Case: V.K. Verma Vs. Radhey Shyam

1. In a suit for ejectment instituted on September 8, 1958 the plaintiff who is the respondent before us now made an application under S. 13(5) of the Delhi and Ajmer Rent Control Act. 1952 (Act No. XXXVIII of 1952). He prayed for an order to be made on defendanttenant to deposit all the arrears of rent and future monthly rent in accordance with law by the 15th of the following month. The arrears of rent were claimed to be Rs. 722/7/upto the 30th June 1960. The original rent was stated to be Rs. 64/8/and with effect from August 1, 1959 the rent was claimed at Rs. 70.95 np.2. This application was resisted by the tenant who in his reply dated August 1, 1960 stated that the rate of rent had continued to be at Rs.and only Rs. 516/was due at the rate of Rs. 64/8/as arrears upto June 30, 1960. He added that he was prepared to deposit it.3. The Subordinate Judge 1st Class, Delhi, passed orders on the application on August 1, 1960. The relevant portion of the order ran thusregards the application under S. 13(5) of the Rent Control Act the defendant has no objection to deposit the arrears of rent and future rent month by month at the rate of Rs. 64/8/per month. It is clear that under S. 13(5) an order can only be passed at the rate at which the rent was being last paid and no increase can be taken into consideration. I order accordingly.On December 13, 1960 the plaintiff applied to thestating that the defendants had defaulted in the deposit of rent for the month of September 1960 which was due to be deposited by the 15th October 1960 and also rent for the month of October 1960 which was to be deposited by the15th November, 1960. He prayed that the defence of the defendant against ejectment should therefore be struck out.5. Contesting this application the defendant pleaded that no valid order has been made under S. 13 (5) and in any case no default had been made by him.6. The learned Subordinate Judge rejected both these pleas and had held that there had been default in complying with the order made under S. 13 (5) and ordered the defence to be struck off.7. Against this order the tenant appealed. The Court of Appeal (the SeniorDelhi) agreed with the Trial Judge that a valid order had been made under S. 13(5) and that the tenant had defaulted in making payments in accordance with the order. The Court also rejected the tenants contention that the Trial Judge had a discretion in the matter and should have exercised that discretion in favour of the tenant by extending the time for payment of the rent. Relying on a decision of the Punjab High Court in Kanahiya Lal Balkishan Das v. Om Prakash Sharma. Civil Revn. No. 583 of 1958 D/(Punj) the learned Seniorheld that the Court could not in any circumstances extend the time for payment fixed in the order under S. 13(5) and could not condone the default. On this view he dismissed the appeal.8. The tenant then approached the High Court of Punjab with a petition under S. 35 of the Delhi and Ajmer Rent Control Act. 1952. One of the grounds taken before the High Court was that the appellate court had ignored S. 57 of the Act of 1958. The High Court however dismissed the application summarily.9. The present appeal has been filed against the High Courts order, after obtaining special leave of this Court.

Reasoning: It appears clear to us on such comparison that the provisions are substantially similar with only slight modifications.On this comparison of the provision of S. 13(5) of the old Act with those in Section 15 of the new Act we have no doubt that this is a case of slight modification by the new Act of the previous provisions in the same matter and so on the authority in the decision in Sobtis case C.A. No. 392 of 1963 D/: (AIR 1964 SC 1305  ) the provisions as modified by S. 15 (7) have to be applied to the present suit.The result on such application would be that the Court would not be bound to strike out the defence against ejectment but may or may not do so on a consideration of the circumstances.14. That thewho made the original order or the Seniorwho confirmed it on appeal, did not take the provisions of S. 15(7) into consideration is clear. It is not disputed that though the rents for September 1960 and October 1960 were not paid by the tenant within the time as required by the Courts order they were paid on December 6, 1960. It appears reasonable to think that when the Subordinate Judge was dealing with the landlords application for striking out the defence against ejectment in June 1962 he would have taken this fact of payment of rent into consideration in exercising his discretion in the matter if he had under S. 57 of the new Act paid regard to the provisions of S. 15(7) of that Act. The Seniorwho heard the appeal, would also have taken this fact of payment of rent in December 1960 into consideration if he had paid due regard to the provisions of S. 15(7) of the new Act, as he was bound to do under S. 57. It was in these circumstances that the tenant made his application to the High Court under S. 35 of the 1952 Act. That Section provides that "the High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinksobservations seem to suggest that generally speaking it is only where the unsuccessful party had not had a proper trial according to law that a Court could interfere. As instances of this were mentioned cases where the Court which had no jurisdiction or in which the Court had based its decision on evidence which should not have been admitted or cases where the unsuccessful party had not been given a proper opportunity of being heard or the burden of proof had been placed on the wrong shoulders. It is important to notice however that the learned Chief Justice took care to say that these instances were not intended to exhaust the circumstances which might justify interference.16. There can be no doubt that the statement of the law in Hari Shankars case. 1962 (Supp) 1 SCR 933 : (AIR 1963 SC 698  ) continues to be binding authority so long as it is not replaced by any different statement on aof the matter by this Court. We are of opinion however that the present case comes within the scope of S. 35 as indicated in Hari Shankars case, 1962 (Supp) 1 SCR 933 : (AIR 1963 SC 698  ).Where the law requires the Court to have regard to certain provisions and the Court does not pay that regard it cannot but be said that the trial has not been according to law. Section 57 of the Act of 1958 made it the duty of the Court to have regard to the provisions of 1958 Act in certain circumstances. Neither the Subordinate Judge, who passed the original order nor the Senior Subordinate Judge, who heard the appeal from it, carried out this statutory duty. This is, therefore, in our opinion, clearly a case in which the trial had not been in accordance withif this be so, this does not alter the position. While it is true to say that Courts dispose of cases on the basis of the submissions made by Counsel, it is not possible to say that the omission of Counsel absolves a Court from the duty of following clear provisions of law. We do not think that the omission of the tenants Counsel to draw the Courts attention to the provisions of S. 57 can be a reason for the High Court to refuse to interfere. In our opinion, this was a proper case in which the High Court ought to have exercised its power under S. 35 of the 1952 Act and made an order setting aside the order made by the Courts below striking out the tenants defence against ejectment.