Delhi District Court
Tasarruf Husain (Since Deceased) ... vs Khalid Rehman & Others Page 1 Of 21 Pages on 3 June, 2020
IN THE COURT OF MS NEENA BANSAL KRISHNA
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI
RCT No. 28/2017
Tasarruf Husain (since deceased) through his LRs
Vs.
Khalid Rehman & Others
Sh. Tasarruf Husain (since deceased) through his LRs
1. Ms. Naeema Khatoon W/o Late Sh. Tasarruf Husain
R/o: 332/6, C9, Batla House, Jamia Nagar,
Okhla, New Delhi - 110025
2. Sh. Vigar Husain Siddiqui S/o Late Sh. Tasarruf Husain
R/o: A21, Jogabai Extension, Jamia Nagar,
New Delhi - 110025
3. Ms. Salma Siddiqui D/o Late Sh. Tasarruf Husain
R/o: 332/6, C9, Batla House, Jamia Nagar,
Okhla, New Delhi - 110025
4. Ms. Shagufta Siddiqui D/o Late Sh. Tasarruf Husain
R/o: 332/6, C9, Batla House, Jamia Nagar,
Okhla, New Delhi - 110025
5. Sh. Nayyer Husain Siddiqui S/o Late Sh. Tasarruf Husain
R/o: 332/6, C9, Batla House, Jamia Nagar,
Okhla, New Delhi - 110025
RCT No. 28/2017
Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 1 of 21 Pages
6. Ms. Zeenat Firdaus D/o Late Sh. Tasarruf Husain
R/o: 332/6, C9, Batla House, Jamia Nagar,
Okhla, New Delhi - 110025
7. Ms. Zeba Siddiqui D/o Late Sh. Tasarruf Husain
R/o: A21, Jogabai Extension, Jamia Nagar, .... Appellants/
New Delhi - 110025 Tenants
Versus
1. Sh. Khalid Rehman S/o Late Sh. Abdul Rehman
R/o: G28, Ground Floor, Nizamuddin West,
New Delhi
2. Sh. Rashid Rehman S/o Late Sh. Abdul Rehman
R/o: 835, First Floor, Abid Building, Ballimaran,
Chandni Chowk, New Delhi - 110006
3. Ms. Farha Azhar W/o Sh. Akhtar Jamal
D/o Late Sh. Abdul Rehman
R/o: 835, First Floor, Abid Building,
Ballimaran, Chandni Chowk, .... Respondents/
New Delhi - 110006 Landlords
First date before this Court : 19.12.2017
Date of Order : 03.06.2020
ORDER:
1. An appeal under Section 38 of the Delhi Rent Control Act (hereinafter called DRC Act) has been filed against the Judgment dated 17.10.2017 vide which the Eviction Petition filed by the respondents/landlords under Section 14 (1) (a) of DRC Act was RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 2 of 21 Pages allowed, while the petition under Section 14 (1) (a) (b) (d) (h) of DRC Act was dismissed.
2. The facts in brief are that Ms. Feroza Bagum was the landlady in respect of premises No. 332/6, C9, Batla House, Jamia Nagar, Okhla, New Delhi in which appellant Sh. Tasarruf Husain was a tenant on monthly rent of Rs. 80/ excluding water and electricity charges since last 40/50 years. Ms. Firoza Begum filed an Eviction Petition under Section 14 (1) (a) of DRC Act which was allowed vide order dated 22.10.1998 by Ld. Addl. Rent Controller and the benefit under Section 14 (2) DRC Act was given and no eviction order was made. Ms. Firoza Begum (mother of the respondents) filed another Eviction Petition on 23.07.1999 claiming that the appellant/tenant was in arrears of rent since October, 1998 and claimed it to be a case of second default under Section 14 (1) (a) of DRC Act. However, the said petition was dismissed vide order dated 03.01.2003. The respondent thereafter filed the present petition for eviction under Section 14 (1) (a) of DRC Act.
3. The respondent Ms. Firoza Begum, landlady had asserted in her petition that she had received rent in the sum of Rs. 640/ for 08 months from February, 2007 to September, 2007 @ Rs. 80/ per month and had issued receipt dated 05.05.2007. However, the appellant/tenant failed to pay the rent thereafter and Legal Notices dated 29.10.2007 and 08.12.2008 were served upon the appellant/ tenant for payment of arrears of rent, despite which legally RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 3 of 21 Pages recoverable arrears were not tendered/deposited as per law. Hence, the present Petition under Section 14 (1) (a) of DRC Act (alongwith other sections) was filed for eviction.
4. The appellant/tenant in his detailed reply had submitted that the rent was tendered after September, 2007 but Ms. Firoza Begum the landlady refused to accept the same. Thus, he was constrained to send the rent by money order from the month of October, 2007 onwards, but the landlady continuously refused/avoided to receive the money order and they were returned with the remarks refused/ unclaimed/left without address etc. The appellant was thus, constrained to file Petition for Deposit of Rent bearing No. 97/2009 for depositing the arrears of rent from October, 2007 till March, 2009 and again filed Petition for Deposit of Rent No. 96/2010 for deposit of arrears of rent w.e.f. April, 2009 till March, 2010 @ Rs. 80/ per month. Appellant had further asserted that he was never informed about the death of Ms. Firoza Begum and, therefore, aforementioned two Deposit of Rent Petitions were filed in the name of Ms. Firoza Begum.
5. Appellant received summons in Suit No. 34/2010 (new CS No. 613/2014 filed by respondent against appellant), whereby alleged arrears of rent were claimed. The appellant was served with the summons of the civil suit in the month of October, 2010 and it is only then he inferred that Ms. Firoza Begum has died on 02.04.2008 and her two sons and one daughter, namely Sh. Khalid RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 4 of 21 Pages Rehman, Sh. Rashid Rehman and Ms. Farha Azhar respectively have become the landlords. After receipt of the summons, the appellant again sent the rent of the tenanted premises at the new address of respondents i.e. 835, First Floor, Abid Building, Ballimaran, Chandni Chowk, New Delhi, in addition to the earlier address i.e. H555, Gali Hakimji, Churiwalan, Jama Masjid, Delhi, but again the same were returned with the endorsement "RC returned to sender and left without address". It is further asserted that in the said civil suit, the address of the respondent was given as 21A, Jogabai Extension, Jamia Nagar, New Delhi, but it was incorrect address as respondent had never resided at the given address, but has been continuously residing at the tenanted premises.
6. The appellant had asserted that in discharge of his duty to pay the rent, he regularly kept filing Deposit of Rent Petitions against the present landlords. It was claimed that the appellant had never defaulted in payment of rent and eviction petition was liable to be dismissed.
7. Ld. Rent Controller vide order dated 22.09.2017 made an order under Section 15 (1) of DRC Act directing the respondent to pay or deposit the rent @ Rs. 80/ per month from 01.05.2011 to 31.08.2011 and continue to pay the same by 15 th day of each calendar month.
8. The appellant has submitted that he has been regularly tendering/depositing the rent and no ground for eviction under RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 5 of 21 Pages Section 14 (1) (a) of DRC Act was made.
9. Ld. Rent Controller after considering the evidence of both the parties came to the conclusion that despite due service of Legal Notice dated 08.12.2008, the arrears of rent since October, 2007 was not tendered within two months of service of Legal Notice dated 08.12.2008. Hence, the appellant/tenant defaulted in payment of rent since it was a case of second default, he was not entitled for benefit under Section 14 (2) of DRC Act and eviction was accordingly made under Section 14 (1) (a) of DRC Act, while the petition under Section 14 (1) (a) (b) (d) (h) of DRC Act was dismissed. Aggrieved by the eviction order under Section 14 (1)
(a) DRC Act, the present appeal has been filed.
10.Ld. Counsel for the appellant/tenant has argued that the first Notice dated 29.10.2007 (Ex. PW1/3) was only in respect of enhancement of rent from Rs. 80/ per month to Rs. 3,000/ per month and was not a notice of demand of arrears of rent. Second Notice dated 08.12.2008 (Ex. PW1/7) was never served upon the appellant. Furthermore, in the said notice, the respondents, who are the LRs of the erstwhile landlady Ms. Feroza Bagum, did not mention that the landlady had died and they are her legal heirs. The Death Certificate was produced only in the year 2012 and it is then the appellant came to know about the death of Ms. Feroza Bagum. It has been further submitted that since October, 2007, the rent which was being regularly tendered through money order, was being refused or not claimed. The appellant deposited the RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 6 of 21 Pages arrears of rent under Section 27 of DRC Act. It has been further asserted that it was valid deposit of arrears of rent even though it was beyond period of 21 days, as period of 21 days is merely directory and not mandatory. Since, the arrears of rent in compliance of Legal Notice dated 08.12.2008 has already been duly deposited, there was no case of second default and the eviction order has been wrongly made against the appellant. It was submitted that the eviction order is liable to be setaside.
11.Ld. Counsel for the Respondents/landlords has argued that the second Legal Notice dated 08.12.2008 (Ex. PW1/7) was duly served through UPC (Ex. PW1/9) vide postal receipt of which is Ex. PW1/8. It is only registered cover (Ex. PW1/11), which had been returned unserved. In fact, RW1 Sh. Viqar Husain Siddiqui, son of the appellant, has admitted in his crossexamination that his father had received the Legal Notice. Despite service of Legal Notice, deposit has been made under Section 27 of DRC Act, but same was not valid tender of rent in compliance of Legal Notice of Demand. It has been submitted that the deposit of rent has been made beyond a period of two months; hence the appellant is not entitled to benefit under Section 14 (2) of DRC Act. It has also been argued that the service of summons of the petition were effected at the other address i.e. 21A, Jogabai Extension, Jamia Nagar, New Delhi, which shows that the appellant had acquired an alternative accommodation and was liable to be evicted under Section 14 (1) (h) of DRC Act. Moreover, it had been reported on RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 7 of 21 Pages Registered AD (Ex. PW1/11) that the premises was found locked and thus, ground for eviction under Section 14 (1) (d) of DRC Act is also established. It has been further argued that the present appeal is vague and is liable to be dismissed.
12.I have heard the arguments and perused the record. My observations are as under:
13.The Delhi Rent Control Act was enacted to give protection to the tenants and is a tenant Centric Act. It has carved out the exception from the Contract Law and Transfer of Property Act and gives special protection to the tenants whose rate of rent is upto Rs. 3,500/ per month, irrespective of the tenancy contract and termination of tenancy by the landlord.
14.In the case of Sant Ram vs Janki Parshad 2000 SCC OnLine Del 202, Hon'ble High Court of Delhi observed that Section 14 of DRC Act gives protection to the tenants against eviction who cannot be evicted except on the grounds that are specified therein.
15.The provision of Section 14 of DRC Act are onerous and give limited right of the landlord to seek possession. The remedy of reclaiming the property from the tenant it limited to the ground specified therein. But, at the same time it has been emphasized that there has to be a limit to the remedy available to the tenant. The tenant thus, has to scrupulously follow the procedures especially in respect of deposit of rent, if it wants to continue to be under the protective umbrella of DRC Act.
RCT No. 28/2017Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 8 of 21 Pages
16.In Atma Ram vs Shakuntla Rani (2005) 7 SCC 211, the Apex Court observed as under:
"19. It will thus appear that this Court has consistently taken the view that in the rent control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision."
17.It is an admitted case of the parties that the appellant has been a tenant of deceased Ms. Feroza Bagum for the last 40/50 years on monthly rent of Rs. 80/ in respect of premises forming part of property No. 332/6, C9, Batla House, Jamia Nagar, Okhla, New Delhi. It is also admitted that the earlier Eviction Petition under Section 14 (1) (a) of DRC Act was allowed by the Ld. Addl. Rent Controller vide Judgment dated 22.10.1998 and benefit of Section 14 (2) of DRC Act was given.
18.For the purpose of Section 14 (1) (a) of DRC Act, the points to be considered are:
a. Whether there were arrears of rent? b. Whether there was service of Legal Notice of Demand of arrears of rent?RCT No. 28/2017
Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 9 of 21 Pages c. Whether the rent was duly deposited within two months of service of Legal Notice?
(A) ARREARS OF RENT:
19.What would amount to arrears of rent as envisaged under Clause
(a) to Section 14 has been explained in Smt. Prakash Mehra vs K. L. Malhotra AIR 1989 SC 1652, wherein it had been explained that the arrears under Section 14 (1) (a) of DRC Act are those demanded by the notice for payment of arrears of rent. The arrears due cannot be extended to rent which has fallen due after service of the notice of demand. Consequently, what has to be three consecutive defaults on the part of the appellant is the period prior to the notice of demand and it is nonpayment of this rent within two months of service of legal notice in order to deny the benefit under Section 14 (2) of DRC Act to the tenant.
20.It is not in dispute that the rent upto September, 2007 was accepted by Ms. Feroza Bagum for which rent receipt had also been issued. It is also not in dispute that there was arrears of rent since October, 2007. While the respondent had asserted that the rent was not tendered since October, 2007, but the appellant had asserted that he had been tendering the rent though the same was being refused by the landlady. Be as it may, it is not under challenge that there were arrears of rent since October, 2007. (B) SERVICE OF LEGAL NOTICE:
21.The respondent in the present petition had relied on two Legal RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 10 of 21 Pages Notices to claim the arrears of rent. The first Legal Notice dated 29.10.2007 (Ex. PW1/3) mentioned that the appellant was in arrears of rent since October, 2007, but had claimed increased rent @ Rs. 3,000/ per month w.e.f. 01.12.2007. The said Legal Notice had specified the arrears of rent, but claimed the rent @ Rs. 3,000/ per month in future and Ld. Rent Controller had rightly not considered it as a valid Legal Notice of Demand.
22.The respondent had served second Legal Notice dated 08.12.2008 (Ex. PW1/7) which is the basis of the present eviction petition. It was served upon the appellant through UPC vide postal receipts Ex. PW1/8 and Ex. PW1/9. The Registered AD Cards Ex. PW1/10 and Ex. PW1/11 send at the address of the suit property as well as the address of 21A, Jogabai Extension, Jamia Nagar, New Delhi were returned undelivered.
23.Ld. Rent Controller has rightly referred to the testimony of RW1 Sh. Viqar Husain Siddiqui, son of the appellant, who in his cross examination had admitted that the Legal Notice dated 08.12.2008 was given to his father, though he did not remember the date on which the said Legal Notice was received by his father. The Legal Notice was sent through UPC as well as Registered Post. Though, the Legal Notice through Registered Post was not delivered, but the UPC was not returned undelivered. The appellant had admitted that the address mentioned on the UPC Certificate Ex. PW1/9 was correct. Ld. Rent Controller has thus, rightly concluded that there was valid service of Legal Notice dated 08.12.2008.
RCT No. 28/2017Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 11 of 21 Pages (C) DEPOSIT OF ARREARS OF RENT WITHIN TWO MONTHS OF SERVICE OF LEGAL NOTICE:
24.The Legal Notice claiming arrears of rent @ Rs. 80/ per month since October, 2007 was duly served upon the appellant. It was mandated by law under Section 14 (1) (a) of DRC Act that the arrears of rent should have been deposited within two months of service of Legal Notice. The appellant had asserted that he had tendered the arrears of rent through money order but the same was refused/avoided to accept by the landlords. Therefore, he was compelled to deposit the arrears of rent under Section 27 of DRC Act from time to time and six Deposit of Rent Petitions under Section 27 of DRC Act, were filed by him for different periods.
25.In the case of Manmohan Chawla vs Jaswant Singh 1969 DLT 375, V. S. Deshpande, J. (as he then was) while considering the proviso to Section 14 (2) DRC Act, it was observed that Section was added by the Legislature because as it felt that there must be some limit to the remedy available to the tenant and he should not be allowed the benefit of depositing the arrears of rent and defeating the eviction proceedings adinfinitum. It was observed that the proviso was applicable to both Section 14 (2) of DRC Act, as well as, to the relevant provisions of Section 15 (1) (3) (6). The observations made herein were endorsed by the Apex Court in M. M. Chawla vs J. S. Sethi 1970 (1) SCC 14.
26.How the arrears of rent have to be deposited in response to Notice RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 12 of 21 Pages of Demand (in case of second default) was explained in Mst. Saeedan vs Shri Jawala Pershad, 1978 (1) RGR 31, wherein it was observed that the failure to pay the entire arrears of rent within two months of receipt of Notice becomes a cause of action for eviction which would not be obliterated and would continue to exist till the date of the filing of eviction petition and the delayed payment on the part of the tenant does not wipe off the cause of action and would not defeat the petition for eviction, excepting, perhaps on the grounds of waiver and estoppel. In that case, the tenant had paid the rent before the institution of proceedings under Section 14 (1)(a) of DRC Act but the benefit of Section 14 (2) of DRC Act was still not granted as the payment was made after two months of service of Legal Notice when the cause of action had already accrued.
27.Likewise, in Ashok Kumar vs Ram Gopal 22 (1982) DLT 188, Hon'ble Delhi High Court observed that the cause of action accrues and the provision of proviso to Section 14 (2) of DRC Act becomes applicable the moment there is a default committed on the part of the tenant in not making the payment pursuant to the receipt of the notice of demand. If the entire arrears of rent are not paid within two months of receipt of notice, then the tenant becomes liable for eviction.
28.Though, appellant was claiming that he had been tendering the rent regularly and has relied on various money order receipts to establish tender of rent to the landlady since October, 2007, but it RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 13 of 21 Pages is an admitted fact that there was arrears of rent since October, 2007. The appellant may have tendered the rent and the same may have been refused to be accepted by the land lady, but the responsibility of the appellant did not come to an end at this point. What is the tenant expected to do in case the landlord refuses to accept rent in compliance of Legal Notice of Demand has been explained in Atma Ram (Supra), wherein it was noted that the Act prescribes what is to be done by the tenant if landlord does not accept rent tendered by him within a specified period. He is required to deposit the rent in the court under Section 27 of the Act. In view of specific provision, it would not be open to a tenant to resort to any other procedure. If the rent is deposited elsewhere and not under Section 27 it shall not be treated as valid payment/ tender of arrears of rent and tenant shall be held in default.
29.In E. Palanisamy vs Palanisamy (2003) 1 SCC 123 while considering similar provisions under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, it was observed that where landlord refuses to accept the rent tendered by money order, the tenant is entitled to deposit rent before the Rent Controller. It was further observed that benefit conferred on the tenant can be enjoyed only by strict compliance with the statutory provisions. Equitable consideration has no place in such matters. A strict compliance with statue is necessary. The tenant cannot straight away jump to the last step i.e. deposit rent in court. The last step can only be after the earlier steps have been taken by the tenant. Similar view RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 14 of 21 Pages was taken in Kuldeep Singh vs Ganpat Lal (1996) 7 SCC 243 and M. Bhaskar vs Venkatarama Naidu (1996) 6 SCC 228.
30.The Supreme Court in the case of Sarla Goel & Others Vs. Kishan Chand (2009) 7 SCC referred to above said judgments and explained that it is the responsibility/liability of the tenant to comply with the demand notice under Section 14 (1) (a) of DRC Act and it does not end by tender or refusal. The tenant must necessarily follow the procedure under the Act of deposit of rent under Section 27 of DRC Act in case of refusal of rent by the landlord and only in case of such deposit, the eviction of the tenant cannot be effected.
31.It was further observed that considering the object of the Act and the intention of the legislature, the word "may" occurring in Section 27 of the Act must be considered as a mandatory provision and not a directory provision. The word "may" as used by the legislature connotes that the provision must be strictly followed as special protection has been given to the tenant from eviction. Such a cannon of construction is certainly warranted because otherwise, the intention of the legislature would be defeated and the class of landlords for whom the beneficial provision has been made for the recovery of possession of tenants would stand deprived of it.
32.The facts involved in Sarla Goel (Supra) were that the tenant in response to legal notice, tendered the rent of three months through RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 15 of 21 Pages money order, but landlord refused to accept the rent. It was held that the obligation to pay rent did not come to an end and the tenant should have followed the procedure strictly and deposited the rent in the court under Section 27 of the Act. Having not done so, subsequent deposit of rent in the court in compliance of Section 15 (1) would not give it a protection of Section 14 (2) and would be liable for eviction.
33.The Hon'ble High Court of Delhi in the case of Mohd. Abid Vs. Kausar Parveen C.M (M) No.1271/2013 decided on 25.11.2014 referred to the judgment of Sarla Goel (supra) and concluded that in case of refusal of rent by the landlord, the procedure to be followed is dealt under Section 27 and in case the mandatory provision of procedure as prescribed under Section 27 is not followed, then it has to be held that the tenant has committed default in payment of rent.
34.In the present case, as per the appellant/tenant after refusal of money order, he filed Deposit of Rent Petition No. 197/2009 dated 07.03.2009 for deposit of rent from October, 2007 to March, 2009, filed in the Court on 09.03.2009.
35.The appellant has claimed that the Legal Notice dated 08.12.2008 was duly served upon him on 11.12.2008 as per endorsement on the envelope Ex. PW1/10. This fact has not been challenged by the appellant. The arrears of rent should have been deposited within two months i.e. upto 10.02.2009.
RCT No. 28/2017Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 16 of 21 Pages
36.According to the appellant, he tendered the rent for the period October, 2007 to March, 2009 through money order on 07.01.2009, but was returned with the endorsement left without address on 10.01.2009. Once the rent was not accepted by the landlady, the appellant was required to deposit the rent under Section 27 of DRC Act, as has been noted above in various judgments. The petition for Deposit of Rent has been filed on 09.03.2009. Even if for the benefit of the appellant, it is accepted that he had two months time from the date of service of Legal Notice to tender the rent, which means it could have been tendered upto 10.02.2009, while rent has been deposited on 09.03.2009, which is beyond a period of 02 months from 11.12.2009.
37.No doubt, it has been held that time for deposit of rent under Section 27 of DRC Act is directory, but not when it is in compliance of Legal Notice under Section 14 (1) (a) of DRC Act, as has been held by the Hon'ble High Court of Delhi in Kewal Krishan Ahuja vs. Jagdeep Singh, CM (Main) No. 416/1994 decided on 09.11.2006. It has been held that period of two months for deposit of arrears of rent pursuant to Legal Notice of Demand under Section 14 (1) (a) of DRC Act is not directory, rather it gives a mandatory period of deposit of rent.
38.In the present case, rent has not been deposited under Section 27 of DRC Act within two months of service of Legal Notice on 11.12.2009 and cannot be considered as valid. It has to be necessarily held that there was no valid deposit of arrears of rent RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 17 of 21 Pages and the appellant had defaulted the second time in payment of arrears of rent and thus, is not entitled for benefit under Section 14 (2) of DRC Act.
39.Further, Section 26 of DRC Act provides for deposit of rent in case the rent is refused by the landlord. It states that the rent has to be deposited alongwith interest @ 15% pa for the default period. The Ld. Rent Controller has rightly observed that tender/deposit of rent should have been made alongwith interest @ 15% per month. In Legal Notice dated 08.12.2008 (Ex. PW1/7), the interest @ 15% had also been demanded. However, the rent that was deposited was Rs. 1,440/ @ Rs. 80/ per month for 18 months. The said deposit did not include the interest @ 15% for this period. Ld. Rent Controller has thus, rightly observed that there was no valid deposit of arrears of rent.
40.It would also be pertinent to note that the appellant had admittedly deposited the rent vide Deposit of Rent Petitions No. 97/2009 and No. 96/2010 respectively in the name of Ms. Firoza Begum as he was not aware about the death of Ms. Firoza Begum and had subsequently withdrawn these petitions in the year 2012 after depositing the rent amount due in these two petitions in the bank account of the respondent.
41.It was claimed that the appellant was never informed about the death of Ms. Firoza Begum and he came to know about this fact only after service of summons of Suit for Recovery vide No. 34/2010 that was filed by the respondents for recovery of arrears RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 18 of 21 Pages of rent. A reference to Legal Notice dated 08.12.2008 (Ex. PW 1/7) shows that in the opening paragraph it was clearly mentioned that the present Respondents No. 1, 2 & 3 are the sons and daughter of Late Abdul Rahman and it was mentioned that Ms. Firoza Begum their mother, was the landlady of the suit premises. Even though, it was not specifically mentioned that Ms. Firoza Begum has expired but there was a clear indication that Ms. Firoza Begum was not alive. This is so as the earlier Notice dated 29.10.2007 (Ex. PW1/3) had been sent by Ms. Firoza Begum in her own name. Appellant never questioned the said Notice, but had duly complied with the same and thereafter, deposited the rent under Section 27 of DRC Act. The Legal Notice of Demand had been sent by the present respondents and there is no explanation why they were not included as parties as respondents in the petition under Section 27 of DRC Act.
42.Even if it is accepted that appellant was not aware about the death of Ms. Firoza Begum but there was nothing that prevented him from impleading the respondents also as a party in the petition under Section 27 of DRC Act. Despite having received Legal Notice from the present respondents, deposit of rent was made in the name of Ms. Firoza Begum, who had expired in 2008. It is the obligation of the tenant to pay the rent to the landlord and he cannot claim ignorance about the death of landlady for a period of more than two years. Petition for Deposit of Rent under Section 27 of DRC Act was thus, against a dead person and deposit of rent RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 19 of 21 Pages cannot be considered as a valid deposit.
43.It is not disputed that since the order under Section 15 (1) of DRC Act dated 22.09.2017 was made, appellant has been depositing the rent in the bank account of the respondents regularly, but can such deposit under Section 15 (1) of DRC Act enure the benefit under Section 14 (2) of DRC Act to the appellant.
44.In Ishwar Dutt vs Ram Piarey, 174 Raj. L. R. 302 it was held that in case of a second default in the payment of arrears of rent, even if the tenant had deposited the rent as ordered under Section 15(1) DRC Act, he would not be entitled to the benefit of Section 15 (6) and in view of the provisions of proviso to Section 14(2) DRC Act, he would be liable to be evicted.
45.The deposit of rent regularly pursuant to orders under Section 15 (1) DRC Act would not save the appellant/tenant from eviction under Section 14 (2) DRC Act as benefit of Section 15 (1) DRC Act can be availed only once, which has already been given. It is a clear case of second default of three consecutive months and the appellant cannot be given benefit of Section 14 (2) DRC Act and are liable for eviction.
46.To conclude, the deposit of rent under Section 27 of DRC Act, pursuant to the Legal Notice of Demand served upon the appellant is not shown to be valid and in accordance with Section 27 & 28 of DRC Act as it was neither tendered nor deposited within two months of service of Legal Notice and also the interest @ 15% on due rent amount was not included. Since the appellant defaulted in RCT No. 28/2017 Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 20 of 21 Pages paying the entire arrears of rent within two months of service of Legal Notice, he is not entitled for the benefit of Section 14 (2) of DRC Act. Ld. Rent Controller has rightly concluded that appellant is liable to be evicted under Section 14 (1) (a) of DRC Act.
47.There is no infirmity and illegality in the impugned Judgment dated 17.10.2017 and the appeal is without merit. The appeal is, therefore, dismissed.
48.Trial Court Record be sent back alongwith a copy of this order.
49.Appeal file be consigned to Record Room.
Digitally signed by NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2020.06.03
KRISHNA 14:59:50 +0530
Announced in the open court on (NEENA BANSAL KRISHNA)
03rd June, 2020 District & Sessions Judge
(KSR) South East, Saket Courts,
New Delhi
RCT No. 28/2017
Tasarruf Husain (since deceased) through his LRs Vs.Khalid Rehman & Others Page 21 of 21 Pages