S.N. Andley, J.
(1) In this second appeal under section 39 of the Delhi Rent Control Act, 1958, the tenants are the appellants and the landlord is the respondent. On June 12, 1964, the respondent filed a petition for eviction of the appellants under the said Act on the ground of non-payment of rent, sub-letting and change of user. Admittedly, the contractual 'rent was Rs. 500 .00 per month. Since one of the grounds for eviction was non-payment of rent covered by clause (a) to the proviso to sub-section (1) of section 14 of the said Act, the Rent Controller, on September 16, 1964 passed an order as required by sub-section (1) of section 15 of the said Act, against the appellants to deposit arrears of rent amounting to Rs. 3,700.00up to May 27, 1964 and then up to date rent at the rate of Rs. 300.00 which was fixed as the interim rent within one month from that date and future rent at the same rate month by month by the 15th of each succeeding month. It was not disputed that the arrears of rent and the interim rent were deposited by the appellants up to April, 1966.
(2) In another proceeding between the parties for fixation of standard rent, the Controller by his order dated April 30, 1966, fixed Rs. 187.00 per month as the standard rent with effect from January 1, 1960. On appeal, the order fixing standard rent was quashed by the Tribunal on January 22, 1968 and the case was remanded back to the Rent Controller for fresh trial.
(3) In the mean time, on May 2, 1966, part of the premises were destroyed by fire. Inasmuch as the appellants did not deposit the interim rent fixed by the Controller, the respondent on April 27, 1968, made an application to the Controller under sub-section (7) of section 15 of the Act praying for an order that the defense against eviction may be struck out. The appellants replied to this application on May 27, 1968 and contended that the amount deposited by them already was in excess of the amount which had to be deposited. They further pleaded that the respondent was not entitled to claim rent on the ground that part of the premises had been destroyed by fire particularly as the respondent had refused either to reconstruct the destroyed premises or to permit the appellants to do so. After filing this reply, the appellants also filed an application on June 11, 1968. They contended that the rent already deposited was in excess of the rent due and that part of the tenancy premises had been destroyed by fire and were not in existence and that the standard rent of the premises which remained in existence could not be more than Rs. 40.00 per mensem. The appellants, thereforee, prayed that the order dated September 16, 1964 under sub-section (1) of section 15 of the Act referred to earlier be modified and an order be made for deposit of rent in view of the circumstances mentioned in this application.
(4) By order dated August 6, 1968, the respondent's application under sub-section (7) of section 15 of the Act was dismissed. By this order, the Controller condoned the appellants default in depositing the rent and fixed a date for disposing of the appellants' application dated June 11, 1968 for modification of the order dated September Ib. 1964.
(5) Being dissatisfied with the dismissal of his application under subsection (7) of section 15 of the Act, the respondent filed an appeal before the Tribunal. By order dated December 6, 1968, the Tribunal allowed the appeal and the respondent's application under subsection (7) of section 15 of the Act and struck off the appellants defense with a direction that the respondent's petition be decided according to law. Against this order, the appellants filed this appeal. During the pendency of. this appeal, the Controller on January 3U, 1969 passed an order of eviction against the appellants, the appeal against which before the Tribunal was dismissed on April 3, 1972 on the ground of having been filed beyond time. Against this order, the appellants have filed S.A.O. Nos. 241 of 1972 which was placed for admission at the time of the hearing of this appeal.
(6) A preliminary objection has been raised by the respondent to urge that inasmuch as a final order of eviction has been passed against the appellants following upon the order under sub-section (7) of section 15 of the Act, this appeal against the order under sub-section (7) of section 15 of the Act has become infructuous. In my view, there is no warrant for this proposition. Sub-section (1) of section 38 of the Act provides that an appeal shall lie from every order of the Controller made under this Act to the Rent Control Tribunal and subject to sub-section (2), a second appeal against an order of the Tribunal lies to the High Court under sub-section (1) of section 39 of the Act. It cannot be doubted that the appeal when filed was competent. If so, it cannot be rendered incompetent merely because a final order has been passed. If the appeal against the order under sub-section (7) of section 15 which may be described as an interlocutory order or even as a preliminary order succeeds, the final order even if passed in the meantime will have to be suitably modified. Reliance by the respondent on Durga Swaroop v. Murari Lal 1964 66 PLR 586 is misconceived. In fact this was a contrary case because it was decided in this case that when an order striking out the defense is made, the remedy of the aggrieved parly lay in filing appeal against that order and where no such appeal is filed, the order becomes final and, thereforee, cannot be challenged in an appeal against the final order of eviction. On the contrary, it is legitimate to apply the analogy of a preliminary decree and a final decree and the position appears to be well established that if an appeal is filed against the preliminary decree and the final decree is passed during the pendency of the appeal, the final decree will be suitably modified, even though no appeal has been filed against it in view of the decision of the appeal against the preliminary decree. Such a case was the one in Saradindu Mukherjee v. Jahar Lal Agarwala : AIR1942Cal153 where it was observed that it will be the duty of the High Court in dealing with the appeal against the preliminary decree to give necessary and consequential directions regarding the final decree. In Basawant Mallappa Neje v. Kallappa Virbhadrappa Kotiwale A.I.R. 1938 Bom 222 agreement was expressed with a Full Bench decision of the Calcutta High Court in Talebali v. Abdul Aziz I.L.R. Cal 1013 where it was observed,-
'THEfunction of the final decree is merely to restate and apply with precision what the preliminary decree has ordained; that the decree being in the same suit, the Court in appeal from the preliminary decree as it has power to reverse or vary the preliminary decree, has also power to affect the final decree: that as the right of appeal from the preliminary decree is given without any qualification, the passing of the final decree is no bar to the institution or hearing of any appeal against the preliminary decree... ...if the preliminary decree is set aside, the final decree is superseded whether the appeal was brought before or after the passing of the final decree; and that the Court when setting aside or varying the preliminary decree can and should give directions for setting aside or varying the final decree if the existence of the final decree is brought to its notice as in all cases it should be.'
(7) In my opinion, these observations would apply with equal force to an appeal against an order under sub-section (7) of section 15 of the Act during the pendency of which a final order of ejectment has been passed following this order. The same idea is expressed by the well settled principle of law that certain orders and decrees which are subordinate and dependent upon earlier orders and decrees could only remain in force so long as the order or decree on which they were dependent are not reversed or superseded. (See Air 1957 AP 330). There is, thereforee, no substance in the preliminary objection raised by the respondent.
(8) On the merits, the appellants have raised two contentions. The first contention is that the order of the Rent Controller condoning the default by the appellants was an order in his discretion and should not have been interfered with by the Tribunal. It is no doubt true that sub-section (7) of section 15 of the Act uses the word 'may' because it says that 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. At the same time, the discretion has to be exercised in accordance with well settled principles. The Rent Controller condoned the delay notwithstanding the fact that in spite of the fact that the standard rent was fixed on April 30, 1966 and the fire took place on May 2, 1966, the appellants did not make any application for modification of the order dated September 16, 1964 under subsection (1) of section 15 of the Act and it was only when the respondent made an application under sub-section (7) of section 15 of the Act that the appellants claimed suspension and over-payment of rent and later filed a substantive application. The Tribunal held that the appellants could not rely upon the doctrine of suspension of rent by reason of the fact that under section 108(e) of the Transfer of Property Act the only option left to the appellants after the destruction of the tenancy premises was to treat the lease to be void and that the appellants did not exercise such option and in fact continued to hold on to the tenancy premises. I, thereforee, do not find any substance in this submission based on the word 'may' and hold that the Tribunal was entitled to come to a contrary conclusion on the basis of law particularly in an appeal against an order which was appealable. under the Act.
(9) On the second point on merits, it is contended that it was the appellants' right to suspend payment of rent on the destruction of the premises and upon the refusal of the respondent either to reconstruct it himself or permit the appellants to do so. Let me first examine the position under the Transfer of Property Act. In the case of the tenancy premises being wholly destroyed or rendered substantially and permanently unfit by fire etc. for the purposes for which it was let, the only right given to the lessee by section 108(e) of the Transfer of Property Act is to exercise the option of treating the lease to be void. In such a case the lessee cannot continue to hold on to the premises or say that the lease continues but he will not pay the rent. If the lessee does not exercise the option to treat the lease to be void, he will remain liable to pay the rent. (See Sidick Haji Hossin v. Bruel and Co. 1910 8 IC 1049. In Gandavalla Munuswamy v. Marugn Muniramiah : AIR1965AP167 it was observed:-
'under. 108(e), T.P. Act a lease is not automatically determined on the destruction by fire or irresistible force of a substantial portion of the property leased. It is a matter of option with the lessee to get rid of the lease or not. He could treat it as void if he so desired. But the law does not compel him to do so. This aspect of the matter makes it all the more necessary that an unambiguous declaration of the lessee's intention to treat the lease as void must be communicated to the Lesser. The Lesser would not otherwise be able to take appropriate steps on the footing that the lease has come to an end and he is thereforee at liberty to deal with the property as he chooses. What is even more important is that a mere declaration of intention to treat the lease as void is not sufficient. The lessee must also yield up possession of the property to the Lesser as required by the provisions of Section 108(q) of the Transfer of Property Act. He cannot continue in possession and yet declare that he has treated the lease as void. That would obviously be an inconsistent and impermissible position to adopt. So long as a lessee has not surrendered to his Lesser the possession which he obtained from the latter at the time of the lease. he cannot rid himself of his obligations under the lease. His holding to the possession into which he was inducted by his Lesser will estop him from disputing the right of his Lesser to evict him and to recover possession from him.'
(10) To the same effect arc the cases reported in : AIR1966All225 and : AIR1963Mad94 , There cannot be any unilateral suspension of rent. The tenant continues to be liable for the whole of the rent until he obtains an order from the Court or agreement from the landlord for reduction of the proportionate part of the rent. (See. Kishan Chand v. Rainesh Chander and others 1969 AIRCJ 839 a decision of Deshpande J. of this Court). thereforee, where an order for deposit of rent has been made under sub-section (1) of section 15 of the Act, the tenant cannot unilaterally suspend the payment or deposit of rent as ordered by the Controller and if he does so he undoubtedly commits a breach of the order of the Controller which will entitle the tenant to ask for an order under sub-section (7) of section 15 of the Act.
(11) The facts of this case are glaring. The order under sub-section ( 1 ) of section 15 of the Act was made on September 16, 1964. The appellants did not deposit any rent after Februray 19, 1966 for the period after May 1, 1966. The fire took place on May 2, 1966 and no application even was made for suspension or abatement of rent until June 11, 1968 and that too after the respondent had filed his application on April 27, 1968 for an order under sub-section (7) of section 15 of the Act. In these circumstances, the Rent Controller was. clearly not justified in condoning the delay in the deposit of rent and the Tribunal was more than justified in upsetting the order of the Controller. The appellants have not made out any case for interference in this second appeal under section 39 of the Act and I, thereforee, dismiss this appeal with costs. Counsel's fee Rs. 200/.