AFTAB AHMAD Vs. NASIRUDDIN

JUDGEMENT

(1.) By an order dated 17th December, 1970, the Rent Controller struck out the defence of the respondents under Section 15(7) of the Delhi Rent Control Act, 1958, but stated that this would not affect the rights of the respondents to lead evidence on the question of title and on the question whether there was a relationship of landlord and tenant. On appeal, the Rent Control Tribunal reversed the order and now the appellants have come in appeal under Section 39 of the Delhi Rent Control Act to seek restoration of the order passed by the Controller. The facts on record show that the appellants had applied for ejectment of the respondents some time in August, 1963, and for various reasons, the matter is still pending before the Rent Controller. On 10th June, 1964 an order was passed under section 15 (1) of the Act directing the respondents to deposit the arrears of rent and monthly rent as required by that Section. This order left open the question whether the relationship of landlord and tenant actually existed and stated that the order was being passed without prejudice to the contentions of the respondents that they were not tenants of the appellants. The arrears of rent were deposited on 15th July, 1964, which was five days beyond the period allowed by the order, but as the Courts were closed till that date for vacation, this delay has no legal effect. The deposit of the rent for the months of August, September, October and November, 1964 was made on 17th October, 1964. This deposit in so far as it related to the month of August, 1964 was late by over a month but the deposit for the other months was either before time or not much delayed. Thereafter, the deposit of rent for the subsequent period from 1st December, 1964 to 31st January, 1968 i.e. a period of 38 months, was deposited on 22nd December, 1967. This deposit was obviously very much belated, and normally, it should have led to the striking out the defence of the respondents. However, there are some unusual circumstances to explain why this delay took place. This deposit was made only after the appellants had applied to have the defence of the respondents struck out under the provisions of Section 15(7) of the Act, which was by an application moved on 27th November, 1967. On the making of the deposit for 38 months aforementioned, the appellants moved another application to withdraw the deposited amount and also allowed their application for striking out the defence to be dismissed for non-prosecution. Thereafter, the respondents continued to deposit the rent regularly, but on 12th May, 1970 the appellants again applied for striking out the defence of the respondents on the ground that there had been defaults in complying with the order under Section 15(1). It is clear that the defaults are the same as were mentioned in the previous application, as there were no additional defaults.

(2.) I now come to set out the circumstances which explain why the respondents made such a belated deposit as the one made on 22nd December, 1967. A regular civil suit had been filed by the respondents to challenge the ownership of the appellants which failed in the trial court as well as in the appellate court, and a second appeal was filed in this High Court. Before the Rent Controller, the respondents applied for a stay of the pending eviction petition, on the ground that the questions in dispute as regards title were to be decided in their separate civil suit. The stay was refused by the Controller and a revision petition was filed against the order to the High Court. In that revision (C.R. 185-D of 1965) the respondents applied again for a stay of the proceedings before the Rent Controller and a stay order was passed on 21st Aprii, 1965, which continued to be in force till 15th January, 1970. Thus for nearly five years the proceedings before the Rent Controller were stayed by the orders of the High Court. During this period, the respondents were under the impression that they did not have to make any deposit of rent and occordingly they did not make any deposit of rent before the Rent Controller till 22nd December, 1967. On the other hand, the appellants claimed that the stay order did not amount to a stay of the order directing the deposit of monthly rent, and that is why they moved the application for striking out the defence in November, 1967. This led to the deposit of the rent being made by the respondents. The appellants thereafter withdrew that amount and let their application for striking out the defence to be dismissed for non-prosecution. Thereafter, the respondents made the deposit of monthly rent for three years regularly and within time before the second application for striking out the defence was moved on 11th May, 1970. I am now told that the deposits of rent have also been made regularly right upto date, which means that the respondents have made the deposits regularly upto-date and the only defaults that can be found, are the defaults which occurred before December, 1967 which were also the defaults mentioned in the previous application for striking out the defence.

(3.) The Rent Control Tribunal has decided in favour of the respondents on two grounds. Firstly, it was satisfied that the default occured because the respondents were under a mistaken belief that they were not required to deposit th3 rent because of the stay of proceedings, ordered by the High Court. The Controller found this substantiated from the fact that as soon as the application was moved under section 15(7) they deposited the entire rent and thus showed that they did not want to withhold the arrears of rent deliberately. Furthermore, it held that the failure of the first application dated 27th November, 1967 under Section 15(7) of the Act which was not pressed, followed by the subsequent application dated 17th December, 1968 for permission to withdraw the amount showed that this very claim had not been pressed earlier by the present appellants. For these reasons, the order of the Rent Controller striking out the defence was set aside.