Delhi High Court
Ved Prakash vs Achint Kumar on 25 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 1183/2011
Date of Decision: 25.07.2012
VED PRAKASH ...... Petitioner
Through: Mr. Sanjay Jain, Sr.Adv. with
Ms.Ruchi Jain, Mr. Sarfaraz
Ahmad, Adv.
Versus
ACHINT KUMAR ...... Respondent
Through: Mr.Padam K. Khanna, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition under Article 227 of the Constitution seeks assailing
of order dated 30.08.2011 of learned District & Sessions Judge-cum-
Rent Control Tribunal whereby he dismissed the appeal filed against the
order dated 7.2.2011 of Addl. Rent Controller (ARC).
2. The petitioner herein is a tenant of the respondent in respect of
the suit premises. He was facing the eviction proceedings before the
court of ARC under Section 14(1) (a) read with Section 14(2) of the
Delhi Rent Control Act (for short the 'Act') in the case of second default
of arrears of rent w.e.f. 10.8.2007 to 9.11.2007. His plea before the ARC
was that he had sent money order towards the arrears of rent to the
landlord, but the same was refused by him and further, that on receipt of
demand notice dated 13.11.2007, he sent the pay order of Rs. 4315/-
dated 19.11.2007 and that being so, he had complied the said demand
notice and thus, the plaint was liable to be rejected under Order 7 Rule
11 CPC. The application filed in this regard was dismissed by the ARC
vide his order dated 7.2.2011 and which in appeal, was maintained by
the Rent Control Tribunal vide order dated 30.8.2011.
3. The impugned order has been assailed on various grounds. The
first and foremost being that he was not in arrears of rent for the period
w.e.f. 10.8.2007 to 9.11.2007 and had already paid the same. It was also
his plea that to be on safer side, he sent the rent for this period, being Rs.
4315/- vide pay order dated 19.11.2007 in response to the said demand
notice dated 13.11.2007. It was also his plea that since the landlord has
got encashed the pay order, his liability of arrears stood discharged.
4. On the other hand, it has been disputed by the respondent/landlord
that any rent was paid or tendered for the aforesaid period in cash or by
money order by the petitioner. It was submitted that the pay order was
sent only after the demand notice and the fact of the petitioner having
sent pay order would significantly amount to admission of his having
defaulted for three consecutive months from 10.8.2007 to 9.11.2007.
Both the parties have raised triable issues involving the factual as well
as legal aspects. The payment of rent by pay order was admittedly after
the demand notice. The question would require determination as to
whether the demand notice was required to be issued in the case of
second default and further as to whether the payment of amounts for the
defaulted period, in the case of second default, would absolve the tenant
of the rigour of eviction. At this stage, it cannot be said that no cause of
action survived.
5. In view of all this, I do not see any infirmity or illegality in the
impugned order of the learned Rent Control Tribunal or that of order of
Addl. Rent Controller. The petition has no merit and is hereby
dismissed.
M.L. MEHTA, J.
JULY 25, 2012/akb
