Delhi High Court
Kanwal Raj Sadana vs D.D. Saigal on 21 April, 1995
Equivalent citations: 59(1995)DLT443, 1995(33)DRJ344, 1995RLR406, 1995 A I H C 5325, (1995) 33 DRJ 344, (1995) 2 RENTLR 459, (1995) 2 RENCJ 556, (1996) 1 RENCR 84, (1995) 58 DLT 814
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT
Arun Kumar. J.
(1) This is a second appeal preferred by the tenant against an order of eviction dated 23rd January, 1992 passed against him by the Additional Rent Controller under clause (a) to the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the 'Act') as the said eviction order was upheld by the Rent Control Tribunal vide its judgment dated 26th September, 1992 passed in an appeal preferred by the tenant.
(2) Briefly the facts are that the appellant herein is a tenant under the respondent on a monthly rent of Rs.700.00 with respect to premises No.WH-40 Phase-I, Mayapuri Industrial Area, New Delhi. The premises were let out on 17th April, 1978. The rent of Rs.700.00 per month was exclusive of electricity charges which were payable by the tenant separately. The tenancy premises is a basement measuring 666 square feet covered area. The case of the landlord in the eviction petition was that the tenant was irregular in payment of rent and had failed to pay rent from 1st July, 1980 to 31st July, 1981 amounting to Rs.9100.00 inspite of notice of demand dated 29th May, 1981 sent to the tenant through registered A.D. post as well as under postal certificate. The eviction petition was filed in August, 1981.
(3) The tenant contested the eviction petition on various grounds. He denied service of notice of demand. The case of the tenant was that he never refused to pay rent. It was further pleaded by the tenant that the landlord had disconnected electricity of the premises in dispute with effect from 20th September, 1980 resulting in huge loss of business of manufacturing which the tenant was carrying on in the premises. The tenant, therefore, claimed a right to recover damages from the landlord which he allegedly suffered on account of disconnection of electricity by the landlord. He also pleaded right of suspension of rent on account of the act of the landlord in disconnecting his electricity supply. The tenant also pleaded that a sum of Rs.3000.00 was laying as security deposit with the landlord for which he was entitled for adjustment.
(4) An order under Section 15(1) of the Act was passed by the then Additional Rent Controller on 4th January, 1984 directing the tenant to deposit the arrears of rent with effect from 1st July, 1980 to 19th September, 1980 @ Rs.700.00 per month. Thus the Additional Rent Controller accepted the plea of the tenant regarding suspension of rent w.e.f. 20th September, 1980. The landlord filed an appeal against the said order of the Additional Rent Controller. The appeal succeeded and the Tribunal vide its order dated 16th March, 1984 directed the tenant to deposit arrears of rent @ Rs.700.00 per month w.e.f. 1st July, 1980 till date within one month and also directed the tenant to pay or deposit future rent month by month at the said rate by the 15th of each succeeding month. The appeal against the said order of Tribunal was dismissed in liming by the High Court on 25th July, 1984. The tenant went to the Supreme Court by way of a Special Leave Petition. The Special Leave Petition was dismissed on 4th September, 1984. However, the tenant was allowed four months' time to pay the amount due. The period of four months allowed by the Supreme Court expired on 3rd January, 1985 but the deposit was made by the tenant on 15th January, 1985. The tenant again approached the Supreme Court for condensation of delay which was allowed vide order dated 19th February, 1985.
(5) On 9th January, 1985 the landlord had moved an application under Section 15(7) of the Act stating that the tenant had failed to comply with the order under Section 15(1) of the Act and therefore his defense be struck off. By his order dated 20th February, 1989 the then Additional Rent Controller allowed the application of the landlord under Section 15(7) of the Act and ordered the defense of the tenant to be struck off. The tenant appealed against the said order to the Tribunal. The appeal of the tenant was dismissed by the Tribunal vide its order dated 19th November, 1990. There was no further challenge to the order under Section 15(7) of the Act.
(6) Since the defense of the tenant had been struck off the landlord only examined himself as AW-I. His evidence was mainly confined to the question of service of notice of demand of arrears of rent as required under clause (a) to proviso to sub-section (1) of 14 of the Act. The Additional Rent Controller passed the eviction order on 23rd January, 1992 against the tenant on account of non-payment of rent under Section 14(1)(a) of the Act. It was further ordered that since the tenant had failed to comply with the order under Section 15(1) of the Act, he was not entitled to any benefit under Section 14(2) of the Act. The tenant was directed to vacate the tenancy premises described in site plan Exhibit A/1. The tenant filed an appeal against the said order of the Additional Rent Controller which was dismissed by the Tribunal by its impugned judgment dated 26th September, 1992. Hence the present second appeal by the tenant.
(7) The learned counsel for the appellant has raised the following contentions in support of the case of the appellant:- 1. The landlord had failed to establish service of notice of demand of arrears of rent on the tenant which was a condition precedent for a petition under Section 14(1)(a) of the Act. Therefore, the eviction petition was liable to be dismissed as not maintainable on this ground alone. 2. All arrears of rent stood deposited by the tenant. Therefore, no order under Section 15(7) of the Act should have been passed. The Court should have a liberal approach in this matter and delays of short intervals on the part of the tenant should be condoned. 3. The tenant's application for condensation of delay in depositing rent should have been separately disposed of by the authorities. 4. The tenant was entitled to benefit under Section 14(2) of the Act and therefore no eviction order could have been passed against him. So far as the question of service of notice of demand is concerned the landlord appeared as AW-1 and deposed that before filing the eviction petition he had issued a notice of demand dated 29th May, 1981. A carbon copy of the notice was proved as A-2. The notice was sent through registered A.D. post as well as under postal certificate to three addresses of the tenant. The three addresses were - the tenancy premises, the premises where the tenant was admittedly carrying on business and the residential address of the tenant. The three envelopes containing the notice which were sent through registered A.D. post returned back to the sender and have been placed on record. The postal receipts regarding sending the notice through registered post at the three addresses are exhibits A-4 to A-6. Exhibits A-7 to A-9 are the returned envelopes containing the notices sent through registered post. The U.P.C. certificate regarding sending the notice at the aforesaid three addresses is exhibit A-3. The notices sent under postal certificate were not received back. It is not disputed by the tenant that all the three addresses given on these registered envelopes as well as on the U.P.C. certificate are correct. The landlord was cross-examined on behalf of the tenant. He denied the suggestion that the tenant had gone abroad and, therefore, he did not receive the notice. The notices sent through registered post contained an endorsement of refusal. The suggestion given to the landlord that the tenant did not refuse to accept the notice was denied. The registered cover sent to the residential address of the tenant contained an endorsement "avoids to take delivery". It is not disputed that the tenant was running his business on the address A-99, Phase Ii C-Block, Mayapuri when the notices were sent at that address. The plea of the tenant that he was out of India was disbelieved by the authorities below for want of material on record. The tenant could have placed on record documentary proof of his alleged visit abroad. On these facts both the authorities below found that the notice of demand had been duly served on the tenant. Even though the envelopes sent through registered post were returned unserved, the notice sent under postal certificate was never returned and must have been received by the tenant. The courts below also raised presumption under Section 114 of Evidence Act and Section 27 of the General Clauses Act against the tenant in this behalf. The finding of the authorities below on the question of service of notice of demand is essentially a finding of fact. I see no good reason to interfere with the said finding. The learned counsel for the appellant cited Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral And Another, in support of her contention that Upc could not be a foolproof method of serving a party in the facts of the present case I am unable to agree with the contention of the learned counsel for the appellant that doubts should be raised about notice sent under postal certificate and therefore the said mode of service of notice should not be accepted. When the landlord has taken care to send notice through registered post t o all available addresses of the tenant and has also adopted the other mode of service , is, uer postal certificate, again sending the same to all the available addresses of the tenant, I am unable to see what else the landlord could do and in such a situation I am also unable to persuade myself to doubt the service of notice under postal certificate. I am fully in agreement with the finding of the authorities below that the notice of demand was duly served on the appellant in this case.
(8) On the question of order under Section 15(7) of the Act, first it is to be noted that the tenant had challenged the order of the Controller before the Tribunal and his appeal failed. He did not pursue the matter any further. Therefore, the order became final. Inspite of this considering the question independently I am unable to find any fault with the order under Section 15(7) of the Act. No doubt the present trend of judicial opinion on the point is in favor of condensation of delay and the order under Section 15(7) of the Act not being passed unless there is contumacious default on the part of the tenant. The facts of the present case, however, show that the tenant has been through out irregular in payment of rent. Without going into the past history it may be noted that before the Supreme Court the tenant got four months' time to pay the entire arrears of rent and the order shows that the tenant undertook before the Supreme Court not to ask for further time. Still the deposit was made on 15th January, 1985, that is, after expiry of the period of four months and the Supreme Court was again approached for condensation of delay which was allowed on 19th February, 1985 but that is not the end of the matter. The respondent-landlord has placed on record schedules showing defaults on the part of the tenant in paying arrears of rent even after 19th February, 1985 that is the date when the Supreme Court had condoned the defaults on the part of the tenant occurring till then. A sum of Rs.682.26p. remained in arrears out of the rent payable for the period 1st July, 1980 to 31st December, 1984. The said amount was deposited by the tenant only in July, 1994, as per a copy of challan placed on record by the landlord. This deposit was made after the landlord had moved this Court pointing out non-compliance of the stay order passed by this Court at the time of admission of the appeal. In the said application of the landlord it has also been pointed out that rent for May, 1986, May 1987, July 1990 and February 1991 remained in arrears. The said application was filed in October 1993. The deposit of the arrears mentioned therein was made by the tenant in July 1994 vide copy of the challan placed on record. This Court had while admitting the present appeal passed an order on 8th January, 1993 making it a condition of the stay of dispossession that the appellant deposits entire arrears of rent, if any, and up to date rent within one month and continue to deposit month to month rent on 15th of every succeeding month till further orders. The landlord complained that even the said order of this Court had not been complied with and therefore stay order was liable to be vacated. It is thereafter that the tenant took steps to deposit the arrears of rent. Apart from this the schedule containing various defaults in payment of rent compiled by the landlord and filed in this appeal shows that right from the beginning of the year 1985 till 1992, every year there are defaults in payment of rent on the part of the tenant. The defaults sometimes go up to 551 days, 489 days, 340 days, 157 day, 61 days, 58 days, 57 days, 33 days, 31 days, 26 days, etc. During the course of hearing of this appeal the learned counsel for the appellant could not specifically deny these delays on the part of the tenant in depositing arrears of rent. She only made general submissions that there should be a liberal approach and short periods of delay should be condoned by the Court. The facts of this case do not show that the tenant deserves a liberal approach nor they justify condensation of delay. The conduct of the tenant is contumacious. The conclusion is irresistible that the defaults are willful and cannot be overlooked. Therefore, the authorities below were fully justified in striking out the defense of the tenant under Section 15(7) of the Act.
(9) The learned counsel for the appellant has cited Mohan Laxman Hede Vs. Noormohamed Adam Shaikh, 1988 Sc 1111; Kanwar Kumar Seth Vs. Mulkh Raj Malhotra, 1992 (46) Dlt 122 and Ram Swaroop Kathuria Vs. Nagpal Optical Co., 1993 (50) Dlt 387 in support of her case. The principle of law stated in these judgments to the effect that the Court should not insist on mathematical precision in compliance with order under Section 15(1) of the Act and is beyond dispute. The effect of the judgment has to be seen in relation to facts of the case in hand. The facts of the present case as already noticed are so hopelessly loaded against appellant-tenant that even a liberal approach does not justify any indulgence being granted to the appellant in this behalf. Therefore, I need not discuss these judgments in any detail.
(10) In the background of the aforesaid facts I am unable to persuade myself to hold that separate order ought to have been passed by the courts below on the application of the tenant for condensation of delay in depositing rent. Passing of an order under Section 15(7) itself shows that the Court is of the view that the tenant's conduct in the matter of deposit of rent and compliance of order under Section 15(1) of the Act is willful and contumacious. Even if no separate order has been passed by the courts below on the application of the tenant for condensation of delay in depositing rent, no injustice can be said to have been caused in the facts of the present case.
(11) Lastly, the learned counsel for the appellant submitted that in any event benefit of Section 14(2) of the Act should have been allowed to the tenant and therefore an eviction order should not have been passed in the present petition. According to the learned counsel, in view of proviso to Section 14(2), only in a subsequent petition on the ground of non-payment of rent, the tenant could have been denied the benefit of Section 14(2). The present eviction petition being the first petition, the tenant was entitled to benefit under Section 14(2) of the Act in any case. In support of this submission the learned counsel has relied on the judgment of the Supreme Court in Ram Murti Vs. Bhola Nath . According to the learned counsel the said judgment lays down the aforesaid proposition of law and therefore the Additional Rent Controller as well as the Tribunal failed to follow the law, inasmuch as, benefit of Section 14(2) of the Act was denied to the tenant. In this connection first we have to notice the relevant statutory provisions in Section 14(2) of the Act which is as under: "NO order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1), if the tenant makes payment or deposit as required by Section 15: Provided that no tenant shall be entitled to the benefit under this sub- section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months."
(12) The material words in the aforesaid provisions are "if the tenant makes payment or deposit as required by Section 15". The stage for granting benefit under Section 14(2) of the Act comes only when the tenant complies with the order under Section 15(1) of the Act. In the present case as already noticed the tenant had failed to comply with the order under Section 15 of the Act which led to passing of an order striking out his defense under Section 15(7). Therefore, on a plain reading of the aforesaid provision contained in Section 14(2) of the Act the tenant in the present case was not entitled to the benefit under the said provision. Coming to the judgment in Ram Murti's case it is to be noticed that the Supreme Court held that the Rent Controller has discretion under Section 15(7) not to strike out the defense of a tenant. Likewise it was held that the Rent Controller has the power to extend the time for payment of future rents under Section 15(1) of the Act where the failure of the tenant to make such payment or deposit was due to circumstances beyond its control. In the present case the Rent Controller passed an order under Section 15(7) striking out the defense of the tenant. The delay in deposit of rent was never condoned. The result is that the order under Section 15(1) remained uncomplied. The Supreme Court has referred to the power of the Controller in condoning delay in deposit or extending time to make deposit. That does not mean that the Controller must extend time to deposit arrears of rent or future rent in every case. Existence of power to do something does not mean that the power must be exercised in favor of a party in every case. In a given case, like the one in hand, the Controller may not exercise the power in favor of the tenant. The judgment does not say that even when there is non-compliance of an order under Section 15 of the Act, the benefit under Section 14(2) of the Act must be given to the tenant. Therefore, Ram Murti's case is of no assistance to the appellant.
(13) The result is that the appeal fails and the same is dismissed with costs. The respondent- landlord has appeared in person still I am of the view that costs be awarded in his favor. Costs are quantified at Rs.3000.00 .