Delhi High Court
Mis Pruthi Bros. And Ors. vs Mangal Wati on 28 April, 1971
JUDGMENT P.N. Khanna, J.
(1) The appellants are the tenants, since June 20, 1950, in the first floor of a house situated on Original Road, Karol Bagh, New Delhi, belonging to the respondent, landlady. The agreed rent was Rs. 325.00 per mensem which they started paying to the landlady from the very beginning. They however, failed to pay the rent from April, 1962. On September 11, 1962 the respondent landlady filed her first application for the appellant's eviction on the ground of non-payment of rent in spite of notice of demand. The appellants in their written statement pleaded that the rent paid by them included house tax which the respondent could not recover under the law and was liable to refund to them. An order under section 15(1) of the Delhi Rent Control Act, 1958, hereinafter called "the Act", was however passed by the Additional Controller directing the appellant tenants to deposit the arrears of rent with effect from April 1, 1962 onwards at the rate of Rs. 325.00 per month without prejudice to their pleas. The appellant tenants' appeal against the said order was dismissed. The arrears of rent were then deposited by the appellants in compliance with the aforesaid order. There was however, no progress in the case for one reason or the other, till it was fixed for evidence on September 13, 1963. The appellants failed to put in appearance on that day although the respondent land-lady was duly represented by her counsel. The latter made a statement that the rent deposited, having been withdrawn by the respondent the eviction Application had become infructuous. The Additional Controller made order on that very date that the tenants having failed to put in appearance their pleas .could not be gone into. The rent having been deposited in compliance with the orders of the Tribunal the eviction application was dismissed.
(2) The appellants again failed to pay any rent and the rent for October, November and December, 1963 and January, 1964 fell into arrears. The landlady served a notice of demand Exhibit A.W. 1/6 dated February 12, 1964 on the appellants demanding rent at the rate of Rs. 325.00 per month for the said four months and "fire and scavenging tax" from 1960 to 1963 amounting to Rs. 158.10 paise. On April 27, 1964 the appellants sent a reply Exhibit A.W. 1/13 complaining that the repair charges at the rate of one month's rent in a year had not been paid by the respondent-landlady to them for 1961, 1962 and 1963. They asked her to adjust the same against the rent claimed. The liability to pay fire and scavenging tax was denied. The respondent was asked to confirm, if the arrears of rent after making the said adjustment be sent. No payment, however, was made.
(3) On May 5, 1964 the respondent-landlady filed her second eviction application against the appellants on the ground of non-payment of rent. It was stated that the appellants were not entitled to the benefit of section 14(2) of the Act as having obtained such benefit once they had committed this second default in the payment of rent. They were, therefore, said to be liable to be evicted. In the written statement the appellants denied having committed default. They disputed their liability to pay house tax or any other tax and asserted that they were entitled to adjust one month's rent in a year for repairs to the premises.
(4) The Controller held that the rent in the rent note Exhibit A.W. 1/15 was stipulated to be inclusive of house tax. The correct rate of rent was therefore Rs. 292.50 per mensem and the remaining Rs. 35.50 paise per month was the house tax. For 18 months, from April 1, 1962 to September 30, 1963, the appellants had paid Rs. 585.00 in excess to the respondent, at the rate of Rs. 32.50 paise per month as house tax, subject to their plea that they were not liable to pay this amount. The tenant appellants were held not liable to pay this excess amount by virtue of the provisions of section 7 of the Act, a refund of which they could claim from the respondent-landlady. According to the Controller therefore rent for the months of October and November, 1963 had been paid by adjustment. The appellants had not claimed adjustment of any expense on repairs in the earlier proceedings. They were, therefore, not justified in claiming repair charges for 1962. They were entitled to recover such charges at the rate of one month's rent in a year in accordance with the con- tract for the year 1963 only. The rent for December 1963, was also thus paid by the appellants, by adjustment of repair charges, The learned Controller was of the view that default for purposes of the proviso to section 14(2), could only be in respect of three consecutive months before the service of the notice of demand. The only rent that could be considered to be in arrears at the time of the service of the notice of demand was therefore, with respect to January, 1964. As this was no default for three consecutive months, eviction could not be ordered against the appellants, The eviction petition accordingly,. was dismissed leaving the parties to bear their own costs.
(5) In appeal the learned Rent Control Tribunal did not agree with the appellants that they could adjust against the rent due, any house (ax paid by them or one month's rent for annual repairs. The Tribunal was of the view that the tenants were not entitled under the Act, to adjust by themselves, house tax paid by them. They could recover it only on an application made within one year of the date of such payment and not otherwise. The eviction petition was based on the ground of non-payment of arrears of rent for seven months i.e. from October 1, 1963 to April 30, 1964. Assuming that the appellants were entitled to one month's rent for repairs, as allowed by the Controller, they still had failed to pay the arrears of rent for more than three consecutive months. The Tribunal did not agree with the Controller that the three consecutive months' default was required to be at the time of notice and not at the time of the institution of the eviction petition. The Tribunal, therefore, held that the appellants had committed the second default in payment of rent and were liable to eviction from the premises in dispute under Section 14(1)(a) of the Act. It also repelled the argument advanced on behalf of the appellants that they had offered the arrears of rent to the landlady, who refused to accept it as the appellants could well deposit the amount in case of refusal by the landlady, under Section 27 of the Act. The Tribunal, however, held that the landlady was not entitled to recover the scavenging and fire tax as claimed by her. It therefore, accepted the appeal and setting aside the judgment of the Controller, directed the appellants eviction from the premises in dispute.
(6) When the tenants' second appeal against the Tribunal's aforesaid order came up for hearing in this Court, the learned Chief Justice (I.D. Dua, C.J., as he then was) considered that the important points raised in the appeal required a more authoritative pronouncement. He, therefore, referred this appeal to a larger Bench. It is under these circumstances that the appeal has. come up before us.
(7) Mr. R.K. Makhija, the learned counsel appearing for the appellants. submitted that the eviction order against them was wholly unjustified as they had not committed the second default contemplated in the proviso to Section 14(2) of the Act. The relevant date, the default on which, for the aforesaid purpose, was to be taken into account, was the date on which the notice of demand under proviso (a) to Section 14(1) was issued by the landlord. The cause of action for the eviction petition on the ground of non-payment of rent, said the learned counsel, arose only after the notice of demand was issued and the tenant failed to pay or tender arrears of rent within two months of the date of its service on him. The tenants' failure to pay arrears of rent must be for three consecutive months before the notice of demand, when the benefit available under sub-Section (2) of Section 14 can be denied to him, if he has already enjoyed such benefit once. This contention of the learned counsel, however, is without substance. Proviso (a) to Section 14(1) is clear and reads as follows;-
"(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 (4 of 1882)."
It nowhere says that the arrears should "be for one month or for a longer period. The notice in order to be valid under this provision, should demand the payment of arrears of rent legally recoverable, whatever they may .be. There is no justification for interpreting it to mean "for three consecutive months", as urged, by Mr. Makhija. Sub-Section (2) of Section 14 likewise does not refer to any point of time, when "the three consecutive months" default referred to in the proviso is contemplated to be. Section 14(2) reads as follows :
"(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 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."
The benefit under sub-section (2), is thus not available to the tenant if having enjoyed it once he again makes a default in payment of rent for any three consecutive months may be before or after the notice of demand. There is no scope to unnecessarily strain the plain language to tie it down to any particular point of time, especially when the legislature has not done so.
(8) Mr. Makhija contended that the appellants were entitled to adjust against the rent payable by them the house tax which they have paid to the landlady respondent. The payment of rent at the rate of Rs. 325.00 per month with effect from April 1, 1962 to September 30, 1963 was made by the appellants in obedience to the order of the Controller without prejudice to their pleas. This amount included Rs. 32.50 per month as house tax. The appellants have thus paid a sum of Rs. 585.00 which is equal to two months' rent (at the rate of Rs. 292.50 paise per month) towards house tax, which the .landlady respondent is not entitled to recover from the appellants in view of sub-section (2) of section 7. According to the proviso to this sub-section the liability of the tenant to pay such tax is not affected if the agreement of tenancy had been entered into before January 1, 1-952. The present tenancy commenced with effect from June 20, 1952. The proviso, therefore, is not applicable. The landlady, was, therefore, not entitled to recover from the appellants the amount of the house tax in respect of the premises occupied by them. But according to section 13 of the Act where any such amount has been paid by the tenant to the landlady, the Controller may, "on an application made to him within a period of one year from the date of such payment", order the landlady to refund such sum or order its adjustment against the rent payable "by the tenant. The adjustment is not automatic. The tenant has no right to make the adjustment unilaterally without the landlady's consent or without an order of the Controller. Mr. Makhija said that in the written statement in the first eviction case a prayer for adjustment was made and that be taken as an application under section 13. But the said written statement was filed on March 16, 1963. The order under section 15(1) directing payment of arrears of rent was made on March 26, 1963. Tiff payment of rent including the house tax was made thereafter. The time for making application under section 13 starts after the payment is made. The question of treating the said written statement as an application therefore, does not arise. No application under that section was made by the appellants thereafter.'; The landlady was obliged to file her second eviction application, when the arrears of rent still were out standing and the question of any adjustment of house tax paid had not arisen, (9) Mr. Makhija said that the appellants'written statement filed on August 5, 1964, in the second eviction proceedings be treated as an application under section 13 of the Act as prayer for refund or adjustment of house tax paid had been made therein. But if the tenant seeks recovery of any amount overpaid as house tax which the landlord is not entitled to recover, he must bring his application for refund or adjustment within one year from the date of said payment as prescribed under section 13 of the Act. The claim for refund or adjustment cannot be entertained beyond one year after the payment. (See Magan Lal Chhotabhai Desai v. Chmder Kant Moti Lal , and Union of India v. Jai Rustomji Modi and others. 1970 Rent Control Journal 902 S.C.) There is no evidence of the exact date on which this payment was made. But it appears to have been made in June 1963 or July, 1963, the latest. The written statement filed on August 5, 1964, was thus after the expiry of one year from the date of payment of the alleged excess and refund or adjustment could not be allowed under section 13 of the Act.
(10) Mr. Makhija contended that Rs. 325.00 per month including the house tax had been paid under the orders of the Controller subject to the appellants' objection that the house tax was not payable. The said eviction application was dismissed on September 13, 1963, when the appellants, it is observed, preferred to remain absent. They did not press for refund. Nor did they appeal against the said order which they should have done if they really felt aggrieved on the ground that the said order dismissing the respondent's application had not granted refund, if it was due to them. The appellants, perhaps, could have made an application under section 13 thereafter. They did not make such application even when they were served with a notice of demand. As a result thereof the outstanding arrears remained intact and the appellants were in default, a second time in payment of rent for three consecutive months, when the second eviction application was filed against them.
(11) It was then contended that the tenants were entitled to adjust one months' rent in each year towards the repair expenses during the year in accordance with the agreement between the parties the existence of which had been upheld both by the Controller and the Tribunal. The appellants in their written statement dated March 16, 1963, in the previous eviction proceedings did not claim such adjustment. This would show that either no repairs were made or for some reason or the other nothing was due to the appellants on that account. The said petition was dismissed on September 23,1963. The second eviction petition was filed on May 5, 1964. At best the appellants can claim one months' rent for repair executed, if any, in the year 1962. This would go in adjusting the rent for October, 1963. But there still were arrears of rent for three months i.e. November, December, 1963 and January 1964, which were due from the appellants to the respondent landlady on February 12, 1964, on which date notice Exhibit A.W. 1/6 was issued to the tenants and also for February, 'March and April 1964, when the second eviction application was filed. The claim of the appellants that there were no arrears on the date of the notice even if it be the relevant date, which it is not, as held earlier, is without any basis.
(12) Mr. Makhija contended that in his grounds of appeal, he bad expressly stated that after the decision of the Controller on the respondent landlady filed a suit for recovery of arrears of rent from October 1, 1963 up to October 31, 1965 at the rate of Rs. 325.00 per month. The learned Sub Judge 1st Class, Delhi, decreeing the respondent landlady's suit for Rs. 6,435.00 held that the appellants were entitled to adjust a sum o0f Rs. 877.50 on account of repair charges proved to have been carried out by them at the rate of Rs. 292.50, being one month's rent in every year, for three years viz., 1963, 1964 and 1965. The notice of demand Exhibit A.W. 1/6 was served on February 12, 1964. On that date the adjustment could be made in respect of one month's rent for repairs done in the year 1963 only, even if the said'decree is taken into account. The eviction application was filed on May 5, 1964, when the question of making any adjustment for 1964 or 1965 had not arisen.
(13) It is thus clear that on Feb. 12, 1964, the date on which the notice of demand was served, the arrears of rent for the months of November, December, 1963 and January 1964 was still unpaid by the appellants and rent for six- consecutive months was in arrears on May 5, 1964, when the application for eviction was filed.
(14) Mr. Makhija contended that the arrears for the month of Jan, 1964 were not due from the appellants on February 12, 1964 as under section 26 of 'the Act the tenant is required to pay rent, in the absence of any contract to the contrary, by the 15th day of the month next following the month for which it is payable. He therefore contended that rent for the month of January, 1964 could not be demanded before 15th of Februaiy, 1964. The contention of the learned counsel, has no basis. The rent for the month of January became due and was in arrears on the first day of February,' although in view of the provision of section 26 the tenant could pay it by the 15th of February. Section 26 nowhere says that the rent does not become due by the end of the month, or that the tenant cannot pay the same before the 15th day of the next month. It merely gives a facility to the tenant to make the payment within 15 days of the next following month. Further it is observed that the notice Exhibit A.W. 1/6 was served on the appellant on or about 29th February, 1964. The said notice required the appellants to pay the arrears within two months of the date of the receipt of notice. Instead of 15 days, the appellants were actually given two months time from the date of service of notice for payment The eviction petition on the basis of non payment of arrears of rent was filed on May 5, 1964. There was* therefore, nothing wrong in the notice when rent for January, 1964 was demanded. ' (15) The last contention of Mr. Makhija was that the notice Exhibit A.W. 1/6 was invalid and defective, inasmuch as apart from the arrears of rent it had demanded the sum of Rs. 158.10 paise towards fire and scavenging tax which was not due as has been held by the Controller and the Rent Control Tribunal. The notice also asked for the payment of arrears with effect from October, 1963 while the rent for October, 1963 had in any case to be adjusted in the repair charges for the year 1963. The notice, therefore, contained incorrect statement and was for that reason invalid. The contention of the learned counsel however is erroneous. As was said by the Privy Council in Harihar Banerji and others Vs. Raaishashi Roy and others. A.I.R. 1918 Privy Council 102:
"......NOTICES to quit, though not strictly accurate .or consistent in the statements embodied in them, may still be good and effective in law, the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer: but what they would mean to tenants presumably conversant with all those facts and circumstances and further, they are to be construed not with a desire to find fault in them which would render them defective but to be construed ut res magis valeat quam pereat"
(16) A notice of demand is less technical in nature than a notice to quit and erroneous statements made therein would not render the notice invalid. The respondent landlady could not be presumed to have intended to serve a notice which would be ineffective or invalid. Notice, therefore; has to be construed in the manner in which it could be made effective instead of contrary. The construction of notice has to be made in accordance with the circumstances of the case with which the parties concerned are familier. After all, the tenant concerned would know, what it means. Even if the rent for the month of October, 1963 required adjustment against repair charges, there was no justification for the appellants, not paying the rent for the other months for which it had accrued due and which had been demanded. There was thus no infirmity in the notice. The observations to the contrary in Ram Narain Vs. Benji, relied on by Mr. Makhija cannot be accepted as correct law.
(17) In the earlier eviction proceedings, by making payment of rent, as required by Section 15 of the Act the appellants got eviction petition against them, dismissed. They thus enjoyed the benefit of sub-Section (2) of Section 14, once. They again made a default in payment of rent for more than three consecutive months. They, thus, disentitled themselves to the benefits of the said sub-Section (2) in the second eviction proceeding. The eviction order passed by the Rent Control Tribunal against the appellants, therefore, was fully in accordance with law.
(18) In the result, we do not fund any merit in this appeal and the same is dismissed. Considering (he circumstances of the case, however, there shall be no order as to costs.