Surinder Kumar Jain & Anr. vs Champa Rani
1999 Latest Caselaw 800 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the order of Additional Rent Controller under Section 15(1) of the Delhi Rent Control Act (for short 'DRC Act'), the petitioner preferred an appeal before the Rent Control Tribunal. The Rent Control Tribunal dismissed the appeal of the petitioner holding that there was no merit in the appeal. Aggrieved by the said order of dismissal of the appeal, petitioner has filed a petition under Article 227 of the Constitution of India. At the outset, I must say that on the finding of fact with regard to deposit of rent by two Courts below whether deposit was in time or not, ordinarily a petition under Article 227 of the Constitution of India ought not to have been maintained.

2. Mr. Meet Malhotra, learned counsel appearing for the petitioners, has contended that with regard to the rent for the months of January, 1993 to June 1993 amounting to Rs. 2310/- same was deposited on 25.1.1993 while the rent for the months of July, 1993 to December, 1993 was deposited on 7.8.1993. The rent for the next six months from January, 1994 to June, 1994 was deposited on 4.3.1994. That amount was deposited after delay of 18 days, however, that delay was condoned by the Rent Control Tribunal.

3. Mr. Malhotra has contended that the delay was tried to be explained on an affidavit before the Rent Control Tribunal but the Additional Rent Controller did not take into consideration the same as the same was not permitted to be brought on record. That affidavit is at page - 12 of the paper book. In the said affidavit, it has been alleged that the delay occurred on account of the fact that at the relevant time petitioners were away to Bombay for audit and tax audit of Samrat Properties Limited. The petitioners were out of town for some work which has been explained in the said affidavit. It has been further contended that, as a matter of fact, some instructions were left by the petitioners in their office that rent was to be deposited in time but as the employee concerned went away, the rent was not deposited in time and there was a bona fide mistake by the petitioners and, therefore, same ought to have been condoned by the Rent Control Tribunal. Mr. Malhotra has also challenged the order of dismissal passed by the Rent Control Tribunal on the ground that there was no ground for Rent Control Tribunal to hold that the delay was contumacious. In support of his contentions, learned counsel for the petitioners has cited the case of Ram Murti Vs. Bhola Nath & another :-

"The narrow construction placed by the Full Bench of the Delhi High Court in Delhi Cloth & General Mills Co. Ltd. Vs. Him Chand, on the powers of the Controller contained in Sec. 15(7) in the context of Sec. 14(2) does not appeal to reason. It is not inconceivable that the tenant might fail to comply with the requirements of Sec. 15(1) by the date line due to circumstances beyond his control. For instance, it might not be possible for the tenant to attend the Court to make the deposit on the last day if it is suddenly declared a holiday or on account of a serious accident to himself or his employee, or while going to the treasury he is waylaid, or is stricken with sudden illness, or held up on account of riots or civil commotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctually making the deposit commits breach of trust and disappears, or some other circumstances intervene which make it impossible for him for reasons beyond his control to physically make the deposit by the due date. There is no reason why the refusal of the Rent Controller to strike out the defense of the tenant under Sec. 15(7) in such circumstances should not ensure to the benefit of the tenant for purpose of Sec. 14(2)."

4. On the other hand, Mr. Rajiv Nayyar, learned counsel appearing for the respondent, has contended that the delay was contumacious. The petitioners were habitual defaulters and even if the delay of 18 days in making the deposit of rent was condoned, for the subsequent period there was inordinate delay in deposit of the rent. Mr. Nayyar has further contended that the petitioners knew about the passing of the order under Section 15(1) of the DRC Act as the same was passed on 29.8.1992, therefore, a tenant, who resides in the property and uses the same, is under an obligation to make the payment/tender the rent month by month when it becomes due and tenants, like the petitioners, do not deserve any indulgence much less in proceedings which have been filed after concurrent findings of fact by the two courts below. In support of his contentions, Mr. Nayyar has relied upon Jain Motor Car Co., Delhi Vs. Swayam Prabha (Smt.) & Another :-

"Applying the above principles to the instant case, it cannot but be held that the view expressed by the Rent Controller, the Rent Control Tribunal as also the High Court that the time under Section 15(1) for depositing the rent could not be extended nor could the delay be condoned was wholly erroneous. The whole approach, therefore, from the beginning, was based on wrong premises. The High Court went a step further. While the Rent Controller and the Rent Controller Tribunal had not struck out the defense of the appellant on the ground that 15 days' default in depositing the rent for February 1972 was not willful or contumacious, the High Court, on an erroneous view, struck out the defense. We have already noticed above that striking out of defense under Section 15(7) of the Act is in the discretion of the Rent Controller. Since the discretion appears to have been properly exercised by the Rent Controller as also by the Rent Control Tribunal, the High Court, in the particular circumstances of the case, was not justified in interfering with that discretion and striking out the defense of the appellant..............

At one time, we were inclined to remand the case to the Rent Controller so that the appellant's plea regarding extension of time in depositing the rent for the month of February 1972 may be considered but having regard to the fact that the appellant had already pleaded those facts which have already been considered by the High Court, we feel that it would not be in the interest of justice now to remand the case as the High Court appears to be justified in coming to the conclusion that the appellant was negligent and careless as the rent could still be deposited by any other partner, if the attorney had fallen ill or one partner had forgotten the date of deposit. Any other explanation offered by the appellant would be obviously an after thought and, therefore, as pointed out earlier, it will not serve any purpose to remand the case to the rent Controller. The result is that the appeal has to be dismissed and is hereby dismissed but without any order as to costs allowing three months' time to the appellant to vacate the premises on filing the usual undertaking to this effect in this Court failing which the respondent-landlady will be entitled to recover possession from the appellant through police force."

5. Mr. Nayyar has also relied upon the case of Shri Rajbir Singh Vs. Shri Mohan Lal Sharma 1996 III AD (Delhi) 551:-

"It cannot be doubted that the paper setter (one or more) is the author of the question paper. However, if it can be held that CBSE-defendant No.1 is a public under taking and the question paper has been brought into existence under its direction or control then the CBSE-and not the paper setter - would be proper and timely advice of counsel. The Additional Rent Controller considered the facts and evidence on record and held that no circumstances were given by the tenant explaining that the nondeposit of arrears of rent was beyond the control of the appellant. The appellant made repeated defaults in deposit of rent which he was to make every month and thus the Controller held that he committed several defaults continuously and without any reason. The findings recorded by the Additional Rent Controller were duly considered by the Rent Control Tribunal. The learned Judge reiterated the same and upheld the order striking out the defense under Section 15(7) of the Act. The only ground which has been agitated before me is that the appellant must not suffer due to the lack of timely advice of the counsel........."

6. I have heard the arguments advanced by the learned counsel appearing for both the parties at length. Let me deal from the facts of this case as to whether default was wilful and contumacious or not. After the deposit of rent was made upto 1994 on 4.3.1994, the next deposit of rent was made by the petitioner of Rs.1540/- on 10.4.1995. That was deposit for the months July, 1994 to October, 1994. Rent for the month of July, 1994 was to be deposited by 15.8.1994. There was delay of 7 months and 25 days in deposit of the aforesaid rent, thereafter the rent for the month of August, 1994 was deposited with the delay of 6 months and 25 days, similarly rent for September, 1994 was deposited with the delay of 5 months and 25 days and the rent for the month of October,1994 was deposited with the delay of 4 months and 25 days. There is no cogent explanation to explain the delay. The petitioners, who are Chartered Accountant by profession, are not lay persons who do not understand the effect of an order passed under Section 15(1) of the DRC Act. It was incumbent upon the petitioners to take all steps in view of the order passed by the Additional Rent Controller under Section 15(1) of the DRC Act on 29.8.1992. In Jain Motor Car Co. Delhi (supra), it was held :-

"The High Court thus struck out the defense by substituting its own discretion in place of the Rent Controller and the Tribunal both of whom had held that the default by the appellant was not wilful. The main question was whether the appellant was entitled to extension of time in depositing the rent or should he be evicted for not depositing the rent for only one month in time particularly when the default was not wilful or contumacious.

7. Similarly, in Shri Rajbir Singh's case (supra), it was held :-

"...........The repeated defaults are not denied. The conduct of the appellant cannot be condoned as no tenant is entitled to use the premises free and if the deposit is not made within time, the consequences follow. The justification is clearly an after thought in the present facts. The law has been well settled in the case of M/s. Jain Motor Car Co. Delhi (supra) that the Controller certainly has the discretion to condone the delay but this discretion is to be exerted after due application of mind to the facts of each case. The Controller as well as the Rent Control Tribunal has considered the pleas of the appellant and in view of the admitted facts have come to the conclusion that the conduct of the appellant was either intentional or contumacious and the defense had been rightly struck out. The discretion so exercised is based on cogent grounds and does not call for interference in exercise of powers under Section 39 of the Act in the present Second Appeal."

8. Failure to deposit the rent month by month, as I have explained above, would amount to wilful and contumacious default. I do not find any infirmity with the order passed by the Additional Rent Controller. However, nothing said above would be an expression of opinion on the merit of the case.

9. Petition is dismissed.