Shanti Sarup Khullar vs O.P. Sood
1998 Latest Caselaw 305 Del

JUDGMENT

Manmohan Sarin, J.

1. By this common judgement, I would be disposing of CM.(M).11/96 and CM.(M).525/97, being petitions preferred by the petitioner under Article 227 of the Constitution of India.

2. CM.(M).525 of 1997, filed on 25.10.1997, challenges the order dated 9.5.1995 under Section 15(1) of the Act, directing the petitioner to deposit rent at the rate of Rs. 3,450/- per month, with effect from 1.5.1994, within a month, with directions to continue to pay or deposit future rent by 15th of succeeding month. Petitioner also assails the order dated 19.12.1995, passed by the learned Rent Control Tribunal, dismissing his appeal against the order dated 9.5.1995. The petition is accompanied by an application for condensation of delay, under Section 5 of the Limitation Act.

3. CM.(M).l1/96, filed on 6.1.1996, is directed against the order dated 29.8.1995, passed by the learned Additional Rent Controller, striking out the defense of the petitioner under Section 15 of the Delhi Rent Control Act (hereinafter referred to as the 'Act') and order dated 19.12.1995, passed by the learned Rent Control Tribunal, dismissing the appeal against the order dated 29.8.1995.

4. Petitioner appeared and argued CM.(M).525/97 himself, while CM.(M).11/96 was argued by his counsel, Mr. Rakesh Tikku. The hearing in the matter was adjourned several times at the request of petitioner and his counsel. Finally hearing was concluded on 19.2.1998 in CM.(M).525/97 and on 11.3.1998 in CM.(M).l1/96. Synopsis of submissions was filed by the petitioner.

5. The relevant facts and sequence of events leading to the filing of the two petitions are as under:

(i) Respondent on 10.8.1994 had served a notice of demand dated 1.5.1994, on the petitioner for payment of arrears of rent @Rs. 3,450/- per month in respect of the tenanted premises, viz. C-1/211, Janakpuri, New Delhi. No reply was sent by the petitioner to the said demand notice, despite its service. Respondent filed Eviction Petition No. 238/94 on 24.12.1994 against the respondent under Section 14(1)(a) of the Act. On 9.5.1995, order under Section 15(1) of the Act, directing deposit of arrears of rent with effect from 1.5.1994 and for deposit of future rent was passed after filing of the written statement and hearing the parties.

(ii) Respondent had earlier filed a petition under Section 14(1)(e) of the Act, wherein petitioner had sought and was granted leave to contest.

(iii) Petitioner did not comply with the order under Section 15(1) of the Act for deposit of arrears or rent within one month. He preferred an appeal against the said order before the learned Rent Control Tribunal. No stay of the order of deposit was granted. Finally, the appeal was dismissed by the Rent Control Tribunal on 19.12.1995.

(iv) On 13.7.1995, respondent filed an application under Section 15(7) of the Act for striking out petitioner's defense, in the absence of any deposit of rent for over two months. Reply was filed wherein petitioner mentioned filing of appeal before the learned Rent Control Tribunal, bearing No. 513/95 and sought extension of time for payment. Vide order dated 29.8.1995, the defense of the petitioner was struck out.

(v) Petitioner, on 19.9.1995, challenged the order dated 29.8.1995 by filing an appeal before the Rent Control Tribunal. This appeal was preferred without either the certified copy of the impugned order or an application for exemption from filing the certified copy. The Rent Control Tribunal, on 19.12.1995, dismissed the appeal on merits as also being barred by limitation.

(vi) Order dated 29.8.1995 passed by the learned Additional Rent Controller and Order dated 29.12.1995, passed by the learned Rent Control Tribunal, are subject matter of challenge in CM.(M).l1/96.

6. In CM.(M).11/96, petitioner, on 11.12.1996, was directed to deposit the arrears of rent by 20.12.1996 and the amount deposited was directed to be released to the respondent.

7. Petitioner, who had, till then, not challenged the order passed by the learned Rent Control Tribunal dated 9.5.1995 under Section 15(1) of the Act and the order dated 19.12.1997 of the learned Rent Control Tribunal, dismissing the appeal, filed CM.(M).525/97 on 25.10.1997, assailing both the orders.

8. Petitioner's case against the orders under Section 15(1) and 15(7) of the Act and the corresponding appellate orders, may be summarised as follows:

9. Petitioner contends that the petitions filed under Section 14(1)(e) and 14(1)(a) of the Act are not maintainable, being for part of tenanted premises. The real tenant of the premises is M/s.Whytex Enterprises and not the petitioner. It is claimed that petitioner is only one of the partners of the said firm, besides the petitioner's mother and brother, Shri Sandeep Khullar, who are the other partners. Petitioner also claims the rate of rent to be Rs. 3,100/- and not Rs. 3,450/- per month Besides, the respondent, it is alleged, had in April 1994, taken possession, temporarily, of the mezzanine on assurance of it being returned. Reduction in rent of Rs. 800/- per month is claimed to be admissible with effect from May 1994. Petitioner states that respondent is not the exclusive owner of the premises in suit. No notice of demand has been served on the actual tenant. For the above reasons, petition for eviction is said to be not maintainable. Payments were made by the partner Mr. Sandeep Khullar on behalf of the firm and not by petitioner. Petitioner also claimed that the respondent's claim of rent for March and April 1994 having been paid by cheques at the rate of Rs. 3,450/- by petitioner has been found to be false. It is also claimed that counterfoils of receipts have not been signed by petitioner. In nutshell, the submission of petitioner is that the respondent, by taking false stand, had fabricated the counter foils of receipts at the rate of Rs. 3,450/-. Respondent is alleged to have obtained the impugned order under Section 15(1) of the Act by misrepresentation and fabrication of record. It is claimed that the fraud by the respondent could be fathomed only on 6.10.1997 during his cross-examination. This is offered as an explanation for the delay in filing CM.(M).525 of 1997.

10. As regards CM.(M).l1/96, which challenges the order striking out the defense, the submission of the petitioner is that immediately upon the service of the application under Section 15(7) of the Act, he moved an application for obtaining interim stay of the order under Section 15(1) of the Act. Petitioner submits that since the Rent Control Tribunal was on long leave, an effective order of stay could not be obtained in the appeal that had been preferred against the order passed under Section 15(1) of the Act. It is claimed that on 17.8.1995 and 29.8.1995 petitioner prayed for extension of time to make the deposit and for not disposing of the application under Section 15(7) of the Act till disposal of the appall before the Rent Control Tribunal against the order under Section 15(1) of the Act. Petitioner claims to have brought to the Court a cheque bearing No. 417347 dated 29.8.1995 for the entire arrears of rent. The landlord/respondent did not accept the same and the Court then passed the impugned order on 29.8.1995, striking out the defense. The appeal against the order striking out the defense was heard on 16.12.1995, when it was discovered that neither the certified copy of the order had been filed nor an application had been moved for exemption. Petitioner moved an appropriate application, supported with an affidavit of the junior counsel, seeking condensation of delay in filing the appeal and exemption from filing the certified copy. The appeal was dismissed as being barred by limitation as also on merits. It is in these circumstances that CM.(M).11/96 was filed.

11. Petitioner claims that respondent unjustly declined to accept the arrears of rent tendered by way of cheque, on the possibility of the cheque being dishonoured. It was only in the proceedings before the High Court that the Court passed the order directing the payment/deposit by the petitioner and acceptance of the same by the respondent.

12. The crux of the submission of the petitioner is that the Rent Controller is vested with the discretion in the matter of striking out the defense. Mere non-payment does not make it a wilful default and petitioner's bonafides are clear from the amount being offered before the court, when request for extension of time was made. Counsel submits that there are serious disputes not only with regard to the quantum of rent, but also as to whether it is the liability of the petitioner or the firm. It was on account of the non-availability of the appellate forum, due to the Presiding Officer being on long leave, that the appeal of the petitioner could not be heard against the order striking out the defense. Petitioner had, in fact, prior to the passing of the order striking out the defense on 29.8.1995, offered to pay arrears of rent by cheque. Petitioner seeks sympathy and leniency. Learned counsel for the petitioner also relies on the judgement in Collector Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. in support of his submission that mere delay on the part of one party should not give undue advantage to the other party. Reliance is also placed on Kamla Devi v. Vasdev reported as JT (1) 1995 SC 142, wherein the Apex Court has reiterated that Section 15(7) of the Act gives the discretion to the Rent Controller in striking out the defense and it is not mandatory to do so and such discretion should not be mechanically exercised without application of mind to the facts of the case.

13. Having perused the record and noted the relevant facts as well as submissions of the petitioner, let us now consider the same.

14. Learned Additional Rent Controller passed the order directing deposit of rent at the rate of Rs. 3,450/- per month with effect from 1.5.1994. The learned Additional Rent Controller duly noted the pleas of the petitioner with regard to the mezzanine forming part of the tenanted premises and the same being taken back temporarily in April 1994 as also the petitioner's allegation of being entitled to a reduction of Rs. 800/- per month in rent. Further, the agreed rate of rent being Rs. 3,100/- and not Rs. 3,450/- per month. Other pleas of the petitioner with regard to the respondent O.P. Sood not being the exclusive owner and receipts being issued by Mr. K.C. Nijhawan were also noticed. Respondent had produced the perpetual lease deed in his favour. Mr. K.C. Nijhawan is the attorney of the respondent. The learned Additional Rent Controller relied on the counterfoils of the rent receipts, mentioning the rate of rent at the rate of Rs. 3,450/- per month. Petitioner has alleged these counterfoil receipts to be forged and not signed by him. Lot of emphasis has been laid by the petitioner on respondent's attorney having falsely deposed that payments for the months of March and April 1994 having been made by cheque while in the pass-book the said entries were found to be in cash. The deposition was subsequent to the passing of the order.

15. An order under Section 15(1) of the Act is an interim order and is passed on a prima facie view of the matter. The payments made are subject to the final order that is passed after recording of evidence etc. In the instant case, the learned Additional Rent Controller noticed the pleadings of the parties and based on the documents and pleadings before him passed the order holding the rate of rent to be Rs. 3,450/- per month. It is significant to observe that petitioner does not dispute the receipt of the notice of demand which had been issued, claiming the rent to be due at the rate of Rs. 3,450/- per month. No reply to the said notice has been produced on record. Petitioner's case, as noticed, was only that the firm, wherein the petitioner, his mother and brother are partners, is the tenant and not the petitioner in his personal capacity. Petitioner significantly did not claim any payments of rent either on his own behalf or on behalf of the said firm to state that there were no arrears. There does not appear to be any infirmity or error in the order passed by the learned Additional Rent controller and the Rent Control Tribunal. The petitioner's claim of reduction in rent on account of temporary handing over of the mezzanine, at this stage was rightly rejected. The prima facie view taken by the learned Additional Rent Controller, of their being relationship of landlord and tenant and the pleas of suspension of rent on account of surrender of mezzanine being without merit, cannot be faulted with. It is significant that the petitioner has not produced at this stage even a single letter on record of protest for non-availability of the mezzanine.

16. During the course of hearing, learned counsel for the respondent had referred to certain letters, written by the petitioner to the tax authorities, wherein petitioner admitted himself to be the tenant and confirmed having paid the rent. Other correspondence referred to by the respondent's counsel, which the petitioner candidly admitted, also shows that it was the petitioner who has been corresponding with the respondent as a tenant. Merely because certain debit vouchers are produced by the petitioner showing the debit to the firm or the cheque being paid by the firm, would not make the said firm a tenant. Learned counsel for the respondent has also explained that the mentioning of the payment in the deposition, which was a subsequent event, in respect of the rent for the months of March and April 1994, as being by cheque, was a mistake. The impugned orders under Section 15(1) of the Additional Rent Controller and the Rent Control Tribunal do not call for any interference. The learned Rent Control Tribunal has rightly held that the appeal was barred by limitation and that petitioner had failed to show sufficient ground for condensation of such delay.

17. The legal position on the question of Section 15(7) of the Act is well-settled. The Section confers upon the Rent Controller a discretion in the matter of striking out of defense. Small and marginal delays in deposit deserve to be condoned, especially when the order is substantially complied. Moreover, if there are extenuating and mitigating circumstances, coupled with plausible explanation for default, the defense may not be struck out and delay can be condoned. However, cases of contumacious and wilful default, gross negligence, reckless conduct arid indifferent attitude to order of deposit, would render the defense liable to be struck out.

18. The question that comes up for consideration is that the impugned order for clearing the arrears of rent was passed on 9.5.1995. Petitioner preferred an appeal against this order on 1.7.1995. Petitioner was required to comply with the order, irrespective of the order being correct in law or not, within one month. Petitioner was not granted any stay in respect of the said order. He neither paid the arrears of rent from May 1994 nor paid the rent for the months of June and July, 1995. It was in these circumtances, that the respondent moved an application for striking out the defense. Petitioner, who had not complied with the order for deposit of rent, if at all was genuine and bonafide, would have tendered the rent by pay order or demand draft within the 30 day period or would have sought extension of time for deposit of rent without any delay. The appeal against the order under Section 15(1) of the Act was also dismissed by the learned Rent Control Tribunal on 19.12.1995. This order, as noticed earlier, was not challenged by the petitioner till the filing of CM.(M).525/97 on 25.10.1997. Petitioner has failed to tender any plausible explanation for non-compliance with the order under Section 15(1) of the Act or the delay in challenging the order under Section 15(1) of the Act and the appellate order passed by the learned Rent Control Tribunal. The explanation of the petitioner of having offered to pay the amount by cheque after being in wilful default for over three months is hardly an explanation. Petitioner has failed to set out any mitigating or other extenuating circumstances which would impel this Court to interfere with the exercise of discretion by the trial court or the appellate court in striking out the defense.

19. I find no infirmity in the orders passed under Section 15(7) and 15(1) of the Act. The inferences and reasoning adopted by the learned Additional Rent Controller are plausible. Moreover, there is unexplained delay and laches in filing CM.(M).525/97.

20. Interference by this Court under Article 227 of the Constitution is also not warranted as there are concurrent findings of the two courts below and the Legislature has consciously deleted the provisions of second appeal under the Rent Control Act. The legislative intent should not be defeated by invoking the powers under Article 227 of the Constitution of India as a substitute to the second appeal.

21. The petitions have no merit and are dismissed.