S.N. Shankar, J.
(1) Aggrieved from the decision of the Rent Control Tribunal dated November 24, 1971 that an order under sub-section (1) of section 15 of the Delhi Rent Control Act, 1958, hereafter called 'the Act', could be passed by the Controller on the basis of prima fade evidence indicating the existence of relationship of landlord and tenant, the tenant Ram Parkash Kapur, hereafter called 'the appellant' filed second appeal No: 306 of 1971 in this Court. The learned single Judge, before whom this appeal came for hearing, having regard to the fact that the question affected a large number of cases, referred the appeal for decision by a larger Bench. By the same order, the Tribunal also held that in the facts of this case rent for the period claimed by the respondent Bhagwanti Devi was not barred by time. This finding has also been assailed in this appeal. It appears that Bhagwanti Devi had also filed an appeal before the Tribunal which the Tribunal accepted by the same order. Aggrieved from this part of the order. Ram Parkash Kapur filed a separate appeal in this Court (S.A.O. 67 of 1972). The subject matter of the two appeals being the common order, both S.A.O.s 306/71 and 67/72 have, thereforee, come up for decision before us.
(2) The appeals have arisen in the following circumstances :- The appellant occupied portion of the property bearing No: 6, Original Road, Karol Bagh, New Delhi with effect from October 8, 1956 at an agreed rent of Rs.100.00 per month. The property was let to him by one Chuni Lal Sabharwal. In the year 1959 the appellant applied for fixation of standard rent of the premises let to him. Chuni Lal Sabharwal applied for eviction of the appellant on the ground of non-payment of rent. On January 11, 1960 Rent Controller passed an order under section 15(1) of the Act requiring the appellant to deposit arrears of rent with effect from May 8, 1959 at the rate of Rs. 80.00 per month. The appellant deposited the arrears then due at this rate and the eviction case was, for this reason, consigned to record room and the application for fixation of standard rent alone remained pending. On January 4, 1961, the Controller fixed the standard rent of the premises at RS. 100.00 per month. Aggrieved from this the appellant went up in appeal before the Tribunal. The Tribunal accepted the appeal and remanded the case. The landlord filed a second appeal in the High Court against this order. During the pendency of the appeal, the landlord Chuni Lal Sabharwal died on July, 4, 1968. His widow, the present respondent in both the appeals, applied for being imp leaded as the appellant in place of her deceased husband in the appeal then pending in the High Court. Her case in the application was that Chuni Lal Sabharwal had been managing the property for and on her behalf as she was an illiterate person and that he had left behind the applicant as the widow and four sons and four daughters but she alone was entitled to be imp leaded as appellant in place of the deceased and that the other four sons and four daughters may be imp leaded as respondents 2 to 9. Notice of the application was sent to the appellant. The appellant resisted the application and filed a reply. He contended that he knew only Chuni Lal Sabharwal as the owner and landlord of the premises and that the applicant alone was not entitled to continue the proceedings. After filing this reply, he, however, did not appar to contest the application. By order dated February 17, 1969, the application was accepted and the respondent was substituted in the appeal in place of the deceased Chuni Lal Sahbarwal and the four sons and four daughters of the deceased were imp leaded as respondents 2 to 9. On October, 3, 1969 the appeal was finally dismissed by this Court on merits so that Rs. 100.00 remained to be the standard rent of the premises.
(3) On May 30, 1970, the respondent filed an application for eviction of the appellant out of which these two appeals have arisen. The grounds on which eviction was sought were non-payment of rent and bona fide personal need. The respondent claimed that the appellant was in arrears of rent amounting to Rs. 2480.00 for the period with effect from May 8, 1959 to September 7,1969 at the rate of Rs. 20.00 per month (being the difference between Rs. 80.00 the rate of interim rent fixed by the Controller and RS. 100.00, the standard rent as finally determined by the court) and had also not paid the subsequent rent at the rate of Rs.100 / per month for the period with effect from September 8, 1969 to May 7, 1970. The appellant contested the application and denied that the respondent alone was her landlady. He maintained that after the death of Chuni Lal Sabharwal all his heirs jointly (including the respondent) were the persons entitled to receive rent. Acting under sub-section (1) of section 15 after hearing the appellant, the learned Additional Rent Controller, by his order dated March 30, 1971, found that there was prima facie evidence on record to show that relationship of landlord and tenant existed between the parties and on this basis passed an order requiring the appellant to deposit the arrears of rent as claimed by the respondent as also future rent at the rate of Rs.100.00per month by the 15th of each succeeding month. He also held that because interim rent of the premises at the rate of Rs.80.00was fixed to be operative from May 8, 1959 and the standard rent at the rate of Rs.100.00 was fixed on October 3, 1969, cause of action to claim the difference of Rs. 20.00 per month accrued to the respondent only on October 3, 1969 and, thereforee, her claim for Rs. 2480.00 for the period with effect from May 8, 1959 to September 7, 1969 was not barred by time. The appellant had pleaded that he had already made certain deposits towards the rent of the premises in the courts of Shri P.K. Bahri and Shri P.K. Jai under section 27 of the Act. The learned Additional Rent Controller held that he was entitled to adjust these amounts in the deposits that he was required to make. In the concluding part of the order he said: 'this order was without prejudice to the pleas of the parties'. Aggrieved from this, both the appellant and the respondent filed separate appeals before the Rent Control Tribunal. In agreement with the learned Additional Rent Controller, the Tribunal held that the evidence on record prima facie showed that the respondent was Realizing rents of the premises from the appellant after the death of her husband and thereforee, had the locus stardi to claim rent and to file the eviction application against the appellant. He also agreed with the learned Additional Rent Controller that claim of the respondent for no part of the period between May 8, 1959 to September 7, 1969 was barred by time. In this view, he dismissed the appeal filed by the appellant. Dealing with the appeal of the respondent against the finding that the appellant could claim adjustment of rents deposited by him under section 27 of the Act, the Tribunal held that these deposits had not been made by the appellant in favor of the respondent alone but the deposits were in favor of all the heirs of deceased Chuni Lal Sabharwal (including the respondent) and in these circumstances could not be availed of by the appellant to claim adjustment against the rents claimed to be due by the respondent alone. With this finding he accepted the appeal of the respondent. Hence these two appeals before us as stated earlier.
(4) Shri V. M. Issar argued the case on behalf of the appellant and Shri Bahal Singh appeared for the respondent. Following questions are involved in these appeals as stated in the referring order :-
(1)Whether the Controller had jurisdiction to pass an order under section 15(1) of the Act 'on the basis of prima facie evidence in regard to the existence of relationship of landlord and tenant between the parties without finally deciding this issue (2) Whether in the facts of this case, the sum of Rs. 2480.00 claimed by the respondent was barred by time. (3) Whether the appellant was entitled to claim adjustment of rents deposited by him under section 27 of the Act
FIRST QUESTION: The decision of this question turns on the correct interpretation and meaning of section 15 of the Act which reads as under :- 15. 'When a Tenant can get the benefit of Protection against Eviction:-
(1)In every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. (2) If, in any proceeding for the recovery of possession of any premises on any ground other than that referred to in sub-section (1) the tenant contests the claim for eviction, A the landlord may, at any stage of the proceeding, make an application to the Controller for an order on the tenant to pay to the landlord the amount of rent legally recoverable from the tenant and the Controller may, after giving the parties an opportunity of being heard make an order in accordance with the provisions of the sub-section. (3) If, in any proceeding referred to in sub-section (1) or sub-section (2) there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section (1) or sub-section (2) as the case may be until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf. (4) If, in any proceeding referred to in sub-section (1) or sub-section (2), there is any dispute as to the person or persons to whom the rent is payable, the Controller may direct the tenant to deposit with the Controller the amount payable by him under sub-section (1), sub-section (2) or sub-section (3), as the case may be, and in such a case, no person shall be entitled to withdraw the amount in deposit until the Controller decides the dispute and makes an order for payment of the same. (5) If, the Controller is satisfied that any dispute referred to in sub-section (4) has been raised by a tenant for reasons which are false or frivolous, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application. (6) If a tenant makes payment or deposit as required by sub-section (1) or sub-section (3), no order shall be made for recovery of possession on the ground of default in the payment or rent by the tenant, but the Controller may allow such costs as he may deem fit to the landlord. (7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defense against eviction to be struck out and proceed with the hearing of the application'.
(5) The Act, by section 14, affords protection to that class of persons only who are 'tenants' within the meaning of the Act. Section 15 then specifies the conditions 'when a tenant can get the benefit of protection against eviction'. Sub-sections (1), (2) and (4) of this section authorise the Controller, in terms mentioned in the sub-sections, to make an order against such 'tenants' directing payment or deposit of arrears of rent. Sub-section (3) also says that order under this provision shall be against a 'tenant' if he raises a dispute as to the amount of rent payable by him. The section thus does not authorise the Controller to pass any order against a person who is not a 'tenant' within the meaning of the Act. The expression 'tenant' is defined in section 2(1) of the Act in the following terms:
2.'(1) 'tenant' means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be, payable and includes a sub-tenant and also any person continuing in possession after the termination of his tenancy but shall not include any person against whom any order or decree for eviction has been made';
(6) The tenant, according to this definition, would be any person by whom or on whose account or behalf rent of the premises in respect of which eviction is claimed is 'payable'. This concept postulates the subsistence of a contract of tenancy between the landlord and the tenant as envisaged in section 105 of the transfer of Property Act. (See Om Parkash Gupta v. Dr. Rattan Singh 1963 P.L.R. 543 passage extracted later in the judgment). On the assumption that such a relationship exists, the Act then proceeds to confer the benefit of protection only to that class of tenants of the Transfer of Property Act who fall within the definition of this expression in the Act. Unlike the composite definition of 'lease' including the 'Lesser' and 'lessee' and the privity between the two and the rights and obligations inter se flowing from the contract of tenancy as envisaged in section 105 of the Transfer of Property Act, the Legislature, for purposes of the Act has defined the expression 'tenant' and 'landlord' separately with reference to different criteria. The tenant has been defined in relation to the premisses in respect of which rent is payable by him or on his behalf. The 'landlord' has been defined in section 2(e) of the Act with reference to his right to receive the rent of the premises. The moment, thereforee, a person, against whom an order for eviction under the Act is claimed, concedes that rent of the premises is payable by him or on his behalf he falls within the definition of a 'tenant' as defined in the Act and is entitled to the protection granted by section 14 of the Act. In spite of this concession, in the scheme of the Act, it would still be open to the tenant to maintain that he is not liable to pay rent of the premises to the landlord who claims to be entitled to it. Section 15 proceeds on the basis of this concept of 'landlord' and 'tenant' as provided for by the Act. Sub-section (4) of section 15 thus authorises the Controller to make an order in accordance with sub-section (1) or sub-section (2) when the dispute is only 'as to the person or persons to whom rent is payable' i.e. when the dispute is only as to who is the landlord in respect of the premises and there is no dispute that rent of the premises is payable by the person against whom order under the sub-section is to be passed. This is because such a person admits himself to be a tenant in respect of the premises and as such entitled to the protection of the Act. Same is the position in sub-section (3). The Controller is empowered to make an order for payment or deposit of arrears of rent under sub-section (3) because the person against whom the order is to be made does not deny that rent of the premises is payable by him but raises a dispute 'as to the amount of rent payable' by him. Under both the sub-sections thus the Controller is empowered to enforce the condition laid down in section 15 on which alone the 'tenant' can get the benefit of protection of the Act. This would not be the position under sub-section (1) of section 15 if ihe person against whom order is to be made denies his status of a tenant under the Act by disputing his liability to pay rent in respect of the premises. By this denial he repudiates the benefit of protection afforded by Act. Question of enforcing condition under which the protection would be availed of by him would not arise in such a case until the Controller decided that such a person was in fact a 'tenant' whithin the meaning of the Act. An order under sub-section (1) of section 15 can be passed only against a tenant under the Act. This is a jurisdictional fact to be found by the Controller before proceeding to pass the order.
(7) It is now settled law that even though the Act in terms contains no provision yet the Controller acting under the Act has jurisdiction to determine the issue of subsistence of relationship of landlord and tenant both qua the premises as well as the landlord if a dispute is raised in this regard. In Om Parakash Gupta v. Dr. Rattan Singh 1963 P.L.R. 543 the Supreme Court on page 547 of the report said:-
'IT is true that the Act does not in terms authorise the authorities under the Act to determine finally the question of the relationship of landlord and tenant. The Act proceeds on the assumption that there is such a relationship. If the relationship is denied, the authorities under the Act have to determine that question also, because a simple denial of the relationship cannot oust the jurisdiction of the tribunals under the Act. True, they are tribunals of limited jurisdiction, the scope of their power and authority being limited by the provisions of the Statute. But a simple denial of the relationship either by the alleged landlord or by the alleged tenant would not have the effect of ousting the jurisdiction of the authorities under the Act, because the simplest thing in the world would be for the party interested to block the proceedings under the Act to deny the relationship of landlord and tenant. The tribunals under the Act being creatures of the Statute have limited jurisdiction and have to function within the four corners of the statute creating them. But within the provisions of the Act, they are tribunals of exclusive jurisdiction and their orders are final and not liable to be questioned in collateral proceedings like a separate suit or application in execution proceeding........'
(8) For the purpose of passing an order under sub-section (1) of section 15, thereforee, the Controller will have the jruisdiction to decide whether the person against whom order is to be made is a 'tenant' under the Act or not.
(9) The question then arises if the Controller is bound to decide this question on merits before passing the order or he can make the order on the basis of prima-facie evidence without finally deciding this question. The answer, in our view, has to be in the negative. This is what the Supreme Court has said in Om Parkash Gupta's case (supra) (i) :-
'NOWproceedings under section 15 are primarily meant for the benefit of the tenant, and the section authorises the Controller, after giving the parties an opportunity of being heard, to make an order directing the tenant to pay the amount found on calculation to be due to the landlord or to deposit it with the Controller, within one month of The date of the order. Such an order can be passed by the Controller for the benefit of the tenant, only if the Controller decides that the person against whom the proceedings for eviction had been initiated was in the position of a tenant.'
(10) Further, it would be seen that sub-section (1) of section 15 envisages a decision by the Controller on two matters: (i) whether the person against whom order is to be made is a tenant and (ii) as to what is the amount that he has to pay or deposit. In M.M. Chawla v. J.S. Sethi : 2SCR390 , Mr. Justice Shah speaking for the Court in relation to the amount to be paid or deposited, said :-
'BYsub-section (1) of S. 15 it is provided that the Controller shall make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order an amount calculated at the rate at which rent was last paid. But the clause in terms provides that this has to be done after giving the parties an opportunity of being heard. If the Controller was obliged to pass an order calling upon the tenant to pay to the landlord, or to deposit in his court the amount of rent calculated at the rate at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant, there would be no scope for a hearing to be given to the tenant and it would put a premium upon false claims by landlords. Even though the expression 'shall' is used, it is, in our judgment, directory. The tenant is entitled to show that he has paid the rent claimed from him. If he proves that he has paid the rent, the demand for deposit of arrears under sub-section (1) of s. 15 cannot be made. . . . '
(11) The Controller thus is bound under this sub-section to finally decide and determine the plea of payment if raised in the proceedings before making an order under sub-section (1) of s. 15. We see nothing in the sub-section to indicate that the Legislature intended that the Controller could leave undecided the other more fundamental question as to whether the person against whom the order was to be passed was or was not a tenant within the meaning of the Act.
(12) Reference in this connection may also be made to the Division Bench decision in D.R. Gellatly v. J.R.W. Cannon : AIR1953Cal409 , the Bench said -
'MR.Bose, who appears for the petitioner, contended that since that defense had been taken in the written statement, there could not be any question of making any order under s. 14(4) till the issue raised by that defense was decided against his client and it was held that he was, in fact a tenant. That contention appears to be right. The Rent Act can apply only to tenants. In fact, S. 14(4) itself says that an order under that section will be made if the 'tenant' contests the suit. If the person, sued as a tenant, pleads that he is not a tenant, then till that question is decided against him, there can be no question of proceeding against him as a tenant or applying to him s. 14(4) or any other provision of the Rent Act.'
(13) The penalty provided by sub-section (7) of section 15 for non- compliance with the order under sub-section (1) of section 15 also points to the same conclusion. Failure to make the payment or deposit as required by order under this sub-section can have drastic consequences and can result in the striking out of the defense of the tenant. Though sub-section (7) confers a discretion on the Controller in this regard but in case of non-compliance of an order passed by the Controller under section 15(1) a full Bench of this Court, to which one of us was a party (Shankar, J.) in S.A.O. 200 of 1967, Delhi Cloth and General Mills Co. Ltd. v. Hem Chand and another, decided on May 8, 1972, having regard to the scheme of sections 14 and 15 has held that :-
'BYthe first part of sub-section (2) of section 14 the Legislature has made clause (a) subject to sub-section (2) by providing that no order for recovery of possession shall be made on the ground specified in clause (a) if the tenant makes payment or deposit as required under section 15. This is an additional protection conferred on the tenant. In case he does not avail of this additional protection also and fails to make the payment or deposit 'as required by section 15' the conditions mentioned in clause (a) are fully satisfied and the Controller is bound under section 14 to pass an order for recovery of possession in favor of the landlord. The order of the Controller refusing to strike out the defense under sub-section (7) of section 15 in such a case will have the effect of depriving the landlord of this right. The controller will thus have no power (and also no jurisdiction in that sense) to condone the failure of the tenant for purposes of section 14(2). In other words if eviction is claimed by the landlord under clause (a) of the proviso to sub-section (1) of section 14 and the tenant fails to make the payment or deposit as required by section 15 the Controller shall have no power to condone the delay to have the effect to wipe off the default.'
(14) The Bench, of course, proceeded on the assumption that the tenant against whom order was made was a tenant both with respect to the premises as well as qua the landlord but in a case where the alleged tenant denied that he was a tenant in respect of premises and if the order under section 15(1) is made without deciding this controversy the result would be that in the event of default in such a case the defense of the tenant will have to be struck out without hearing on the question as to whether he is at all a tenant by whom rent of the premises is payable. This could not be the intention of the Legislature. The Scheme of the Act thus appears to be that the Controller before passing an order under section 15(1) should decide whether the person against whom order is to be made is a tenant qua the premise from which his eviction is sought.
(15) It is further significant that in the scheme of section 15 while the power to fix interim rent is expressly conferred on the Controller by sub-section (3) of section 15 no similar provision is made in subsection (1). On the contrary, the Controller is enjoined to make the order only after giving the parties 'an opportunity of being heard'. This phrese, to our mind, is significant and indicates the intention of the Legislature that the Controller has to pass the order under this sub-section only after deciding the facts necessary to give him jurisdiction to do so; otherwise the specific provision of hearing in the context of the sub-section will be a redundant formality.
(16) This question came up before this Court in S.A.O. 129/72 Nand Kishore Sharma v. Brij Behari NathNigam decided on July 13, 1972 where an earlier decision of this Court in Kulwant Kaur v. Jiwan Singh ((r)) was followed. We are in respectful agreement with the line of reasoning adopted in Kulwant Kaur' s case as also the conclusion that the Controller cannot pass the order on a prima fade view but we are unable to subscribe to the view that he is bound to decide the existence of relationship of landlord and tenant 'between the parties'. According to us, ',it is sufficient for him to have the jurisdiction to pass the order, to decide that rent of the premises is payable by the person against whom order is to be passed or on his account or behalf. The moment he arrives at this conclusion he is competent to pass an order in accordance with section 15(1) as provisions of section 15(4) are immediately attracted. He need not further decide at that stage if the person claiming the rent to be due to him is entitled to receive it. We are not unmindful of the situation that where eviction is sought on the ground of non-payment of rent the only two issues that principally arise are whether the person seeking to recover rent is entitled to receive it and whether the rent is payable by or on account or behalf of the person against whom the order of eviction is sought. In a given case the evidence for decision of these points may be common. The Controller may in such a case with a view to expeditiously decide the matter try both the questions together. But that does not mean that for purposes of having jurisdiction under sub-section (1) of section 15 the Controller is bound to determine the existence of tenancy qua the landlord also, as held in this case.
(17) We are, for reasons aforesaid, also unable to subscribe to the view taken in Messrs Rai & Sons (Private) Limited v. Messrs Phelps and Company (Private) Limited, 1970 Rent Control Journal 924 that because the Controller had jurisdiction to determine the issue of tenancy he also had jurisdiction to pass interim orders under section 15(1) without determining the jurisdictional fact as to tenancy qua the premises.
(18) Shri Bahal Singh contended that all that was required under subsection (1) of section 15 was that an 'opportunity of being heard' should be given to the parties and when such an opportunity had been granted there was no bar to the Controller passing the order on prima facie evidence. This submission cannot be accepted. In M.M. Chawla's case (supra) the Supreme Court made it unambiguously clear that 'if the tenant proves that he has paid the rent the demand for deposit of arrears under section 15(1) cannot be made'. This is because it was seen that 'hearing' provided in the sub-section was not an empty formality but enjoined on the Controller a duty to decide the controversy. The submission of the learned counsel, thereforee, is not sustainable.
(19) The learned counsel then referred us to V.N. Vasudeva v. Kirori Mal Lahariwala : 6SCR181 where it was observed that an order under s. 15(l) of the Act was not a final order but was preliminary to the trial of the case. This, he contended, meant that no final adjudication of the plea of tenancy was called for at the stage of making the order. In Vasudeva's case the main plea of the tenant, who was a legal practitioner, was that there was an agreement between him and the landlord according to which his professional fees were to be recouped from the rent as and when the same fell due and that in pursuance of the agreement, on previous occasion a sum RS.1800.00 had already been allowed by the landlord to be adjusted towards rent. It was urged before Supreme Court that proper opportunity ought to have been allowed by the Controller to the tenant to prove this plea by leading evidence and that an order for deposit of arrears could be made only at the end of the case and not at the interlocutory stage. The plea was repelled. In the context of the provision in the latter part of sub-section (1) of section 15 which requires the tenant to deposit future rent as and when it fell due month by month by the 15th of each month, it was observed, on page 443 of the report, that this indicated that the order under sub-section (1) was not a final order but was preliminary to the trial of the case. This observation can in no sense be construed to mean that the Controller was authorised to make an order for payment or deposit of rent without determining the controversy of subsistence tenancy. The plea of adjustment set up in that case, it was also seen, was not a part of tenancy contract but was based on a separate agreement. It was, thereforee, observed in this background that for purposes of the interim order it was not necessary that there should have been a full trial on the plea of the agreement set up. This authority, thereforee, is of no assistance to the learned counsel.
(20) Lastly, it was urged that the interpretation that we have put on sub-section (1) of section 15 would defeat the purpose for which the .Legislature enacted this provision in as much as the final determination of the controversy as to tenancy would delay the payment or deposit of rent by the tenant and would enable him to continue of the premises without payment of rent. Reference was specifically made to the following observations in Kulwant Kaur's case , where after staling that the Controller was bound to determine the existence and relationship of landlord and tenant between the parties (regarding which we have already expressed our opinion) the learned Judge went on to say :-
'IT is to be noted that the Controller has only to determine such a jurisdictional condition before passing order under section 15(1). The consideration of other questions relating to the merits of the case must be postponed for decision after passing the order under section 15(1)'.
(21) It was urged that this observation meant that the Controller should not proceed with the consideration of other questions between the parties on merits without first deciding the controversy regarding tenancy. The argument that the correct interpretation of section 15(1) is likely to delay the proceedings will not justify the Court to interpret this provision to mean anything else than what it really means. We also do not see that the observations referred to above were intended to mean that the Controller should stay its hands and decide the issue of tenancy as a preliminary issue and not proceed with the eviction application till this question is decided. As we have already pointed out when eviction is claimed solely on the ground of non-payment of rent the issue for purposes of order under section 15(1) will be whether the alleged tenant is a tenant in respect of the premises i.e. whether the rent of the premises is payable by him or on his account while the issue on merits would be whether he is also the tenant qua the landlord seeking his eviction. The Controller may, in a given case if the evidence on both these issues is common, in exercise of his judicial discretion, postpone the passing of order under section 15(1) but such cases in practice will be few. The person denying to be a tenant qua the premises as well as the landlord will on his own plea be repudiating the protection of the Act against eviction and render himself liable to be proceeded against in civil court in a regular suit on the basis of title. No tenant would normally in the ordinary course place himself in such a situation. In case he admitted his tenancy qua the premises, sub-section (4) of section 15 would at once come into operation and the Controller will have full jurisdiction to pass an order for payment or deposit of rent without deciding the other controversy. The apprehension of likely delay is, thereforee, more imaginary than real and the argument is without substancs.
(22) In the result, our answer to the first question is that the controller has no jurisdiction to pass an order under sub-section (1) of section 15 of the Act on the basis of prima fade evidence and that for the purposes of an order under this sub-section he is bound to decide before passing order, if an issue is raised, whether the person against whom the order is to be made is a tenant in the premises within the meaning of the Act i.e. whether rent is payable by him or on his account or behalf for the premises.
Secondquestion Claim for Rs. 2480.00covered by this question relates to the arrears of rent at the rate of Rs.20.00per month for the period with effect from May 8, 1959 to September 7, 1969. It is admitted in this case that on the application filed by the appellant for fixation of standard rent, interim rent of the premises was fixed by the Controller by order dated January Ii, 1960 at the rate of Rs.80.00per month effective from May 8, 1959. This was an order which the Controller was empowered to make under section 10 of the Act. By section 50, the jurisdiction of the civil court in respect of the matters which the controller is empowered by or under this Act to decide is barred. After the fixation of the interim rent of the premises at the rate of Rs.80.00the respondent was in view of this section, barred in law from claiming rent from the appellant at a rate more than Rs.80.00per month. The cause of action to enforce the claim of arrears thus arose to her only when standard rent was finally determined by the court at Rs.l00.00per month by order dated October, 3, 1969. Her claim for arrears at the rate of the difference between the interim rent and the standard rent for the period with effect from May 8, 1959 to September 7,1969, in these circumstances, was not barred by time on May 30, 1970 when she filed the application for eviction. We answer the second question accordingly.
(23) S.A.O. 306/71 involved these two questions only. Though we have upheld the contention of the appellant that order under section 15(1) could not be passed by the learned Additional Rent Controller on the basis of prima fade evidence but we find that the dispute raised by the appellant in this case was not that he was not liable to pay rent in respect of the premises. He in fact admitted his tenancy qua the premises and claimed to be entitled to the protection under the Act. His contention was that the respondent or to be more accurate the respondent alone, was not entitled to claim the rent. He maintained that the respondent along with her four sons and four daughters was entitled to receive rent of the premises. This dispute as such was as to the person or persons to whom the rent was payable. Provisions of sub-section (4) of section 15 were, thereforee, attracted and the Controller was fully entitled to make an order directing the appellant to deposit the rent in his favor with a further direction that no person shall be entitled to withdraw the rent in deposit until he decides the dispute as to whether the respondent is entitled to receive rent from the appellant. S.A.O. 306 of 1971, for this reason, is accepted partially to the extent that the order passed by the learned Additional Rent Controller will be considered to be an order under section 15(4) and not under section 15(1).
THIRDQUESTION: Learned counsel for the appellant did not say a word against the finding that the deposits made by the appellant under section 27 of the Act were not in favor of the respondent alone but were in favor of the respondent and her sons and daughters and thereforee, were not valid for purposes of the proceedings initiated by the respondent. We see no infirmity in the conclusion of the Tribunal on the basis of these facts. The appellant could not claim adjustment of these amounts towards the arrears that were required to be deposited by him S.A.O. 67 of 1972 involved this point only and we see no merit in it.
(24) In the result S.A.O. 306/71 is partially accepted to the extent that the order of the Additional Rent Controller requiring deposit of arrears and future rent will be considered to be an order under section 15(4) and not under section 15(1) of the Act. S.A.O. 67/72, in the circumstances of the case, is dismissed. We leave the parties to bear their own costs of both the appeals in this Court.