SUPREME COURT OF INDIA
Atma Ram
Vs
Shakuntala Rani
Civil Appeal No. 6742 of 2003
(B.P.Singh and Arun Kumar)
30/08/2005
JUDGMENT
B.P. SINGH, J.
1. This appeal by Special Leave impugns the judgment and order of the High Court
of Delhi at New Delhi dated October 31, 2002 in CMM No. 800 of 2000. The High
Court by its impugned judgment and order allowed the petition filed by the
respondent / landlady and setting aside the judgment and orders of the
Additional Rent Controller dated November 15, 1999 and the Rent Control
Tribunal dated August 28, 2000 passed an order of eviction against the
appellant herein. The High Court recorded a finding that the Appellant / tenant
had defaulted in payment of rent for the period February 1, 1992 to January 31,
1995. It may be noticed at the threshold that this is a case of second default,
and the appellant having availed of the benefit under sub-section (1) of
Section 14 of the Delhi Rent Control Act, 1951 (hereinafter referred to as 'the
Act') is not entitled to such benefit in case of second default.
2. The facts are not in dispute. The appellant is a tenant of the respondent
and the rent presently payable for the premises is Rs. 56/- per month. There is
no dispute with regard to payment of rent till January, 1991. According to the
appellant he sent a money order remitting the rent payable for the month of
February, 1992 on February 7, 1992 but the respondent refused to accept the
same. Thereafter, he sent a money order on March 29, 1993 tendering the rent
for the period January 1, 1992 to April 30, 1993. The same was refused. The
respondent claimed enhancement of rent by 10% i.e. from Rs. 50.75 per month to
Rs. 56/- per month. The money order sent on August 10, 1994 tendering the rent
for the period February 1, 1992 to August 30, 1993 was again refused by the
respondent. The case of the appellant is that in these circumstances in the
month of January, 1995 he deposited the rent for the period February, 1, 1992
to January 31, 1995 under the provisions of the Punjab Relief of Indebtedness
Act, 1934, (hereinafter referred to as the 'Punjab Act'). The respondent
refused to receive the deposit made under the provisions of the said Act.
Consequently, by order dated February 12, 1995 the petition under the Punjab
Act was disposed of and the appellant was allowed to withdraw the amount
deposited by him.
3. The respondent called upon the appellant to pay the arrears of rent by
issuance of notice dated May 16, 1996. The appellant expressed his willingness
to pay the arrears of rent but sent with his reply a cheque for a sum of Rs.
952/- only purporting to pay rent due for the period February, 1995 to June,
1996. Thereafter the appellant deposited rent for the period February, 1995 to
July, 1996 under Section 27 of the Act. This was deposited on July 20, 1996 by
cheque for the sum of Rs. 1008/-. It is not in dispute that the arrears of rent
so tendered excluded the rent for the period February 1, 1992 to January 31,
1995, which the appellant had deposited under the Punjab Act to which we have
referred earlier.
4. On January 1, 1998, the respondent filed an application for eviction of the
appellant from the premises in question under Section 14(1)(a) of the Act
before the Additional Rent Controller, Delhi.
5. The Additional Rent Controller by his judgment and order of November 15,
1999 dismissed the Eviction Petition which was confirmed by the Rent Control
Tribunal by its judgment and order of August 28, 2000. The respondent preferred
a petition under Article 227 of the Constitution of India which has been
allowed by the impugned judgment and order dated October 31, 2002. The crucial
fact which deserves to be noticed is that for the period February 1, 1992 to
January 31, 1995 the rent due was deposited under the provisions of the Punjab
Act, which proceeding was disposed of by order dated February 12, 1995
permitting the appellant to withdraw the amount deposited by him in Court under
the aforesaid Act.
6. From the facts noticed above it is apparent that the rent for the period
February 1, 1992 to January 31, 1995 was never remitted by the appellant to the
respondent nor was it ever deposited in the Court of the Rent Controller,
though the appellant had deposited the rent for the later period - February 1,
1995 to July 31, 1996 under Section 27 of the Act. Despite service of notice he
did not deposit the rent for the period February 1, 1992 to January 31, 1995 in
the Court of the Rent Controller as provided under the Act. This was despite
the fact that the proceeding under the Punjab Act stood concluded by order of
the Court dated February 12, 1995 permitting the appellant to withdraw the
amount deposited under the Punjab Act on the respondent's refusal to accept the
same.
7. The core question, therefore, which arises for consideration is whether the
appellant defaulted in payment of rent inasmuch as he had not paid or tendered
or deposited the rent for the aforesaid period in the manner required by law.
The question also arises whether the deposit of rent under the Punjab Act can
be construed to be a valid deposit under the Act.
8. Learned counsel for the appellant submitted that since the deposit was made
in accordance with the provisions of the Punjab Act treating the arrears of
rent as debt due to the landlord, there was no default on the part of the
appellant. On the other hand learned counsel for the respondent contended
before us that to avail the benefit of the provisions of the Delhi Rent Control
Act, the arrears of rent should have been deposited or tendered in the manner
and in accordance with the specific provisions of the Act. Deposit made, which
is not in accordance with the procedure expressly prescribed by the Act is not
a valid deposit or tender of rent within the meaning of the Act.
9. Counsel for the parties have relied upon several decisions of this Court in
support of their respective contentions. We may notice the same hereafter.
10. Learned counsel for the appellant placed considerable reliance on a
judgment of this Court in Mangat Rai and another vs. Kidar Nath and others:
(distinguished). That case arose under the East Punjab Urban Rent
Restriction Act, 1949. The tenant had deposited the entire rent due in the
Court of the Senior Sub Judge, Ludhiana under Section 31 of the Punjab Act. In
view of the deposit made the tenant claimed protection under the proviso to
Section 13(2)(i) of the Punjab Urban Rent Act. The landlord in that case placed
reliance on the decision of this Court in Shri Vidya Prachar Trust vs. Pandit
Basant Ram : (referred) and contended that this Court having examined
the provisions of both the Acts came to the conclusion that the Indebtedness
Act was not intended to operate between the landlord and the tenant, nor was
the Court of Senior Sub Judge a clearing house for rent so as to convert it
into a Court of Rent Controller. However, this Court in Mangat Rai (supra) did
not agree with that view and held that Section 31 of the Indebtedness Act
applied even to a tenant who owed money to his landlord by way of rent due. Their
Lordships construed the provisions of Section 13(2)(i) of the Punjab Urban Rent
Act and held that under the proviso to the aforesaid Section the tenant was
required to deposit interest also in order to get protection of the proviso,
hence the tenant was a debtor with a sort of a statutory agreement to pay
interest and therefore squarely fell within the definition of Section 31 of the
Punjab Act. Thus any deposit made by a tenant under Section 31 would have to be
treated as a deposit under the Rent Act to the credit of the landlord and which
will be available to him for payment whenever he likes.
11. The judgment of this Court in Mangat Rai (supra) must be understood in the
factual background of that case and the provisions contained in the Indebtedness
Act and the Rent Act applicable to the parties. It was noticed by this Court
that the Senior Sub Judge was also functioning as a Rent Controller in
Ludhiana. Hence any deposit made in his Court by a tenant to the credit of the
landlord to get protection of the Rent Act would have to be treated as a
deposit before the Rent Controller. The amount would have to be deposited by a
challan in the same treasury which was to be operated by the Senior Sub Judge
who was the Rent Controller. This Court also noticed the fact that there was no
provision whatsoever in the Rent Act under which a deposit and could be made by
a tenant before the Controller to the credit of the landlord.
12. We are of the considered view that the judgment in Mangat Rai (supra) is
clearly distinguishable. In that case the Court dealing with applications under
Section 31 of the Indebtedness Act was also the Court of the Rent Controller
and, therefore, in the absence of any provision under the Act for a deposit to
be made by a tenant before the Controller to the credit of the landlord, it
really did not matter if the amount due by way of rent was deposited in the
Court of the Senior Sub Judge empowered to deal with the applications under the
Section 31 of the Indebtedness Act. The consequence would have been different
if the Rent Act itself expressly provided for deposit of arrears of rent in a
manner specified and those provisions were not followed. This becomes
abundantly clear when we notice several subsequent decisions of this Court.
13. In Kuldeep Singh vs. Ganpat Lal and another: (referred) this Court
was concerned with a provision of the Rajasthan Premises (Control of Rent and
Eviction) Act, 1950.Section 19-A thereof provided that a tenant may, apart from
personal payment of rent to the landlord, remit or deposit rent by any of the
modes, namely: (a) he may remit the whole amount by postal order; (b) he may,
by notice in writing, require the landlord to specify bank and account number
into which an amount may be deposited and (c) where the amount remitted by
money order is received back by him under a postal endorsement of refusal or
unfound and when the landlord does not specify the bank and account under, or
that there was a bona fide doubt as to the person or persons to whom the rent
is payable, the tenant may deposit such rent with the Court within the period
specified under the said Act. Sub-section (4) of Section 19-A of the Act under
provided that for the purpose of clause (a) of sub-section (1) of Section 13,
dealing with default in payment of rent, a tenant shall be deemed to have paid
or tendered the amount of rent, if any, due from him, if he had paid, remitted
or deposited the amount of rent by any of the methods specified in sub-section
(3).
14. The Court found that before making the deposit in Court, the tenant had not
remitted the amount by postal order nor had the tenant called upon the landlord
to specify the name of the bank and the account number in which the deposit
could be made. In such a situation this Court held that the tenant could not
avail of the benefit of the legal fiction under Section 13(1)(a) of the Act.
This Court held:
"It is settled law that a legal fiction is to be limited to the purpose
for which it is created and should not be extended beyond that legitimate file.
(See Bengal Immunity Co. Ltd. vs. State of Bihar (SCR at p. 646) (referred).
The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.
3600/- made by him in the Court of Munsif (South), Udaipur, on 29.10.1982, by way
of rent for the months of May 1982 to October 1982, can be treated as a payment
under Section 19-A(3)(c) so as to enable the appellant to say that he was not
in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit
the rent in the court only if the conditions laid down in the said provision
are satisfied. It is the admitted case of the appellant that these conditions
are not satisfied in the present case. The deposit which was made by the
respondent in court on 29.10.1982 cannot, therefore be regarded as a deposit
made in accordance with clause (c) of sub-section (3) of Section 19-A and the
appellant cannot avail of the protection of sub-section (4) of Section 19-A and
he must be held to have committed default in payment of rent for the months of
May 1982 to October 1982. This means that the decree for eviction has been
rightly passed against the appellant on account of default of payment of rent
for the period of six months." *
15. In Jagat Prasad vs. Distt. Judge, Kanpur and others : 1995 (1)
Supp(SCC) 318 (referred) a decree for eviction was passed and one of the
grounds was that the deposit had not been made in Court in accordance with law.
This Court, while holding that the defence of the tenant had not been properly
struck off, upheld the decree of eviction on account of default in payment of
rent. This Court observed:-
"Nevertheless, the defence of the appellant that he had deposited bona
fide the rent in the civil proceeding that would enure to the benefit of the
rent control proceedings is unacceptable to us. Law prescribes the procedure as
to the deposit under U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972. Such a procedure if complied with alone will be a valid
defence to a petition for eviction on the ground of arrears of rent. Therefore,
even accepting the defence the ultimate order of eviction passed against the
tenant will have to be upheld. This means the order of eviction is
sustained."*
16. In M. Bhaskar vs. J. Venkatarama Naidu 4
(referred) a similar provision under the A.P. Buildings (Lease, Rent and
Eviction) Control Act, 1960 came up for consideration before this Court as was
considered in Jagat Prasad vs. Distt. Judge, Kanpur and others (supra). This
Court while upholding the decree for eviction observed that there is an
obligation on the tenant to pay the rent regularly and went on to observe:-
"If he does not do so, he commits willful default. If he finds that the
landlord is evading the payment of rent, procedure has been prescribed under
Section 8 of the Act to issue notice to the landlord to name the bank and if he
does not name the bank, the tenant has to file an application before the Rent
Controller for permission to deposit the rent. The appellant did not avail of
that remedy. The omission to avail of the procedure under Section 11 do not
disentitle the landlord to seek eviction for willful default." *
17. In Ram Bagas Taparia vs. Ram Chandra Pal : (referred) this Court
considered the provisions of the West Bengal Premises Tenancy Act, 1956. The
Act provided that payment or deposit of rent shall be made by the 15th of the
succeeding month. In that case the tenant claimed benefit of Section 17(4) of
the Act. The High Court held that the tenant could not claim such benefit in view
of the fact that in order to claim the benefit of Section 17(4) of the Act, the
tenant was required to comply with the term of Section 17(1) and follow the
procedure laid down therein. Since he had not deposited the entire arrears of
rent under Section 17(1) within one month of the service of writ of summons on
him or from the date of his appearance in the suit in the court or with the
Controller, the appellant was not entitled to claim any benefit under Section
17(4) of the Act. It was further observed that if indeed the tenant wanted to
claim benefit under Section 17(4), he should have withdrawn the invalid
deposits made in the office of the Rent Controller and deposited the amount
afresh in terms of Section 17(1) of the Act. Upholding the view of the High
Court this Court observed:-
"From what has been stated above it may be seen that the appellant's
contention that he had personally tendered the rent for January 1966 in the
first week of February 1966 to the respondent has not been accepted by the courts
below or by the High Court. This finding being one of fact rendered on
appreciation of evidence, its correctness cannot be re-agitated by the
appellant in this appeal by special leave under Article 136 of the Constitution
of India. By reason of this position, it follows that the remittance of the
rent for January 196 through money order on February 26, 1966 and the deposit
made later on March, 19, 1966 would not constitute valid payments of rent under
the Act so as to absolve the appellant of the charge of having committed
default in payment of rent. It has further been found that if the appellant had
wanted to avail the benefit of Section 17(4) of the Act, he should have made a
fresh deposit of the rent in accordance with the terms of Section 17(1) of the
Act. Admittedly, the appellant had not made any such deposit. It, therefore,
follows that the appellant would not be entitled to claim benefit under Section
17(4) of the Act." *
18. In E. Palanisamy vs. Palanisamy (Dead) by Lrs. and others: 7 (referred)the provisions of T.N. Buildings (Lease and
Rent Control) Act, 1960 came up for consideration. The requirement of the Act
was somewhat similar to the Rajasthan Rent Act and the A.P. Rent Act considered
by this Court in Kuldeep Singh vs. Ganpat Lal and another (supra) and M.
Bhaskar vs. J. Venkatarama Naidu (supra). Reiterating the view in Kuldeep Singh
vs. Ganpat Lal and another (supra) and M. Bhaskar vs. J. Venkatarama Naidu
(supra) this Court observed:
"The rent legislation is normally intended for the benefit of the
tenants. At the same time, it is well settled that the benefits conferred on
the tenants through the relevant statutes can be enjoyed only on the basis of
strict compliance with the statutory provisions. Equitable consideration has no
place in such matters. The statute contains expression provisions. It
prescribes various steps which a tenant is required to take. In Section 8 of
the Act, the procedure to be followed by the tenant is given step by step. An
earlier step is a precondition for the next step. The tenant has to observe the
procedure as prescribed in the statute. A strict compliance with the procedure
is necessary. The tenant cannot straight away jump to the last step i.e. to
deposit rent in court. The last step can come only after the earlier steps have
been taken by the tenant. We are fortified in this view by the decisions of
this Court in Kuldeep Singh vs. Ganpat Lal and M. Bhaskar vs. J. Venkatarama
Naidu. *
Admittedly the tenant did not follow the procedure prescribed under Section
8. The only submission that was advanced on behalf of the appellant was that
since the deposit of rent had been made, a lenient view ought to be taken. We
are unable to agree with this. The appellant failed to satisfy the conditions
contained in Section 8. Mere refusal of the landlord to receive rent cannot
justify the action of the tenant in straight away invoking Section 8(5) of the
Act without following the procedure contained in the earlier sub-sections i.e.
sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered
view that the eviction order passed against the appellant with respect to the
suit premises on the ground of default in payment of arrears of rent needs no
interference." *
19. It will thus appear that this Court has consistently taken the views that
in Rent Control Legislations if the tenant wishes to take advantage of the
beneficial provisions of the Act, he must strictly comply with the requirements
of the Act. If any condition precedent is to be fulfilled before the benefit
can be claimed, he must strictly comply with that condition. If he fails to do
so he cannot take advantage of the benefit conferred by such a provision.
20. Section 26 of the Delhi Rent Control Act, 1958
provides that every tenant shall pay rent within the time fixed by contract,
and in the absence of such contract, by the fifteenth day of the month next
following the month for which it is payable. Every tenant who makes a payment
of rent to his landlord shall be entitled to obtain forthwith from the landlord
or his authorized agent a written receipt for the amount paid to him, signed by
the landlord or his authorized agent. It is also open to the tenant to remit
the rent to his landlord by postal money order. The relevant part of Section 27
of the Act reads as under:-
"27. Deposit of rent by the tenant. - (1) Where the landlord does not
accept any rent tendered by the tenant within the time referred to in section
26 or refuses or neglects to deliver a receipt referred to therein or where there
is a bona fide doubt as to the person or persons to whom the rent is payable,
the tenant may deposit such rent with the Controller in the prescribed manner:
*
Provided that in cases where there is a bona fide doubt as to the person or
persons to whom the rent is payable, the tenant may remit such rent to the
Controller by postal money order.
(2) The deposit shall be accompanied by an application by the tenant containing
the following particulars, namely:-
(a) the premises for which the rent is deposited with a description sufficient
for identifying the premises;
(b) the period for which the rent is deposited;
(c) the name and address of the landlord or the person or persons claiming to
be entitled to such rent;
(d) the reasons and circumstances for which the application for depositing the
rent is made;
(e) such other particulars as may be prescribed.
(3) On such deposit of the rent being made, the Controller shall send in the
prescribed manner a copy or copies of the application to the landlord or
persons claiming to be entitled to the rent with an endorsement of the date of
the deposit.
(4) If an application is made for the withdrawal of any deposit of rent, the
Controller shall, if satisfied that the applicant is the person entitled to
receive the rent deposited, order the amount of the rent to be paid to him in
the manner prescribed." *
21. The Act, therefore, prescribes what must be done by a tenant if the
landlord does not accept rent tendered by him within the specified period. He
is required to deposit the rent in the Court of the Rent Controller giving the
necessary particulars as required by sub-section (2) of Section 27. There is,
therefore, a specific provision which provides the procedure to be followed in
such a contingency. In view of the specific provisions of the Act it would not
be open to a tenant to resort to any other procedure. If the rent is not
deposited in the Court of the Rent Controller as required by Section 27 of the
Act, and is deposited somewhere else, it shall not be treated as a valid
payment/tender of the arrears of rent within the meaning of the Act and
consequently the tenant must be held to be in default. #
22. We are, therefore, satisfied that the High Court was right in holding that
the appellant had failed to pay/tender arrears of rent for the period February
1, 1992 to January 31, 1995. The deposit made under the provisions of the
Punjab Act was of no avail in view of the express provision of Section 27 of
the Act. #
23. It was then faintly submitted before us that the High Court ought not to
have exercised its revisional jurisdiction under Article 227 of the
Constitution of India in view of the fact that the two courts below had
concurrently found in favour of the appellant. The submission is misconceived. This
is not a case where the High Court interfered with concurrent findings of fact.
The High Court interfered because there was a serious error of law committed by
the courts below and as a consequence thereof they failed to exercise
jurisdiction vested in them by law. The exercise of revisional jurisdiction in
a case of this nature cannot be faulted. #
24. We, therefore, find no merit in this appeal and the same is accordingly
dismissed.