Shanti Prashad Jain (D) Thr.Lrs vs Prakash Narain Mathur

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

7 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

8 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

9 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

10 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

11 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

12 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

13 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.

14

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

15 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

16 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

17 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.

18 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

19 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

20 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

21 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

22 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

23 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."

24

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

25 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

26 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

27 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]

28 New Delhi; ..................................J. April 15, 2009. [AFTAB ALAM]

29