Delhi District Court
Smt. Harsh Grover vs Sh. H.S. Bajaj on 22 January, 2013
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0278222012
RCT No. 43/2012
1. Smt. Harsh Grover
W/o Late Prem Grover
R/o 11/10, 1st Floor,
Ashok Nagar, New Delhi.
2. Ruchika Grover
D/o Late Prem Grover
R/o 11/10, 1st Floor,
Ashok Nagar, New Delhi.
3. Karan Grover
D/o Late Prem Grover
R/o 11/10, 1st Floor,
Ashok Nagar, New Delhi.
4. Mrs. Priyanka Bajaj
W/o Sh. Vikram Bajaj
D/o Late Prem Grover
R/o 29-C, 2nd Floor,
Natraj Enclave,
Pune-40, Maharashtra ...Appellants
VERSUS
1. Sh. H.S. Bajaj
S/o late Harnam Singh Bajaj
2. Sh. Tajinder Pal Singh
S/o Sh. H.S. Bajaj
Both residents of
M-64, Vikaspuri,
New Delhi - 110018. ....Respondents
RCT No. 43/12 1 /11
2
Date of institution : 03.07.2012
Arguments completed on : 10.01.2012
Date of order : 22.01.2013
ORDER
1. The present appeal impugnes order dated 21.4.2012 passed by Ld. ARC declining benefit u/s 14(2) DRC Act and passing an eviction order in respect of shop on ground floor in property No. 4/55, Double Storey, Tilak Nagar, Delhi. The facts giving rise to the said appeal are that landlord filed an eviction petition on the ground of non payment of rent on the allegations that the appellants and Vipin Kumar were tenants @ Rs. 300/- per month exclusive of other charges. They had failed to pay rent w.e.f. 1.1.2004 in respect of notice dated 5.9.2006. The appellants sent cheque for Rs. 5100/- after service of notice but the same was not complete tender. The same was accepted without prejudice to the rights of the landlord. The appellants filed a petition for deposit of rent u/s 31 Punjab Relief of Indebtedness Act 1934 which was dismissed.
2. The appellants filed a written statement admitting RCT No. 43/12 2 /11 3 relationship of landlord and tenant, rate of rent and the period in arrears. Their predecessor in interest namely Prem Kumar Grover was a joint tenant along with Vipin Kumar. After death of their predecessor the landlord started refusing to accept rent. They tendered rent from 1.1.2004 to April 05 amounting to Rs. 4800/- by cheque and on refusal by landlord, they filed a petition u/s 31 of Punjab Relief of Indebtedness Act. The same was withdrawn by them in view of decision of Hon'ble Supreme Court and a fresh petition u/s 27 DRC Act was filed.( Sic. Petition u/s 31 Punjab Act was dismissed and not withdrawn ) After receipt of demand notice dated 5.9.2006, they sent a cheque of Rs. 5100/- dated 19.09.2006 towards rent from May 2005 to September 2006.
3. After filing written statement the appellants stopped appearing in court and were proceeded ex-parte. In their ex-parte evidence the respondent No. 1 examined himself as PW-1. Aftter going through the material on record and hearding the arguments the Ld. ARC found that the appellants failed to prove that they filed any petition u/s 27 RCT No. 43/12 3 /11 4 DRC Act. Accordingly the Ld. ARC passed an order u/s 15(1) DRC Act directing the tenant to pay or deposit rent w.e.f. 1.1.2004 @ Rs. 300/- per month within one month, vide order dated 2.6.2010. Since the tenants were ex- parte, copy of the order was sent to them with directions to affix the same in case of refusal or non availability. Separate file was directed to be maintained for report regarding compliance of said order for 02.8.2010.
4. Thereafter the appellant filed an application u/o 9 Rule 13 CPC on the ground that initially the case was pending in Rohini courts. After transfer of the case to Tis Hazari Courts they were informed that they would receive a notice from the court and so they did not appear. The application was registered as number M 34/10 and the same was dismissed by Ld.ARC vide order dated 21.4.2012. No appeal has been preferred against the said order and the same has become final.
5. Vide separate order dated 21.4.2012 the Ld. ARC held that appellants have failed to comply with order under section 15 (1) DRC Act. Hence they were not entitled to RCT No. 43/12 4 /11 5 benefit u/s 14(2) DRC Act.
6. In appeal the contention of the appellant is that they learnt about the order dated 02.6.2010 on 26.7.2010 when they received the copy of the order. The Ld. Trial Court failed to understand evil design of the landlord to harass the appellant. They sent notice dated 05.9.2006 claiming rent w.e.f 1.4.2004 to 01.9.2006 amounting to Rs. 600/-. ( Sic. Period comes to 29 months and amount comes to Rs. 8700/-. ) The appellant sent a cheque forRs. 5100/- from May 2005 to Sept. 2006, after adjusting Rs. 4800/- deposited by them under section 31 Punjab Relief of Indebtedness Act. The said petition has been dismissed by Shri Daya Prakash, Senior Civil Judge vide order dated 02.1.2006, copy of which is placed at page 79 of the appeal file. That order was based on the decision of Hon'ble Supreme Court in Atmaram Vs Shakuntla Rani 2005 (1) SCALE 35. After dismissal of the said petition the appellants had no justification to adjust the said amount from cheque dated 19.9.2006. The order was more than 8 months prior in time to the cheque. Since the subsequent RCT No. 43/12 5 /11 6 tender was incomplete, the same had no effect as per Murari Lal Vs Nanak Chand 23(1983) DLT 195. Similarly deposit u/s 31 Punjab Act was before demand notice and is of no use as per Chhanga Ram Vs Prabha Rani 36 (1988) DLT 191.
7. I have gone through the material on record and heard the arguments. The reply to appeal filed by the respondent and rejoinder thereto filed by the appellants have also been perused. At the very outset it may be mentioned that Vipin Kumar/one of the joint tenant has not been impleaded in the appeal either as appellants or as one of the respondents. He was respondent no.1 in Ld. Trial Court and in his absence the appeal is bad for non- joinder of necessary parties.
8. On merits the counsel for the appellants tried to intermingle the present case with another case on the ground of sub letting. In that case the appellant was proceeded ex-parte and application under order 9 Rule 7 CPC was dismissed by Ld. ARC. In appeal the said application was allowed by this court and the pleadings RCT No. 43/12 6 /11 7 were almost similar that after transfer of case from Rohini to Tis Hazari Courts the appellants were not served with fresh summons. I am unable to appreciate the arguments. The setting aside of ex-parte order in a pending case under section 9 Rule 7 CPC stands on a lighter footing than setting aside of final ex-parte judgment under order 9 Rule 13 CPC. Moreover in that appeal the landlord remained ex-parte. So same is not a precedent for all similar cases.
9. Over and above that order dismissing the application under order 9 Rule 13 CPC has not been challenged in the present case. The same cannot be allowed to be convassed collaterally, in appeal against order declining benefit under section 14(2) DRC Act.
10. What is important is that not only order under section 15 (1) DRCT Act was passed on 02.6.2010 but the same was directed to be served afresh on the appellants and the same was served. The appellants should have deposited rent at that time at least. They did not do so. They kept on waiting for 2 years till April, 2012 when their application under order 9 Rule 13 CPC was dismissed and benefit RCT No. 43/12 7 /11 8 under section 14 (2) DRC Act was denied. Plea of wrong advice by the previous counsel is not an omnibus defence to escape all consequences.
11. Arguments of the appellant that they have deposited the rent now in compliance of order dated 02.7.2012 passed by this court while staying execution of impugned eviction order is of no help to the appellant. The same cannot take place of compliance of order under section 15(1) DRC Act.
12. The counsel for the appellant relied decision of our own Hon'ble High Court in CM no. 288/2009 titled as Mukesh Kumar Gupta Vs Kamlesh decided on 22.4.2010. In that case plea of the tenant was that they had handed over rent to their counsel who failed to deposit the same in the court. Without going into that plea and keeping in view the fact that rent has been deposited during hearing in Hon'ble High Court, the Hon'ble High Court felt that interest of justice would be served by requiring the tenant to file an affidavit of undertaking that in the event he makes a single default thereafter, the order striking out defence RCT No. 43/12 8 /11 9 would be revived. The facts of that case are altogether different. Firstly that was an appeal against order striking out defence under section 15 (7) DRC Act which is discretionary provision. Secondly in that case the plea of the tenant was that he had handed over the rent to his counsel for being deposited in the court which he failed to deposit. This is not the plea in the case in hand.
13. The counsel for the appellant also relied upon decision in Arjunan Vs Universal Fertilizer Corporation 2009 (12) JT 152. That was a case under Tamil Nadu Buildings (Lease and control) Act 1960. In that case High Court of Madras has dismissed miscellaneous petition filed by the tenant for extension of time in depositing arrears of rent. In that case an ex-parte eviction order was passed by Rent Controller on the ground of non payment. While setting aside that eviction order the tenant was directed to deposit rent within 15 days. He failed to comply with the same and his first appeal was dmissed by the Rent Control Appellate Authority. The High Court granted one week time to deposit rent which was not complied. The RCT No. 43/12 9 /11 10 tenant sought extension of time which was declined by the High Court. Taking notice of the fact that tenant has deposited the rent within time granted by Hon'ble Supreme Court, the appeal of the tenant was accepted and the matter was remanded back to Ld. ARC to decide the case on merits.
14. Facts of the cited case are distinguishable. Firstly in Tamil Nadu Buildings (Lease and control) Act 1960 the requirement is that all willful defaulter in not paying rent. That is not the requirement in Delhi Act. Secondly there tenant had sought extension of time to deposit rent. In the present case the appellants have not sought any extension for depositing of rent. Rather they did not comply with order u/s 15(1) DRC Act for two years even after service of ex-parte order u/s 15(1) DRC Act, as observed earlier.
15. In M/s Aero Traders (P) Ltd. Vs Ravinder Kumar Suri AIR 2005 SC 15 it was held that failure to pay petty rent of Rs. 30/- per month dis-entitles him to discretion. Here also rent is petty being Rs. 300/- per month and RCT No. 43/12 10 /11 11 case is squarely covered by said decision.
16. I do not find any infirmity in the impugned order. The appeal fails and is dismissed. Record be sent back along with the copy of this order. Appeal file be consigned to Record Room.
Announced in the open court on 22nd , January 2013. (O.P. GUPTA) DJ&ASJ-In-Charge(West)/ARCT Delhi RCT No. 43/12 11 /11