Shanti Prashad Jain
(D) THR.LRS. Vs. Prakash Narain Mathur [2009] INSC 758 (15 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2544 OF 2009 (Arising out
of SLP (C) No. 7430 of 2008) Shanti Prasad Jain (D) Through LRs. ...Appellants
Versus Prakash Narain Mathur ...Respondent
TARUN CHATTERJEE, J.
1.
Leave
granted.
2.
This
appeal is directed against a judgment and order dated 31st of January, 2008
passed by a learned Judge of the High Court of Delhi at New Delhi in CM (Main)
No. 50 of 2005 whereby an application filed under Article 227 of the Constitution
at the instance of the landlord/respondent was allowed and the order passed by
the Additional Rent Control Tribunal, Delhi dated 5th of November, 2004
allowing the tenant's appeal and setting aside the order dated 18th of May,
2004 passed by the Rent Controller, Delhi was set aside whereby the High Court
had allowed the application filed by the landlord/respondent under Section
15(7) of the Delhi Rent Control Act, 1958 (in short `the Act') and rejected the
application for condonation of delay in depositing the rent under Section 151
of the Code of Civil Procedure (in short, "the Code") 3 of the
tenant and consequent thereupon, the defence of the tenant was struck out.
3.
The
facts in brief are as follows :- The landlord/respondent has filed an eviction
petition in respect of Property No.2076, Katra Roshan Dola, Kinari Bazaar,
Delhi (hereinafter referred to `premises in question') against the
tenant/appellant inter alia on the grounds of non-payment of rent and
subletting before the Rent Controller, Delhi. In the eviction petition, an
order was passed under Section 15(1) of the Act by the Rent Controller, Delhi
on 15th of March, 1989 directing the original appellant, Shanti Prasad Jain
(since deceased) to pay or deposit rent @ Rs. 105/- per month with effect from
1st January, 1985 and to continue to pay or deposit at the said rate by 15th of
each succeeding month. Shanti Prasad Jain died on 23rd of May, 1997. During his
lifetime, there was no dispute that the rent was not regularly paid in
compliance with the aforesaid order of the Rent Controller. One of the heirs
and legal representatives of the deceased tenant Shanti Prasad Jain namely,
Sunil Kumar Jain, thereafter filed an application for impleadment in the
aforesaid eviction petition in the year 1995 during the lifetime of Shanti
Prasad Jain before the Rent Controller seeking impleadment on the ground that
he was a member of the HUF of Shanti Prasad Jain and that he was running the
business in the name and style of M/s Vardhman Jewels (India) as a member of
the HUF and that he was not a sub-tenant in respect of the premises in
question. This application was allowed by an order dated 1st of September, 1995
by the Rent Controller, Delhi. Against the aforesaid order, the
landlord/respondent filed a Civil Revision Case No. 1043 of 1995 before the
High Court at Delhi and the High Court had only stayed the eviction proceeding
till the disposal of the Revision Case. It is not in dispute that after the
death of Shanti Prasad Jain (since deceased), the rent was not deposited in
compliance with 6 the aforesaid order passed under Section 15(1) of the Act.
The admitted position in respect of the deposit of rent and default and belated
payment of rent was as follows :- 1) Rent for the period from 23rd May, 1997 to
August, 1999 was deposited on 2/9/1999.
2) Rent for the
period from September, 1999 to September, 2000 was deposited on 27th of March,
2000.
3) Rent for the
period from October, 2000 to March, 2003 was deposited on 27th of September,
2002. Be it mentioned here that deposit of rent for the period from October
2000 to March, 2003 was, however, made at the time when the respondent had
already filed an application under Section 15(7) of the Act before the Rent
Controller, Delhi for striking out the defence of the tenant.
4.
In
view of the aforesaid default and delayed payment of rent for the aforesaid
period, an application under Section 15(7) of the Act for striking out the
defence of the appellants was filed by the landlord/respondent on 3rd of January,
2003. This application under Section 15(7) of the Act filed by the respondent
was opposed by the appellants on the ground that the rent upto 31st of January,
2003 was already deposited before moving the application under Section 15(7)
filed by the respondent and therefore the respondent was not entitled to any
relief on the application under Section 15(7) of the Act. It may be mentioned
herein that no plea was made out by the appellants that they were advised by
their learned counsel not to deposit the rent in compliance with the order
passed under Section 15(1) of the Act as at that time, they were not brought on
record in the eviction proceeding. As noted herein earlier, the application for
striking out the defence of the appellants was filed on 3rd of January, 2003
and after about a year or so, the appellants filed an application for
condonation of delay in depositing the rent for the period as mentioned herein
earlier on the ground that they were advised by their learned counsel who
appeared for the original tenant, Shanti Prasad Jain (since deceased) not to
deposit the rent because they were not brought on record in the eviction
proceeding at that point of time and that the appellants used to deposit the
monthly rent regularly with the clerk of the learned counsel for the appellants
or their predecessor in interest but it was not known why such deposits were
not made.
Believing that the
counsel or his clerk would be taking steps to make the deposit of rent, no
enquiry was made by them either from the clerk or from the counsel as it was
taken by them that the order passed was duly complied with. In the said
application for condonation, it was further alleged that since the eviction
proceeding was stayed by the High Court in Civil Revision Case No.
1043 of 1995 and that
on the death of the original tenant, application was filed for impleadment of
the heirs and legal representatives of the deceased tenant, which was allowed
only on 21st of October, 2002 in the aforesaid Revision Petition, the cause shown
in the application under Section 151 for not depositing the rent in compliance
with the order passed by the Rent Controller must be accepted to be sufficient
cause for condoning the same.
5.
The
Rent Controller, Delhi by an order dated 18th of May, 2004 had rejected the
application for condonation of delay in depositing the rent for the period as
mentioned herein earlier as it was found by the Rent Controller that no
satisfactory explanation was given by the heirs and legal representatives of
the deceased tenant as to why the rent was not deposited month by month by 15th
of each succeeding month as per the order passed under Section 15(1) of the
Act. It was also held that the rent for the period mentioned herein earlier was
deposited collectively for three years in two installments which would clearly
show that the order was not complied with willfully by the heirs and legal
representatives of the deceased. Consequent thereupon, the Rent Controller
rejected the application for condonation of delay filed by the appellants and
allowed the application filed under Section 15(7) of the Act directing the
defence of the appellants to be struck out.
6.
Feeling
aggrieved by this order of the Rent Controller, an appeal was taken by the
appellants before the Additional Rent Control Tribunal, Delhi which came to be
registered as MCA No.302 of 2004 which was allowed by taking a view that
notwithstanding the fact that the succession was not held in abeyance and took
effect immediately upon the demise of the original tenant Shanti Prasad Jain
and in view of the definition of "tenant" under the Act which
includes heirs and legal representatives of the tenant, there was no obligation
on the heirs and legal representatives of the deceased tenant to comply with
the order passed under Section 15(1) of the Act until the heirs and legal
representatives of the deceased tenant were brought on record in the eviction
proceeding. The Additional Rent Control Tribunal further held that since in the
revision case before the High Court challenging the order of impleadment, the High
Court had stayed all further proceedings pending before the Rent Controller on
1st of September, 1995, the Rent Controller was not justified in striking out
the defence of the appellants. It was against this order of the Additional Rent
Control Tribunal, the landlord/respondent filed an application under Article
227 of the Constitution before the High Court of Delhi at New Delhi. The High
Court, by the impugned order, inter alia, held that the Additional Rent Control
Tribunal had gone wrong in failing to appreciate that the application filed by
Sunil Kumar Jain, one of the heirs and legal representatives of the deceased
tenant seeking impleadment as a party respondent on the ground that he was a
member of HUF of late Shanti Prasad Jain and the impleadment application of
Sunil Kumar Jain, as HUF, was allowed by the Rent Controller on 1st of
September, 1995 and that in view of the fact that the High Court had only
stayed all further proceedings in the Civil Revision Case, but had not granted
stay of operation of the order allowing impleadment, it was held that the
Additional Rent Control Tribunal was not correct in holding that merely because
the formal order bringing the legal representatives of late Shanti Prasad Jain
was not passed, the obligation of his heirs and legal representatives to pay
rent stood suspended till they were brought on record as heirs and legal
representatives of the deceased tenant. The impugned order of the High Court
also disclosed that the liability of the heirs and legal representatives of the
deceased tenant to pay or deposit rent in compliance with the order passed
under Section 15(1) of the Act did not absolve the heirs and legal
representatives of the deceased tenant of their obligation to continue to pay
rent after the demise of the tenant. So far as the application filed by the
appellants for condoning the delay in deposit of rent was concerned, the High
Court agreed with the order of the Rent Controller rejecting the said
application and thereby the defence of the appellants was struck out under
Section 15(7) of the Act. Feeling aggrieved by the impugned order of the High
Court, the appellants have come up by way of a special leave petition which on
grant of leave was heard in presence of the learned counsel for the parties.
7.
Having
heard the learned counsel for the parties and after examining the impugned
order including the orders passed by the Additional Rent Control Tribunal,
Delhi and Rent Controller, Delhi and considering the materials on record, we
are of the view that in the facts and circumstances of the present case and in
view of the nature of the explanation offered by the appellants in their
application for condonation of delay, which was not accepted either by the Rent
Controller or by the High Court in the impugned order, we do not find any
ground to interfere with the impugned order of the High Court allowing the
application for striking out the defence of the appellants under Section 15(7)
of the Act and rejecting the application for condonation of delay in depositing
the rent for the periods mentioned herein earlier.
8.
Learned
counsel appearing on behalf of the appellants, at the first instance, contended
that the liability of the appellants to deposit rent in compliance with the
order passed under Section 15(1) of the Act would only arise when the
appellants were brought on record in the eviction proceeding. Therefore,
according to the learned counsel for the appellants, no duty was cast upon the
appellants to comply with the order passed under section 15(1) of the Act till
the appellants were brought on record in the eviction proceeding. If this
position is accepted, and the court finds that the explanation offered by the
appellants for not depositing the rents in compliance with the order passed
under Section 15(1) of the Act must be accepted, the question of striking out
the defence of the appellants under Section 15(7) of the Act cannot arise at
all.
9.
Learned
counsel for the appellants further contended that although some delay in
depositing the rent in compliance with the order of the Rent Controller, Delhi
under Section 15 (1) of the Act was committed either by the original tenant
Shanti Prasad Jain, since deceased, or by his heirs and legal representatives,
namely, the appellants, even then, the entire amount was deposited either by
the original tenant during his life time or by the appellants after they were
brought on record in the eviction proceeding, the High Court ought to have used
its discretion in favour of the appellants by not striking out the defence and
allowed the application for condonation of delay in the matter of deposits
under Section 15(1) of the Act. Therefore, learned counsel for the appellants
contended that the High Court was not justified in not taking a lenient view of
the matter and in not accepting the explanation given by the appellants in
their application for condonation of delay in depositing the rents in
compliance with the order passed under Section 15(1) of the Act. It was further
contended by the learned counsel for the appellants that in the facts and
circumstances of the present case and in view of the admitted fact that the
rents were deposited in their entirety, the explanation offered by the appellants
in their application for condonation of delay, ought to have been accepted and
the application for striking out the defence under Section 15(7) of the Act
ought to have been rejected.
10.
These
submissions of the learned counsel for the appellants were contested by the
learned counsel for the respondent. Learned counsel for the respondent had
drawn our attention to the order of the Rent Controller, Delhi as well as of
the High Court and also of the Additional Rent Control Tribunal to show that even
if deposits were made either by the original tenant (since deceased) or after
the heirs and legal representatives were brought on record in the eviction
proceeding, the default was committed by depositing rents not within the time
contemplated under Section 15(1) of the Act and no proper explanation was given
by the appellants for not depositing the rent in time as it would be evident
from the record that neither the clerk of the leaned counsel for the appellants
nor the learned counsel for the appellants came forward to support the case of
the appellants in their application under Section 151 of the Code. It was also
contended by the learned counsel for the respondent that on the death of the
tenant, the succession of his heirs and legal representatives to the tenancy of
the deceased tenant immediately came into being and, therefore, it was the duty
of the heirs and legal representatives of the deceased tenant to comply with
and deposit rents in compliance with the order passed under Section 15 (1) of the
Act although they were not brought on record in the eviction proceeding.
According to the learned counsel for the respondent, even if it can be presumed
that after the death of the original tenant Shanti Prasad Jain, that is, on
23rd of May, 1997 till the heirs and legal representatives were substituted and
brought on record in the eviction proceeding on 23rd of October, 2002, even
after 23rd of October, 2002 the substituted appellants had failed to comply
with the order passed under Section 15(1) of the Act.
Therefore, the
learned counsel for the respondent contended that the High Court having acted
within its jurisdiction and found that the explanation offered by the
appellants in their application for condonation of delay was not acceptable,
the question of interfering with the impugned order of the High Court striking
out the defence under Section 15(7) of the Act and also rejecting the
application for condonation of delay in deposit of rent would not arise.
11.
We
have carefully examined the submissions so made by the learned counsel for the
parties and examined the impugned judgment as well as the orders passed by the
Additional Rent Control Tribunal and the Rent Controller, Delhi and also the
averments made in the application for condonation of delay and the averments
made by the landlord/respondent in the application under Section 15(7) of the
Act and after carefully examining the same, we are of the view that the learned
counsel for the respondent was fully justified in submitting that no
interference is needed in respect of the impugned judgment of the High Court.
Reasons are as follows :-
12.
The
appellants were guilty of negligent default in depositing the rent in
compliance with the order of the Rent Controller, Delhi, under Section 15(1) of
the Act.
From a bare reading
of the averments made in the application for condonation of delay, it would be
evident that the appellants could not provide any explanation or justification
for such willful default and in fact they have made contradictory statements in
their application for condonation of delay which was not the defence taken by
them in the objection filed to the application under section 15(7) of the Act
filed by the respondent. From a bare reading of the response to the application
under Section 15(7) of the Act filed by the appellants, it is clear that the
appellants had never pleaded that they were acting of the basis of advise given
by the learned counsel nor was it mentioned that the appellants had given the
rent regularly to the learned counsel or his clerk as was subsequently pleaded
in the application for condonation of delay filed by them after more than one
year of the filing of the application under Section 15(7) of the Act. It also
appears from the record that the application for condonation of delay was filed
when the hearing of the application under Section 15(7) of the Act was
concluded and the matter was adjourned for orders on 16th of February, 2004 and
since on 16th of February, 2004, the learned Judge was on leave and the matter
was again deferred to 23rd of February, 2004, only at that stage, that is, on
23rd of February, 2004, the application for condonation of delay was filed at
the instance of the appellants. In view of the above, it can be safely
concluded that the application for condonation of delay was a belated one and
afterthought attempt was made to explain the willful default. That apart, as
noted herein earlier, in the application for condonation of delay, the
appellants, for the first time, contended that they were advised by their
counsel that they were not obliged to comply with the order under Section 15(1)
of the Act, till the appellants were brought on record. Whereas contradictory
stand was taken by them that rent was submitted regularly to their learned
counsel through their clerk to assure that it was duly deposited. That apart,
neither any affidavit from the learned counsel or from his clerk was filed
regarding deposit of rent with them nor any details of deposit of money given
to the learned counsel through his clerk was given.
Therefore, in our
view, the explanation, apart from being an afterthought, was clearly bogus and
unworthy of any credence. As noted herein earlier, the order passed under
Section 15(1) of the Act was passed by the Rent Controller, Delhi on 15th of
March, 1989 directing the original tenant to pay or deposit rent at the rate of
Rs.105/- per month w.e.f. 1st of January, 1985 and to continue to pay or
deposit the rent at the aforesaid rate by 15th of each succeeding month. It
also appears from the record that in the year 1995, one of the sons of the
deceased tenant Shanti Prasad Jain, who is now appellant No.2, had filed an
application for impleadment in the eviction petition on the ground that he was
a member of HUF of the original tenant Shanti Prasad Jain and he was in fact
running a business in the name and style of M/s.Vardhman Jewel (India) as a
member of the HUF and was not a sub-tenant in respect of the premises in
question. As noted herein earlier, the aforesaid son, namely, Sunil Kumar Jain,
was impleaded by an order dated 1st of September, 1995 against which, a
revision petition was filed by the landlord/respondent before the High Court
which only stayed all further proceedings in the eviction proceeding. As noted
herein earlier, Shanti Prasad Jain, the original tenant died on 23rd of May,
1997 and after his death, the rent was admittedly not paid in compliance with
the order dated 15th of March, 1989 under Section 15(1) of the Act. Therefore,
in view of our discussions made herein above, we do not find any possible
ground to interfere with the judgment of the High Court. While rejecting the
explanation offered by the appellants in the application for condonation of
delay which was duly considered by the High Court and the High Court came to a
positive finding in the following manner :- "The application seeking
condonation of delay was not supported by the affidavit of the counsel who is
alleged to have received the rent from the respondents from time to time and
failed to deposit the same in the Court and is also alleged to have tendered
the advice that the rent need not be paid or deposited till the respondents are
brought on record. No action appears to have been taken against the counsel
before the Bar Council complaining about his aforesaid conduct. I may note that
though it was stated by the respondents in their reply to the application under
Section 15(7) of the Act that they had taken action against the counsel, no
details thereof were furnished before the Lower Court and none have been
furnished even before me. Thus, the respondents have failed to disclose what
action has been taken by them against their erstwhile counsel. This belies
their stand with regard to the legal advise allegedly given by their counsel
and also the stand that they had tendered the rents regularly to their counsel
who failed to deposit the same in court."
13.
In
view of the aforesaid findings of the High Court and in view of our discussions
made hereinabove, we are of the view that the High Court was fully justified
and within its jurisdiction to reject the application filed by the appellants
for condonation of delay in the matter of deposit of rent in compliance with
the order passed under Section 15(1) of the Act, even if the entire amount of
rent defaulted by the appellants or by their predecessor-in-interest was
subsequently deposited in the office of the Rent Controller.
14.
In
this connection, we may refer to two decisions of this Court in the case of
Jain Motor Car Co. Delhi vs. Swayam Prabha Jain (Smt.) by Anr. [1996 (3) SCC
55] and Aero Traders (P) Ltd. vs. Ravinder Kumar Suri [2004 (8) SCC 307]. So
far as Jain Motor Car case (supra) is concerned, this Court has held that
striking out the defence under Section 15(7) of the Act in paying or depositing
the rent in compliance with the order passed under Section 15(1) of the Act is
discretionary in nature and in appropriate cases having regard to the facts and
circumstances, it is open to the Rent Controller to exercise his power to
condone the delay in deposit of rent. It was also held in that decision that
the Rent Controller at the same time is entitled to strike out the defence if
the Rent Controller finds that default in deposit of rent was willful default
and, therefore, the Rent Controller is conferred with the power to exercise his
discretion to strike out the defence under Section 15(7) of the Act. So far as
Aero Traders (P) Ltd. case (supra) is concerned, a Three-Judge Bench of this
Court similarly laid down that the power to strike out the defence under
Section 15(7) of the Act was discretionary in nature. Keeping in mind the
principles laid down by this Court in the aforesaid two decisions, which
clearly say that the power of the Court either to strike out the defence under
Section 15(7) or to reject the application for condonation of delay in deposit
of rent was discretionary in nature, we examined the impugned order of the High
Court and the statements made in the applications and the findings arrived at
by the High Court, we do not find any ground that the High Court had failed to
exercise its discretion in favour of the tenant for not condoning the delay in
depositing the rent and therefore, it was open to the High Court not to use its
discretion in favour of the tenant in rejecting the application for condonation
of delay and accordingly, the discretion used by the High Court in favour of
the landlord/respondent to strike out the defence under Section 15(7) of the
Act was perfectly justified.
15.
That
apart, the High Court in the impugned order has also considered that the
appellants had failed to explain as to why the deposits made for the period
from 23rd of May, 1997 to 27th of September, 2002 were so deposited belatedly
and deposited the same in lumpsum only on three occasions.
16.
In
view of such discretion having been exercised by the High Court as well as the
Rent Controller in favour of the landlord/respondent which, in our view, cannot
be held to be arbitrary or unjust, we are unable to interfere with the impugned
judgment of the High Court.
17.
Before
we conclude, we may also take into consideration the maintainability of the
appeal before this Court as we find that the appellants had failed to implead
one Shri Prakash Chandra Khatri and Shri Mahesh Chand Khatri, owners of the
property in question having purchased the same from Respondent No.1 as
respondents despite the fact that the said parties were impleaded in the
eviction proceeding before the Rent Controller as well as in the High Court
from which the appeal arises.
18.
For
the reasons aforesaid, we do not find any merit in this instant appeal and the
appeal is thus dismissed.
There will be no
order as to costs.
.................................J.
[TARUN CHATTERJEE]
New
Delhi;
..................................J.
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