Delhi District Court
Sh. Raju Lal vs Sh. Munna Khan on 22 November, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI.
Eviction Petition No. E65/09
Sh. Raju Lal.
........... Petitioner.
Versus
Sh. Munna Khan.
........... Respondent.
ORDER
1 Vide this order I shall dispose of an application under Order 7 Rule 11 CPC moved by the respondent.
2 It is stated that the petitioner has filed the present eviction petition under Section 14 (1) (a) of DRC Act on the alleged legal notice dated 16.11.2006. However, the present petition has been filed on 20.11.2006 i.e., after 4 days of alleged notice dated 16.11.2006. Therefore, it is stated that the present petition is not maintainable as the essential ingredients of Section 14 (1) (a) of DRC are missing. Hence, it has been prayed that the present petition may be rejected Eviction Petition No. E65/09 Page 1 of 15 being not maintainable.
3 The petitioner has filed the reply to the application contending that the present application has been filed to delay the proceedings of the case and objections raised by the respondent by way of present application under Order 7 Rule 11 CPC are not applicable to the DRC Act. It is also stated that as per provisions of Section 14 (1) (a), there is no criteria prescribed for filing of eviction petition. It is also stated that in the present case, the respondent has not paid the arrears of rent within the prescribed period hence, application moved by the respondent is not maintainable and petitioner has prayed for dismissal of the same.
4 I have heard the Ld. counsel for the parties and perused the record carefully.
5 Perusal of the record reveals that the present petition has been filed under Section 14 (1) (a) of DRC Act on the ground of non payment of rent. The case of the petitioner is that the petitioner is the owner/landlord of the suit property bearing no. C11/91, Madangir, Ambedkar Nagar, New Delhi 110062. The respondent is the tenant at the monthly rent of Rs. 1500/ per month exclusive of water and electricity charges and the same was let out to the respondent on Eviction Petition No. E65/09 Page 2 of 15 01.12.2001 vide oral tenancy but the respondent is in arrears of rent since 2002 which he has not paid. The respondent filed the written statement denying the averments made in the petition. 6 Now by way of present application, the basic contention raised by the Ld. counsel for the respondent is that the present petition itself is not maintainable as the same has been filed before expiry of 2 months of service of legal demand notice dated 16.11.2006. The Ld. Counsel for the respondent has vehemently argued that the petition filed by the petitioner is premature without complying the mandatory requirement of Section 14 (1) (a) of DRC Act and hence petition is liable to be rejected.
7 The Ld. Counsel for the respondent has relied upon 'Raja Muthukone (D) by LRs Versus T. Gopalasami & Anr,' JT 2002 (3) SC 579.
8 On the other hand Ld. Counsel for the petitioner has argued that the application is not maintainable as no time limit has been prescribed in the provision under 14 (1) (a) of DRC Act for filing an eviction petition on ground of nonpayment of rent. He has further argued that the respondent did not comply with the legal demand notice before filing of the present petition. He further argued that in Eviction Petition No. E65/09 Page 3 of 15 the absence of any specific time limit, the petitioner was within its right to file the present petition.
9 The Ld. counsel for the petitioner has relied upon,
(i) Sarla Goel and Others Versus Kishan Chand (2009) 7 Supreme Court Cases 658,
(ii) Jaswant Raj Soni Versus Prakash Mal,2005 (2) RCR 397,
(iii) Ram Prakash Gupta Versus. Rajiv Kumar Gupta & Ors, 2007(2) RCR 515,
(iv) Mst. Begum Jan Vs. Mst. Mehr Nigar, 1973, Rajdhani Law Reporter 589,
(v) Panchsila Hospitality Ventures Ltd. & Anr. Vs. Praneeta Soni & Ors., 2009 (1) RCR 559,
(vi) Ram Sewak Lal Vs. Rajendra Prasad, 1982 (1) RLR 269,
(vii) Shanti Devi Nigam Vs. Madan Lal Gupta, AIR 2005 Supreme Court 1513,
(viii)Krishnan Servai Vs. Arulmighu Kaliamman Temple Vatlagundu, 1983 (1) RLR 589, (IX) B. Selvaraj Vs. Sri Kamakashi Amman Devasthannam, 1986 (1) RLR 663, Eviction Petition No. E65/09 Page 4 of 15 (X) Kanti Lal Ravji Mehta Vs. Sayarabai Chhaganlal Kering, 2003 (2) RCR 491, (XI) Rehmath Bai Vs. Sahul Hameed, 1981 (2) RLR 489, (XII) V. Dhanapal Chettiar Vs. Yesodai Ammal, AIR 1979 Supreme Court 1745.
(XIII) P.M. Punnoosc Vs. K.M. Munneruddin & Ors., AIR 2003, Supreme Court, 2993.
(XIV) S.Sundarum Pillai & Ors. Vs. V.R. Pattabhiraman & Ors., (1985) 1 Supreme Court Case, 591.
10 Before proceeding further, let us examine relevant provisions of law under Section 14 (1) (a) of DRC Act.
Section 14 Protection of Tenant against Eviction (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following ground only, namely:
(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on Eviction Petition No. E65/09 Page 5 of 15 which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882.
11. In view of arguments of the Ld. Counsel for the respondent, the material point which requires consideration is as to whether the present petition which has been filed before expiry of 2 months from the service of legal demand notice dated 16.11.2006 is maintainable or not.
12. It is an undisputed fact in the present case that the legal demand notice was served upon the respondent on 16.11.2006. It is also a matter of record that the present petition has been filed on 22.11.2006 i.e., within 5 days of issuance of legal demand notice dated 16.11.2006. As such, admittedly the present petition has been filed before expiry of 2 months from the service of legal demand notice dated 16.11.2006.
13. In view of provisions contained under Section 14 (1) (a) of DRC Act, for maintaining an eviction petition on the ground of nonpayment of rent the following ingredients are required to be fulfilled viz;
(i) Existence of relationship of landlord and tenant between the parties;
(ii) Existence of arrears of rent, legally recoverable rent from the date of notice of demand; and
(iii) Service of notice of demand in the manner as provided in section 106 Eviction Petition No. E65/09 Page 6 of 15 of the Transfer of Property Act and
(iv) Failure of tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of date of service of notice.
14. In view of above besides the fulfillment of other ingredients, the petitioner is required to serve the legal demand notice demanding the arrears of rent and if the respondent fails to pay or tender the legally recoverable arrears of rent within 2 months of service of legal demand notice then the cause of action accrues in favour of the petitioner to file the petition on the ground of non payment of rent under Section 14 (1)
(a) of DRC Act .
15. Ld. Counsel for the respondent has relied upon the authority JT 2002 (3) SC 579 in which it was held that where a landlord issues a notice to a tenant claiming arrears of rent and without waiting for expiry of two months period the eviction petition filed by the landlord would not be maintainable. However, the said authority is on the different legislation under Tamil Nadu Buildings (Lease and Rent Control) Act 1962. The provisions in the said statute is different and there is no mandatory requirement of serving a legal demand notice demanding arrears of rent as per Section 106 of TP Act as required under Section 14 Eviction Petition No. E65/09 Page 7 of 15 (1) (a) of DRC Act and as such the said authority is not directly applicable in the present case.
16. However, matter is squarely covered by the judgment of Hon'ble High Court of Delhi in case titled as Anand Prakash & Ors. Vs Gain Chand Swara And Ors. 1992, 48 (1992) DLT 270 in which it is held that "A reading of the provisions of Section 14 of the Delhi Rent Control Act, 1958 clearly goes to show that in order to take benefits of the aforesaid section, two months clear time has to be given to the tenants to pay the arrears and if the tenant fails to pay the arrears within two months, only then the landlord gets a ground to seek eviction of the tenant for nonpayment of rent."
17. In the case titled as 'Ramachandra Bhat Vs. Rao Talithaya' ILR 1986, KAR 3552 similar view was taken by the Hon'ble High court of Karnataka where the provisions of Section 21 (1)(a) of the Karnataka Rent Control Act are in parimateria with the provisions as contained in Section 14 (1) (a) of DRC Act.
18. In the aforesaid authority it was held by the Hon'ble High Court that "Cause of Action for filing the eviction petition on the ground of nonpayment of arrears of rent arises only on failure to pay the arrears of rent within two months from the date of service of notice; the eviction Eviction Petition No. E65/09 Page 8 of 15 petition filed even before the expiry of that period cannot be considered to be maintainable because no petition filed for eviction on the ground falling under Section 21 (1) ( a) of the Act can be held to be valid and maintainable, if the cause of Action for filing the same had not arisen or was not complete on the date it was filed".
19. So far the authorities relied upon by the Ld. Counsel for the petitioner is concerned, the same are not applicable in the present case.
The authority (2009) 7 Supreme Court Cases 658 relied upon by the Ld. Counsel for the petitioner is not applicable because the said case was on the ground of second default under Section 14 (1) (a) of DRC Act and it was held that the procedures for tendering the rent in the event of landlord's refusal to accept it or give receipt for the same should have been strictly followed and the plea of the tenant that he was not liable to be evicted because landlord did not accept the moneyorder was held not tenable and it was held that in order to avoid the second default the tenant should have deposited the rentals under Section 27 of DRC Act and the words 'may' occurring in Section 27 must be construed as mandatory.
The authority 2005 (2) RCR 397 is also not applicable as in the said case it was held that there is no legal requirement for issuance of a Eviction Petition No. E65/09 Page 9 of 15 notice under Section 106 of the Transfer of Property Act before institution of an eviction petition. However, the said authority deals with the provisions as contained in Rajasthan Premises (Control of Rent and Eviction) Act, 1950 where there is no legal requirement of issuance of notice under Section 106 of TPA. But under Section 14 (1) (a) of DRC Act the issuance of demand notice as provided in the manner under Section 106 of TP Act is mandatory requirement before filing an eviction petition.
The authority 2007(2) RCR 515 is again not applicable as in the said case, the facts were different as the rejection of plaint on the ground of limitation was sought after 15 years of institution of suit and further, there was not even a suggestion to the plaintiff/appellant to the effect that the suit filed by him was barred by limitation.
The authority 1973, RLR 589 is again not applicable in the controversy involved in the present case. In the said case, it was held that if the tenant does not pay rent demanded in notice under Section 14 (1)
(a) within the statutory period but pays the same after the expiry of the statutory period then the cause of action which accrued on nonpayment does not get wiped out by late payment & eviction application is maintainable in such a case.
Eviction Petition No. E65/09 Page 10 of 15
The authority 2009(1) RCR 559 is also not applicable because in the said authority it was held that disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. But in the present application under order 7 Rule 11 CPC , there is no disputed question of facts but the question involved is maintainability of the present petition which has been filed before expiry of service of two months of legal demand notice.
The authority 1982 (1)RLR) 269 is again not applicable in the present case as in the said case the issue was different as the tenant has not disputed the service of notice terminating tenancy in his written statement and nonassertion in the written statement that notice was not received was held to tantamount to admission of tenant and hence, notice was held valid. But facts in the present case are entirely different.
The authority AIR 2005 Supreme Court 1513 is again not applicable as the said case pertains to the provisions contained under Section 20 (2) (a) Uttar Pradesh Urban Buildings (Regulation of letting, Rent and Eviction) Act (13 of 1972) and in the said case, it was held that as per the aforesaid provisions notice of demand under Section 106 of Transfer of Property Act, 1882 is not required to be sent for seeking eviction. However, as discussed above the present petition which has Eviction Petition No. E65/09 Page 11 of 15 been filed under Section 14 (1) (a) of DRC Act, the service of notice of demand before filing an eviction petition is mandatory requirement.
The authority 1983, RLR, 589 is not applicable as the facts were entirely different.
The Authority 1986 (1) RLR 663 is again not applicable as in the said case no objection about the legality of notice was raised either in the written statement or during trial which lasted for about four years and hence, it was held that it amounts to waiver of plea regarding notice. But the question involved in the present case is entirely different. Hence, this authority is not applicable.
The Authority 1989 (2) RLR 569 and the Authority 2003 (2) RLR 491 are also not applicable as the same are in different context.
Similarly authority, 488 RLR 1981 (2) is also not applicable. As the said authority deals with the provisions contained in Kerala Buildings (Lease & Rent Control) Act, 1965 and the provisions of the said legislation are not in parimateria with the provisions under Section 14 (1) (a) of DRC Act. For similar reason the authorities AIR 1979 Supreme Court 1745, 352 RCR 1979 (2) & AIR 2003 Supreme Court 2993 are not applicable.
20. In view of aforesaid discussions I have no hesitation to say that the Eviction Petition No. E65/09 Page 12 of 15 present petition which has been filed before expiry of two months from the service of legal demand notice is premature and no cause of action has arisen in favour of the petitioner at the time of filing of the eviction petition and same has been filed without fulfilling the statutory requirements and hence, the present petition is without any cause of action and therefore not maintainable. Hence, petition is hereby rejected.
21. It is also pertinent to mention here that Ld. ARCT vide order dated 06.04.2011 has directed to conduct an inquiry as to whether the copy of the application under Section 15 (7) of DRC Act was supplied to the respondent's counsel Sh. M.S. Khan. It is necessary to give some brief background and circumstances in which the order dated 06.04.2011 was passed by the Ld. ARCT. The petitioner has filed the application under Section 15 (7) of DRC Act for noncompliance of orders passed under Section 15 (1) and seeking striking off the defence of the respondent. The Ld. Predecessor had allowed the application and struck off the defence of the respondent. The respondent challenged the said order contending that the copy of the application under Section 15 (7) of DRC Act was not supplied to him and as a result the tenant has prejudiced. The counsel for the petitioner relied upon a copy of the application under Section 15 (7) which bears the signature of counsel Sh. M.S. Khan of the Eviction Petition No. E65/09 Page 13 of 15 respondent bearing date 11.07.2008 to contend that the counsel Sh. M.S. Khan received the copy and also acknowledged the same. However, Sh. M.S. Khan counsel for the respondent denied his signature and also stated that he had not received the said copy and under these circumstances the Ld. Appellate Court directed that an inquiry should be initiated as to whether the copy of application under Section 15 (7) of DRC Act was actually delivered or not to Sh. M. S. Khan, advocate by giving opportunities to both the parties to adduce evidence and in case, it is found by ARC that the copy was not supplied, then an opportunity shall be given to the respondent to file the reply of the application and thereafter application under Section 15 (7) of DRC Act to be decided afresh.
22. In view of my aforesaid findings that present petition is not maintainable and as a consequence, the petition has been rejected. Therefore, in my considered opinion, no fruitful purpose would be served in proceeding further with the aforesaid inquiry since the application under Section 15 (7) of DRC Act has emanated from the main petition and when the main petition itself does not survive it would be a futile exercise in deciding the application under Section 15 (7) of DRC Act because in the absence of main eviction petition the decision Eviction Petition No. E65/09 Page 14 of 15 on the application under Section 15 (7) of DRC Act being an interlocutory application will have no effect.
23. Hence, in my considered opinion, there is no purpose in proceeding further with the inquiry when the petition itself has been rejected being without any cause of action and as a result nothing remains to be decided in the present case. Hence, file be consigned to record room.
Announced in the open court (Balwant Rai Bansal)
on 22nd November, 2011 ARC (South), New Delhi
Eviction Petition No. E65/09 Page 15 of 15