Smt. Harsh Grover vs Sh. H.S. Bajaj And Anr.
2014 Latest Caselaw 4061 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) No.147/2013 and C.M. No.2032/2013 (stay)

%                                                     1st September, 2014

SMT. HARSH GROVER                                       ......Petitioner
                           Through:      Mr. Rahul Sharma, Advocate.



                           VERSUS

SH. H.S. BAJAJ AND ANR.                                      ...... Respondents

                     Through:            Mr. Rajat Aneja, Advocate with Mr.
                                         Vijay Kasana, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1(i)         This is a petition under Article 227 of the Constitution of India

impugning the orders of the Rent Control Tribunal dated 22.1.2013. There are

two orders dated 22.1.2013.

(ii) First is the judgment dated 22.1.2013 by which the first appeal

filed by the petitioner/tenant under Section 38 of the Delhi Rent Control Act,

1958 (hereinafter referred to as 'the Act') challenging the judgment of the trial

court dated 21.4.2012 decreeing the petition under Section 14(1)(a) of the Act

for non-payment of rent, was dismissed. The order of the trial court/Additional

Rent Controller dated 21.4.2012 was an order declining the benefit under

Section 14(2) of the Act and consequently passing an eviction order with

respect to the tenanted premises being a shop on the ground floor of the

property no.4/55, Double Storey, Tilak Nagar, Delhi. Section 14(2) of the Act

provides that if a tenant, in case of the first default in payment of rent resulting

in filing of a Section 14(1)(a) of the Act eviction petition, deposits the rent

pursuant to an order under Section 15(1), then the tenant is not evicted.

(iii) The second order dated 22.1.2013 (hereinafter referred to as the

supplementary order) is an order by which the first appellate court dismissed

an application moved by the petitioner/tenant and by which petitioner made an

endeavour to convert the appeal which was filed only against the judgment of

the Additional Rent Controller dated 21.4.2012 declining the benefit under

Section 14(2) of the Act, as if that the appeal was also filed against another

order dated 21.4.2012 dismissing the application under Order IX Rule 13 of the

Code of Civil Procedure, 1908 (CPC). The first appellate court in the

supplementary order dated 22.1.2013 dismissed the application under Sections

151 and 153 CPC read with Order VI Rule 17 CPC by specifically noting that

the first appeal actually was never filed against the order dated 21.4.2012

dismissing the application under Order IX Rule 13 CPC and the first appeal

was only filed against the order/ judgment dated 21.4.2012 declining the

benefit under Section 14(2) of the Act and decreeing the eviction petition.

2. The main petition under Section 14(1)(a) of the Act on the ground

of non-payment of rent was filed pursuant to the legal notice dated 5.9.2006 by

which rent at Rs.300/- per month was claimed from 1.1.2004 to April, 2005. In

the written statement which was filed by the petitioner/tenant, there was no

dispute with respect to relationship of landlord and tenant between the parties,

rate of rent and the period of arrears. The defence of the petitioner/tenant on

merits was that the petitioner had deposited an amount of Rs.4,800/- from

1.1.2004 to April, 2005 in proceedings under Section 31 of the Punjab Relief of

Indebtedness Act, 1934 and which proceedings were withdrawn because they

were not maintainable in view of the judgment of the Supreme Court in the

case of Atma Ram Vs. Shakuntala Rani (2005) 7 SCC 35. Thereafter the

amount of rent of Rs.4,800/- from 1.1.2004 to April, 2005 was deposited in a

petition under Section 27 of the Act, and which deposit it was pleaded by the

petitioner/tenant should therefore be taken as compliance of the notice dated

5.9.2006 claiming arrears of rent from 1.1.2004.

3. The petitioner/tenant after filing of the written statement did not

appear and was proceeded exparte. The respondent/landlord examined himself

and proved his case. Since the petitioner/defendant was proceeded exparte, the

case of the deposit under Section 27 of the Act was not proved and hence the

petition under Section 14(1)(a) of the Act was decreed on 2.6.2010 by directing

deposit of rent from 1.1.2004 at Rs.300/- per month within one month in terms

of Section 15(1) of the Act. As stated above, in case the tenant deposits the

arrears of rent as per Section 15(1) of the Act within one month of passing of

the final judgment under Section 14(1)(a) read with Section 15(1) of the Act,

then, such a tenant would be entitled to the benefit of Section 14(2) of the Act

and the tenant will not be evicted in such a case. If the arrears of rent are

however not deposited pursuant to the final judgment alongwith the

concomitant order under Section 15(1) of the Act, the tenant does not get the

benefit of Section 14(2) of the Act and such a tenant is liable to be evicted.

4(i). The courts below note that even after the final judgment was

passed on 2.6.2010 and directions were issued under Section 15(1) of the Act,

the petitioner/tenant did not deposit the amount and because of which the

petitioner was proceeded exparte. However, it is to be noted that a copy of the

judgment dated 2.6.2010 was sent by the Additional Rent Controller to the

petitioner/tenant with directions to them to deposit the amount in terms of the

judgment dated 2.6.2010.

(ii) The matter was fixed on 2.8.2010 for filing of the compliance

report, but the petitioner/tenant even by this date did not deposit the arrears of

rent. The petitioner/tenant instead moved an application under Order IX Rule

13 CPC on the ground that initially the case was pending in Rohini Courts and

after transfer of the case to Tis Hazari Courts they were informed that they

would receive a notice from the Court and so they did not appear, but, this

application was dismissed by the Additional Rent Controller vide order dated

21.4.2012. That order dated 21.4.2012 became final because no appeal was

filed against the order dismissing the application under Order IX Rule 13 CPC.

(iii) As already stated above, the petitioner/tenant made an endeavour

to amend and treat his first appeal filed under Section 38 of the Act against the

judgment of the Additional Rent Controller dated 21.4.2012 holding that the

petitioner had failed to comply with the order dated 2.6.2010, and consequently

petitioner will not be entitled to the benefit of Section 14(2) of the Act, but

since the main appeal was only against the order dated 21.4.2012 rejecting the

benefit being granted under Section 14(2) of the Act, therefore the Rent Control

Tribunal by an order of the same date as of the impugned judgment dismissing

the first appeal under Section 38 of the Act, has also passed another

supplementary order refusing to treat the first appeal filed under Section 38 of

the Act against the order declining benefit under Section 14(2) of the Act, as an

appeal also against an order dated 21.4.2012 rejecting the application under

Order IX Rule 13 CPC.

5. The narration of the above facts shows that in the main eviction

petition no disputes were raised as to the relationship of landlord and tenant

between the parties, rate of rent as also of the service of notice dated 5.9.2006

demanding arrears of rent. The dispute firstly is that whether arrears of rent

have been cleared/paid within the two months as required under Section

14(1)(a) of the Act and in which case the petition under Section 14(1)(a) of the

Act would not have been maintainable, and secondly whether even if within

two months of service of the demand notice dated 5.9.2006 arrears were not

paid, but were the arrears then paid within one month of the judgment dated

2.6.2010 decreeing the petition under Section 14(1)(a) of the Act when

simultaneously as per law an order was also passed under Section 15(1) of the

Act directing the deposit of the arrears in the Court.

6. Firstly, in my opinion, once the order dated 21.4.2012 dismissing

the application under Order IX Rule 13 CPC became final because that order

was not challenged, the petitioner/tenant was wholly unjustified after the

hearing had commenced of the appeal to get the appeal treated as also against

the order of the Additional Rent Controller dated 21.4.2012 dismissing the

Order IX Rule 13 CPC application, inasmuch as, a reading of the first appeal

filed under Section 38 of the Act shows that the same only challenged the

judgment dated 21.4.2012 declining the benefit under Section 14(2) of the Act.

I therefore do not find any error in the supplementary order dated 22.1.2013 by

which the Rent Control Tribunal has refused to treat the first appeal filed under

Section 38 of the Act as an appeal also against the order dated 21.4.2012

dismissing the application under Order IX Rule 13 CPC. Once that is so,

admittedly the order dated 2.6.2010 of the deposit of rent within one month is

not complied with and also that the respondent/landlord has proved that the

demand notice dated 5.9.2006 was not complied with. Consequently, the

courts below were justified in decreeing the petition under Section 14(1) (a) of

the Act alongwith the aspect of refusal/ denying of the benefit under Section

14(2) of the Act.

7. Let me now for the sake of equity consider the case of the

petitioner/tenant on merits as to whether the petitioner/tenant has complied with

the demand notice dated 5.9.2006 for payment of arrears of rent from 1.1.2004

at Rs.300/- per month on account of the deposit made under Section 27 of the

Act, and secondly whether even if the notice dated 5.9.2006 was not complied

with by paying/tendering/depositing the amount within two months of the

service of the notice dated 5.9.2006 whether the petitioner/tenant complied with

the final judgment dated 2.6.2010 alongwith the simultaneous order under

Section 15(1) of the Act for deposit of the arrears of rent within two months

and in which case he would get benefit of Section 14(2) and

respondent/landlord will not be entitled to the eviction order.

8. So far as the first aspect of complying with the notice dated

5.9.2006 is concerned, in view of the ratio of the judgment of the Supreme

Court in the case of Atma Ram (supra) deposit under Section 31 of the Punjab

Relief of Indebtedness Act, 1934 cannot be taken as compliance of notice under

Section 14(1)(a) of the Act and therefore it is clear from the record that there

was default in complying with the notice dated 5.9.2006 by not paying the

requisite arrears of rent from 1.1.2004 within two months of service of the

notice dated 5.9.2006 sent under Section 14(1)(a) of the Act. Therefore, the

petition under Section 14(1)(a) of the Act has been rightly decreed by both the

courts below.

9. Let me now take the case as to whether the petitioner should be

entitled to the benefit under Section 14(2) of the Act. This benefit will be

granted if the petitioner/tenant within one month from the judgment dated

2.6.2010 deposits the entire arrears of rent. Petitioner, out of the total arrears

of rent, paid only a sum of Rs.5,100/- but did not pay the sum of Rs.4,800/-.

The issue is whether the non-payment of sum of Rs.4,800/- is justifiable and

whether deposit already made by the petitioner/tenant under Section 27 of the

Act is a valid discharge of liability. In this regard, I would like to note that the

liability of payment pursuant to a notice under Section 14(1)(a) will only be a

valid discharge if the deposit under Section 27 was made within two months of

the receipt of the notice. In the present case, since the deposit under Section 27

has admittedly not been made within two months of the receipt of the notice

dated 5.9.2006, even if we take that the amount was deposited under Section 27

of the Act, yet this amount deposited under Section 27 of the Act will not be a

compliance of the legal notice dated 5.9.2006. Counsel for the petitioner was

also not able to give this Court the specific date of deposit of arrears of rent

under Section 27 of the Act, however, it is conceded that, that deposit has been

made beyond a period of two months of receipt of the notice dated 5.9.2006.

10. The issue then arises is whether the deposit made under Section

27 of the Act can be taken as a deposit made pursuant to the final judgment

dated 2.6.2010 read with Section 15(1) of the Act, and which requires deposit

within a period of one month. Once again, this amount which is deposited

under Section 27 of the Act is no doubt prior to passing of the judgment dated

2.6.2010, however, compliance of the judgment dated 2.6.2010 is by depositing

of the arrears of Rs.4,800/- not in the prior proceedings under Section 27 of the

Act but in the same Court which passed the judgment and decree under Section

14(1)(a) of the Act read with the simultaneous order under Section 15(1) of the

Act or by directly making payment to the respondent/landlord. Since

admittedly the deposit which is made under Section 27 of the Act was not in

the Court which passed the judgment in the eviction petition under Section

14(1)(a) of the Act, the deposit under Section 27 of the Act cannot be taken as a

deposit complying with the order/judgment dated 2.6.2010. Therefore the

Additional Rent Controller has rightly by the order dated 21.4.2012 refused to

give benefit of Section 14(2) of the Act to the petitioner/tenant and has rightly

decreed the eviction petition under Section 14(1)(a) of the Act and which order

has been upheld by the Rent Control Tribunal by the impugned judgment dated

22.1.2013.

11. I would also like to note that since the first appeal which was filed

before the Rent Control Tribunal was only against the judgment dated

21.4.2012 declining the benefit under Section 14(2) of the Act, the

supplementary order dated 22.1.2013 dismissing the application of the

petitioner/tenant to treat the appeal also as an appeal against the order

dismissing the application under Order IX Rule 13 CPC was justified and

therefore no interference is called for against the supplementary order dated

22.1.2013 declining to treat the main appeal filed under Section 38 of the Act

also as an appeal against the order of the Additional Rent Controller dated

21.4.2012 dismissing the application under Order IX Rule 13 CPC.

12. Lastly and finally, I would like to note that the petitioner/tenant in

this case has been completely negligent, and this Court cannot therefore give

the benefit of Section 14(2) of the Act inasmuch as if the petitioner/tenant was

to act bonafidely, then, at least within one month of filing of the application

under Order IX Rule 13 CPC, the petitioner/tenant should have complied with

the judgment dated 2.6.2010 and should have deposited the amount of arrears

before the court of the Additional Rent Controller, however, the

petitioner/tenant did not deposit that arrears of Rs.4,800/- even within one

month of the application filed under Order IX Rule 13 CPC. In fact, the

contumaciousness of the petitioner/tenant goes to the extent that even till the

application under Order IX Rule 13 CPC was dismissed, the arrears of

Rs.4,800/- was not deposited in the Court of the Additional Rent Controller.

Therefore, I refuse to grant any indulgence to the petitioner to now deposit the

amount of Rs.4,800/- pursuant to the judgments dated 2.6.2010/21.4.2012

which have decreed the petition under Section 14(1)(a) of the Act.

13. In view of the above, there is no merit in the petition, which is

therefore dismissed, leaving the parties to bear their own costs.

SEPTEMBER 01, 2014                                     VALMIKI J. MEHTA, J
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