Judgment:
Usha Mehra, J.
(1) The respondent Ajay Chadha and others sought eviction of the present appellant (respondent before the Trial Court) on the ground of non-payment of rent. The respondents let out the premises bearing No.208, Pragati House, 47-48, Nehru Place, New Delhi to the appellant on a monthly rent of Rs.2100.00 . It was the case of the respondents that the tenant despite service of notice of demand dated 19th July,1983 neither paid nor tendered the rent w.e.f. 1st June, 1983.
(2) Summons of eviction by the Court were duly served by ordinary as well as by registered A/D post on the present appellant. However, none appeared on his behalf, as such this appellant was proceeded ex-parte by the learned Additional Rent Controller (in short ARC). An ex-parte order under Section 15(1) of the Delhi Rent Control Act (in short the Act) was passed on 15th Septembcr,1984 thereby directing this appellant to pay or deposit the entire arrears of rent at the rate of Rs.2100.00 per month payable from 1st June, 1983 within one month from the date of the order failing which deemed order of eviction would be passed against this appellant. On 17th December,1984 present appellant filed an application under Order 9 Rule 13 read with Section 151 of Civil Procedure Code alleging therein that he was not aware of the passing of any order under Section 15(1) or about the pendency of eviction petition. He received the notice from the Court on 12th December,1984 wherein he was required to appear on 18th January,1985 in execution proceedings. It was appellant's case in his application under Order 9 Rule 13 Civil Procedure Code that he had no knowledge of the institution of eviction proceedings against him earlier than the receipt of notice on 12th December,1984. The appellant being a partnership firm having not been served with the summons of the case the ex-parte order was bad in law, and hence, liable to be be set aside. This application was contested. The learned Arc after recording the evidence on the application, dismissed the same. The appeal filed against that order has also been dismissed vide the impugned order dated 31st Dcccmber,1992.
(3) In this appeal the order of eviction as well as order passed under Section 15(1) have been assailed, on various grounds and one amongst those grounds is that a composite order under Section 15(1) and 14(1)(a) of the Act could not be passed. Composite order being bad in law hence the said order is liable to be set aside.
(4) During the course of arguments, Mr.Vijay Kishan appearing for the appellant contended that the composite order under Section 15(1) read with Section 14(1)(a) of the Act has already been held to be bad by the Apex Court as well as this Court in the following cases, namely, Chinnamarkathian alias Muthu Gounder & anr. Vs . Ayyavoo alias Periana Gounder & ors., : [1982]2SCR146 . Reliance was placed by this Court in the case of B.R. Mehta v. Smt.Atam Devi, 1989 (1) D L 58. H.P. Vaid v. S.K.R. Bhandari, 1988(1) Rcj 741. This Court in B.R.Mehta's case (supra) observed that under Section 15 of the Act if the tenant does not pay or deposit the rent which he was required to do pursuance to the order passed under Section 15(1), then the Court has first to exercise its power under Section 15(7) of the Act to strike out the defense of the tenant. This power is to be exercised after the period, within which the payment had to be made, has elapsed. It was further observed that the judicial opinion previously was that if the tenant failed to comply the order under Section 15(1) or 15(3) of the Act then the eviction order was to follow automatically because the Controller had no jurisdiction to allow more time for making the payment. But in view of the law now settled by the Supreme Court, the Controller has the jurisdiction to decide whether to strike out the defense or not, even though default had been committed by the tenant or not in depositing the rent within the prescribed period. Thus, in view of this position of law giving jurisdiction to the Controller to exercise its power under Section 15(3) or not to exercise the same, the question was whether at the lime when an order under Section 15(1) is passed the Controller can simultaneously direct the eviction of the tenant if no rent is paid within the stipulated period. Answering this question, the Court observed that if a composite order is passed directing the payment of arrears of rent within one month, and eviction of the tenant if this amount is not paid, the effect of this would be that the right of the tenant for a discretion to be exercised by the Controller under Section 15(7), after a default has been committed, is taken away. In fact in exercising its discretion or jurisdiction under Section 15(7) it is not only the Court which has to apply its mind, but correspondingly it is the tenant who has been given a right to approach the Court and try and satisfy as to why its defense should not be struck off. This right of the tenant which is provided by the statute, and can only be exercised after a default has been committed, cannot be taken away by the Controller choosing to pass a composite order under Section 15(1). If a composite order was permissible then consequence would be that there would be no occasion for the Controller to apply its mind and to exercise its discretion under Section 15(7)) of the Act. The Controller cannot invoke the provision of Section 15(7) at the time when an order under Section 15(1) is passed. This conclusion the Court arrived placing reliance on the Supreme Court's case namely of Chinnamarkathian (supra).
(5) To the same effect were the observations of this Court in the case of H.P.Vaid v. S.K.R. Bhandari, 1988(1) Rcj 741. In H.P.Vaid's case also this Court after relying the observation of the Supreme court in Chinnamarkathian's (supra) held that the composite order cannot be sustained.
(6) On the other hand, Mr.V.K.Makhija, Senior Advocate appearing for the respondent contended that it was the common practice amongst the Controller at Delhi to pass a composite order for deposit of rent and for eviction in the case of failure to deposit the same within the time prescribed. He, in order to support his case, placed reliance on the following decided cases of this Court, namely, Mebrose Ice Cream v. Jaswant Rai, 1979 (2) Rcr 95, Chatter Singh v. Banarsi Lal, 1976 Rcr 61 and Bhoj Dutta v. Brij Narain Bagai, 1972 Rcr 142. Mr.V.K.Makhija contended that this was the consistent view of Delhi High Court till the Court look contrary view in the case of H.P.Vaid and B.R.Mehta (supra). In both these cases this Court took a contrary view because of the observation of the Supreme Court in the case of Chinnamarkathian (supra) wherein it was observed that conditional composite order was bad. Mr.V.K.Makhija contended that these observations of the Supreme Court were in fact not based on any interpretation of the Rent Act like Delhi Rent Control Act. Before Apex Court the case was under Tamil Nadu Cultivating Tenant Protection Act. The provisions of Delhi Rent Control Act and that of the Tamil Nadu Cultivating Tenant Protection Act are radically different. The preamble of the said Act reads as under:
'AN Act for the protection from eviction of cultivating tenants in certain areas in the state of Madras.'
(7) The Preamble to the Delhi Rent Control Act reads as under:
'AN Act to provide for the Control of rents and evictions and of rates of hotels and lodging houses and for the lease of vacant premises to Government, in certain areas in the Union Territory of Deihi.'
According to Mr.V.K.Makhija, Section 3 of the Tamil Nadu Cultivating Tenant Protection Act places an embargo on the cultivating tenants from eviction and the protection extends to render a decree or order of a Court for the eviction nugatory. There is enabling provision in Sub Section 4A of Section 3 which enables a landlord to seek the eviction of cultivating tenants on the ground which may be available to him under the Act. Clause B of sub Section 4 of Section 3 prescribes the procedure to be followed by the Revenue Divisional officer as to: a. give opportunity both to landlord and cultivating tenant to make representation. b.hold a summary inquiry into the matter of determination of rent which is in arrear. c. after determining the rent which is in arrears, the Revenue Divisional Officer has to further inquire into the relevant circumstances of the landlord and the cultivating tenant and the circumstances which have a bearing relating to the need of the landlord of rent and the present paying capacity of the tenant. After taking into consideration all the circumstances of both the landlord and the tenant, the Revenue Divisional Officer is to decide what limit of lime has to be given to the tenant to pay the arrears and at that stage the proceedings must slop. It is like a preliminary issue lobe determined because after the findings arc recorded that the tenant is in arrears and the amount of arrears determined, the Revenue Divisional Officer is under the statutory obligations to grant time to deposit the rent. Granting of time is not a decision taken upon the sweet will of the officer but it is a statutory obligation cast on the Revenue Divisional Officer. He has a discretion on the length of time and this discretion is to be exercised judicially taking the circumstances of the landlord and the tenant.
(8) The scheme of the Act is that merely on determination of the rent due, the Revenue Divisional Officer is not to conclude the proceedings. It is only after the time granted expires and the tenant fails to comply with the order, it is only then that the eviction order may follow. In the case of the Delhi Rent Control Act there is no bar in passing a composite order. The lime to be granted to the tenant to pay or deposit the rent in terms of section 15(1) of the Delhi Rent Control Act is statutory.
(9) While passing the order under Section 15(1) of the Delhi Rent Control Act the court has not to consider the circumstances either of the landlord or the tenant in determining the period by which the order for payment of rent has to be complied with.
(10) After analysing the provision of the Tamil Nadu Cultivating Tenant Protection Act as that of the Delhi Rent Control Act, Mr.V.K.Makhija contended that once the appellant was proceeded ex parte because he failed to appear, Delhi Rent Control Act does not provide for fresh service of the tenant after passing of an order under Section 15(1) of the Act intimating him that such an order has been passed. There can be cases where the Controller may not pass the interim order under Section 15(1) of the Act and may record the evidence and then give the final finding i.e. an order of eviction. Thereafter the Controller is not called upon after determining the arrears of rent to go into the question as to within what period the rent should be paid and the circumstances of the tenant. He, thereforee, contended that the composite order is valid. Reliance in this regard was also placed by him on the decision of this Court in the case of M/s Dharam Pal & Sons v. Shri Parmeshwari Dass, 1981(2) All I R Cl J 408 where this Court was confronted with a similar question about the validity of a composite order. In that case after recording the evidence Controller decided against the tenant all the issues and passed the order of eviction. It was conditional to the extent that if tenant deposits the arrears of rent within one month, petition for eviction would fail. The appeal up to the High Court was dismissed. This Court observed that the order was strictly in accordance with Section 14(2) of the Act and after placing reliance on the decision rendered by Deshpande, J. (as his Lordship then was) in SAO. No.91/71 titled as Kulwant Kaur v. Jeewan Singh decided on 25th 0ctober,1971 held that composite order is valid. Mr.V.K.Makhija, relying on this judgment of Dharam Pal & Sons (supra) contended that final composite order was passed because the appellant was proceeded ex parte and such an order is strictly in accordance with Section 14(2) of the Act, and thereforee valid. He further contended that Controller is not powerless to exercise his jurisdiction/ discretion in extending the time for deposit of rent in case the tenant approaches him for the same. The tenant at any stage after passing of the order can seek indulgence after giving circumstances due to which he could not comply the order. Similarly, the provisions of Section 15(7) of Delhi Rent Control Act have no application once the trial is over. Once the order is passed in the presence of the partics, then if such an order is not complied or tenant docs not seek indulgence the order will become final. The question of striking out defense docs not arise.
(11) Lastly Mr.V.K.Makhija contended that this Court previously was following consistent view that composite order was valid, the same could not be changed by relying on the obit a of Supreme Court judgment which was not dealing with similar provisions. The Apex Court in umpteen number of cases has held that the law settled by High Court in relation to the local Acts should generally be followed. The law settled by this Court previously was that composite order is valid and this has been the practice of the Controller as well as of this Court. thereforee, it should be held that the composite order is valid.
(12) In view of the conflicting decisions of this High Court rendered earlier in the cases of Chattar Singh v. Banarsi Lal, Mebrose Ice Cream v. Jaswant Rai, Bhoj Dutta v. Brij Narain Bagai, M/s Dharam Pal & Sons v. Shri Parmeshwari Dass and Kulwant Kaur v. Jeewan Singh and different views subsequently followed in the case of H.R.Vaid v. S.K.R.Bhandari and B.R.Mehta v. Smt.Atam Devi relying on the decision of the Supreme Court which concerned with different provision of law. It is clear that there is conflict of judicial opinion as far as Delhi High Court is concerned. In view of the conflicting views on the point whether composite order under Section 15(1) and 14(1)(a) is valid or not, an authoritative pronouncement has to be rendered by this Court. It is also observed that in view of this conflict Rent Controllers are also finding it difficult. Hence the mailer must be settled by a Division Bench. It is, thereforee, ordered that this matter may be placed before the Hon'ble Chief Justice for referring this matter to a Division Bench with a request that this may be taken up and disposed on priority basis because it has a far reaching consequence on all the rent matters pending before the Rent Controllers as well as in this Court.