Radhey Lal vs Hem Chand and Another

Shamsher Bahadur, J.—In order to appreciate the contention which has been raised by Mr. Narula, the learned Counsel for the-Petitioner-tenant, it is essential to state the facts leading up to the order which is sought to be challenged in this Court.

Radhe Lal is a tenant of the premises consisting of a godown which had been rented by him originally at the rate of Rs. 75/- per mem-sem from one Suresh Chand, predecessor-in interest of the present Respondents. The rent was raised subsequently to Rs. 112/- somewhere in 1955. The suit property was purchased by the Respondents Hem Chand and Rani Urmila on 11th of February, 1956, and the Petitioner in due course attorned to the new owners the rent being maintained at Rs. 112/- per mensem. The rent was accepted upto 11th of August, 1956. A suit for ejectment was brought by the Respondents on 5th of February, 1959 on grounds of re construction and non-payment of rent. It may be mentioned that in the suit as originally framed, rent was claimed from 11th of February, 1956 but later on, it was admitted that it had been paid upto 11th of August, 1956. Before the first hearing, the rent and costs amounting in all to Rs. 3,370/- were paid on 31st of March, 1959. Further payment was duly made on 28th of April, 1959.

It was on 13th of May, 1959. that the trial Court passed an order, the breach of which is stated to provide a ground to the landlord to claim that the tenant has defaulted. In this order the tenant was directed to make deposit of arrears of rent and future rent at the rate of Rs. 112/- per mensem with effect from the 11th of August, 1956. On 23rd of May, 1959, the tenant deposited a sum of Rs. 336/- in settlement of the arrears due upto that date.

It may at this stage be pointed out that Sub-section (5} of Section 13 of the Delhi and Ajmer Kent Control Act, 1952 by which the parties are concededly governed, is to this effect:-

If the tenant contests the suit as regards the claim for ejectment, the Plaintiff-landlord may make an application at any stage of the suit for an order on the tenant-Defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order tor the deposit of rent at such rate month by month as it thinks fit and the arrears of rent, if any, and on the failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or to deposit the rent at such rale for any month by the 15th of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment; and the landlord may withdraw the amount of money in deposit without prejudice to his claim to any decree or order for recovery of possession of the premises.

The Civil courts were closed between 14th of June and 16th of July, 1959, for vacation. On 16th of July, 1959, the tenant made an application to deposit two months'' rent which had become due. The Court which was on leave till 22nd of July, 1959, passed an order on 23rd of July, 1959, permitting the tenant to make the deposit by treasury challan. The tenant says that the treasury did not effectively operate on 24th of July as it was in the process of shifting to another building and consequently the deposit was made on the following day, namely, 25th of July, 1959. There was thus a delay of two days in making the payment.

Taking their stand on the penal provision of Sub-section (a) of Section 13, the landlords made an application on 9th of September, 1959, to strike out the defence of the tenant who had defaulted in the payment which had become payable on the 23rd of July, 1959. The Court, taking into consideration, the reply in an order which was passed on the 4th of January, 1960. The landlords went up in appeal which was allowed by the Senior Subordinate Judge on 27th of May, 1960, and the lower appellate Court without going into the merits of the case held that the Court had no jurisdiction to extend time.

The tenant feeling aggrieved has invoked the revisional jurisdiction of this Court and the only question which falls for determination at this stage is whether it was competent for the Court to condone the delay which it did in the order passed on 4th of January, 19b0. Mr. Narula, for the p-:tirioner, concedes that if tne provision of Sub-section (5) of Section 13 of the Delhi and Ajmer Rent Control Act, 1962, standing by itself, is taken into account the order of the Senior Subordinate Judge must be upheld as no scope for the exercise of any discretion is left on the plain construction of the statute The matter, in his submission however, does not rest with the provisions of the Act of 1952, which now stands repealed by the Delhi Rent Control Act, 1958. Section 57 of the 1958 Art provides for the repeal of the Delhi and Ajmer Rent Control Act, 1952, but in the proviso it is said:-

Provided that in any such suit or proceedings for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply the court or other authority shall have regard to the provisions of this Act: -

Provided further that the provisions for appeal under the said Act shall continue in force in respect of suits and proceedings disposed of thereunder.

It has been emphasised by Mr. Narula and here he is supported by authorities that with regard to the present proceedings which are those for the eviction of a tenant the Court is placed under an obligation to "have regard to the provisions of this Act". There can be no manner of doubt that in dealing with a pending application for ejectment, the Court concerned has to take the provisions of the Act of 1953 into consideration. Now, Section 15 of the Delhi Rent Control Act, 1968, which deals with proceedings for eviction contains Sub-section (7) which says 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.

Thus, what was mandatory for the Controller before has not become a matter of discretion undoubtedly to be exercised after due regard to the circumstances of the case. In the instant case, the lower appellate Court without going into the merits of the controversy as to whether the exercise of discretion was validly made has accepted the position of the landlord that the Court lacks competence altogether to decide such a question. As held by a Division Bench of this Court of Dulat and Gosain JJ. in Man Mohan Lal v. B.D. Gupta (1962) 6 P.L.R. 51, the proceedings for ejectment even at the revisional or appellate stage relating to suits which were pending when the new Act came into force would be governed by the provisions of the enactment of 1958 in pursuance of the first proviso. Reference may also be made to a subsequent Bench decision of this Court by Dulat and Capoor JJ. in Jhabar Mal Chokhani v. Jinendra Pershad (1963)65 P.L.R. 469, in which it was field that: -

Sub-section (1) of Section 57 of the Delhi Kent Control Act, 1958, does not demand that the suit for the eviction of a tenant filed under the previous Act of 1952 must be governed entirely by the provisions of the new Act out that, on the other hand, the provisions applicable continue to be the provisions of the old Act this addition that, where the new Act has slightly modified or (sic) the previous provisions, these modifications and clarifications should be applied, but where entirely new rights and new liabilities have been created, the new provisions must not be allowed to override the provisions of the previous Act.

Thus, at the appellate stage, the Senior Subordinate Judge should have taken account of the fact that the discretion could have been validly exercised by the trial Judge in condoning the delay. A similar view had been expressed by Falshaw J. (as the Chief Justice then was) in Civil Revision No. 536-D of 1958, decided on 1st of February, 1961, in which it was observed that the provsions of Section 15(7) of the Act of 1958 must be included among those to which regard is to be paid in finally deciding cases under the old Act.

The lower appellate court, in my opinion, was bound to consider whether the discretion exercised by the trial Judge in making an order on the application for striking out the defence was validly exercised. In this view of the matter, this petition muit succeed and the case remanded to the lower appellate Court for hearing the appeal on merits. The parties have been directed to appear before the lower Appellate Court on 27th of August, 1963.