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REPORTABLE
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
JUDGMENT
TARUN CHATTERJEE, J.
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1. Leave granted.
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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")
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of the tenant and consequent thereupon, the
defence of the tenant was struck out.
3. The facts in brief are as follows :-
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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."
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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
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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
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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
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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]
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New Delhi; ..................................J.
April 15, 2009. [AFTAB ALAM]
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