Sh. Manohar Lal (Deceased) ... vs Prem Nath Gera (Deceased) Through ...
2011 Latest Caselaw 2778 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CM(M) No. 638/2011 & CM Nos. 10303-10304/2011

%                                                   24th May, 2011

SH. MANOHAR LAL (DECEASED)
THROUGH LEGAL HEIRS                                     ...... Petitioners
                        Through:            Mr. V.B.Andley, Sr. Adv. with Mr.
                                            Rajinder Mathur, Mr. Priyank
                                            Sharma and Mr. K.L. Arya,
                                            Advocates.
                          VERSUS


PREM NATH GERA (DECEASED)
THROUGH LEGAL HEIRS                                     ...... Respondents
                        Through:             None

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this petition under Article 227 of the

Constitution of India, is to the impugned judgment dated 26.4.2011 of the

Additional Rent Control Tribunal which has directed eviction of the

appellants/tenants under Section 14(1)(a) of the Delhi Rent Control Act, 1958

(in short 'the Act), which is a provision for eviction for non-payment of rent.

An order for eviction is passed under Section 14(1)(a) of the Act, if the tenant



CM(M) No. 638/2011.                                                     Page 1 of 5
 fails to comply with the order of deposit of rent under Section 15(1) of the

Act. In a petition under Section 14(1)(a) of the Act eviction is not ordered and

benefit is given of the provision of Section 14(2) of the Act by denying the

right of eviction to the landlord only if the tenant complies with the order to

deposit the rent under Section 15(1) of the Act.

2.    The facts of the case are that an order was in fact passed under

Section 15(1) of the Act on 24.07.2002. As per this order dated 24.7.2002,

the arrears were to be paid and future rent month by month was to be

paid/deposited.       The admitted facts are that this order was complied with

only till January, 2006 and from February, 2006 till the passing of the eviction

order by the Additional Rent Controller on 27.07.2009, the order was not

complied with.

3.    Learned senior counsel for the petitioners sought to argue that the

original tenant died and thereafter, the legal heirs did not deposit/pay the

rent on an advice that the legal heirs do not have to comply with an order

Under Section 15(1) of the Act.        The admitted position, therefore which

emerges is that right from February, 2006 till July, 2009, and which is indeed

not a short period, the petitioners/legal heirs of the original tenant did not

pay any rent.     The law in this regard is well settled that on mere non

compliance of the order Under Section 15(1) of the Act it cannot be said that

there is a willful default. The issue was examined at length by the Supreme

Court in the case of Ram Murti Vs Bhola Nath & Anr. AIR (1984) SC


CM(M) No. 638/2011.                                                    Page 2 of 5
 1392. In the judgment of Ram Murti (supra) the Supreme Court clarified

the position that merely because         there is any default, would not

automatically mean that the tenant will not be liable to the benefit of the

protection of Section 14(2) of the Act against eviction. The Supreme Court

gave various examples that the rent may not be deposited pursuant to the

order under Section 15(1) of the Act because of many exigencies like an

accident of the clerk of the lawyer, or some grave illness of the tenant and so

on. The Supreme Court therefore clarified the position that there is no

automatic denial of the protection under Section 14(2) for the non

compliance of Section 15(1) of the Act. In the present case however the

admitted position is for no less than around 2 ½ years, the rent was not

paid/deposited by the legal heirs of the tenant. I refuse to believe that legal

heirs of tenant can be of a legal opinion that they can continue to stay in the

tenanted premises but are not liable to pay the rent although they continued

to stay, enjoy and occupy the tenanted premises. To have an opinion that

an order under Section 15(1) has not to be complied with is totally different

from the fact that legal heirs would always have the knowledge that every

tenant is bound to pay rent for the tenanted premises every month for which

the tenanted premises are occupied.

4.    In my opinion, therefore, in view of the admitted default, in not having

paid/deposit the rent from February, 2006 to July, 2009, the petitioners were

rightly held disentitled to the benefit of Section 14(2) of the Act, on account


CM(M) No. 638/2011.                                                   Page 3 of 5
 of non compliance of order under Section 15(1) of the Act.

5.    I also agree with the Additional Rent Control Tribunal that it is not the

position in law that firstly there must be passed an order of striking of

defence under Section 15(7) of the Act and only thereafter the benefit under

Section 14(2) of the Act can be denied. In fact, once there is non-payment or

delay in deposit/payment of the rent, there is non-compliance of Section

15(1) order disentitling the benefit under Section 14(2) and it is the tenant

who has to move an application for condonation of delay giving the reasons

as to why there is non- compliance/delayed compliance of the order Under

Section 15(1) of the Act. The shoe is not on the other foot as is sought by

learned senior counsel for the petitioners that first the landlord must apply

for striking of the defence and only then, the tenant is bound to give the

reasons for non-compliance of the order under Section 15(1) of the Act.

6.    I may note that the legislature has deleted the provision of Section 39

of the Delhi Rent Control Act, 1958, which provided for the right of second

appeal to this court. Of course, the right of second appeal was very limited

on a substantial question of law only. Once the provision of Section 39 of the

Act has been deleted from the statute book, the provision of Article 227 of

the Constitution of India is not meant to be a substitute thereof. There has

to be gross perversity or illegality which shocks judicial conscience and there

has to be caused grave injustice before this court is called upon to exercise

its discretionary and extraordinary jurisdiction under Article 227 of the


CM(M) No. 638/2011.                                                   Page 4 of 5
 Constitution of India. I do not find any reason whatsoever in the facts of the

present case, where there is an admitted default in non compliance for 2 ½

years of the order under Section 15(1) of the Act, so as to persuade me to

exercise the jurisdiction under Article 227 of the Constitution of India.

7.    Dismissed.




May 24, 2011                                      VALMIKI J. MEHTA, J.

ib