available, the affidavit alongwith documents shall be sufficient. Once satisfied, the rent controller will hold the petition successful.
Tenant appears and files a written statement to oppose the petition:-
9. If the tenant contests the case, the rent controller has to decide the same on merits after recording the evidence. However, it may happen that the tenant absents himself from the proceedings lateron and in such eventuality, the court may have to proceed ex-parte. A third situation here may also arise. Defence of the tenant may be struck off. However, the court may ask the landlord to bring evidence and if the tenant appears while the evidence is going on, he may cross examine the witness with a view to impeach his credit, though he may not be able to bring RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.4/19 evidence in defence.
10. In all the situations, the rent controller will have to arrive at a finding of fact that landlord has been able to establish all the necessary ingredients entitling him an order for recovery of possession.
11. Since the case is based on non-payment of rent, it will be prudent to first note the relevant provision. The same reads as under:
"Section 14. Protection of tenant against eviction.- (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 favour 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 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 of him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882)".
12. The aforesaid provision gives a ground to the landlord to get an eviction order against the tenant. Following are the necessary ingredients of the provision:
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.5/19 There should be in existence a landlord tenant relationship;
Tenant must have failed to pay the rent resulting into arrears;
Such arrears of rent should be legally recoverable, it should not be barred by time;
Landlord should have issued a notice demanding the payment of arrears;
Despite receiving such notice, the tenant fails to pay the whole arrears within statutory period of 2 months.
13. A landlord in the eviction petition has to satisfy all the aforesaid ingredients if he wants to succeed. Therefore, we need to look into all the aforesaid ingredients vis a vis the present case.
Landlord-tenant:- Respondent even in the written statement has not denied her status as tenant. She has further stated that her father in law was inducted as tenant by the trust. Clearly, therefore, she is accepting the petitioner trust as landlord and herself as tenant. Respondent has claimed that trust cannot file a petition. This is clearly unacceptable. A trust has every right to sue. Respondent has questioned the authorisation of persons representing the trust but has not been able to demonstrate any infirmities even during the cross-examination of PW1.
Failure to pay rent:- Respondent has claimed that the trust has not accepted the rent which was being tendered from 01.04.2018. If this is so, no one had prohibited the RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.6/19 respondent/tenant to deposit the rent in the court under Section 26. The same has not been done. Arrears of rent therefore had accrued.
Legally recoverable arrears:- Petition was filed in the month of May 2019. Petitioner has projected the arrears for 01.04.2018 to 30.11.2018. This was clearly recoverable in law. What however the claim of respondent is that earlier the rent was 240 but suddenly the trust started taking 3100 without any authority of law. Respondent has not denied paying 3100 as rent. In such circumstances, an oral agreement for enhancement of rent has to be inferred. Obviously, if parties agree to enhance the rent at particular rate, law cannot prohibit them.
Demand notice:- It is important here to note that issuance of notice by the landlord to the tenant for arrears is the first available opportunity for the tenant to avoid an eviction. Delhi Rent Control Act was enacted primarily with a purpose to protect the tenants. It is just as an exception and with a view to give some premium to the property rights of an owner that the provisos are enacted for the landlords to disturb the tenants on very special grounds. One of such grounds is that tenant has not paid the arrears of rent. Obviously, tenant is required to be given an opportunity to pay the arrears and avoid an eviction. It is only when the tenant does not pay any heed to the notice of landlord demanding arrears that the landlord gets an authority to come to the court praying for eviction of the tenant. As RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.7/19 such, issuance of notice becomes very important. Respondent claims that she did not receive any notice from the trust. Petitioner has relied on copy of legal notice, postal receipts, AD card. The address of respondent mentioned thereon is the same address which is mentioned in the affidavit of respondent filed in support of written statement in this case. There is no reason to disbelieve the claim of petitioner that the notice was so received by the respondent.
Failure to pay:- Respondent nowhere claims that she has actually paid the arrears of rent after receiving the notice from the trust.
14. Clearly, all the necessary ingredients of Section 14(1)(a) are satisfied in the present case. If despite service of notice by the landlord, a tenant fails to clear the dues, such tenant cannot be shown any leniency. However, the law stills wants to favour the tenant.
15. Even when the tenant had failed to avail the first opportunity to clear the arrears on receiving the notice from the landlord, law still envisages a second opportunity for the tenant to save his tenancy. It is provided in Section 14(2) which reads as under:
"(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:RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.8/19
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".
16. The enactment aforesaid in the main clause prohibits the Rent Controller from passing an eviction order if the tenant makes payment as required by Section 15. Meaning thereby that even if the landlord has succeeded in establishing all the necessary ingredients of Section 14(1)(a), the rent controller will not be able to make an order for recovery of possession.
17. The provision of Section 14(2) however applies only when the tenant makes the payment as required by Section 15. The basic provision is enacted in Clause-(1) of Section 15 which reads as under:
"Section 15. When a tenant can get the benefit of protection against eviction.- (1) In every proceeding of 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, after giving 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 RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.9/19 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".
18. First reading of the aforesaid provision gives an impression that it is a mandate to the Rent Controller to always issue a direction to the tenant to pay the arrears. Word 'shall' has been used. However, if it is treated as a mandate, the expression "an opportunity of being heard" used in the provision will become redundant. If the parties are given chance to make arguments before the Rent Controller, they can certainly demonstrate their own situation. The tenant may be able to show that for different reasons, no order for payment should be made. There may be diverse situations in which the Rent Controller may not be required to pass such an order: i) Landlord has claimed that opposite party is his tenant but the said party claims himself to be the owner; ii) Landlord has claimed that opposite party is his tenant but the said party claims to be in adverse possession of the property.
19. What however is clear that the Rent controller may either pass an order for making payment or may not so pass any such order as per the available circumstances. If he does not pass any order for payment, obviously, Section 14(2) will not become applicable. In such a scenario, if the eviction proceeding is taken to its logical end and culminates into an eviction order, the tenant will have to vacate the property without any protection.
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.10/1920. On the other hand, if the Rent Controller passes an order for payment of arrears and for subsequent payments, following situations may arise:
Tenant makes payment of arrears and continues to pay the rent on monthly basis on fixed date;
Tenant makes payment of arrears and pays monthly rent in irregular manner;
Tenant fails to pay the arrears but makes payment towards monthly rent regularly;
Tenant does not pay at all.
21. All the conditions obviously can be checked only for some specified period. Time for clearing the arrears of rent is statutorily provided for one month. Therefore, after one month, the compliance can be ascertained. So far as future payments are concerned, the same can be ascertained till the conclusion of proceedings. In both the situations however, there will be rights available with the landlord and tenant to approach the court with their grievances. Landlord may say that tenant has not complied with the conditions and therefore, his defence may be struck off. Tenant may say that he was unable to comply due to some extra- ordinary circumstances beyond his control. If the court accepts the version of tenant, it may not strike of the defence and may allow him further time (see of Ram Murti vs Bhola Nath (1984) 3 SCC 111, Dina Nath vs Subhash Chand Saini (2019) 13 SCALE 1).
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.11/1922. Other clauses of Section 15 are also required to be noted. Clauses-(3) and (4) of Section 15 take care of some specific situations. Where the rate of rent itself is in dispute, Clause-(3) authorises the Rent Controller to fix an interim rate of rent at which the arrears and monthly rent has to be paid. If the dispute is in respect of a person as to who the rent should be paid, Clause-(4) says that the rent shall be deposited with the Rent Controller and shall not be withdrawn unless the dispute is decided. Clause (6) says that 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. Clause- (7) says that if a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.
23. It needs to be noted that proviso to Section 14(1) authorises the Rent Controller to make an order for recovery of possession. Section 14(2) then says that no order for recovery of possession shall be made if a particular condition is complied with. Meaning thereby that both the provisions are talking about the same act i.e. making or not making of an order for recovery of possession. In such sense, Section 14(2) clearly acts as an exception to proviso of Section 14(1). There is a difference between making an order for recovery of possession and a RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.12/19 proceeding for execution of such order. Following will clarify the matter:
Firstly, the Rent Controller will have to determine the eviction case and then has to come to a conclusion that ingredients of proviso-(a) are satisfied in the case;
Such satisfaction can be recorded in diverse situations, such as i) by making a finding of facts on merit, ii) by the way of ex-parte proceeding, iii) taking a decision after striking of the defence of tenant;
The aforesaid has to be done in every case as a matter of fact finding;
Once such satisfaction is recorded, the Rent Controller shall not directly make an order of possession;
Rent Controller will have to decide if the tenant has complied with the particular condition or not as envisaged in Section 14(2);
If he finds such compliance, he will not make an order for recovery of possession in favour of the landlord despite the fact that landlord was able to prove the ingredients of proviso-(a) to Section 14(1) as he is prohibited from making any such order by virtue of Section 14(2);
On the other hand, if the Rent Controller is of the view that tenant has not been able to comply with the particular condition as envisaged in Section 14(2), he is bound to make an order for recovery of possession;RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.13/19
It is this order which will have to be executed by the Rent Controller as an execution petition in terms of Section 42 of the Act;
There is a difference between prohibition on making the order itself and prohibition on executing the order immediately;
Section 14(7) envisages one such example. It says that even when an eviction order is passed under Clause-(e), landlord shall not be able to recover possession before 6 months;
The aforesaid contemplates passing of an order of possession and then creates a statutory gap of 6 months;
In direct contrast, Section 14(2) prohibits the passing of the order for possession itself;
Clearly, if there is a compliance of condition, the eviction petition itself has to be disposed by declining to pass an order for recovery of possession;
Therefore, once the Rent Controller finds the tenant to have complied with the specific condition of Section 14(2), he is completely prohibited from making the order for recovery of possession;
Rent Controller cannot say that he will first pass an order for recovery of possession and then will wait to see if the tenant makes any default in complying with the condition of Section 14(2);RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.14/19
Prohibition is not on recovery by execution or otherwise, it is on the making of order itself.
Composite order:-
24. At this stage, it needs to be noted that a composite order is not legal. In an eviction petition filed on the ground of non- payment of rent, the court cannot say that it is passing an eviction order subject to fulfilment of conditions by the tenant i.e. if the tenant pays the amount, he will not be evicted but if he makes default, he will be evicted. A division bench of Hon'ble Delhi High Court in Globetech Engineers vs Ajay Chadha 2002 SCC OnLine Del 834 did not accept composite orders whereby rent controller had directed that if the tenant fails to pay the amount in the given period, the eviction will take effect. Taking a cue therefrom, it can be said that an order directing the eviction subject to inquiry to be conducted lateron in respect of payment made or not made by the tenant, cannot be passed.
25. Only two options are available with a rent controller. He may make an order for possession saying that tenant has failed to comply with the conditions of Section 14(2). He may say that though all necessary ingredients of Section 14(1)(a) are satisfied but he is not making an order for recovery of possession as the tenant has complied with the conditions of Section 14(2). There cannot be any third way of disposal of the eviction petition.
Conclusion:-
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.15/1926. In the present case, we have seen that the landlord has been able to satisfy the ingredients of Section 14(1)(a). The issue now is as to whether the tenant can be given benefit of Section 14(2). It is an admitted position that the tenant did not pay the amount in terms of direction given under Section 15(1). This is clearly a pre-requisite of Section 14(2). Defence of the tenant was struck off under Section 15(7) after hearing the tenant. Therefore, the tenant cannot claim any benefit of Section 14(2). Hon'ble Supreme Court in Ram Murti vs Bhola Nath (1984) 3 SCC 111 has observed "It must logically follow as a necessary corollary that if the defence is not to be struck out under Section 15(7) it means that the tenant has still the defences open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection under Section 14(2). What is of essence of Section 14(2) and of Section 15(6) is whether there has been a substantial compliance with the order passed under Section 15(1)".
27. It becomes immediately clear that the premise of the aforesaid observation is that the defence is not struck of, then benefit of Section 14(2) would still be available even if the tenant had made some default in payment. The converse has also to be accepted that if defence is struck of, the tenant will not be able to claim benefit of Section 14(2).
28. After considering various judgments on the point, Hon'ble Delhi high Court in Mohd Idris vs Sadat Ali Khan 2015 LawSuit (Del) 1858 has held as under:
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.16/19"Before me, the question is one of disobedience of an order passed under Section 15(1) of the Act. The question is whether a tenant can avail the benefit of Section 14(2) of the Act if he fails to comply with an order passed under Section 15 of the Act. In other words, the question is not of availing the benefit of Section 14(2) of the Act for a second time: the question is of availing the benefit of Section 14(2) of the Act for the first time if there is non-compliance with an order passed under Section 15 of the Act.
The answer to this question, as per my analysis above, is that if a tenant does not comply with an order passed under Section 15 of the Act, and if his defence is struck out under the provisions of Section 15(7) of the Act, then he is not entitled to the benefit of Section 14(2) of the Act, even in the case of a first default. The reason is the use of the words "if the tenant makes payment or deposit as required by Section 15" occurring in Section 14(2) of the Act. In other words, the benefit of Section 14(2) can be claimed by a tenant only if he meets its pre-condition, which is compliance with an order under Section 15 of the Act".
29. We need not to confuse between the main provision of Section 14(2) and its proviso. Main provision applies at first instance whereas the proviso applies to second instance. Meaning thereby that if a landlord comes with eviction petition for payment default and succeeds but the tenant has paid the amount, tenant will get the benefit and eviction order will not be passed. This is treated as first instance. Now, if again the landlord comes RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.17/19 with eviction petition for payment default and succeeds, the tenant will not be given any benefit even if he pays the amount. This is treated as second instance and is covered under the proviso. This has been clarified in the Ram Murthi case itself wherein the Hon'ble Supreme Court made following observation:
"The further contention advanced by learned Counsel for the respondents that in a case of consecutive defaults the proviso to Section 14(2) is attracted, cannot be accepted for obvious reasons. On a plain construction, it provides that no tenant shall be entitled to the benefit under Section 14(2) if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent for that premises for three consecutive months. On a plain construction, the proviso is attracted only in a case where the tenant has been saved from eviction in an earlier proceeding for eviction before the Rent Controller under Section 14(1)(a) of the Act i.e. the tenant must have enjoyed the benefit of Section 14(2) in a previously instituted proceeding".
30. It can safely be inferred from the aforesaid that in the first eviction petition, rent controller cannot retain the file in any manner for a future inquiry to check if the tenant makes any consecutive default or not. The proviso will become available only at a second instance.
31. We have to consider only the case of first instance presently. Here, the tenant has not complied with the conditions.
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.18/19Benefit of Section 14(2) is not automatic. It is predicated on the compliance of directions given under Section 15. Admittedly, in the present case, tenant has not complied with the directions given under Section 15 and has not been able to show any justification. Due to the default, defence was struck off under Section 15(7) which would have binding effect in subsequent proceeding in the same case and we have to accept that tenant had failed to comply. Once non compliance is accepted, the tenant obviously cannot claim any benefit of Section 14(2).
32. End result of the aforesaid discussion is that the tenant cannot be given benefit of Section 14(2) even if it is a case of first instance because her defence was struck off and she did not make payment as required under Section 15 which is a pre- requisite of benefit to be given under Section 14(2). All necessary ingredients of Section 14(1)(a) having been satisfied in the instance case, the petition is allowed and order for recovery of possession of the tenanted shop is passed. The tenant shall handover vacant possession of the tenanted shop forthwith.
Digitally
signed by
NEETU
NEETU SHARMA
Announced in open Court SHARMA Date:
2024.07.27
on 27th Day of July, 2024 16:46:37
+0530
(Neetu Sharma)
CCJ-cum-ARC (Central)
THC/Delhi/27.07.2024
RC ARC No. 377/2019 Panchayati Dharmarth Trust Vs. Usha Gupta Page No.19/19