Ved Prakash vs Achint Kumar

M.L. Mehta, J.—This petition under Article 227 of the Constitution seeks assailing of order dated 30.08.2011 of learned District & Sessions Judge-cum-Rent Control Tribunal whereby he dismissed the appeal filed against the order dated 7.2.2011 of Addl. Rent Controller (ARC). The petitioner herein is a tenant of the respondent in respect of the suit premises. He was facing the eviction proceedings before the court of ARC u/s 14(1) (a) read with Section 14(2) of the Delhi Rent Control Act (for short the ''Act'') in the case of second default of arrears of rent w.e.f. 10.8.2007 to 9.11.2007. His plea before the ARC was that he had sent money order towards the arrears of rent to the landlord, but the same was refused by him and further, that on receipt of demand notice dated 13.11.2007, he sent the pay order of Rs. 4315/- dated 19.11.2007 and that being so, he had complied the said demand notice and thus, the plaint was liable to be rejected under Order 7 Rule 11 CPC. The application filed in this regard was dismissed by the ARC vide his order dated 7.2.2011 and which in appeal, was maintained by the Rent Control Tribunal vide order dated 30.8.2011.

The impugned order has been assailed on various grounds. The first and foremost being that he was not in arrears of rent for the period w.e.f. 10.8.2007 to 9.11.2007 and had already paid the same. It was also his plea that to be on safer side, he sent the rent for this period, being Rs. 4315/- vide pay order dated 19.11.2007 in response to the said demand notice dated 13.11.2007. It was also his plea that since the landlord has got encashed the pay order, his liability of arrears stood discharged.

On the other hand, it has been disputed by the respondent/landlord that any rent was paid or tendered for the aforesaid period in cash or by money order by the petitioner. It was submitted that the pay order was sent only after the demand notice and the fact of the petitioner having sent pay order would significantly amount to admission of his having defaulted for three consecutive months from 10.8.2007 to 9.11.2007. Both the parties have raised triable issues involving the factual as well as legal aspects. The payment of rent by pay order was admittedly after the demand notice. The question would require determination as to whether the demand notice was required to be issued in the case of second default and further as to whether the payment of amounts for the defaulted period, in the case of second default, would absolve the tenant of the rigour of eviction. At this stage, it cannot be said that no cause of action survived. In view of all this, I do not see any infirmity or illegality in the impugned order of the learned Rent Control Tribunal or that of order of Addl. Rent Controller. The petition has no merit and is hereby dismissed.