Smt. Kiran Sajjan And Ors. vs Smt. Swarnkanta Mahajan on 25 August 2006

Delhi High Court
Smt. Kiran Sajjan And Ors. vs Smt. Swarnkanta Mahajan on 25 August, 2006
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT

Sanjay Kishan Kaul, J.

1. The respondent/landlord filed a petition under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act) against the petitioner/tenant in respect of premises Shop No. 77, Mezzanine Floor, Desh Bandhu Gupta Market, Karol Bagh, New Delhi. It was stated in the petition that the rate of rent was Rs. 250/- per month but after notice of the statutory increase as per amended law, the rate of rent on 10 per cent increase became Rs. 275/- per month w.e.f. February 1994. The premises were alleged to have been let out for residential purposes but the petitioner was carrying on business in the premises. The petitioner was alleged to have been a habitual defaulter in payment of rent and earlier a petition was filed under the same provisions. In terms of the order dated 7.5.1991 benefit had been granted under Section 14(2) of the said Act in those proceedings. However, in spite of availing of the benefit the petitioner was in arrears of rent w.e.f. 1.3.1993 and despite notice of demand dated 3.1.1994 calling upon the petitioner to tender the rent due @ Rs. 250/- per month and to pay the further enhanced rent at 10 per cent statutorily due within two months from the date of receipt of the notice, the amount was not so paid.

2. It is further stated that the petitioner sent a reply dated 7.2.1994 to the notice and remitted two cheques along with the same which were not encashed by the respondent. The rent was stated to be deposited with the Court of the Additional Rent Controller but according to the respondent the same was not a valid deposit.

3. The petition was contested by the petitioner inter alia on the ground that when the order dated 7.5.1991 was passed an appeal was preferred against the same, which was dismissed by the Additional Rent Control Tribunal. However, the second appeal filed before this Court was stated to be still pending. It was further stated that the deposit made in Court was a valid deposit in view of the refusal of the respondent. The petitioner also submitted that the rate of rent was Rs. 150/- per month but in order to avoid any controversy the rent as demanded has been tendered/deposited.

4. The parties led their evidence and thereafter in terms of the judgment dated 19.12.1997 of the Additional Rent Controller the eviction petition was allowed. The petitioner aggrieved by the same preferred an appeal before the Additional Rent Control Tribunal and in terms of the order dated 15.10.2005 the same was dismissed. The petitioner has thus impugned both the orders in the present proceedings under Article 227 of the Constitution of India.

5. It cannot lost sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision was taken to amend the said provision in December 1988 prior whereto the appeal was both on a question of law and on a question of fact. Thus the scope of scrutiny itself by the Tribunal was said to be restrictive and the Additional Rent Controller was construed to be a final Court for appreciation of evidence. The present proceedings under Article 227 of the Constitution of India can hardly be converted into a court of second appeal. It is only in case of a patent error or erroneous exercise of jurisdiction would an intereference be called for. The legal position in this behalf has been made clear in the judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) SC 465. In fact in Mohd. Yunus v. Mohd. Mustqim and Ors. , it has been observed that mere wrong decision without anything more is not enough to attract the jurisdiction of the High Courts under Article 227 of the Constitution of India, which jurisdiction is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record much less an error of law. These aspects have been emphasised to set forth the contours within which the impugned orders have to be scrutinised.

6. A perusal of the order of the Additional Rent Controller shows that the testimony of both the parties have been considered. The relationship of landlord and tenant was not in dispute. The question of arrears of rent was considered in detail by the Trial Court in view of the plea of the petitioner that the rent had been deposited in Court. On the other hand the plea of the respondent was that there could not be any deposit of rent in Court without any order passed under the said Act. In order to appreciate the respective pleas the relevant provisions of the said Act have to be considered.

7. Chapter III of the said Act provides for control of eviction of tenants. In terms of Section 14 of the said Act, no order or decree for the recovery of possession of any premises shall be made in respect of a tenanted premises governed by the said Act except on the ground set out there under. The relevant provision in this behalf is as under:

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 any court or Controller in favor 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 a 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 Transfer 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.
8. It is not in dispute that there was an earlier order passed after trial under Section 14(1)(a) of the said Act on 7.5.1991 but the benefit of Section 14(2) of the said Act was not made available to the petitioner. The appeal against the same was dismissed and though the second appeal before this Court was stated to be pending it is not in dispute that there was no stay of the operation of the impugned orders.

9. Insofar as deposit of rent is concerned, Chapter IV deals with the same. Section 27 provides for the mode, manner and circumstances for such deposit. The relevant provision is as under:

27. Deposit of rent by the tenant. – (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:
[Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.]
10. The Trial Court found that the petitioner had not deposited the rent in accordance with the provisions of Section 27 of the said Act but continued to make the deposit in the Court of the Additional Rent Controller which dealt with the matter of the case of the first default. It is in these circumstances that the Additional Rent Controller held that the deposit made could not be said to be a legal tender or deposit and thus the petitioner was in arrears of rent. The effect of the observations of the Supreme Court in Kuldeep Singh Vs. Ganpat Lal and Anr. 1996 (1) RCR 348 = 1 (1996) CLT 148 (SC) were taken note of even though in the context of a different rent enactment. The question, however, is not as to the particular enactment in question but the principle laid down that a tenant can deposit the rent in court only on the conditions laid down in the said provision being satisfied. If such conditions are not satisfied the tenant must be held to be in default in payment of rent.

11. The legal requirements of service of notice was proved on record. In fact, the notice was even replied to and thus there was no dispute in that behalf.

12. The last aspect examined by the Additional Rent Controller is about the payment of legally recoverable rent. It was found that even rent sent by Money Order was not proper tender of rent since the amounts sent was @ Rs. 150 per month. The landlord was, thus, within its right to refuse rent tendered at a month rate below the rent payable. In any case this aspect has been discussed in para 15 of the judgment of the Additional Rent Controller and this Court does not have to re-appreciate the evidence.

13. The Additional Rent Controller took note of the fact that it was the duty of the petitioner to file a petition under Section 27 of the said Act for deposit of rent along with postal receipts and coupons of refusal of rent. After the service of the notice, there was no tender/payment/deposit of rent in Court as mandated under Section 27 of the said Act. Since the petitioner had already availed of the benefit under Section 14(2) of the said Act an eviction order was passed.

14. In the appeal before the Tribunal it was sought to be contended on behalf of the petitioner that the appeal proceedings being in continuition of the original eviction case the tenant was within its right to deposit the rent in that Court. The plea was that the intent of the tenant being genuine the petitioner should not suffer an eviction order. However this plea was sought to be refuted to on behalf of the respondent in view of the judgment of the Supreme Court in Atma Ram v. Shakuntala Rani 123 (2005) DLT 127 (SC).

15. The Tribunal took note of the observations in the said judgments where the scheme in respect of deposit of rent has been discussed and quoted the same in extenso. It is appropriate to, once again, refer to the relevant paragraphs of the judgment of the Supreme Court since they succinctly set out the scheme of deposit of rent.

19. It will thus appear that this Court has consistently taken the view that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfillled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such provision.

20. Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid to him, signed by the landlord or his authorised agent. It is also open to the tenant to remit the rent to his landlord by postal money order. The relevant part of Section 27 of the Act reads as under:

27. …
21. The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller, giving the necessary particulars as required by Sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.

16. One further aspect, which has been examined is the scope of Section 15 of the said Act in the context of Section 14(2) of the said Act. Section 15(1) and (7) of the said Act read as under:

15. 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 fifteenth of each succeeding month, a sum equivalent to the rent at that rate.
(7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application.

17. A reading of the aforesaid provisions show that it is with a limited object that any deposit can be made. This is so since Section 14(2) of the said Act is a one stop arrangement against an eviction order to follow under Section 14(1)(a) of the said Act. Despite a tenant being found in default of payment of rent one more opportunity can be given to a tenant to remedy himself. It is during the pendency of the proceedings under Section 14(1)(a) of the said Act that Section 15 comes in to play and an order is to be made by the Additional Rent Controller in that behalf. The failure to comply with the provisions of Section 15(1) of the said Act gives rise to the consequences under Section 15(7) of the said Act whereby the defense against an eviction is to be struck off. Thus, these provisions of Section 15 operate during the pendency of the proceedings before the Trial Court and there cannot be a deposit under the provisions of Section 15 after the final order has been passed. The analogy of appeals being continuation of the original proceedings was thus held not applicable to the orders passed under Section 15 of the said Act. The Appellate Court, in fact, has gone into a lengthy discussion of the evidence produced by the parties though strictly that was not even required as it has to examine the matter on a question of law. Be that as it may, it has been found by the Tribunal that the plea of proper tender of rent could not be accepted and thus the petitioner was required to go through the procedure envisaged under Section 27 of the said Act. However, the Tribunal sought to give the benefit to the petitioner as there was a technical default in the tender of the rent. The Tribunal thereafter proceeded to, what it called balance of interest of landlord and tenant and since there was already a first default direct compensation to the landlord of Rs. 1.00 lakh failing which the technical default to be considered to be willful.

18. It is not in dispute that the aforesaid amount has not been paid.

19. The pleas advanced by learned Counsel for the parties before this Court were within the same ambit as before the Tribunal.

20. In my considered view, the approach of the Additional Rent Controller cannot be faulted. No doubt the said Act is a beneficial legislation for the tenants but the provisions of the said Act must be complied with and the acts and conducts of the tenant and the landlord must be as envisaged under the said Act. The Act is a complete Code in this behalf.

21. The petitioner was found to be a defaulter in payment of rent. The proceedings initiated against the petitioner by the respondent/landlord resulted in eviction order under Section 14(1)(a) of the said Act on 7.5.1991. The appeal against the same was dismissed but the second appeal was stated to be pending. There was no interim order in the second appeal. The result was that the orders of the Additional Rent Controller were in force. In view of Section 14(2) of the said Act a benefit was granted to the petitioner in that behalf. This being the past history, the obligation on the tenant was more onerous to ensure that there was no future default. The parties were in litigation and under legal advise. In such a situation there cannot be any acceptable carelessness or non-compliance of the statutory provisions by the tenant.

22. The petitioner was fully conscious of the consequences of there being any second default which would result in an eviction order. Despite this if a situation has come to pass as set out by the order of the Trial Court the petitioner alone has to be blamed for the same. The Trial Court found that even some of the Money Orders sent were not of the requisite amount of the rent and thus the landlord was within his right to refuse the same. If the petitioner had tendered any rent which has been refused by the respondent then the petitioner was duty bound to take steps in terms of the provisions of Section 27 of of the said Act. The petitioner failed to do so. It is not the case of the petitioner that after the service of the notice by the respondent/landlord on the petitioner there has been any compliance of the said Act. The age-old principle that if the statute prescribes a particular manner of doing things, then it is in that manner alone it should be done, was set out as far back as in Nazir Ahmad v. King-Emperor (2).

23. It is trite to say that if the legislation provides for a particular manner of performance of the obligations then the same must be peformed in that manner alone. It is only in accordance with the provisions of Section 27 of the said Act could the deposit has been made. The petitioner cannot be permitted to take any advantage of the deposit made under Section 15(1) of the said Act. Section 15(1) of the said Act is applicable only when the matter is pending before the Additional Rent Controller. It is in the nature of interim order. The consequences of non-compliance result in the defense being struck off under Section 15(7) of the said Act. Once the proceedings are over before the Trial Court there cannot be any invocation of the provisions of Section 15 of the said Act. The analogy of appeal being continuation of suit proceedings cannot thus be applicable. It is also not the case of the petitioner that any directions were sought in this behalf from the Appellate Court or the High Court to make deposit of rent. There was no stay, as observed earlier, by the High Court.

24. The judgment of the Supreme Court in Kuldeep Singh case (supra) is apposite to the facts of the present case even though they relate to a different statutory enactment. The principle is that the deposit to be made by the tenant must be in conformity with the provisions of the Rent Act. If the conditions are not satisfied the deposit cannot be said to be made in accordance with law.

25. The observations in Atma Ram case (supra) about the scope and ambit of Section 27 of the said Act leaves no doubt that the petitioner in this case is in default. The tenant is required to strictly comply with the requirements of the said Act if he has to take advantage of the beneficial provisions of the said Act. It is not open to the tenant to resort to any other procedure.

26. I am thus of the considered view that the Additional Rent Controller rightly passed the order of eviction under Section 14(1)(a) of the said Act. The Tribunal, however, thereafter proceeded to re-appreciate the evidence and despite the fact that it came to the conclusion that there was a default on the part of the tenant, it categorised the same as a technical default. I fail to appreciate as to what is the meaning thereof since the provisions of the enactment have to be strictly followed. Either there is a default or there is no default. In trying to balance what the Tribunal called the equities the tenant was directed to pay Rs. 1.00 lakh as compensation to the landlord in lieu of the technical default. It is extremely doubtful that such a course was open to the Tribunal but in the present case the tenant has not even availed of that course of action and has contested the matter further. Thus, in any case there is no benefit available to the tenant.

27. In view of the aforesaid facts and circumstances, I am of the considered view that the eviction order passed against the petitioner is liable to be upheld. The petition is dismissed leaving the parties to bear their own costs.