Yog Raj Srivastava vs Naresh Kumar
1986 Latest Caselaw 176 Del

JUDGMENT

G.C. Jain, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (for short 'the Act') is directed against the order of the Rent Control Tribunal dated January 3. 1977.

(2) The dispute is in respect of first and second floors of house No. 1270. Pahari Imli. Delhi. The appellant Yog Raj Srivastava (since deceased) was in possession of the said premises as a tenant under Smt. Pushpa Srivastava and others, predecessors-in-interest of the present respondent Naresh Kumar, as a tenant on a monthly rent of Rs. 40.00 On February 19, 1970 the landlords brought a petition for his eviction under clauses (a), (b) and (e) of the proviso to Sub-section (1) of Section 14 of 'the Act'. The grounds under clauses (b) and (e) were neither pressed before the Tribunal nor before me and therefore do not survive. So far as clause (a) is concerned the averment made was that the tenant had failed to pay the arrears of rent in spite of service of notice of demand. A suit for the recovery of rent for the period from August 1, 1963 to April 30, 1967 was pending in the civil court.

(3) The tenant resisted the petition and claimed certain adjustments. An order under Section 15(1) of 'the Act' was passed by the Additional Controller on August 31, 1970. The tenant was directed to deposit the decretal amount of Rs 1400.00 i e. the arrears of rent for the period up to April 30, 1967, subject matter of the civil suit which was by then decreed and also to deposit the arrears of rent with effect from May 1, 1967 up to date at the rate of Rs. 40.00 per month within one month of the order and also to deposit future rent month by month by the 15th of each following month. On October 21, 1970 the landlords moved an application under Section 15(7) of 'the Act' for striking out the defense of the tenant on the plea that the tenant had failed to deposit Rs. 1400.00 (the decretal amount) as directed by the Additional Controller and had thus committed a default in complying the said order. The tenant admitted the default but explained that it was because he was intimated to deposit the arrears of rent for the period May 1, 1967 onward which he duly deposited within time. He deposited the decretal amount of Rs. 1400.00 and costs in the court of the Subordinate Judge, lit Class who had passed the decree soon after he came to know of this part of ?he order.

(4) On examining the facts and circumstances of the case, learned Addl. Controller refused to strike out the defense. The default was condoned on payment of Rs. 40.00 as costs. The amount of costs awarded was accepted by the landlords.

(5) Ultimately the Additional Rent Controller passed an order for eviction, on September 21. 1973, under clauses (a), (b) and (e) of the proviso to Sub-section (1) of Section 14 of 'the Act'

(6) The tenant filed an appeal before the Rent Control Tribunal. The grounds under clauses (b) and (e) were not pressed The learned Tribunal relying on a full bench decision of this court in Delhi Cloth and General Mills (P) Ltd v. Hem Chand and others 1973 R.C R. 638 came to the conclusion that in view of the default in not depositing the decretal amount, the tenant was not entitled to the benefit of the provisions contained in Section 14(2) of the Act and consequently dismissed the appeal. Feeling aggrieved the tenant filed this appeal. He died during the pendency of the appeal and his legal representatives have been brought on record.

(7) Mr. Makbija, learned counsel for the appellant, relying on the recent decision of the Supreme Court in Ram Murti v. Bhola Nath and anor. contended that the view taken by this court in D.C.M.'s cafe (supra) was no longer a good law. The defense of the tenant was admittedly not struck out The delay was condoned on payment of costs which were accepted Under these circumstances the tenant could not be visited with the punishment of being deprived of the protection of Section 14(2) of 'the Act'. I find merit in this contention.

(8) In Ram Murti's case (supra) it was observed :- "IT would be incongruous to hold that even if the defense of the tenant is not to be struck out under Section 15(7), the tenant must still be visited with the punishment of being deprived of the protection under Section 14(2)."

(9) In the present case not only the application for striking out the defense was dismissed but even the default was specifically condoned on payment of costs which condition was duly complied. The tenant therefore cannot be denied the protection of Section 14(2) of 'the Act'.

(10) Learned counsel appearing for the landlord contended that the tenant could get the protection of the provisions contained under Section 14(2) of the Act if the default had been for the reasons enumerated in para 8 of the said decision and in no other case. The relevant portion of para 8 on which the reliance was placed by the learned counsel, reads as under:-

"IT is not inconceivable that the tenant might fail to comply with the requirements of Section 15(1) by the date line due to circumstances beyond his control. For instance, it might not be possible for the tenant to attend the court to make the deposit on the last day if it is suddenly declared a holiday or on account of a serious accident to himself or his employee, or while going to the treasury he is waylaid, or is stricken with sudden illness, or held up on account of riots or civil commotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctually making the deposit commits breach of trust and disappears, or some other circumstances intervene which make it impossible for him for reasons beyond his control to physically make the deposit by the due date. There is no reason why the refusal of the Rent Controller to strike out the defense of the tenant under Section 15(7) in such circumstances should not ensure to the benefit of the tenant for purposes of Section 14(2)."

(11) On a careful perusal of these observations. it is clear that the reasons given by the Supreme Court are not exhaustive. It is clear from. the words "or some other circumstances intervene which make it impossible for him for reasons beyond his control to physically make the deposit by the due date." In the present case the intervening circumstance for not depositing the decretal amount in time was the wrong intimation about the order under Section 15(1). The tenant was informed that the order required him to deposit the arrears of rent from May 1, 1967 onwards. How could he deposit the decretal amount when he was not informed about this part of the order ? The plea regarding wrong intimation was accepted by the learned Additional Controller. No appeal was filed against the said order. No complaint in this behalf was made even before the Tribunal. I find no justification for taking a different view in second appeal. The fact that the tenant had deposited the entire decretal amount including the amount of costs, soon after the application for striking out the defense was made, proves his bonafide. In these circumstances, in view of the Supreme Court decision, the tenant was entitled to the benefit of the provisions contained in Section 14(2) of 'the Act'.

(12) Learned counsel for the landlord pointed out that the decretal amount was not deposited in the court of the Additional Controller but was deposited in the court of the Subordinate Judge who passed the decree and therefore was not a legal deposit. This hyper-technical objection, I feel, is not sufficient to deprive the tenant from the protection under Section 14(2) of 'the Act'.

(13) For the reasons aforesaid the impugned order cannot be sustained. I consequently accept the appeal, set aside the impugned orders and instead dismiss the application for eviction. The tenant, however, would be deemed to have enjoyed the benefit of Section 14(2) of 'the Act' in this case.

(14) The parties are left to bear their own costs.