RAM KISHAN DASS Vs. JAGAN NATH

JUDGEMENT

(1.) The respondent was a tenant of the appellant who filed an application (No. 80 of 1967) on March J 9, 1967, against him for eviction under section 14 of the Delhi Rent Control Act, 1958, on the grounds of default in payment of rent and bona fide requirement. The learned Rent Controller made an order undersection 15 (1) of said Act on May 25, 1967, directing the tenant to pay the arrears of rent minus any payment, if any, made by him in any court. It appears that the said order was complied with but the application was not dismissed. The landlord rather withdrew it on April 1, 1968. The appellant then served the tenant with a notice on April 7, 1968, that he had withdrawn his application (No. 80/ 1967) on account of some legal lacuna with permission to file a fresh application on the same cause of action and that the tenancy was then being terminated with effect from May 9, 1968. On May 13, 1968, the appellant filed another application for eviction on the ground of personal necessity which was dismissed on February 14,1969. The appellant preferred an appeal against that order of dismissal. He then presented a third application for eviction on March 9, 1971, out of which the present appeal arises. It is based on the ground of non-payment of rent from April 10, 1968 to March 9, 1971. It was alleged that the tenant had already obtained benefit of sub-section (2) of section 14 of the Act and could not again ask for such a benefit, meaning thereby that the tenant cannot escape an order of eviction by securing an order under section 15(1) and making payment in pursuance thereof. The tenant maintained that he could. The learned Additional Rent Controller, Delhi, accepted the application and passed on order of ejectment on November 30, 1971. On appeal, the learn Rent Control Tribunal reversed the order and dismissed the eviction application by its order dated March 17, 1971. Hence this second appeal under section 39 of the said Act.

(2.) The two tribunals below held that the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the service of the notice of demand. The crucial question that was agitated below and here was whether in the circumstances stated above, the respondent can be said to have taken benefit of sub-section (2) section 14 of the said Act in the firsi eviction application and consequently cannot ask for similar benefit for the second time. The learned Additional Rent Controller was of the view that in spite of the withdrawl of the petition by the landlord, it cannot be said that the tenant did not avail of the benefit under section. 14(2) of the said Act, because the petitioner had deposed that as the respondent-tenant complied with the order section 15(1), he withdrew the said application on April 1,1968, and the tenant had also admitted in his cross-examination that the said previous eviction case was dismissed as he had deposited the rent. The learned Rent Control Tribunal, however, disagreed with the view of the learned Additional Rent Controller. It found that the tenant cannot be deemed to have enjoyed the benefit of the provisions contained in section 1 ^(2) as the previous application was withdrawn by the landlord for want of notice terminating the tenancy, which fact was admitted by him in his notice and in his cross-examination. It could be otherwise only if it were dismissed on account of compliance with the direction under section 15(1) of the said Act. He relied upon the decisions of this Court reported in Smt. Padma Kaur v. 0. P. Kapoor, 1972 R.L.R. 121, and M/s 0m Prakash and Sons v. S. N. Sapra. 1912, R.C.R. 1002.

(3.) I have heard the arguments of the counsel for the appellant. According to sub-section (2) oi section 14 and sub-section (6) of section 15, no order for recovery of possession shall be made on the ground of non-payment of rent if the tenant makes the payment or deposit as required by section. 1 5(1), but no tenant shall be entitled to such benefit, if, having obtained such benefit once, he again makes a default in the payment of rent, for three consecutive months. Since the tenant-respondent had in this case complied with the direction made under section 15(1), no order for the recovery of possession could be and was made against him on the ground of default in payment of rent, but the application continued to be prosecuted as there was no bar against its so being prosecuted on any other ground or if the tenant so desires then even on the ground of default. Here, the application was no doubt withdrawn for want of legal termination of tenancy, but that does not alter the position that the tenant was entitled to and did get the benefit of sub-section (2) of section 14. It cannot be said that the tenant has not obtained benefit of sub-section (2) of section 14, simply because the eviction applicaiion was not dismissed under sub-section (2) of section 14, but was later on withdrawn after about eight months on acccount of some other reason. A recent Division Bench decision of this Court reported in Kahan Chand Makan v. B. S. Bhambri and others, A.I .R. 1977 Delhi 247, purports to hold that where a deposit of arrears of rent has been made by the tenant in compli- ance with an order specifically passed under section 15(1), the benefit of section 14(2) cannot be availed of by the tenant in a subsequent proceeding for his ejectment on the same ground. The existence and proof of such an order in an earlier proceeding covered by section 14(1) proviso (a) will deprive the tenant of the protection which sub-section (2) of section 14 gives to him Now, in this case an order under section 15(1) did exist and has been so proved. It is also proved that the tenant had deposited the arrears of rent in pursuance of such an order. That clianches the issue. There was no need to go into the question whether any notice of termination of the tenancy was necessary and whether it was properly served or not; and it should have been held by the learned Tribunal that the respondent was not entitled to the benefit of sub-section (2) of section 14 for any subsequent time. There is no warrant for holding that where the petition is dismissed or withdrawn for any reason other than payment or deposit in pursuance of the order made under section 15(1). the tenant has not enjoyed the benefit that accured to him on account of the payment made in pursuance of section 15(1). If he had not taken the benefit, his defence would have been struck out as provided by sub-section C7) of section 15. As was held in M/s 0m PrakasK Case (Supra), the Controller at the time of passing his final order is required to determine as to whether the eviction petition was dismissed, if it was dismissed at all, on account of section 14(2), or on account of any other objection raised by the tenant. This is necessary as this order may have to be looked into a possible subsequent eviction proceeding to find out if any benefit of section 14(2) has been derived by the tenant or not. It is only where the petition ultimately fails for failure to establish the ground of default, that the tenant cannot be deemed to have obtained benefit of section 14(2), even though he may have made payment in pursuance of section 15(1), vide Smt. Padma Kaur v. O. P. Kapoor (Supra).