O.P. Kathpalia vs S. Lakhmir Singh and others

Tek Chand, J.—This is a petition of revision u/s 35 of the Delhi and Ajmer Rent Control Act (XXXVIII of 1952) preferred on behalf of the tenant. The brief facts of this case are that the premises in question situate at No. 1, Hailey Road, New Delhi, were taken on rent from one E.B. Brook by the Petitioner, O.P. Kathpalia. Brook was tenant of the Respondent landlord. Brook had sublet a portion of the property in his occupation to the present Petitioner on Ist of September 1954. Brook vacated the premises in his occupation and called upon the Petitioner to vacate his portion. This was on 30th of April 1955. The Petitioner, however, did not do so. The Petitioner on 22nd of June 1955 came to a direct arrangement with the landlord agreeing to become his tenant from Ist of May 1955 at a monthly rent of Rs. 272/8/-. By his letter, Exhibit P.2 dated the 26th of June 1955 addressed to the landlord, the Petitioner said that he had cleared his accounts with Mr. Brook uptil the 30th of April 1955 and had enclosed a cheque for Rs. 539/- as the rent for the months of May and June 1955 and promised to pay the rent in future every month regularly. On 10th of October 1955 the Petitioner filed an application u/s 11 of the Delhi and Ajmer Rent Control Act (XXXVIII of 1952) for fixation of standard rent. Section 11 is in the following words:

(a) in the case of any premises which were let, or in which the cause of action for lawful increase of rent arose, before the commencement of this Act, within six months from such commencement;

(b) in the case of any premises let after the commencement of this Act, within six months from the date on which it is so let; and

(c) in the case of any premises in which the cause of action for lawful increase of rent arises after the commencement of this Act, within six months from that date:

Provided that the Court may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from filing the application in time.

This application was resisted by the landlord who contended that the period of limitation i. e. six months as prescribed by Section 11 had since expired and the application had become time barred. I am not refering to the other averments of the parties as they have no bearing for purposes of the decision of the dispute now before me. The following issues were framed:

Whether the application is time barred.

What is the standard rent of the premises u/s 8 of the Delhi and Ajmer Rent Control Act, 1952.

We are concerned only with the first issue. It was argued by Mr. Radhe Lal Aggarwal. learned Counsel for the Petitioner, that the period of limitation commenced on 1st of May, 1956 when Petitioner became for the first time the tenant of Shri Lakhmir Singh landlord and on the expiration of the tenancy which had previously existed between Brook and the Petitioner The application had been made admittedly within 6 months from 1st of May 1956. The contention of the Respondent, landlord, however, is that the limitation started running after the Petitioner''s entry on the premises in 1954, when he had become tenant of Brook. According to the Respondent-landlord the terminus-a-quo dates when the tenant for the first time enters on the particular premises.

The question before me relates to the construction of the words of the section and to legislative intent. To my mind the more reasonable construction is the one which has been contended on behalf of the landlord. What is matter of moment is the quantum of standard rent of the premises and not the party, to whom it is payable or from whom it is chargeable. Whenever a tenant enters on the premises he is given by the law a right to get his rent, which he may be actually paying reduced, to the standard rent, provided he makes such an application within the period allowed. Every time there is change of ownership, a right to get the standard rent fixed does not occur and recur. If a tenant feels satisfied with the contractual rent and allows the period of limitation to expire, he is deemed to be satisfied with what he is paying and the amount cannot be reduced at his instance. There seems to be no reason why the law should have permitted such a tenant another period of limitation on the change of the landlord. The relevant words are "within 6 months from the date on which it is so let." In order to accept the contention of the learned Counsel for the tenant the words ought to read "within 6 months from the date on which it is so let by the Respondent-landlord." There is no reference whatsoever to the landlord but only to the premises. The statute does not contemplate periodic resuscitation of the period of limitation with every change in the landlord. The learned Counsel for the landlord drew my attention to Mt. Bhagwati Vs. Sant Lal, There the words contained in Article 181 "When the right to apply accrues" were being construed and it was held that they meant "when the right to apply first accrues " Hari Mohan Dalal and Another Vs. Parameshwar Shau and Others, is to the same effect. It has also to be remembered that the law of limitation is qua the remedy sought and not qua the party sued. A tenant can thus claim the right to apply for fixation of standard rent within six months of his entry on the premises as tenant regardless of change in the landlords.

In a case like the present what is of utmost significance is the fixation of standard rent, at the instance of the tenant, of the premises. It is a matter of no significance as to who the landlord is. If a tenant feels that he is being subjected to an excessive rent under the agreement, the law gives him an opportunity to get the rent reduced by making an application for fixation of standard rent within six mouths from the date on which the premises are let. If he fails (sic) to avail himself of this opportunity allowed to him u/s 11 and permits the period of limitation to expire, a right for making a similar application is not revived merely because the ownership changes hands. It is open to the Defendant in such cases to oppose a time-barred application by telling the tenant that he has been occupying the premises for over 6 months and as he his not applied for fixation of standard rent, he is no longer entitled to it ; and it does not matter that the premises had been under different landlords to whom the tenant had been attorning in turn. The above construction to my mind is in accord with the legislative intent. It is the spirit of law of limitation that it is intended for the repose of a party who has been vigilant and the remedy provided is available if invoked during the period prescribed and unless there is something specific in the section the remedy once lost is incapable of resuscitation. As I read Section 11, I cannot construe it in any other manner. I therefore agree with the conclusion of the learned District Judge that remedy available u/s 11 has been lost by efflux of time as the premises in question were let to the Petitioner by Mr. Brook, his former landlord in 1954, and there was nothing to prevent the tenant from claiming fixation of standard rent within the first 6 months of his tenancy under Brook. The result therefore is that the Petitioner cannot succeed on the first issue and the petition of the Petitioner deserves to fail as the application u/s 11 of the Delhi and Ajmer Rent Control Act (XXXVIII of 1952) was barred. On 12th of December 1956 Plaintiff did not appear and his suit was dismissed in default. On the same day, however, an application for restoration of the suit was made on behalf of the Plaintiff. The suit was restored on 30th of December 1957. On 14th of January 1958 a sum of Rs. 4,800/- as rent up to January 1958 was deposited by the tenant. On 29th of January 1958 an application was made by the landlord for striking out the defence of the tenant in view of the order dated the 6th of October 1956. On 8th of March 1958 rent was deposited by the tenant. On 17th March 1958 the trial Court ordered that the defence be struck off for non-compliance of the order dated 6th of October 1956. From this order the tenant has filed C.R. No. 212-D of 1958.

Against the order dated 6th of October 1956 the tenant filed an appeal in the Court of the District Judge which was dismissed on 18th of February 1958 as time-barred. This has given rise to the present petition of revision in C.R. 221-D of 1958 which was filed on 10th of April 1958. In this case both parties were admittedly present on the 1st of October 1956, and the landlord''s application u/s 13(2) for withdrawal of the rent and costs deposited by the tenant was in fact argued On 6th of October 1956 the tenant had filed an application bearing the date 5th of October 1956 before the Rent Controller Shri Jagdish Chand for fixation of ad interim rent u/s 8. In para 3 of that application be had stated that the landlord had moved the Court of Shri Harbans Singh, in which ejectment suit was pending, calling upon the applicant-Defendant to deposit in the Court rent month by month. It was argued on the basis of the above that the Defendant tenant knew on 5th of October 1956 that application u/s 13(5) had been given in the Court of Shri Harbans Singh. On 12th of November 1956 the reply was filed by the landlord. By this date both matters had come before Shri Harbans Singh. In this reply in para 2 it was stated that in the ejectment suit an order had in fact been passed on 6th of October 1956 directing to deposit the rent month by month. On the strength of the above it is maintained on behalf of the Plaintiff that the tenant was aware of the disputed order dated 6th of October 1956 and in any case he should have known by 12th November 1956 when the reply was 61ed by the Plaintiff.

It was also stated that on 12th of December 1956 the suit of the landlord for ejectment was dismissed under Order 9 Rule 8 on account of Plaintiff''s default in appearance. The application for restoration of the suit was made the very same date and this application was contested but later on the suit was restored on payment of costs In this case the tenant had given his consent to the restoration of the suit. On this basis also it is stated that he could not be oblivious of the order which was passed on 6th of October 1956.

It was also urged on behalf of the Respondent that the tenant had applied for a certified copy of the order of the trial Court dated 6th of October 1956, on 14th of December 1956, relating to the withdrawal of the amount. On 28th December 1956 the tenant made a separate application for a certified copy of the disputed order dated 6th of October 1956. On 4th of January 1967 the certified copy was ready. It is stated that the tenant was aware of the disputed order on 6th of October 1956, on 12th of November 1956 and on 28th of December 1956 when application for certified copy was made. The tenant was not called upon to file an appeal so long as the suits which had been dismissed in default had not been restored but he had everything ready which was requisite for filing the appeal before the suit was restored. On 3rd of January 1958 the tenant filed one combined appeal before the District Judge u/s 34 against two separate orders of the trial Court dated 6th of October 1956. On 18th of February 1958, two objections were taken on behalf of the landlord before the District Judge. The first objection was that the appeal against two orders was not competent. To this objection the tenant replied that the appeal be treated as one u/s 13(5) and the second appeal which had been preferred u/s 13(2) be deemed as given up. An objection was also raised that the appeal was barred by limitation, This objection of the landlord was accepted by the District Judge. The District Judge was of the view that the Defendant-tenant was aware of the disputed order either on 6th of October 1956 or at least on 12th of November 1956 and in any case on 28th of December 1956. Secondly the tenant had given no explanation whatever of delay in filing the appeal after 30th of December 1957 which was the date on which the suit had been restored till 22nd of January 1958 which was the actual date on which the appeal was filed. This delay the District Judge declined to condone and the application of the tenant u/s 5 (sic) of the Indian Limitation Act was dismissed. The result therefore is that the disputed order of 6th of October 1956 became final between the parties as no appeal within limitation was filed and the appeal has consequently been dismissed.

The civil revision No. 221-D of 1958 was filed on 10th of April 1956 by the tenant from the order of the District Judge dated 28th of February 1958 rejecting the application u/s 5 of the Indian Limitation Act. It this revision falls the other revision, C.R. 212D of 1958, cannot stand as in that petition, what was questioned, was the order of the trial Court dated 17th of March 1958 striking out the defence of the tenant on the ground that he had not applied for the copy of the order of the 6th of October 1956. The real question in regard to C.R. 221-D of 1958 is whether the District Judge was justified in rejecting the tenant''s application u/s 5 of the Limitation Act. This question, does not fall within the ambit of Section 115 of the Code of Civil Procedure. The District Judge found fault with the conduct of the Defendant in so far as he did not make any inquiry from the Court for a period exceeding two months after the arguments had been heard as to what had happened in the application and what orders were passed by the Court. The District Judge thinks that this conduct of his is unnatural. He has come to the conclusion that the Defendant was fully aware of the pendency of the application of the Plaintiff to the effect that Defendant be called upon to deposit in Court rent month by month. The conclusion of the District Judge even if it is held to be erroneous, being one of fact cannot be assailed in proceedings taken in this Court u/s 115 of the Code of Civil Procedure. The Plaintiff has not been able to explain delay of several days satisfactorily. The learned Counsel for the Respondent has said that it is a case which is governed by the provisions of Section 115 of the Code of Civil Procedure. Even on the assumption that Section 35 of the Delhi and Ajmer Rent Control Act governs the matter the decision, being on a matter which rests on facts, cannot be assailed u/s 35 of the Act as the judgment is in accordance with law, even if it may be said that the conclusion of fact is wrong The High Court in Hari Shankar v. Rao Girdhari Lal (1962) 64 P.L R. 1097, held that Section 35 of the Delhi and Ajmer Rent Control Act (XXXVIII of 1952) does not create a right to have the case re-heard, and the High Court in exercise of its revisional powers is not entitled to re-assess the value of the evidence and to substitute its own conclusion of fact in place of those reached by the Courts below. I cannot upset the decision of the District Judge except by re-assessing the value of evidence and drawing my own inferences on matters requiring reconsideration of the facts. Moreover, whether in a case delay should be condoned u/s 5 of the Indian Limitation Act is a matter which rests with the discretion of the lower Courts. The exercise of such discretion, unless it is arbitrary or capricious, is not open to reversal even in an appeal, much less in a revision.

With regard to C.R. No. 212-D of 1958 the order sought to be set aside was the order of the trial Court u/s 13(5) dated 17th of March 1958 striking out the defence of the tenant, and this order was appealable u/s 34 of the Act, but no appeal from that order was filed and therefore, remedy under the succeeding section by way of revision is not available. It was also contended that the tenant was required by the trial Court''s order dated 6th of October 1956 to deposit month by month rent by 15th day of every following month. Thus the first deposit was payable by 15th of November and this was not done. Once a default has been made, the orders striking out the defence on that ground become unassailable ; and at this stage no Court has jurisdiction to condone the default in making- the monthly deposits as required by Section 13(5). My attention has also been drawn to a recent un reported judgment of a Division Bench of this Court in C. R. 583-D of 1958 decided on 23rd of October 1962 (Joint Hindu Family Kannhaya Lal v. Om Parkash C.R. 583-D of 1958). Dulat J. who wrote the judgment after referring to the earlier cases and in particular to Shri Radhey Sham v. Shri Bala Parshad C.R. 300-D of 1959. decided by Chopra J., expressed his agreement with the view that the language of Sub-section (5) of Section 13 clearly meant that the time mentioned in that Sub-section was not capable of being extended by the Court in its judicial discretion. He observed that without doing violence to the language of Sub-section (5) of Section 13 it was impossible to hold that the Court had any discretion to extend the time for payment of future rent or to condone the default, and that if default accurred the necessary consequence was that the tenant''s defence against ejectment had to be struck out. Dulat J. concluded in the following words;-

I would there, hold that once once an order for deposit of rent month by month has been made under Sub-section (5) of Section 13 of the Act of 1952, the tenant, bound to pay the rent by the 15th of the next following month, and, in case he fails to do so, his defence must necessarily be struck out and the Court below was in error in holding that the Court could in certain circumstances extend the time and condone the default.

It may be mentioned that the default in this case in not depositing the rent was prior in time to the date of the dismissal in default of the suit of the landlord, and therefore, the argument, that interlocutory orders stood automatically restored on the restoration of the suit, has no place. It was held in Bankim Chandra and Others Vs. Chandi Prasad, , that orders like one for stay are nothing but ancillary orders and they are all meant to aid and supplement the ultimate decision arrived at in the main suit or appeal. Therefore, once a suit or appeal dismissed for default is restored by the order of the Court, all ancillary orders passed in the suit or appeal before its dismissal also revive and operate since that date with all their legal implications unless there is any other factor on the record or in the order passed to show to the contrary. In this case the principle held in the above case cannot be invoked as the default in not depositing rent had occurred prior to the dismissal of the suit on account of landlord''s absence.

For reasons stated above despite grave suspicion attaching to the order of Shri Harbans Singh, Subordinate Judge 1st Class dated the Ist of October 1956 the revision cannot succeed. Both the revisions (C.R. 212-D of 1958 and C.R. 221-D of 1958) fail and are dismissed. I would, however, leave the parties to bear their own costs of the revisions.