Manohar Lal vs R.B. Jai Chand Luthra
1971 Latest Caselaw 161 Del

JUDGMENT

P.N. Khanna, J.

(1) This second appeal by the tenant raises the question whether on the facts and in the circumstances of his case, he can be said to have obtained the benefit of sub-section (2) of section 14 of the Delhi Rent Control Act, 1958, herein called 'the Act' in the earlier eviction proceedings against him.

(2) The premises in dispute which belong to respondent-landlord consist of a garage in 131 Golf Links. New >elhi. The appellant, who is in occupation there of as a tenant under the respondent was a defaulter in payment of rent, which fell into arrears for the period from January 1, 1962 to November 30, 1962. After serving a notice af demand the first eviction petition was filed by the respondent against the appellant under proviso (a) to section 14 {\) of the Act. At the first hearing, the parties counsel were present before the Controller. The appellant paid the entire arrears of rent to the respondent, whose counsel made the following statement:

"MY client-petitioner has received under section 15 of the Rent Control Act a sum of 671.00asreut from 1st January, 1962 to 30th November, 1962 and Rs 213.00as damages up to 30th June; 1963 to be paid to the L. and D. Office. We have given credit of Rs. 26-.00 towards stones purchased. We hive received Rs. 619.00 in all. This application may be filed, On this Controller passed an order by which the eviction petition was directed to be dismissed as per the statement of the petitioner's con- sel."

(3) The rent again fell into arrears and the respondent on February 3, 1964 filed the second eviction petition. order clause (a) of the proviso to section 14{1) of the Act ior recovery of posse son of the premises on the ground that the appellant was a habitual defaulter and had failed pay the rent from 1-8-1903 to 3-'-11 -1963 in spite of a notice to demand having been served on him on November 25, 1963. It was stated in the petition that the appellant had already obtained once the benefit of sub-section (2) of section 14 of the Act in respect of the premises in disputt and that he again made default in payment of rent of those premises for three consecutive months The appellant denied that this was a case of second default. When the respondent applied to the Kent Controller for an order under section 15(1) for direction to the appellant for payment of arrears of rent, the same was declined on the ground that this was the case of second default, and order under section 15 could not be passed The.Additional Controller however, while passing final order, observed th?t no order under section 15 had been made in the earlier eviction proceedings. The appellant-tenant, therefore, could not be said to have enjoyed the benefit of section (2) of section 14 to the Act. He further observed that as no order under section 15(1) had been made in the eviction petition before him either, the appellant would not be liable to eviction for default. the eviction petition was accorangly, rejected.

(4) In appeal the learned Rent Control Tribunal was of the view that the tenant had been given the benefit of sections 14(2) and 15 of the act in the earlier ejectment proceedings it, therefore, set aside the order of the Additional Controller. It noticed that although the tenant had denied the service on him of a notice of demand as required by proviso a) to section 14(1) of the Act. the Additional. Controller had not given any finding on this point. It, therefor", remandedd; the case, directing that the Additional Controller should take into consideration the evidence led by' the parties on this point and decide whether a of demand was duly served on -the tenant before the filing of the present ejectment application ; and whether at the time of the service of that notice of demand, if proved to have been served, the tenant was again in arrears with respect to the payment of rent. it is against the finding of the Tribunal to the effct, the the tenant has enjoyed the benefit of section 14(2) of the Act in the earlier ejectment proceedings, that the tenant has come up in second appeal to this Court.

(5) It has been held in Smt Sumitra Rani v. M\s Bnnet Coleman and Co Ltd that :

"THE respondent by filing application for eviction, on the first occasion had invoked the proviso of proviso (a) to sub-section (i) of section 14 of the Act. An order lot eviction could have been made after the tenant's :defers had been struck cut on his failure to pay the arrears of rent if ordered to do so under section 1^. The benefit of avoiding the eviction could be enjoyed by the tenant by making payment of all arrears as crdtred.Such an Order for eviction was made in this case but; the appellants obtained one months time for making payment of arrears of rent and enjoyed the benefit of avoiding eviction by making the payment in the time so obtained. while enjoying this benent, the appellant tenants -themselves avoided the strict procedural requirement of section 15. The tenants in effect avoided another "in- convenient appearance in court, which would have been necessary it one month's time had been given to them for payment in tern.s of section 15(1) This was. thus, a substantial compliance with the releevant provision of the Act ; and the depart 're from the strict idles to section 15, was made only to suit the appellants conveni-erce. The benefit enjoyed by the tenants, in the shap of protection from section, cannot be said to be insufficient for the purposes of the proviso to section 14(2) merely because the tenants have obtain- ed a further benefit of avoiding an extra inconvenient court attendence. the earlier proceedings for eviction like- the present one were within the framework of the Act. And if the appellants obtained the benefit of avoiding ev.ction, that was a substantial compliance with section 14(2) to the Act, Having obtained that benefit once, the appellints were not entitled to the benefit of that section again after committing a second default (in this case a third default) in payment of rent for three consecutive months.

(6) In the present case the first eviction petition, as well as the second eviction petition were within the frame-work of the Act. .In the first eviction proceedings it was alleged in the eviction petition, a copy of which is Exhibit A 3 that the tenant had not cleared the arrears of rent inspite of a notice to demand, served on him as contemplated by section 14(1)(a) of the Act There was no denial of this- fat. On the other hand. the tenant appearing before the Controller tendered the entire arrears of rent. It has been urged that no formal order under section 15 had been passed in the earlier procedings. Bat an order under section I") would hove allowed the tenant to payment with in one month. The dismissal to eviction petition, then, would have been delayed. The tenant, instead of waiting for such dismissal of eviction application secured the dismiss- al then and there, by paying the rent forthwith this does not mean that this ceased to he a benefit under section 14(2).

(7) The final order of the Controller had dismissed the first eviction petition ''as per the statement of the petitioner's counsel." From a perusal of the statement of the counsel as reproduced above, it is obvious that the landlord received arrear of rent as if * 'under section 15 of the Act." This statement was made in the presence of the tenant and his counsel. If,therefore, a formal order under -ection 15 had not been specifically passed by the 'Controller, the want of which was to be regarded ded by the parties, as material, the tenant or his counsel would have objected to the respondents counsels statement that the amount was being accept- ed under section 15. In case the Controller, adopting this statement of the counsel, as part of his order, dismissed the eviction petition, as per that statement compliance with section 15was thus regarded as having been made, while dismissing the said application, it cannot now be said that the tenant had not made payment or deposit as required by section 15. Subjection (2) of section 14 of the Act does not in terms speak of a formal order under section I"). It only mention payment .s required by section 15 The payment on the earlier occasion by the tenant-appellant said to be under section 15 must be taken to been substantial compliance with the requirement of that section. In fact the tenant obtained the benefit of the dismissal of the first ejectment petition by doing what section 15, in effect, required him io do in order to exhaust the ground of non-payment of rent., on which the petition rested. In the second eviction petition, out of which the present appeal has arisen older under section 15 was rot passed as it was stated to be accuse of second default. The said order was allowed to be regarded as final. It cannot, therefore, be said that present is not a case of second default, as contemplated by the proviso to section 14(2) of the Act.

(8) The scheme of the Act shows that it is intended to afford protection to honest tenants, who are prepared to abide by the terms of their tenancy. The eviction petition against them is liable to be dismissed after it has been filed, if they pay the entire arrears of rent. But they render themselves disentitled to this protection by virtue of the proviso to section 14(2)of the Act, if they fail to pay rent when due for the second time after being duly served with a notice of demand. By their own preststence in a second default they force the landlord to file the eviction petition a second time; and therefore, forego the benefits which section 14 is intended to provide.

(9) The Tribunal,inviewof the aforesaid, was right in holding that the tenant had been given the benefit of section 14(2) of the Act in the earlier ejectment proceedings. I do not find any ment in this appeal, which is dismissed, there shall, however, be no order as to costs.