Globetech Engineers vs Ajay Chadha And Anr.
2002 Latest Caselaw 1272 Del

JUDGMENT

Usha Mehra, J.

1. The short point involved in this appeal is whether the Rent Controller can pass a composite order short the Act) as well as eviction order under Section 14(1)(a) of the said Act.

2. Briefly stated the facts are the Ajay Chadha and others sought eviction of M/s Globetech Engineers, appellants herein on the ground of non-payment of rent. The appellants are in occupation of premises No. 208, Pragati House, 47-48, Nehru Place, New Delhi on a monthly rent of Rs. 2,100/-. When despite service of notice the appellants did not pay the arrears of rent, petition for eviction was filed. Appellants despite service did not put in appearance, therefore, proceeded ex-parte. Ex-parte order was passed under Section 15(1) of the Act on 15th September, 1984 with a direction to pay the entire arrears at the agreed rate of rent payable from 1st June, 1983 within one month from the date of the order, failing which it was Further ordered that there will be deemed eviction of the appellant from the premises in question. Application filed by the appellant under Order 9 Rule 13, Code of Civil Procedure (in short CPC) was dismissed.

3. It is against the order of dismissal that the present appeal was preferred inter alia, on the ground that composite order is bad in law. Since there were conflicting decisions of our own High Court as well as other High Courts, therefore, one of us (Usha Mehra, J.) in order to get the matter resolved, referred this matter to be placed before a larger bench vide order dated 21st March, 1997. Now, the matter has come before this division bench.

4. Mr. Vijay Kishan jaitely to support his contention that the composite order passed by the Rent Controller Under Section 15(1) and Under Section 14(1)(a) of the Act is invalid and illegal placed heavy reliance on the decision of Supreme Court in the case of Chinnamarkathian alias Muthu Gounder and another (in C.A. No. 2197 of 1969), Chinna Gounder and Anr. (in C.A. No. 2198 of 1969) and Raja Gounder and Anr. (in C.A. No. 2199 of 1969) v. Ayyavoo alias Periana Gounder and Ors., . In that case the Apex Court was dealing with the provisions of Tamil Nadu Cultivating Tenants Protection Act (25 of 1955), and provisions of Sub-section 4(b) of Section 3 of the said Act. The Apex Court came to the conclusion that the provisions of the Act do not contemplate passing of a composite order and observed as under:-

"that the language employed in that sub-section was self-evident. After the application is received and parties are summoned and representations are head, the court must determine whether the cultivating tenant is in arrears of rent. If the answer is in the affirmative, it has to determine the arrears in terms of its money value. Thereafter, the Revenue Divisional Officer must ascertain relative circumstances must be relatable to the need of the landlord for prompt payment and the present prevalent circumstances of the tenant relatable to the paying capacity."

5. Reliance was also placed on the decision of our own High Court in the case of H.P. Vaid v. S.K.R. Bhandari (Delhi), S.A.O. No. 228 of 1977 where the composite order for deposit of rent as well as eviction on the failure to deposit of rent as well as eviction on the failure to deposit was held to be illegal and not sustainable. The learned Single Judge of this court while coming to this conclusion relied the decision of Supreme Court in the cases of Chinnamarkathian alias Muthu Nath and another etc. (Supra) and Ram Murti v. Bhola Nath and another, . Another Single Judge of this court in the case of Mohinder Singh v. Lajwanti, 1976 Rajdhani Law Reporter (Note) 66 at page 62 held that Rent Controller had no power to order eviction on anticipatory default. IN that case the Tribunal passed a composite order subject to condition that eviction would stand cancelled on deposit of money. The Court held that such an order was not legal. Similarly in the case of Debi Ram v. Devi Chand, 46 (1992) Delhi Law Times 705, this court held that composite notice is neither legal nor maintainable. Another bench of this court in the case of Prime Industries v. Rafeeq Ahmed, 1997 III AD (Delhi) 898 Look the same view. In the case of B.R. Mehta v. Atam Devi, 1989(1) Delhi Lawyer 58, the court while dealing with a similar proposition as to whether composite order under Section 15 and of eviction could be passed by the Rent controller thereby directing the eviction of the tenant if arrears are not paid within the stipulated period. After analysing the various provisions of the Act, the court concluded as under:-

"that the Controller cannot invoke the provisions of Section 15(7) at the time when an order under Section 15(1) is being passed."

6. While coming to this conclusion the learned Single Judge placed reliance on the decision of the Supreme Court in Chinanamar kathian's case (Supra).

7. Countering these arguments Mr. Vijay Kishan Makhija, Sr. Advocate contended that no fault can be found in a composite order. It is a valid order. He, however, contended that Supreme Court's decision in Chinanamarkathian's case (Supra) is distinguishable because in that case Apex Court was dealing with Tamil Nadu Cultivating Tenants Protection Act (25 of 1955) whereby Section 3 of the said Act placed an embargo on the eviction of a cultivating tenant and the protection extended to rendering a decree or order of a court for eviction nugatory. It was only because of the enabling provisions of Section 4 of Section 3 that enables the landlord to seek eviction of a cultivating tenant on the grounds which are available to him under the Act. Clause

(b) of Sub-section (4) of Section 3 lays down the procedures to be followed by the Revenue Divisional Officer at the time of granting the order. Hence the Revenue Divisional Officer in view of the specific provision provided under the Act could not pass composite order. But such provisions are missing under the Delhi Rent Control Act, therefore, the judgment in Chinanamarkathian's case (Supra) is distinguishable on facts as well as in law.

8. Mr. Vijay Kishan Makhija, in aid of his arguments that a composite order is valid, placed reliance on the following decisions of this court namely (1) Mebrose Ice Cream v. Jaswant Rai, 1979 (2) RCR page 95; (2) Chatter Singh v. Banarsi Lal, 1976 RCR 61; (3) Bhoj Dutta v. Brin Narain Bagai, 1972 FCR page 142; (4) Dharam Pal & Sons v. Shri Parmeshwari Dass, 1981 (2) All India Rent Control Journal 408; and (5) Kulwant Kaur v. Jeewan Singh vide SAO No. 91/71 decided on 25th October, 1971.

9. In order to appreciate the contentions raised by the counsel for the parties, let us understand the provisions of the Rent Control Act and in particular Sections 15(1), 15(7), 14 and (1)(a) which are reproduced as under:-

" Section 15(1)

In every proceedings of the recovery of possession of any premises on the ground specified in Clause (a) of the proviso to Sub-section (1) of Section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at the rate."

" Section 15(7)

If a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to the struck out and proceed with the hearing of the application."

" Section 14 Protection of tenant against eviction. - (1)

Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on the ground namely:-

Section 14(1)(a)

(a) that the tenant has neither paid nor tendered the whole of the arrears of the 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 of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (4 of 1882);

10. The cumulative effect of the reading of the above provisions of the D.R.C. Act would reveal that the Controller can invoke the provisions of Section 15(7) only after he has passed an order under Section 15(1) meaning thereby that the Controller has first at point of time come to a conclusion that the party i.e. the tenant has not paid the rent as claimed by the landlord, and after hearing the parties give direction to the tenant to pay to the landlord or deposit in the court the amount due at the agreed rate of rent with further direction that he will go on paying month by month the sum equivalent to the rent at the rate. After having passed such an order, the Controller has to give reasonable time and that time is also stipulated under Section 15(1) of the Act i.e., one month from the date of the order for the compliance of that order. It is only after the expiry of one month when the order is not complied with, the Controller can pass order under Section 15(7) of the Act. Therefore, reading of these two provisions makes it clear that the decree of eviction on account of non-payment of arrears of rent is to take effect is the future on the happening or non-compliance of the direction given by the Controller under Section 15(1) of the Act. Therefore, the composite notice directing to pay the arrears of rent within one month failing which eviction will take automatically effect on a default to occur in future is neither envisaged nor stipulated by the Act itself. We find that observation of the learned Single Judge in the case of B.R. Mehta (Supra) is based on sound reasoning. The Controller cannot invoke the provisions of Section 15(7) of the Act simultaneously while passing the order under Section 15(1) of the Act because the occasion for the Controller to exercise his jurisdiction under Section 15(7) of the Act is to arise only on the happening when the tenant fails to make payment or deposit as required under Section 15(1) of the Act. The jurisdiction of the Controller to strike off defense of the tenant under Section 15(7) of the Act will take place only after the eventuality of non-compliance of the order under Section 15(1) of the Act arises, which is a future event. In this view of the matter if the composite order is passed, in that case the Controller will be depriving the tenant of his right to contest his eviction under Section 14(1)(e). By passing a composite order the Controller becomes functus officio because of non-payment by the tenant eviction will automatically follow and that is not the import of the Act. the legislature in its wisdom never envisaged that the eviction is to follow automatically. On each application, the Controller has to apply his mind on the basis of the facts available on record. Moreover, if the order under Section 15(1) and 15(7) of the Act are passed simultaneously, the Controller will be deprived to extent the time beyond one month which otherwise in view of the settled position of law the Controller has power keeping in view the facts and circumstances of a case to extent the time for making payment of rent beyond one month. It is so held by the Apex Court in the case of Jain Motor Car Co., Delhi v. Smt. Swamy Prabha Jain and Anr., . But if the composite order is passed then the tenant will be deprived completely of asking of the extension even in a case where he can justify the non-payment within one month. Under Section 15(7) of the the court and satisfy it as to why his defense should not be struck off. If the court is satisfied with the explanation given by the tenant, it can extend the time for paying or depositing the arrears of rent as ordered by the Court. In that case court need not strike off his defense. This exercise the court will carry out only after the default has been committed and not earlier. Therefore, if the composite order is held to the valid then the right of the tenant in this regard will be completely taken away. the effect of the composite order is that it takes away the discretionary powers of the Controller.

11. Admittedly the learned Single Judges of this court prior to H.P. Vaid's case (Supra) were following the view that the composite order is permissible. In mebrose Ice Cream's case (Supra), the learned Single Judge expressed the view that by the strict letter of law, after making an order under Section 15(1) of the Act, the Controller must wait for a month to see whether that order is complied with or not. It is only then that it can be known whether the bar in Section 14(2) is to prevail. He, therefore, observed that the joint effect of those two Sections is to afford relief to the tenant where otherwise he is exposed to an order for recovery of possession. It appears the learned Single Judge overlooked the provisions of Section 15(7) of the Act while dealing with that case. Section 15(7) gives a tenant an opportunity to require the Controller to apply his mind and to decide whether to order the striking off of the defense or not. If the tenant justifies and satisfy the court as to why he could not make payment within a period prescribed under Section 15(1) of the Act, the Controller can extend the time and this he is permissible to do under Section 15(7) of the Act. But on account of the composite order, the right of the tenant to contest his eviction under Section 14(1)(a) of the Act is taken away. Thus, the Controller deprives him of his valuable right. This is the prejudice which would be caused if the composite order is passed. No doubt Chinanamarkathian's case (Supra) was not under the Delhi Rent Control Act but we cannot lose sight of the fact that the provisions of Section 3(4)(b) of the Tamil Nadu Cultivating Protection Act are pari-materia the same as Section 15(1) and Section 15(7) of the act. In Chinanmarkathian's case (Supra) the Supreme Court held that the composite order was not legal even though under Section 3(4)(b) there was no express provision requiring the Revenue Divisional Officer to once again apply his mind, after default had been committed whereas Section 15(7) of the Act requires the Controller to apply his mind while deciding whether to strike off the defense of the tenant for the default committed by him or to extent the time for making the payment. Therefore, composite order which is to take place in future if passed simultaneously would contravene the provision of the Act, and therefore, without jurisdiction.

12. Applying the principles of law as laid down by the Supreme Court in Chinanamarkathian's case (Supra), we have no hesitation to hold that the Controller after having passed the order under Section 15(1) of the Act has to wait for the stipulated period to expire before he passes the order under Section 15(7) of the Act because the order under Section 15(7) of the Act is to take effect on a default to occur in future.

13. In the present case Ajay Kumar Chadha and others filed eviction petition on the ground of non-payment of rent with effect from 1st June, 1983. The respondents/tenants were proceeded ex-parte and Mr. P.C. Chadha appearing as his own witness (AW-1), proved the service of demand of notice upon the tenant and also the rate of rent as Rs. 2,100/- per month. Since the rent had not been paid with effect from 1st June, 1983, hence the notice. This statement of Mr. P.C. Chadha remained unchallenged and unassailed on record. It is in this background that the learned Additional Rent Controller ordered to pay the entire arrears @ 2,100/- p.m. with effect from 1st June, 1983 within one month failing which order of eviction shall be deemed to have been passed against the respondents with respect to the premises in question.

14. In view of the law settled, proposition of Law as discussed above it can safely be concluded that the impugned order being a composite order cannot be sustained. The impugned order is accordingly set aside. Case is remanded back to the Controller to decide the same in accordance with Law. Parties are directed to appear before the Controller on 12.6.2002.