Smt. Shobha David vs Sh. Om Prakash Gulati & Anr.
2009 Latest Caselaw 355 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CM(M) 1162/2008 & CM 14481/2008


                                                  Reserved on: January 30, 2009
%                                                 Date of Decision: February 03, 2009



SMT. SHOBHA DAVID                                     ..... Petitioner
                                       Through:       Mr. Manoj K. Singh with Mr.
                                                      Rupesh Gupta, Advocates

                                        Versus

SH. OM PRAKASH GULATI & ANR.                          ..... Respondents
                          Through:                    Mr. Amarjit Singh,
                                                      Advocate


CORAM:
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment?No
2. To be referred to the Reporter or not?Yes
3. Whether the judgment should be reported in the Digest? Yes



                        JUDGMENT

MANMOHAN, J

1. The present petition has been filed under Article 227 of the Constitution of

India seeking to set aside the order dated 30th August, 2008 passed by the

Additional Rent Control Tribunal whereby the Tribunal dismissed the

petitioner/tenant's appeal against an eviction order dated 22nd December, 2007 by

denying petitioner/tenant the benefit of Section 14(2) of the Delhi Rent Control Act,

1958 (hereinafter referred to as "the Act").

2. Mr. Manoj K. Singh, learned Counsel for petitioner/tenant submitted that

the initial default having been condoned by rejection of respondents/landlords'

application under Section 15(7) of the Act, the petitioner/tenant could have been

evicted only if she made a subsequent default in payment of rent for three

consecutive months. Mr. Manoj K. Singh stated that it was not even the

respondents/landlords' case that the petitioner/tenant had committed a second

default of non-payment of rent for three consecutive months. He clarified that even

according to the respondents/ landlords, the second default in payment of rent was

only for a period of six days and, therefore Mr. Singh submitted that the

petitioner/tenant was not liable to be evicted under the Proviso to Section 14(2) of

the Act. Section 14(2) of the Act reads as follows:-

"14. Protection of tenant against eviction.

(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause

(a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months."

(emphasis supplied)

3. Mr. Amarjit Singh, Learned Counsel for respondents/ landlords on the other

hand submitted that the impugned order of eviction had been passed not on the

ground of Proviso to Section 14(2) of the Act but on account of non-payment of

rent by the petitioner/tenant, which fell in Sections 14(1)(a) and 15 read with the

initial part of Section 14(2) of the Act.

4. Learned Counsel for respondent/landlords contended that as the

petitioner/tenant had failed to deposit the amount of Rs. 80,000/- approximately

towards arrears of rent with effect from 1st January, 2002 to 30th April, 2005, the

Additional Rent Controller on 10th April, 2005 passed an order directing the

petitioner/tenant to pay the arrears of rent to the respondents/landlords within one

month.

5. He stated that the petitioner/tenant had time till 10th April, 2005 to deposit

the arrears of rent in accordance with Section 15(1) of the Act. However, he

pointed out that the admitted position was that the arrears of rent were deposited by

the petitioner/tenant on 6th May, 2005 without any application for condonation of

delay. Mr. Amarjit Singh stated that though respondents/landlords' application

under Section 15(7) of the Act for striking off the tenants' defence was dismissed,

the Tribunal in respondents/landlords' appeal remanded the matter back to the

Additional Rent Controller leaving the issue of default open for determination at the

stage of Section 14(2) of the Act. Mr. Amarjit Singh stated that petitioner/tenant

further delayed the payment of rent of September, 2005 by a period of six days as it

deposited the rent only on 21st October, 2005.

6. On a perusal of the file, I find that both the Additional Rent Controller as

well as the Additional Rent Control Tribunal have given a concurrent finding of

fact that the petitioner/tenant had not only defaulted in payment of rent from

January, 2002 to 30th April, 2005 but had also not paid the same within the statutory

time period prescribed in Section 15(1) of the Act.

7. In my view, the petitioner/tenant's subsequent default in payment of rent for

the month of September, 2005 also shows that the petitioner/tenant is not entitled to

any discretionary waiver of default for making delayed payment of rent.

8. Moreover, I am of the view that dismissal of the respondents/landlords'

application under Section 15(7) of the Act by the Additional Rent Controller, did

not imply that the petitioner/tenant's initial default of payment of rent stood

condoned. In fact, the Tribunal by virtue of its remand order dated 9th December,

2005 clearly left open the issue of default by the petitioner to be considered at the

stage of Section 14(2) of the Act - which was considered by the Additional Rent

Controller vide her orders dated 26th July, 2007 and 22nd December, 2007, whereby

respondents/landlords' eviction petition was allowed on the ground of non-payment

of rent under Section 14(1)(a) of the Act.

9. Consequently, in my opinion the eviction order passed against the

petitioner/tenant was not passed under the Proviso to Section 14(2) of the Act, as

erroneously submitted by learned Counsel for petitioner/tenant, but was rightly

passed on the ground of non-payment of rent by the petitioner/tenant within the

time frame prescribed under Section 15(1) of the Act as provided in the initial

portion of Section 14(2) of the Act.

10. I may mention that I had offered reasonable time to vacate the premises to

the petitioner's counsel. However, the petitioner's counsel refused to accept this

offer on the ground that he had no instructions. Accordingly, present petition along

with pending application are dismissed.

MANMOHAN, J February 03, 2009 rn/sb