JUDGMENT
Usha Mehra, J.
1. The short point involved in this appeal is
whether the Rent Controller can pass a composite order
short the Act) as well as eviction order under Section
14(1)(a) of the said Act.
2. Briefly stated the facts are the Ajay
Chadha and others sought eviction of M/s Globetech
Engineers, appellants herein on the ground of non-payment
of rent. The appellants are in occupation of premises
No. 208, Pragati House, 47-48, Nehru Place, New Delhi on a
monthly rent of Rs. 2,100/-. When despite service of
notice the appellants did not pay the arrears of rent,
petition for eviction was filed. Appellants despite
service did not put in appearance, therefore, proceeded
ex-parte. Ex-parte order was passed under Section 15(1)
of the Act on 15th September, 1984 with a direction to
pay the entire arrears at the agreed rate of rent payable
from 1st June, 1983 within one month from the date of the
order, failing which it was Further ordered that there
will be deemed eviction of the appellant from the
premises in question. Application filed by the appellant
under Order 9 Rule 13, Code of Civil Procedure (in short
CPC) was dismissed.
3. It is against the order of dismissal that
the present appeal was preferred inter alia, on the
ground that composite order is bad in law. Since there
were conflicting decisions of our own High Court as well
as other High Courts, therefore, one of us (Usha Mehra,
J.) in order to get the matter resolved, referred this
matter to be placed before a larger bench vide order
dated 21st March, 1997. Now, the matter has come before
this division bench.
4. Mr. Vijay Kishan jaitely to support his
contention that the composite order passed by the Rent
Controller Under Section 15(1) and Under Section 14(1)(a) of the Act is
invalid and illegal placed heavy reliance on the decision
of Supreme Court in the case of Chinnamarkathian alias
Muthu Gounder and another (in C.A. No. 2197 of 1969),
Chinna Gounder and Anr. (in C.A. No. 2198 of 1969) and
Raja Gounder and Anr. (in C.A. No. 2199 of 1969)
v. Ayyavoo alias Periana Gounder and Ors., . In that case the Apex Court was
dealing with the provisions of Tamil Nadu Cultivating
Tenants Protection Act (25 of 1955), and provisions of
Sub-section 4(b) of Section 3 of the said Act. The Apex
Court came to the conclusion that the provisions of the
Act do not contemplate passing of a composite order and
observed as under:-
“that the language employed in that sub-section
was self-evident. After the application is
received and parties are summoned and
representations are head, the court must
determine whether the cultivating tenant is in
arrears of rent. If the answer is in the
affirmative, it has to determine the arrears in
terms of its money value. Thereafter, the
Revenue Divisional Officer must ascertain
relative circumstances must be
relatable to the need of the landlord for
prompt payment and the present prevalent
circumstances of the tenant relatable to the
paying capacity.”
5. Reliance was also placed on the decision
of our own High Court in the case of H.P. Vaid v.
S.K.R. Bhandari (Delhi), S.A.O. No. 228 of 1977 where the
composite order for deposit of rent as well as eviction
on the failure to deposit of rent as well as eviction
on the failure to deposit was held to be illegal and not
sustainable. The learned Single Judge of this court
while coming to this conclusion relied the decision of
Supreme Court in the cases of Chinnamarkathian alias
Muthu Nath and another etc. (Supra) and Ram Murti v. Bhola Nath and another, . Another
Single Judge of this court in the case of Mohinder Singh
v. Lajwanti, 1976 Rajdhani Law Reporter (Note) 66 at page
62 held that Rent Controller had no power to order
eviction on anticipatory default. IN that case the
Tribunal passed a composite order subject to condition
that eviction would stand cancelled on deposit of money.
The Court held that such an order was not legal.
Similarly in the case of Debi Ram v. Devi Chand, 46 (1992)
Delhi Law Times 705, this court held that composite
notice is neither legal nor maintainable. Another bench
of this court in the case of Prime Industries v. Rafeeq
Ahmed, 1997 III AD (Delhi) 898 Look the same view. In
the case of B.R. Mehta v. Atam Devi, 1989(1) Delhi
Lawyer 58, the court while dealing with a similar
proposition as to whether composite order under Section
15 and of eviction could be passed by the Rent
controller thereby directing the eviction of the tenant
if arrears are not paid within the stipulated period.
After analysing the various provisions of the Act, the
court concluded as under:-
“that the Controller cannot invoke the
provisions of Section 15(7) at the time when an
order under Section 15(1) is being passed.”
6. While coming to this conclusion the
learned Single Judge placed reliance on the decision of
the Supreme Court in Chinanamar kathian’s case (Supra).
7. Countering these arguments Mr. Vijay Kishan
Makhija, Sr. Advocate contended that no fault can be found
in a composite order. It is a valid order. He, however,
contended that Supreme Court’s decision in
Chinanamarkathian’s case (Supra) is distinguishable
because in that case Apex Court was dealing with Tamil
Nadu Cultivating Tenants Protection Act (25 of 1955)
whereby Section 3 of the said Act placed an embargo on
the eviction of a cultivating tenant and the protection
extended to rendering a decree or order of a court for
eviction nugatory. It was only because of the enabling
provisions of Section 4 of Section 3 that enables the
landlord to seek eviction of a cultivating tenant on the
grounds which are available to him under the Act. Clause
(b) of Sub-section (4) of Section 3 lays down the
procedures to be followed by the Revenue Divisional
Officer at the time of granting the order. Hence the
Revenue Divisional Officer in view of the specific
provision provided under the Act could not pass composite
order. But such provisions are missing under the Delhi
Rent Control Act, therefore, the judgment in
Chinanamarkathian’s case (Supra) is distinguishable on
facts as well as in law.
8. Mr. Vijay Kishan Makhija, in aid of his
arguments that a composite order is valid, placed
reliance on the following decisions of this court namely
(1) Mebrose Ice Cream v. Jaswant Rai, 1979 (2) RCR page
95; (2) Chatter Singh v. Banarsi Lal, 1976 RCR 61; (3)
Bhoj Dutta v. Brin Narain Bagai, 1972 FCR page 142; (4)
Dharam Pal & Sons v. Shri Parmeshwari Dass, 1981 (2)
All India Rent Control Journal 408; and (5) Kulwant Kaur
v. Jeewan Singh vide SAO No. 91/71 decided on 25th
October, 1971.
9. In order to appreciate the contentions
raised by the counsel for the parties, let us understand
the provisions of the Rent Control Act and in particular
Sections 15(1), 15(7), 14 and (1)(a) which are
reproduced as under:-
” Section 15(1)
In every proceedings of the recovery of
possession of any premises on the ground
specified in Clause (a) of the proviso to
Sub-section (1) of Section 14, the Controller
shall, after giving the parties an opportunity
of being heard, make an order directing the
tenant to pay to the landlord or deposit with
the Controller within one month of the date of
the order, an amount calculated at the rate of
rent at which it was last paid for the period
for which the arrears of the rent were legally
recoverable from the tenant including the
period subsequent thereto up to the end of the
month previous to that in which payment or
deposit is made and to continue to pay or
deposit, month by month, by the fifteenth of
each succeeding month, a sum equivalent to the
rent at the rate.”
” Section 15(7)
If a tenant fails to make payment or deposit as
required by this section, the Controller may
order the defense against eviction to the struck
out and proceed with the hearing of the
application.”
” Section 14 Protection of tenant against
eviction. – (1)
Notwithstanding anything to the contrary
contained in any other law or contract, no
order or decree for the recovery of possession
of any premises shall be made by any court or
Controller in favor of the landlord against a
tenant:
Provided that the Controller may, on an
application made to him in the prescribed
manner, make an order for the recovery of
possession of the premises on the ground
namely:-
Section 14(1)(a)
(a) that the tenant has neither paid nor
tendered the whole of the arrears of the rent
legally recoverable from him within two months
of the date on which a notice of demand for the
arrears of rent has been served of him by the
landlord in the manner provided in Section 106
of the Transfer of Property Act, 1882 (4 of
1882);
10. The cumulative effect of the reading of
the above provisions of the D.R.C. Act would reveal that
the Controller can invoke the provisions of Section 15(7)
only after he has passed an order under Section 15(1)
meaning thereby that the Controller has first at point of
time come to a conclusion that the party i.e. the tenant
has not paid the rent as claimed by the landlord, and
after hearing the parties give direction to the tenant to
pay to the landlord or deposit in the court the amount
due at the agreed rate of rent with further direction
that he will go on paying month by month the sum
equivalent to the rent at the rate. After having passed
such an order, the Controller has to give reasonable time
and that time is also stipulated under Section 15(1) of
the Act i.e., one month from the date of the order for
the compliance of that order. It is only after the
expiry of one month when the order is not complied with,
the Controller can pass order under Section 15(7) of the
Act. Therefore, reading of these two provisions makes it
clear that the decree of eviction on account of
non-payment of arrears of rent is to take effect is the
future on the happening or non-compliance of the
direction given by the Controller under Section 15(1) of
the Act. Therefore, the composite notice directing to
pay the arrears of rent within one month failing which
eviction will take automatically effect on a default to
occur in future is neither envisaged nor stipulated by
the Act itself. We find that observation of the learned
Single Judge in the case of B.R. Mehta (Supra) is based
on sound reasoning. The Controller cannot invoke the
provisions of Section 15(7) of the Act simultaneously
while passing the order under Section 15(1) of the Act
because the occasion for the Controller to exercise his
jurisdiction under Section 15(7) of the Act is to arise
only on the happening when the tenant fails to make
payment or deposit as required under Section 15(1) of the
Act. The jurisdiction of the Controller to strike off
defense of the tenant under Section 15(7) of the Act will
take place only after the eventuality of non-compliance
of the order under Section 15(1) of the Act arises, which
is a future event. In this view of the matter if the
composite order is passed, in that case the Controller
will be depriving the tenant of his right to contest his
eviction under Section 14(1)(e). By passing a composite
order the Controller becomes functus officio because of
non-payment by the tenant eviction will automatically
follow and that is not the import of the Act. the
legislature in its wisdom never envisaged that the
eviction is to follow automatically. On each
application, the Controller has to apply his mind on the
basis of the facts available on record. Moreover, if the
order under Section 15(1) and 15(7) of the Act are passed
simultaneously, the Controller will be deprived to extent
the time beyond one month which otherwise in view of the
settled position of law the Controller has power keeping
in view the facts and circumstances of a case to extent
the time for making payment of rent beyond one month. It
is so held by the Apex Court in the case of Jain
Motor Car Co., Delhi v. Smt. Swamy Prabha Jain and Anr., . But if the composite order is passed
then the tenant will be deprived completely of asking of
the extension even in a case where he can justify the
non-payment within one month. Under Section 15(7) of the
the court and satisfy it as to why his defense should not
be struck off. If the court is satisfied with the
explanation given by the tenant, it can extend the time
for paying or depositing the arrears of rent as ordered
by the Court. In that case court need not strike off his
defense. This exercise the court will carry out only
after the default has been committed and not earlier.
Therefore, if the composite order is held to the valid
then the right of the tenant in this regard will be
completely taken away. the effect of the composite order
is that it takes away the discretionary powers of the
Controller.
11. Admittedly the learned Single Judges of
this court prior to H.P. Vaid’s case (Supra) were
following the view that the composite order is
permissible. In mebrose Ice Cream’s case (Supra), the
learned Single Judge expressed the view that by the
strict letter of law, after making an order under Section
15(1) of the Act, the Controller must wait for a month to
see whether that order is complied with or not. It is
only then that it can be known whether the bar in Section
14(2) is to prevail. He, therefore, observed that the
joint effect of those two Sections is to afford relief to
the tenant where otherwise he is exposed to an order for
recovery of possession. It appears the learned Single
Judge overlooked the provisions of Section 15(7) of the
Act while dealing with that case. Section 15(7) gives a
tenant an opportunity to require the Controller to apply
his mind and to decide whether to order the striking off
of the defense or not. If the tenant justifies and
satisfy the court as to why he could not make payment
within a period prescribed under Section 15(1) of the
Act, the Controller can extend the time and this he is
permissible to do under Section 15(7) of the Act. But on
account of the composite order, the right of the tenant
to contest his eviction under Section 14(1)(a) of the Act
is taken away. Thus, the Controller deprives him of his
valuable right. This is the prejudice which would be
caused if the composite order is passed. No doubt
Chinanamarkathian’s case (Supra) was not under the Delhi
Rent Control Act but we cannot lose sight of the fact
that the provisions of Section 3(4)(b) of the Tamil Nadu
Cultivating Protection Act are pari-materia the same as
Section 15(1) and Section 15(7) of the act. In
Chinanmarkathian’s case (Supra) the Supreme Court held
that the composite order was not legal even though under
Section 3(4)(b) there was no express provision requiring
the Revenue Divisional Officer to once again apply his
mind, after default had been committed whereas Section
15(7) of the Act requires the Controller to apply his
mind while deciding whether to strike off the defense of
the tenant for the default committed by him or to extent
the time for making the payment. Therefore, composite
order which is to take place in future if passed
simultaneously would contravene the provision of the Act,
and therefore, without jurisdiction.
12. Applying the principles of law as laid
down by the Supreme Court in Chinanamarkathian’s case
(Supra), we have no hesitation to hold that the
Controller after having passed the order under Section
15(1) of the Act has to wait for the stipulated period to
expire before he passes the order under Section 15(7) of
the Act because the order under Section 15(7) of the Act
is to take effect on a default to occur in future.
13. In the present case Ajay Kumar Chadha and
others filed eviction petition on the ground of
non-payment of rent with effect from 1st June, 1983. The
respondents/tenants were proceeded ex-parte and Mr. P.C.
Chadha appearing as his own witness (AW-1), proved the
service of demand of notice upon the tenant and also the
rate of rent as Rs. 2,100/- per month. Since the rent had
not been paid with effect from 1st June, 1983, hence the
notice. This statement of Mr. P.C. Chadha remained
unchallenged and unassailed on record. It is in this
background that the learned Additional Rent Controller
ordered to pay the entire arrears @ 2,100/- p.m. with
effect from 1st June, 1983 within one month failing which
order of eviction shall be deemed to have been passed
against the respondents with respect to the premises in
question.
14. In view of the law settled, proposition
of Law as discussed above it can safely be concluded that
the impugned order being a composite order cannot be
sustained. The impugned order is accordingly set aside.
Case is remanded back to the Controller to decide the
same in accordance with Law. Parties are directed to
appear before the Controller on 12.6.2002.