Judgment:
S.C. Jain, J.
(1) This case has a checkered history. In brief, the facts giving rise to this second appeal are that flat No. 22-B, Sujan Singh Park, New Delhi along with servant quarter and garage had been let out to H.L. Pathakw.e.f. 1.11 1949. Shri K.R. Bedi, father of the appellants was inducted as a sub tenant in this flat. The respondent landlord brought an eviction petition against H.L. Pathak on the ground of sub letting. In that case Shri K.R.Bedi had taken the plea that he had been a lawful sub tenant. On 11.8.1961,Shri K.R. Bedi died and in February, 1963, the Counsel for the landlord made a statement in that case withdrawing the eviction petition and stating that appropriate proceedings would be taken against the legal representatives of late K.R. Bedi who were in possession .of the premises.On 13-3-1963, the respondent landlord filed an eviction petition pleading that the appellants, Devinder Singh and widow of late K.R. Bedi were the tenants in the premises comprising the flat, servant quarter and garage on a monthly rent of Rs. 283.69. One of the grounds of eviction was non payment of rent.In the written statement filed in that eviction petition the appellants, Devender Singh and the widow of K.R. Bedi admitted the respondent company to be the landlord and themselves to be tenants but mentioned that Narinder Singh and Shakuntla Bammi who were residing in the flat were not strictly speaking the tenants. Another plea taken was that they were not in possession of the servant quarter and garage and as such they are tenant in respect of the flat only and not in respect or servant quarter and garage and the rent of the flats hould be much less than claimed. Another plea taken was that they had become direct tenants w.e.f., 19.2.63 after termination of tenancy of Shri Pathak and were liable to pay rent from 19.2.63 which they were willing topay.
(2) Shri A.S. Gill, the then Rent Controller, passed an order on 1 7/07/1963 under Section 15 of the Delhi Rent Control Act directing the appellants-tenants to deposit in Court the arrears of rent from 11.8.1961 atthe rate of Rs. 175.00(interim rent) within one month of that order and to deposit future rent at the same rate by the 15th of the following .month.
(3) An appeal was taken against that order before the Tribunal.The Rent Control Tribunal vide order dated 17.10.1963 ordered the appellants tenants to deposit arrears w.e.f 19.2.63 at the interim rate of Rs. 175.00 within one month from that date and to deposit the future rent month by month by the 15th of the following month and the case was remanded back to the Rent Controller.
(4) The then Rent Controller Shri A.S. Gill, vide order dated 14.2.66.declined the request of the respondent landlord for eviction of the appellants on the ground of non payment of rent because the parties Counsel agreed that the order passed by the Rent Control Tribunal on 17.10.1963 had been complied with. However, an order for recovery of the suit premises was passed in favor of the respondent landlord on the grounds contained in Clauses (b) and (h) of sub-Section (1) of Section 14 of the Act. On appeal before the Rent Control Tribunal, the order of eviction passed by the Rent Controller under Clauses (b) and (h) was set aside and its appeal before the High Court was dismissed.
(5) Again, in September, 1971 the respondent-landlord filed and eviction petition under Section 14 of the Delhi Rent Control Act against the appellants with respect to the suit premises No. 22-B, Sujan SinghPark, New Delhi, alleging that the monthly rent was Rs. 225.50 plus 28.19towards house tax and Rs. 30.00 as water charges. Eviction was sought on the following grounds:-
'NON payment of rent: A sum of Rs. 19869.88 is due from the respondent on account of arrears of rent and other charges from19.2.63 to 31.8.71. Out of this amount the petitioners have already filed a suit for the recovery of Rs. 14558. 14 being the rent and other charges from 19.2.63 to 30.11.69 of the premises in dispute.Thus a balance of Rs 5311 74 is due on account of the arrears of rent and other charges from 1.12.69 to 31.8.71 respecting which no litigation is pending between the parties. Respondents have thus committed a default in the payment of rent and other charges for more than three consecutive months. The respondents having thus enjoyed the benefit of deposit in an earlier petition cannot be given further benefit of deposit and are liable to eviction'.
(6) That eviction petition was contested by the appellants-tenants and a written statement was filed pleading, inter alia, that Rajinder Singh Bedi is co-tenant in the suit premises and no notice of ejectment under Section 106 of the Transfer of Property Act has been served on him. It is also denied that rate of rent was Rs. 225.50 per month besides Rs. 28.19 towards house tax and Rs. 30.00 towards water charges. The landlord's suit for recovery of rent of Rs. 14558.00 for the period ending December, 69 was dismissed with costs by Shri R.K. Sinha Sub Judge 1st Class on 23.3.72 and its appeal is pending before Delhi High Court. In view of the dismissal of the suit for recovery of rent, the eviction petition is not maintainable. It is denied thatthe tenant has enjoyed the benefit of deposit of rent under Section 14 of the Delhi Rent Control Act in the earlier eviction petition. No notice of demand was served on the respondent and the petition for eviction on the ground of non payment of rent is bound to fail as there is no cause of action as alleged in para 18 of the petition. The Additional Rent Controller in his orderdated 1.4. 1976 found that the appellants had taken the benefit under Section 14 and that they have not paid rent after the service of notice of demand nor deposited any amount and as such they had fallen in arrears of rent formore than three consecutive months. In such circumstances an order of eviction was passed under Section 14 on 1.4.1976.
(7) That order of the Additional Rent Controller was challenged before the Rent Control Tribunal by filing an appeal which was dismissed by the RentControl Tribunal on 27.5.78. This order of the Rent Control Tribunal has been challenged by the appellant-tenants by filing this second appeal.
(8) The only point pressed before me by the learned Counsel for theappellants is that in the earlier eviction proceedings (Eviction Petition No.254/63) the appellant had not availed the benefit under Sub-Section (2) of Section 14 of the Act and thereforee impugned eviction order dated 1.4.76passed by the Rent Controller under Section 14 read with proviso to sub-Section (2) of Section 14 of the Act and confirmed by the Rent Control Tribunal on 27.5.78 could not have been legally passed.
(9) According to the Counsel for the appellants the ground of nonpayment of rent was not available because at the time when the eviction petition was filed, there were no arrears of rent due from the appellants.Counsel submitted that when the eviction order could not have been passed under Section 14 on the ground of non payment of rent, the question of taking the benefit under Section 14 of the Act did not arise. Admittedly,the appellants became tenants under the respondent in the suit premises only on 19.2.1963. They could be liable to pay rent at the most from 19.2.63.The eviction petition was filed on 12.3.63. No rent was legally recoverable from the appellant at the time of filing of the eviction petition and thereforee,the eviction petition on the ground of non payment of rent was not maintainable, learned Counsel submitted.
(10) Counsel for the respondent landlord, however, argued that this plea taken by the appellants cannot be raised at this stage as the previous judgment has become final on this point. According to him, a perusal of the previous order passed on 14.2.1966 by Shri A.S. Gill the then RentController shows that the appellants tenants were asked to deposit the arrears of rent at the interim rate of Rs. 175.00w.e.f. 19.2.63 and the compliance of that order was made and on that account no further action was found necessary on the ground of non payment of rent and the appellants tenants were held not liable to be evicted on the ground of non payment of rent.This finding, according to the Counsel, amounts to taking benefit under Section 14 and it is not necessary to mention in the order that benefit under Section 14 had been availed of. This finding was not challenged at anytime before, meaning thereby that it has attained finality and the appellants cannot come forward to say now that they have not availed the benefit under section 14 the Act. After availing the benefit under Section 14, theappellants cannot now be protected because they have admittedly committed default in the payment of rent for three consecutive months.
(11) The Supreme Court interpreted the provisions of Section 14 of the Delhi Rent Control Act in Jagan Nath v. RamKishan, : [1985]2SCR388 as under:
'S.14 (2) provides that no order for the recovery of possession of any premises can be made on the ground that the tenant has committed default in the payment of rent, if he pays or deposits therent in accordance with the provisions of Section 15. The benefit which the tenant obtains under Section 14 is the avoidance ofthe decree for possession. Though he had committed default in the payment of rent, no decree for possession can be passed againsthim. This benefit accrues to the tenant by reason of the fact that he has complied with the order passed by the Controller under section 15. The passing of an order under Section 15 is not a benefit which accrues to the tenant under Section 14. It is obligatory upon the Controller to pass an order under Section 15 in every proceeding for the recovery of possession on the ground specified in Section 14 that is on the ground that the tenant has committed default in the payment of rent. That is a facility which the law obliges the Controller to give to the tenant under section 15. It is through the medium of that facility that the tenant obtains the benefit under Section 14. And that benefit consists in the acquisition of an immunity against the passing of an order of possession on the ground of default in the payment of rent. It must follow that it is only if an order for possession is not passed against the tenant by reason of the provision contained in Section 14, that it can be said that he has obtained a benefit under thatSection. The key words of the proviso to sub Section (2) of Section 14 are : Provided that no tenant shall be entitled to the benefit under this sub Section.........'.
(12) In this case, admittedly the eviction petition was filed on 12.3.63and one of the grounds of eviction was non payment of rent. Rent was claimed at the rate of Rs. 283.69 including house tax and water charges amounting to Rs. 8900.87 till 28.2.1963. The Rent Control Tribunal held thatthe tenancy started w.e.f. 19.2.63 and the landlord is entitled to recover rent from that date i.e. 19.2.63. Interim rent was fixed at the rate of Rs. 175.00Itshows that on the date of filing of the eviction petition (No. 254/63) on theground of non payment of rent no rent was due and no eviction order could have been passed on the ground of non payment of rent because on the date of filing the eviction petition there was no arrears of rent which were legallyrecoverable. What clause (a) of sub-Section (1) of Section 14 requires is thatthe tenant must be in arrears of rent and that (ii) the tenant must not have tendered or paid the arrears within two months of service of notice of demand.What it means is that the tenant must be in arrears at the time of service of notice of demand. The .cause of action for eviction on the ground of nonpayment of rent consists of facts (a) the relationship of landlord and tenant(b) existence of arrears of rent on the date of notice of .demand (c) service ofnotice of demand provided under Section 106 of the Transfer of Property Act and (d) failure of the tenant to pay the arrears of rent legally recoverable from him within two months of the service of notice.
(13) Record shows that the appellants were admitted as tenants w.e.f.19.2.63 and previous eviction petition was filed on 12.3.63 and one of the grounds of eviction was nonpayment of rent. When the eviction petition was filed within 20 days of the commencement of the tenancy it will be preposterous to presume that any notice of demand was given and that the tenant had failed to pay the arrears within 2 months of the notice of demand. No notice of demand was produced on record. When no eviction petition under section 14(1)(a) of the Delhi Rent Control Act was maintainable on 12.3.63,the question of availing of the benefit under Section 14 of the Act did notarise. Both the Courts below have gone wrong in holding that the appellants had availed the benefit under Section 14 of the Act in. the earlier proceedings (Eviction Petition No. 254/63) and I, thereforee, set aside the impugned order and accept this appeal. The eviction order passed by theAddl. Rent Controller on 1.4.1976 and the order of the Rent Control Tribunal dated 27.5.78 are hereby quashed. The appeal is accepted and the parties are left to bear their own costs. Appeal allowed.