P.N. Khanna, J.
(1) Appellant sued respondent for eviction on the ground of non-payment of rent etc. claiming non-payment from 1.4.1970 and rate of re to be Rs. 150.00. Respondent pleaded that rate of rent was Rs. 140.00 as after disconnection of. water supply he obtained independent connection and rent was fixed at Rs. 140.00 and he had paid at that rate rent for March and April, 1972. He also pleaded that he sent cash order for May and June, 1970 on 15.7.72 and then 2 cash orders as rent for 4 months. Appellant denied receipt of first. She did not accept the other two. The Rent Controller ordered deposit of rent U/S 15(1) but the Tribunal in appeal set aside this order. Landlady appealed to High Court.] para 5 onwards the judgment is:-
(2) This sub-section, thereforee, comes into play whenever proceedings are filed 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 of the Act The question as to whether the said proceedings are justified or not or are quite baseless, is a question to be determined by the Controller on merit But the sub-section enjoins upon the Controller to make an order giving the directions mentioned in sub-section, after giving the parties an opportunity of being heard. as and when the proceedings based on the aforesaid ground are brought before him. The Controller would, of course, hear the parties, if there is difference amongst them with regard to the amount which would be calculated at the rate of rent at which it was last paid; or with regard to the period for which arrears of rent are legally recoverable from the tenant. And, if there is no such difference the question of hearing the parties would not arise. The Controller would make the order straightaway.
(3) The learned counsel for the respondent contended that an order under section 15(1) could not be made in this case, as the very ground on the basis of which proceedings for recovery of possession were started did not exist. He referred to clause (a) of the proviso to sub-section (1) of section 14, according to which the orders for the recovery of possession could be made only if the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable within two months of the date on which a notice of demand was served on him. In the present case, the learned counsel contended, the tenant had tendered the whole of the arrears of rent by means of the three cash-orders referred to above. The learned counsel for the appellant, on the other hand submitted that the said cash orders admittedly not having been encased there was no payment. Nor was there any valid tender. The first cash order could not, thereforee, be accepted because it purported to be towards rent for the months of July and August, 1970, when the rent for the months of May and June 1970 had still remained unpaid. The cash order for the months of September and october, 1970, could not likewise . be taken as a valid tender,when the rent for the months of May to August, 1970, was yet to be paid. The landlady, thereforee, apart from other reasons, was said to be fully justified in not accepting the two cash orders for July to October, 1970.
(4) The question, whether the tenant had tendered the arrears of rent within two months from the date of service on him, of the notice of demand is a question on the merits, the decision of which may determine the fate of the main ground covered by Clause (a) of Section 14(1), on which the petition is based. But this does not debar the Controller from exercising his jurisdiction under section 15(1) of the Act, the Controller under the said provision is bound on the other hand, to make an order giving the necessary directions mentioned in me said section.
(5) In this case, after the parties appeared before the Controller, there was no dispute about the period for which the arrears of rent were legally recoverable and had remained unpaid. All rent had been paid and accepted up to April 30 1970 Rent with effect from May, 1970 had not been received by the appellant, although there was a controversy about the tendering of the subsequent rent by the respondent-tenant. Nor there remained any dispute about the rate of rent at which it was last paid, the last rent having been admittedly received at the rate of Rs. 140.00 per month. The Controller was, thereforee, justified in directing the tenant to pay rent with effect from May 1, 1970, at the rate of Rs. 140.00 per month.
(5) The learned counsel for the respondent contended that if an order under section 15(1) was made in a case, where the eviction petition based only on the ground covered by clause (a) of section 14(1), was bound to fail for the reason that the said ground could not be substantiated, the tenant may still be adversely prejudiced in his defense in a possible future eviction petition against him; because then it may be said that he has already obtained once the benefit under section 14(2). The apprehension of the learned counsel, however, is unfounded. In case, it is held after trial on merits that the landlady had failed to establish the ground for eviction as covered by clause (a) of sub-section (1) of section 14 of the Act, as no default on the part of the tenant was proved, it would then be not possible to say that the tenant has obtained the benefit under section 14(2) For then the eviction petition would fail not because of section 14(2); but because the petition lacked substance. The benefit under section 14(2) can be obtained only if in the absence of that section, an order for recovery of the possession would have been made on the ground specified in clause (a) of the proviso to sub-section (.1) of section 14 of the Act; and it was section 14(2) alone which would have come to the rescue of the respondent-tenant. The Controller or the Tribunal, as the case may be, shall have to make it clear in his or its final order as to whether the order for the recovery of possession of the premises on the ground specified in clause (a) of the proviso to sub-section (1) of section 14, was avoided, if it was avoided, merely because of section 14(2).
(6) In the result, the appeal is accepted, the order of the Rent Control Tribunal, dated December 6, 1971, is set aside and that of the Controller, dated April 29, 1971, is restored, with the modification that the respondent-tenant shall be entitled to pay to the appellant or deposit in court the arrears due up to the date of actual deposit, within one month from the date of the order.