Jaspal Singh, J. (Oral):— This revision petition raises a question which is increasingly haunting the landlords as well as the tenants of such premises as are seemingly beyond the pale of the Delhi Rent Control Act.
2. As we all know, nothing in the Delhi Rent Control Act applies to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees. Suits, therefore, are filed depending upon whether the Delhi Rent Control Act is applicable or otherwise.
3. In November 1991, the petitioner, claiming himself to be the owner-landlord of the suit premises filed a suit for possession and recovery of rent for the months of April and May 1991 at the agreed rate of Rs. 3800 per month besides damages at the rate of Rs. 5000 per month with effect from June 1991.
4. In December 1991 the petitioner moved an application under section 151 of the Code of Civil Procedure for direction to the respondent-tenant to deposit arrears of rent with effect from April 1991 and thereafter to continue depositing rent month by month by the 7th of each succeeding month. The respondent-tenant contested the application and took the plea that no order as prayed for, could be passed.
5. The learned Additional District Judge who was seized of the matter dismissed the application by his order dated July 27, 1992. He observed:
“. .. . since the question of damages at Rs 5000 p m as well as the alleged rent at the rate of Rs. 3800 p.m are both disputed, no order on the application can be passed as the same is likely to prejudice the defendant.”
Hence this civil revision by the landlord
6. Before I proceed to deal with the merits, I may mention that the respondent-tenant did not put in appearance despite service and as such I did not have the benefit of counsel from that side.
7. I may say at the outset that I do tend to agree with the learned counsel for the petitioner that the learned trial judge ought to have devoted more attention to the issue raised and the facts involved. Even a cursory look at the application would have shown that the petitioner-landlord had not sought any order at the rate of Rs. 5000 per month. Rather, he took a categorical stand that for the purpose of the application he was praying for an order only at the agreed rate of rent that is, at the rate of Rs. 3800 per month. This is amply borne out not only from the tenor of the application but also from the two prayers made which run as under:
“(i) that the defendants be directed to deposit a sum of Rs. 26,600 (sic) being a total arrear of rent with the plaintiff payable by defendant since April 1991 to December, 1191,
(ii) to direct the defendant to deposit by 7th of each month, the monthly accepted rent of Rs. 3800 for the premises in question to the plaintiff.”
8. An equally cursory look at the reply to the application would have made it clear that the respondent-tenant had nowhere disputed the rate of agreed rent. Even the written statement contains clear admission to the effect that the agreed rate of rent is Rs 3800 per month and that rent with effect from April, 1991 is due though adjustment of a sum of Rs 21000 is claimed. This being the position, for deciding the application, what has been claimed as damages was not relevant and as regards the agreed rate of rent, there was no dispute at all. The very bastion of the order of the learned trial Judge thus crumbles to the ground.
9. However, this is not the end of the matter. The question is, can an order of the kind sought by the petitioner be passed? Would such an order not virtually amount to a decree for recovery of rent/mesne profits without there being any decree to that effect? Of course, under the Delhi Rent Control Act, we have section 15 which authorises the passing of such an order. But then, that is a separate matter. Does section 151 of the Code of Civil Procedure invest the court with such power? Can a court award a decree and execute it too without a decision in the garb of section 151?
10. Let me proceed to examine the legal position
11. The first provision which comes to mind is Order 39, Rule 10 of the Code of Civil Procedure which reads thus:
“Where the subject-matter of a suit is money of some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.”
What does it show? It shows that an interlocutory order can be passed in respect of the “subject-matter of a suit' provided the following conditions are fulfilled, namely. (1) the subject-matter of a suit is money or some other thing capable of delivery, (n) the party thereto admits that he holds such money or other thing for another party, or that it belongs or is due to another party.
12. In the case before me, the petitioner has sought a decree for possession as well as for arrears of rent besides damages/mesne profits, however, through the application in question, he has sought an order with regard to past and future rent, though I do feel that even an invitation to an order for mesne profits/damages, would also have made no fundamental difference to the character of the claim for the simple reason that both the claims (for rent or for mesne profits) stem from the use and occupation by one of a property belonging to another. Thus, in a suit like the present one, the subject-matter would be not only for recovery of possession but for money also recoverable for its use and occupation. What is equally important is that whether the claim is for rent or for recovery of money for use and occupation, if the same is due it would be capable of delivery. And, as far as the present case goes, there is not only an admission with regard to the agreed rate of rent but even with regard to the period for which it is due. Thus, as far as the claim with regard to money is concerned, Rule 10 of Order 39 can be invoked, the power to pass an order thus clearly exists. Once it is held that a court has the jurisdiction to pass an order, it matters not whether the application invokes only section 151 of the Code of Civil Procedure failing perhaps inadvertantly, to invoke Rule 10 of Order 39 also.
13. And while I am on the question of jurisdiction, why ignore the principles underlying Order 12. Rule 1 of the Code of Civil Procedure? Does it not empower a court to pass orders and decrees on admission? Is it not a mere extension of the principle underlined by me above? Why should this statutory principle be not applied in a case like the present one?
14. The combined effect of Order 12, Rule 1 and Order 39. Rule 10 of the Code of Civil Procedure is that a court can, in a case of this kind, in fair exercise ot its judicial discretion order for deposit of money pending decision of a suit. Surely, the provisions of section 151 of the Code of Civil Procedure can be invited in laid to cover all such cases as are analogous to these principles. This being the position, invocation of section 151 in the present case would neither be in conflict with what has been expressly provided in the Code nor against the intention of the legislature.
15. Reason, as per Sir Edward Coke, is the life of the law. Rather, as he said, law is the perfection of reason. However, in this case though the respondent admits his liability towards rent and is thus morally and legally responsible to pay as long as he enjoys the property, the impugned order allows him to enjoy it but frees him from meeting his liabilities. This approach defeats reason and thus works to the great detriment of the landlord. I feel that it is in a situation like this that this court must invoke its inherent jurisdiction and shower relief and redress upon the hapeless victim of an unjust order. This seems to me to be the only lawful option. Even if it is assumed that the impugned order also falls into a zone of possibilities, I feel in the context of the facts and the law the discretion exercised was governed, to borrow from Lord Mansfield,* not by rule but by huour, and reminds me of what Justice Cardozo said in his image-rich style**:
“There have been two paths, each open, though leading to two different goals. The fork in the road has not been neutralized for the traveller by a barrier across one of the prongs with the label of “no thorough fare”. He must gather his wits, pluck up his courage, go forward one way or the other, and pray that he may be walking not into ambush, morass, and darkness, but into safety, the open spaces and the light.”
16. Unfortunately, the learned trial judge lost his way.
17. What next?
18. To summarise again, the agreed late of rent is admitted.
So is the period for which rent is payable.
The only claim is for adjustment of Rs. 21000. Without going into the merits and without prejudice, let the tenant have, for the present, that adjustment and pay the rest. I, therefore, accept the revision petition and direct the respondent to pay to the landlord within two months from today the arrears of rent with effect from April, 1991 at the rate of Rs. 3800 per month and future rent monthly by month by the 15th each succeeding month. Of course, as noticed above, he shall be entitled to adjust a sum of Rs. 21000.
D.VPetition allowed