Sarla Goel & Ors vs Kishan Chand

4. The facts are not in dispute. The respondent is a tenant in respect of the suit premises. As noted herein earlier, it is not disputed that the respondent has already availed of the benefit of Section 14(2) read with Section 15 of the Act pursuant to an order dated 3rd of December, 2001 passed by the Additional Rent Controller, Delhi in Eviction Case No. E-105 of 1999. At the present juncture, it may be mentioned that the appellants is now facing the charge of committing second default in payment of rent to the appellants in respect of the suit premises. It is also not in dispute that a demand notice dated 31st of March, 2003 was served by the appellants upon the respondent intimating that the respondent was in arrears of rent for three consecutive months from January, 2003 onwards. It is also not in dispute that on receipt of the said demand notice from the appellants, the respondent had sent the arrears of rent for three months for the period from 1st of January, 2003 to 31st of March, 2003 by a money order dated 22nd of April, 2003. It is also not in dispute that the appellants had refused to accept the money order and 3 consequently, the money was refunded to the respondent. The case made out by the respondent was that he had duly complied with the provisions of the Act which was required to be done by him and therefore, it cannot be held that it was a case of second default whereas the case of the appellants either before the Rent Controller or before the High Court was that on refusal to receive the money order by the appellants, the respondent ought to have taken the recourse of Section 27 of the Act by depositing the aforesaid arrears of rent with the Rent Controller and he not having admittedly done so, was liable to be evicted from the suit premises on the ground of second default under Section 14(1)(a) read with proviso to Section 14(2) of the Act. Reliance was placed on behalf of the appellants before the High Court on a decision of this Court in Atmaram Vs. Shakuntala Rani [2005 (7) SCC 211]. The High Court, by the impugned order, however, held that in view of the admitted fact that as the rents were tendered by the respondent to the appellants and the appellants having refused to accept the same, the respondent had duly complied with the provisions of the Act and, therefore, there was no second default on the part of the respondent and accordingly, no order for eviction could be passed on the aforesaid ground. So far as the decision in Atmaram's 4 case (supra) is concerned, the High Court explained that the said decision cannot be said to have any application to the facts and circumstances of the present case as that was a case where the tenant had deposited a part of the arrears of rent under the Punjab Relief of Indebtedness Act, 1934 and his defence was that the amount that was deposited ought to have been treated as having paid to the landlord. It was also explained by the High Court in the impugned order that in the aforesaid decision, this Court held that the deposit made under the Punjab Act could be of no avail to the tenant and since the deposit was not made under Section 27 of the Act, the tenant could not claim the benefit sought by him. The decision was also distinguished by the High Court in the impugned order that in that decision, the Supreme Court was only considering as to whether the deposits of arrears of rent under the Punjab Act could be treated as payment of rent to the landlord. It was also observed that the tenant had not made any deposit and it was not his case that the arrears stood paid to the landlord. The High Court further held that in the present case, the tenant/respondent had tendered the rent by money order, which the landlord admittedly had refused to receive. So far as the interpretation of Section 27 read with Section 14(1) (a) of the Act is concerned, the High Court 5 said that this Section clearly says that the tenant would be entitled to protection if he either pays or tenders the arrears of rent within two months of the service of demand. That is to say, the tenant was required to either tender or pay the rent to earn protection. While interpreting the word "Neither" and "Nor", the High Court observed that these words leave no manner of doubt that if there was a valid tender of rent within two months of the notice of demand, the tenant would be protected.

25. In view of our discussions made hereinabove and considering the scope and object of the Act and the provisions of the same, we are of the view that the word "may" in the context of the Act, shall be construed as "shall" and therefore, the tenant shall deposit the rent after refusal by the landlord and, accordingly, having not done so, he is liable to be evicted.

26. That being the position, we are unable to sustain the order of the High Court and are of the view that the High Court was not 25 correct in holding that the tenant/respondent had not failed to pay or tender arrears of rent for the period mentioned herein earlier.

27. For the reasons aforesaid, the impugned order of the High Court is set aside and since the tenant/respondent having committed second default for which he is not entitled to be protected under the Act, the order of eviction passed by the Rent Controller must be restored.

28. Accordingly, the appeal is allowed. The impugned order of the High Court is set aside and that of the Additional Rent Control Tribunal is restored. There will be no order as to costs. 29.

Considering the facts and circumstances of the case, we grant six months time to the respondent to deliver peaceful actual physical possession of the suit premises subject to filing of a usual undertaking in this Court within a month from this date.