Bhagwant Singh vs Mrs. N.D. Khanna

P.C. Pandit, J.—Dr. (Mrs.) N.D. Khanna respondent, is the owner of the premises in dispute, which are situate in Golf Link, New Delhi. She had given them on a monthly rent of Rs. 700/- to Bhagwant Singh, appellant, in June 1960. In September 1962, she filed an application for his ejectment on three grounds-(1} non-payment of arrears of rent in spite of service of notice of demand, on the tenant (2) her bona fide, personal requirement of the premises in dispute and (3) building of another residence by the tenant for himself-under section 14 of the Delhi Rent Control Act, 1958.

This application was contested by the appellant, who admitted the tenancy and the rate of rent. He, however, controverted the various grounds of ejectment alleged against him.

On 24th October 1962, on the application of the landlord, the Additional Controller passed an order u/s 15 of the Act calling upon the tenant to deposit within one month the arrears of rent with effect from 10th December. 1961 up to date at the rate of Rs. 700/- per mensem, after deducting Rs. 5,600/-, which had already been received by the landlord. The tenant was also directed to pay the future rent at the same rate every month. It is common ground that this, amount was not deposited in accordance with this order and, as a result, by the order dated 31st January 1963, the Additional Controller struck out the tenant''s defence under the provision of section 15(7) of the Act, because the delay in depositing the arrears of rent could not be condoned, as sufficient cause for the same, had not been shown by the tenant.

This order was upheld in appeal as well as on revision to this Court.

Later on, the Additional Controller recorded the evidence of the landlord and passed an order of eviction on the grounds of non-payment of arrears of rent and acquisition of a new residence by the tenant. It may be mentioned that the third ground of eviction was given up by the landlord.

Against this order, the tenant went in appeal before the Rent Control Tribunal. He confirmed the finding of the Additional Controller regarding the non-payment of arrears of rent, but reversed his decision as regards the building of a new residence by the tenant. The Order for eviction on the ground of non payment of arrears of rent was however, maintained and, as a result, the appeal was dismissed. Against this order, the present second appeal has been filed by the tenant.

The first ground urged by the learned counsel for the appellant is that when the defence of his client had been struck out on account of his failure to deposit the arrears of rent under the provisions of section 15(7) of the Act, his client could not have been ejected from the premises in dispute on account of that very default.

There is no merit in this contention. If the tenant has neither paid nor tendered the whole of the arrears of rent recoverable from him within two months of the date on which a notice of demand for those arrears had been served on him by the landlord, then, according to the proviso to section 14(1) of the Act, the Controller may on an application made to him by the landlord make an order for the ejectment of the tenant. In the present case, the notice of demand, Exhibit A-8, had, admittedly, been served on the tenant on 4th July 1962. In spite of this notice, he did not deposit the arrears of rent He was, therefore, liable to eviction under this proviso. Sub-clause (2) of this section, however, lays down that no order for the recovery of possession of any premises shall be made if the tenant makes payment or deposits the arrears of rent as required by section 15 of the Act. It has been found that an order was passed u/s 15( 1) of the Act on 24th October, 1962 but the tenant had not complied with the same. That being so, the Additional Controller had rightly passed the order of ejectment against the appellant.

The second contention raised by the learned counsel was that a notice u/s 106 read with section 111(g) of the Transfer of Property Act was necessary to be given by the respondent in order to determine the tenancy of the appellant before she could file an application for his eviction, and that having not been done, the present order of ejectment passed against his client was illegal. Reliance for this contention was placed on an unreported decision of the Supreme Court in Smt. Uma Kumari v. Jaswant Rai Chopra C.A. No. 246 of 1961, Civil Appeal No. 246 of 1961, decided on 11th February, 1962.

There is no substance in this submission as well. It has been decided by a Division Bench of this Court in Shri Hem Raj v. Shrimati Sham Devi (1955) 57 P.L.R. 441, that the Rent Act was a complete Code in itself. It laid down not only the rights inter se of the landlord and the tenant, but also, provided the procedure for obtaining the relief of ejectment. That being so, the provisions of section 108 of the Transfer of Property Act requiring the serving of a notice upon the tenant had no relevance when considering an application for ejectment made under this Act. Hence no notice of ejectment u/s 106 of the Transfer of Property Act was necessary where the landlord sought ejectment of the tenant under this Act." This authority was distinguished and not dissented from by the Supreme Court in Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad 3. The unreported decision of the Supreme Court has no application to the facts of the present case. Besides, it was decided earlier than Bhaiya Punjalal Bhagwandin''s 3 case.

Lastly, it was argued that the notice of demand, Exhibit A-8, had been waived by the landlord by her acceptance of Rs. 5,600/- as part of the arrears of rent.

This point was not taken by the appellant either in his reply to the petition for eviction or before the Controller or before the Rent Control Tribunal. It was not even mentioned in the grounds of appeal in this Court. The same cannot, therefore, be allowed to be urged at this stage, because it involves questions of fact as well.

The result is that this appeal fails and is dismissed with costs.