Anand Prakash And Ors. vs Gain Chand Swara And Ors.
1992 Latest Caselaw 487 Del

JUDGMENT

Gokal Chand Mital, C.J.

(1) MR.CHAMAN Dass and two others had filed an earlier application for eviction in 1968 against Gian Chand Swara on several grounds, including non-payment of rent. The tenant deposited the arrears of rent pursuant to an order passed under Section 15(1) read with section 15(3) of the Delhi Rent Control Act, 1958. As a result, the eviction application was dismissed on 3rd January, 1969. In those proceedings, the tenant had taken the plea of fixation of standard rent and the Rent Controller fixed the standard rent, but on appeal that order was set aside.

(2) Chaman Lal. landlord, served a notice dated 7th February, 1971, Ex.A- 5, demanding the arrears of rent from the tenant w.e.f. 1st December. 1968 onwards. On 1st March. 1971. the landlord died and his legal representatives served notice under section 106 of the Transfer of Property Act dated 8th April, 1971, Ex.A- 2, by which they terminated the contract of tenancy and demanded the arrears of rent w.e.f. 1st December. 1968.

(3) Anand Prakash and Others Vs. Gain Chand Swara and Others On 29th May. 1971. before the expiry of two months from the date of service of notice the legal representatives of the original landlord filed an application for ejectment of the tenant on the ground of non-payment of rent. The tenant contested the petition and pleaded that since the ejectment petition was filed within two months of the service of notice, the same was not maintainab!e.

(4) The Rent Controller ordered the ejectment on the basis of first notice but on appeal the Rent Control Tribunal took the view that the legal representatives waived the first notice as issue of notice by them under Section 106 of the Transfer of Property Act amounted to waiver of the first notice. and since the ejectment petition was filed within two months of the issue/service of the second notice, the ejectment, petition wa.s not maintainable. As a result. the Rent Control Tribunal .set aside the eviction order passed by the Rent Controller and dismissed the ejectment application. This is a second appeal by the legal representatives of the original Landlord.

(5) On a consideration of the matter. I am of the view that there is no scope of interference in this appeal. In the first notice issued by the original landlord, it was alleged that the tenancy was statutory and arrears of rent were claimed w.e.f. 1st December. 1968. Soon after the issue of notice, the landlord died and the legal representatives of the landlord issued a fresh notice, terminating the contractual tenancy under section 106 of the Transfer of Property Act and demanded arrears of rent w.e.f. 1st December. 1968. This clearly amounts to waiving the earlier notice issued by the original landlord.

(6) Adverting to the question whether the ejectment petition was maintainable within two months of the service of the second notice, there can be no controversy on this matter, so far as the facts are concerned. The notice was sent. on 8th April, 1971 and wa.s received by the tenant on 13th April, 1971 and the ejectment petition was filed on 29th May, 1971. A reading of the provisions of Section 14 of the Delhi Rent Control Act. 1958 clearly goes to show that in order to take benefits of the aforesaid section, two months clear lime has to be given to the tenants to pay the arrears and if the tenant fails to pay the arrears within two months, only then the landlord gets a ground to seek eviction of the tenant for non-payment of rent. Admittedly, in this case, the Landlord filed the eviction petition before the, expiry of two months. I am in complete agreement with the learned Rent Control Tribunal that the application for ejectment was not maintainable on 29th May, 1971 on the ground of non-payment of rent.

(7) For the reasons recorded above, the appeal is dismissed, leaving the parties to bear their own costs.