Citation Codes

Equivalent Citations

citation codes

Case Number

S.A.O No. 120 of 1981

Attorney(S)

Nemo.
For the appellant: Mr. G.S Oberoi, Advocate.

Judges

N.N Goswami, J.

Acts

section 14(1) provisos (a), (c) and (j) of the Rent Control Act.
SECTION 10 GENERAL CLAUSES ACT
provisions of the Delhi land Reforms Act, 1954.
Section 15(1) of the Delhi Rent Control Act
section 14(2) of the Delhi Rent Control Act.
provisions of Order 41 Rule 4
Order 41 Rule 4

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Smart Summary

Summary of Legal Opinion — Goswamy, J.

Factual and Procedural Background

The respondent-landlord filed a petition for eviction under section 14(1) provisos (a), (c) and (j) of the Delhi Rent Control Act. The Additional Rent Controller, by order dated 27.10.1976 under Section 15(1), directed the tenant to pay arrears from 1 March 1974 and to deposit future rent month-by-month on or before the 15th of each succeeding month at Rs. 9 per month. The tenant paid arrears and rent up to March 1977 within the stipulated time. The disputed payment was the rent deposited on 16.5.1977. The Rent Control Tribunal dismissed the tenant's appeal by its judgment dated 6.2.1981 on two grounds: (1) the deposit on 16.5.1977 was beyond the 15th and therefore defaulted under Section 15(1), and (2) the appeal was incompetent because the tenant failed to implead co-tenants within the period of limitation. One co-tenant had died and his legal representatives had been brought on record during proceedings before the Additional Rent Controller; the appellant did not implead the remaining co-tenants in the Tribunal appeal.

Legal Issues Presented

Whether the rent deposited on 16.5.1977 complied with the order under Section 15(1) of the Delhi Rent Control Act, taking into account the applicability of Section 10 of the General Clauses Act when the last day falls on a holiday.
Whether the appeal filed by the tenant was competent despite not impleading co-tenants, particularly in light of authorities relied upon by the Tribunal.

Arguments of the Parties

Appellant's Arguments

The deposit of rent on 16.5.1977 was valid because 14.5.1977 was a second Saturday (holiday) and 15.5.1977 was Sunday, so under Section 10 of the General Clauses Act the act done on the next day when office is open is deemed timely.
The appeal was competent despite non-impleading of co-tenants; reliance should be placed on the principle in Mahabir Prasad v. Jage Ram regarding the appellate court's power under Order 41 Rule 4 to vary or modify a decree where grounds are common.

Respondent's / Tribunal's Position

The rent deposited on 16.5.1977 was beyond the 15th day and therefore not in compliance with the Section 15(1) order — constituting default.
The appeal was incompetent because the appellant failed to implead the other co-tenants within the period of limitation; the Tribunal relied on Choudhry Singh v. Manohar Lal and Invest Imports v. Watkin Mayour Co. in refusing to allow impleadment or condonation of delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Choudhry Singh v. Manohar Lal: A.I.R 1971 S.C 240	Where one of the decree-holders was not impleaded as a respondent, allowing an appeal without impleading may lead to conflicting decrees.	The Tribunal relied on this case to hold the appeal incompetent; the court found it distinguishable on facts and did not apply it to bar the appeal.
Invest Imports v. Watkin Mayour Co. (the citiation of the case is not mentioned)	Not specified in the provided opinion.	The Tribunal relied on this authority to support its view that the appeal was incompetent; the court did not adopt it and did not elaborate further.
Mahabir Prasad v. Jage Ram and others: AIR 1971 SC 742	Appellate court's competence under Order 41 Rule 4 to vary or modify a decree when one of several persons against whom a decree was made on a common ground appeals, even if other jointly interested persons are not impleaded or their heirs are not on record.	The court regarded this as direct authority and applied its principle to hold that the appellant's appeal was competent despite non-impleading of the other co-tenants.

Court's Reasoning and Analysis

The court addressed the two grounds on which the Tribunal dismissed the appeal. First, regarding the late deposit, the court noted that 14.5.1977 was a second Saturday (holiday) and 15.5.1977 was Sunday; therefore, under Section 10 of the General Clauses Act an act done on the next open day (16.5.1977) is deemed timely. The Tribunal and the Additional Rent Controller had not considered Section 10; the court held the deposit of 16.5.1977 valid and not a default.

Second, on the competence of the appeal for failure to implead co-tenants, the court examined the authorities relied upon by the Tribunal. It found Choudhry Singh distinguishable on facts and invoked Mahabir Prasad v. Jage Ram as the direct authority establishing the appellate power under Order 41 Rule 4 to deal with appeals brought by one of several persons where the ground is common. Applying that principle, the court concluded the Tribunal's view was incorrect and that the appellant's appeal was competent.

The court also recorded that the respondents and their counsel did not appear for the resumed hearing, so the court proceeded without their submissions.

Holding and Implications

APPEAL ALLOWED; EVICTION PETITION DISMISSED.

Consequences: The tenant's deposit on 16.5.1977 is held valid under Section 10 of the General Clauses Act; the appeal was held competent under the principle in Mahabir Prasad (Order 41 Rule 4), and the eviction petition is dismissed because the appellant is entitled to the benefit of section 14(2) of the Delhi Rent Control Act. The parties are left to bear their own costs due to non-appearance of the respondents. The opinion does not discuss broader precedent-setting implications beyond applying existing authority.

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Rajinder Kumar v. Ravel Singh .

Goswamy, J.:— This second appeal by the tenant it directed against the judgment dated 6.2.1981 passed by the Rent Control Tribunal, Delhi whereby his appeal was dismissed on two grounds. Firstly, on the ground that he had failed to comply with the order passed under Section 15(1) of the Delhi Rent Control Act inasmuch as he had deposited the rent for the month of April, 1977 on 16th May, 1977 while he was expected to deposit the same on or before 15th of May, 1977. The second ground being that the appeal filed by him against the order of the Additional Rent Controller was incompetent inasmuch as he had failed to implead co-tenants within the period of limitation.

2. The respondent-landlord instituted a petition for eviction of the tenant under section 14(1) provisos (a), (c) and (j) of the Rent Control Act. It is not necessary to deal with clauses (c) and (j) because the same were decided against the landlord and were not pressed before the Rent Controller Tribunal. During the course of proceedings, the Additional Rent Controller passed an order on 27.10.1976 under Section 15(1) of the Act directing the tenant to pay or deposit the arrears of rent from 1st March, 1974 upto the date of the order at the rate of Rs. 9/- per month within one month and further to continue to pay or deposit the future rent month by month by the 15th of each succeeding month at the same rate. In compliance with the said order, the tenant deposited the arrears of rent on 26.11.1976, which was admittedly within the stipulated time. The rent upto March 1977 was also admittedly paid within the time stipulated. The dispute is only regarding the rent paid on 16.5.1977 and from this date, it was concluded by the Additional Rent Controller as also by the Tribunal that the rent having been deposited beyond the 15th day of the month was obviously not in accordance with the order and as such, there was a default.

3. It has been brought to my notice that 14.5.1977 was a second Saturday and thus a holiday and 15.5.1977 being Sunday, the rent could not be deposited on 16.5.1977 The learned Tribunal as also the Additional Rent Controller have not taken into consideration the provisions of Section 10 of the General Clauses Act according to which if the last day happens to be a holiday, the act done on the next day would be considered to have been done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open. 15th May, 1977 being Sunday, the deposit made on 16.5.1977 has therefore to be held as valid.

4. As regards the second ground, it is not disputed that the decree of eviction was passed against the appellant and four others. One of those four persons has since died and his legal representatives were also brought on record when the proceedings were pending before the Additional Rent Controller. The appellant while filing the appeal before the Tribunal did not implead the other three persons and the legal representatives of the fourth co-tenant and he instituted the appeal only against the landlords. The Tribunal, relying on a judgment in the case of Choudhry Singh v. Manohar Lal: A.I.R 1971 S.C 240 and in the case of Invest Imports v. Watkin Mayour Co. (the citiation of the case is not mentioned) held that the appeal filed by the appellant was imcompetent and there was no ground to allow the application for bringing on record those persons and for condonation of delay. The said applications were also dismissed. The case decided by their Lordships of the Supreme Court referred to above is clearly distinguishable on facts from the present case inasmuch as in that case one of the decree-holders was not impleaded as a respondent and in that situation, it was held that there will be conflicting decrees in case the appeal is allowed to be proceeded with without impleading one of the decree-holders. The provisions of Order 41 Rule 4 and no application to the facts of that case. The direct authority, in my opinion, is “Mahabir Prasad v. Jage Ram and others.” Reported as AIR 1971 SC 742. In this case, Jage Ram and two others were lessees of certain property belonging to Mahabir Prasad and his mother Gunwanti Devi and his wife Saroj Devi. The plaintiffs commenced an action in the court of the Subordinate Judge, First Class, Delhi for Rs. 61,750/- being the amount of rent due by the defendants. The Subordinate Judge, Delhi decreed the suit. The execution of the decree was resisted by the defendants on the plea.” inter alia that the decree was in executable because of the provisions of the Delhi land Reforms Act, 1954. The Subordinate Judge upheld that contention and dismissed the application for execution. Mahabir Prasad alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died in November, 1962 and Mahabir Prasad applied that the name of Saroj Devi be struck off from the array of respondents. The application was allowed. However, the High Court dismissed the appeal holding that because all the heirs and legal representatives of Saroj Devi were not brought on record within the period of limitation as prescribed by the Limitation Act, the appeal abated in its entirety. Against that order an appeal was preferred to the Supreme Court. The Supreme Court in paragraph 5 of the judgment observed as under:—

“Competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondents and on his death his heirs have not been brought on the record. Power of the Appellate Court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order has been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the Subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not implied as parties to the appeal or are impleadey as respondents. The view taken by the High Court cannot therefore be sustained.”

5. In view of this clear pronouncement, I am of the opinion that the view taken by the learned Tribunal was not correct. The appeal filed by the appellant was thus competent.

6. In this case, the arguments commenced yesterday when neither the counsel for the respondents nor the respondent was present and the matter was again listed as part-heard for today that but the situation remains the same. Thus I have not had the advantage of hearing the learned counsel for the respondents.

7. For the reasons recorded above, the appeal is allowed and the eviction petition of the landlord is dismissed as the appellant is entitled to the benefit of section 14(2) of the Delhi Rent Control Act. Since there is no appearance for the respondents, the parties are left to bear their own costs.

Rajinder Kumar v. Ravel Singh .

Summary of Legal Opinion — Goswamy, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's / Tribunal's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rajinder Kumar v. Ravel Singh .

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