Delhi High Court
Mohd Idris vs Sadat Ali Khan on 20 April, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1022/2013 & CMs. 15331/2013, 19607/2013
% Reserved on: 19th March, 2015
Decided on: April 20 , 2015
MOHD IDRIS ..... Petitioner
Through Mr. Javed Ahmad, Adv.
versus
SADAT ALI KHAN ..... Respondent
Through Mr. Krishan Kumar, Adv.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. The respondent filed an eviction petition against the petitioner under
Section 14(1)(a) of the Delhi Rent Control Act, 1958 (in short the DRC Act)
alleging that the petitioner was let out shop bearing No. 11/1, Ground floor,
part of property No. A-10/1, Gali No.11 Agarbatti Wali, Chauhan Nagar,
Jaffrabad (in short the tenanted premises) at a monthly rent of `300/- vide
rent agreement dated 5th April, 2002 with a security deposit of `2 lakhs. The
rent was later on increased to `330/- and thereafter `363/-. It is stated that
the petitioner is a regular defaulter in payment of rent and had not paid
arrears of rent with effect from 1st March, 2009.
2. After the parties led evidence vide order dated 28th January, 2013 the
learned ARC passed order under Section 15(1) DRC Act directing the
petitioner to pay arrears of rent with effect from 1st March, 2009 @ `363/-
per month and to continue to pay or deposit rent @ `363/- per month as
directed. Matter was listed for consideration of the benefit under Section
14(2) of the DRC Act and vide order dated 30th March, 2013 the learned
ARC noted that on 30th March, 2011 the petitioner was directed to pay
arrears of rent @ `363/- per month from 1st March, 2009 and he was further
directed to pay the future rent month by month by 15 th day of each calendar
month. As per the report of the Nazir the respondent deposited `9438/- as
rent for the period with effect from 1st March, 2009 to 30th April, 2011 on 2nd
May, 2011. The petitioner further deposited `363/- on 20th May, 2011 and
no further amount was deposited. On perusing the defaults by the petitioner
despite order dated 30th March, 2011 and that the order under Section 15(1)
has already been passed against the petitioner on 28 th January, 2013, the
petitioner having failed to assign any reason for the defaults, benefit under
Section 14(2) of DRC Act was rejected and eviction order was passed in
respect of tenanted premises.
3. In appeal the learned District Judge also came to the conclusion that in
the absence of any rent receipt produced the contention of the petitioner that
rent stood paid till September, 2010 remained uncorroborated whereas rent
was actually paid till February, 2009. The learned District Judge held that
the security deposit was not liable to be adjusted at interim stages when
notice of demand of arrears was issued unless there was a stipulation
between the parties to the contrary and the rent having not been deposited
after the first order under Section 15(1) DRC Act the eviction order was
rightly passed on 30th March, 2013.
4. Learned counsel for the respondent/landlord at the outset states that
the possession of premises has been taken over in execution of the decree as
the present petition was filed belatedly. He further states that in view of the
repeated defaults of the petitioner, the learned ARC rightly passed the
eviction order which was upheld by the learned District Judge. The defaults
pointed out by the respondent are as under:
S.No. Rent due for month Payment Amount Payment made on
1 June, 2011 365/- 14.6.2011
2 July, 2011 365/- 16.7.2011
3 August, 2011 730/- 16.8.2011
4 September, 2011 --- ---
5 October, 2011 --- ---
6 November, 2011 --- ---
7 December, 2011 1100/- 16.12.2011
8 January, 2012 --- ---
9 February, 2012 --- ---
10 March, 2012 --- ---
11 April, 2012 --- ---
12 May, 2012 1100/- 8.5.2012
13 June, 2012 --- ---
14 July, 2012 --- ---
15 August, 2012 --- ---
16 September, 2012 --- ---
17 October, 2012 1500/- 12.10.2012
18 November, 2012 --- ---
19 December, 2012 --- ---
20 January, 2013 1050/- 17.1.2013
21 February, 2013 730/-
Total 6940/-
"Amount due w.e.f. June, 2011 to Feb.2013 for 21 months @
`363/- = 7623/- but the petitioner deposited only `6940/- which
is less `683/- from the amount due and outstanding. For the
period w.e.f. 1.3.2009 till 28.2.2013 total 48 months, out of
which 27 month rent w.e.f. 1.3.2009 till 31.5.2011 deposited in
Court and thereafter rent deposited in bank. There is
continuous default since the date of order."
5. Learned counsel for the respondent further states that the delayed
payments were made without any application seeking condonation of delay
and without any interest as required to be paid under Section 26 of the DRC
Act.
6. The only issue urged before this Court by learned counsel for the
petitioner is that while passing an eviction order the learned ARC should
have seen subsequent defaults i.e. defaults after the order under Section
15(1) DRC Act was passed and there being only one default thereafter there
was sufficient power to condone the delay and extend the time. Reliance is
placed on Ram Murti Vs. Bhola Nath & Anr. AIR 1984 SC 1392.
7. In Ram Murti (supra) the Supreme Court held that the Rent Controller
has the power to condone the defaults on the part of the tenant in making
payment or deposit of future rent or to extend time for such payment or
deposit. Under Section 15(1) DRC Act where the failure of the tenant to
make such payment or deposit was due to circumstances beyond his control,
the failure of the tenant therefore to make such payment or deposit would not
entitle the landlord straightway to a decree for eviction under Section
14(1)(a) of the DRC Act. It was held that even if the defence of the tenant is
not struck out under Section 15(7) on a subsequent default the tenant must
still be visited with the punishment of being deprived of the protection under
Section 14(2). It was further held that if the defence was not struck out
under Section 15(7) DRC Act it means that the tenant has still defence open
to him under the Act and he has a right to claim protection under Section
14(2), however when the tenant commits consecutive defaults with respect to
future rents an eviction order is to follow.
8. This Court considering the various decisions of the Supreme Court in
Ram Parkash Tewari Vs. Suraj Bhan Yadav 90 (2001) DLT 236 held:
"16. The relevant provisions of the Act indicate that if a tenant
defaults in the payment of rent, the landlord is obliged to issue a
notice demanding rent from him. This is as per Clause (a) of the
proviso to Section 14(1) of the Act. If the notice of demand is
not complied with, then the landlord may institute an eviction
petition. If need be, the learned Controller may then pass an
order under the provisions of Section 15 of the Act directing the
tenant to deposit the arrears of rent and to deposit future rent
month by month. The question is: what happens if the tenant
does not comply with an order passed under Section 15 of the
Act?
17. Sub-sections (1), (3) and (7) of Section 15 of the Act are
relevant and they read as follows:
"15. When a tenant can get the benefit of protection against
eviction--
(1) In every proceeding for the recovery of possession of any
premises on the ground specified in clause (a) of the proviso to
Sub-section (1) of Section 14, the Controller shall, after giving
the parties an opportunity of being heard, make an order
directing the tenant to pay to the landlord or deposit with the
Controller within one month of the date of the order, an amount
calculated at the rate of rent at which it was last paid for the
period for which the arrears of the rent were legally recoverable
from the tenant including the period subsequent thereto up to
the end of the month previous to that in which payment or
deposit is made and to continue to pay or deposit, month by
month, by the fifteenth of each succeeding month, a sum
equivalent to the rent at that rate.
(2) xxxxxxxxx
(3) If, in any proceeding referred to in Sub-section (1) or
Sub-section (2), there is any dispute as to the amount of rent
payable by the tenant, the Controller shall, within fifteen days
of the date of the first hearing of the proceeding, fix an interim
rent in relation to the premises to be paid or deposited in
accordance with the provisions of Sub-section (1) or Subsection
(2), as the case may be, until the standard rent in relation thereto
is fixed having regard to the provisions of this Act, and the
amount of arrears, if any, calculated on the basis of the standard
rent shall be paid or deposited by the tenant within one month
of the date on which the standard rent is fixed or such further
time as the Controller may allow in this behalf.
(4) to (6) xxx xxx xxx
(7) If a tenant fails to make payment or deposit as required
by this section, the Controller may order the defence against
eviction to be struck out and proceed with the hearing of the
application."
18. To answer the question posed above, four decisions of
the Supreme Court were cited before me. These decisions are:
(i) Hem Chand, Etc. etc. v. The Delhi Cloth & General Mills
Co. Ltd., Etc. etc., (1977) 3 SCC 483 : AIR 1977 SC
1986;
(ii) Shyamcharan Sharma v. Dharamdas, (1980) 2 SCC 151
: AIR 1980 SC 587;
(iii) Ram Murti v. Bhola Nath, (1984) 3 SCC 111 : AIR 1984
SC 1392;
(iv) Subhash Mehta v. Dr. S.P. Choudhary (dead) by L.Rs.,
(1990) 2 SCC 38 : AIR 1990 SC 1009.
19. Insofar as Hem Chand is concerned, it was held in Ram
Murti that that decision "......although not expressly overruled,
cannot stand with the subsequent decision in Shyamcharan's
case......". Consequently, it may not be appropriate to rely
on Hem Chand. It must, however, be mentioned that Hem
Chand was cited before me only for the purposes of showing
the development of the law.
20. Since Shyamcharan was diametrically opposed to Hem
Chand, it may be profitable to refer to Ram Murti which
resolves the controversy between the two conflicting decisions.
21. Insofar as Ram Murti is concerned, it may be worthwhile
to read what the Supreme Court had to say. In paragraph 16 of
the Report the Supreme Court stated ".....if the defence is not to
be struck out under Section 15(7) it means that the tenant has
still the defences open to him under the Act. In the premises,
the conclusion is irresistible that he has the right to claim
protection under Section 14(2)." Further in the same paragraph
it was held that "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."
22. It may be mentioned that the view expressed in Ram
Murti was affirmed by the Supreme Court in Kamla
Devi v. Vasdev, (1995) 1 SCC 356 : AIR 1995 SC 985.
Paragraph 23 of the Report is relevant and this reads as under:
"We are unable to uphold the contention of the appellant
that the case of Ram Murti v. Bhola Nath, (1984) 3 SCC 111:
AIR 1984 SC 1392, was wrongly decided and reliance was
wrongly placed in that case on the decision of a Bench of three
Judges of this Court in the case of Shyamcharan
Sharma v. Dharamdas, (1980) 2 SCC 151: AIR 1980 SC 587.
In our view, Sub-section (7) of Section 15 of the Delhi Rent
Control Act, 1958 gives a discretion to the Rent Controller and
does not contain a mandatory provision for striking out the
defence of the tenant against eviction. The Rent Controller may
or may not pass an order striking out the defence. The exercise
of this discretion will depend upon the facts and circumstances
of each case. If the Rent Controller is of the view that in the
facts of a particular case the time to make payment or deposit
pursuant to an order passed under Sub-section (1) of Section 15
should be extended, he may do so by passing a suitable order.
Similarly, if he is not satisfied about the case made out by the
tenant, he may order the defence against eviction to be struck
out. But, the power to strike out the defence against eviction is
discretionary and must not be mechanically exercised without
any application of mind to the facts of the case."
23. The fourth decision, that is, Subhash Mehta was decided
on its own peculiar facts as is clear from a reading of paragraph
7 of the Report.
24. The position, as it emerges from a reading of the various
provisions of the Act and the interpretation given to them by the
Supreme Court is this: if a tenant complies with an order passed
under Section 15(1) of the Act then, of course, he can contest
the eviction petition by raising all his defences. If a tenant does
not comply with an order passed under Section 15(1) of the
Act, then the only option available to the landlord is to move an
application under Section 15(7) of the Act to have the defence
of the tenant struck off.
25. When an application under Section 15(7) of the Act is
made by the landlord, the learned Controller has only two
options available to him. The learned Controller may either
dismiss the application or allow it. If the learned Controller
dismisses the application then, as held in Ram Murti, the tenant
can raise all defences and he has the right to claim the benefit
under Section 14(2) of the Act, if he does not succeed.
26. I am really concerned with the second option, namely,
when the learned Controller allows an application filed under
Section 15(7) of the Act and strikes out the defence of the
tenant.
27. In such a situation, it is quite obvious that the order
striking out the defence of the tenant is passed because of his
failure to comply with an order passed under Section 15 of the
Act. There is a further consequence of not complying with an
order passed under Section 15 of the Act. This is mentioned in
Section 14(2) of the Act.
28. Section 14(2) of the Act provides that an order for
recovery of possession cannot be passed "if the tenant makes
payment or deposit as required by Section 15". In other words,
a tenant is entitled to claim the benefit of Section 14(2) of the
Act if he complies with an order passed under Section 15 of the
Act. This is clear from a plain reading of Section 14(2) of the
Act. Conversely, and if I may use a cricketing term, a "reverse
sweep" of this would mean that if a tenant fails to pay or
deposit rent as required by Section 15, an order for recovery of
possession can be passed against him.
29. According to learned Counsel for the appellant, a tenant
is entitled to claim the benefit of Section 14(2) of the Act
(regardless of his conduct) in the case of a first default.
Reliance was placed on paragraph 17 of Ram Murti.
30. For the purposes of easy reference, paragraph 17 of Ram
Murti is reproduced below:
"The further contention advanced by learned Counsel for
the respondents that in a case of consecutive defaults the
proviso to Section 14(2) is attracted, cannot be accepted for
obvious reasons. On a plain construction, it provides that no
tenant shall be entitled to the benefit under Section 14(2) if,
having obtained such benefit once in respect of any premises,
he again makes a default in the payment of rent for that
premises for three consecutive months. On a plain construction,
the proviso is attracted only in a case where the tenant has been
saved from eviction in an earlier proceeding for eviction before
the Rent Controller under Section 14(1)(e) of the Act i.e. the
tenant must have enjoyed the benefit of Section 14(2) in a
previously instituted proceeding."
31. Learned Counsel for the appellant contended that the last
sentence of this paragraph makes it clear that a tenant can be
denied the benefit of the proviso to Section 14(2) of the Act
only if he has already availed its benefit in an earlier
proceeding.
32. I am afraid that there is a bit of a mix-up in
understanding what the Supreme Court has decided. Of course,
the benefit of Section 14(2) of the Act can be availed of by a
tenant only once. That is what Section 14(2) of the Act says and
that is what the Supreme Court says.
33. It is true that the Supreme Court has used the expressions
"in an earlier proceeding for eviction" and "in a previously
instituted proceeding." However, these expressions have to be
understood in the context in which they are used, namely, in the
case of a tenant making consecutive defaults in paying or
depositing future rent as required (in that case) under Section
15(1) of the Act. The context was not of disobedience of an
order passed under Section 15 of the Act.
34. Before me, the question is one of disobedience of an
order passed under Section 15(1) of the Act. The question is
whether a tenant can avail the benefit of Section 14(2) of the
Act if he fails to comply with an order passed under Section 15
of the Act. In other words, the question is not of availing the
benefit of Section 14(2) of the Act for a second time: the
question is of availing the benefit of Section 14(2) of the Act
for the first time if there is non-compliance with an order
passed under Section 15 of the Act.
35. The answer to this question, as per my analysis above, is
that if a tenant does not comply with an order passed under
Section 15 of the Act, and if his defence is struck out under the
provisions of Section 15(7) of the Act, then he is not entitled to
the benefit of Section 14(2) of the Act, even in the case of a
first default. The reason is the use of the words "if the tenant
makes payment or deposit as required by Section 15" occurring
in Section 14(2) of the Act. In other words, the benefit of
Section 14(2) can be claimed by a tenant only if he meets its
pre-condition, which is compliance with an order under Section
15 of the Act."
9. A perusal of the chart as placed above would show that rent was not
paid on month to month basis despite order under Section 15(1) DRC Act
and there were repeated defaults in payments of rents and consolidated
amounts were paid after a gap of 3-4 months that too without seeking
condonation of delay and without any interest as envisaged by Section 26 of
the DRC Act. Consequently, I find no error in the impugned order of the
learned ARC and the learned District Judge declining to grant benefit to the
petitioner under Section 14(2) of the DRC Act and passing the eviction
order. The possession of the premises has already been taken over by the
respondent.
10. Petition and applications are dismissed.
(MUKTA GUPTA)
JUDGE
APRIL 20, 2015
'ga'
