Delhi District Court
Pawan Kumar More vs Shri Radha Krishan Poddar (Deceased) on 13 February, 2020
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
RCT No. 30279/2016
1. PAWAN KUMAR MORE
S/o SHRI TARA CHAND MORE
2. ASHOK KUMAR MORE
S/o SHRI NAGAR MAL MORE
BOTH AT 5179B, LAHORI GATE
NAYA BAZAR, DELHI 110006.
.....APPELLANTS
VERSUS
1. SHRI RADHA KRISHAN PODDAR (DECEASED)
THROUGH HIS LEGAL REPRESENTATIVE
SHRI JAGDEEP PODDAR
S/o SHRI RADHA KRISHAN PODDAR
B8 (FLAT NO. 2) 3rd FLOOR,
VIVEK VIHAR, PHASEI
DELHI 110095
2. SHRI KAMAL KISHORE PODDAR
S/o SHRI JUGAL KISHORE PODDAR
3. Smt. SUSHMA PODDAR
W/o SHRI KAMAL KISHORE PODDAR
RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar
RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 1 of 41 pages
RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain
RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
BOTH 2 AND 3 RESIDENTS OF 534,
CHANDANWADI APARTMENT
PLOT No. 8, SECTOR 10, DWARKA
NEW DELHI
4. SHRI HARI SHANKAR PODDAR
S/o LATE LAXMI NARAIN PODDAR
R/o A309, FIRST FLOOR,
DERAWALA NAGAR, DELHI 110009.
.....RESPONDENTS
Date of filing : 17.07.2012
First date before this court : 31.05.2019
Arguments finally concluded on : 27.01.2020
Date of Decision : 13.02.2020
Appearance : Sh. S.S. Tomar, counsel for appellants
Sh. Pankaj Gupta, counsel for respondents
RCT No. 30280/2016
SHRI V.C. JAIN
S/o LATE SHRI RAM SARUP JAIN
5179A, LAHORI GATE
NAYA BAZAR, DELHI 110006
.....APPELLANT
VERSUS
1. SHRI RADHA KRISHAN PODDAR(DECEASED)
THROUGH HIS LEGAL REPRESENTATIVE
SHRI JAGDEEP PODDAR
B8 (FLAT NO. 2) 3rd FLOOR,
VIVEK VIHAR, PHASEI
DELHI 110095
RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar
RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 2 of 41 pages
RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain
RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
2. SHRI KAMAL KISHORE PODDAR
S/o SHRI JUGAL KISHORE PODDAR
3. Smt. SUSHMA PODDAR
W/o SHRI KAMAL KISHORE PODDAR
BOTH 2 AND 3 RESIDENTS OF 534,
CHANDANWADI APARTMENTS
PLOT No. 8, SECTOR 10, DWARKA
NEW DELHI
4. SHRI HARI SHANKAR PODDAR
S/o LATE LAXMI NARAIN PODDAR
R/o A309, FIRST FLOOR,
DERAWALA NAGAR, DELHI 110009.
.....RESPONDENTS
Date of filing : 17.07.2012
First date before this court : 31.05.2019
Arguments finally concluded on : 27.01.2020
Date of Decision : 13.02.2020
Appearance : Shri S.S. Tomar, counsel for appellant
Shri Pankaj Gupta, counsel for respondents
RCT No. 30372/2016
1. SHRI RADHA KRISHAN PODDAR (DECEASED)
THROUGH HIS LEGAL REPRESENTATIVE
SHRI JAGDEEP PODDAR (SON)
S/o LATE RADHA KRISHAN PODDAR
FLAT NO. 2, 3rd FLOOR,
B8 VIVEK VIHAR, PHASEI
DELHI 110095
RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar
RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 3 of 41 pages
RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain
RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
2. SHRI KAMAL KISHORE PODDAR
S/o LATE SHRI JUGAL KISHORE PODDAR
3. Smt. SUSHMA PODDAR
W/o SHRI KAMAL KISHORE PODDAR
BOTH 2 AND 3 RESIDENTS OF 534,
CHANDANWADI APARTMENT
PLOT No. 8, SECTOR 10, DWARKA
NEW DELHI
.....APPELLANTS
VERSUS
1. SHRI V.C. JAIN
S/o SHRI RAM SARUP JAIN
PROP. M/S. V.C. JAIN & SONS
SHOP No. 5179A, LAHORI GATE
NAYA BAZAR, DELHI 110006
2. SHRI HARI SHANKAR PODDAR
S/o LATE LAXMI NARAIN PODDAR
R/o A309/1, DERAWALA NAGAR
MODEL TOWN, DELHI 110009.
... ..RESPONDENTS
Date of filing : 20.09.2012
First date before this court : 31.05.2019
Arguments finally concluded on : 27.01.2020
Date of Decision : 13.02.2020
Appearance : Sh. Pankaj Gupta, counsel for appellants
Sh. S.S. Tomar, counsel for respondents
RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar
RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 4 of 41 pages
RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain
RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
RCT No. 30376/2016
1. SHRI RADHA KRISHAN PODDAR (DECEASED)
THROUGH HIS LEGAL REPRESENTATIVE
SHRI JAGDEEP PODDAR (SON)
S/o LATE RADHA KRISHAN PODDAR
FLAT NO. 2, 3rd FLOOR,
B8 VIVEK VIHAR, PHASEI
DELHI 110095
2. SHRI KAMAL KISHORE PODDAR
S/o SHRI JUGAL KISHORE PODDAR
3. Smt. SUSHMA PODDAR
W/o SHRI KAMAL KISHORE PODDAR
BOTH 2 AND 3 RESIDENTS OF 534,
CHANDANWADI APARTMENT
PLOT No. 8, SECTOR 10, DWARKA
NEW DELHI
.....APPELLANTS
VERSUS
1. PAWAN KUMAR MORE
S/o SHRI TARA CHAND MORE
2. ASHOK KUMAR MORE
S/o SHRI NAGAR MAL MORE
BOTH AT C/o M/s JYOTI FOOD GRAINS
SHOP No. 5179B, LAHORI GATE
NAYA BAZAR, DELHI 110006.
RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar
RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 5 of 41 pages
RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain
RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
3. SHRI HARI SHANKAR PODDAR
S/o LATE LAXMI NARAIN PODDAR
R/o A309/1, DERAWALA NAGAR
MODEL TOWN, DELHI 110009.
... ..RESPONDENTS
Date of filing : 20.09.2012
First date before this court : 31.05.2019
Arguments finally concluded on : 27.01.2020
Date of Decision : 13.02.2020
Appearance : Shri Pankaj Gupta, counsel for appellants
Shri S.S. Tomar, counsel for respondents
COMMON JUDGMENT
1. The above mentioned four appeals, based on same factual and legal matrix are taken up together for disposal. The appeals bearing RCT No. 30280/16 and RCT No. 30372/16 pertain to premises no. 5179A, Lahori Gate, Naya Bazar, Delhi while RCT No. 30279/16 and RCT No. 30376/16 pertain to premises no. 5179B, Lahori Gate, Naya Bazar, Delhi. The appeals bearing RCT No. 30279/16 and RCT No. 30280/16 were filed by the tenants challenging the allowing of eviction petitions under Section 14(1) (a) of the Delhi Rent Control Act, while RCT No. 30372/16 and RCT No. 30376/16 were filed by the landlords challenging the grant of benefit under Section 14(2) of the Delhi Rent Control Act to the tenants. For the sake of convenience, appellants of appeals RCT No. 30372/16 and RCT No. 30376/16, namely Shri Radha Kishan Poddar (through his legal representative Shri Jagdeep Poddar), RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 6 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. Shri Kamal Kishore Poddar and Smt. Sushma Poddar are herein referred to as "the landlords", while the appellants of the other two appeals namely Shri Pawan Kumar More & Shri Ashok Kumar More and Shri V.C. Jain are herein referred to as "the tenants". Another party to these four appeals is Shri Hari Shankar Poddar, who did not contest these appeals and for the sake of convenience, he is herein referred to as "the coowner". I heard learned counsel for both sides and perused the trial court records.
BRIEF BACKGROUND RCT No. 30280/2016 (V.C. Jain vs Radha Kishan Poddar)
2. The appellant tenant has assailed judgment and order dated 23.05.2012 of learned Additional Rent Controller whereby petition under Section 14(1)(a) Delhi Rent Control Act filed by the respondents landlords was allowed, posting the matter for further scrutiny as regards grant of benefit under Section 14(2) of the Act. The said eviction petition was filed by two brothers, namely Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar claiming themselves to be owners of the shop number 5179A, Lahori Gate, Naya Bazar, Delhi (hereinafter referred to as "the demised premises"), against the tenant Shri V.C. Jain by impleading the coowner Shri Hari Shankar Poddar as the second RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 7 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. respondent. Shri Radha Kishan Poddar and Shri Jugal Kishore Poddar having passed away, their legal representatives are the landlords respondents no. 13 and the coowner respondent no. 4 of this appeal.
2.1 In the eviction petition, the landlords pleaded as follows. With effect from 20.07.1990, by way of a lease deed the demised premises were leased out to the tenant at a monthly rent of Rs. 300/ besides electricity, water and municipal taxes and it was agreed that the rent would be payable to the three coowners in equal shares. The tenant fell in arrears of rent with effect from 20.01.1991 and by the time of institution of eviction petition, a sum of Rs. 18,660/ was due and payable from the tenant to the landlords, but despite repeated demands and service of notice dated 16.01.1996 the tenant neither paid nor tendered the outstanding rent to the landlords. Since the coowner Shri Hari Shankar Poddar had been avoiding to join as eviction petitioner, he was impleaded as the second respondent in the eviction petition. However, the coowner opted not to contest and was proceeded against exparte before the learned trial court.
2.2 In his written statement, the tenant did not dispute the jural relationship of tenancy between the parties, but claimed that rent for the period from 01.07.1991 to 30.06.1993 already stood paid or deposited in the court of Shri P.C. Ranga, the then Additional Rent Controller. As RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 8 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. regards the period prior to 01.07.1991, the tenant pleaded that a cheque dated 01.01.1991 for a sum of Rs. 1,800/ was sent by him to the landlords towards rent for the period from 01.01.1991 to 30.06.1991 and thereafter a money order of Rs. 1,200/ was sent by him to the landlords towards rent for the period from 01.07.1991 to 30.06.1992, but the landlords refused to accept the same. It was further pleaded by the tenant that rent with effect from 01.07.1993 to 30.06.1995 at a rate of Rs. 300/ per month was deposited in the court of Shri Narender Kumar Sharma, then Additional Rent Controller, Delhi. As regards rent with effect from 01.07.1995 the tenant expressed willingness to pay the same subject to the landlords issuing proper rent receipt. In the written statement filed in eviction proceedings, the tenant pleaded further facts also, but the same are not relevant for present purposes.
2.3 The landlords filed replication in the eviction proceedings, thereby reiterating the petition pleadings.
2.4 After conducting full dress trial, the learned Additional Rent Controller delivered the findings that argument of the tenant that the eviction petitioners were not landlords was without merit; that joinder of Shri Hari Shanker as proforma respondent in the eviction petition could not be held fatal to the eviction case; and that the tenant failed to comply with the demand notice within the prescribed period of two months. That RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 9 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. being so, the eviction petition was allowed.
RCT No. 30279/16 (Pawan Kumar More vs Radha Kishan Poddar)
3. The appellants tenants have assailed judgment and order dated 21.05.2012 of learned Additional Rent Controller whereby petition under Section 14(1)(a) Delhi Rent Control Act filed by the respondents landlords was allowed, posting the matter for further scrutiny as regards grant of benefit under Section 14(2) of the Act. The said eviction petition was filed by two brothers, namely Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar claiming themselves to be owners of the shop number 5179B, Lahori Gate, Naya Bazar, Delhi (hereinafter referred to as "the demised premises"), against the tenants Shri Pawan Kumar More and Shri Ashok Kumar More by impleading the coowner Shri Hari Shankar Poddar as the third respondent. Shri Radha Kishan Poddar and Shri Jugal Kishore Poddar having passed away, their legal representatives are the landlords respondents no. 13 and the coowner respondent no. 4 of this appeal.
3.1 In their eviction petition, the landlords pleaded as follows. With effect from 13.07.1990, by way of a lease deed the demised premises were leased out to the tenants at a monthly rent of Rs. 550/ besides electricity, water and municipal taxes and it was agreed that the RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 10 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. rent would be payable to the three coowners in equal shares. The tenants fell in arrears of rent with effect from 13.01.1991 and by the time of institution of eviction petition, a sum of Rs. 31,100/ was due and payable from the tenants to the landlords, but despite repeated demands and service of notice dated 16.01.1996 the tenants neither paid nor tendered the outstanding rent to the landlords. Since the coowner Shri Hari Shankar Poddar had been avoiding to join as eviction petitioner, he was impleaded as the third respondent in the eviction petition. However, the coowner Shri Hari Shankar Poddar opted not to contest and was proceeded against exparte before the learned trial court.
3.2 In their written statement, the tenants did not dispute the jural relationship of tenancy between the parties but claimed that rent for the period ending on 30.06.1992 was paid directly to Shri Laxmi Narain Poddar, the original landlord against rent receipts and thereafter rent was tendered to landlords and when they refused to accept the same, the rent was deposited in the court of Shri O.P. Gupta. Additional Rent Controller for the period from 01.07.1992 to 31.12.1992, which has been withdrawn by the landlords. The tenants repeatedly offered the landlords but they refused to accept the rent, so rent for further ten months was deposited in the court of Shri K.S. Khurana, Additional Rent Controller but later, the rent deposit application was withdrawn. Thereafter, the tenants sent three money orders of rent for the period RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 11 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. from 01.01.1993 to 31.12.1993 and similarly, money orders were sent subsequently also, but the landlords refused to accept the same. Finally, three pay orders dated 20.02.1996 of the outstanding rent were sent to the landlords and the coowner and the same were accepted by all three of them. But subsequently, Shri Radha Kishan Poddar and Shri Jugal Kishore returned the pay orders alleging that the tender was incomplete. In the written statement filed in eviction proceedings, the appellant tenant pleaded further facts also, but the same are not relevant for present purposes.
3.3 The landlords filed replication in the eviction proceedings, thereby reiterating the petition pleadings.
3.4 After conducting full dress trial, the learned Additional Rent Controller delivered the findings that argument of the tenants that the eviction petitioners were not landlords was without merit; that joinder of Shri Hari Shanker as proforma respondent in the eviction petition could not be held fatal to the eviction case; and that the tenants failed to comply with the demand notice within the prescribed period of two months. That being so, the eviction petition was allowed.
RCT No. 30372/16 (Radha Krishan Poddar vs V.C. Jain)
4. In continuation of judgment and order dated 23.05.2012 RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 12 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. under Section 14(1) (a) of the Delhi Rent Control Act in the eviction petition titled : Shri Jugal Kishore Poddar & Ors. vs Shri V.C. Jain & Anr., the learned Additional Rent Controller examined the aspect of benefit under Section 14(2) of the Delhi Rent Control Act. By way of the impugned order dated 28.07.2012, the learned Additional Rent Controller held that the default for the period from 21.07.2004 to 31.07.2004 was mere calculation error and accordingly, the tenant Shri V.C. Jain was held entitled to benefit under Section 14(2) of the Delhi Rent Control Act subject to deposit of rent of Rs. 110/ along with cost of Rs. 5000/. Hence, the present appeal filed by landlords, who are legal representatives of Shri Radha Kishan Poddar and Shri Jugal Kishore Poddar against the tenant Shri V.C. Jain. The coowner Shri Hari Shankar Poddar has been impleaded as respondent no. 2 in this appeal.
RCT No. 30376/16 (Radha Krishan Poddar vs Pawan Kumar More)
5. In continuation of judgment and order dated 21.05.2012 under Section 14(1) (a) of the Delhi Rent Control Act in the eviction petition titled : Shri Jugal Kishore Poddar & Ors. vs Shri Pawan More & Ors., the learned Additional Rent Controller examined the aspect of benefit under Section 14(2) of the Delhi Rent Control Act. By way of the impugned order dated 28.07.2012, the learned Additional Rent Controller held that there was no default in payment of rent as it could not be said that there was intentional delay in payment of rent and accordingly, the RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 13 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. tenants Shri Pawan Kumar More and Shri Ashok Kumar More were held entitled to benefit under Section 14(2) of the Delhi Rent Control Act. Hence, the present appeal filed by landlords, who are legal representatives of Shri Radha Kishan Poddar and Shri Jugal Kishore Poddar against the tenants Shri Pawan Kumar More and Shri Ashok Kumar More. The coowner Shri Hari Shankar Poddar has been impleaded as respondent no. 3 in this appeal.
ARGUMENTS OF TENANTS
6. During arguments, learned counsel for tenants argued that since the coowner Shri Hari Shankar Poddar opted not to join the remaining coowners Shri Radha Kishan Poddar and Shri Jugal Kishore Poddar in issuance of quit notice and also did not join them as a co petitioner in the eviction petition, tenancy of the tenants was not lawfully terminated and the eviction petition itself was not maintainable. It was contended on behalf of the tenants that tenancy can be terminated by only one of the coowners provided the remaining coowners give consent for the same but in this case, even according to the contents of the eviction petition, Shri Hari Shankar Poddar did not give consent to terminate the tenancy. Learned counsel for tenants took me through the pleadings and contended that challenge to the maintainability of the eviction petition in the absence of Shri Hari Shankar Poddar was replied by the landlords in RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 14 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. the replication, vaguely alleging collusion between the tenants and Shri Hari Shankar Poddar. Since Shri Hari Shankar Poddar had always been accepting his share of rent, his refusal to give consent for eviction of the tenants was fatal to the eviction petition. Learned counsel for tenants placed reliance on the judgments of Hon'ble Supreme Court of India in the cases of M/s India Umbrella Manufacturing Co. vs Bhagabandei Aggarwala, AIR 2004 SC 1321 and Smt. Kamla Devi vs Shri Vasdev, AIR 1995 SC 985 in support of his arguments.
6.1 It was further argued by learned counsel for tenants that since security amount of Rs. 10,000/ was already lying with the landlords, there was no default. It was argued that the entire rent stood paid prior to institution of eviction petition under Section 14(1)(a) of the Delhi Rent Control Act.
6.2 Learned counsel for tenants also argued that at the stage of consideration of benefit under Section 14(2) of the Delhi Rent Control Act, the tenants had prayed for condonation of delay in deposit of rent and the Additional Rent Controller in the exercise of discretion vested in him condoned the delay keeping in mind that the rent was being paid by way of pay orders to the landlords and the coowner in advance.
RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 15 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. ARGUMENTS OF LANDLORDS
7. On the other hand, learned counsel for landlords argued that it is settled legal position that every coowner is fully competent to file eviction petition provided there is no objection from any of the other co owners. It was argued by learned counsel for landlords that what is required is not that there should be consent of all coowners, but that there should be no objection of any coowner. Since Shri Hari Shakar Poddar opted to remain exparte and never objected to the remaining co owners filing eviction petition, according to the learned counsel for landlords, the objection of the tenants in that regard is not sustainable in the eyes of law.
7.1 As regards the security amount of Rs. 10,000/ lying with the landlords, learned counsel for landlords took me through clause 9 of the lease deed Ex. PW1/5 to demonstrate that the said amount was not towards security but towards use of furniture, fixtures and fittings, so the same could not be adjusted as arrears of rent. As regards claim of the tenants that the entire rent arrears stood paid, it was argued by learned counsel for landlords that what is required to be seen is whether the arrears were paid within two months of the service of rent demand notice and in that regard learned counsel took me through evidence on record.
RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 16 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. 7.2 Learned counsel for the landlords argued that the benefit under Section 14 (2) of the Delhi Rent Control Act was wrongly granted to the tenants on the basis of baseless assumption that the delays in compliance of order under Section 15 (1) of the Act were unintentional. For, admittedly no application for condonation of delay was filed on behalf of tenants.
7.3 Learned counsel for landlords placed reliance on the judgments in the cases of Mohinder Prasad Jain vs Manohar Lal Jain, (2006) 2 SCC 724; E. Palanisamy vs Palanisamy (Dead) by LRs & Ors., (2003) 1 SCC 123; C.L. Nagpal vs Dharam Pal Singh & Ors., MANU/DE/0488/1985; Rakesh Kumar vs Gandharv Singh, MANU/DE/1459/2008; Manohar Lal (Deceased) through legal heirs vs Prem Nath Gera (Deceased) through legal heirs, in CMM No. 638/2011 decided on 24th May 2011; B.R. Gupta vs Pawan Kumar Gupta in CM(M) No. 415 of 2012 decided on 01.12.2014; Pawan Kumar Gupta vs B.R. Gupta, in civil appeal No. 6461 of 2017 decided on 09.05.2017; Sayeda Akhtar vs Abdulahad, 2003 Supp (1) SCR 612; Sriram Pasricha vs Jagannath & Ors., 1976 AIR 2335; Subhendu Prosad vs Kamla Bala Roy Choudhary, AIR 1978 SC 835; Kanta Goel vs B.P. Pathak & Ors., 1977 AIR 1599; Dineshchandra Chunnilal vs Thakkar Chottalal Popatlal, 1979 1 GLR 832; Delhi Automobiles & Ltd. vs Kishan Gopal RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 17 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. Ahuja & Anr., RSA No. 98/2008 & SM Nos. 6226/2008; Smt. Nargis Khanna vs WinMedicare Pvt. Ltd. & Anr., IA No. 9097/2009 in CS (OS) No. 2056/2008; Zulfiquar Ali Khan vs J.K. Helene Curtis Ltd., 2002 VAD Delhi 208; Smt. Renu Jolly & Ors. Vs Shri Vinod Kumar, 99(2002) DLT 261; K.N. Chhiber & Anr. vs Sae India Limited & Anr., 2003 IIIAD Delhi 561 QUESTIONS INVOLVED
8. In view of above rival matrix, following questions arise for adjudication of these appeals:
(A) Whether tenancy of the tenants could be terminated by way of notice issued on behalf of only two out of the three co owners of the demised premises and whether the eviction petition filed by only two out of the three coowners of the demised premises is sustainable?
(B) Whether entire outstanding rent stood paid by the tenants prior to institution of the eviction petition under Section 14(1)(a) of the Delhi Rent Control Act?
(C) Whether in the absence of any application for condonation of delay in payment of rent, the learned Additional Rent Controller could condone the delay while considering RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 18 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
benefit under Section 14(2) of the Delhi Rent Control Act?
QUESTION (A)
9. As mentioned above, according to the tenants, since the notice of termination of tenancy was issued on behalf of only Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar despite the admitted position that Shri Hari Shankar Poddar also was one of the coowners of the demised premises, and even the eviction petition was filed without joining Shri Hari Shankar Poddar as a copetitioner, the quit notice as well as the eviction petition were bad in law. Further, as mentioned above, according to the landlords, since admittedly Shri Hari Shankar Poddar never objected to the termination of tenancy of the tenants and opted not to contest the eviction petition despite being impleaded as one of the respondents, there was no infirmity in the quit notice and the eviction petition.
10. In the case of M/s India Umbrella Manufacturing Co. (supra), relied upon by learned counsel for tenants, the Hon'ble Supreme Court of India held thus :
"6. .... It is well settled that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the coowners (see. Sri Ram Pasricha vs Jagannath & Ors.(1976) 4 SCC 184; Dhannalal vs Kalawatibai & Ors. (2002) 6 SCC 16) This principle is based on the doctrine of RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 19 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
agency. One coowner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement....." (emphasis supplied)
11. Subsequently, in the case of Mohinder Prasad Jain (supra), the Hon'ble Supreme Court of India had the occasion to deal with circumstances similar to the present case in the sense that the original landlord died, leaving behind five children who became co owners of the demised premises and one of them filed eviction petition, which was dismissed on the ground that the eviction petitioner had not been able to show consent of his sisters in his favour for institution of the eviction petition. The Hon'ble Supreme Court of India referred to the judgment in the case of M/s India Umbrella Manufacturing Co.(supra), and held thus :
"11. A suit filed by a coowner is thus maintainable in law. It is not necessary for the coowner to show before initiating the eviction proceedings before the Rent Controller that he had taken option or consent of the other coowners. However, in the event a coowner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the coowners of the respondent had objected to eviction proceedings initiated by the respondent herein...."(emphasis supplied)
12. In the case of Sriram Pasricha (supra) also the Hon'ble Supreme Court of India elucidated the concept of coownership thus :
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"........... Mr. V.S. Desai reads to us from Salmond on Jurisprudence (13th edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254: "As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co ownership. Partners, for example, are coowners of the chattels which constitute their stockin trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by coowners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person ...... The several ownership of a part is a different thing from the coownership of the whole. So soon as each of two coowners begins to own a part of the thing instead of the whole of it, the coownership has been dissolved into sole ownership by the process known as partition. Coownership involves the undivided integrity of what is owned". Jurisprudentially it is not correct to say that a coowner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a partowner or a fractional owner of the property. The position will, change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and coowner of the premises is not the owner of the premises within the meaning of section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a coowner of the property being at the same time the acknowledged landlord of the defendants."
13. In the case of Subhendu Prosad (supra), the Hon'ble Supreme Court of India reiterated that even assuming the quit notice was not given on behalf of one of the coowner landlords, the decision in RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 21 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. the case of Sriram Pasricha (supra) would show that yet the notice was good and valid.
14. In the case of Kanta Goel (supra), the Hon'ble Supreme Court of India held thus :
"This Court, in Sri Ram Pasricha clarified that a coowner is as much an owner of the entire property as any sole owner of the property is: "Jurisprudentially, it is not correct to say that a coowner of property is not its owner. He owns very part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property. It is therefore, not possible to accept the submission that the plaintiff, who is admittedly the landlord and coowner of the premises, is not the owner of the premises within the meaning of section 13(1) (f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13 (1) (f) as long as he is a coowner of the property, being at the same time acknowledged landlord of the defendants." That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other coowner on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co owners wanted the tenant to continue contrary to the relief claimed by the evicting coowner". (emphasis supplied)
15. Similarly, in various judicial precedents cited on behalf of landlords and quoted above, consistent view of the Hon'ble Supreme Court of India and the Hon'ble Delhi High Court has been that a co owner is as much an owner of the entire property as any sole owner of the entire property and therefore an action for eviction of the tenant RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 22 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. brought by one of the coowners is legally maintainable. What is to be seen is not as to whether the coowner who did not join the issuance of quit notice or institution of eviction petition had consented for the issuance of notice or institution of eviction petition. What is to be seen as to whether the coowner who did not join the issuance of quit notice or institution of eviction petition had objected to the issuance of notice or institution of eviction petition. It is in the latter case that the quit notice or the institution of the eviction petition would be bad in law.
16. In the present set of appeals filed on behalf of tenants, the trial court record would reflect that quit notice dated 16.01.1996 Ex. PW1/6 was got issued by only two of the erstwhile landlords namely Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar against the tenants Shri Pawan Kumar More and Shri Ashok Kumar More, but in reply dated 23.02.1996 Ex. RW1/2, there was no plea of the addressee tenants that the quit notice was bad in law on account of even lack of consent, what to say of any objection of the coowner Shri Hari Kishan Poddar. Rather, the tenants stated in reply Ex. RW1/2 that when they tendered rent to Shri Hari Kishan Poddar, he expressed inability on account of objections raised by the remaining coowners. Similarly, the landlords Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar got issued a quit notice dated 16.01.1996 Ex. PW1/3 on the tenant Shri V.C. Jain, who also in reply dated 02.02.1996 Ex. PW1/R1 did not plead that the quit notice Ex.
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17. In both eviction petitions, the landlords specifically pleaded that "since Shri Hari Shankar Poddar, one of the coowners/landlords of the said premises has been avoiding to join as petitioner in the present petition, he has been impleaded as respondent". Merely because Shri Hari Shankar Poddar was avoiding to join the eviction petition as co petitioner, it cannot be inferred with certainty that he objected to institution of the eviction petition. For, avoidance to join as copetitioner can be on account of a variety of reasons. As held in the above cited judicial precedents, it was not necessary for the landlords Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar to show before initiating the eviction proceedings that they had taken option or consent of Shri Hari Kishan Poddar. What is to be seen is as to whether at the time of institution of the eviction proceedings, Shri Hari Shankar Poddar had objected thereto.
18. As mentioned above, the coowner Shri Hari Shankar Poddar, despite being a corespondent to the eviction petitions, opted not to contest and remained exparte. Even in these appeals, Shri Hari Shankar Poddar did not participate despite being impleaded. If Shri Hari Shankar Poddar had even slightest of objection against termination of RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 24 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. tenancy and/or for institution of eviction proceedings, he would certainly have objected.
19. The landlord Shri Radha Kishan Poddar was cross examined extensively but it could not be elicited that Shri Hari Shankar Poddar had objected to initiation of eviction proceedings by Shri Radha Kishan Poddar and Shri Jugal Kishore Poddar. The only suggestion extended to Shri Radha Kishan Poddar in his cross examination was that Shri Hari Shankar was not cooperative with the eviction petitioners, so he was impleaded as a respondent.
20. Further, the tenant Shri V.C. Jain and the attorney Shri Binod More of tenants Shri Pawan Kumar More and Shri Ashok Kumar More in their chief examinations did not even whisper that Shri Hari Shankar Poddar had ever objected to the institution of eviction proceedings by Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar.
21. Considering the above circumstances, question (A) is answered as follows. The landlords Shri Jugal Kishore Poddar and Shri Radha Kishan Poddar despite their having not joined Shri Hari Shankar Poddar in the quit notice, validly terminated the tenancy of tenants Shri Pawan Kumar More, Shri Ashok Kumar More and Shri V.C. Jain, RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 25 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. because Shri Hari Shankar Poddar never objected to the issuance of quit notices. For same reason, even institution of the eviction petition by the landlords without impleading the coowner as a copetitioner was not bad in law.
QUESTION (B)
22. According to the tenants, a security amount of Rs. 10,000/ is already lying with the landlords, so there was no default in payment of rent and even apart from that, the entire arrears of rent were duly paid to them prior to institution of the eviction petition under Section 14 (1) (a) of the Act. On the other hand, according to the landlords, despite service of demand notice, arrears of rent were not cleared by the tenants till institution of the eviction petition.
23. According to the landlords, monthly rent of shop no. 5179 A was Rs. 330/ and that of shop no. 5179 B was Rs. 550/. According to the tenants, monthly rent of shop no. 5179 A was initially Rs. 300/, though they had no objection to 10% enhancement in terms of law and the monthly rent of shop no. 5179 B was Rs. 500/, which was enhanced to Rs. 550/ with effect from 01.02.1996.
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24. According to landlords, in respect of shop no. 5179 A and shop no. 5179 B, the tenants were in arrears of rent for the period from 20.01.1991 and 13.01.1991 respectively, and the tenants did not pay the same despite notices dated 16.01.1996. On the other hand, according to the tenants, the complete rent stood paid to the landlords prior to the institution of the eviction petitions.
25. By way of notice dated 16.01.1996 Ex. PW1/3, issued on behalf of landlords in respect of premises no. 5179 A, the tenant Shri V.C. Jain was called upon to pay the complete arrears of rent for the period commencing from 20.01.1991, alleging that despite repeated demands, the same was not being paid. Similarly, by way of another notice dated 16.01.1996 Ex. PW1/6, issued on behalf of landlords in respect of premises no. 5179 B, the tenants Shri Pawan Kumar More and Shri Ashok Kumar More were called upon to pay the complete arrears of rent for the period commencing from 13.01.1991, alleging that despite repeated demands the same was not being paid.
26. In reply Ex. PW1/R1 on behalf of the tenant Shri V.C. Jain in respect of premises no. 5179 A, it was stated that rent for the period from 01.07.1991 to 30.06.1993 was deposited in the court of Shri P.C. Ranga, ARC, Delhi; that rent for the period from 01.07.1993 to 30.06.1996 also stood deposited in the court of Shri P.C. Ranga, ARC, RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 27 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. Delhi and the same could be withdrawn by the landlords. In reply Ex. RW1/2 on behalf of tenants Shri Pawan Kumar More and Shri Ashok Kumar More in respect of premises no. 5179 B, it was stated that the rent for the period from 01.01.1994 to 31.12.1994 was paid to Shri Laxmi Narain, predecessor of the landlords vide receipt dated 21.01.1995; that the rent thereafter was tendered but the landlords refused to accept the same, so the complete arrears for the period from 01.01.1995 to 31.01.1996 were being tendered by way of pay orders alongwith the reply.
27. But in their written statement, the tenants pleaded contrary to the contents of their reply Ex. RW1/2, that rent for the period ending 30.06.1992 was paid directly to late Shri Laxmi Narain Poddar against rent receipts; that the rent for the period from 01.07.1992 to 31.12.1992 was deposited in the court of Shri O.P. Gupta, ARC, Delhi and the same was withdrawn by the landlords; that thereafter rent was offered to the landlords from time to time but they refused to accept the same and rent for 10 months was sought to be deposited by the tenants in the court of Shri K.S. Khurana, ARC, Delhi but the rent deposit application was dismissed as withdrawn and thereafter three money orders were sent to the landlords for rent for the period from 01.01.1993 to 31.12.1993, but the same were not accepted by the landlords; that the tenants also sent the outstanding rent by way of pay orders alongwith reply to the legal notice RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 28 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. but the landlords refused to accept the same; and that finally, pay orders dated 09.02.1996 and 20.02.1996 were sent to the landlords, who initially accepted the same but later returned it to the tenants.
28. In the backdrop of above rival claims, the tenants in both eviction proceedings ought to have led some cogent documentary evidence to establish their having tendered the rent by way of money orders or pay orders or by any other mode as alleged, but no such evidence was adduced. Even as regards the alleged deposit of rent in court, no documentary evidence bearing complete particulars was adduced on behalf of tenants. Admittedly, even according to tenants the pay orders of outstanding rents sent alongwith reply to the notice were not accepted by the landlords, but the tenants did not deposit the outstanding rent in court under Section 27 of the Act. As rightly observed by the learned Additional Rent Controller in the impugned eviction orders, even according to the tenants Shri Pawan Kumar More and Shri Ashok Kumar More, no rent was paid or deposited for the period from 01.01.1993 upto the notice period.
29. Similarly as regards premises no. 5179A also, even according to the pleadings of the tenant Shri V.C. Jain, rent for the period from 01.07.1991 to 30.06.1993 and for the period from 01.07.1993 to 30.06.1995 was deposited in court, but the rent demand RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 29 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. notice was for the period from 20.01.1991 to March, 1996. Thus, even according to tenant Shri V.C. Jain, rent for the period from 01.07.1995 onwards was due and the same was neither paid nor tendered nor deposited in court.
30. As regards pleadings of the tenants that his share of rent was being accepted regularly by Shri Hari Shankar Poddar also, no reliable documentary or even oral evidence was adduced. Neither any rent receipt issued by Shri Hari Shankar Poddar was proved or even filed, nor Shri Hari Shankar Poddar was summoned into the witness box by the tenants. And contrarily at the same time, tenants also pleaded that they deposited the rent in court.
31. So far as the amount of Rs. 10,000/ lying with the landlords is concerned, the same was not towards rent or even security. As per clause 9 of the lease deed Ex. PW1/5, the said amount of Rs. 10,000/ was towards fittings and fixtures viz. 03 fans, electric tubes and fittings, racks and almirahs, which amount was non refundable as the same would continue to be the property of the tenants.
32. In view of above discussion, question (B) is answered as follows. The tenants Shri V.C. Jain of premises no. 5179A and Shri Pawan Kumar More & Shri Ashok Kumar More of premises no. 5179B did not pay RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 30 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. complete outstanding rent despite service of demand notices till institution of the eviction petitions.
Question (C)
33. This question is at the core of the appeals filed by the landlords, contending that having noticed multiple rent deposit defaults, the learned Additional Rent Controller ought not to have condoned the defaults, treating the same to be unintentional ones, that too without any application for condonation filed on behalf of tenants.
34. On the question under consideration, learned counsel for tenants argued that as held in the case of Smt. Kamla Devi (supra), it is not obligatory for the Rent Controller to strike out defence of the tenant under Section 15(7) of the Delhi Rent Control Act if the tenant fails to pay or deposit the rent in terms with order under Section 15(1) of the Act and the exercise of this discretion would depend upon facts and circumstances of each case. That being so, according to learned counsel for tenants, there was no infirmity in the impugned orders condoning the delay in payments of rent.
35. In the case of E. Palanisamy (supra), the Hon'ble Supreme Court held thus:
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"(5)................ The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statory provisions.
Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. " (emphasis supplied)
36. In the case of C.L. Nagpal (supra), the Hon'ble Delhi High Court clarified that the expression "month by month" used in Section 15(1) of the Act means the tenancy month and not the English calendar month.
37. In the case of Rakesh Kumar (supra), the submission advanced on behalf of tenant who had delayed in deposit of rent was that the delay was of only 45 days and the same had occasioned because the learned Additional Rent Controller was on leave for two days, so there was no willful or intentional default. The Hon'ble Delhi High Court held thus:
" (5)................Therefore, in the light of the aforesaid facts it could not be said that the learned Tribunal or the ARC did not have power to condone the delay. However, so far as the question of actually delay being condoned in the present case is concerned, that aspect has to be seen as to whether the delay could have been condoned or not. In the instant case, there was no application filed by the petitioner for condonation of delay, nor was such an application filed before the learned Additional Rent Control Tribunal, therefore the delay could not be ipso facto condoned automatically be the learned Additional RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 32 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
Rent Controller or by the Tribunal without there being an application. To that extent, I feel that the order of the learned Additional Rent Controller as well as that of the Tribunal cannot be found fault with." (emphasis supplied)
38. In the case of Manohar Lal (supra), the Hon'ble Delhi High Court reiterated thus:
"(5) I also agree with the Additional Rent Control Tribunal that it is not the position in law that firstly there must be passed an order of striking of defence under Section 15 (7) of the Act and only thereafter the benefit under Section 14 (2) of the Act can be denied. In fact, once there is nonpayment or delay in deposit/payment of the rent, there is noncompliance of Section 15 (1) order disentitling the benefit under Section 14 (2) and it is the tenant who has to move an application for condonation of delay giving the reasons as to why there is non compliance/delayed compliance of the order under Section 15 (1) of the Act. The shoe is not on the other foot as is sought by learned senior counsel for the petitioners that first the landlord must apply for striking of the defence and only then, the tenant is bound to give the reasons for noncompliance of the order under Section 15 (1) of the Act."
(emphasis supplied)
39. In the case of B.R. Gupta (supra) also, the Hon'ble Delhi Court dealt with a similar issue where the tenant had not moved an application for condonation of delay in deposit of rent The Hon'ble High Court held thus:
"(22) Furthermore, the tenant had also not moved an application for condonation of delay. For condonation of delay, the tenant is required to offer cogent and just reasons which admittedly, have not been done in the present case. This court in Sanjay Kumar Saxena (supra) held RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 33 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.
that if the Controller is satisfied that there has been default in compliance 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." (emphasis supplied)
40. The judgment of the Hon'ble Delhi High Court in the case of B.R. Gupta (supra) was challenged before the Hon'ble Supreme Court and the same was upheld in the case of Pawan Kumar Gupta (supra), the Hon'ble Supreme Court holding thus:
" 23...... Condonation of delay can take place only when the defaulting tenant so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. The tenant has no offered any explanation for the delay in deposit of rent. Therefore, we do not find any justification to interfere with the order of the High Court." (emphasis supplied)
41. Falling back to the present case, as mentioned above, main argument pertaining to the question under consideration advanced on behalf of landlords is that the learned Additional Rent Controller could not have condoned the multiple delays in deposit of rent without there being an application of tenants seeking condonation.
42. In appeal bearing RCT no. 30372/16, the trial court record and the impugned order reflects as follows. Vide order dated 21.01.1999, the tenant was directed to deposit in court entire arrears of rent from 01.07.1995 to 19.01.1996 at a rate of Rs. 300/ per month and RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 34 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. to deposit rent from 20.01.1996 till date of order at a rate of Rs. 330/ per month and to continue to deposit the rent for future, months by months at a rate of Rs. 330/ per month under Section 15(1) of the Delhi Rent Control Act. On 28.07.2012, it was pointed out by the learned counsel for landlords before the learned Additional Rent Controller that there was short deposit of rent of 11 days for the month of July 2004 from 21.07.2004 to 31.07.2004, the tenancy period being from 20 th day of each calender month. The learned Additional Rent Controller held that the contention of the landlords was correct that rent had been belatedly deposited on several occasions till 19.07.2004. However, it was further held that from 01.08.2004, the tenants started depositing the rent for the period commencing from first day till last day of the calendar month and thereafter there was no delay. But having observed that, the learned Additional Rent Controller held that there was no intentional or willful delay in deposits of rent upto 19.07.2004 since there were advance deposits according to English calendar month for more than twenty occasions; that the application under Section 15(7) of the Delhi Rent Control Act was filed on 12.01.2005 i.e. after the period when the tenant started depositing the rent according to the English calendar month from August 2004; that the default for the period from 21.07.2004 to 31.07.2004 was mere default due to calculation and for that, the tenant could not be deprived of benefit under Section 14(2) of the Act, but the tenant would be granted benefit subject to deposit of rent of Rs. 110/ for RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 35 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. the period from 21.07.2004 to 31.07.2004 and a further cost of Rs. 5000/ to be paid to the landlords.
43. In appeal bearing RCT no. 30376/16, the trial court record and the impugned order reflects as follows. Vide order dated 21.01.1999, the tenants were directed to deposit in court entire arrears of rent from 01.03.1993 to 31.01.1996 at a rate of Rs. 500/ per month and to deposit rent from 01.02.1996 till date of order at a rate of Rs. 550/ per month and to continue to deposit the rent for future, months by months at a rate of Rs. 550/ per month under Section 15(1) of the Delhi Rent Control Act. On 28.07.2012, it was pointed out before the learned Additional Rent Controller that there was delay in deposit of rent of 02 days for the month of April 1999 and one day each for the month of October 2000, January 2001, March 2001, July 2001, August 2003, and February 2006. But observing that there was advance deposit of rent for rest of the period, the learned Additional Rent Controller held that the said delays were not intentional or willful and that there was no consecutive default on three occasions or delay for three consecutive occasions, so benefit under Section 14(2) of the Delhi Rent Control Act could not be denied to the tenants.
44. Thus, in the order impugned in RCT No. 30372/16, the learned Additional Rent Controller condoned the multiple defaults in RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 36 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. deposit of rent by holding the same to be unintentional till 19.07.2004 without there being any delay condonation application on behalf of tenant, setting up a plea that the said defaults were unintentional. Not only this, as regards default for the period from 21.07.2004 to 31.07.2004, the learned Additional Rent Controller even directed the tenant to deposit a further amount of Rs. 110/ alongwith cost of Rs. 5000/ for the default. Even in this regard, the default was condoned though with cost without any application explaining the circumstances which prevented the tenant from ensuring strict adherence to the order under Section 15 (1) of the Delhi Rent Control Act.
45. Similarly, in the order impugned in RCT 30376/16 also, the learned Additional Rent Controller condoned multiple defaults in deposit of rent by holding the same to be unintentional, without any delay condonation application filed by the tenants setting up a plea qua circumstances which prevented them from depositing rent in time.
46. Besides, the learned Additional Rent Controller in the exercise of finding justification as regards the said defaults also wrongly upheld the unilateral conversion of the commencement of tenancy from 20th day of each month to 01st day of each calendar month. That also could not be done in view of the judicial precedent cited above, demarcating the distinction between tenancy month as contemplated by RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 37 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. Section 15(1) of the Delhi Rent Control Act and the English calendar month.
47. So far as the judgment of Hon'ble Supreme Court of India in the case of Smt. Kamla Devi (supra) relied upon by learned counsel for tenants is concerned, the law laid down in the said judgment is to the extent that it is not obligatory for the rent controller to strike out the defence of the tenant under Section 15(7) of the Delhi Rent Control Act if the tenants fails to pay or deposit the rent as ordered under Section 15(1) of the Act. In the said judgment, the Hon'ble Supreme Court of India clearly held that the discretion to strike out defence has to be exercised keeping in mind facts and circumstances of each case. The said judgment did not lay down that whether or not the tenant files a delay condonation application, the Rent Controller can condone the delay. As held in the case of Shri Manohar Lal (supra) it is not the position in law that firstly there must be an order of striking out of defence under Section 15(7) of the Act and only thereafter, benefit under Section 14(2) of the Act can be denied; and the legal position is that once there is nonpayment or delay in deposit/payment of rent, there is non compliance of Section 15(1) order disentitling the tenant benefit of Section 14(2) of the Act and that it is the tenant who has to move an application for condonation of delay giving reasons as to why there is noncompliance or a delayed compliance of order under Section 15(1) of RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 38 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. the Act.
48. There is no concept of implied condonation of delay under the scheme of the Delhi Rent Control Act and there is no judicial precedent that stipulates grant of automatic benefit of Section 14(2) of the Act to a tenant who fails to comply with order under Section 15(1) of the Act and does not explain by way of a proper application the cause for the default and seeks condonation. The landlord cannot be deprived of an opportunity to demonstrate before the Rent Controller that the non compliance or delayed compliance with order under Section 15(1) of the Act was not unintentional and not pardonable. Such an opportunity can be secured to the landlord only where the tenant brings an application for delay condonation, setting up the circumstances which would entitle him the discretionary relief of delay condonation.
49. In view of above discussion, question (C) is answered as follows. The delay on the part of the tenants in deposit of rent in compliance with order under Section 15(1) of the Delhi Rent Control Act could have been condoned or could have been held unintentional by the learned Additional Rent Controller in the orders impugned in RCT No. 30372/16 and 30376/16 only if the tenants had pleaded for delay condonation, giving justifiable reasons which could show that they were prevented from compliance by circumstances beyond their control, but RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 39 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. as mentioned above, without any such application, depriving the landlords an opportunity to demonstrate falsity of any claim that could be set up by the tenants, the learned Additional Rent Controller held the defaults as unintentional and condoned the same.
CONCLUSION
50. In view of answers to questions (A) and (B) above, I am unable to find any infirmity in the judgment and order dated 21.05.2012 impugned in RCT No. 30279/16, and judgment and order dated 23.05.2012 impugned in RCT No. 30280/16, so the same are upheld. The appeals bearing no. RCT No. 30279/16 and RCT No. 30280/16 are dismissed.
51. In view of answers to question (C) above, I am unable to uphold the orders dated 28.07.2012 of the learned Additional Rent Controller, impugned in the appeals RCT No. 30372/16 and RCT No. 30376/16, so the same are set aside. The appeals RCT No. 30372/16 and RCT No. 30376/16 are allowed, thereby holding that the tenants are not entitled to benefit under Section 14(2) of the Delhi Rent Control Act.
52. Consequently, eviction order is passed, thereby directing that the tenants namely Shri Pawan Kumar More & Shri Ashok Kumar RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 40 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors. More from premises bearing no. 5179B, Lahori Gate, Naya Bazar, Delhi and tenant Shri V.C. Jain from premises bearing no. 5179A, Lahori Gate, Naya Bazar, Delhi be evicted from the said tenanted premises.
53. Copy of this judgment be sent to the learned Additional Rent Controller alongwith trial court records and appeal files be consigned to records, leaving the parties bear their own costs.
Announced in the open court on this day of 13th February, 2020 (GIRISH KATHPALIA) District & Sessions Judge (HQs) Central, Tis Hazari Courts Delhi 13.02.2020 (a) Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2020.02.18 15:00:28 +0530 RCT No. 30279/2016 Pawan Kumar More &ors. vs Radha Kishan Poddar RCT No. 30280/2016 V.C. Jain vs Radha Kishan Poddar Page 41 of 41 pages RCT No. 30372/2016 Radha Kishan Poddar vs V.C. Jain RCT No. 30376/2016 Radha Kishan Poddar vs Pawan Kumar More &ors.