Narain Dass P. Godhwani vs Nenu Mal (Now Deceased) And Anr.
2006 Latest Caselaw 2041 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CM No. 15449/2006

Allowed subject to all just exceptions.

CM (M) No. 1940/2006

1. The respondents / landlords filed an eviction petition against the petitioner / tenant under Section 14(1)(a) of the Delhi Rent Control Act, 1958 ( hereinafter to be referred to as, 'the said Act' ) on account of non-payment of rent in respect of the tenanted premises.

2. The Additional Rent Controller ( hereinafter to be referred to as, 'the ARC' ) in the said proceedings considered the issue of interim deposit of rent in terms of Section 15(1) and 15(7) of the said Act. The relevant provisions read as under:

15. When a tenant can get the benefit of protection against eviction

(1) In every proceeding for 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.

...

(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.?

3. There was no dispute about the landlord-tenant relationship or of the initial rate of rent at Rs. 800/- per month, but the dispute arose on account of the claim by the original landlord (predecessor-in-interest of the respondents / L.R.s) that the notice was served for enhancement of rent as permitted by Section 6A of the said Act, but the enhanced rent was not paid. The petitioner disputed the receipt of the notice and claimed that the enhanced amount was not payable. It was further submitted that rent was being regularly deposited under Section 27 of the said Act. The ARC passed an order on 29.07.2004 directing the petitioner to either pay or deposit rent @ Rs. 880/- per month w.e.f. 01.02.1996, @ Rs. 968/- per month w.e.f. 01.06.2000 and @ Rs. 1,064.80 per month w.e.f. 01.03.2004 till the last date of the preceding month within one month from the date of the order and to continue to either pay or deposit the future rent on or before the 15th of each succeeding English calender month. It was also observed that the order was subject to the payment already made by the respondent by way of deposit in various courts under Section 27 of the said Act.

4. In order to appreciate the controversy, the relevant provisions are being reproduced hereunder:

6-A. Revision of rent.

Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent every three years.?

27. Deposit of rent by the tenant.

(1) Where the landlord does not accept any rent tendered by the tenant without the time referred to in Section 26 or refuses to neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:

Provided that in cases where there is bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.

5. The petitioner aggrieved by the same preferred an appeal before the Additional Rent Control Tribunal (hereinafter to be referred to as, 'the ARCT'). The principal plea advanced was that the petitioner had made deposits under Section 31 of the Punjab Relief and Indebtedness Act, 1934 (hereinafter to be referred to as, 'the Punjab Act') and the same had not been taken into consideration by the ARC while passing the impugned order.

6. On behalf of the respondents, it was urged that a number of petitions under Section 31 of the Punjab Act filed by the petitioner had been dismissed and he would have no objection to an adjustment of only those deposits whereby the court had passed a specific order allowing withdrawal without prejudice to the contentions of the parties. The ARCT disposed of the appeal by the order dated 04.05.2005 modifying the impugned order of the ARC to the extent that the last impugned order would be subject to such deposits made under Section 31 of the Punjab Act in respect of which there is an express order by the court in those proceedings enabling the landlord to withdraw the deposited amount without prejudice to the contentions of the parties and not where the objection may have been dismissed.

7. The respondents had, in the meantime, filed an application under Section 15(7) of the said Act for striking out the defense of the petitioner. This application arose on account of a grievance of the respondents that the petitioner had not complied with the order passed by the ARC on 29.07.2004 and that even if all the rents deposited by the petitioner in various proceedings are considered, there would still be willful defaults in depositing the rent. The petitioner, on the other hand, contended that he had been depositing the rent under Section 31 of the Punjab Act which had even been withdrawn by the respondents and if that was taken into account, there would be excess rent deposited.

8. The ARC found in favor of the respondents and, thus, struck off the defense of the petitioner in terms of the order dated 06.10.2005. The ARC found that as per the annexures filed by the respondents with their application, which had not been denied by the petitioner, most of the objections filed by the petitioner were dismissed for non-prosecution and no benefits could be availed of by the petitioner in that behalf. The ARC also took note of a recent judgment of the Apex Court in Atma Ram v. Shakuntala Rani where it has been held that the said Act provides for deposit of rent in the court of the ARC only under Section 27 of the said Act and, thus, any deposit made elsewhere could not be treated as a deposit within the meaning of the said Act. It was specifically held that any deposit made under Section 31 of the Punjab Act would not be available for adjustment by the tenant. The ARC repelled the plea of the counsel for the petitioner that since the judgment was pronounced only on 30.08.2005, the same should not affect the deposits made by the petitioner earlier to that date. This was so on account of the fact that the judgment really stated the legal position and would apply to all pending proceedings. The ARC found that the perusal of deposits showed several defaults by the tenant, but only the deposits and defaults after the order dated 29.07.2004 were taken into consideration. The petitioner was found not to have cleared the arrears of rent.

9. The petitioner aggrieved by this order filed an appeal before the ARCT and the appeal has been dismissed by a detailed order dated 29.05.2006. The ARCT took note of the plea of the petitioner about the deposits made under Section 31 of the Punjab Act and found that five of such petitions filed by the petitioner were dismissed. If the total amount deposited by the petitioner under Section 31 of the Punjab Act was taken into account in terms of the order of the ARCT dated 04.05.2006 where directions had been passed in respect of deposits and where the court had enabled the landlord to withdraw the deposited rent, the petitioner would still be found short of the deposit of the required amount of rent. Even the future rent to be deposited month by month by the 15th day of every succeeding English calender month was no so deposited. The ARCT rejected the plea of the petitioner that all deposits made under Section 31 of the Punjab Act should be treated as a valid deposit even though the earlier order of the ARCT dated 04.05.2005 was restrictive in nature. It was held that the petitioner was not entitled to adjustment of rent deposited under Section 31 of the Punjab Act for which the petitions had been dismissed. The ARCT also found substance in the plea of the respondents based on the judgment of the Apex Court in Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri 2005 RLR 44 (S.C.) holding that in case of directions by a Rent Controller to deposit rent in a petition filed for non-payment of rent and the failure to so deposit the rent, it is not open for the ARCT to grant him time to pay the amount with penalty. It was held that the court cannot exercise judicial discretion in favor of a undeserving or a dishonest person. The ARCT held that the plea of waiver was not available to the petitioner merely on account of withdrawal of rent by the landlord as there should be express and conscious abandonment of a right by a landlord. There has to be strict compliance by the tenant of the provisions of Section 15(1) of the said Act.

10. The submissions of learned Counsel for the petitioner today also are of the same effect.

11. It must be observed at the inception itself that the present petition challenging the impugned orders has been filed under Article 227 of the Constitution. The observations of the Apex Court in Mohd Yunus v. Mohd Mustaqim and Ors. may be usefully re-produced as under:

The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited ?to seeing that an inferior Court or Tribunal functions within the limits of its authority?, and not to correct an error apparent on the face of the record much less an error or law. In this case, there was in our opinion no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned subordinate judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision

12. The aforesaid, thus, leaves no manner of doubt that it is not the function of this Court in exercising jurisdiction under Article 227 of the Constitution of India to derive a different conclusion on the basis of the same material sitting as a court of appeal. The observations in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) SC 465 also support the view that in exercise of such supervisory jurisdiction, this Court is not to indulge in re-appreciation or re- evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. It is only where a subordinate court has assumed jurisdiction which it does not have or has failed to exercise jurisdiction which it has or the jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has resulted would the High Court be required to step in.

13. It is no more res integra that any deposit made by the petitioner / tenant under Section 31 of the Punjab Act could not be construed as a valid deposit of rent under the said Act in view of the judgment of the Apex Court in Atma Ram's case (supra). The judgment set out the prevalent legal position. There is no fresh amending legislation which has been brought into force for the petitioner to contend that it cannot have retrospective effect. If the petitioner has wrongly deposited rent under Section 31 of the Punjab Act, the petitioner cannot avail of the benefit of the same in view of the judgment of the Apex Court in Atma Ram's case (supra).

14. The second aspect to be considered is that even if the order of the Tribunal dated 04.05.2005 is taken into consideration, the benefit to the petitioner was available only for such deposits made under Section 31 of the Punjab Act where leave had been granted to the landlord to withdraw the amount without prejudice to the rights and contentions of the landlord. The benefit was not available where petitions had been dismissed or where such order had not been passed. Even if this parameter is applied, the petitioner has been found by both the courts below to be in arrears of rent. This is a finding of fact, which is not required to be interfered with in the present proceedings.

15. I am, thus, of the considered view that the impugned orders striking out the defense of the petitioner for non-deposit of rent within the stipulated time- period cannot be said to suffer from any patent or jurisdictional error.

16. Dismissed.