Ram Swaroop Kathuria vs Nagpal Optical Co.
1993 Latest Caselaw 179 Del

JUDGMENT

P.K. Bahri, J.

(1) This case has been on the Board and office was required to give telephone message to Shri K.K. Chaudhary, Counsel for the respondent and I am informed that the office has given the information on telephone but despite waiting for Mr. K.K. Chaudhary, be has notappeared. So, I have no occasion to hear Counsel for the respondent in this case.

(2) This appeal is directed against judgment dated 19/08/1985,of Shri M.A. Khan. Rent Control Tribunal, by which he had dismissed the appeal of the appellant brought against the order of the Rent Controller dated 1/04/1985, by which he had struck out the defense of the appellant under Section 15(7) of the Delhi Rent Control Act (hereinafter referred to as 'the Act').

(3) Facts of the case, in brief, are that the respondent had brought an eviction petition against the appellant on the ground of eviction covered by Clause (a) of the proviso to Sub-section (1) of Section 14 of the Act alleging that despite service of notice of demand dated November 20, 1979,claiming the arrears of rent amounting to Rs. 29,700.00 at the agreed rate ofRs.3,300.00per month with effect from 1/03/1979, the tenant neither tendered nor deposited the said arrears of rent within two months from the service of notice of demand. The appellant had sent a reply to the said notice dated 18/01/1980, mentioning that the rent was not payable in advance and he had sent Rs. 19.800.00as the rent for the period March I, 9/12/1979 and had adjusted four months rent allegedly paid as advance rent at the time of creation of the tenancy.

(4) After hearing the parties the Rent Controller passed an interim order under Section 15(1) on 20/05/1980, requiring the appellant to deposit arrears of rent for the period 1/03/1979, onward and up to date rent @ Rs. 3300.00 per month within one month and deposit future rent month to month to 15th each succeeding month at the same rate.

(5) It appears that the entire arrears of rent and the up-to-date rent were deposited by the appellant in time. The appellant came to deposit month to month rent late by some period regarding certain months which is mentioned in the application moved by the landlord under Section 15(7) of the Act on 2/12/1981. The plea taken by the appellant in response to that application was that small delays had occurred due to inadvertence due to rush of work On September 12, 19?4, the then Rent Controller while dismissing the application filed under Section 15(7) gave a warning to the appellant that in case there shall occur any future delay in deposit of rent, the same would be viewed seriously.

(6) The respondent came up with another application under Section15(7) dated 10/10/1984, in which he has averred that the appellant had not at all deposited the rent falling due on July 15, August 15, and 15/09/1984 and therefore, prayed for striking of the defense of the appellant. In reply to that application, the appellant took up the plea that the rent for the month of June 1984 which was to be deposited on or before 15/07/1984. was, in fact, deposited in time and the rent for the subsequent months of July and August 1984 was not deposited by his Manager, who was entrusted with this job and perhaps the Manager was negligent due to rush of work in making the said deposit and as soon as before the filing of the application under Section 15(7) the appellant came to know about non-deposit of the rent of the said two months he deposited the said rent on 1/10/1984. It appears that another application under Section15(7) was also given while the previous application was pending alleging that the rent of the months of April and October 1984, were not deposited in time as there was delay of one day each in deposit of rent of said two months and rent of November 1984 was deposited belatedly by three days.No reply was taken by the Controller in respect of this supplementary application of the landlord. It appears that the Rent Controller being obsessed with the warning given in the order dated 12/09/1984,had not even cared to examine the merits of the grounds given by the appellant for delayed deposit of rent for the months of July and August 1984 and he had proceeded to strike out the defense of the appellant. The learned Tribunal also was swayed by the same warning which was administered to the appellant while dismissing the application under Section 15(7) earlier and he also did not examine the case of the appellant on merits with regard to the explanation furnished before the Rent Controller.

(7) It appears that in the grounds of appeal filed before the Tribunal the appellant had come out with another plea that one of his partners was looking after the matter of deposit of rent and had misappropriated the partnership funds and thus, there occurred delay in deposit of the rent of the said two months. The Rent Control Tribunal held that the appellant had come out with a different version as given before the Rent Controller, hence,be was guilty of not obeying the orders of the Court and the Tribunal endorsed the order of the Rent Controller striking out the defense of theappellant.

(8) It is now well settled by the Supreme Court that the authorities under the Rent Control Act have a discretion for condoning the delay which may occur in deposit of rent and it is not mandatory to strike out the defense of the tenant in case certain delay occurred in deposit of rent. In the present case, it has to be kept in view that the entire arrears of rent and up-to-date rent were deposited in time. It is true that a tenant is bound to comply with the order made under Section 15(1) with regard to deposit of rent month by month. However, if the tenant commits default in deposit of rent. that should not lead to the conclusion that the delay made by the tenant is contumacious or willful. The explanation which may be given by the tenant, when an application under Section 15(7) is moved, has to be examined on its own merits without being swayed by any warning being administered earlier while dismissing the previous application being under Section 15(7). In the present case, the warning came to be administered by the Rent Controller only vide order dated 12/09/1984, when the delay in respect of deposit of rent for the months of July and August had already occurred. So, this warning, even if it was to take effect, was to take effect after passing of this order whereas the warning was given and administered cannot relate back to the default which was already made by theappellant.

(9) The Runt Controller, in my view, should have examined the explanation given by the tenant with regard to omission to deposit rent of mouths of July and August 1984 in time without being obsessed with the warning administered vide order dated 12/09/1984. The Rent Controller for respons best known to him had not bothered to examine the explanation given by the appellant in this regard. As far as the supplementary application was concerned where delay has been of one day in deposit of rent of April and one day delay in deposit of rent of October and three days delay in the deposit of rent of November 1984, the said delays should not have been taken note of for striking out the defense when the Rent Controller had thought it fit not to give any opportunity to the appellant for filing the reply to that application under Section 15(7) forgetting his explanation.

(10) Be that as it may, it is evident from the record that the tenant had deposited the rent of July and August on 1/10/1984 and 'has been depositing the rent of subsequent months as well. That would show that the tenant had no intention of willfully disobeying the order of the Court passed under Section 15(1). The tenant could not be termed as contumaciousdefaulter. For the delay made in the deposit of rent the other party has not suffered any such damage which cannot be compensated with costs. I think it is a fit case where the delay ought to have been condoned on payment of some costs.

(11) I allow the appeal, set aside the impugned order and condone the delay made by the tenant in deposit of rent, subject-matter of the impugned orders, on payment of Rs. 500.00 as costs. The parties are directed to appear before the Rent Controller for further proceedings in the case on 19/04/1993.

(12) Office to see that the Lower Court record is returned to the Rent Controller before that date.