Delhi High Court
Ram Nath Tomar vs Shri Krishan Mandir on 28 March, 2014
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision:28.3.2014
CM(M) 307/2014
RAM NATH TOMAR
..... Petitioner
Through Mr. Kirti Uppal, Sr. Advocate with
Mr. Anil Kumar Verma, Ms. Ashu
Rani, Mr. Aman Bhalla, Advocate
versus
SHRI KRISHAN MANDIR
..... Respondent
Through Mr. M.A. Niyazi with Mr. Manish
Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI (Open Court)
1. The petitioner is aggrieved by an order dated 25.2.2014, affirming the
Additional Rent Controller's order of eviction of the petitioner from the suit
premises, under Section 14(2) of the Delhi Rent Control Act (the 'Act'). The
facts of the case are that an earlier petition of the respondent under section
14 (1)(a), of the Act was allowed against the tenant by the Additional Rent
Controller and an appeal upheld by the Rent Control Tribunal. However, in
a revision petition before the High Court, the following direction was issued
on 8.1.2008 :
"In view of my aforesaid discussion, I set aside the impugned
order passed by the Additional Rent Control Tribunal in RCA No.
588/2004 dated 13.3.2006 as well as the order passed by the
Additional Rent Controller dated 16.11.2004. I permit the petitioner
to amend the cause title of the eviction petition as aforesaid. The
respondent is directed to pay to the petitioner the arrears of rent from
February 1999 onwards till date within one month and to continue to
pay the same in future regularly and punctually. The amended memo
of parties be filed by the petitioner before the Additional Rent
Controller within two weeks."
2. Clearly, this Court held that (i) the petitioner/tenant was in arrears of
rent and (ii) directed him to pay the arrears as well as future rent to the
petitioner. Therefore, clearly, there was no doubt about the identification of
the persons to whom the payment was to be paid. It is admitted that for an
continuous period of almost three years thereafter, there was consistent
default in payment of the arrears as well as of the recurring monthly rent.
3. Mr. Uppal, learned Senior Advocate states that subsequent to the
aforesaid period of default, the tenant had started depositing the rent before
the Rent Controller. However, learned counsel for the respondent states that
none of these monies have been accepted by the landlord.
4. Mr. Uppal, contends that the procedure in law envisages a second
round of proceedings and the grant of a second opportunity to parties,
particularly to the tenant, to determine the quantum of rent payable under
section 15 subsections (1) and (7) of the Act. He submits that since the
statutory opportunity was not granted to the tenant to put up his version
apropos the quantum in default, the impugned order suffers from material
irregularity and needs to be set aside. Learned counsel relies upon the
Supreme Court's reasoning in M/s. Jain Motor Car Co., Delhi v. Smt.
Swayam Prabha Jain and another, MANU/SC/0767/1996, which reads,
inter alia :
"16: A Three Judge Bench (Hon'ble V.R. Krishna Iyer, R.S.
Pathak and Order Chinnappa Reddy, JJ.) of this Court in
Shyamcharan Sharma v. Dharamdas MANU/SC/0504/1979 :
{1980}2SCR334, on a consideration of the provisions of the M.P.
Accommodation Control Act (41 of 1961), which were similar to
Delhi Act, laid down that since Section 13(6) vests in the court the
discretion to order the striking out of the defence, it does not clothe
the landlord within an automatic right to a decree for eviction nor
does it visit the tenant with the penalty of a decree for eviction being
straightway passed against him. It further observed as under :
If Section 13 were to be construed as mandatory and not as
vesting a discretion in the Court, it might result in the situation that a
tenant who has deposited the arrears of rent within the time stipulated
by Section 13(1) but who fails to deposit thereafter the monthly rent
on a single occasion for a cause beyond his control may have his
defence struck out and be liable to summary eviction. We think that
Section 13 quite clearly confers a discretion, on the court, to strike out
or not to strike out the defence, if default is made in deposit or
payment of rent as required by Section 13(1). If the court has the
discretion not to strike out the defence of a tenant committing default
in payment or deposit as required by Section 13(1), the court surely
has the further discretion to condone the default and extend the time
for payment or deposit. Such a discretion is a necessary implication
of the discretion not to strike out the defence. Another construction
may lead, in some cases, to a perversion of the object of the Act,
namely, 'the adequate protection of the tenant'. Section 12(3) entitles
to a tenant to claim protection against eviction on the ground
specified in Section 12(1)(a) if the tenant makes payment or deposit as
required by Section 13. On our consideration of Section 13 that the
Court has the power to extend the time for payment or deposit, it must
follow that payment or deposit within the extended time will entitle the
tenant to claim the protection of Section 12 (3)."
5. In support of the same proposition i.e. the Court has the discretion to
extend the time for payment, counsel also relied upon the judgment in Civil
Appeal No. 9231/1994 Smt. Kamla Devi v. Sh. Vasdev,
MANU/SC/0192/1995, which holds :-
"20. On behalf of the appellant, it has been contended that the
principles laid down in this case should not be extended to a case
governed by the provisions of Delhi Rent Control Act. We do not find
any material distinction between the provisions of Section 12(1), (3)
and Section 13(1), (5) and (6) of the Madhya Pradesh Act and the
corresponding provisions; of Section 14(1), (2) and Section 15(1), (7)
of the Delhi Act. In fact this argument was rejected in the case of
Ram Muni v. Bhola Nath and Anr. MANU/SC/0324/1984:
AIR1984SC1392. In that case, construing the provisions of the Delhi
Act, it was held that Section 15(7) conferred a discretionary power on
the Rent Controller had, by legal implication, power to condone the
default on the part of the tenant in making payment or deposit of
future rent or to extend time for such period or deposit. It was held :-
With respect, the observation, in Hem Chand case
MANU/SC0347/1977 : {1978} 1 SCR 241, expressing the view that
the Rent Controller has no power to extend the time prescribed in
Section 15(1) cannot be construed to mean that he is under a statutory
of the tenant under Section 15(1) cannot be construed to mean that he
is under a statutory obligation to pass an order for eviction of the
tenant under Section 14(1)(a) without anything more due to the failure
on his part to comply with the requirements of Section 15(1). The
question would still remain as to the course to be adopted by the Rent
Controller in such a situation in the context of Section 15(7) which
confers on the Rent Controller a discretion not to strike out the
defence of the tenant in the event of the contingency occurring,
namely, failure on the part of the tenant to meet with the requirements
of Section 15(1)."
6. This Court's order of 8.1.2008 was apropos the tenant's default in
payment of rent in a proceeding under Section 14(1)(a) of the Act. It
conclusively recorded the arrears of rent from February, 1999 and directed
its payment till 8.1.2008 within one month. Therefore, the quantum of rent
was clearly determined i.e, months of default in payment of rent multiplied
by the admitted rate of rent, which needed to be paid. The direction to pay
the arrears as well as the future recurring rent was accordingly issued by this
Court. Resort to the procedure of sections 14 and 15 is made primarily to
establish a default in payment of rent and to recover the arrears, after service
of a notice upon the tenant to pay the rent. This Court's order of 8.1.2008
would have to be construed within the scheme envisaged under Section
15(1). Therefore, once it is considered to be an adjudication under Section
15(1), and the quantum of rent in default is determined, there could be no
occasion to take recourse to the same section in the event of a subsequent
default, should there be a subsequent default it would meet the fate
prescribed in the proviso to s. 14(2). The order of the High Court was not
challenged and had attained finality. Admittedly, there has been a
consequent default in payment of arrears as well as subsequent rent. In the
circumstances, the protection under Section 15(1) and (2) read with Section
14(2) would not be available to the appellant/tenant.
7. The Trial Court rightly found the tenant to not qualify for the statutory
safeguard. The eviction order was passed as per the proviso to s.14(2) as he
had again defaulted in payment of rent for three consecutive months, after
the order of s.15(1). Actually, there was a default of almost 36 months. The
occasion to strike out the defence against eviction application under s.15(7)
and to proceed with the hearing of the application would not arise since that
stage and relevant procedures would be deemed to have been subsumed in
the proceedings before this Court that resulted in the order of 8.1.2008. In
view of the preceding discussion, this Court finds no reason to interfere with
the impugned order. The petition is dismissed as being without merit.
NAJMI WAZIRI
(JUDGE)
MARCH 28, 2014/p
