N.N. Goswamy, J.
(1) This second appeal by the tenant M directed against the judgment dated 5-2-1981 passed by the Rent Control Tribunal, Delhi whereby his appeal was dismissed on two grounds. Firstly, on the ground that he had failed to comply with the order passed under S. 15(1) of the Delhi Rent Control Act inasmuch as he has deposited the rent for the month of April, 1977 on 16th of May, 1977 while he was expected to deposit the game on or before 15th of May, 1977. The second ground being that the appeal filed by him against the order of Additional Rent Controller was incompetent inasmuch as he had failed to implead co-tenants within the period of limitation.
(2) The respondent-landlord instituted a petition for eviction of the tenant under S. 14(1) provisos (a), (c) and (j) of the Delhi Rent Control Act. It is not necessary to deal with Clauses (c) and (j) because the same were decided against the landlord and were not pressed before the Rent Control Tribunal. During the course of proceedings the Additional Rent Controller passed an order on 2 7-10-76 under S. 15(1) of the Delhi Rent Control Act
(3) As regards the default for the month of April, 1977 it is an admitted fact that 14-5-77 was second Saturday and thus a holiday and 15-5-77. The question to be was admittedly deposited on 16-5-77. The Question to be considered is whether the rent deposited on 16-5-77 could be said to be within time. I am clearly of the opinion that applying Section 10 of the General Clauses Act if the last date happens to be a holiday the act done on the next day would be considered to have been done or taken in due time and as such the question of extension does not arise. However, I have been faced with a decision of Yogeshwar Dayal, J. in M/s. Sehgal Paper Ltd. v. Mrs. Aruna Kirpal, Sao 12 of 1983, decided on 14-1-83. In that case the learned Judge after considering my earlier judgment which was ex parte in this very case came to the conclusion that my view could not be sustained because of a full bench decision of this Court in D. C. M. v. HemChand and others 1974 Rcr 131, which was approved by their lordships of the Supreme Court and is reported as Hem Chand v. The Delhi Cloth & General Mills Co. Ltd. and another, : 1SCR241 . It is true that the full bench of this court has held that the time for depositing rent by virtue of order under Order 15(1) of the Act cannot be extended. While giving certain illustrations the full bench observed.
'It was urged that this would be a narrow interpretation of Sub-see. (7) of Section 15 in relation to Sub-section (2) of Section 14 and would work a great hardship in some genuine cases and honest tenant might suffer. It is certainly not inconceivable that in some cases hardship may result to the tenant if for reasons beyond his control he is not able to make the deposit on the last date provided for it as, for example, if the last day is suddenly declared a holiday or while going to the treasury to make a deposit the tenant or for that matter, a clerk of his lawyer, entrusted with the money, instead of punctually making the deposit commits breach of trust and disappears or some other circum stances intervenes which makes it impossible for him for reasons beyond his control to physically make the deposit but the Court is helpless and has no power to interpret the law contrary to the expressed wish of the Legislature. If it is intended to ameliorate the hardship likely to be caused to honest or poor tenants, it is for the Legislature to intervene and consider the advisability of conferring an express power to the controller to extend the time as it occurs in Sub-section (8) of Section 15 or Sub-section (2) of Section 13 of the previous Act.'
(4) The full bench to this extent was approved by their Lordships of the Supreme Court in the same case. From the mere observation 'if the last day is suddenly declared a holiday' YogeshwarDayal,J.was of The opinion' that the full bench was conscious of Section 10 of the General Clauses Act' and in spite of that it came to the conclusion that the time could not be extended. The same learned Judge (Yogeshwar Daya],J.), in Flow more (P) Ltd. v. KeshavKumar, : AIR1983Delhi143 , held that the provisions of S. 10 of the General Clauses Act were applicable in the case under the Delhi Rent Control Act. That case was, however, distinguished by the learned Judge in M/s. Sehgal Paper Limited's case on the ground that Section 10 of the General Clauses Act applies where an act is required to be done by the statute and docs not apply to cases where the act is required to be done in pursuance of the order of the Rent Controller under Section 15(1) of the Act. This distinction, in my opinion, cannot hold good for the simple reason that from the ratio of the full bench decision as also from the Supreme Court decision the only inference possible is that the decision was based on the ground that the period had been prescribed by the statute and as such the period could not be extended. If the deposit was to be made merely by order of the Rent Controller, there could be no difficulty for the Rent Controller to extend time under inherent powers or under Section 148 of the Code of Civil Procedure . The observation of the Full Bench referred to above is also in the nature of obiter and I have no difficulty in getting out of the said observation' but the difficulty comes in my way in view of the judgment of Yogeshwar Dayal,J. referred to above. In this situation, I direct that the case be placed before Hon'ble the Chief Justice for constituting a larger bench.
(5) During the course of arguments, the learned counsel for the respondent also contended that the Tribunal had failed to consider the default for the month of October, 1976 which was the basis of the decision by the Additional Rent Controller. This default, it appears, was not pressed before the Tribunal. In any case I have no difficulty in holding that the rent for the month of October, 1976 was deposited in accordance with the provisions of Section 15(1) of the Act. According to the laid provision the tenant has to deposit the arrears of rent which were legally recoverable including the period subsequent there up to the end of the month previous to that in which payment or deposit is made. In the present case, the payment/deposit had to be made on or before the 26th of November, 1976 and this would clearly include the rent for the month of October, 1976 which was the month previous to that in which the payment or deposit was to be made.
5A.The only other point is that admittedly the degree of eviction was passed against the appellant and four others. One of those four persons has since died and his legal representatives were also brought on record when the proceedings were pending before the Additional Rent Controller. The appellant while filing the appeal before the Tribunal did not implead the other three persons and the legal representative of the fourth co-tenant and he instituted the appeal only against the landlord. The Tribunal relying on a judgment in the case of Ch. Surat Singh and others v. Manohar Lal and others, : AIR1971SC240 and in the case of M/s Invest Import Beograd v. M/S Watkin Mayors Co Co., : 13(1977)DLT17 , held that the appeal filed by the appellant was incompetent and there was no ground to allow the application for bringing on record the other persons and for condensation of delay. I am not inclined to agree with this part of the judgment as in my opinion the case of Ch. Surat Singh (supra) does not apply to the facts of this case because the provisions of Order 41 Rule 4 of the Code of Civil Procedure were not applicable to that case. The other case i.e. Invest Import (supra) is also distinguishable inasmuch as in that case both the defendants were joint tory feasors and were alleged to have committed the infringement; defendant No. I by sending chaff cutter blades from Yugoslavia and defendant No. 2 by marketing them here. The direct authority, in my opinion, is Mahabir Prasad v.Jage Ram and others, : 3SCR301 . In this case, Jage Ram and two others were lessees of certain property belonging to Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi. They commended an action in the Court of the Subordinate Judge, First Glass, Delhi, for a decree for Rs. 61,750.00 being the amount of rent due by the defendants. The Subordinate Judge, Delhi decreed the suit. The execution of the decree was resisted by the defendants on the plea, inter alia, that the decree was inexecutable because of the provisions of the Delhi Land Reforms Act, 1954. The Subordinate Judge upheld the contention and dismissed the application for execution. Mahabir Prasad alone appealed against that order and imp leaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died in November, 1962. Mahabir Prasad applied that the name of Saroj Devi be struck off from the array of respondents. The application was allowed. However , the High Court dismissed the appeal holding that because all the heirs and legal representatives of Saroj Devi were not brought on the record within the period of limitation prescribed by the Limitation Act the appeal abated in its entirety. Against that order, the appeal was preferred to the Supreme Court. The Supreme Court in paragraph 5 of the judgment observed as under :-
'Competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lest merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the appellate court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other person who were parties to the proceeding before the subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons arc either not imp leaded as parties to the appeal or are imp leaded as respondents. The view taken by the High Court cannot thereforee be sustained.'
(6) To the same effect there are observations in the case- Lal Chand and others v. Radha Kishan, : 2SCR522 . A judgment of this Court in Narain Parshad and other v. Naresh Chandra, : 15(1979)DLT356 has been brought to my notice wherein the observations are somewhat to the contrary. This Court has not considered the aforesaid judgments of the Supreme Court. Since the case, in any case, is being referred to a larger bench the entire case would be open for decision by the larger bench.
(7) For the reason recorded above, I direct that this case be placed before Hon'ble the Chief Justice for constituting a larger bench for the decisions of the entire case.