caselaws
Supreme Court of India
Pawan Kumar Gupta vs B.R. Gupta on 9 May, 2017Author: S Nazeer
Bench: J. Chelameswar, S. Abdul Nazeer
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURSIDCITON
CIVIL APPEAL NO. 6461 OF 2017
(Arising out of S.L.P. (Civil) No.36427 of 2014
PAWAN KUMAR GUPTA … APPELLANT
VERSUS
B.R. GUPTA …RESPONDENT
J U D G M E N T
S.ABDUL NAZEER, J.
1 Leave granted.
2 This appeal emanates from the proceedings of an eviction petition
filed by the respondent-landlord on 12.4.2004 under Sections 14(1)(a),(b),
(d) and (h) of the Delhi Rent Control Act, 1958 (for short ‘the Act’)
against the appellant-tenant before the Additional Rent Controller, Tis
Hazari Courts, Delhi, seeking eviction of the appellant-tenant from the
premises bearing property No.47, 1st Floor, Bunglow Road, Kamla Nagar,
Delhi. It is an admitted position that the premises in question was let
out by the landlord to the tenant for residential purposes and the last
paid rent was @ Rs.500/- p.m. exclusive of other charges. The eviction
petition was confined ultimately to the solitary ground under Section
14(1)(a) of the Act. The landlord issued a demand notice under Section
14(1)(a) of the Act to the appellant-tenant on 19.1.2004 demanding rent @
Rs.500/- p.m. w.e.f. 1.4.2001 along with interest thereon. Since the
tenant failed to pay the rent, the petition for eviction of the tenant was
filed as aforesaid.
3 The tenant filed the written statement denying the allegations made
in the eviction petition besides providing his defence on merits.
However, with regard to the ground of non-payment of rent, it was, inter
alia, contended that he is not guilty of non-payment and he had paid the
rent from time to time to the landlord who did not issue any receipt
against the same. It was further contended that pursuant to the receipt of
demand notice dated 19.1.2004, he had sent a reply dated 22.3.2004 whereby
he tendered a sum of Rs.18,000/- to the landlord by way of a bank draft
towards rent @ Rs.500/- p.m. for the period 1.4.2001 till 30.9.2004. To
the aforesaid written statement of the tenant, the landlord filed his
replication categorically denying the allegations made in the written
statement and reaffirmed the contents of his eviction petition.
4 After completion of the pleadings, the matter was taken up by the
Rent Controller for consideration under Section 15(1) of the Act. Keeping
in view the respective stand of the parties, the Rent Controller passed an
order dated 7.2.2005 directing the tenant to pay or deposit a sum of
Rs.500/- p.m. as rent w.e.f. 1.10.2004 and continue to pay the same at the
aforesaid rate month by month.
5 Thereafter, parties led their evidence. After the conclusion of the
evidence, the Rent Controller allowed the petition by order dated 27.4.2010
under Section 14(1)(a) of the Act. The Rent Controller held that the
tenant has failed to prove that he had tendered the rent to the landlord
pursuant to the demand notice dated 19.1.2004 and thus the tenant is
guilty of non-payment of rent within the ambit of Section 14(1)(a) of the
Act. While passing the said judgment the Rent Controller directed the
Nazir to submit a report for the purpose of consideration of entitlement of
the tenant to the benefit under Section 14(2) of the Act. The matter was
taken up by the Rent Controller on 6.7.2010 on which date the Rent
Controller perused the Nazir’s report who stated that the tenant even
failed to deposit the rent regularly in compliance of the said order under
Section 15(1) of the Act. Therefore, the Rent Controller by an order dated
6.7.2010 held that the tenant is not entitled to the benefit of Section
14(2) of the Act and passed eviction order under Section 14(1)(a) of the
Act. The tenant challenged the said order by filing an appeal before the
Additional Rent Control Tribunal, North Delhi (for short ‘Tribunal’). The
appeal was allowed by the Tribunal on 12.1.2011 whereby the matter was
remanded to the Rent Controller.
6 Pursuant to the order dated 12.1.2011 passed by the Tribunal, the
Rent Controller allowed the tenant to record examination of two witnesses.
He was also permitted to mark certain documents. The Rent Controller after
hearing the parties, allowed the petition by order dated 5.7.2011 under
Section 14(1)(a) of the Act by holding that the tenant failed to pay the
rent despite service of demand notice and committed default within the
meaning of Section 14(1)(a) of the Act. The Rent Controller directed the
tenant to deposit the arrears of rent from 1.4.2001 @ Rs.500/- p.m. along
with interest @ 15% p.a. Accordingly, the earlier order dated 7.2.2005
passed under Section 15(1) of the Act was modified. Nazir of the court
was directed to submit report for consideration of the entitlement of the
tenant to the benefit under Section 14(2) of the Act.
7 Nazir submitted a report whereby it was found that the tenant had
been guilty of non-compliance of the order dated 7.2.2005 passed under
Section 15(1) of the Act. The tenant took the stand that since he had
complied with the final judgment dated 5.7.2011, the tenant is entitled to
the benefit under Section 14(2) of the Act. After hearing the learned
counsel for the parties, the Rent Controller by an order dated 24.8.2011
held that the tenant has failed to provide any explanation regarding delay
in depositing of rent month by month in terms of the order dated 7.2.2005.
Thus he is not entitled to the benefit under Section 14(2) of the Act.
Therefore, the eviction order was passed by the Rent Controller against the
tenant under Section 14(1)(a) of the Act.
8 The appeal filed by the tenant challenging the said order of the Rent
Controller before the Rent Control Tribunal was allowed on 24.2.2012. The
landlord challenged the said order before the High Court of Delhi in C.M.
Main No.415 of 2012. The High Court by order dated 01.12.2014 has allowed
the appeal and set aside the order of the Tribunal and restored the order
passed by the Rent Controller. The tenant has called in question the
legality and correctness of the said order in this appeal.
9 Learned senior counsel appearing for the appellant-tenant argues that
the order dated 7.2.2005 passed under Section 15(1) of the Act was modified
by a later order dated 5.7.2011 wherein a direction was issued to the
tenant to deposit the arrears of rent along with interest @15% p.a. within
one month from the date of the said order. This order has been complied
with by the tenant. Thus order dated 7.2.2005 has merged with the order
dated 5.7.2011. Secondly, it is argued that the High Court has placed
reliance in Hem Chand etc. etc. v. The Delhi Cloth & General Mills Co. Ltd.
and Anr. Etc. etc.[1]. This judgment has been impliedly overruled in
Shyamcharan Sharma v. Dharamdas[2] whereby this Court has held that the
Rent Controller is vested with the discretionary power to condone the
default and extend the time for deposit of the rent. This position has
been recognized by this Court in Ram Murti v. Bhola Nath and Anr.[3]
whereby it was held that the Rent Controller has power to condone the
default on the part of the tenant in making payment or deposit of the
future rents. In the light of the judgment in Ram Murti (Supra), the High
Court ought to have condoned the delay in payment of the rents.
10 On the other hand, learned counsel appearing for the respondent-
landlord submits that the tenant is a contumacious and a willful defaulter
of the rents. He had the opportunity to pay the arrears of rent in
response to the notice issued under Section 14(1)(a) of the Act. Instead
of paying the rents he raised a defence that he had paid the rent to the
landlord who did not issue any receipt against the same. It was further
contended that he had paid Rs.18,000/- towards the rent by way of bank
draft from 1.4.2001 to 31.1.2004. That is why the Rent Controller, while
considering the case under Section 15(1), directed the tenant to pay the
rent @ Rs.500/- p.m. from 1.10.2004 and continue to pay the same at the
same rate month by month. The question relating to payment from 1.4.2001
to 30.9.2004 was kept open. The tenant has failed to pay the rent in terms
of this order. When the matter was taken up for consideration under
Section (14)(1)(a) the court directed the tenant to pay the rent for the
aforesaid period. There is no merger of the order dated 7.2.2005 in the
order dated 5.7.2011.
11 Similarly, it is contended that the tenant has failed to comply with
the order under Section 15(1) of the Act. He has deposited the rent from
1.1.2004 to 31.1.2006 after the expiry of 9 months 12 days and for the
period 1.4.2006 to 31.2.2007. The deposit of rent was made after the
expiry of 3 months and 6 days. Similarly, the payment of rent for the
subsequent period is also made sometimes after one year and sometimes after
3 months. The tenant has not offered any explanation for the delay in
payment of rents. Therefore, the order impugned does not call for
interference.
12 Before considering the rival contentions of the parties, it is
desirable to set out relevant provisions of the Act. Section 14(1) provides
that no tenant can be evicted except an application made to the Controller
for an order for the recovery of possession on one or more grounds
specified in the section. Section 14(1)(a) provides for eviction of a
tenant on the ground of default in payment of rent, if the tenant has
neither paid nor tendered the whole of arrears of rent legally recoverable
from him within two months of the date on which the notice of demand for
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. It is clear
that if the tenant pays the arrears of rent within two months of service of
notice, the landlord cannot get order for recovery of possession on the
ground of default in payment of rent but if the tenant fails to pay the
rent as required under Section 14(1)(a), the proceedings are taken under
Section 15(1) of the Act. Under this provision the Controller shall, after
giving the parties opportunity of being heard, make an order directing the
tenant to pay 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 rent were legally
recoverable from the tenant including the period subsequent thereto upto
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 15th of each succeeding
month a sum equal to the rent at that rate.
13 Sub-section (6) of Section 15 states that if a tenant makes payment
or deposit as required by sub-section (1) or sub-section (3), no order
shall be made for recovery of possession on the ground of default in the
payment of rent by the tenant, but the Controller may allow such costs as
he deem fit to the landlord. Sub-section (7) of Section 15 states that if
a tenant fails to make payment or deposit as required by this section, the
Controller may order the defence against eviction to be struck out and
proceed with the hearing of the application. The other important provision
is sub-section (2) of Section 14 which states that no order for 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. Thus, payment of rent as directed by
the Controller under sub-section (1) of Section 15 is a must in order to
avoid eviction under Section 14(1)(a).
14 The first contention of the learned senior counsel for the tenant is
that the order dated 07.02.2005 passed under Section 15(1) of the Act has
been modified by the Rent Controller by his order dated 05.07.2011.
Therefore, the Rent Controller was not justified in passing an order of
eviction for non-payment of rent in terms of the order dated 7th February,
2005. There is no merit in this contention. As noticed above, the
appellant claimed rent @ Rupees five hundred per month from 1st April, 2001
along with interest thereon by issuing a demand notice under Section
14(1)(a). Since tenant failed to comply with the demand made in the
notice, the landlord filed the eviction petition under Section 14(1)(a) of
the Act. The tenant filed a counter stating that he had paid the rent from
time to time and that the landlord did not issue any receipt against the
same. It was also contended that pursuant to the demand notice dated 19th
January, 2004, he had sent the reply along with a demand draft for a sum of
Rupees 18,000/- towards the rent @ Rupees five hundred per month from
1.4.2001 to 31.3.2004. The Rent Controller passed order dated 07.02.2005
under Section 15(1) of the Act, directing the tenant to pay or deposit a
sum of Rupees five hundred per month with effect from 1.10.2004 within one
month from the date of the order and further continue to pay or deposit
future rent at the aforesaid rate month by month by 15th day of each
succeeding month during trial. This order was passed because there was
dispute in relation to payment of rent from 1.4.2001 till 30.9.2004. The
question relating payment of rent for this period was kept open. After
trial, the Rent Controller came to the conclusion that the tenant has
failed to establish the payment of arrears of rents from 1.4.2001. The
tenant has also failed to pay the rents from 1.10.2004 in terms of the
order dated 07.02.2005. In the circumstances, it is futile to contend that
that the order dated 07.02.2005 has merged with the order dated 05.07.2011.
15 The second contention of the appellant is that the court below has
not considered condonation of delay in payment of rent having regard to the
decision in Ram Murti (supra). It is his submission that the decision
relied on by the High Court in Hem Chand (supra) has been impliedly
overruled in Shyamcharan Sharma (supra). In Hem Chand (supra) this Court
has held that the Rent Controller has no discretion to extend the time for
payment of rent under Section 15(1) of the Act. However, in Ram Murti
(supra) this Court after taking into consideration the decision in
Shyamcharan Sharma (supra) has held that Rent Controller has power to
condone the default on the part of the tenant in making payment or deposit
of the future rents. This decision has application in a case where the
tenant seeks condonation of delay in payment of rents. It is relevant to
notice here that the tenant is a willful defaulter of rents. He took a
stand before the Rent Controller that he had paid the entire arrears of
rent. The Rent Controller passed an order dated 07.02.2005 under Section
15(1) of the Act directing him to pay or deposit the rent at the rate of
Rs. 500/- per month with effect from 1.10.2004 and continue to pay the same
at the aforesaid rate month by month. Admittedly, he has failed to pay the
rent in terms of the said order. After conclusion of the trial, the Rent
Controller allowed the petition by order dated 27.4.2010 under Section
14(1)(a) of the Act. The Rent Controller held that the tenant failed to
prove that he had tendered the rent to the landlord pursuant to the demand
notice dated 19.1.2004. The Rent Controller directed the Nazir to submit a
report for the purpose of consideration of entitlement of the tenant to the
benefit under Section 14(2) of the Act. The Nazir’s report showed that the
tenant had not paid the rent regularly in compliance with the order passed
under Section 15(1) of the Act. There was a long delay in deposit of
rents. Condonation of delay can take place only when the defaulting
tenants so pleads with justifiable reasons which would show that he was
prevented from compliance by circumstances beyond his control. The tenant
has not offered any explanation for the delay in deposit of rents.
Therefore, we do not find any justification to interfere with the order of
the High Court.
16 In the result, the appeal fails and it is accordingly dismissed.
However, the appellant is granted three months time from today to vacate
and deliver vacant possession of the premises in question to the respondent
subject to filing of an undertaking before this Court to vacate the
premises on or before three months from today. The undertaking shall be
filed within two weeks from today.
…………………………………………J.
(J. CHELAMESWAR)
…………………………………………J.
(S. ABDUL NAZEER)
New Delhi
May 9, 2017
———————–
[1]
[2] (1977) 3 SCC 483
[3]
[4] (1980) 2 SCC 151
[5]
[6] (1984) 3 SCC 111
Comments