IN THE COURT OF SHRI VINOD GOEL, DISTRICT & SESSIONS JUDGECUMADDITIONAL RENT CONTROL TRIBUNAL: SHAHDARA: KARKARDOOMA COURTS: DELHI RCA No. 57/13 Unique Identification No.02402C0311602013 Smt. [ENTITY] W/o Sh. [ENTITY] R/o IX/5982, Raghubar Gali, [ENTITY], Gandhi Nagar, Delhi110051. Appellant/landlady Versus Sh. [ENTITY] S/o Sh.[ENTITY], R/o First Floor of Property No.IX/6933, Prem Gali, Gandhi Nagar, Delhi110031. Respondent/tenant Appeal under [SECTION] of the [ACT] against the impugned order dated 07.09.2013 passed by Ld. Rent Controller, Shahdara, Delhi in petition no. E212/05. AND RCA No. 58/13 Unique Identification No.02402C0311612013 [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. Decided on 24.07.2014 Page 1 of 17 Smt. [ENTITY] W/o Sh. [ENTITY] R/o IX/5982, Raghubar Gali, [ENTITY], Gandhi Nagar, Delhi110051. Appellant/landlady Versus 1. Sh. [ENTITY] S/o Sh. Chunnilal, Shop No.2, IX/6933, Prem Gali, Gandhi Nagar, Delhi110031. 2. Sh. [ENTITY] S/o Sh. [ENTITY] Shop No.2, IX/6933, Prem Gali, Gandhi Nagar, Delhi110031. Respondents/tenants Date of Institution : [SECTION].09.2013 Arguments heard on : 11.07.2014 Date of Judgment : 24.07.2014 Appeal under [SECTION] of the [ACT] against the impugned order dated 07.09.2013 passed by Ld. Rent Controller, Shahdara, Delhi in [CASE NUMBER]. JUDGEMENT :
1. Grieved by the orders dated 7.9.2013 passed separately in both the eviction petitions bearing No. E212/05 and E211/05 whereby the Ld. Rent Controller has condoned the delay in compliance of the judgment [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. dated 5.9.2006 passed u/[SECTION] [ACT] (hereinafter referred to as the "[ACT]") and given the benefit u/[SECTION] of "[ACT]" to the respondents (hereinafter referred to as "tenants"), the appellant (hereinafter referred to as "landlady") has invoked the appellate jurisdiction of this court u/[SECTION] of the "[ACT]". As similar question of law and fact are involved, this common judgment shall dispose off both the appeals.
2. The "landlady" filed an eviction petition bearing No.212/05 against the "tenant" on 17.11.2005 u/[SECTION] of the "[ACT]" in respect of a property bearing Room No.2 (measuring 10' X 20'), first floor, Property No. IX/6933, Prem Gali, Gandhi Nagar, Delhi110031. This was rented out to the "tenant" @ Rs.400/ per month excluding of electricity and water charges. The "landlady" sought eviction of the "tenants" on the ground that the "tenant" Sh. [ENTITY] S/o Sh. [ENTITY] has been in arrears of rent of Rs.8,800/ w.e.f. September 2003 and has failed to make the payment of arrears of rent despite service of legal notice dated 24.6.2005.
3. The "landlady" filed another eviction petition bearing No.211/05 against the "cotenants" Sh. [ENTITY] and his son Sh. [ENTITY] on the same day u/[SECTION] of the "[ACT]" in respect of Shop No.2 [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. (measuring 10' X 20') on the ground floor of the same property no. IX/6933, Prem Gali, Gandhi Nagar, Delhi110031. This was rented out to the "cotenants" @ Rs.300/ per month excluding of electricity and water charges. The "landlady" sought eviction of the "cotenants" on the ground that they are in arrears of rent of Rs.6,600/ w.e.f. September 2003 and have failed to make the payment of arrears of rent despite service of legal notice dated 24.6.2005.
4. Despite service of the notice of both the eviction petitions, the "tenants" did not appear before the Ld. Additional Rent Controller (hereinafter referred to as Ld. ARC) and they were proceeded against ex parte on 6.1.2006. Vide exparte judgment dated 5.9.2006 in both cases, Ld. ARC held that the "landlady" is entitled to a decree of eviction against the "tenants" subject to provision of [SECTION] "[ACT]". However, Ld. ARC also directed the "tenants" in both petitions u/[SECTION] of "[ACT]" to pay the "landlady" or deposit in the court entire arrears of rent w.e.f. September 2003 @ Rs.400/ within a period of one month from that day alongwith interest @15% per annum. Since the "tenants" were exparte in the matter, Ld. ARC ordered for sending them a copy of the judgment immediately within 3 days by Registered AD post as well as through UPC for information and both the eviction cases were listed for [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. 19.10.2006 for considering the entitlement of benefit u/[SECTION] of the "[ACT]".
5. On 28.10.2006, the "tenants" filed separate applications in both cases for permission to deposit the arrears of rent alongwith interest before the Ld. ARC. Both these applications were considered by the Ld. ARC on 30.10.2006 and the "tenants" were directed to deposit the rent as well as interest without prejudice to the rights of the "landlady". The "Landlady" has also filed reply to these applications of the "tenants" in both eviction petitions. In the [CASE NUMBER], the "tenants" Sh. [ENTITY] and his son Sh. [ENTITY] through Sh. [ENTITY], clerk of Sh. [ENTITY], Advocate deposited arrears of rent @ Rs. 400/ per month alongwith interest on 1.11.2006 for the period from September 2003 to October 2006, total Rs.22,420/ though admittedly the rate of rent between the parties was Rs.300/ per month. However, in [CASE NUMBER], the "tenant" Sh. [ENTITY] S/o Sh. [ENTITY] through Sh. [ENTITY], clerk of Sh. [ENTITY], Advocate, deposited rent @ Rs.300/ per month alongwith interest on 1.11.2006 for the period from September 2003 to October 2006 total Rs. 16,815/ though admittedly the rate of rent between the parties was Rs. 400/ per month. Admittedly, in both the eviction petitions the "tenants" [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. are closely related to each other and in [CASE NUMBER] the "tenant" Sh. [ENTITY] is the son of Sh. [ENTITY] and brother of Sh. [ENTITY], both of whom are "cotenants" in [CASE NUMBER]. Vide exparte judgment dated 5.9.2006, the Ld. ARC directed the "tenants" to pay arrears of rent @ Rs.400/ per month in both cases, though the rate of rent pleaded in [CASE NUMBER] has been Rs.300/ per month. This clerical error in the judgment dated 5.9.2006 in [CASE NUMBER] is not disputed by Ld. Counsel for appellant. Further error was committed by the clerk of the Counsel for the "tenants" and he deposited arrears of rent of Sh. [ENTITY] in [CASE NUMBER] and that of Sh. [ENTITY] & Sh. [ENTITY] in [CASE NUMBER]. This deposit is not challenged by the "landlady" in her grounds of appeal and rightly so, as she had received arrears of rent with interest from the "tenants" who are closely related to each other.
6. On 22.11.2006, the "tenants" in both the eviction petitions filed their separate applications u/[SECTION] [ACT] for setting aside exparte judgment dated 5.9.2006 but they have withdrawn their respective applications on 27.5.2013 and cases were adjourned to 03.07.2013 for consideration of benefit under [SECTION] of "[CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. Act".
7. Meanwhile, on 19.7.2013 the "landlady" filed applications in both the cases u/[SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the "[ACT]" r/w [SECTION] [ACT] for striking out the defence of the "tenants" and for putting her in possession of the premises in question in terms of the decree passed u/[SECTION] of "[ACT]" on the ground of late deposit of arrears of rent as also the rent for subsequent periods. The "tenants" filed replies in both the cases contesting the said applications. On 23.8.2013, the "tenants" filed applications in both the cases u/[SECTION] of [ACT] for condonation of delay in depositing the rent for periods which is mentioned by the "landlady" in his application u/[SECTION], [SECTION], [SECTION] and [SECTION] and [SECTION] of the "[ACT]". Despite opportunity, reply to this application has not been filed by the "landlady". On 3.9.2013 another application has been filed by the "tenant" in both petitions for permission to deposit the rent from November 2006 and for condonation of delay in depositing the same.
8. Vide impugned order dated 7.9.2013, Ld. Rent Controller observed in both cases that vide orders dated 5.9.2006, Ld. ARC has only directed for deposit of the "arrears of rent" and not with regard to the "future rent"
and hence constrained his consideration only with regard to the payment [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr.
of "arrears of rent" by the "tenants". Ld. Rent Controller came to the conclusion that since the "tenants" were informed about the order dated 5.9.2006 only by letter dated [SECTION].9.2006 and they approached the court to deposit the rent on 28.10.2006, there was no malafide on their part and condoned the delay in compliance with the order dated 5.9.2006 and consequently granted benefit to the "tenants" u/[SECTION] of the "[ACT]"
in both the cases.
9. Now the "landlady" has assailed the findings of the Ld. Rent Controller vide impugned judgment dated 5.9.2006 in both cases by way of separate appeals on the grounds (i) that the orders u/[SECTION] were passed in both cases on 5.9.2006 directing the "tenants" to deposit the arrears of rent within one month and despite the direction the "tenants" deposited the arrears of rent on 1.11.2006 without any application for condonation of delay; (ii) that the Ld. Rent Controller has failed to consider the judgment of Hon'ble Delhi High Court in [PRECEDENT], in which the grounds for condonation of delay are enumerated; (iii) that the Ld. Rent Controller has failed to follow the law laid down by Hon'ble Supreme Court in [PRECEDENT] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. DLT 483 in which application for condonation of delay was filed after arguments on application under [SECTION] were concluded, and (iv) that the Ld. Rent Controller has failed to follow the judgment of Hon'ble High Court in [PRECEDENT] where tenant was declined benefit under [SECTION] for not complying with order under [SECTION] of "[ACT]" as his defence was struck out u/[SECTION] of "[ACT]".
10. I have heard Ld. Counsel for the parties and very carefully perused the material available on the record.
11. The Ld. Counsel for the "landlady" argued that the "tenants" have not complied with the direction of the Ld. ARC dated 5.9.2006 by which he has directed them to pay the arrears of rent within one month i.e. on or before 5.10.2006. He further submitted that the "tenants" did not file any application for condonation of delay in deposit of rent and they have filed the applications for permission to deposit arrears of rent only on 28.10.2006 which was allowed by the court of Ld. ARC on 30.10.2006 without prejudice to the rights of the "landlady". He further argued that both the tenants have also not paid/deposited the future monthly rent as required u/[SECTION] of "[ACT]" and they have deposited future rent only [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. u/[SECTION] of "[ACT]", and almost every month they have deposited the rent late and thus committed default in making the payment of the future rent. The Ld. Counsel for the "landlady" has relied upon the judgment of the Hon'ble High Court in [PRECEDENT] (supra), [PRECEDENT] (supra), of the Hon'ble Supreme Court in [PRECEDENT] (supra) and of our Hon'ble High Court in [PRECEDENT] decided on 24.5.2011 and [PRECEDENT]. Ld. Counsel has vehemently argued that since no application for condonation of delay in depositing the arrears of rent has so far not been made by the "tenants", they are not to be granted any benefit un/[SECTION] of the [ACT].
12. Per contra, it is argued by the Ld. Counsel for the "tenants" that they have given reasons in their applications dated 28.10.2006 for deposit of arrears of rent and there was no requirement to file another application for condonation of delay or for extension of time and prayed for dismissal of both the appeals.
13. During the course of arguments, on pointing out by Ld. Counsel for "tenants", the Ld. Counsel for the "landlady" admitted that in the ex [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. parte judgment dated 5.9.2006 by Ld. ARC there is no direction to the "tenant" to pay or deposit "future rent" and the Ld. Rent Controller has rightly constrained itself to the dispute of deposit/payment of "arrears of rent". Moreover, in her ground of appeal, the "landlady" has not challenged this finding of Ld. Rent Controller or about late deposit of future rent by the "tenants" u/[SECTION] of "[ACT]".
14. I have given my thoughtful consideration to the rival contentions of the parties.
15. Copies of the judgments dated 5.9.2006 in both eviction petitions were to be sent to the "tenants" within 3 days by Registered AD post as well as through UPC. Ld. Counsel for appellant admitted that the same were sent on [SECTION].09.2006. "Tenants" pleaded in their applications dated 28.10.2006 that the copy of judgment dated 5.9.2006 was dispatched to them on [SECTION].9.2006 and they received the copies of judgments on 3.10.2006 which is not disputed by the "landlady" in her reply to applications dated 28.10.2006.
16. In his application filed in [CASE NUMBER] by the "tenant" [ENTITY] on 28.10.2006 for permission to deposit the arrears of rent alongwith interest, it is pleaded that in order to comply with the requirements of the judgment dated 5.9.2006, he [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. alongwith Sh. [ENTITY] visited the house of the "landlady" on 9.10.2006 for making the payment of Rs.40,000/ in both eviction cases and they were informed at the gate that she has gone to Bangalore to see her daughter who is studying there. Again on 23.10.2006, he alongwith Sh. [ENTITY] and Sh. [ENTITY] came to the house of the "landlady" to pay her the rent on his behalf as well as on behalf of Sh. [ENTITY], where the husband of the "landlady" namely Sh. [ENTITY] entertained them with tea and informed them that his wife had gone to Punjab in connection with some death and would be back after a week. The "tenant" [ENTITY] offered him the rent in both the eviction petitions which he has declined to accept since his wife was not there. The "tenant" Sh. [ENTITY] offered him to keep the amount of the rent by way of trust and give him receipt after his wife comes back. The "tenant" informed him that it was difficult for him to come from Meerut time and again with his burnt body as he has suffered burn injuries during the tragic fire in "Victoria Park Exhibition" in Meerut and his family suffered several deaths and serious burn injuries in this episode and this news was displayed on television and appeared in the newspapers. However, the husband of [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. the landlady did not agree with the proposal.
17. In other [CASE NUMBER], the "cotenants" pleaded that Sh. [ENTITY], who is the son of respondent no.1 and brother of respondent no.2, for himself and on their behalf went to the house of "landlady" on 9.10.2006 alongwith Sh. [ENTITY] to pay her Rs.40,000/ in both cases and they were informed at the gate that she was away to Bangalore to see her daughter. Again, Sh. [ENTITY] alongwith Sh. [ENTITY] and Sh. [ENTITY] came to the house of the "landlady" on 23.10.2006 to pay rent where her husband Sh. [ENTITY] was found and he offered them tea and informed that she was away to Punjab in connection with some death. They offered him rent but he declined even to keep rent as trust and give receipt later on. They informed him that it would be difficult for Sh. [ENTITY]" to come from Meerut time and again with his burnt body as he has suffered in tragic fire in Victoria Park Exhibition, Meerut and in the said fire the "cotenant" Sh. [ENTITY] lost his wife Smt. [ENTITY] and wife of "cotenant" Sh. [ENTITY] namely Smt. [ENTITY] suffered seriously burn injuries and Sh. [ENTITY] lost his mother Smt. [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. [ENTITY], his wife Smt. [ENTITY] and son [ENTITY]. But husband of "landlady" was not agreeable to this proposal.
18. In her reply, the "landlady" did not deny the fact that the "tenant" Sh. [ENTITY] and his brother's wife have suffered burn injuries or death of his wife, mother and son in a tragic fire at Victoria Park Exhibition in Meerut. The "landlady" has pleaded in para 4 of her reply that there is no explanation as to why the "tenants" have not been paying her rent since September 2003 and sarcastically pleaded that the fire in the Victoria Park Exhibition in Meerut did not spread in September 2003 and the "tenants" have taken lame excuses not to pay her rent. The "landlady" has further pleaded in her reply in both eviction petitions that since the tenants have not complied with the order dated 5.9.2006, they are not entitled to any condonation of delay in depositing the rent.
19. On 30.10.2006 the Ld. ARC directed the "tenants" to deposit the rent without prejudice to the rights of the "landlady" and accordingly, the arrears of rent have been deposited in both the cases on 01.11.2006 alongwith interest in compliance with order dated 5.9.2006. Perusal of application of the "tenants" in both cases show that copy of order was [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. received by them on 3.10.2006 and the "tenant" Sh. [ENTITY] and his brother's wife have suffered burn injuries and he lost his wife, mother and son in the fire tragedy that took place in "Victoria Park Exhibition, Meerut". These facts have not been denied by the "landlady". These applications in both eviction petitions are virtually applications for extension of time and condonation of delay in deposit of arrears of rent. That is why the "landlady" pleaded in her reply that the "tenants" are not entitled to condonation of delay in depositing the rent. In para no.16 of its judgment in [ENTITY] vs. Bhola Nath and Another, AIR 1984 SC 1392, the Hon'ble Supreme Court has held that the conclusion is irresistible that if the Rent Controller has the discretion u/[SECTION] not to strike out the defence of the tenant, he, necessarily, has a power to extend the time of payment of future rent u/[SECTION] where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control.
20. There is no force in the arguments of the Ld. Counsel for the appellant that the reasons pleaded by the tenant in application filed on 28.10.2006 is not one of the reasons as enumerated by the Hon'ble Supreme Court in para no.8 of its judgment in [ENTITY]'s case [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. (supra). The Hon'ble Supreme Court in para 8 of its judgment has given some of the illustrations when it might not be possible for the tenant to attend the court to make the deposit on the last date if it is suddenly declared a holiday or on account of a serious accident to himself or his employees, or while going to the treasury he is waylaid or stricken with sudden illness, or held up on account of riots or civil commotion, or for that matter a clerk of his lawyer entrusted with the money, instead of punctuality making the deposit commits breach of trust and disappears, or some other circumstances intervenes which make it impossible for him for reasons beyond his control to physically make the deposit by the due date. The reasons enumerated in para no.8 of its judgment by the Hon'ble Supreme Court are only illustrative and not exhaustive.
21. Keeping in view the fact that the copy of the order dated 5.9.2006 was dispatched very late on [SECTION].9.2006 to the "tenants" instead of within three days which was received by them only on 3.10.2006 and they filed applications on 28.10.2006 for deposit of rent in both cases and admittedly Sh. [ENTITY] and his brother's wife have suffered burn injuries and lost his mother, wife and son in the fire that took place in Victoria Park Exhibition, Meerut, I find absolute justification in [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr. condoning the delay in depositing the arrears of rent and the Ld. Rent Controller has rightly condoned the delay in depositing of the arrears of rent with interest. I am not inclined to take a different view other than the view taken by the Ld. Rent Controller. There is no illegality, irregularity and impropriety in the impugned judgments of Ld. Trial Court in both eviction petitions. Appeals merit dismissal and as such, both appeals no. 57/13 and 58/13 are dismissed with no order as to cost. Trial Court record be sent back with an attested copy of the instant judgment. Appeal files be consigned to record room.
Announced in open Court on 24th July, 2014 ([ENTITY]) District & Sessions Judgecum Additional Rent Control Tribunal, Shahdara, KKD Courts, Delhi.
[CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] [CASE NUMBER] - Smt. [ENTITY] vs. [ENTITY] & Anr.