Leila Seth, J.
(1) This is a second appeal arising out of an order passed u/s 15 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act). Brief facts are :
(2) On 20th October, 1969, the respondent Smt. Raj Rani, filed an application for eviction of the tenant appellant, Siri Pal Jain. In the said application it was alleged that the tenant was in occupation of the premises on a monthly rent of Rs. 30 that a decree for Rs. 270 towards the rent for the period 1st February, 1967 to 31st October, 1967 had been passed by the Additional Judge Small Cause Court, Delhi on 27th August, 1968; further besides this decretal amount, rent w.e.f 1st November, 1967 was also due and the tenant-appellant had not paid it in spite of service of the notice of demand. An ex-parte decree was passed on 17th December, 1969. An application for setting aside the ex parte decree was dismissed by the Additional Rent Controller on 10th August, 1970. Thereafter, the respondent-landlady took actual possession of the premises on 3rd September, 1970 in execution of the decree passed in her favor. The said ex parte decree dated 17th December 1969 was, however, set aside in appeal by the Rent Control Tribunal on 17th November, 1971. Thereafter, a written statement was filed on 25th April, 1972 by the tenant- appellant, but no plea of suspension of rent was raised. On 15th July, 1972 the Controller, Delhi, passed an order u/s 15 of the said Act directing the tenant appellant to deposit the arrears of rent at the rate of Rs. 30 per month for the period 1st February, 1967 to 3rd September, 1970. He also allowed adjustment of arrears of rent which had already been deposited in court. The tenant-appellant being aggrieved by this order filed an appeal under Section 38 of the said Act on 31st August, 1972. Thereafter on 26th September, 1972, the tenant-appellant filed an application for restitution of possession of the premises. This application I am informed is still pending. The Rent Control Tribunal by its order dated 18th December, 1972 modified the order of the Controller dated 15th July, 1972 to the extent that it directed the tenant-appellant to deposit arrears of rent at the reduced rate of Rs. 15 per month w.e.f 1st November, 1967 to 2nd September 1970 within a month of this order. The order was made without prejudice to the final decision regarding the rate of rent. The tenant, still not being satisfied with the order, appealed under Section 39 of the said Act to this Court. The landlady did not file any cross appeal. I am informed, however, that some time before July, 1973 the tenant-appellant deposited the amount of arrears of rent and this was withdrawn by the landlady respondent.
(3) On the basis of these facts learned counsel for the appellant has urged that since the tenant is out of possession since 3rd November, 1970 the order dated 15th July, 1972 for deposit of rent from 1st November, 1967 to 3rd September, 1970 is without jurisdiction, as according to him an order under Section 15 of the said Act can only be passed if three conditions are satisfied : (1) that a petition for eviction has been filed u/s 14(2) that the relationship of landlord and tenant subsists, and (3) that proceedings for recovery of possession are in existence. It is also contended that unless and until possession is restored to the tenant, the entire payment of rent is suspended. In support of the above proposition learned counsel has cited Rajinder Prasad v. Suraj Mal etc. 1972 RLR 146 and N.K.Baslas v. Kishan La I, 1973 RLR 14.
(4) In Rajinder Par shad v. Suraj Mal etc. 1972 RLR 146, P.N.Khanna, J. had to deal with the question, that if a portion of the premises has been surrendered and an eviction application is filed u/s 14 thereafter, what will be the rate of rent. Will it be the original contracted rent or a reduced rent because a certain portion has been surrendered This will have to be determined first before an order u/s 15(1) can be passed. In that case the original rent was Rs. 75 which had been reduced according to the tenant in 1961 to Rs. 60 because a portion of the premises had been surrendered. It was further stated that in 1965, the tenant had been deprived of a further portion of the demised premises. The Additional Controller on an application for eviction had made an order directing the tenant to deposit rent at Rs. 60 per month from January 6, 1968 onwards till the date of the order and thereafter future rent month by month but as there was a dispute about the rate of the rent, the amount deposited was not to be paid till the finat decision on the application By the time the matter came before the Rent Control Tribunal in appeal, the civil court had reduced the rent to Rs. 55. thereforee, the Rent Control Tribunal passed an order u/s 15(1) directing the tenant to deposit the arrears of rent at Rs. 55 per month and future rent at the same rate. This order of the Rent Control Tribunal was upheld by P.N. Khanna. J In N.K. Baslas v. Krishan Lal 1973 R L R 14, the two questions which arose for decision were :
'WHETHERthe plea of the tenant that he was deprived of the facilities for using the rear courtyard, handpump and the telephone, entitles him to the suspension of the whole or abatement of a part of the rent payable by him to the landlord 2. Whether a final finding on the merits of this plea must be given by the Controller before passing an order under section 15(2) ?'
It is apparent neither of the above two decisions are relevant to the point in issue before me.
(5) Learned counsel for the respondent however, has urged that there is no substantial question of law and as such Section 39 of the said Act is not attracted. His main contention, however, is that an eviction petition having been filed u/s 14 at a time, when the tenant was in possession, an order can be made u/s 15 even if the tenant is no longer in possession on the date of the order. He submits that it is -only necessary to limit the order under Section 15 to the date when the tenant was in possession. It is also submitted that the question of suspension of rent till the possession is restored does not arise in this case as no future rent deposit was ordered. The tenant was only ordered to pay the rent for the period when he was in possession i.e. till 3rd September, 1970.
(6) Having heard the parties it appears that there is merit in the main contention of the respondent. The right of the tenant to recover possession or get restitution after seeting aside of the ex parte decree is a separate right An application has been filed by him for restitution as above mentioned dated 26th September, 1972 which I am informed, is still pending. It appears that the relevant dates, inter alia, to be considered while construing an order u/s 15 are, the date from which the tenant has neither paid nor tendered the whole of the rent legally recoverable and the date till which payment of lent has been ordered from 1st November, 1967 till 2nd September 1970: No question of suspension of rent arises as admittedly, the relationship of tenant and landlord subsisted during this period. An application having been mode u/s. 14 of the said Act after a notice of demand, an order u/s. 15 of the said Act could be passed. The ex-parte decree passed on 17th December, 1969 having been set aside on 17th November, 1971, the proceedings for eviction were revitalised. It is true that on the said date the tenant was no longer in actual possession but his filing of the written statement on 25lh April, 1972 indicates the proceedings u/s. 14 had been revived. Further, the facts that the tenant has made an application for restitution of the premises, which is pending, and has also deposited the amount, which has since been withdrawn by the landlady-respondent, are relevant.
(7) For the reasons outlined above, it is clear that the decision ordering the appellant to deposit arrears of rent at the rate of Rs. 15 per month for the period 1st November, 1967 to 2nd September, 1970, when the tenant was admittedly in possession is correct.