Ramesh Kumar vs Yasmeen Fatima & Others
2012 Latest Caselaw 5858 Del

*       THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM (M) 568/2012

                                          Date of Decision: 28.09.2012

RAMESH KUMAR                                           ......Petitioner
                          Through:     Mr.Harish Pandey, Advocate.

                                 Versus

YASMEEN FATIMA & OTHERS                ......Respondent
                Through: Mr.M.Taiyab, Advocate.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This petition under Article 227 of the Constitution is directed against the order dated 28.4.2012 of District Judge-cum-Addl. Rent Control Tribunal (ARCT), whereby the appeal of the petitioner/tenant against the orders dated 30.11.2011 and 16.1.2012 as also of 6.2.2012 of Addl. Rent Controller (ARC), came to be dismissed.

2. The petitioner is a tenant under the respondents in respect of shop in premises bearing No. D-328 A, Gali No. 12, C.R. Road, Laxmi Nagar, Delhi. His eviction was sought by the respondents/landlords under Section 14 (1)(a) of the Delhi Rent Control Act (for short the „Act‟) on account of the non-payment of rent since June, 1992 despite issue of legal notice dated 3.11.2008. The petitioner contested the

eviction petition filed by the respondents/landlords. The learned ARC vide order dated 30.11.2011 decreed the petition under Section 14(1)

(a) of the Act in favour of the respondents/landlords, and thereafter, vide order dated 16.1.2012, declined to grant benefit to the petitioner/tenant under Section 14(2) of the Act.

3. An application under Section 151 CPC read with Section 23 of Delhi Rent Control Rules, 1959 moved by the petitioner/tenant for recalling of the orders dated 16.1.2012 and 30.11.2011, also came to be dismissed on 6.2.2012 by him observing that the Controller has no power to review its own order. These orders of ARC dated 30.11.2011, 16.1.2012 and 6.2.2012 were carried in appeal by the petitioner/tenant, which was dismissed by the learned ARCT vide impugned order dated 28.4.2012. The said order is under challenge in the instant petition.

4. The undisputed facts are that initially, an interim order under Section 15(1) of the Act was passed on 15.12.2009 by ARC, directing the petitioner to deposit the arrears of rent @ Rs. 350/- p.m. w.e.f. 1.9.2008 to 30.12.2008 and at the enhanced rate of Rs. 385/- p.m. w.e.f. 1.1.2009 within a month, and future rent month by month by the 15th of each succeeding month. This order of 15.12.2009 was subsequently modified on 30.11.2011 and the petitioner/tenant was directed to pay the rent dues @ Rs. 350/- per month w.e.f. 2.2.2006 to 3.12.2008 and enhanced rate @ Rs. 385/- p.m. w.e.f. 4.12.2008

onwards within a month from the date of this order. As per this order, the rent dues were to be paid within a month i.e. upto 30.12.2011. However, the arrears were deposited by the petitioner on 31.1.2012 i.e. after a delay of about one month. The learned ARC allowed the petition of the respondents under Section 14(1)(a) of the Act, noting that the petitioner/tenant has failed to pay/tender the entire arrears of rent within stipulated period of two months from the date of service of demand notice. The ARC, consequently, held vide order dated 16.1.2012 that the petitioner/tenant is not entitled to benefit under Section 14(2) of the Act. The findings recorded by the ARC have been maintained by the ARCT vide impugned order.

5. The only challenge against the orders of ARC and that of the ARCT is confined to the fact that the petitioner/tenant had substantially complied the order passed under Section 15(1) of the Act and delay of few days in deposit of rent, was neither intentional nor willful, but due to circumstances beyond his control, and thus, the delay ought to have been condoned by the ARC.

6. I have heard learned counsel for the petitioner as also the respondents and perused the record.

7. Undisputedly, there was delay in deposit of rent in compliance of the modified order of 30.11.2011 passed under Section 15(1) of the Act. The learned ARC as also the ARCT seem to have grossly erred in

observing that because simply there was admitted delay in deposit of rent, the petitioner/tenant was not entitled to grant of benefit under Section 14(2) of the Act. The learned ARCT while taking note of the power of the Controller in condoning the delay as per the case Ram Murti Vs. Bhola Nath & Another, (1984) 3 SCC 111 as also Kamla Devi Vs. Vasdev, AIR 1995 SC 985, observed that this was a discretion of the Controller either to condone the delay or extend the time for deposit of rent and a tenant, as a matter of right, could not claim the condonation of delay in deposit of rent. There is no dispute that the claim for condonation of delay is not a matter of right of the tenant, but, at the same time, it is also settled that the discretion has to be exercised by the Controller with due application of mind to the facts of each case, and not in a mechanical manner. The observation of the ARCT that the non-deposit of rent by the petitioner despite one month‟s time given to deposit the rent, does not call for exercising of discretion of condonation of delay, is itself erroneous inasmuch as it is the statutory right of the tenant that one month time is granted under Section 15(1) for deposit of rent.

8. The question for consideration would be as to what is the course to be adopted by the Controller in the event of delay in depositing the rent, particularly when, no application is filed by the respondent/landlady seeking striking off the defence of the petitioner/tenant under Section 15(7) of the Act. It is settled law that in the event of the tenant failing to comply with the order under

Section 15(1) of the Act, he has to be heard giving him an opportunity as to why his defence be not struck off under Section 15(7) of the Act. In the case of Ram Murti Vs. Bhola Nath & Another, (1984) 3 SCC 111, it was held by the Supreme Court that it would be incongruous to hold that even if the defence of the tenant is not to be struck out under Section 15(7), the tenant must still be visited with the punishment of being deprived of the protection under Section 14(2) of the Act. Under Section 15(1) of the Act, if a tenant makes payment or deposit as required by Sub-Section (1), no order is to be made for the recovery of possession on the ground of default in payment of rent by the tenant, but the Controller may allow such costs as he may deem fit to a landlord.

9. From the scheme of various sub-sections of Section 14 and Section 15 of the Act, it would be seen that they form an integrated process seeking to strike a balance between the conflicting rights of the landlord to secure eviction of the tenant on any one or more of the grounds specified in the proviso to sub-section (1) of Section 14, and that of the tenant for protection against such eviction. The predominant object and purpose of this social legislation is to prevent the landlord from taking the extreme steps of evicting the tenant merely on technicalities or carved grounds. The Act intends to promote social justice by safeguarding the interest of the tenants and at the same time, protecting the legitimate interest of the landlord. Thus,

the Rent Control Act is not to be required to be interpreted in a hyper technical manner.

10. As per Ram Murti (supra), the essence of Section 14(2) and of Section 15(6) is whether there has been a substantial compliance with the order passed under Section 15(1). The words "as required by Section 15(1)" in these provisions must be construed in a reasonable manner. If the Rent Controller has the discretion under Section 15(7) not to strike out the defence of the tenant, he necessarily has the power to extend the time for payment of future rent under Section 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control.

11. In the instant case, undisputedly, there was no application filed by the respondents/landlords under Section 15(7) of the Act and no opportunity was afforded to the petitioner/tenant to explain the cause of delay in complying the modified order dated 30.11.2011. In fact, in the absence of there being any application under Section 15(7) filed by the respondents/landlords, complaining the delay and seeking striking off the defence of the petitioner/tenant, the petitioner/tenant would necessarily presume the delay in deposit, if any, as acquiesced by the landlady (respondent), and also condoned by the court. At the time of passing of the order on 16.1.2012, the petitioner/tenant only had the opportunity of explaining verbally about the cause of delay due to

circumstances beyond his control. If the respondents/landlords would have filed an application under Section 15(7), the petitioner/tenant would have got the exercise of discretion of the Controller in condoning the delay.

12. As noted above, the order under Section 15(1) came to be passed on 15.12.2009, whereby the petitioner/tenant was directed to deposit the arrears of rent @ Rs. 350/- p.m. w.e.f. 1.9.2008 to 30.12.2008 and at the enhanced rate of Rs. 385/- p.m. w.e.f. 1.1.2009 within a month, and future rent month by month @ Rs. 385/- p.m. The petitioner/tenant deposited the rent for the period 1.9.2008 to 31.1.2010 on 2.1.2010 under Section 27 of the Act. However, this order under Section 15(1) was modified vide order dated 30.11.2011, directing the petitioner/tenant to pay/tender the rent dues @ Rs. 350/- per month w.e.f. 2.2.2006 to 3.12.2008 and enhanced rate of Rs. 385/- p.m. w.e.f. 4.12.2008 onwards, after seeking adjustment of whatever was paid or deposited by him. The arrears were directed to be paid or deposited within a month from this order dated 30.11.2011. As per this order, the rent dues were to be paid within a month i.e. upto 30.12.2011. However, undisputedly, the arrears were deposited by the petitioner on 31.1.2012 i.e. after a delay of about one month. The ARC, noting that there was a delay in deposit of rent recorded the petitioner to be not entitled to benefit under Section 14(2) of the Act and consequently, passed eviction order on 16.1.2012. Thereafter, an application filed under Section 151 CPC read with Section 23 of DRC Rules for

recalling of the orders dated 16.1.2012 and 30.11.2011, also came to be dismissed on 6.2.2012.

13. It is pertinent to mention that with the passing of the modified order of 30.11.2011, the previous order dated 15.12.2009 under Section 15(1) lost its significance. The order dated 16.1.2012 came to be passed within few days after the expiry of one month of the judgment dated 30.11.2011. This order of 16.1.2012 was passed on the report of the Naib Nazir of non-compliance of the order of 30.11.2011. There was no opportunity afforded to the petitioner/tenant to explain for the delay nor there was any occasion for the petitioner to have filed any application for condonation of delay. The cause of delay in depositing the rent after a month as stated by the petitioner is that there was another case, which had been adjourned for 07.02.2012 and he did not know the passing of the order in this case on 30.11.2011. It was only on 17.1.2012 that the petitioner learnt from the respondents‟ brother-in-law Iqbal Hussain about the passing of the order, that he immediately applied for the certified copy, which he got only on 27.1.2012. He stated all this due to fault of the counsel and thereafter, he changed the counsel and deposited the rent on 31.1.2012. It is also submitted that till 27.1.2012, he was extremely busy in attending his ailing mother and wife. For all these reasons, the delay in deposit is stated to be neither willful nor intentional or deliberate, but due to the circumstances beyond his control. All these reasons and circumstances which have been submitted by the petitioner, could not be considered

by the ARC and thus, the order dated 16.1.2012 came to be passed in the absence of the petitioner or his counsel and further, he did not consider the same in the review application on 6.2.2012 because of lack of his power of review.

14. Having seen that the petitioner has substantially complied the previous order dated 15.12.2009 under Section 15(1) of the Act as also the modified order dated 30.11.2011, the delay of one month in deposit of arrears of rent cannot be said to be willful, intentional or deliberate. Having regard to the scheme and object of the Act, the delay has been satisfactorily explained by the petitioner/tenant and is liable to condoned.

15. In view of my above discussion, the petition is allowed. Instead of remanding the matter back to the ARCT or the Controller for consideration on the issue of condonation of delay, this court, in exercise of power under Article 227 of the Constitution, do hereby condone the delay in compliance of the order under Section 15(1) of the Act, and thereby, grant benefit under Section 14(2) to the petitioner/tenant.

16. Petition stands disposed of accordingly.

M.L. MEHTA, J.

SEPTEMBER 28, 2012 akb