TMI Blog1984 (7) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with Lakhmir Singh, the then landlord on June 20/22, 1955 to become the direct tenant of the then landlord of the premises in his possession on a monthly rent of ₹ 277.50 p. as stated in plaint, effective from May 1,1955. On October 10, 1955 appellant filed a petition in the Court of Senior Sub Judge, Delhi under Section 8 of the Delhi and Ajmer Rent Control Act, 1952 ('Act' for short) praying for determination of the standard rent of the premises effective from the date of the commencement of his tenancy. Landlord Lakhmir Singh entered appearance and contested the application inter-alia contending that the petition was barred by limitation. The trial court held that the petition was not barred by limitation and fixed the standard rent at ₹ 855/- p.a. with effect from October 1, 1955. This decision was rendered on Aug. 4, 1960.In the meantime, landlord Lakhmir Singh sold the whole bungalow including the demised premises by a deed of conveyance dated December 21, 1959 in favour of respondents Nos. 2 and 3 who on their own were impleaded in the proceedings. 3. The original landlord Lakhmir Singh and the two transferees from Lakhmir Singh preferred an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was set down for hearing on October 1, 1956. In the meantime on August 27, 1956 the landlord filed an application under Section 13(5) of the Act for a direction that the tenant i should deposit the rent as it falls due month by month. The order sheet shows that the Court directed notice of the application to be served upon the tenant and be fixed for hearing on October 1, 1956. It appears that the application for withdrawal of the rent deposited by the tenant was heard on October 1, 1956. On October 5, 1956, '. the appellant tenant moved an application under Section 9 of the Act for fixing interim rent pending the determination of the standard rent of the premises. The order sheet shows that the application was set down for hearing on the same day in the afternoon and it was as a matter of fact heard and adjourned for order to October 5, 1956 in the afternoon. An order purports to have been passed on October 6, 1956 to the effect that the Court directed the tenant to deposit future rent at the agreed rate of rent. The appellant contended that what appears to be the order dated October 6, 1956 is a subsequently interpolated writing and no such order was made. It is not nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvantage of the landlord, dismissed both the revision petitions. Hence the tenant has preferred Civil Appeals No. 464-65 of 1971 by special leave. 6. The mere narration of events leading to the present three appeals would be sufficient to convince even the most callous person that an utterly trivial dispute in which serious allegations of interpolation in the record by the learned trial Judge having been accepted, the tenant is under a threat of eviction on the ground of failure to deposit the rent though all the arrears of rent claimed in the suit was deposited on the 1st day of hearing in the trial court. 7. To dispose of these three appeals, it is necessary to decide the following questions: i) Whether the petition for determination of standard rent filed by the tenant under Section 8 of the Act was barred by limitation? ii) Whether in view of the finding of the two learned Judges of the High Court that -the order purporting to be dated October 6, 1956 on application dated August 21, 1956 was interpolated, the failure of the tenant to comply with the same should have been visited with such a drastic order as striking off the defence? iii) Whether the tenant has ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered his tenancy and vacated and handed over possession of the portion of premises in his possession on April 1, 1955. Prior thereto he had served a notice on the appellant to vacate the premises in his occupation latest by April 1, 1955. Appellant did not vacate the premises. In June 1955 appellant and the landlord arrived at an agreement Ex. P-2 by which appellant was accepted a direct tenant of the premises in his possession from May 1, 1955 on a monthly rent of ₹ 269. 50 p. Appellant paid ₹ 539/- as and by way of rent for the months of May and June, 1955. He moved a petition for determination of standard rent': on October 10, 1955. On these admitted facts the question is whether the application was barred by limitation. 10. learned trial Judge held that tenancy between the landlord and the tenant commenced from May 1, 1955 and as the application for determining the standard rent has to be made within 6 months from the time the premises are let out to the tenant, the petition filed by the tenant on October 1, 1955 is certainly within time. This reasoning appears to be wholly flawless. 11. However when the matter was taken in appeal at the instance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1, 1955 with some increase in the monthly rent. 13. As the tenancy commenced in this case after the commencement of the Act, a petition for determining standard rent has to be filed within 6 months from the date on which the premises have been let. The learned District Judge was of the opinion that as standard rent is to be fixed in respect of the premises, limitation for making an application for fixing standard rent has to be made within six months from the date of first letting. Fixing of standard rent is, it was said, co-related to premises and not the landlord or the tenant. Accordingly it was held that any subsequent letting would not enable such subsequent tenant to move the petition for determining the standard rent. The expression 'within 6 months from the date on which it is so let' has been construed to mean letting or leasing the premises for the first time to anyone after the commencement of the Act. If the construction which found favour with the learned District Judge is to be accepted it would lead to a startling result. The landlord can induct a man of his choice at a fabulous rent as a tenant and such a protege can vacate at any time after 6 months an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge had determined the standard rent but as neither appellate court nor the High Court dealt with the point we are constrained to remand the matter to the learned District Judge to decide the second point as to what is the standard rent of the suit premises. 16. In this view of the matter Civil Appeal No. 464/71 must succeed and will have to be allowed and the order of the learned District Judge as well as learned Single Judge of the High Court will have to be set aside. 17. Question No. 2 and 3 may be dealt with together. There were two revision petitions before the High Court. They arose in the circumstances which have already been set out. 18. In the suit filed by the landlord for recovery of rent and possession the tenant while contesting the suit had deposited the rent which was alleged to be in arrears under protest pointing out simultaneously that as he has already moved a petition under Section 8 of the Act for determination of the standard rent, the same may be decided before the landlord is allowed to withdraw the amount deposited by him. In the meantime the landlord moved an application requesting the Court to direct the tenant to deposit the future rent from mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount deposited by the defendant appears to have read in its original form Present Counsel for the parties. Arguments heard. For orders in the afternoon followed by the initials of the Sub Judge and the date 1-10-56 Tt is quite evidence that after the word The Naib Nazir to report about deposit by 5-10-56 were added and then alongside the original date For orders on 6-10-56 have been written the word orders being apparently written over the figure 1 in the date and underneath the original date where appear the initials of the Sub Judge and the fresh date 5-10-56 Similarly in the order on the respondent's application under Section 13(5) of the order originally read : Present-Counsel for the parties. Arguments heard. For orders in the afternoon. followed by the initials and date 1-10-56 , and subsequently the word on 6-10-56 have been added together with The Naib Nazir to report about deposit by 5-10-56 . Nobody has appeared on behalf of the respondent, and in my opinion the circumstances are sufficiently suspicious to justify the apprehensions of the petitioner. I accordingly accept the application and order that the pending proceedings between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises any amount in excess of the standard rent of the premises unless such amount is a lawful increase of the standard rent in accordance with the provisions of the Act. Sub-section 2 provides that any agreement for any payment of rent in excess of the standard rent shall 1 be null and void and shall be construed as if it was an agreement for payment of the standard rent only. Therefore it is indisputable that the tenant is under an obligation to pay standard rent or lawful increase that may be made to it. Now where the landlord demands rent at the contractual rate and the tenant has moved a petition for 1 fixation of standard rent how is the tenant to be relieved from the obligation to deposit the agreed rent till the petition for standard rent is decided. To make the scheme of the law effective where the tenant has moved a petition for determination of standard rent, the court must decide it as and by way of a preliminary issue. Assuming it is not possible to determine the standard rent as and by way of preliminary issue, the Legislature has taken care to provide for interim arrangement. Section 9 provides that if an application for fixing the standard rent or for determining l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute as to the standard rent is raised and a petition has been filed for determination of the standard rent, and the landlord initiates action for eviction on the ground of non-payment of rent, the court should on the application of the tenant take up the dispute as to standard rent in the first instance and having fixed the standard rent call upon the tenant to pay or tender such standard rent so fixed, on or before a date fixed. If the tenant pays the standard rent fixed, on or before the date specified, and continues to pay or tender it regularly till the suit is finally decided, he qualifies for the protection of the Act. 24. Now reverting to the facts of this case, the landlord applied under Section 13 for withdrawal of the rent deposited by the tenant. The landlord made another application requesting the court to direct the tenant to pay the future rent at the agreed rate. The landlord then made an application under Sub-section 5 of Section 13 to strike off the defence of the tenant on the short ground that the tenant committed default in complying with the direction made by the Court. Once it was found that the direction with regard to the payment of future rent at the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting. Failure to comply with such a honest order had the consequential outcome of striking off the defence. The appeal was not entertained as being barred by limitation. Now if the order dated October 6, 1956 was found to be interpolated how can anyone say with confidence when the record was tempered with by the learned trial Judge. The appeal was preferred on January 2, 1958. In the application under Section 5 of the Limitation Act praying for condoning the delay in preferring the appeal it was specifically stated that the orders under appeal were made in the absence of the appellant and at his back and without communicating the same to him. Further the suit of the respondent landlord was dismissed for default on December 12, 1956 and it was restored to file on December 30, 1957 and within three days thereafter the appeal was preferred. Now ordinarily the view of the court dealing with facts in an application under Section 5 of the Limitation Act would not be interfered unless the failure to exercise jurisdiction would lead to miscarriage of justice. Viewed from this angle the appellant had made out a very convincing and just cause for condoning the delay in preferring the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder striking off the defence is set aside and the tenant will be entitled to defend the suit on merits. 30. Before we conclude the judgment, one aspect to which our attention was drawn may be noticed. Original landlord Lakhmir Singh died on April 9, 1978 during the pendency of these appeals in this Court. Civil Misc. Petitions No. 17962-69 of 1984 were moved on March 21, 1983 for substitution of his heirs and legal representatives arid for condoning delay, if any, in moving the petitions. The ground on which condonation of delay is sought has been set out in the petition and affidavit in support. Appellant has stated in the petition that learned Counsel for respondent Nos. 2 and 3 handed over a letter to the Registry on March 2, 1984 intimating about the death of first respondent, the original landlord. Thereafter the petition for substitution was moved on March 21, 1984 that is within three weeks from the date of the knowledge conveyed by the letter of the learned Counsel for respondents Nos. 2 and 3. The date of death of respondent No. 1 is not disputed but it is said that appellant came to know about it for the first time from the aforementioned letter. This is countered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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