SHRI HARI CHAND Vs. SHRI NAND LAL

JUDGEMENT

(1.) This is an appeal under Sec. 39 of the Delhi Rent Control Act, 1958 at the instance of the tenant which is concerned with an order striking out his defence under Sec. 15 (7) of the Act. The order striking out the defence was affirmed in appeal by the Rent Control Tribunal. The circumstances in which the impugned order was passed may now be referred to.

(2.) The order was passed under Sec. 15 (2) of the Delhi Rent Control Act, 1958, dated 9th April, 1970 directing, the tenant to deposit arrears of rent with effect from 1st Oct., 1969 within one month of the date of the order and future rent by the 15th of each succeeding month. The tenant made the deposit of the arrears of rent on 19th May, 1970 at the requisite rate of Rs. 24.00 per month. The rent for May was also included in the deposit, hence the initial deposit was made ten days late. The rent for June, 1970 was sent by money order to the landlord but was refused. The rent for July, 1970 and Aug., 1970 was neither paid nor deposited in Court. This led to an application being moved by the landlord for striking out the defence of the tenant; this application was moved on the 15th Sept., 1970. On 3rd Oct., 1970 the tenant made a deposit of Rs. 72.00 in court representing three months' rent. This was the rent for June, July and Aug., 1970. In reply to the application for striking out the defence the tenant claimed that he had sent the rent for June, 1970 by money order which was refused and he had offered to pay the rent for July and Aug. to the landlord which had also not been accepted. However, in his statement recorded at the hearing of the suit the tenant slated that he had not offered any rent for July and Aug., 1970. The Controller came to the conclusion that the defence had to be struck out on the ground that the tenant had been guilty of wilful defaults and had taken false pleas in reply to the application. On appeal to the Rent Control Tribunal it was held that there was no reasonable explanation for the defaults. As regards.............. the........ deposit of the arrears it was held that there was a clear default of ten days as Rs. 192.00 were deposited on 19th May, 1970 instead of on 9th May. As regards the rent for the month of June, 1970 it was held that as the money order had been sent for this month which had been refused the explanation might be treated as satisfactory. As regards the rent for the months of July and Aug., it was held that the tenant was not justified in assuming that the landlord would not have accepted the same. As there was a failure to explain the delay in the deposit of the rent for July and Aug., 1970 it was held that the defence was liable to be struck out. It was also stated that the order was discretionary and the Controller had exercised his discretion judicially and, therefore, no interference was called for. Against this decision the tenant has now appealed.

(3.) The question I have now to consider is whether there is any ground on which discretion should have been exercised in favour of the tenant. The initial deposit of Rs. 192.00 was made on 19th May, instead of 9th May, 1970. There is, therefore, a clear default of ten days. As regards the rent for June, it has been held that there has been no default. Concerning the rent for July and Aug., 1970 no explanation has been given by the tenant, but, an interesting legal proposition has been urged on behalf of the tenant before me. It is contended that the Tribunal was entirely wrong in concluding that the tenant was not justified in assuming that the landlord would refuse to accept the rent. Reliance for this proposition is based on three decisions which are : (i) Gaurishankar Agarwala Vs. Ganga Prasad, AIR 1949 Patna 192 (ii) Ram Krishna Prasad Vs. Mohd Yahia, AIR 1960 Allahabad 482, and (iii) Venkatrayanim Garu and others Vs. Venkata Subadravamma Jagapathi Bahadur Ganj and Others AIR 1923 PC 26 in the first of these cases, which is a Patna decision. It was held on the interpretation of the Bihar Buildings (Lease, Rent and Evictions Control Act, 1947 that where the tenant is willing to pay the arrears of rent he was protected and it was not necessary that he should send rent to the landlord by money order when he would certainly have refused it. In the second case it was held that if a landlord refused to accept rent he could not lawfully call upon the tenant to pay rent by a notice of demand. In the third case the Privy Council held that where the facts showed that a party would refuse a tender such a tender would have been a mere form and it was not the practice of the Courts to require a person to make such a tender. The contention of the appellant on the basis of these authorities is that once the rent for June, 1970 was refused, the appellant was justified in assuming that the landlord did not intend to accept the rent and it was not necessary to go on sending a money order every month and having the same refused by the landlord. In fact, the contention of the appellant is that the landlord should not have refused the money order of rent for June, 1970 but should have accepted the same. On his refusal, it is contended the landlord could not treat subsequent non-payments of the rent as being defaults. There is some force in the contention of the appellant on this point but I do not agree that this is the correct legal position. The requirements of an order under Sec. 15(2) are that the tenant must deposit or pay the rent to the landlord. The effect of not paying the rent renders the tenant liable to have his defence struck out. I do not consider that the refusal of the landlord to accept the rent for a particular month to be a legitimate excuse for the tenant not to make any further deposits or payment in compliance with the order of the Court. I, therefore, consider that in spite of the aforementioned authorities that there has been a default for the months of July and Aug., 1970.