Krishan Lal @ Krishan Kumar vs K.M. Sharma
1996 Latest Caselaw 203 Del

JUDGMENT

C.M. Nayar, J.

(1) The present appeal arises from judgment dated February 5, 1993 passed by Mr. K.S. Gupta, Rent Control Tribunal, Delhi.

(2) The brief facts are that the respondent filed petition for eviction on July 5, 1987 on the allegations that Krishan Lal @ Krishan Kumar, since deceased, father of the appellants, was the tenant in the premises, as detailed in the petition for eviction, forming part of property No. B-3/16, Model Town, on a monthly rental of Rs. 20.00 excluding water and electricity charges and after the purchase of the above property by him under registered Sale Deed dated December 9, 1980, the said Krishan Lal became a tenant under the respondent. It was alleged that after the death of Krishan Lal, the appellants neither paid nor tendered the arrears of rent with effect from January 1, 1986 despite service of notice of demand dated May 7, 1987. It was further averred that in eviction Petition No. 122/1981 (K.M. Sharma v. Krishan Lal). Krishan Lal was given benefit of Section 14(2) of Delhi Rent Control Act (hereinafter referred to as 'the Act") by Shri J.M. Malik, the then Additional Rent Controller, vide order dated September 11,1985. The said order was confirmed in Rca No. 1245/1985 in favour of the appellants by Shri M.A. Khan, the then Rent Control Tribunal vide order dated July 28,1986. The appellants did not dispute the relationship of landlord and tenant between the parties. However, it was pleaded 20.00 per month despite the service of notice of demand. The earlier eviction petition was filed by the respondent, claiming the arrears of rent at the rate of Rs. 100.00 per month and an order under Section 15(1) of the Act was passed against their father at the rate of Rs. 20.00 per month and that order was duly complied with. The said order was upheld by the Rent Control Tribunal as well as by the High Court which dismissed the appeal in limine. It was alleged that the respondent was adamant not to accept the rent at the rate of Rs. 20.00 per month and the appellants were left with no alternative but to deposit the same in Court. They deposited the rent in the Court upto December, 1986 at the rate of Rs. 20.00 per month. Thereafter rent for the months of January and February, 1987 at the same rate was remitted through money order to the respondent who refused to accept the same. Rent for the months of April and May, 1987 at the said rate was again tendered through money order to the respondent who refused to accept. The rent for the subsequent months of April and May, 1987 was sent through money order to the respondent who again refused to accept the same and sent a notice of demand dated May 7,1987. Receipt of this notice was admitted.

(3) The appellants also filed an application under Order 41 Rule 27 read with Section 151 Civil Procedure Code for allowing them to examine the concerned postman who tendered the four Money Orders to the respondent by way of additional evidence. They took the plea that on the date of notice of demand dated May 7,1987 (Ex. Rw I /PI)was served on the appellants, they were not in arrears of rent. The Additional Rent Controller examined the pleas raised in the petition. The main question which was considered was, whether, the appellants were in arrears of rent at the time of service of demand notice and whether the arrears were for three consecutive months or not.It was noticed by the Controller that the appellants deposited the rent for the period January 1, 1986 to December 31, 1986 vide challans Ex. Rw I /l and 3. The respondent/landlord, however, contended that the earlier eviction petition between the parties was decided by the Court of Shri J.M. Malik, the then Rent Controller vide order dated September 11, 1985and,therefore, the deposit of rent by lhe appellants in the Court in the year 1986 was not a valid tender to the respondent. This plea was,however,rejected and it was held that thedepositof rent for the period of January 1, 1986 to December 31, 1986 was a valid tender to the respondent.

(4) The plea of the appellants that the rent for the period January 1987 to May, 1987 was sent to the respondent vide postal receipt and money order coupons Ex. Rw 1 /4 to 7 and the respondent refused to accept the same and, therefore, it could not be said that the appellants were in arrears of rent at the time when the demand notice was served upon them, was next considered by the Rent Controller. The learned Judge held that it was notclear from the money order coupons that the same were ever refused to be taken by the respondent. The following finding was recorded: through these money order coupons. Ex. Rw 1/4 to 7.1, further, find that the tender of rent through these money order coupons was not tender in the eyes of law because tender of rent, if any, has to be made after the service of the notice and the tender of rent prior to the service of notice is of no help to the respondent in proving the case,"

(5) It was on the basis of the above finding that the Controller held that the rent through all the money order coupons were sent prior to the service of demand notice and no tender at all was made by the appellants after service of the demand notice. Therefore, the appellants were held in arrears of rent with effect from January, 1987 at the time of demand notice Ex. Rw 1 which was served upon them. The learned Rent Controller found that it had been proved that no legally recoverable rent with effect from January 1, 1987 was paid or tendered by the appellants within two months of the service of demand notice and tender of rent through money orders for that period prior to the service of notice could not be taken as valid tender after the service of demand notice. The appellants were proved to be in arrears of rent with effect from January 1,1987 at the rate of Rs.20.00 per month which they failed to pay or tender within two months of the service of demand notice.

(6) The next question, which was considered, was whether the appellants were entitled to the benefit of Section 14(2) of the Actor not. In the earlier eviction petition against the father of the appellants, benefit under Section 14(2) of the Act was given by the Court of Rent Controller vide order dated September 11,1986 and as it has now been proved that the appellants were in arrears of rent for the period of three consecutive months with effect from January 1, 1987 at the time when the demand notice dated May 7,1987was served, they were, therefore,, not entitled to the benefit under Section 14(2) of the Act. Accordingly, an eviction order was passed by the Rent Controller on January 19, 1991. Aggrieved by this order, the appellants filed an appeal before the Rent Control Tribunal and the appellants also filed an application under Order 41 Rule 27 for allowing them to examine the concerned postman who tendered four money orders to respondent by way of additional evidence. This application was rejected as hardly of any relevance in deciding the appeal. The Tribunal reiterated the findings of the Rent Controller and dismissed the appeal. The rent for the months of January, February, March and April, 1987, as demanded by the notice sent by the respondent, was held not tendered within two months for the date of receipt of the notice. Therefore, having availed of the benefit of Section 14(2) of the Act in an earlier eviction petition, the appellants had clearly committed second default and the Rent Controller was, therefore, held justified in passing the impugned judgment.

(7) To apperciate the controversy between the parties, it will be necessary to reproduce the follow ing provisions of Delhi Rent Control Act. Sections 14(1)(a) and 14(2) read as under :

14(1).Notwithstanding anything to the contrary contained in any other law prescribed manner, make an order tor the recovery of possession of the premises on one or more of the following grounds only, namely :- (a) that the tenent has neither paid or tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of Transfer of Property Act, 1882 (4 of 1882) :

14(2). No order for the recovery of possession of any premises shall be made on the ground specified in Clause (a) of the proviso to Sub-section (1), if the tenant makes payment or deposit as required by Section 15 :

Provided that no tenant shall be entitled to the benefit under this sub-section if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months."

(8) It is not in dispute that the benefit under Section 14(2) of the Act was granted to Krishan Lal @ Krishan Kumar, since deceased, the father of the appellants, who are his daughter and sons. Therefore, the short point which arises for consideration is with regard to the alleged second default in payment of arrears of rent for the months of January, February, March and April, 1987, as demanded by notice of demand dated May 7,1987. Appellant No. 1 Miss Manju deposed that money orders Exs. Rw 1/4 to 7 are the coupons and they were refused by the respondent. The Additional Rent Controller aswell as the Rent Control Tribunal, however, took note of the fact that none of these money orders bears the endorsenent of refusal in the hand of postman and it is evident from the postal receipts appended with the money order Exs. Rw 1/4,5 and 6 and the the post office seals appearing thereon that all the money orders with regard to deposit of Rs. 60.00 by way of rent presumably for the months of January, February and March, 1987 were remitted to the respondent much before the sending of notice of demand dated May 7,1987 by the respondent to the appellants. There was nothing on the said money order coupons to indicate that the same were refused to be taken by the respondent. Under the circumstances, it was held that it could not be said that at any point of time the respondent refused to accept the rent sent through these money order coupons Ex. Rw 1/4 to 7. It was further held that the said tender, in any case, was no tender within the eyes of law because the tender of rent, if any, had to be made after the service of the notice and the tender of rent prior to the service of notice was of no help to the appellants in proving the case. The rent through all the money order coupons were sent prior to the service of demand notice dated May 7,1987 and no tender at all was made by the appellants after the service of the notice. In this view of the matter the appellants were in arrears of rent with effect from January, 1987 at the time when the demand notice Ex. Rw I/PI was served upon them. The appellants, accordingly, were held in arrears of rent with effect from January 1, 1987 at the rate of Rs. 20.00 per month

(9) The learned Counsel for the appellant has assailed the findings of the Additional Rent Controller as well as of the Rent Control Tribunal and contended that the money order coupons will indicate that the appellants had tendered rent for the period, as mentioned above, prior to the service of notice of demand dated 7th May, 1987. Therefore, there was no amount outstanding at that time and it was not necessary for the petitioners to tender rent, as provided by Section 14(1)(a) of the Act. The rent was not due in respect of the second default for three consecutive months and the appellants were not liable to be evicted on the basis of provisions of Section 14(2) of the Act. The learned Counsel for the respondents, on the other hand, contends that admittedly the order of eviction was passed as the appellants had committed a second default and they were in arrears of rent by more than three consecutive months i.e. January,. February and March, 1987 and they were liable to eviction under the above provisions. In any case, admittedly, there was no tender of rent after service of demand notice on May 10, 1987. The Court, therefore, will have no jurisdiction to condone the delay. Reliance is placed on the judgments as reported in Bhaiya Punjalal Bhagwand in v. Dave Bhagwat Prasad Prabu prasad and Others, ; Ram Babu v.Pershadi Lal, ; Mrs. Manorama S. Masurekar v. Mrs Dhanlaxmi G. Shah and Another, ; HM. Doyal Co. v. RamNath Chitkara and Others, and Chhanga Ramv.Prahha Rani, .

(10) In Bhaiya Punjalal Bhagwand in v. Dave Bhagwatprasad Prabhuprasad and Others (Supra) it has been held that where the Legislature intended to give some benefit to the tenant on account of the demand of the arrears during the pendency of the suit, it made a specific provision "The Court has no discretion but to pass a decree for eviction, provided other statutory conditions are satisfied.

(11) In Ram Babu v. Pershadi Lal [Supra] the Allahabad High Court also reiterated the same propositions. The following paragraph may be reproduced from the judgment which reads as follows :

"THE words ' in arrears of rent' refer to an outstanding liability in respect of rent, and it is plain that if the rent for more than three months has not in fact been paid, it must be held that this rent is in arrears. In our judgment, it is immaterial that the tenant has attempted to pay rent but the rent has not been accepted by the landlord. An unsuccessful attempt on the part of the tenant to pay the rent cannot lead to the conclusion that the rent has been paid and is not in arrears, even if the failure of the attempt can be attributed to the landlord. The statute is concerned with the simple fact that there is an outstanding liability respecting rent, whatever the reason for it may be, in view of the fact that a notice was served by the plaintiff upon the defendant demanding the arrears of rent, and there being no dispute that no payment was attempted the defendant after service of such notice, we must hold that the plaintiff became entitled to sue the defendant for ejectment by virtue of the to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2)", and the other conditions of Sub-section (3) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the section and to substitute in it the following conditions : "the tenant neglects to make payment thereof until the date of the institution of the suit." It is not possible to rewrite the section in the manner suggested by the appellant."

(12) This Court in H.M. Dayal Co. v. Ram Nath Chitkara and Others (supra) considered the concept of arrears of rent and held that the words "in arrears of rent" referred to an outstanding liability in respect of rent. and it is plain that if rent fore more than three months has not in fact been paid, it must be held that this rent is in arrears. Similarly, it was held by the learned Single Judge in Chhanga Ram v. Prabha Rani (supra) that where notice of demand had been served it was incumbent on the tenant to either tender the entire arrears of rent to the landlady or deposit 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 becomes available to the landlord as soon as it had been proved that the tenant neither 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 he has already paid or tendered the entire arrears of rent within two months of the service of notice of demand.

(13) The Rent Controller has taken the view that the tender of rent by the tenant prior to the service of notice of demand cannot be accepted to be valid tender within the eyes of law. Such a tender is irrelevant as it has to be made after the service of notice of demand. The other plea of the appellant that the respondent was not accepting the rent as submitted by the money orders Exs. RW1 /4 to 7, was rejected on the ground that it was not clear from the money order coupons that the same were ever refused to be taken by the respondent. This may be a very rigid and strict view of the law and this cannot be the interpretation of the law as enunciated in the above judgments which are based on the facts of those cases. In the present case, the appellants reiterated that the rent was remitted prior to the service of notice, therefore, they could not be held to be in arrears of rent and, in any case, they should have been granted an opportunity to prove the refusal of the respondent. There has been continuous litigation between the parties; firstly with regard to the rate of rent and secondly for non-payment of rent for different periods. In this background, the Rent Controller as well as the Tribunal ought to have considered the pleas of the appellants that the arrears of rent were duly sent to the respondent by money orders which were not accepted by the respondent. It will be very easy for the landlord to find an excuse to refuse the money order and wait for the requisite period to pass and then claim eviction on the basis of non-tender of arrears of rent. Therefore, it cannot always be said that the tender of payment prior to the service of notice of Judge had completely ignored the evidence of the appellant that he had been regulary tendering the rent to the landlord who had refused it on each occasion. Instead of discussing the merits of the appellant's evidence the learned Judge incorrectly observed that the defendant had produced no evidence to explain the non-payment of rent. This, according to Counsel, is a mis-statement apparent on the face of the record for the appellant had deposed that he could not pay rent because the landlord would not accept it. Secondly, the learned Judge had refused to consider the appellant's explanation because he took the view that any tender of payment by the tenant before receiving the notice of demand was irrelevant and that the real question was whether, after the receipt of notice the tenant had paid the rent within one month. His refusal to consider material evidence vitiates his finding of fact on the question of wilful default. Learned Counsel urged that this Court should in the exercise of its powers under Order Xli Rule 24 Civil Procedure Code . re-examine the evidence and decide this question itself. 4.In my opinion the learned Civil Judge was wrong in his view that any tender of payment by a tenant prior to the service of notice of demand under Section 3(1)(a) is irrelevant to the question whether he had committed wilful default. The appellant had explained in his defense that he had been unable to make payment because the landlord would not accept it whenever it was tendered. If this explanation was true it is obvious that he was never in default and the landlord was deliberately maneuvering him into a position where he could be accused of being a defaulter. If a landlord without lawful excuse refuses to accept rent tendered by the tenant, he cannot afterwards treat the tenant as a defaulter or serve a notice of demand under Section 3(1)(a) as an excuse for filing a suit for ejectment. Such a notice would be mala fide and a fraud on the section. The learned Judge was, therefore, in error in treating as irrelevant the appellant's evidence that he had tendered payment several times before receiving the notice of demand."

(14) The Rent Controller has merely rejected the averments that the money order coupons did not contain the report of refusal of the postman. The application for additional evidence was moved by the appellants under the provisions of Order 41 Rule 27 Civil Procedure Code . to prove that they had tendered arrears of rent to the respondent. This application was summarily rejected by the Rent Control Tribunal as it was held hardly of any relevance in deciding the appeal. The Rent Controller as well as the Tribunal refused to consider the material evidence on the erroneous ground that it was immaterial. Therefore, the finding can be held to be vitiated by an error of law. The money orders were produced which were duly sent to the respondent and were rejected merely on the ground that it did not bear the signatures of the postman In tenant was not bound nor was he under an obligation to go on repeating the remittances of the same amount over and over again. A landlord could not try to take advantage of his own wrong and seek the recovery of possession of the premises. The Rent Act is a measure which is intended to protect the tenants. It is not a trap for the landlord to lay in order to draw his tenant in."

(15) In V. Krishna Mudaliarv. Lakshmi Ammal the Supreme Court considered the concept of wilful default in payment of rent on the part of tenant and the consequences' thereof. Paragraph 4 of this judgment reads as follows :- "THE only contention raised before us by learned Counsel for the appellant is that the default in the payment of rent by the appellant, if any, was not wilful and as such he was entitled to the benefit of the proviso to Section 10(2)(i) of the Act. According to him the Rent Controller should have given time not exceeding 15 days to pay or tender the rent due by him to the landlord. It is further contended that the appellant had in fact deposited the rent immediately after the ejectment application was filed by the respondent. We see force in the contention of the learned Counsel. Despite the fact that the appellant was tenant of the property in dispute under the earlier owner, the respondent dragged the appellant to the Civil Court on the allegations that he was a trespasser. The Civil Court decided the controversy in favour of the appellant and held that he was a tenant in the property purchased by the respondent. In reply to the notice dated August 12,1981,the appellant stated that he could not pay the rent because the respondent never accepted him as his tenant and refused to accept the rent till the proceedings were finally decided by the Civil Courts. In the reply it was further stated that the non-payment of rent was not due to any fault on the part of the appellant and he was prepared to pay the same in easy instalments. We are of the view that the Courts below have not taken into consideration these facts in the right perspective. Keeping in view the peculiar facts and circumstances of this case, we hold that the default in die payment of rent on the part of the appellant was not wilful. Admittedly the appellant had deposited the rent in the Court of the Rent Controller within one month of the institution of the application."

(16) The Rent Controller as well as the Tribunal has merely rejected the plea of the appellants that they sent the rent for the period January, 1987 to May, 1987 vide postal receipts and money order coupons on the ground that it was not clear from the coupons that the same were ever refused to be taken by the respondent and none of the money orders bore the endorsement to refusal in the hand of the postman. Consequently, the tender in any case, was prior to the service of notice of demand. These conclusions cannot be sustained in the facts of the present case as it is not refusal on the part of the landlord. The facts of the case would also indicate that the appellants were held to be in arrears of rent for the period January, February, March and April, 1987 which meant that they could not get the benefit of the proviso to Section 14[2] as there was a default in payment of rent for three consecutive months. The Tribunal also erred in holding that as there was no tender after service of demand notice. It could not be said that there was a valid tender in the eyes of law though the remittance was not disbelieved. The following paragraph from the judgment reads as follows :-

"AS is evident from the postal receipts appended with the money order coupons Ex. RW1 /4, 5 and 6 and the post office seals appearing thereon, all these three money orders in regard to the despatches of Rs. 60.00 by way of rent presumably for the months of January, February and March, 1987 were remitted to the respondent much before the sending of notice of demand dated 7th May, 1987 by the respondent to the appellants. It is only money order in the sum of Rs. 40.00 towards the rent for the month of April and May, 1987 whereof Ex. Rw 1/7 is the coupon which was sent to the respondent on 14.5.1987 as is evident from the seal of the post office appearing on the postal receipt attached with that coupon. Assuming for the sake of argument that the latter money order in the sum of Rs. 40.00 was refused to be taken by the respondent as per own showing of the appellants they did not tender the rent for the months of January, February and March, 1987, admittedly due from them within two months of the receipt of the said notice of demand by them. Therefore, having availed of benefit of Section 14[2] of the Act in E. 120/81 earlier they had clearly committed second default and the Addl. Controller was, therefore, fully justified in passing the impugned judgment under Section 14(1)(a) against them. For the foregoing discussion, additional evidence which the appellants want to lead under Rule 27of0rder41 Civil Procedure Code . for which an application has been filed by them along with the memo of appeal is hardly of any relevance in deciding the present appeal."

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It is also clear and borne from the record that yhr pstyird hsbr gbrrn vondidyrtly litigating. The respondent also filed a petition for eviction under Section 14(1)(e) read with Section 25B of the Act,inter-alia claiming eviction on the ground of bona fide requirement. The matter has since been disposed of by the Additional Rent Controller by Order dated 6th December, 1995. The learned Controller has rejected the plea of bonafide requirement of the respondent and dismissed the petition for eviction on that ground. For the aforesaid resons, this petition is allowed and the impugned judgements are set aside. There will be no order as to costs.