1 Leave granted.
2 This appeal emanates from the proceedings of an eviction petition filed by the respondent-landlord on 12.4.2004 under
Sections 14(1)(a),(b), (d) and (h) of the Delhi Rent Control Act, 1958
(for short ‘the Act’) against the appellant-tenant before the
Additional Rent Controller, Tis Hazari Courts, Delhi, seeking
eviction of the appellant-tenant from the premises bearing property
No.47, 1st Floor, Bunglow Road, Kamla Nagar, Delhi. It is an
admitted position that the premises in question was let out by the
landlord to the tenant for residential purposes and the last paid
rent was @ Rs.500/- p.m. exclusive of other charges. The eviction
petition was confined ultimately to the solitary ground under
Section 14(1)(a) of the Act. The landlord issued a demand notice
under Section 14(1)(a) of the Act to the appellant-tenant on
19.1.2004 demanding rent @ Rs.500/- p.m. w.e.f. 1.4.2001 along
with interest thereon. Since the tenant failed to pay the rent, the
petition for eviction of the tenant was filed as aforesaid.
3 The tenant filed the written statement denying the allegations
made in the eviction petition besides providing his defence on
merits. However, with regard to the ground of non-payment of
rent, it was, inter alia, contended that he is not guilty of
non-payment and he had paid the rent from time to time to the JUDGMENT
landlord who did not issue any receipt against the same. It was
further contended that pursuant to the receipt of demand notice
dated 19.1.2004, he had sent a reply dated 22.3.2004 whereby he
tendered a sum of Rs.18,000/- to the landlord by way of a bank
draft towards rent @ Rs.500/- p.m. for the period 1.4.2001 till
30.9.2004. To the aforesaid written statement of the tenant, the
landlord filed his replication categorically denying the allegations
made in the written statement and reaffirmed the contents of his
eviction petition.
4 After completion of the pleadings, the matter was taken up by
the Rent Controller for consideration under Section 15(1) of the Act.
Keeping in view the respective stand of the parties, the Rent
Controller passed an order dated 7.2.2005 directing the tenant to
pay or deposit a sum of Rs.500/- p.m. as rent w.e.f. 1.10.2004 and
continue to pay the same at the aforesaid rate month by month.
5 Thereafter, parties led their evidence. After the conclusion of
the evidence, the Rent Controller allowed the petition by order dated
27.4.2010 under Section 14(1)(a) of the Act. The Rent Controller
held that the tenant has failed to prove that he had tendered the
rent to the landlord pursuant to the demand notice dated JUDGMENT
19.1.2004 and thus the tenant is guilty of non-payment of rent
within the ambit of Section 14(1)(a) of the Act. While passing the
said judgment the Rent Controller directed the Nazir to submit a
report for the purpose of consideration of entitlement of the tenant
to the benefit under Section 14(2) of the Act. The matter was taken
up by the Rent Controller on 6.7.2010 on which date the Rent
Controller perused the Nazir’s report who stated that the tenant
even failed to deposit the rent regularly in compliance of the said
order under Section 15(1) of the Act. Therefore, the Rent Controller
by an order dated 6.7.2010 held that the tenant is not entitled to
the benefit of Section 14(2) of the Act and passed eviction order
under Section 14(1)(a) of the Act. The tenant challenged the said
order by filing an appeal before the Additional Rent Control
Tribunal, North Delhi (for short ‘Tribunal’). The appeal was allowed
by the Tribunal on 12.1.2011 whereby the matter was remanded to
the Rent Controller.
6 Pursuant to the order dated 12.1.2011 passed by the Tribunal,
the Rent Controller allowed the tenant to record examination of two
witnesses. He was also permitted to mark certain documents. The
Rent Controller after hearing the parties, allowed the petition by JUDGMENT
order dated 5.7.2011 under Section 14(1)(a) of the Act by holding
that the tenant failed to pay the rent despite service of demand
notice and committed default within the meaning of Section 14(1)(a)
of the Act. The Rent Controller directed the tenant to deposit the
arrears of rent from 1.4.2001 @ Rs.500/- p.m. along with interest @
15% p.a. Accordingly, the earlier order dated 7.2.2005 passed
under Section 15(1) of the Act was modified. Nazir of the court was
directed to submit report for consideration of the entitlement of the
tenant to the benefit under Section 14(2) of the Act.
7 Nazir submitted a report whereby it was found that the tenant
had been guilty of non-compliance of the order dated 7.2.2005
passed under Section 15(1) of the Act. The tenant took the stand
that since he had complied with the final judgment dated 5.7.2011,
the tenant is entitled to the benefit under Section 14(2) of the Act.
After hearing the learned counsel for the parties, the Rent
Controller by an order dated 24.8.2011 held that the tenant has
failed to provide any explanation regarding delay in depositing of
rent month by month in terms of the order dated 7.2.2005. Thus
he is not entitled to the benefit under Section 14(2) of the Act.
Therefore, the eviction order was passed by the Rent Controller JUDGMENT
against the tenant under Section 14(1)(a) of the Act.
8 The appeal filed by the tenant challenging the said order of the
Rent Controller before the Rent Control Tribunal was allowed on
24.2.2012. The landlord challenged the said order before the High
Court of Delhi in C.M. Main No.415 of 2012. The High Court by
order dated 01.12.2014 has allowed the appeal and set aside the
order of the Tribunal and restored the order passed by the Rent
Controller. The tenant has called in question the legality and
correctness of the said order in this appeal.
9 Learned senior counsel appearing for the appellant-tenant
argues that the order dated 7.2.2005 passed under Section 15(1) of
the Act was modified by a later order dated 5.7.2011 wherein a
direction was issued to the tenant to deposit the arrears of rent
along with interest @15% p.a. within one month from the date of
the said order. This order has been complied with by the tenant.
Thus order dated 7.2.2005 has merged with the order dated
5.7.2011. Secondly, it is argued that the High Court has placed
reliance in Hem Chand etc. etc. v. The Delhi Cloth & General
Mills Co. Ltd. and Anr. Etc. etc.1. This judgment has been
impliedly overruled in Shyamcharan Sharma v. Dharamdas2 JUDGMENT
whereby this Court has held that the Rent Controller is vested with
the discretionary power to condone the default and extend the time
for deposit of the rent. This position has been recognized by this
Court in Ram Murti v. Bhola Nath and Anr.3 whereby it was held
that the Rent Controller has power to condone the default on the
part of the tenant in making payment or deposit of the future rents.
In the light of the judgment in Ram Murti (Supra), the High Court
ought to have condoned the delay in payment of the rents.
10 On the other hand, learned counsel appearing for the
respondent-landlord submits that the tenant is a contumacious and
a willful defaulter of the rents. He had the opportunity to pay the
arrears of rent in response to the notice issued under Section 14(1)
(a) of the Act. Instead of paying the rents he raised a defence that
he had paid the rent to the landlord who did not issue any receipt
against the same. It was further contended that he had paid
Rs.18,000/- towards the rent by way of bank draft from 1.4.2001 to
31.1.2004. That is why the Rent Controller, while considering the JUDGMENT
case under Section 15(1), directed the tenant to pay the rent @
Rs.500/- p.m. from 1.10.2004 and continue to pay the same at the
same rate month by month. The question relating to payment from
1.4.2001 to 30.9.2004 was kept open. The tenant has failed to pay
the rent in terms of this order. When the matter was taken up for
consideration under Section (14)(1)(a) the court directed the tenant
to pay the rent for the aforesaid period. There is no merger of the
order dated 7.2.2005 in the order dated 5.7.2011.
11 Similarly, it is contended that the tenant has failed to comply
with the order under Section 15(1) of the Act. He has deposited the
rent from 1.1.2004 to 31.1.2006 after the expiry of 9 months 12
days and for the period 1.4.2006 to 31.2.2007. The deposit of rent
was made after the expiry of 3 months and 6 days. Similarly, the
payment of rent for the subsequent period is also made sometimes
after one year and sometimes after 3 months. The tenant has not
offered any explanation for the delay in payment of rents.
Therefore, the order impugned does not call for interference.
12 Before considering the rival contentions of the parties, it is JUDGMENT
desirable to set out relevant provisions of the Act. Section 14(1)
provides that no tenant can be evicted except an application made
to the Controller for an order for the recovery of possession on one
or more grounds specified in the section. Section 14(1)(a) provides
for eviction of a tenant on the ground of default in payment of rent,
if the tenant has neither paid nor tendered the whole of arrears of
rent legally recoverable from him within two months of the date on
which the notice of demand for arrears of rent has been served on
him by the landlord in the manner provided in Section 106 of the
Transfer of Property Act, 1882. It is clear that if the tenant pays the
arrears of rent within two months of service of notice, the landlord
cannot get order for recovery of possession on the ground of default
in payment of rent but if the tenant fails to pay the rent as required
under Section 14(1)(a), the proceedings are taken under Section
15(1) of the Act. Under this provision the Controller shall, after
giving the parties opportunity of being heard, make an order
directing the tenant to pay 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 rent were legally recoverable from the JUDGMENT
tenant including the period subsequent thereto upto 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 15th of each
succeeding month a sum equal to the rent at that rate.
13 Sub-section (6) of Section 15 states that if a tenant makes
payment or deposit as required by sub-section (1) or sub-section
(3), no order shall be made for recovery of possession on the ground
of default in the payment of rent by the tenant, but the Controller
may allow such costs as he deem fit to the landlord. Sub-section
(7) of Section 15 states that 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. The other important provision is
sub-section (2) of Section 14 which states that no order for 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. Thus, payment of
rent as directed by the Controller under sub-section (1) of Section
15 is a must in order to avoid eviction under Section 14(1)(a).
14 The first contention of the learned senior counsel for the JUDGMENT
tenant is that the order dated 07.02.2005 passed under Section
15(1) of the Act has been modified by the Rent Controller by his
order dated 05.07.2011. Therefore, the Rent Controller was not
justified in passing an order of eviction for non-payment of rent in
terms of the order dated 7th February, 2005. There is no merit in
this contention. As noticed above, the appellant claimed rent @
Rupees five hundred per month from 1st April, 2001 along with
interest thereon by issuing a demand notice under Section 14(1)(a).
Since tenant failed to comply with the demand made in the notice,
the landlord filed the eviction petition under Section 14(1)(a) of the
Act. The tenant filed a counter stating that he had paid the rent
from time to time and that the landlord did not issue any receipt
against the same. It was also contended that pursuant to the
demand notice dated 19th January, 2004, he had sent the reply
along with a demand draft for a sum of Rupees 18,000/- towards
the rent @ Rupees five hundred per month from 1.4.2001 to
31.3.2004. The Rent Controller passed order dated 07.02.2005
under Section 15(1) of the Act, directing the tenant to pay or deposit
a sum of Rupees five hundred per month with effect from 1.10.2004
within one month from the date of the order and further continue to JUDGMENT
pay or deposit future rent at the aforesaid rate month by month by
15th day of each succeeding month during trial. This order was
passed because there was dispute in relation to payment of rent
from 1.4.2001 till 30.9.2004. The question relating payment of rent
for this period was kept open. After trial, the Rent Controller came
to the conclusion that the tenant has failed to establish the
payment of arrears of rents from 1.4.2001. The tenant has also
failed to pay the rents from 1.10.2004 in terms of the order dated
07.02.2005. In the circumstances, it is futile to contend that that
the order dated 07.02.2005 has merged with the order dated
05.07.2011.
15 The second contention of the appellant is that the court below
has not considered condonation of delay in payment of rent having
regard to the decision in Ram Murti (supra). It is his submission
that the decision relied on by the High Court in Hem Chand (supra)
has been impliedly overruled in Shyamcharan Sharma (supra). In
Hem Chand (supra) this Court has held that the Rent Controller
has no discretion to extend the time for payment of rent under
Section 15(1) of the Act. However, in Ram Murti (supra) this Court
after taking into consideration the decision in Shyamcharan JUDGMENT
Sharma (supra) has held that Rent Controller has power to condone
the default on the part of the tenant in making payment or deposit
of the future rents. This decision has application in a case where
the tenant seeks condonation of delay in payment of rents. It is
relevant to notice here that the tenant is a willful defaulter of rents.
He took a stand before the Rent Controller that he had paid the
entire arrears of rent. The Rent Controller passed an order dated
07.02.2005 under Section 15(1) of the Act directing him to pay or
deposit the rent at the rate of Rs. 500/- per month with effect from
1.10.2004 and continue to pay the same at the aforesaid rate
month by month. Admittedly, he has failed to pay the rent in terms
of the said order. After conclusion of the trial, the Rent Controller
allowed the petition by order dated 27.4.2010 under Section 14(1)(a)
of the Act. The Rent Controller held that the tenant failed to prove
that he had tendered the rent to the landlord pursuant to the
demand notice dated 19.1.2004. The Rent Controller directed the
Nazir to submit a report for the purpose of consideration of
entitlement of the tenant to the benefit under Section 14(2) of the
Act. The Nazir’s report showed that the tenant had not paid the
rent regularly in compliance with the order passed under Section JUDGMENT
15(1) of the Act. There was a long delay in deposit of rents.
Condonation of delay can take place only when the defaulting
tenants so pleads with justifiable reasons which would show that
he was prevented from compliance by circumstances beyond his
control. The tenant has not offered any explanation for the delay in
deposit of rents. Therefore, we do not find any justification to
interfere with the order of the High Court.
16 In the result, the appeal fails and it is accordingly dismissed.
However, the appellant is granted three months time from today to
vacate and deliver vacant possession of the premises in question to
the respondent subject to filing of an undertaking before this Court
to vacate the premises on or before three months from today. The
undertaking shall be filed within two weeks from today.
(S. ABDUL NAZEER)New Delhi JUDGMENT May 9, 2017