Jain Plastic Industry And Ors. vs Gopi Chand
1989 Latest Caselaw 285 Del

JUDGMENT

B.N. Kirpal, J.

(1) This is a second appeal against the order of the Rent Control Tribunal Delhi who while reversing the decision of the Additional Rent Controller, allowed the respondent's petition for eviction of the appellant under section 14(l)(a) of the Delhi Rent Control Act (hereinafter referred to as 'the Act')

(2) Briefly stated, the facts are that the appellant (hereinafter referred to as 'the tenant') is a tenant of two rooms and two stores located on the ground floor of House No. 1-G. Jawahar Nagar, Delhi. Whereas according to the tenant, the agreed rate of rent was Rs. 6S.00 per month, according to the respondent (hereinafter referred to as 'the landlord') the rent payable was Rs. 68.00 per month plus Rs. 3.00 per month for water charges.

(3) On 9th January, 1968 the landlord sent a notice to the tenant claiming arrears of lent with effect from 24th December, 1964 to 23rd December, 1967. It was stated that the tenancy of the premises in question started on 24th day of each calendar month and ends on the 23rd day of the following calendar month. No reply was sent to this notice and thereupon eviction petition was filed on 1st May, 1968 under section 14(l)(a) of the Act on the ground of non-payment of rest.

(4) On 18th December 1968 the Additional Rent Controller declined to pass orders under section 15(1) of the Act. An appeal was filed by the landlord against the said order. The Rent Control Tribunal allowed the appeal vide its order dated 13th May, 1969 and directed the tenant to make payment of arrears of rent which were legally recoverable effect from 1st April, 1965. The tenant was directed to pay arrears of rent at the rate of Rs. 68.00 per month and also to pay future rent. This order of the Tribunal was unsuccessfully challenged by the tenant before the High Court. The High Court while dismissing the appeal on 20th December, 1971 granted the tenant one month's time to deposit the arrears of rent in compliance with the earlier order dated 13th May, 1969 of the Rent Control Tribunal passed under section 15(1) of the Act.

(5) The tenant deposited some rent pursuant to the aforesaid order passed by this Court. However, on 3rd November, 1973 the landlord moved an application under section 15(7) of the Act alleging that the tenant had deposited a sum of Rs. 2448.00 on 20th January, 1972 and, further, that the rent for the month of May, 1973 was also deposited late A second application under section 15(7) of the Act was filed by the landlord on 14th April, 1974 alleging, inter alia, that for the period 1st April, 1905 to 31st July, 1973 the tenant had become liable to pay, rent for 100 months amounting to Rs 6800.00 but the tenant had deposited rent for only 99 month which amounted to Rs. 6734.00 . According to the landlord, rent for the month of March, 1973 had not been deposited and the prayer made was that the defense of the tenant should be struck off.

(6) The Additional Rent Controller dismissed the first application filed under section 15(7) vide his order dated 11th November, 1974. The defense of the tenant was, however, ordered to be struck off by the Addl. Rent Controller vide order dated 15th November, 1974 when he came to conclusion, while dealing with the second application under section 15(7), that there was a shortfall in deposit of rent by one month. The Additional Rent Controller came to the conclusion that the tenant was liable to pay 100 months' rent with effect from 1st Aprial, 1965 to 31st July, 1973 but he deposited only 99 months' rent. After ordering striking off the defense, ex parte evidence was recorded and order of eviction was passed.

(7) The tenant thereafter filed appeals before the Rent Control Tribunal, namely, Shri N.C, Kochar (as be then was). Vide order dated 7th May. 1975 the Rent Control Tribunal came to !be conclusion that on the facts and circumstances of this case, as there was a bona fide mistake committed by the tenant in calculating as to how many months' rent was payable, the defense under section 15(7) should not be struck off. He allowed the appeal filed by the tenant against the order passed under section 15(7) and, as a consequence thereof, also allowed the other appeal filed against the order of eviction. The case was remanded to the Additional Rent Controller for trial on merits.

(8) Before the Additional Rent Controller one of the contentions raised by the tenant was that there had been no default in payment of rent at all because even for the notice period, namely 24th December, 1904 to 23rd December. 1967, the tenant had paid Rs. 3000/ by way of rent to the Attorney of the landlord. The case of the tenant was that on 3 different occasions rent of Rs. 500.00 each was paid and on 3 different occasions cheques to totaling Rs. 1500.00 (Rs. 500.00 each) were given to the said Attorney, It was further the case of the tenant that he had incurred an expense of Rs. 286.00 towards insurance on behalf of the landlord and, further, the tenant had also incurred expense towards the repairs and maintenance of the building and was entitled to that deduction under the provisions of the Act.

(9) The Addl. Rent Controller, Delhi vide his order dated 23rd March, 1976 accepted the contention of the tenant that Rs. 3000.00 had been paid in cash and by cheques. Even after giving credit of this amount, he came to the conclusion that a sum of Rs. 7t6.00 was still in arrears up to 31st December, 1967 and, therefore, the tenant would be liable to be evicted under section 14(l)(a) of the Act, However, after giving credit to the amount paid pursuant to the order of Shri N.C. Kochar the Addl. Rent Controller came to the conclusion that there had been compliance with the order passed under section 15(1) and, therefore, the tenant was entitled to the benefit of section 14(2) and, consequently, no order of eviction could be passed against him.

(10) The landlord then filed an appeal before the Rent Control Tribunal. Vide the impugned order dated 3rd March, 1979 the Tribunal came to the conclusion that the tenant has been able to prove payment of Rs. 3000.00 as rent by cash and cheques for the notice period 24th December, 1964 to 23rd December, 1967. He further came to the conclusion that the tenant was not entitled to get credit for the sum of Rs. 286.00 which was paid towards insurance and nor was he entitled to claim any credit on account of any amount alleged to have been spent for repairs of the premises in question. The Rent Control Tribunal then found that as the tenant had paid only 99 months' rent instead of 100 months' rent, there had been non-compliance with the order under section 15(1) and, therefore, eviction of the appellant-tenant was ordered.

(11) Two contentions have been seriously urged before me by the learned counsel for the tenant. It has firstly been submitted that on the evidence on record the only conclusion which could be arrived at was that the tenant had paid to the landlord Rs. 3000.00 by way of rent during the notice period, It is further submitted that even though 99 months' rent may have been paid instead of 100 months, which was due, once Shri N.C. Kochar had decided there should be condensation in the non-payment of the entire rant and that order under section 15(7) should not be passed, the result was that this had the effect of condoning the non-payment under section 15(1) of the Act,

(12) Shri Rohatgi, learned counsel for the landlord, has, however, contended that in second appeal this Court ought not to decide questions of fact. The submission is that the findings of fact arrived at by the Rent Control Tribunal are binding on this Court and they should not be interfered with. It is further submitted that even though there may be grounds for not passing an order under section 15(7) of the Act, the conduct of the tenant is such that there could be no occasion for condoning the delay under section 15(1) of the Act.

(13) It is not in dispute that. by ignoring the claim of Rs. 3000.00 alleged to have been paid by the tenant, there is a short-fall in the payment of rent by one month up to 31st July, 1973. Instead of 100 months' rent the tenant and had paid only 99 months' rent. It is explained by Shri Gupta that the order of the Rent Control Tribunal dated 13th May, 1969 which directed payment with effect from 1st April, 1965 should be construed to mean payment in respect of tenancy after months 1st April, 1965. It is submitted that the tenancy month being from 24th day of a month to the 23rd day of the following month, the tenant thought that the first payment which was liable to be made was for the period from 24th April, 1965 to 23rd May, 1965. If this is so, then the number of months for which payment had to be made up to 31st July, 1973 would come to only 99 months. Shri Gupta, however, concedes that this calculation is not correct and in fact whether it is taken to be a calendar month or a tenancy month, rent with effect from 1st April, 1965 would have been payable and that would come to 100 months' rent Therefore, this is a case where eviction has been ordered because of non-payment of one month's rent.

(14) It is true that the finding of fact arrived at by the Rent Control Tribunal will not be lightly interfered with by the High Court. It is for the Tribunal to appraise the evidence and come to a conclusion on questions of fact. As already noted, the first contention of Shri Gupta was that Rs. 3000.00 had been paid towards rent by the tenant. Claim had been made that Rs. 500.00 had been paid in cash on 3 different occasions by the tenant to the attorney of landlord. In support of this, the tenant had relied upon copies of the ledger which were produced before the Add1. Rent Controller and also on the testimony of the tenant. The tenant, however, had not produced any rent receipt though it had been admitted that rent receipt used to be given by the attorney of the landlord to the tenant. The Tribunal came to the conclusion that the tenant had not been able to prove the payment of Rs. 1500.00 in cash to the attorney. In arriving at this conclusion, the Tribunal observed that cash book had not been produced and no reliance could be placed on to entries in the ledger because the ledger contained a number of blank pages.

(15) With regard to payment by three cheques of a total sum of Rs. 1500.00 . the Tribunal referred to the evidence of Shri Sardari, Mal, who had admitted the receipt of three cheques, but the Tribunal held that the cheques which were issued in June and October, 1966 and September, 1967 pertained to the arrears of rent due for the period prior to 24th December, 1964. According to the Tribunal, Sardari Mal had deposed to this effect and that there was no reason to disbelieve his statement. He further observed that the mere fact that the landlord had pot maintained any account of the rent received would not lead to the inference that the rent had been paid as alleged by the tenant. It was also noted that in the written statement the tenant had not given any details as to how the rent had been paid.

(16) With regard to payment of rent by cash as alleged by the tenant, I am in complete agreement with the Tribunal that the appellant- tenant was unable to prove that the said payment had been made. Rent receipts were not given to the tenant, that is the allegation. It is curious to note that Rs. 1500.00 are alleged to have been paid on 3 different occasions but for none of these crucial payments was any rent receipt obtained by the tenant. Merely because entries to this effect have been made in the ledger and, possibly, even in the cash book, cannot lead to the conclusion that the said payment of Rs. 1500.00 must have been made. In any case, the conclusion arrived at by the Tribunal in this regard cannot be called to be one which is unreasonable or which cannot be deduced from the evidence on record. The said finding calls for no interference.

(17) As far as payment of rent by cheques is concerned, the position is slightly different. In his examination-in-chief Sardari Mal did not state that in respect of the notice period, 24th December, 1964 to 23rd December, 1967, any payment had been received by cheque from the tenant. However, in his cross-examination-he admitted the receipt of three cheques for Rs. 500.00 each. It has been stated by Sardari Mal in examination-in-chief that "the respondent (tenant) did not make payment after 24.12.64". With regard to the cheques he deposed as follows :    "I had received three cheques of Rs. 500.00 each from the respondent. I do not remember how much amount the respondent paid in cash",  

Dealing with this evidence, the Rent Control Tribunal has observed as follows:    "THOSEcheques have been issued in June and October 66 and September 67 but he (Sardari Mal) deposed that those amounts pertained to the arrears rent due of the period even prior to the 24th December 64".  

It is clear that the Tribunal regarded Sardari Mal as having stated that the Those chequs had been issued by the tenant but they pertained to the period prior to the notice period, namely prior to 24th December, 1964. The evidence of Sardari Mal does not disclose that he made any such statement. It is no doubt true that Sardari Mal has said that no rent was paid after 24th December, 1964 but he has admitted that he received 3 cheques of Rs. 500.00 each from the tenant but he has not stated that this amount of Rs. 15UO.00 received by cheques was appropriated or was with regard to rent alleged to be due prior to 24th December, 1964. The Tribunal therafore, has read into the evidence of Sardari Mal some words which do not exist. It is, however, contended by the learned counsel for the landlord that a suggestion was put to Sardari Mal with regard to the cheques which he dealt with in the follows words :    "IT is wrong to suggest that I had received 3 cheques of Rs. 500.00 each for the period for which I have claimed rent".  

It is no doubt true that the suggestion made to him that three cheques of Rs. 500.00 have been given to him for rent for the the period in question was denied by him but he has admitted the receipt of three cheques but has given no explanation as to on what account these cheques but had been received. He has admitted that he used to receive rent both in cash and by cheques from the tenant. He has further admitted that he has not maintained any account of rent. However, it appears from the ledger accounts produced by the tenant, namely EXs. R-1 to R-4, that as on 1st April, 1965 there were some arrears due from the tenant to the landlord. As such, if those entries in the ledger are to be accepted, then there is some force in the contention of the learned counsel for the landlord that Rs. 1500.00 paid by cheques must have been appropriated against the amount due as arrears of rent from the tenant prior to the notice period. The question arises as to whether the Tribunal was right, in law, in disregarding the ledger accounts which were produced. It is true that the ledger account were prepared were produced by the tenant but the only reason given for not relying on the ledger accounts produced is that many pages were left blank in the ledger which were brought to Court. It is common knowledge, and judicial notice can be taken of this fact, that whereas a cash book or a journal or other primary books of account may not have blank pages but there will be few ledgers which will not have blank pages. A ledger is meant to contain accounts of different parties like Banks, customers, landlords, tenants etc. A certain number of pages are allocated to each account. For instance, a bank account may have pages I io 10 allocated to it a customer's account may have pages Ii to 20 allocated to it. The ledger is kept usually for a whole year and they are bound to be blank pages in the ledger. Merely because the ledger which was produced before the Tribunal contained blank pages cannot lead to the conclusion that the entries made therein are wrong. It is pertinent to note that no account had been produced by the landlord pertain- ing to rent. The tenant, on the other hand, produced his ledger accounts which showed that there was a debit balance as an 1st April, 1965 for a sum of Rs. 1424.00 . If the tenant had wanted to make fictitious account, he would not have admitted that there was a debit balance of Rs. 1424.00 on 1st April, 1965. Another reason why the accounts produced by the tenant have not been accepted is that, according to the Tribunal, the tenant did not produce the cash book. Perhaps the attention of the Tribunal was not drawn to that part of the testimony of RW3 Muni Lal Jain wherein he had stated, in his cross- examination, that "cash book page No. 141 dated 27.166 contained an entry of about Rs. 500.00 having been paid in cash as rent to Mr. Gopi Chand through Sardari Mal. It is also correct that the words 'through Sardari Mal Ji' are written in a different ink". This clearly shows that the cash book was brought in Court at the time when the said witness was being cross-examined. It is true that the extract of the cash book may not have been produced but the Tribunal was wrong in coming to the conclusion that the tenant had held back the cash book and that it was not produced on record. After adjusting the amount of Rs. 1500.00 against the debit balance of Rs. 1424.00 as on 1st April, 1965, it is clear that the tenant had paid Rs 76.00 more than what was outstanding as on 1 4.65. This represented slightly more than one months rent. If this one month's rent is added to the 99 months' rent which was admittedly paid by the tenant to the landlord, then there had been no default committed in this case and the tenant was entitled to the benefit of section 15(1) order as of right. I am conscious of the fact that by accepting the contention of the tenant with regard to the payment of Rs. 1500.00 by cheques towards rent, lain upsetting the finding of fact arrived at by the Rent Control Tribunal. Ordinarily as I have already noted, findings of fact arrived at by the Tribunal are final and binding but in case where the evidence on record has been misread or documentary evidence rejected on wrong premise and where in a case like this where serious prejudice would be caused to the tenant on account of alleged non-payment of one month's rent, the Court would, to my mind, eve." in a second appeal, be justified in interfering with the question of fact. The question really is a mixed question of fact and law and is not purely a question of fact.

(18) Even if it is assumed that the finding of the Tribunal that Rs. 3000.00 were not paid is correct, even then the tenant must succeed in this appeal for another reason Assuming that Rs. 3000.00 have not been paid, it would only mean that there were arrears of rent, as on the day when the eviction petition was tiled, of a sum larger than Rs. 712.00 which bad been arrived at by the Addl. Rent Controller. The Tribunal, namely.. Shri N.C. Kochar, condoned the default of non-payment of one month's rent and consequently did not strike out the defense of the tenant. Subsequently, the default has been made up and now there are no arrears of rent. Relying upon the decisions of the Supreme Court in the case of Shyamcharan Sharma v. Dharamdas, and Ram Murti v. Bhola Nath and another, it has been contended by the learned counsel for the tenant that where defense is not struck off for good and justifiable reason then the delay in depositing the money should also be condoned. Shyamcharans case was dealing with Section 13(1) of the Madhya Pradesh Accommodation Control Act, 1961 which contained an express provision enabling the Court to grant further time for deposit of arrears of rent. It also provided for the Court passing an order requiring payment of future rent. It was also stipulated that in the event of non-payment of rent the defense could be struck off. The Supreme Court came to the conclusion that on a correct construction of section 13 the Court had the power to extend the time for payment or deposit of rent, both arrears of rent as well as future rent. If this power is exercised, the question of striking off the defense could not arise. In Ram Murti's case (supra), the Supreme Court came to the conclusion that the provisions of the Delhi Act were similar to the aforesaid provisions of Madhya Pradesh Act. It observed that for good and justifiable reason the Court could come to the conclusion that the defense under section 15(7) should not be struck off. It further observed that the Rent Controller had the jurisdiction to condone the delay under section 15(1) of the Act. In other words, the reasons which would persuade the Rent Controller not to strike off the defense under section 15(7) would possibly be a good reason for condoning the delay in payment of rent. In the present case, the defense was not struck off because the Rent Control Tribunal came to the conclusion that it was for bona fide reasons and because of miscalculation that only 99 months' rent was paid instead of 100 months. It appears to me that this itself was a good ground for the Rent Control Tribunal or the Rent Controller for condoning the delay under section 15(1) of the Act. In other words, even without giving the tenant the benefit claimed by him, namely of having paid Rs.3000.00 as rent, the tenant was entitled, on the facts and in the circumstances of this case, for condensation of delay in payment of one month's rent and if this delay is condoned, as it must be in the present case, section 15(1) order must be regarded as having been complied with.

(19) For the aforesaid reasons, the appeal is allowed and the order of the Rent Control Tribunal is set-aside and that of the Addl. Rent Controller restored. There will be no order as to costs.