Jaswant Singh vs Gurbax Singh Kohli

S.C.Jain, J.

(1) The facts giving rise to this second appeal are that Shri Gurbax Singh Kohli, hereinafter referred to as the respondent led out the suit premises No. G-11 Man Sarovar Garden, New Delhi to Shri Jaswant Singh deceased for a limited period of three years with the permission of the Addl. Rent Controller u/s 21 of the Delhi "Rent Control Act with effect from 24th May, 1980. After the completion of the tenancy period of three. years, the tenant did not vacate the premises with the. result that the landlord respondent bad to file an application for recovery of possession of the tenanted premises u/s 21. In the execution proceedings Shri Jaswant Singh (deceased, now represented by LRs) filed objections challenging the right of the landlord to recover the possession from him. During the pendency of those objections the landlord filed an application u/s 15(2) of the Delhi Rent Control Act claiming arrears of rent and the Court passed an order u/s 15(2) on 30-9-84 directing Shri Jaswant Singh to pay or deposit the arrears of rent @ Rs. 550.00 from 1.5.83 within one month of the order and to pay future rent month by month. Shri Jaswant Singh died on 9th October, 1984. He had deposited rent till his death. An application for bringing the legal heirs of the deceased Shri Jaswant Singh was filed and the legal heirs were brought on record on 29.3.85. The legal representatives of the deceased Shri Jaswant Singh did not pay or deposit the rent after the death of Jaswant Singh though the Order u/s 15(2) Delhi Rent Control Act was in ''existence. On 3.5.85 the landlord filed an application u/Sec. 15(7) of the Delhi Rent Control Act for striking out the defense of the appellant tenant on the ground that rent up to September, 1984 was deposited and rent for the subsequent period was neither paid nor deposited in the Court and the defense is liable to be struck out. Despite opportunities granted to the legal representatives of the deceased Jaswant Singh (appellants herein) no reply was filed to that application and the Rent Controller after hearing the counsel for the parties ordered striking out the defense of the appellant and dismissed the objection filed by Jaswant Singh holding that the default was contumacious and willful.

(2) The order of the Addl Rent Controller was challenged before the Rent Control Tribunal, who upheld the order passed by the Addl Rent Controller and dismissed the appeal vide order dated 1.11.1985.

(3) Aggrieved, this second appeal has been filed before me. The facts are not disputed and it is admitted case of the parties that order u/s 15(2) of the Delhi Rent Control Act was passed against Jaswant Singh, predecessor of the present appellants, to pay or deposit the arrears of rent w.e.f. 1.5.83 till the passing of the order within one month and to pay the future rent monthly by moth by 15th of each succeeding month. It Is not in dispute that Jaswant Singh died on 9th October, 1984 and thereafter the legal representatives of Jaswant Singh who are appellants herein did not deposit the rent as per order u/s 15(2) of the Delhi Rent Control Act and thereafter an application u/s 15(7) of the Delhi Rent Control Act was moved for striking out their defense.

(4) The only point raised before me is that the Court has ample power to condone the delay caused in deposit of rent. According to the learned counsel for the appellant Jaswant Singh complied with the order u/s 15(2) and deposited rent till his death. After his death his legal heirs were not in the know of this fact which resulted, in delay in deposit of rent as per order u/s 15(2) of the Delhi Rent Control Act, Reliance has been placed on a decision of the Supreme Court in Ram Murti v. Bhola Nath and others (1984) 26 D.L.T. 91 wherein it has been held that Rent Controller''s discretion u/s 15(7) to strike out the defense of the tenant means that be has power to extend the time to deposit future rent u/s 15(1), where failure of the tenant to make such payment was beyond his control. Learned ''counsel for the respondent countered the arguments of the counsel for the appellant and submitted that the defense of the tenant for non-compliance of the order u/s 15(2) can be struck out if the tenant fails to show that the default was due to circumstances beyond his control. In this case there is nothing to show and prove that non-deposit of rent by the legal representatives of the deceased Jaswant. Singh was beyond their control. The order passed against Jaswant Singh was binding on his legal representatives. Learned counsel further argued that by filing these objections after the expiry of the limited period of tenancy of three years shows the malafide intention of the appellant in delaying the execution of the order. It was his moral duty to band over the possession after the expiry of limited period of tenancy but instead of banding over the possession be filed objections raising various pleas which were not maintainable either on facts or on law. Reliance has been placed on the decision of the Supreme Court in Pankaj Bhargava & Am. v. Mohinder Nath (1991) 43 Dlt 384 in support of his contention that objection not raised during the subsistance of the limited period of tenancy but raised at the time of execution are not maintainable and in such circumstances there is no lack of inherent jurisdiction. Even if the limited period of tenancy u/s 21 of the Delhi Rent Control Act was obtained by playing fraud on Court the tenant is bound to assail the validity of such tenancy during its subsistance and not as a collateral plea during the execution.

(5) I have given my considered thought to the submissions made by the counsel for the parties and gone through the record.

(6) The objections were raised by Jaswant Singh tenant, predecessor-in-interest of the appellants after the expiry of the limited period of tenancy of three years alleging fraud and misrepresentation on the part of the landlord at the time of creation of limited tenancy. It is settled law as laid down by the Supreme Court in Pankaj Bhargava (supra) that even if permission to create limited tenancy u/s 21 was obtained by playing fraud, the tenant is bound to assail the validity of such a tenancy during its subsistence and not as a collateral plea during the execution,

(7) Regarding the striking out the defense of the appellants and dismissal of their objections filed u/s 21, both the Courts below have acted judicially in coming to the conclusion that there was no sufficient ground for condoning the delay in depositing the arrears of rent as ordered u/s 15(2) of the Delhi Rent Control Act. The order passed against Jaswant Singh, predecessor-in-interest of the appellant u/s 15(2) was binding on, the legal representatives after his death and it was their duty to comply with the said order. Jaswant Singh died in October, 84. The appellants were brought on record in March, 1985. The appellants were, Therefore, aware of the order u/s 15(2) against their predecessor and it does not lie in their mouth to say that they have come to know of the order on 3.5.85 after getting a copy of the application from the Court. They did not deposit the rent and they did not care to file reply to the application. Even the circumstances have not been explained which prevented them from complying with the order u/s 15(2) of the Delhi Rent Control Act. The appellants have not been able to show that the default was on account of circumstances beyond their control. Both the Courts below have rightly struck out the defense of the appellants and dismissed the objections filed by Jaswant Singh their predecessor-in-interest. No ground to interfere in the judicious findings of the Courts below. This second appeal is dismissed.