Delhi High Court
Shri Sanjay Kumar Saxena vs Smt. Meeta Govel on 15 October, 2004
Equivalent citations: 114(2004)DLT710
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT R.C. Jain, J.
1. Whether a tenant can be denied the benefit of Section 14(2) of the Delhi Rent Control Act (in short The Act) for his failure to comply with the order of payment or deposit of rent passed against him under Section 15(1) of the Act without the Controller first striking out the defense of the tenant within the meaning of Section 15(7) of the Act? - is the vexed question which has arisen for determination in the present petition.
2. The facts leading to the petition are in a narrow compass. The respondent (landlord) had filed a petition under Section 14(1)(a) of the Act against the petitioner (tenant) seeking his eviction from the suit premises on the ground of tenant's default to make the payment of arrears of rent w.e.f. 5.9.1996 to January, 1997 and w.e.f. 5.3.1997 till the date of filing of the petition despite service of a notice dated 28.1.1999. The tenant contested the petition, inter alia, on the grounds that the petition was without any cause of action as he had paid the entire rent and was not in arrears. On 5.11.1999 the learned Controller passed an order under Section 15(1) of the Act directing the tenant to pay or deposit arrears of rent w.e.f. September, 1998 @Rs 1100/- per month within one month and continue to pay or deposit the future rent by 15th of each succeeding month. In compliance of the said order, the tenant deposited various sums of money towards the arrears of rent and future rent between 29.11.1999 to 26.9.2002 which deposit was not in strict compliance of the order dated 5.11.1999. After the trial of the petition, the learned Controller recorded a finding that the tenant was in arrears of rent w.e.f. 5.9.1996 to January, 1997 and thereafter w.e.. 5.3.1997, which he failed to pay despite the service of notice. At the time of final hearing of the matter, counsel for the landlord pointed out that the tenant did not comply with the order under Section 15(1) of the Act and, as such, the tenant was to entitled for the benefit of Section 14(2) of the Act. The learned Controller after calling the report of the Nazir and on its verification found that the tenant did not deposit the rent month by month strictly in terms of order dated 5.11.1999 passed under Section 15(1) of the Act as sometimes he deposited the rent for a period of four months and sometimes for five months and on previous occasions also there was delay on the part of the tenant in compliance of the order under Section 15(1) of the Act Relying upon the judgment of this Court in the case of Jain Motor Co. Vs. Swayam Prabha Jain, the learned Controller held that the tenant was not entitled to benefit under Section 14(2) of the Act because of his failure to comply with the order under Section 15(1) of the Act and accordingly passed an eviction order against the tenant in respect of the suit premises.
3. Aggrieved by the eviction order dated 11.11.2002 passed by the Controller, the tenant filed an appeal before the Rent Control Tribunal, Delhi and the Tribunal vide an order dated 13.3.2002 dismissed the appeal and upheld the order of eviction passed by the Controller. The Tribunal had also satisfied itself from the report of the Nazir that at least five deposits were not made by the tenant month by month as per the orders of the learned Controller which clearly indicated that the tenant did not obey he order under Section 15(1) of the Act as he has defaulted to deposit the future rent month by month on several occasions and, therefore, the conduct of the tenant amounted to willful default and disobedience of the orders which could not be condoned.
4. Aggrieved by the order of the Tribunal, the tenant filed the present petition under Article 227 of the Constitution of India praying for quashing of the order of the Rent Control Tribunal dated 13.3.2003 and for dismissing the eviction petition. The petition came up for hearing before this Court on 29.7.2003 when it was urged on behalf of the petitioner that the order of eviction could not have been passed; firstly, because the order passed by the Controller under Section 15(1) was strictly complied with and, secondly; that even if there has been a default in strict compliance of the order dated 15(1) of the Act, the tenant could not be denied the benefit of Section 14(2) of the Act unless his defense was first struck off within the meaning of Section 15(7) of the Act. This Court found both the grounds untenable and dismissed the petition in liming vide an order dated 29.7.2003. After a few days, an application CM 1163/2003 under Order 47 Rule 1 read with Section 151 CPC was filed on behalf of the petitioner seeking review of the order of this Court dated 29.7.2003 and re-hearing of the petition. Vide an order dated 4.9.2003, the said application was allowed, and the order dated 29.7.2003 dismissing the petition was re-called and the petition was ordered to be heard afresh. On the petition, a notice was issued to the respondent/landlord to show cause as to why the petition be not admitted for hearing. The respondent/landlord on being represented in the proceedings, made a plea to recall the order dated 4.9.2003 passed in CM 1163/2003 by which the earlier order dated 29.7.2003 was recalled. The said plea of the respondent was disposed of vide an order dated 23.1.2004
5. I have heard Mr.A.K.Singla, learned counsel representing the petitioner/tenant and Dr.R.P.Gupta, learned counsel for the respondent/landlord at length and have given my thoughtful consideration to their rival contentions.
6. The record of the proceedings conducted before the learned Controller has been requisitioned. A statement of details of rent deposited by the tenant pursuant to the order dated 5.11.1999 and the payment received, has been filed, which is to the following effect:
Details of payment of rent made to Meeta Goel Statement of rent paid to the landlord w.e.f. 6.9.1998 till 6.2.2004 Total Month - 68 Months Rent @ Rs.1,100/- p.m. Total Rs.68 x 1,100/- = Rs.74,800/-
Details of Payment Date Trea-sury no. Date Amount Months by Challan No. 1090 29.11.1999 21492 30.11.1999 16,500/- 15 M 1164 14.12.1999 23692 20.12.1999 1,100/- 1 M 1272 14.01.2000 2594 18.01.2000 1,100/- 1 M 1376 14.02.2000 28538 18.02.2003 1,100/- 1 M 93 23.03.2000 31540 24.03.2000 1,100/- 1 M 170 17.04.2000 1803 20.04.2003 1,100/- 1 M 268 09/05/2000 3393 11/05/2000 1,100/- 1 M 12 14.06.2000 6596 28.06.2000 1,100/- 1 M 505 14.07.2000 9452 01/08/2000 1,100/- 1 M 462 29.08.2000 13616 15.09.2000 1,100/- 1 M 758 10/10/2000 18525 16.11.2000 1,100/- 1 M 1198 15.12.2000 21334 24.12.2000 1,100/- 1 M 1365 15.01.2000 23628 17.01.2001 1,100/- 1 M 1067 15.09.2001 13583 17.09.2001 4,400/- 4 M 1569 15.11.2001 20030 19.11.2001 4,400/- 4 M 1039 12/09/2002 15890 27.09.2002 5,500/- 5 M 1088 26.09.2002 15921 28.09.2002 5,500/- 5 M
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Total 49,500/- 45 M
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Details of payment of rent made to Meeta Goel.
Statement of rent paid to the landlord w.e.f. 6.9.1998 till 6.4.2004 Total Month - 68 Months Rent @Rs.1,100/- P.M. Total Rs.68 x 1,100/- = Rs.74,800/-
7. From a bare perusal of the above statement of deposit of rent, it is manifest that the tenant has not complied with the order dated 5.11.1999 passed under Section 15(1) of the Act in as much as there were defaults on several occasions and sometimes for several months in depositing the rent month by month and by 15th of each calender month. Mr.Singla, learned counsel for the petitioner has not disputed the factual position emerging from this statement of rent. However, he strongly urged that many a times the petitioner deposited the rent in advance and in any case the entire rent due and payable to the landlord in terms of the order dated 5.11.1997 was paid and so in that view of the matter, there was no willful default on the part of the petitionerns depositing the rent. Be that as it may, the fact remains that the petitioner has failed to make a strict compliance of the order dated 5.11.1999 passed by the Controller under Section 15(1) of the Act.
8. Now the important question is as to whether this failure of the tenant in complying with the order under Section 15(1) of the Act would automatically take away the benefit provided to a tenant under Section 14(2) of the Act against his eviction on the ground of first default or the Controller ought to have first struck off the defense of the tenant before passing an eviction order for his failure to comply with the order under Section 15(1) of the Act. Mr.Singla, learned counsel for the petitioner, on the strength of the Apex Court decision in the case of Ram Murti Vs. Bhola Nath and another, has vehemently urged that unless the defense of a tenant is struck out under Section 15(7) of the Act, he cannot be deprived of the protection nder Section 14(2) of the Act. In that case the Apex Court surveyed its earlier decisions in the cases of Shyamcharan Sharma Vs. Dharamdas, ; Hem Chand Vs. Delhi Cloth and General Mills Co. Ltd, ; and the decision in Santosh ehta Vs. Om Prakash and held as under:-
The Rent Controller has power to condone the default on the part of the tenant in making payment or deposit of future rent or to extend time for such payment or deposit. Under S.15 (1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control. The failure of the tenant, therefore, to make such payment or deposit would not entitle the landlord straightway to a decree for eviction under S.14(1)(a) of the Act. The question would still remain as to the corse to be adopted by the Rent Controller in such a situation in the context of S.15(7) which confers on the Rent Controller a discretion not to strike out the defense of the tenant in the event of the contingency occurring, namely, failure on the part of the tenant to meet with the requirements of S.15(1).
It would be incongruous to hold that even if the defense of the tenant is not to be struck out under S.15(7), the tenant must still be visited with the punishment of being deprived of the protection under S.14(2). It must logically follow as a necessary corollary that if the defense is not to be struck out under S.15(7) it means that the tenant has still the defense open to him under the Act, i.e. he has a right to claim protection under S.14(2) of the Act.
The tenant is not deprived of the benefit under S.14(2) merely because he has committed consecutive defaults in making payment or deposit of the future rent as required under S.15(1). The proviso to S.14(2) which deprives the tenant of the protection under S.14(2) 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 S.14(1)(a) of the Act, i.e. the tenant must have enjoyed the benefit of S.14(2) in a previously in tituted proceeding.
9. In para-8 of the said judgment the Apex Court further ruled that the narrow construction placed by the full Bench of Delhi High Court in Delhi Cloth and General Mills Co. Ltd. Vs. Hem Chand, on the powers of the Controller contained in Section 5(7) of the Act in context of Section 14(2) of the Act does not appeal to reason. The Court ruled that it is not inconceivable that the tenant might fail to comply with the requirements of Section 15(1) by the date line due to circumstances beyond his control. Giving certain illustrations, the Court said that for instance, it might not be possible for the tenant to attend the Court to make the deposit on the last date if it is suddenly declared a holiday or on account of a serious accident to himself or his employees, or while going to the treasury he is waylaid, or is stricken with sudden illness, or held up on account of riots or civil commotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctuality making the deposit commits beach of trust and disappears, or some other circumstance intervenes which make it impossible for him for reason beyond his control to physically make the deposit by the due date. The Court ruled that under any of the above circumstances the Controller would be justified in not striking out the defense of the tenant.
10. Mr.Gupta, learned counsel representing the respondent has not disputed the above legal preposition but he has urged that a plea in regard to non-striking out of the defense under Section 15(7) of the Act is not available to the petitioner in these proceedings because no such plea was raised by him before the Controller or the Tribunal and further that even on the application of the above legal position, the petitioner has no case in as much as despite his default in depositing the rent on several occasions, the petitioner did not approach the Court with any of the above noted circumstances for condensation of delay in depositing the rent in compliance of the order passed under Section 15(1) of the Act and, therefore, it is not open to him now to contend that the default would be deemed to have been condoned as he has not suffered any order of striking out of the defense under Order 15(7) of the Act. The above case takes into account the circumstances under which the defense of the tenant is liable to be struck off within the meaning of Section 15(7) of the Act on the failure to comply with the order passed under Section 15(1) of the Act but it nowhere lays down as a principle of law that the striking out of the defense by a tenant is a pre-requisite or depriving him the benefit accorded to him by the legislature under Section 14(2) even though the Controller had otherwise recorded a clear finding in regard to the default committed by the tenant in complying an order passed under Section 15(1) of the Act. Section 15(7) of the Act contains a general provision relating to the striking out of the defense of the tenant on the tenant's failure to make the payment or deposit the rent as required by Section 15 of the Act and is not confined only to the sriking out of the defense of a tenant for his failure to make payment or deposit the rent in compliance with the order made under Section 15(1) of the Act. Truly speaking, provision of sub-section (7) of Section 15 is more relevant to the failure of the tenant to make the payment or deposit the rent in pursuance to any order passed by the Controller under sub-section(2) of Section 15 of the Act because on committing default to comply the tenant would lose his right to defend the eviction petition based on grounds other than the ground of default in payment of rent as envisaged by Section 14(1)(a) of the Act. In that situation, the failure of the tenant to comply with an order passed under Section 15(2) may straight away entitle the landlord to recover of possession once the defense of the respondent is struck off. Thus, from a careful construction of the provisions contained in Sections 14(1)(a), 14(2) and Sections 15(1), 15(2) and 15(7) of the Act, it is impossible to hold that the defense of the tenant must necessarily be struck off in all cases before he can be deprived of the protection against his eviction envisaged by Section 14(2) of the Act. It would, therefore, follow that if the Controller is satisfied that there has been default in complince of the order passed under Section 15(1) and the said default has not been condoned by the Court, the defaulting tenant is not entitled to the benefit of Section 14(2) of the Act.
11. In the case in hand, both the Controller as well as the Tribunal have recorded a clear and cogent finding that the petitioner/tenant committed repeated defaults in complying with the order passed by the Controller under Section 15(1) of the Act. No prayer was made on behalf of the petitioner for condoning the said default for any of the reasons referred to in para-8 of the judgment in the case of Ram Murti Vs. Bhola Nath and another (supra). Therefore, this Court has no hesitation in holding that the petitioner will be deemed to have lost the protection against his eviction as envisaged by Section 14(2) of the Act. In the opinion of this Court, the Controller and the Tribunal were, therefore, justified in passing an order of possession against the petitioner.
12. Mr.A.K.Singla, learned counsel for the petitioner/ tenant has next urged that in the case in hand the respondent will be deemed to have waived his right to evict the petitioner, firstly by withdrawing/accepting the rent deposited in the Court despite certain delay(s) and, secondly, by not moving an application under Section 15(7) of the Act for striking out the defense of the petitioner/tenant. In support of his contention he has heavily relied upon three decisions of the Rajasthan High Court in the case of Bundu Vs. Hasmat, ; Hukum Chand Vs. Madanlal, and Chetan Das Vs. Annusuiya, RLW 1995 (2) (Raj.) 397. Having regard to the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the facts o those cases, the Court held that in a suit for eviction the landlord can waive the benefit or advantage of getting the tenant's defense struck out under Section 13(5) on account of default in payment of rent month by month by the defendant/tenant on th due date during the pendency of the suit. The decisions also lay down that the acceptance by the landlord of delayed payment of monthly rent from the tenant during the pendency of the suit amounts to waiver of the default in payment of rent and, therefore, striking out of the defense of the tenant under Section 13(5) would be invalid. In the last decision of Chetan Das Vs. Annusuiya (supra) the Court held that the cause of action accrued in favor of the landlord for moving an application to strike ou the defense will not subsist if the landlord had withdrawn the arrears of rent deposited by the tenant. In the opinion of this Court none of these authorities can be applied to the facts of the case in hand because neither any application under Section 15(7) of the Act for striking out the defense of the tenant was moved by the landlord nor any prayer was made by the tenant for condensation of delay and / default in compliance of the order passed under Section 15(1) of the Act. Besides, to constitute wiver of an accrued right, there should be an express and conscious abandonment of the right by the landlord. Mere fact that the landlord had withdrawn/accepted the rent deposited by the tenant, which deposit was not strictly in conformity of the order passed under Section 15(1) of the Act, cannot amount to waiver because it is the right of the landlord to receive the arrears of rent and the current rent as per the order passed under Section 15(1) of the Act. No other ground was pressed on behalf of the petitioner.
13. Thus, having considered the matter in its entirety, I find no ground to interfere with the impugned order in exercise of the extraordinary power under Article 227 of the Constitution of India. The petition being devoid of merit, is accordingly dismissed.