Delhi High Court
Anita Devi Tulsian vs Subh Karan Since Deceased Through ... on 15 February, 2021
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15.02.2021
+ CM(M) 133/2021
ANITA DEVI TULSIAN ..... Petitioner
Through Mr.Hitendra Nahata, Adv.
versus
SUBH KARAN SINCE DECEASED THROUGH ITS LEGAL
REPRESENTATIVE & ORS. ..... Respondents
Through Mr.R.P.S.Sirohi, Adv. for LR
Nos.2 and 3 of R-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
CM 5837/2021(Exemption)
Allowed, subject to all just exceptions.
CM(M) 133/2021 & CM 5836/2021
1. This petition has been filed by the petitioner being aggrieved of
the judgment dated 20.10.2020 passed by the learned Rent Control
Tribunal in Appeal, being RCT No.17/2019, dismissing the appeal of
the petitioner challenging the order dated 12.07.2018 that was passed
by the learned Additional Rent Controller in Eviction Petition No. E-
196/14/09, granting benefit of Section 14(2) of the Delhi Rent Control
CM(M) No.133/2021 Page 1
Act, 1958 (hereinafter referred to as "the Act") to the respondents
herein.
2. In the eviction petition filed by the petitioner, an order dated
07.12.2011 under Section 15(1) of the Act came to be passed by the
learned Additional Rent Controller, directing as under:
"Without prejudice to the contention of the respondent, the
respondents are directed to pay rent at admitted rate from three
years immediately preceding the filing of present petition till
date within one month from today. The respondent shall pay
future rent at the same rate by the 15th of each succeeding
month."
3. The eviction petition was finally decided in favour of the
petitioner under Section 14(1)(a) of the Act by the judgment dated
17.03.2018 and the petition was set down for an enquiry under Section
14(2) of the Act.
4. By the subsequent order dated 12.07.2018, the learned
Additional Rent Controller extended the benefit of Section 14(2) of
the Act to the respondents herein observing as under:
"Admittedly, vide order dt. 07.12.2012 u/s 15(1) of DRC Act,
the respondents were directed to pay rent @ Rs.42.35 ps. for the
period of three years immediately preceding the filing of the
present petition and to continue to pay the same in future as
well. The said amount was to be paid within one month from
the date of the order. It is not in dispute that an amount of
Rs.3049.20 ps. was deposited by the respondents on 21.12.2011
CM(M) No.133/2021 Page 2
i.e. within one month from the date of the order. The
respondent had further deposited Rs.551/- on 06.01.2012 i.e.
also within one month of the passing of the order u/s 15(1) of
the DRC Act. Thus within one month, the respondents had
deposited an amount of Rs.3600/- which is equivalent to the rent
for 85 months @ Rs.42.35 ps.
The present petition was filed in November, 2009 and
thus the respondents were to deposit the rent w.e.f. December
2006. Thus within one month, the respondents had deposited
the rent for the period w.e.f. December, 2006 till December,
2013. The respondents have also furnished the details of the
rent deposited by them which has not been disputed by the
petitioner. The respondents have regularly deposited the rent
till April, 2018 barring a few months in between. This court
finds force in the argument raised by the ld. Counsel for the
respondents that there is no bar in depositing the future rent.
Clearly the respondents have deposited the rent in advance and
at no point of time they were in default or there were any
arrears in payment of rent, after passing of the order u/s 15(1)
of the DRC Act.
In the circumstances, respondents are entitled for benefit
under section 14(2) DRC Act, as it is the first default on the part
of respondents regarding payment of rent to the petitioner.
Benefit under Section 14(2) of DRC Act is hereby extended to
the respondents."
5. The petitioner being aggrieved of the said order, challenged the
same in appeal, which has come to be dismissed by the order
impugned in the present petition.
CM(M) No.133/2021 Page 3
6. The learned counsel for the petitioner submits that the
Impugned Order is liable to be set aside inasmuch as it fails to
consider the effect of the Section 19 of the Slum Areas (Improvement
and Clearance) Act, 1956 (hereinafter referred to as "the Slum Act").
He submits that as the eviction petition could not have been filed
without seeking the permission of the Competent Authority under the
said Act, the order dated 07.12.2011, where it directed the respondents
to make the payment of rent from three years prior to the filing of the
petition, should be read as three years from prior to the filing of the
petition seeking permission of the Competent Authority under the
Slum Act. He submits that so considered, there was a default in
compliance with the said order on part of the respondents.
7. The learned counsel for the petitioner further submits that the
rent, pursuant to the order dated 07.12.2011, was deposited by M/s
Shubh Karan Gauri Shankar HUF, which has been held vide order
dated 17.03.2018 of the learned Additional Rent Controller, not to be a
tenant of the petitioner. He submits that therefore, the rent has not
been deposited by the tenant and the respondents could not have been
granted the benefit of deposit of such rent.
8. The learned counsel for the petitioner submits that even
otherwise there was a default made by the respondents in deposit of
the future monthly rent. In this regard he has drawn the attention of
this Court to a chart filed by the petitioner along with the written
submissions before the Courts below. He submits that the chart clearly
shows consecutive period of default on part of the respondents,
CM(M) No.133/2021 Page 4
wherein the respondents not only failed to deposit the rent for a few
months, but also deposited the rent of the other months beyond the
15th of the month as had been directed.
9. The learned counsel for the respondents opposes the above
submissions of the petitioner placing reliance on the orders passed by
the learned Additional Rent Controller and the learned Rent Control
Tribunal.
10. I have considered the submissions made by the learned counsels
for the parties.
11. The order dated 07.12.2011 passed by the learned Additional
Rent Controller under Section 15(1) of the Act required the
respondents to pay the admitted rent "from three years immediately
preceding the filing of the present petition". The said order does not
require the respondents to deposit such rent from three years prior to
the filing of the petition under the Slum Act. Therefore, the petitioner
cannot claim that there was any default in compliance with the said
order on part of the respondents by not making such deposit from
three years prior to the filing of the petition under the Slum Act.
12. It is important here to note that the petitioner never challenged
this order nor filed any application under Section 15(7) of the Act
incase the petitioner felt that the respondents have failed to comply
with the said order.
13. As far as the submission of the petitioner that the deposit of the
rent has been made by the HUF, the rent having been deposited clearly
CM(M) No.133/2021 Page 5
inures to the benefit of the respondents and therefore, again cannot be
a ground for denying the benefit of Section 14(2) of the Act to the
respondents.
14. The plea of the petitioner that there was a default in compliance
with the order of the learned ARC under Section 15(1) of the Act, also
deserves rejection inasmuch as the chart filed by the petitioner itself
clearly shows that the respondents were in fact depositing the rent in
advance, barring a few months. Even if there was a default in deposit
of rent for a few months in between and/or delay in deposit of such
rent for a few months, the same does not appear to be contumacious.
As held by the Supreme Court in Dina Nath (D) by L.Rs. and Ors.
versus Subhash Chand Saini and Ors., (2019) 9 SCC 477, the issue
of such default lies at the discretion of the learned Additional Rent
Controller. The Supreme Court observed as under:
"24. It clearly emerges from the exposition of law that
power vested Under Section 15(7) of the Act, 1958 is
discretionary and not mandatory and depends on
contumacious or deliberate default and must be construed
harmoniously so as to balance the rights and obligations of
the tenant and the landlord and the power Under Section
15(7) of Act, 1958 being an exception to be exercised with
due care and circumspection.
xxx
30. The question is whether the tenants were guilty of
contumacious conduct in withholding such payment. While
answering that question, the amount of rent payable for the
demised premises may be a factor which cannot be brushed
aside, but the facts and circumstances of the case on hand,
CM(M) No.133/2021 Page 6
do not suggest any negligence, defiance or contumacious
non-payment of the amount payable to the landlord to
warrant the taking of that "exceptional step" which is bound
to render the tenant defenceless in his contest against the
Respondents-landlord."
15. The learned Additional Rent Controller in his order dated
12.07.2018 has exercised his discretion in favour of the respondents
and held that on such default, the respondents cannot be denied the
benefit of protection under Section 14(2) of the Act.
16. The discretion having been exercised, I do not find any ground
for interference in exercise of the powers under Article 227 of the
Constitution of India.
17. In view of the above, I find no merit in the present petition. The
same is dismissed. There shall be no order as to costs.
NAVIN CHAWLA, J
FEBRUARY 15, 2021
RN
CM(M) No.133/2021 Page 7
