Saeedan vs Jwala Parshad
1977 Latest Caselaw 47 Del

JUDGMENT

B.C. Misra, J.

(1) This second appeal under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as the Act) has been filed by the tenant and is directed against the appellate order of the Rent Control Tribunal, dated 6th August, by which it has affirmed the order of the Additional Controller dated 20th January, 1976 finally ordering eviction of the appellant on the ground of non-payment of rent. The appellant is a tenant of the respondent in respect of the premises situated in Kucha Chelan, Daryaganj Delhi, on a rent of Rs. 4.50 per month. The respondent instituted the petition for eviction on the ground of non-payment of rent, and bona fide personal need being specified in clauses (a) and (e) of the proviso to sub-section (1) of section 14 of the Act. The ground of bona fide personal necessity has been repelled by the trial Controller and has not been pressed before me. We are, therefore, concerned with the eviction on the ground of non-payment of rent.

(2) It is material to state at this stage that previously the predecessor-in interest of the respondents instituted a petition for eviction on the ground, inter alia, of non-payment of rent in which an order under section 15(1) of the Act was passed on 30th August, 1963. The appellant tenant complied with the order and a final order was passed on 2nd December, 1965 (Vide Ex. A-11) and the petition on the ground of non-payment of rent was dismissed since the order had been complie4 with, but this constituted the first benefit against eviction within the meaning of section 14(2) of the Act. The other grounds of eviction that had been urged had failed.

(3) Later on the property came into the hands of the respondents and on 24th March, 1966 the respondents served a notice of demand (Ex. 42) claiming, rent for the period from 23rd December, 1965 to 22nd March, 1966. The notice required the appellant to pay arrears of rent within two months of the receipt of the notice failing which the petition for eviction was likely to be instituted against the appellant. It is the common ground that the appellant tenant did not comply with the notice.

(4) The respondent landlord in order to file a petition for eviction then applied before the Competent Authority (Slums) under the Slums Area (Improvement & Clearance) Act for permission to institute a petition for eviction. The application was made in 1970 and the permission was granted by order dated 26th May, 1971 (Ex. A-12). It is during the pendency of the proceedings before the Competent Authority (Slums) that the appellant paid Rs. 100.00 on 14th December, 1970 and Rs. 200.00 on 11th May, 1971. This accounts for the rent for the period from 23rd December, 1965 to 31st July, 1971. The amount was, however, accepted by the respondent under protest.

(5) Armed with the permission, the respondent landlord instituted a petition on 29th May, 1971 for eviction of the appellant, which has given rise to the present appeal. As mentioned above, eviction was claimed on the ground of non-payment of rent as well as bona fide personal necessity. The late mentioned ground however, failed. The trial Controller by order dated 22nd November, 1971 during the pendency of proceedings declined to pass an order under section 15(l) of the Acton the ground that the rent had been paid up to 31st July, 1971 and as such no amount was due as arrears of rent at the time of the institution of the petition. He finally by order dated 20th January, 1976 ordered eviction of the petitioner on the ground of non-payment of rent being clause (a) of the relevant proviso, since this was a second default which in view of the provisions of law could not be condoned. Feeling aggrieved, the appellant filed a first appeal before the Rent Control Tribunal which has dismissed the same by a well written judgment.

(6) Mr. Ahmed, counsel appearing to support the second appeal has contended that the cause of action occurring in clause (a) of the proviso to sub-section (1) of section 14 of the Act must subsist till the date of the instititution of the eviction petition and since the arrears of rent, although not paid within two months of the notice, had been paid subsequently, there were no arrears on the date of of the petition and so the eviction could not be ordered.

(7) In my opinion, the matter is concluded by authorities and there is no substance in the contention of the counsel for the appellant. Section 14 of the Act prohibits the eviction of a tenant notwithstanding anything to the contrary in any other law or contract, but it allows eviction on the occurrence of any one or more of the grounds specified in the proviso. Clause (a) of the proviso reads as follows : "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 which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882)." The ground of eviction is, therefore, available to the landlord if a tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable within two months of the service of the notice. The duty of the tenant to pay rent regularly is laid down by section 26 of the Act and if for any reason the landlord does not accept it the tenant is enabled to deposit it with the Controller under section 27 of the Act. The tenant cannot have any possible excuse for not paying the rent in accordance with the terms of the contract or the provisions of law and at the latest on receipt of notice of demand. The cause of action for eviction is, therefore, complete as soon as the ground mentioned in clause (a) has occurred. The Supreme Court in Gajanan Dattatreya v. Sherbanu Hosang Patel, 1976 R. C. R. 33, while construing the provision similar to clause (b) of the present Act held that as soon as the tenant has infringed the provision of law he has forfeited the protection of the Rent Act and the landlord is entitled to evict him and it is no answer on the part of the tenant to give to the landlord rent & say that he has since undone the mischief by the date of the suit. The words 'has sublet' occurring in clause (b) of the present Act which are similar to the provisions of law construed by the Supreme Court also occur in clause (a). The same rule of construction will, therefore, apply.

(8) The same view has been taken by this court by a learned single Judge in Mst. Begum Jan v. Mst. Mehr Nigar, 1973 R. C. R. 557. It is supported by a Division Bench authority of this Court Buttoo Mal v. Rameshwar Nath, 1970 R. C. J. 635. Avadh Behari, J. in Gian Singh v. Tarlok Singh, 1975 R. L. R. 340, has taken the same view. I am, therefore, unable to accept the submission of Mr. Ahmed, that the grounds of eviction must in all cases subsist till the date of the eviction petition.

(9) I also wish to point out that in Mangilal v. Suganchand, , and Mrs. Manor ama v. Mrs. Dhanlaxmi, , the rule of law has been laid down that the cause of action for eviction is complete as soon as soon as the tenant fails to pay or tender the arrears of rent within the prescribed period from the date of the receipt of the notice. The cause of action for the respondent, therefore, consists in the fact that the tenant has failed to pay the rent within two months of the receipt of the notice and this cause of action as such would not be obliterated and continues to exist till the date of the petition for eviction and the delayed payment on the part of the tenant does not wipe off the cause of action and does not defeat the petition for eviction, excepting, perhaps on the grounds of waiver and estoppel, which are different and do not arise in the instant case. Section 14(2) of the Act further makes it clear that a locus paenitentiae is provided to the tenant specially in one case if he fails to pay rent in accordance with section 26 and then again fails to pay in compliance with the notice of demand mentioned in clause (a); then if he pays it in accordance with the order of the Controller passed under section 15(1). Krishna Devi Vs. Parmeshwari Devi of the Act he can escape eviction on this ground, but should he commit default again for the second time, then the law declines to help him. I have, therefore, no doubt that the order of the Rent Control Tribunal was legally correct and does not call for any interference. There is no merit in the appeal and the same is dismissed with no order as to costs. Time is, however, given to the appellant to vacate the premises and so the order will not be executed till 16th May, 1977.