Ms. Anupama Govil vs Smt. Rama Devi

Sanjay Kishan Kaul, J.—Admit.

At the request of the learned Counsel for the parties, the petition is taken up for final disposal.

The respondent is a tenant under the petitioner in respect of mezzanine floor and a small shop on the ground floor near the staircase in the

premises No.1- E/4, Jhandewalan, New Delhi. The agreed monthly rent was Rs.150/-. The tenancy started from 1.10.1967.

The petitioner claimed that the respondent fell into arrears of rent from 1.1.1985. A notice dated 23.11.1987 was served on the respondent for

arrears of rent and on failure of the respondent to pay the same a petition was filed u/s 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter

referred to as the said Act) for non-payment of rent. The relevant provisions are as under:

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.

...

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.

The said petition was decided in terms of the order dated 2.4.1993. During the pendency of the petition the Additional Rent Controller had

passed an order u/s 15(1) of the said Act to deposit the rent during the pendency of the proceedings. The Additional Rent Controller found that

the respondent had not complied with the said order and thus gave the benefit of Section 14(2) of the said Act after the respondent failed to clear

the arrears of rent in pursuance to notice dated 23.11.1987. The petitioner was, however, aggrieved by the said order to the extent that benefit

had been extended to the respondent u/s 14(2) of the said Act as according to the petitioner the respondent had failed to make the deposits in

pursuance to the orders passed u/s 15(1) of the said Act and the respondent had failed to produce the material/proof for such deposit. This appeal

was allowed by the Rent Control Tribunal in terms of the order dated 26.5.1999 finding that the Additional Rent Controller had not verified the

factum of deposit of rent by the respondent which was a pre-requisite to the respondent enjoying the benefit u/s 14(2) of the said Act. The

operative portion of the said order dated 26.5.1999 reads as under.

In the result I accept the appeal, set aside the impugned judgment as regards the grant of benefit u/s 14(2) of the Delhi Rent Control Act, with

the direction that the learned Trial Court shall ascertain the fact whether the order has been complied with or not and the appellant shall file a

detailed statement of the defaults committed by the respondent and non-deposit of rent by the respondent w.e.f. 1st July, 1987. Both the parties

are directed to appear before the learned Trial Court on 9.7.99 for the said purpose and thereafter, the learned Trial Court shall pass a fresh order

in accordance with law.

At this stage, it may be noticed that during the pendency of this appeal the respondent was alleged to have fallen again into arrears of rent and a

notice was served by the petitioner dated 24.2.1998. This was replied to by the respondent on 14.9.1998, which really did not dispute the arrears

of rent but claimed that despite all endeavors the petitioner had not received the rent. The petitioner filed a petition for eviction on the ground that

the respondent had already availed of the benefit u/s 14(2) of the said Act.

Once the order was passed on 26.5.1999 and the matter was again listed before the Additional Rent Controller for necessary enquiry about

deposit of rent by the respondent the counsel for the petitioner made a statement on 22.11.1999 stating that the petitioner was not interested in

filing any statement of default in respect of the order passed u/s 15(1) of the said Act and the respondent be held entitled to the benefit u/s 14(2) of

the said Act ?as on the original date of Judgment?. On the said statement of the counsel for the petitioner, the counsel for the respondent made a

statement that he had no objection if the relief as stated by the counsel for the petitioner was granted and an order passed giving benefit u/s 14(2)

of the said Act. After recording the aforesaid statement the Additional Rent Controller disposed of the matter stating that the respondent had

availed of the benefit of default u/s 14(2) of the said Act in the present petition.

In the subsequent proceedings initiated by the petitioner for default in payment of rent after the respondent had availed of the benefit u/s 14(2) of

the said Act, the Additional Rent Controller found that the respondent had committed a second default and thus passed an order of eviction on

1.3.2004 Respondent aggrieved by the same filed an appeal before the Rent Control Tribunal, which has been accepted by the impugned order

dated 2.2.2005. The sub-stratum of the reasoning of the Tribunal is that once the order was passed by the Tribunal on 26.5.1999 remanding the

matter back to the Additional Rent Controller a fresh order would be deemed to have been passed on 22.11.1999 by the Additional Rent

Controller and the respondent would be entitled to a benefit u/s 14(2) of the said Act as on that date. It was, thus, observed that the benefit of the

earlier order dated 2.4.1993 would not be available to the petitioner and only in case the respondent defaulted in payment of any arrears of rent

after 22.11.1999 could the order of eviction be passed.

It has to be kept in mind that the provisions of the said Act provide for an appeal to the Tribunal only on a question of law in terms of Section

38 of the said Act and the jurisdiction of this Court under Article 227 of the Constitution of India is limited to the correction of patent or

jurisdictional error.

On consideration of the submissions advanced by learned Counsel for the parties, I am of the view that the impugned order of the Tribunal

dated 2.2.2005 cannot be sustained. The respondent was in default of payment of rent. The respondent got the benefit of Section 14(2) of the said

Act being a case of first default in terms of the order dated 2.4.1993. The only proceedings initiated by the petitioner was on account of the fact

that as per the petitioner the respondent had not complied with the directions passed u/s 15(1) of the said Act for deposit of rent during the

pendency of the proceedings and thus should not be held entitled to the benefit of Section 14(2) of the said Act. The Tribunal found that the

Additional Rent Controller had not carried out a proper verification and it is in view thereof that as per the order dated 26.5.1999 the Judgment of

the Additional Rent Controller was set aside ?as regards the grant of benefit u/s 14(2) of the Delhi Rent Control Act,? with a direction to the

Additional Rent Controller to ascertain whether the order has been complied with or not. The respondent in the mean time committed a second

default. Instead of agitating the question as initially pressed by the petitioner, the petitioner in his wisdom thought it fit that in view of the second

default of the respondent the matter need not be agitated any further and thus made the statement on 22.11.1999. The statement is also clear that

the petition may be disposed of giving the benefit u/s 14(2) of the said Act as on the original date of Judgment and the counsel for the respondent

made the statement that he had no objection if the relief as prayed for by the counsel is granted as long as the benefit is made available u/s 14(2) of

the said Act. It is on those submissions that the Court passed the order on the same date. Thus it was understood by the parties and the counsel

that the respondent was entitled to the benefit as originally granted by the order dated 2.4.1993. There could be thus no question of passing

another order granting a further benefit u/s 14(2) of the said Act on 22.11.1999.

The respondent being in default after the aforesaid benefit having been granted u/s 2.4.1993 the Additional Rent Controller thought that an

eviction order was liable to be passed against the respondent. It was a case of second default as held by the Additional Rent Controller vide order

dated 1.3.2004

The Tribunal fell into a jurisdictional error and exercised powers which ought not to have been so exercised. There is a patent error apparent

on the face of the record of the Tribunal in coming to the conclusion that the impugned order of the Additional Rent Controller was required to be

interfered with on the ground that the order passed on 22.11.1999 should be treated as a fresh order of eviction and once again a benefit should

be granted u/s 14(2) of the said Act with the result that the respondent had to commit a second default after that date. In fact, there was no

question of law really raised which called upon the Tribunal to interfere with the order of the Additional Rent Controller.

I am thus of the considered view that the impugned order of the Tribunal dated 2.2.2005 is liable to be set aside and the order of the

Additional Rent Controller dated 1.3.2004 restored. The respondent is granted 30 days time to vacate the tenanted premises.

Petition stands allowed leaving the parties to bear their own costs.