M.L. Jain, J.
(1) This judgment will dispose of S.A.O. 116/82 and cross-objections Cm 2147/82.
(2) The appellant Ram Saran was the tenant on a monthly rent of Rs. 33.00 in the disputed shop. He was inducted by Lallu Rain father of Misri Lal respondent. The father gifted the property in favor of the respondent and the appellant began to pay rent to him in June, 1972, but stopped doing so with effect from 1-10-1975. Misri Lal served a notice on Ram Saran on 26-3-1979 of demand for arrears oi rent and termination of tenancy with effect from 30-4-1979, but with no result. He then filed the present eviction application under cl.(a)of Section 14(1) of the Delhi Rent Control Act, 1958, (the Act).
(3) The tenant denied the relationship of landlord and tenant between him and Misri Lal. He said that he was inducted as tenant by Misri Lal's brother Ganga Ram and has been paying rent to Ganga Ram and the applicant never notified to him that he was the owner. Upon receipt of the notice he tendered rent first to Ganga Ran, then to Misri Lal, but both refused to accept. Ultimately, he deposited the same under Section 27 of the Act for the period from 1-9-1976 to 30-4-1979. He claimed that he has complied with the notice within two months of the service of the notice and, thereforee, no cause of action was available against him.
(4) The landlord made an application under Section 15(1) of the Act. The learned Controller on 10-10-1979 made an order directing the tenant to pay or deposit the arrears of rent with effect from July, 1976 within one month and regularly pay future rent. The learned Controller did not permit adjustment of the aforesaid deposits made in the Court. An appeal against this order was filed and the order of the Controller was modified. Considering the deposits made by him, the tenant was directed to deposit the arrears from 1-5-1979 because the tenant could not be made to pay twice over. That order also does not seem to have been complied with.
(5) In the trial of the eviction application, the learned Controller found that the fact of gift by the father in favor of Misri Lal was not specifically denied. The applicant had informed the tenant on 6-7-1972 of the gift. It was also proved that the tenant had been paying rent to Misri Lal up to September, 1975 but ceased to do so thereafter. The learned Controller held that the notice of demand was given by Misri Lal and hence tender or payment of the rent should have been made to him. Any payment or tender to Ganga Ram was not compliance of notice. Moreover, the respondent tenant failed to produce any rent receipt purporting to show that he had made payments even to Ganga Ram. In the application made by the respondent under Section 27, Misri Lal and Ganga Ram both had been imp leaded. The amount deposited under Section 27 of the Act cannot be adjusted because it was not paid nor tendered to Misri Lal. The learned Controller, thereforee, rejected the contention that the tenant had tendered or paid rent within two months of the receipt of notice. But since the order of 10-10-1979 was only an interim order, the learned Controller passed another order under Section 15(1) of the Act directing that rent should be paid from March, 1976 and if the tenant complied with this fresh Order, then he will get the benefit of Section 14(2) of the Act. This order of the Controller is dated 31-7-1980.
(6) The tenant appealed. During the pendency of the appeal, the tenant died in November, 1980. His legal representatives were substituted. The learned Tribunal held that there was a relationship of landlord and tenant between Misri Lal and Ram Saran. It upheld the order of the trial court that no adjustment of rent deposited can be allowed. The learned Tribunal held that the contractual tenancy was terminated by valid notice with effect from 30-4-1979. The tenant, thereforee, became a statutory tenant after that date. Relying upon Gian Devi Anand v. Jiwan Kumar and others, : AIR1985SC796 , it was urged before the Tribunal that the premises were commercial and the statutory tenant having died, there was no devolution of tenancy under the amended definition of a tenant given in Section 2(1) of the Act and the heirs were liable to eviction. The learned Tribunal dismissed the appeal on 13-1-1932. But it could not order eviction of the legal representatives because the landlord had not appealed. This second appeal is filed by the legal representatives of the tenant.
(7) The landlord has also filed cross-objections on 11-5-1982 that the appeal is not maintainable because the tenancy docs not devolve upon the legal heirs of a statutory tenant in respect of commercial premises. It was also prayed that an order of eviction be passed against them.
(8) I have heard and considered the matter. Sinha Kedarnath v. Smt. Mohini Devi 1973 R.L R. 701, the definition of the tenant. has been amended retrospectively and Haji Mohd. Din and another v. Shri Narain Dass 15 (1979) Dlt 220, V. Dhanapal Chettiar v. Yasodai Ammal 16 (1979) Dlt 172, Mrs. Krishna Parkash and others v. Shanta Sinha Chenoy and another , Gian Devi v. Jiwan Kumar (supra) and Girdhari Lal v. Abdul Jalil, : 17(1980)DLT305 , have been rendered. It was urged in Sudhir Kumar Aggarwal v. Surinder Pal Singh and others, S.A.O. 137/82, decided on 25-5-1983, that Gian Devi required reconsideration. I rejected that request.
(9) The result of these several decisions is that eviction proceedings can be instituted without notice of termination under Section 106 of the Transfer of Property Act, 1882 and the jural relationship of landlord and tenant continues until the order of eviction is passed. Determination of a lease in accordance with Section 106 of the Transfer of Property Act is unnecessary and a mere surplusage. But giving of termination notice is not forbidden and termination of tenancy in a manner otherwise than by a notice, as provided in Section 111 of the Transfer of Property Act also remains unaffected. Where eviction application is filed without termination, of tenancy, the landlord takes the risk that in the event of the death of the tenant, the tenant will not become a statutory tenant and the tenancy will devolve on his successors, be it for residential or non-residential purposes; that is a situation not contrary to the Act. He can then succeed only on proof of any of the grounds specified in the proviso to Section 14(1)(a) of the Act. That will be the position also in case of a tenancy for residential purposes where the succession provided in the amended definition of a tenant, opens and is not extinguished. But it does not survive in case of tenancies for non-residential purposes at all and in such cases, where the tenant dies during the eviction proceedings, the legal representatives of the deceased tenant, if they have no defense independent of their predecessor-in-interest, are bound to surrender possession in the eviction proceedings launched against the statutory tenant in his life time. But if the statutory tenant dies before the eviction application is made, and there is no succession, the remedy of the landlord against the legal representatives is by way of a suit for possession. I am, thereforee, of the view that the appeal before the Tribunal was rightly rejected but eviction of the legal representatives was not rightly refused.
(10) Since the order of the Controller was in favor of the landlord, there was no occasion for him to file an appeal and the learned Tribunal should not have rejected the prayer simply because no appeal was filed by the landlord. Since cross-objections have been filed here) the landlord under the amended provision of Order 41 Rule 22 G.P.G. can ask for a decree of eviction. The only defense that the legal representatives are putting forward is that at worst, they are trespassers and can be evicted only by a separate suit. As discussed earlier, no fresh suit need be filed and eviction can be directed in these proceedings.
(11) I thereforee, dismiss the appeal, accept the cross objections and direct eviction of the appellants. They will vacate within six months. No costs. (D.B.)