Chhanga Ram vs Prabha Rani
1988 Latest Caselaw 214 Del

JUDGMENT

P.K. Bahri, J.

(1) The tenant had filed this appeal under Section 39 of the Delhi Rent Control Act (hereinafter referred to as 'the Act') against the judgment dated July 5, 1980. of Shri V.S. Aggarwal, Rent Control Tribunal, Delhi, by which he allowed the appeal of the landlady-Smt. Prabha Rani and set aside the order of Shri J D.Kapoor, Rent Controller, Delhi, dated May 31,197), and had passed the eviction order against Chhanga Ram on the ground covered by clause (a) of sub-section (1) of Section 14 of the Act.

(2) Chhanga Ram-appellant died during the pendency of the appeal and his legal heirs have been brought on record in his place. It is admitted case that the tenant had enjoyed benefit of Section 14(2) of the Act in the previous eviction case brought on the ground of non payment of rent. In the second eviction case the arrears of rent were due from the tenant with effect from September 1,1977, which the tenant is stated to have neither paid nor tendered within two months of the service of demand served by the landlady. The service of notice of demand also stands admitted. I may mention that a reply has been sent to the notice of demand which is Ex A5 in which the tenant took a plea that he had already deposited the entire arrears of rent, as claimed inthe notice, with the Rent Controller. But it is undisputed fact that no such arrears of rent have been deposited in response to the notice of demand or otherwise. In the written statement the tenant took up a plea that the tenant had sent two Money Orders which were refused by the respondent and the tenant had also tendered the rent which again was refused by the respondent as the respondent threatened the tenant to vacate the tenanted premises. A plea was also taken that the landlady had disconnected the electricity and water supply of the tenanted premises. Counsel for the appellant fairly did not argue on the point that any such amenity had been disconnected. The Rent Controller has given a finding that it was the appellant who has been refusing to accept the rent and he believed the witnesses of the tenant on the point that an oral tender of rent was made after the service of notice of damand. The Rent Control Tribunal, however, came to a different finding and reversing the finding of the Rent Controller came to the conclusion that the tenant had failed to prove that he had tendered the entire arrears of rent within two months of the service of the notice of demand and thus the ground of non-payment of rent stood proved.

(3) Counsel for the appellant has, however, contended that the finding of the Tribunal in this connection is perverse as it is not based on evidence. I have gone through the file of the Rent Controller and have heard the arguments and I find there is bo merit in this contention. It is significant to mention that the tenant in evidence produced Rw 3, an official of the office of the Post Master in order to show that the tenant had sent Rs. 70.00 as rent in the month of November 1970 but the official stated that the record in respect of that Money Order stood weeded out. So, there is no evidence showing that in fact, that Money Order was refused by the landlady. The landlady has made statement on oath that she has not refused any such Money Order. Except for the statement of the tenant that such a Money Order was refused, there is no evidence showing that in fact, such Money Order was refused by the landlady. The Postman, who had allegedly made an attempt to serve that Money Order on the landlady, has not been examined as witness. So, it cannot be held that the landlady had refused the Money Order sent by the tenant. Even otherwise after the notice of demand had been served, it was incumbent on the tenant to have either tendered the entire arrears of rent to the landlady or deposited the same with the Controller within two months of the service of the notice of demand. Any tender of rent made prior to the service of notice of demand is of no effect. The ground of non-payment of rent becomes available to the landlady as soon as it is proved that the tenant neither has tendered nor paid the entire arrears of rent within two months of the service of notice of demand. So the tenant has to allege and prove that be had either paid or tendered the entire arrears of rent within two months of the service of notice of demand.

(4) The tenant bad sent a sum of Rs. 105.00 by way of Money Order within two months of the service of notice of demand which Money Older was refused. The said amount did not cover up the entire arrears of rent due from the tenant as claimed in the notice of demand. Hence, the said tender was not legally valid.

(5) It is pertinent to mention that in the written statement it was not at all pleaded as to when the oral tender of the arrears of rent was made to the landlady. It was also not pleaded that any such tender of rent was made in presence of any witnesses and if so, what were the names of those witnesses. The landlady appeared as Aw 1 and made a categorical statement on oath that she has not been tendered the entire arrears of rent due from the tenant within two months of the service of notice of demand. In cross-examination it was suggested to her that arrears of rent had been tendered to her in the presence of Bhurey Lal, Mata Din and Jai Parkash which suggestion was denied by her. It was not suggested to her that at what point of time such oral tender was made in presence of the said witnesses. The tenant coming as Rw 1 deposed that in May 1978 he had made such tender of rent in presence of witnesses i.e. Sham Lal. Jai Parkash, Sat Narain and the husband of the landlady was also present. No suggestion was given to the landlady that her husband was present when such oral tender was made. This oral tender of rent to the landlady made by the tenant also pertains to the period prior to the service of notice of demand. The Rent Control Tribunal was right in disbelieving the evidence regarding such oral tender. Even otherwise this tender is of no help to the tenant because this tender of rent has not been made after the service of notice of demand. So, examined from any angle, the conclusion must be reached that the tenant has failed to prove that he had tendered the entire arrears of rent within to months of the service of notice of demand. It is not understandable as to why the tenant had not cared to send the entire arrears of rent by way of Money Order when he had chosen to send Money Order of Rs. 105.00 only after notice of demand had been served on him. The insufficient tender of rent cannot save the tenant from being evicted on the ground of non-payment of rent in this case.

(6) The tenant had already enjoyed the benefit of Section 14(2) of the Act in earlier eviction case brought on the ground of non-payment of rent and the tenant should have been more careful in seeing that he did not commit second default as in law he was not to be given another benefit of Section 14(2) of the Act. The judgment of the Rent Control Tribunal is well based.

(7) I do not find any merit in this appeal which I, hereby, dismiss but leave the parties to bear their own costs in this appeal. I give one onth's time to the appellant for vacating the premises.