The court emphasized the importance of timely payment or tender of arrears of rent under Section 14(1)(a) of the Delhi Rent Control Act, 1958 and clarified the limited scope of Article 227 petitions after the repeal of the provision for second appeal.

Valmiki J. Mehta, J (Oral):

Caveat No. 712/2014

Counsel appears for the caveator. Caveat stands discharged

CM(M) No. 772/2014 & CM No. 13659/2014 (stay)

1. This is a petition filed under Article 227 of the Constitution of India impugning the concurrent judgments of the courts below; of the Rent Controller Tribunal dated 30.5.2014 and the Additional Rent Controller dated 2.7.2010; by which the eviction petition filed by the respondents (legal heirs of original landlord Nenu Mal) under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (in short ‘DRC Act’) has been decreed.

2. The facts of the case are that the petitioner was a tenant of the suit/tenanted premises comprising of a basement of approximately 800 sq. ft. in the property no. II-D/41-B, Lajpat Nagar, New Delhi at a rent of Rs. 800/-per month under a rent deed dated 9.4.1987. The rent was subsequently enhanced to Rs.880/-per month w.e.f January, 1996. Sh. Nenu Mal/landlord served a legal notice dated 14.5.1996 to the petitioner/tenant to pay the arrears of rent w.e.f 1.2.1996, but since according to the respondent/landlord the legal notice was not complied with by paying or tendering the rent within a period of two months, the subject eviction petition was filed.

3. It may at this stage be noted that the defence of the petitioner/tenant was struck off vide order dated 6.10.2005 on account of non-compliance of the order to pay pendente lite rent under Section 15(1) of the DRC Act passed on 29.7.2004. The petitioner/tenant has therefore led no evidence. Also in this regard it must be noted that there cannot be such cross-examination in a case where defence has been struck off which cross examination will amount to allowing a tenant to lead evidence on a defence which does not exist on account of defence being struck off.

4. Respondent/landlord examined two witnesses PW1 and PW2 and proved case of non-payment of rent. The rent deed was proved as Ex.AW1/2 showing rent at Rs.800/- per month, the notice by which rent was increased by 10% as permitted by Section 6-A and 8 of the DRC Act is dated 6.1.1996 and was proved as Ex.AW1/16, and the postal receipt and AD card with respect to the notice are exhibited as Ex. AW1/7 and Ex.AW1/8 respectively. The legal demand notice under Section 14(1)(a) of the DRC Act dated 14.5.1996 has been proved and exhibited as Ex.AW1/9 and the postal receipt and UPC with respect thereto have been proved and exhibited as AW1/10 and Ex.AW1/11. Benefit of Section 14(2) of the DRC Act was not given to the petitioner/tenant on account of non-compliance by the petitioner/tenant of the order dated 29.7.2004 passed for payment of pentente lite rent under Section 15(1) of the DRC Act.

5. A reading of the impugned judgments shows that the relationship of landlord and tenant was admitted. Service of notice under Section 14(1)(a) of the DRC Act dated 14.5.1996 was proved by the respondent/landlord. There is no evidence led by the petitioner/tenant that within a period of two months of service of this notice the petitioner/tenant has paid or tendered the arrears of rent from February 1996 at the rate of Rs.880/-per month to the respondent/landlord. The courts below are therefore totally justified in decreeing the eviction petition for non-payment of rent under Section 14(1)(a) of the DRC Act.

6. I may at this initial stage observe that there was a provision of second appeal under Section 39 of the DRC Act, 1958 as per which second appeals could be filed on substantial questions of law but that provision stood repealed by Act 57 of 1988. Once the provision of second appeal is repealed by the legislature, petitions under Article 227 of the Constitution of India cannot be filed as a substitute for a second appeal under a repealed provision of Section 39 of the DRC Act. This I am so stating because if the scope of Section 39 was limited, then after the repeal of that section, petition filed under Article 227 of the Constitution of India has to dea