D.K. Kapur, J.
(1) This is an appeal by the landlord Shri Tula Ram under section 39 of the Delhi Rent Control Act, 1958. The application for eviction in the present case was on the ground of non-payment of rent under section 14(1)(a) of the said Act. Arrears of rent had been claimed with effect from 1st January, 1964, at the rate of Rs. 200.00 per month. A notice of demand dated 4th August, 1964 was served on the tenant, Shri B. K. Aswani. According to the the landlord, this was acase of second default an J, hence no order under section 15(1) of the Act was passed. It was claimed by the landlond that in a previous case the tenant had already taken the benefit of making a deposit under section 15(1) of the Act and consequently failure to pay the rent in response to the notice of demand eatitled the landord to a decree for ejectment. This case was accepted by the Additional Rent Controller, who ordered the tenant's ejectment by the order dated 27th March, 1967.
(2) The tenant appealed to the Rent Control Tribunal, where it was held that in the previous case no benefit, had been taken under the provisions of section 15(1) of the Act and, hence the present ejectment petition had to fail. The landlord has now appealed to this Court to challenge the decision of the Kent Control Tribunal.
(3) The question whether the tenant has previously obtained the benefit of making a deposit under section 15(1) of the Act has to be determined by reference to the facts of the previous case. In that case which was also brought on the ground of non-payment of rent, there was no deposit made under section 15(1) of the Act and the defense of the tenant was sruck out under section 15(7) of the Act and an ejectment order was passed by the then Rent Controller, Sri Asa Sing Gill on 1st April, 1963. An appeal was taken by the tenant to the Rent Control Trit unal, then Shri Pritam Singh Pattar. The parties compromised appeal and agreed that the tenant would deposit a sum of Rs. 3,900.00 representing the rent from 1st May, 1961 to 30th June, 1963 on or before 18th July, 1963 in the Court of the Rent Controller. If the deposit was not made the eviction decree would stand, otherwise it would be set aside. In fact the tenant did make the deposit within the time fixed by the compromise. The Rent Control Tribunal held in the decision under appeal that the order passed on a compromise before the Rent Control Tribunal could by no stretch of imagintion besaid -to be an order under section 15(1) of the Act. Learned counsel for the appellant contests this decision.
(4) Under the provisions of section 14(2) of the Delhi Rent Control Act, 1958, a tenant who makes a deposit as required by section 15 is saved from ejectment on the ground of non-payment of rent. However, this benefit cannot be availed of by him if he thereafter makes a default in payment of rent for three consecutive months. The question whether the tenant in the present case got the benefit of avoiding ejectment by making a deposit under section 15 is very easily answered, in the previous case the tenant did not make any deposit under section 15(1) of the Act and sufferred a decree of ejectment. However, on appeal before the Rent Control Tribunal, a compromise was effected which enabled the tenant to avoid ejectment if he paid a sum of Rs, 3,900.00 which was calculated to be the rent up to 12th June, 1963. This was by no means an order under section 15(1) of the Act because it was entirely passed on a compromise and not at all under section 15. Mr C. B Lal, learned counsel for the appellant, however, contends that there are decisions showing that a compromise order can be treated as an order under section 15(1) of the Act. I may now refer to those decisions.
(5) In Bhoj Dutt v. Brij Nanin Bigai, I held that a particular order which was passed on a compromise could be read as an order passed under section 15(1) of the Act. In that case, no specified order under section 15(1) of the Act was passed, but an agreed order of eviction was passed which was to be deemed to be satisfied if the tenant paid up to date rent on or before 20th January, 1965. The tenant paid the rent. 484 Though, there is a similarity between the present case and that case, it is to be noted that the order was passed by the controller in lieu of passing an order under s. 15(1). I thereforee, read it as being a kind of an order under s. 15(1) of the Act. I do not think that such a situalion can be said to exist in the present case, where the actual order under section 15(1) of the Act passed by the Controller was not complied with, but a compromise was effected between the parties in the course of the appeal before the Rent Control Tribunal. I he two other decisions, which were referred to by me in deciding the said appeal. Shrimati Sumitra Rani v. M/s Bennet Coleman and Co. Ltd , and The Life Insurance Corporation of India v. Meghraj Munnalal, were both cases in which similar orders had been passed by the Controller, and P. N. Khanna, J. held in both cases that the orders in question had to be read as being passed under section 15(1) of the Act though not passed strictly in compliance with the be terms there of. It is to be noticed that none of these three cases dealt with a compromise effected after an eviction order had been passed on account of non compliance with the order for making a deposit of rent. The present case is, thereforee, distinguishable as there is no way of reading the order passed on a compromise between the parties before the the Rent Control Tribunal as an order under section 15(1) or any other portion of section 15 of the Act. It cannot, thereforee, be said that the tenant previously got the benefit of section 14(2) of the Act and, hence the present case is not covered by the proviso to section 14(2). This means that the Tribunal's Or /er has to be upheld.
(6) 'MR.C.B.LAL now urges that this case should be remanded back to the Controller passing an order under section 15(1) of the Act. I cannot -see how this can be done now in view of the fact that the case of the landlord was based on the proviso to section 14(2) of the Act. The effect of the said proviso is that the tenant cannot get the benefit of avoiding ejectment if he has got such benefit in a previous case. This means that the Controller could not pass an order under section 15(1) in the present case. This was the landlord s own case. If a deposit had been ordered by the Rent Controller, then the provisions of section 15(6) which says that an ejectment petition on the ground of non-payment of rent will fail if a deposit is made would come up into operation and the ejectment petition would fail in any case. There is an inconsistency between the proviso to section 14(2) and section 15(6) of the Act. These two provisions can only by reconciled if it is assumed that in a case covered by the proviso to section 14(2) no order under section 15(1) is to be passed. This is the way the landlord urged the case before the Rent I Controller and that is why no order under s. 15(1) was passed. Having brought his case under the proviso to section 14(2), it is now too late for the landlord to pray that his case maybe treated as being one to which the proviso does not apply and in which an order under section 15(1) has io be passed. The case is now at the second appellate stage and the landlord elected his remedy before the Controller. The alternative plea that in case he failed on this case, then an order under section 15(1) should be passed was not urged either before the Controller or before the Tribunal. This appeal has been pending in this court for several years and I do not see why the case should be remanded back and referred afresh as a case of first default. In view of his not taking this plea earlier, I refrain from passing an order of remand.
(7) I, thereforee, reject this appeal. The respondent will get his costs. Counsel's fee Rs. 100.00.