Delhi High Court
Padma Kaur vs O.P. Kapoor on 20 July, 1972
Equivalent citations: AIR1973DELHI91
JUDGMENT
1. The appellant, landlady, is the owner of the premises in dispute, which is occupied by the respondent tenant. She brought an application for the respondent's eviction, on the ground, inter alia, that the respondent has neither paid nor tendered the arrears of rent due from April 1, 1970, in spite of service of a notice of demand. The monthly rent was stated to be Rs. 150/--.
2. The respondent tenant consisted his liability to eviction and pleaded, inter alia that the monthly rent was Rs. 140. It was stated that Rs. 150/- per month was originally agreed as rent but that was inclusive of Rs.10/- towards water charges. Subsequently the landlady disconnected the water supply and the rent was reduced to Rs. 140/- per month. The tenant then arranged and independent water connection. It was also pleaded by the respondent tenant that rent for the months of March and April 1970 was sent by means of a cash order No.646/70 date May 14, 1970, for Rs.280/- which was duly accepted as such by the landlady. Although the appellant insisted that Rs.150/- per month was the rent of the premises it was admitted that she did accept the aforesaid payment order for Rs.280/- as rent for the months of March and April, 1970.
3. According to the respondent-tenant a cash order, dated July 15, 1970 for Rs.280/- was again sent to the landlady though his bank towards rent for the months of May and June 1970. Another cash order, dated September 23, 1970, for Rs. 280-/ was sent under registered A.D. post towards the rent for the months of July and August 1970 and a third cash order, dated November 14, 1970, was sent to the appellant towards rent for the months of September and October, 1970. According to the appellant however, the first cash order was never received by her. The second cash order said to be for the months of July and August, 1970 was returned to the respondent in a Registered A.D. postal cover which itself in turn, came back unserved and which has not been filed by the appellant before the Controller. The third cash order was, however, returned by the appellant.
The question, which has arisen for consideration under the aforesaid circumstances is whether the controller can make an order under Section 15(1) of the Delhi Rent Control Act, 1958, herein called the Act.'
4. Section 15(1) of the Act reads as follows:-- "When a tenant can get the benefit of protection against eviction -- (1) In every proceeding for 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 of 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 month previous to that in which pay 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 can at that rate."
This sub-section therefore comes into pay whenever proceeding are files for the recovery of for possession of any premises on the ground a specified of any premises, on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14 of the Act. The question as to whether the said proceedings are justified or not or are quite baseless, is a question to be determined by the Controller on merits. But, the sub-section enjoins upon the Controller to make an order giving the direction mentioned in the sub-section after giving the parties an opportunity of being heard, as and when the proceedings based on the aforesaid ground are bought before him. The Collector would, of course, hear the parties, if there is difference amongst them, with regard to the amount which would be calculated at the rate of rent at which it was last paid; or with regard to the amount which would be calculated at the rate of rent at which it was last paid; or with regard to the period for which the arrears of rent are legally recoverable from the tenant. And, if there is not such difference the question of hearing the parties would not arise. The controller would make the order straightway.
5. The learned counsel for the respondent contended that an order under section 15(1) could not be made in this case, as the very ground on the basis of which proceedings for recovery of possession were started did not exist. He referred (1) of Section 14 according to which the orders for the recovery of possession could be made only if the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable within two months of the date on which a notice of demand was served on him. In the present case the learned counsel contended the tenant had tender the whole of the arrears of rent by means of the three cash orders referred to above. The learned counsel for the appellant on the other hand submitted that the said cash orders admittedly not having been encashed there was not payment. Nor order he said was never received by the appellant. The second cash order could not, therefore, be accepted because it purported and toward rent for the months of July and August, 1970 when the rent for the months of May and June 1970 had still remained unpaid. The cash order for the months of September and October, 1970, could not likewise be taken as valid tender when the rent for the months of May to August 1970, was yet to be paid. The sons was said to be fully justified in not accepting the two cash orders for July to October, 1970.
6. The question, whether the tenant has tendered the arrears of rent within two months from the date or service on him of the notice of demand is a question on the merits, the decision of which may determine the fate of the main ground, covered by Clause (a) of section 14 (1), on which the petition is based. But this does not debar the Controller from exercising his jurisdiction under Section 15(1) of the Act, the Controller under the said provision is bound on the other hand to make an order giving the necessary direction mentioned in the said section.
7. In this case, after the parties appeared before the Controller, there was no dispute about the period of which the arrears of rent where legally recoverable and has remained unpaid. All rent t had been paid and accepted up to April 30, 1970. Rent with effect from May, 1970 had not been received by the appellant, although there was a controversy about the tendering of the subsequent rent by the respondent tenant. Nor there remained any dispute about the rate rent at which it was last paid, the last rent having been admittedly received at the rent of Rs. 140/- per month. The Controller was, therefore, justified in directing the tenant to pay rent with effect from May 1, 1970 at the rent of Rs. 140/ per month.
8. The learned counsel for the respondent that if an order under section 15(1) was made in a case whether the eviction petition based only on the ground covered by clause (a) of Section 14(1), was bound to fail for the reason that the said ground could not be substantiated, the tenant may still be adversely prejudiced in his defense in a possible future eviction petition against him; because then it may be said that he has already obtained once the benefit under section 14(2). The apprehension of the learned counsel, however, is unfounded. In case, it is held after trial on merits that the landlady had failed to establish the ground for eviction as covered by clause (a) of sub-section (1) of section 14 of the Act, as no default on the par of the tenant was proved, it would then be not possible to say that the tenant has obtained the benefit under section 149(2). The then eviction petition would fail not because of Section 14 (2); but these petition lacked substance. The benefit under Section 149(2) can be obtained only if in the absence of that section an order for recovery of the possession would have been made on the ground specified in clause (a) of the proviso to sub-section (a) of Section 149 of the Act; the was Section 149(2) alone which would have come to the rescue of the respondent tenant. The controller or the Tribunal as the case may be, shall have to make it clear in his or its final order as to whether the order for the recovery of possession of the premises on the ground specified in clause (a) of the proviso to subsection (1) of Section 149, was avoided, if it was avoided, merely because of Section 14(2).
9. In the result the appeal is accepted, the order or the Rent Control Tribunal, dated December 6, 1971 is set aside and that of the Controller, dated April 29, 1971, is restored with the modification that the respondent tenant shall be entitled to pay to the appellant or deposit in court the arrears due up to the date of actual deposit with in month from the date of this order. There shall be no order as to costs.
10. Appeal allowed.