Messrs. Suraj Balram Sawhney and Sons vs Dr. D. Kiri

Gurdev Singh, J.—The question for consideration in this second appeal is whether the Rent Controller is bound to deal with the tenant''s prayer for fixation of standard rent made in reply to a petition for his eviction based on the plea of non-payment of rent u/s 14(1) (a) of the Delhi Rent Control Act 1958 (No. 59 of 1958), (hereinafter referred to as the Act), even after such an application for eviction has been dismissed for default or withdrawn by the landlord.

On the 24th of September, 1963, the petitioner-firm Messrs Suraj Balram Sawhney and Sons applied to the Rent Controller, Delhi, seeking the eviction of their tenant Dr. D. Kiri, respondent, on the plea of nonpayment of rent and substantial damage to the property. The arrears of rent due from the tenant were calculated at Rs. 350/- per mensem. In resisting the prayer for his eviction Dr. D. Kiri, while admitting the tenancy, pleaded inter alio, that the rate of rent agreed to between the parties (viz Rs. 350/- per mensem) was exorbitant and excessive and the landlord was not entitled to demand and recover anything in excess of the standard rent which according to the tenant could not exceed Rs. 137-50 nP. per mensem. The tenant accordingly prayed that the question of standard rent be gone into and the rent be fixed at Rs.. 137.50 nP. per mensem. On that very date (5th November, 1963) the respondent paid Rs, 3500/- to the petitioners on account of arrears of rent due from 13th January, 1963, to 12th November, 1963, whereupon the case was adjourned to 27th of November, 1963, for replication. On that day, however, no appearance was put in on behalf of the petitioners and the Rent Controller dismissed the application for ejectment in default with Rs. 40/- as costs. Soon after this order was made the counsel for the respondent-tenant invited the attention of the Rent Controller to the fact that a prayer for fixation of standard rent had been made by his client and prayed that the same be dealt with despite the fact that the application for eviction of the tenant had been dismissed. The learned Rent Controller refused to entertain this oral request and as directed by him a written application for continuation of the proceedings so as to dispose of tenant''s prayer for fixation of standard rent was made the same day. Being of the opinion that all the pleas taken in the written statement finished with the dismissal of the main petition and none of such pleas could be tried independently the learned Rent Controller rejected the request for reopening the case so as to deal with the question of fixation of standard rent. This order of the Rent Controller dated 18th of February, 1964, was, however, reversed in appeal by the Rent Control Tribunal on the 8th of September, 1931. Relying upon the decision of this Court in Civil Revision No. 217-D of 1958 (Ch. Nathu Singh v. Chander Sahu C.F. No. 247.D of 1958) decided on 13th November, 1962, he held that the question of fixation of standard rent which had been raised in reply to the application for eviction on the basis of non payment of arrears of rent, "was a separate matter which could continue although the landlord''s suit had been dismissed at his request". Accordingly he directed that the case be sent back to the Rent Controller for fixation of standard rent of the premises in dispute. It is against this appellate order dated 8th of September, 1964, that Messrs Suraj Balram Sawhney and Sons have come up in second appeal to this Court.

In support of his contention that the Rent Controller had no Jurisdiction to proceed with the fixation of standard rent of the premises in dispute after the landlord''s application for ejectment made u/s 14(1)(a) of the Act, had been dismissed even though for default of appearance. Shri H.R. Sawhney appearing for the appellants has contended-

(i) that on the dismissal of the main application which was for eviction the proceedings pending before the Rent Controller had come to an end and the Rent Controller having thus become fundus officio had no jurisdiction to reopen the matter so as to deal with one of the pleas raised in reply (i) that of the 5th of November, 1933, when the plea of standard rent was taken by the respondent in his written statement an application for fixation of standard rent was barred by time and thus the Rent Controller had no jurisdiction to entertain that plea and to proceed with the fixation of standard rent; and (iii) that as a result of the dismissal of the main petition under Order 9 rule 8, Civil Procedure Code, whatever defenses the respondent had raised had vanished and since the petitioner-landlords no longer claimed any relief there was no occasion for the Rent Controller to consider or adjudicate upon any of the pleas taken in defense of the action for ejectment.

In support of the last contention reliance is placed upon Kesri Chand v. National Jute Mills Co.2, (which was followed in Mata Bux Lal v. Brij Mohan 3). In the latter case, a learned single Judge of the Allahabad High Court ruled that where on the date fixed for the hearing of a case the plaintiff is absent and the defendant appears, the Court is bound, under Order 9, rule 8, to dismiss the suit for default, and it has no jurisdiction to record the defendant''s statement and to decree the claim in part. This general principle would, however, be of no avail to the petitioner if it is found that the jurisdiction of the Rent Controller to deal with the plea of standard rent raised by the tenant even after the dismissal of the petition for his ejectment is not barred.

Sub-section (2) of section 11 of the Act laws down that no order for the recovery of possession of any premises shall be made on the ground of non payment of arrears of rent "if the tenant makes payment or deposit as required by section 15". In such cases where the eviction of the tenant is sought on non-payment of rent subsection (1) of section 15 enjoins upon the Rent Controller, to make an order allowing the tenant to pay the arrears of rent and future rent at the rate at which it was last paid. Sub-section (3) thereof, which is material for the purpose of this case, runs as under:

If, in any proceeding referred to in sub section (1) or sub-section (2) there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section (1) or sub section (2), as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this" Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant..within one month of the date on which the standard rent is fixed or such further time as, the Controller may allow in this behalf.

From the clear language of this sub-section it cannot be disputed that if in an application for ejectment based on the plea of nonpayment of rent the question of standard rent is raised by the tenant it is the duty of the Controller to go into this plea and to determine the standard rent. The language of this sub-section is wide enough to cover even those cases in which an application for fixation of standard rent if made independently would be barred by time prescribed u/s 12 of the Act. In L. Manohar Lal Nathan Mal v. Madan Lal Murari Lal A.I. R. 1953 P&H 190 in dealing with a similar provision contained in section 8(1) of the Delhi and Ajmer Rent Control Act, 1952, Falshaw J. (as he then was) while agreeing with the earlier decision of this Court in Civil Revision No. 218-D of 1954 dated 18th of October, 1954, held that on the plain meaning of the words in section 8(1) of the Delhi and Ajmer Rent Control Act, 1952, the period of limitation fixed by section 11 of that Act applied only to applications filed by a landlord or tenant simply for the purpose of determining the standard rent and did not apply when the matter was raised in the course of any suit or proceedings. The provision with regard to the period of limitation for making an application for fixation of standard rent is contained in section 12 of the Act. Both under it and the corresponding provision contained in section 11 of the Act of 1952 the Controller has, however, been given the power to entertain an application for fixation of standard rent even after the expiry of the prescribed period if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time. It is, however not necessary to invoke that power in cases like the present as I am in respectful agreement with Falshaw C. J. that the limitation prescribed u/s 12 of the present Act applies only to an application made for fixation of standard rent and not to a plea taken up by the tenant in defence to an action for his eviction under proviso (a) to sub-section (1) of section 14 of the Act.

The provision regarding fixation of standard rent is embodied in section 9(1) of the Act which empowers the Controller to fix the standard rent on the application either of the landlord or the tenant. Section 4 of the Act lays down that notwithstanding any agreement to the contrary no tenant shall be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of the premises unless such amount is a lawful increase of the standard rent in accordance with the provisions of the Act. The next section (section 5) debars the landlord not only from receiving but also from claiming any rent in excess of the standard rent notwithstanding any agreement to the contrary. It is in the light of these provisions that the relevant parts of sections 14 and 15 of the Act have to be construed. Under sub-section (1) of section 15 the arrears of rent for the payment of which the Controller is to grant one month''s time to the tenant have to be calculated at the rate of the rent at which it was last paid. If this rate is in excess of the standard rent, obviously, in view of the provisions of sections 4 and 5 the landlord cannot recover the entire rent deposited by the tenant or anything in excess of the standard rent. From this it follows that if the tenant deposits the arrears of rent but at the same time contends that the rent claimed from him is in excess of the standard rent the Controller has to go into the question of standard rent and he cannot order the pay neat of the entire arrears of rent deposited unless he finds that the arrears so deposited are not in excess of the arrears calculated at the rate at which the standard rent is fixed If this is so, the mere fact that the landlord absents himself after the arrears have been deposited in obedience of the orders of the Controller made under sub-section (1) of section 15 would not render in fructuous the plea of the tenant that the rent claimed was in excess of the standard rent. Before he can be permitted to withdraw the amount deposited on account of arrears of rent the Controller has to see that this amount is not in excess of the standard rent of the premises in dispute. In this view of the matter it is futile to contend that merely because of dismissal of the application for eviction in default of the appearance of the landlord or the withdrawal of the application by him the plea of the tenant for fixation of standard rent, if already taken, can be left without adjudication. This opinion of mine is consistent with the view taken by Bedi J. recently in S.A.O. No. 170-D of 1964 [Messrs Jiwan Industries Private Ltd. v. Messrs Santosh and Co. (1965) 67 P.L.R. 241] decided on 17th of December, 1961, and it derives support from the Division Bench decision in Ch. Nathu Singh v. Chander Sahai (supra) (Civil Revision No. 247-D of 1958) decided on 13th of November, 1962. The learned Chief Justice (Falshaw C. J.), with whom Dulat J. concurred, dealing with a similar question under the Delhi and Ajmer Rent Control Act of 1952 observed as follows:

On the whole it seems to me that the view taken by the learned Senior Subordinate Judge was correct. It was rightly argued on behalf of the petitioner that the landlord could not be compelled to go on with his suit after he had asked for dismissal, but once the question of fixation of standard rent had been raised by the tenant this was separate matter which could continue although the landlord''s suit had been dismissed at his request.

Referring to his earlier decision in L. Manohar Lal Nathan Mal v. Madan Lal Murari Lal (supra) the learned Chief Justice said that the question which was then decided was that the period of limitation fixed by the Act for filing an application by a landlord or tenant for fixation of standard rent did not apply when the matter was raised by the tenant in a suit instituted by the landlord and the tenant could raise the matter at any time when the suit was instituted against him.

That the plea of standard rent can be entertained by way of defence even after the expiry of the period prescribed for an application for fixation of standard rent finds support from the decision of Bhandari, C.J. in Shrirnati Jaswanti Devi v. Harbans Lal Bhatia 58 P. L. R. 440.

Though the decision of the Division Bench in Ch. Nathu Singh''s case (supra) was given under the Delhi and Ajmer Rent Control Act, 1952, yet the principle laid down therein, in my opinion, applies even to cases under the new Act of 1958. The decision of Bedi J, in S. A O. No. 170 D of 1964 is, however, an authority under the Delhi Rent Control Act, 1958. For the reasons stated above, I find myself in respectful agreement with the opinion expressed in that case. I thus find no force in this appeal and dismiss the same with costs.

Records of this case shall be returned forthwith to the Rent Controller before whom the parties shall appear for further proceedings on 19th of April, 1965.