1. Bhola Singh, the father of Ram Singh and Amar Singh appellants Nos. 1 and 2, was a tenant in house NO. 1313 Ward No. Viii, situated in Kucha Hiralal, Gali Kundewalan, Ajmere Gate, Delhi, on a rent of Rs. 67 per month, together with Rs. 6/7/- as house tax and Rs. 3/- as water tax, totalling Rs. 76/7/- per month. This house originally belonged to one Hira Lal, after whose death his son Khushawaqat Rai, respondent No. 1 claimed to be its owner. Bhola Singh appears to have started paying rent to Khnushwaqat Rai, to whom he paid all rents up to August 31, 1958. No rent was paid to him with effect from 1st September, 1958 to 30th June, 1959. Khushwaqat Rai respondent No. 1 had served on Bhola Singh, a notice of demand dated April 21, 1959 but there was no response. On July 22, 1959 respondent No. 1 filed a petition of the proviso to Section 14(1) of the Delhi Rent control Act, 1958 on the ground of non-payment of rent for the period from September 6, 1958 to July 6, 1959. The tenant, Bhola Singh, in his written statement replied that he had paid rent for the said period to Dr. Jagmohan Lal, the respondent No. 2 who is the son of Khushwaqat Rai, respondent No. 1 Jagmohan Lal, it is stated, had 'filed a suit for partition of the property, including the property in suit which was decreed on September 1, 1958'. According to Bhola Singh respondent NO. 1, ceased to be the landlord as a result of the said decree and Dr. Jagmohan Lal 'became the owner and landlord by operation of law' of the premises in dispute, he thus, became a tenant under Dr. Jagmohan Lal. He further stated that he held receipts for rent paid to Jagmohan Lal, which he filed along with his written statement. On November 30, 1959, the Additional Controller framed a preliminary issue, whether the relationship of landlord and tenant had ceased to exist between the parties. On December 28, 1959 Bhola Singh, tenant died and the present appellants, being his legal representatives, were imp leaded as respondents. In the meantime, Dr. Jagmohan Lal made an application before the Additional Controller praying that he be imp leaded as a respondent. On May 18, 1960, an amended petition was accordingly filed under orders of the Additional Controller impleading Dr. Jagmohan Lal, as respondent No. 2, Dr. Jagmohan Lal, in his written statement, admitted having received rent from Bhola Singh for the period form September 1, 1958 to June 30, 1959. He claimed that he had become the owner of the property under a will of late Shri. Hari Lal, who was his grandfather.
2. On May 29, 1956 Dr. Jagmohan Lal had filed a suit against Khushwaquat Rai, respondent No. 1 and certain other members of his joint Hindu Family inter alia, for partition of moveable and immovable properties of the joint Hindu family and for a declaration that he was the absolute owner of the house No. 1313 which was claimed by him under the will of Hari Lal. A permanent injunction was also sought to restrain respondent No. 1 from Realizing rents from Bhola Singh, the tenant in house NO. 1313.
On September 1, 1958 the trial court held that Dr. Jagmohan Lal became owner of the house under the will of Hira Lal which was found to be valid. But, Dr. Jagmohan Lal was found to be out of possession. The suit for declaration and injuction with respect to the said house was, thereforee, held to be not maintainable and was accordingly dismissed. Khushwaqat Rai was however, held liable to render accounts of the income of the said house.
The High Court appeal on October 3, 1967 set aside the finding that Dr. Jagmohan Lal was the exclusive owner of house NO. 1313 as the will was found to be invalid. It was held that the plaintiff was entitled only to 1/10th share of the entire, joint Hindu family immovable property, including the accounts No. 1313 and to rendition of accounts with respect to his share. A preliminary decree for partition of his 1/10th share in the said properties and for accounts, was passed in favor of Dr. Jagmohan Lal, respondent No. 2 against Khushwaqat Rai, respondent No. 1.
3. After Jagmohan Lal had been imp leaded as respondent No. 2 in the eviction petition filed by Khushwaqat Rai, a statement was made by the counsel for the appellant tenants on May 27, 1960 praying for one month's time to pay the rent with effect from July 1, 1959 at the rate of Rs. 76/7 per month in Court. It was stated that in case of default the tenants would be liable to eviction. An undertaking for depositing further rent was also given. The counsel agreeing to the above undertakings, and to the amount deposited by the tenants being retained in Court, which would be payable after a decision in respect of the title to the property in dispute between the client and Dr. Jagmohan Lal to the person in whose favor the decision was given. The counsel for Dr. Jagmohan Lal, respondent No. 2 also agreed to the aforesaid arrangement. The Additional Controller on June 1, 1959 passed an order dismissing the eviction petition until the dispute regarding title was settled. Khushwaqat Rai, respondent No. 1 filed an appeal against the aforesaid order of dismissal.
The learned Rent Control Tribunal by its order dated December 17, 1960 accepted the appeal and setting aside the order of dismissal sent the case back to the Additional Controller for decision in accordance with law. It was held that the Additional Controller should have decided the question whether the tenant occupied the premises in dispute under Khushwaqat Rai or not. It was further observed that if the Additional Controller was so advised he could also withhold action in the matter to await the decision of the civil Court regarding the title to the property. After remand, Dr. Jagmohan Lal, respondent NO. 2 applied for the stay of proceedings on the ground that an appeal was pending in the High Court in his aforesaid suit. On November 15, 1961 the Additional Controller stayed the proceedings in the eviction matter.
4. After the decision of the High Court in appeal in the litigation between respondent No. 1 and respondent No. 2, as stated above, Khushwaqat Rai, on February 17/18 1969 applied to the Controller for the revival of the proceedings, which were ordered on April 3, 1969 to be revived. In the meantime, the appellant-tenants claim to have deposited in Court a sum of Rs.840/- towards the rent, obviously in pursuance of their undertaking given on May 27, 1960. On June 6, 1969 the Additional Controller passed an order under Section 15(1) of the Delhi Rent Control Act, requiring the tenants to deposit the arrears of rent for the period from September 6, 1958 onwards up to date at the rate of Rs. 76.44 per month within one month from the date of the order. The sum of Rs.840/- if deposited by the tenants in Court, was ordered to be deducted from out of the amount required to be paid. An appeal against this order was dismissed by the Rent Control Tribunal on March 7, 1969. The tenants feeling aggrieved, have come up to this Court in second appeal.
5. The counsel for the appellants contended that the petition filed by respondent No. 1 under proviso (a) to Section 14(1) of the Delhi Rent Control Act was not maintainable, as there was no arrears of rent due from the appellants on the date when the petition was filed. The appellants had paid all rents to Dr. Jagmohan Lal, respondent No. 2 up to August 31, 1959 as was admitted by him. The petition thereforee, could not be filed on the ground of non-payment of rent. This contention of the learned counsel, however, is without any basis. The suit of Jagmohan Lal for declaration that he was in possession of house No. 1313 and entitled to receive its rent had been dismissed by the trial Court and the appeal against this met the same fate in the High Court. There was, thereforee, no occassion or justification for Bhola Singh, tenant, to contend that Jagmohan Lal had become the owner landlord by operation of law, entitled to receive rent. The declaration by the trial Court (which also was later reversed in appeal by the High Court) to the effect that Dr. Jagmohan Lal had become owner under the will of Hira Lal, did not have the effect of making him the landlord qua the tenants. Khushwaqat Rai, respondent No. 1 continued to be the landlord of the premises in dispute qua Bhola, entitled to receive the rent from him, who could not repudiate his tenancy and obligation under Khushwaqat Rai. As the rent had not been paid to Khushwaqat Rai from September 1, 1958 to June 30, 1959, he was justified in filing the petition for Bhola Singh's eviction under clause (a) of the proviso to Section 14(1) of the Delhi Rent Control Act, 1958, on the ground of non-payment of rent. The petition thereforee, was maintainable and the objection of the learned counsel cannot be accepted.
6. The learned counsel for the appellant then contended that according to proviso (a) of the Section 14(1) of the Act, the rent should be legally recoverable on the date of the passing of the order. If the rent or a portion of the rent had become barred by time; on the date of the passing of the order, it could not be directed to be paid to the landlord. The order under Section 15(1) of the Act requiring the tenant to deposit the arrears of rent was made by the Additional Controller on June 5, 1969. He was not competent to order on that day the payment of rent with effect from September 6, 1958. This contention however, is not tenable. Under Section 15(1) of the Delhi Rent Control Act, the direction for the payment of rent is given by the Controller in proceedings for recovery of possession on the grounds specified in clause (a) to proviso (1) of Section 14 of the said Act. The cause of action for filing the proceedings for the recovery of possession under clause (a) of the proviso to Section 14(1) thereforee, arises if the default had been made by the tenant in the payment of rent legally recoverable from him within two months of the date on which the notice of demand for arrears of rent had been served on him. The landlord's right to file proceedings for the recovery of possession of the premises is to be determined on the date, when he files the petition. The arrears of rent have to be determined to be due on that date. The order under Section 15(1) would, thereforee, relate back to the date of the filing of the petition. If there are no legally recoverable arrears of rent, due on the date of the filing of the petition, no order under Section 15(1) would be made. Such an order would not be permissible, even if legally recoverable arrears, which may have accrued due only after the filing of the petition, are found to be due on the date when the order is passed by the Controller.
7. The landlord cannot be made to suffer if the Controller for some reason or the other delays in passing his orders. Even the tenant may delay proceedings, by first evading service of notice of the petition and thereafter by adopting delaying tactics, the passing of the orders under Section 15(1) may be delayed. It is thereforee, clear that the order under Section 15(1) for payment of rent would be for that amount, which would be legally recoverable on the date on which the petition for recovery of possession of the premises was filed.
8. In the present case, another circumstances has also to be taken into consideration. On May 27, 1960 an undertaking had been given on behalf of the tenants that they would pay the rent with effect from July 1, 1959 at the rate of Rs. 76/7- per month in Court and for that purpose they specifically prayed for one month's time. It was further stated in categorical terms that in case of default, the tenants would be liable to eviction. An undertaking was also given for depositing further rent regularly. The order under Section 15(1) of the Delhi Rent Control Section Act passed by the Additional Controller on June 6, 1969 was thereforee, also in the nature of a direction enforcing an undertaking already given and confirmation of the orders passed by the Controller on June 1, 1960 directing that the amount of rent deposited on behalf of the tenants would remain in deposit until the dispute regarding the title between the respondent No. 1 and respondent No. 2 was settled. The part of the order of June 1, 1960 was not set aside, when the dismissal of the petition as withdrawn was set aside in appeal by the Rent Control Tribunal. The contention of the learned counsel, thereforee, has no force.
9. The learned counsel then contented that the High Court had decided the appeal in the case filed by dr. Jagmohan Lal on October 2, 1967. There was, thereforee, no justification for Khushwaqat Rai to apply for revival of the proceedings on February 17, 1969. But the argument of the learned counsel is untenable. The delay in revival of the proceedings did not affect the undertaking given by the tenants to deposit in court the rents that became due from them. They should have continued depositing rent in accordance with their undertaking . The mere fact that there was delay in making an application for revival of the proceedings would not be a justification for the tenants to make a default in the payment of rent, due from them. The tenants did not acquire a right to repudiate their liability and undertakings, because the proceedings has remained dormant for some time.
10. It will, however, be observed that Dr. Jagmohan Lal had admitted having received the arrears of rent with effect from September 1, 1958 up to June 30, 1959. Accounts have to be settled between Khushwaqat Rai and Dr. Jagmohan Lal. It was for that reason that the learned counsel for Khushwqat Rai stated at the bar that without prejudice to the contention of respondent No. 1 to the effect that the appellants had committed default in payment of arrears of rent on the date of the filling of the petition, his client would have no objection if the amount admitted to have been received by Dr. Jagmohan Lal from the appellant is allowed to be deducted from out of the amount which the appellants may be found to be liable to pay as arrears of rent. The appellants are, thereforee, allowed, as a special case, to deduct this amount from out of the amount due from them. This would be besides the sum of Rs. 840/- which the tenants say they have deposited in Curt.
11. In the result, I do not find any substance in this appeal. The same is dismissed. At the time of one month allowed by the Additional Controller for the payment of arrears of rent has already expired, the appellants are allowed two months from the date of this order to deposit in Court or pay to Khushwaqat Rai, all arrears of rent at the agreed rate of Rs. 76.44 per month that are due from them with effect from September 6, 1958 up to the end of the month previous to that in which deposit or payment is made, subject to the deduction there from of a sum of Rs. 840/- in case the same has been deposited by the tenants in Court, and the amount which is admitted by respondent No. 2 to have been received by him from the appellants as rent from September 6, 1958 to August 31, 1959. Khushwaqat Rai would be entitled to make necessary adjustments for this amount in the accountings which has to take place between him and Dr. Jagmohan Lal. The appellants are further directed to continue to pay or deposit month by month by the 15th day of each succeeding month the rent at that rate. In view of the special circumstances of the case, however there shall be no order as to costs.
12. Appeal dismissed.