B.C. Misra, J.
(1) This second appeal under section 39 of the Delhi Rent Control Act, 59 of 1958, (hereinafter referred to as 'the Act'), has been filed by the tenant against the appellate order of the Rent Control Tribunal dated 30th September, 1972, by which it has dismissed the appeal and affirmed the order of the Controller, dated 31st January, 1972, finally ordering eviction of the appellant on the ground of non-payment of rent and it treated it a case of second default and so the benefit of section 14(2) could not be afforded to the appellant.
(2) The appeal in this court was filed on 10th October, 1972 accompanied by a certified copy of the appellate judgment, but with a plain copy of the order of the Controller and without certified copy of the same. The appeal was accompanied by an application for exemption from filing the certified copy of the same and the exemption was granted subject to that plea of limitation. The certified copy has finally been filed in this court on 4th July, 1973 while this court was on vacation from 25th May to 7th July, 1973. In these circumstances, the respondent has contended that the appeal as filed was incompetent unless it was accompanied by the certified copy of the order of the court of first instance and the appeal be deemed to have been filed on the day the said certified copy had been filed and so it was barred by time.
(3) The appellant has filed an application (CM 298 of 1976) on 20th February, 1976 for condensation of delay under section 5 of the Limitation Act. The main ground alleged for condensation of delay is that the certified copy of the order of the Controller had been applied for on 9th October, 1972, as is apparent from the annexure filed along with the application, but the application was returned on 22nd May, 1973 on the ground that the copy could not be prepared since the file had been transmitted to the High Court. The appellant thereupon filed an application in the registry of this court for supply of the certified) copy on 30th May, 1973, which was ready on 7th June, 1973 during the vacation of the court and the same Was eventually filed on 4th July, 1973 as mentioned above. The appellant contends that the time from 9th October, 1972 up to 7th June, 1973 should be treated as time requisite in obtaining the certified copy of the order of the first court. The respondent has filed a reply to the application in which the dates mentioned above are not denied, but it is contended that there is no sufficient ground for condensation of delay.
(4) There is no doubt that in the second appeal in this court, whether against a decree or against an order, in view of Order 42 Rule I of the Code of Civil Procedure, as amended by the High Court of Punjab which has been continued in this court, the certified copy of the first court must accompany the memorandum of appeal along with the order of the lower appellate court under challenge. The appeal, thereforee, would be deemed to be filed only on the date when the certified copy had been filed; otherwise the appeal would be incompetent. It is true that the exemption for filing the same was granted on the date the appeal was admitted, but the exemption was subject to the plea of limitation and so the appellant cannot take advantage of the order granting exemption.
(5) On the material placed on record, I am satisfied that the appellant applied to the copying agency for supply of certified copy of the order of the Controller on 9th October, 1972 which was well within time for filing the appeal against the order of the Rent Control Tribunal and the same was returned on 22nd May, 1973 and the appellant thereafter filed an application for copy on 30th May, 1973. In this way the delay that can be said to be on the part of the appellant consists of only eight days. This, in the circumstances of the case, cannot be considered to be a very inordinate delay. The copy was ready on 7th June and the appellant was indeed entitled to file it on the reopening of the court on 7th July, 1973, and he did it on 4th July, 1973. In my opinion, there is no gross negligence on the part of the appellant in filing the certified copy of the order and sufficient ground has been made out for condensation of delay. As a result, I allow the application and condone the delay in filing the appeal. Costs of this application will be costs in the appeal.
(6) Coming to the merits of the case, Mr. Uma Dutta, learned counsel for the appellant, has contended that the finding of the Tribunal that the appellant had obtained the benefit of section 14(2) of the Act earlier is contrary to law and is not sustainable. The material facts of the case are that 'the appellant is a tenant in respect of some premises in Shahdara. The tenancy commenced on 1st October, 1958 and the rate of rent was Rs. 40.00 per month. The appellant tenant defaulted in payment of rent and consequently the respondent instituted a petition for his eviction on the ground, inter alia, nonpayment of rent being the ground mentioned in clause (a) of the proviso to sub-section (1) of section 14 of the Act, along with grounds of misuse and substantial damage mentioned in clauses (c) and (j) of the aforesaid proviso'. The eviction petition was numbered as 291 of 1960, and Mr. O. P. Garg, then 'Controller, passed an order under section 15(1) of the Act on 24th August, 1960 directing the tenant to pay arrears of rent within one month and continue to pay future rent in accordance with the provisions of law.' He then posted the petition for recording of evidence. It appears to me that the copy of the order under section 15(1) of the Act has not been filed on the record of the court below, but this fact has not been denied. It also stands established by the subsequent order of Mr. O. P. Garg dated 26th September, 1960 (certified copy of which is Ex. A2). Almost whole of the said order is reproduced in the order of the Tribunal, the material portion of which is to the effect that in the above said eviction petition the tenant had, in compliance with the order dated 24th August, 1960 passed under section 15 of the Act, duly deposited arrears of rent and thus the tenant became entitled to the benefit of section 14(2) of the Act. As regards the question of costs under section 15(6) of the Act the tenant admitted service of the notice, and stated that he sent two money orders, but they were not tender of the amount due to the landlord. thereforee, the Controller awarded Rs. 13.00 as costs to the landlord against the tenant. This part of the order has been construed by the Rent Control Tribunal below as the first benefit within the meaning of section 14(2) of the Act. There is no doubt that the tenant had escaped eviction by deposit of the rent in pursuance of an order passed under section 15 of the Act. This certainly constitutes a benefit under section 14(2) of the Act. If this was so, the proviso to sub-section (2) is attracted. It reads as follows :
'PROVIDED that, no tenant shall be entitled to the benefit under this subjection if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.'
There is no doubt that the appellant tenant has made default for three consecutive months subsequent to the order in the previous proceedings and the rent from 1st September, 1965 up to 31st March, 1968 was admittedly due on the date of the petition for eviction. Mr. Uma Dutta, counsel for the appellant, has contended that Ex. A2 cannot be deemed to be a benefit given to the appellant tenant. He relies upon a decision of my learned brother, D. K. Kapur J., Rama Gupta v. Rai Singh Kain, 1972 Rcj 712(1), and contends that a perusal of the order (Ex. A2) shows thus :
'THErespondent's (tenant's) learned lawyer has conceded vide his statement that he has no objection to the permission being granted to the petitioner to withdraw the present petition, with liberty to sue afresh on the same cause of action.'
Mr. Uma Dutta submits 'that the respondent had really withdrawn the petition and so has brought the case within the rule of law laid down in Rama Gupta's case'.
(7) I am unable to agree with this submission. In Ex. A2, after disposing of the grounds of eviction as non-payment of rent and referring to section 15(6) of the Act, the Controller proceeded to observe that the landlord had pleaded substantial damage to the suit premises and misuse by the tenant. He, however, found that the petition suffered from formal defects as all the ingredients of section 14(5) and Section 14(10) of the Act had not been satisfied. Under these circumstances he allowed the landlord to withdraw the petition with liberty to file it on the same cause of action. 'The cause of action, in so far as non-payment of rent for that period is concerned, on which eviction had been sought under clause (a) had existed and had culminated in the order that had been passed under section 15(6) of the Act dismissing the petition on deposit of arrears of rent made in compliance with an order under section 15 of the Act. That caused of action did not survive and the tenor of the order shows that neither parties have alleged the petition to be withdrawn in so far as the eviction on the ground of non-payment of rent is concerned and this matter has finally been concluded by the order dismissing the petition with costs. What the landlord had been allowed to agitate in another proceedings and in respect of which the necessary ingredients had not been satisfied for want of which the petition was likely to fail on account of formal defect was eviction sought on the ground of substantial damage and misuse of the premises being clauses (j) and (c) of section 14(1) of the Act. It is in respect of these causes of action that liberiy had been given to the respondent landlord to sue afresh on the same cause of action'. The petition that was allowed to be withdrawn was in respect of the surviving petition, on the same ground and not the whole of the petition which had really been disposed of by the said order.
(8) Mr. Dutta has strenuously argued that Order 23 Rule 1 of the Code of Civil Procedure allows the plaintiff to withdraw his suit or abandon part of his claim. This provision undoubtedly applies to the proceedings before the Controller under the Act. If there were any doubt relating to it, reference may be made to a judgment of the Supreme Court in Roshan Lal v. Madan Lal, : 1SCR878 . The claim of the respondent landlord in the eviction petition was the relief of eviction on the grounds mentioned in clauses (a), (c) and (]) of the relevant proviso. It was certainly open to the landlord to abandon any of the grounds of eviction and that would certainly be a part of his claim. It is difficult to accept the submission that the word 'claim' is confined only to relief and not to any grounds of obtaining the relief. I am, thereforee, unable to accept the submission that by abandoning or withdrawing the claim for eviction on the grounds mentioned in clauses (c) and (j), the respondent landlord should be deemed to have withdrawn the whole of the petition including the grounds of eviction mentioned in clause (a) thereof. As observed above, so far as the petition for eviction on the gorund of non-payment of rent mentioned in clause (a) is concerned, the same has been disposed of as prescribed by section 15 of the Act, in particular section 15(6) and section 14(2) of the Act and there was no question of withdrawing the same. I, thereforee, hold that the respondent had not withdrawn his petition for eviction on the ground of non-payment of rent mentioned in clause (a) and the same had been finally decided by the Controller by Ex. A2. The contention of the learned counsel, thereforee, fails and I agree with the Tribunal below that decision in Rama Gupta's case has no application to the facts of this case.
(9) Even otherwise, a reference to Rama Gupta's case would make it clear that in paragraph 4 of the judgment, his lordship has proceeded lo observe as follows :
'ASfar as the claim based on non-payment of rent was concerned, it could fall either because there was no valid notice of demand under section 14(l)(a) of the Act or it could fall under section 14(2) by reason of the tenant making a deposit. If the case had been decided on merits then the tenant's claim that the standard rent was Rs. 14.00 would have been} gone into and a decision would have been arrived at to determine whether there had been any default in the payment of rent. The landlord, however, took the simplest way out of this situation by withdrawing the rent deposited in the court and also by withdrawing the ejectment petition. It is impossible to come to the conclusion that the tenant got a benefit under section 14(2) when the case was withdrawn. The previous ejectment petition was not dismissed on the ground that the tenant had made a deposit, but on the ground that the landlord withdrew the ejectment petition. This voluntary act of the landlord cannot be said to be a benefit to the tenant under section 14(2) of the Act.'
The learned Judge has noticed that there was some decision of this court which had taken contrary view and reference has been made to a larger Bench for reconciling the views of this court. But, I would not enter into this controversy for the moment. Sufifice it to say, that in this case the learned Judge found as a fact that the previous eviction petition had not been dismissed on the ground that the tenant had made deposit, but on the ground that the landlord had withdrawn the case. This observation would take the facts of the present case out of the rule of law laid down by his lordship. In the instant case reference may again be made to Ex. A2, where the Controller had clearly stated that the tenant had complied with the order to deposit arrears of rent and had become entitled to the benefit under section 14(2) of the Act and the petition for eviction was dismissed under section 15(6) of the Act. The petition for eviction in the instant case had by Ex. A2 not been dismissed on the ground of withdrawal by the landlord as had been contended in Rama Gupta's case, but it had been dismissed in the ground that the tenant had deposited the rent on compliance with the order, which as noticed above would clearly distinguish the instant case from the rule of law laid down in the said case.
(10) I have, thereforee, no hesitation in endorsing the finding of the Tribunal below and find there is no merit in the appeal and the same is accordingly dismissed. In the circumstances of the case, the parties are left to bear their respective costs.
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