Smt. Kamla Devi vs Shri Sadhu Ram
1999 Latest Caselaw 860 Del

ORDER

Vijender Jain, J.

1. A petition under Section 14(1)(a) of the Delhi Rent Control Act was filed by the appellant-landlady against the respondent on the ground that respondent had not paid the arrears of rent in spite of notice of demand dated 13.12.1977 demanding that the rent had not been paid from 1st January, 1976 at the rate of Rs 9/- per month. The appellant also filed an eviction petition earlier against the respondent on the ground of nonpayment of rent. Same was dismissed by the Addl. Rent Controller. Aggrieved by the said dismissal by the Addl. Rent Controller, an appeal was filed by the appellant against the said order dated 30.10.1975 before the Rent Control Tribunal, who allowed the appeal and set aside the finding of the Addl. Rent Controller and upheld the ground of non-payment of rent. The Rent control Tribunal held that as the respondent has complied with the order under Section 15(1) passed in the proceedings in the trial court, he was allowed the benefit of Section 14(2) of the Act.

2. In the second eviction petition which is the subject matter of present appeal, it was contended by the appellant that a second default has been committed in the payment of rent and as the respondent had already enjoyed the benefit of Section 14(2), the petition be allowed. The Addl. Rent Controller held that as the respondent had enjoyed the benefit of Section 14(2) it was a case of second default and passed an eviction order under Section 14(1)(a) and ordered eviction of the respondent.

3. Aggrieved by the said order, the respondent-tenant filed an appeal before the Rent Control Tribunal pleading that as the order of the Rent Control Tribunal granting benefit of Section 14(2) was dated November 18, 1978 and the notice of demand was dated December 18, 1977, i.e. prior in time before a second default was committed in the earlier proceedings, benefit of Section 14(2) of the Act must be accorded to the tenant. Learned Rent Control Tribunal held that the benefit of Section 14(2) was accorded to the tenant on November 18, 1978 and it was on that date that the respondent was held to be not entitled to suffer an order of eviction in the earlier proceedings on the ground of non-payment of rent. Prior to the said date, the tenant was not held by any court to be a defaulter in the sense that thereafter in spite of valid notice of demand he has failed to pay or tender the rent. Therefore, the Rent Control Tribunal held that in 1977 the respondent at best could have committed again a default and held that no second default was committed because no notice of demand was given after benefit of Section 14(2) was given. On the basis of the order of Rent Control Tribunal, Mr. Anil Kumar, learned counsel for the respondent has contended that rent was deposited on 26.12.1978, after the first appeal was allowed by the Rent Control Tribunal on 18.11.1978. He contended that Rent Control Tribunal rightly held that benefit of Section 14(2) was not taken by the respondent and, therefore, there was no second default committed by the respondent. Mr. Anil Kumar has further contended that when the first eviction petition was dismissed on 30.10.1975, the respondent filed an application dated 10.2.1976, to deposit the rent, which was dismissed by the Addl. Rent Controller. The appeal from the first eviction petition preferred by the appellant-landlady was allowed on 18.11.1978 and the arrears of rent were deposited in Court on 26.12.1978. Therefore, no default has been committed. The benefit of Section 14(2) has not been taken by the respondent and the notice of demand dated 30.11.1977 is prior to the date of the first appeal, cannot result into a second default. In support of his contention, learned counsel for the respondent has cited Shri Munshi Lal Vs. Thakur Prem Chand 1970 RCJ 496.

4. I have heard the learned counsel for both the parties at length. The case of the appellant before the Rent Control Tribunal was that a notice of demand was sent by Regd. post as well as under Certificate of Posting to the respondent which he refused to accept. He has placed on record postal receipt Ex.AW 1/7. UPC is Ex.AW 1/8 and the refused envelop Ex.AW 1/6, Appellant also examined postman as AW 2. The Addl. Rent Controller on the basis of the averment of the respondent wherein he has disputed the rate of rent to be Rs. 7/- per month and not Rs. 9/- per month (although it was admitted by respondent in earlier proceedings that rate of rent was Rs. 9/-) held, in view of the evidence before him, that demand notice was served on the respondent on 28.12.1977.

5. The appellant has demanded that the rent from 1.1.1976 till date of the notice of demand dated 13.12.1977. The short controversy is as to whether in view of the earlier eviction petition which was dismissed by the Rent Controller against which an appeal was preferred by the appellant which was allowed on 18.11.1978 by the Rent Control Tribunal holding that in view of deposit of rent made by the respondent on 26.12.1978 no second default has been committed by the tenant.

6. Law, on this score, is very clear. For every default on the part of the tenant, the landlord is entitled to issue a demand notice for arrears of rent and if the same is not complied with within the statutory period of two months then the landlord has a right to seek eviction on the ground of non-payment of rent. The cause of action arose in favour of the appellant as soon as the period of two months after service of notice of demand on 28.12.1977 expired. The question whether the appellant has enjoyed the benefit of Section 14(2) of the Delhi Rent Control Act or not, the answer is in the affirmative. The respondent had already enjoyed the benefit of Section 14(2) in terms of earlier eviction petition (Ex. AW 1/1), order under Section 15(1) as Ex. AW 1/3 and order of Rent Control Tribunal dated 18.1.1978 as Ex.AW 1/4. It was held by the Rent Control Tribunal that ground of non-payment of rent was upheld, the tenant has not complied with the order under Section 15(1), has enjoyed the benefit of Section 14(2) and the respondent was directed on 9.6.1969 in eviction petition No. 338/69 to deposit the arrears of rent from 1.12.1966 onwards at the rate of Rs 9/- per month within one month from that date and to deposit the future rent month by month by 15th of each succeeding month. In view of the said order, the respondent already enjoyed the benefit of Section 14(2), therefore, the respondent has committed a second default. The argument of the learned counsel for the respondent that the appeal was in continuation of the eviction petition will not help the respondent to escape from the liability to pay rent month by month. Appeal was allowed in the year 1978, it will relate back to the date when the eviction petition was instituted.

7. Therefore, the appeal is accepted. The order of the Rent Control Tribunal is set aside and that of Addl. Rent Controller is restored.

8. Appeal allowed.