Kamlesh Srivastava vs Laxmi Devi
2017 Latest Caselaw 5556 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Pronounced on: 10.10.2017

+     CM(M)1227/2013 & CM No.17969/2013
      KAMLESH SRIVASTAVA                           ....Petitioner
                         Through      Mr.Sanjeev Kumar, Adv.
                   Versus
      LAXMI DEVI                                   ...Respondent
                         Through     Mr.Manoj Kumar Duggal, Adv. with
                         respondent in person

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.

1. Present petition is filed under Article 227 of the Constitution of India seeking to challenge the order dated 23.9.2013 passed by the Rent Control Tribunal/District Judge confirming an eviction order passed under section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act).

2. The respondent/landlord filed a petition under section 14(1)(a) of the DRC Act seeking eviction of a portion of the property described in the petition as House No.126, Block B, Pocket 6, Sector-7, Rohini, Delhi. It was further stated that the rent was Rs.660/- per month which at present is Rs.726/- per month. The premises are said to have been let out in 1994. It is urged that the petitioner had paid rent only upto 1.10.1995. A legal demand

notice dated 22.12.2003 was served upon the petitioner. It is urged that despite receipt of the same the petitioner failed to tender the rent since July 2003.

3. Based on the pleadings and evidence of the parties the Additional Rent Controller (ARC) vide order dated 02.09.2011concluded that there is no dispute about existence of the relationship of landlord and tenant between the parties. It concluded that the rent of the premises was Rs.660/- per month. It noted that during cross-examination of the petitioner, she has admitted that she has not paid rent or deposited the same since July 2003 to December 2003. Hence, the ARC came to the conclusion that the petitioner was in arrears of rent since July 2003 up to the date of sending of the legal notice dated 22.12.2003. The ARC noted that under section 14(2) of the DRC Act an eviction order cannot straightaway be passed against the tenant and the tenant is entitled to grant of benefit under section 14(2) of the Act. A direction was passed to the petitioner to make payment of arrears of rent @ Rs.660/- per month w.e.f. July 2003 upto date within one month from the date of passing of the judgment. On 5.12.2011 the ARC sought the report of the court official regarding deposit of rent by the petitioner in compliance of the order dated 2.9.2011. Noting that payment has not been made the ARC came to the conclusion that the petitioner is not entitled for grant of benefit of protection under section 14(2) of the DRC Act and passed an eviction order.

4. In appeal before the Rent Control Tribunal the appellate court by its order dated 18.7.2012 noted that on 5.12.2011 the petitioner was absent. It noted that as the petitioner was absent the submission regarding refusal of money order by the respondent/landlord and subsequent deposit of rents

under section 27 of the DRC Act were not brought to the notice of the ARC. The appeal was accordingly partly allowed and the matter was remanded back to the ARC for re-hearing the matter on the question as to whether the petitioner is entitled to benefit under section 14(2) of the Act after giving an opportunity to both the parties. On remand the ARC concluded on facts that on 2.9.2011 the petitioner was given an opportunity to deposit the rent under section 15(1) of the DRC Act. She was directed to pay rent from July 2003 till date i.e. 2.9.2011 @ Rs.660/- per month within one month. The order notes that the detailed statement of rent deposited by the petitioner has been filed and that the respondent admits the said statement. As per the statement the petitioner has deposited rent @ Rs.660/- per month w.e.f. August 2003. The ARC noted the plea of the petitioner that as per an earlier order dated 4.7.2005 the petitioner was directed to pay rent w.e.f. August 2003. The plea was rejected as order dated 2.9.2011 had directed payment w.e.f. July 2003 and not August 2003. The petitioner having not paid the rent for July 2003 despite a specific order under section 15(1) of the Act on 2.9.2011 the ARC held that the petitioner is not entitled to the benefit of section 14(2) of the DRC Act and passed a fresh eviction order.

The RCT vide the impugned order dismissed the appeal of the petitioner noting that in view of the judgment dated 2.9.2011 the petitioner was in arrears of rent for July 2003. Noting that the petitioner has deposited rent only w.e.f. August 2003 and there is non-compliance of the order of the ARC the appeal was dismissed.

5. I have heard learned counsel for the parties. Learned counsel for the petitioner has vehemently argued that rent for July 2003 has been paid. Reliance is placed on a demand draft dated 19.2.2002 for Rs.2,400/-

Ex.PW1/6 and demand draft dated 19.7.2003 for Rs.3,300/- Ex.PW1/7 to contend that these payments reflected rent for nine months from July 2003 to September 2003. It is also urged that in cross-examination the respondent as PW-1 has admitted the receipt of these two drafts. Hence, it is urged that the impugned orders have wrongly passed an eviction order.

6. In my opinion there is no merit in the plea of the petitioner. Essentially, what the petitioner is doing is seeking to impugn the findings of fact recorded by the ARC in his order dated 2.9.2011. As per the said order the ARC has relied upon cross-examination of the petitioner where there is an admission that she was in arrears of rent from July 2003 to December 2003. The demand drafts relied upon by the petitioner only show payment of rent but do not demonstrate the period for which this rent has been given. Hence, there are no reasons to interfere in the findings of fact recorded by the ARC.

7. It is no doubt true that the eviction order has been passed for non payment of rent for one month, namely, July 2003 only. Admittedly, rent from August 2003 onwards has been paid by the petitioner which is apparent from the facts recorded by the ARC in his order passed on remand, namely, order dated 13.8.2012. What is surprising is that the petitioner has not sought to move an application under section 15(7) of the DRC Act seeking condonation of delay in filing the rent for the single month but has continued to argue that rent for the said month has been paid.

8. Section 14(1)(a) 14(2) 15(1) and 15(7) of the DRC Act reads as follows:-

"14. Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary contained in

any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the Transfers of Property Act, 1882 (4 of 1882); ......

14(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause

(a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.

.....

15(1) When a tenant can get the benefit of protection against eviction.- (1) In every proceeding of 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 fifteen of each succeeding month, a sum equivalent to the rent at that rate

.......

15 (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."

9. The Supreme Court in Ram Murti vs. Bhola Nath and Another, (1984) 3 SCC 111, held as follows:-

"The narrow construction placed by the Full Bench of the Delhi High Court in Delhi Cloth & General Milk Co. Ltd. v. Hem Chand A1R (1972) Del. 275 on the powers of the Controller contained in Section 15(7) in the context of Section 14(2) does not appeal to reason. It is not inconceivable that the tenant might fail to comply with the requirements of Section 15(1) by the date line due to circumstances beyond his control. For instance, it might not be possible for the tenant to attend the Court to make the deposit on the last day if it is suddenly declared a holiday or on account of a serious accident to himself or his employee, or while going to the treasury he is waylaid, or is stricken with sudden illness, or held up on account of riots or civil commotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctually making the deposit commits breach of trust and disappears, or some other circumstances intervene which make it impossible for him for reasons beyond his control to physically make the deposit by the due date. There is no reason why the refusal of the Rent Controller to strike out the defence of

the tenant under Section 15(7) in such circumstances should not enure to the benefit of the tenant for purposes Section 14(2)"

.......

11.....With respect, the observations in Hem Chand's case 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 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)."

10. Hence, the petitioner could have sought to seek condonation of delay in depositing the rent for July 2003 by giving cogent reasons. But no such step was taken. Even before this court no plea was raised seeking condonation of delay. Accordingly, there is no merit in the present petition and same is dismissed. All pending applications, if any, also stand disposed of accordingly.

JAYANT NATH, J.

OCTOBER 10, 2017 n