Yogeshwar Dayal, J.
(1) This appeal is directed against the order dated 27th November, 1980 passed by the Rent Control Tribunal, Delhi, passing an order under Section 15(1) of the Delhi Rent Control Act 1958 (hereinafter referred to as the act).
(2) The Tribunal by the impugned order set aside an order dated 19th July, 1980 whereby the Additional Rent Controller, had deferred passing an order under Section 15(1) of the Act.
(3) The Tribunal found that there is a relationship of Iandlord and tenant between the parties. The Tribunal also found that in view of two agreements dated 3rd September, 1975 and 29th July, 1976 prima facie there is no deprivation of any portion of the premises let out by the landlord to the tenant. The Tribunal also found that prima facie the rate of rent is Rs. 2,000/ per month and a sum of Rs. 16,000.00 are in arrears towards rent until June, 1978, and thereafter the petitioner-tenant is in arrears of rent @ Rs. 2000.00 per month and, thereforee, the Tribunal directed the same to be deposited within one month and subsequent rent shall be paid or deposited month by month by the 15th of each succeeding month.
(4) Mr. I.D. Garg, learned counsel for the appellant, submitted that it was not a lit case for passing order under Section 15(1) of the Act when the arrears were being disputed and the Additional Rent Controller was correct in deferring the order under Section 15(1) of the Act.
(5) Learned counsel for the appellant also submitted that there is deprivation of portion of the premises let out to him. Learned counsel for the appellant also submitted that he is entitled to suspension of rent since from May 1978 the landlord disconnected electric supply and thus the order of the Tribunal should be set aside. In this connection the learned counsel for the appellant relied upon the decision of Ramaswami,J. in the matter of B. Ahmed Maracair vs . Muthuvalliappa Chettiar : : AIR1961Mad28 . 'I he learned counsel also disputed that there were no arrears of rent when the petition for eviction was filed.
(6) The Tribunal relied upon an admitted agreement dated 19th November, 1977 which shows that till November, 1977 there was an arrears of Rs. 20,000.00 towards rent and that agreement of 19th November, 1977 shows a payment of Rs. 5.000.00 only. The agreement also shows that the alance of Rs 15,000.00 hadtobepaidin three Installments after every fortnight. The Tribunal also found that though the rent of subsequent period after the agreement was paid except that for May, 1978 instead of Rs. 2,000.00 per month the payment was made only @ Rs. 1,000.00 per month and after considering the entire material on record it came to the conclusion that prima facie the tenant is in arrears of rent to the tune of Rs. 16,OOC.00 uptil June, 1978. This finding has been given after considering the entire material on record and I do not find any infirmity in this finding which can be interfered with under Section 39 of the Act.
(7) Coming to the question whether the tenant was deprived of any portion of the premises the learned Tribunal also relied upon two agreements dated 3rd September, 1975 and 29th July, 1976 which described the premises as consisting of basement and mezzanine coupled with an affidavit filed by the tenant before certain authorities dated 27th January, 1978 which also described the premises let out as basement and mezzanine. The Tribunal came to the conclusion that there is no case of deprivation of any portion of the premises let out to the tenant.
(8) Mr. Garg, learned counsel for the appellant, further submitted that he is entitled to total suspension of the rent since the landlord disconnected electric supply from May 1978. This point was not urged belore the Tribunal. However, before me learned counsel relied upon the decision, as stated earlier, of Ramaswami, J. Maracair vs. Muthuvalliappa Chettiar (supra). It will be noticed that decision of Ramaswami, J. is based on the principles mentioned in Section 108-A clause (c) which deals with the rights and liabilities of the Lesser. It will be noticed that once the prima facie conclusion is reached that till May, 1978 the tenant was in substantially arrears of rent Section 108-A(c) will prima facie not apply. Section 108-A(c) reads as under :-
'(C)the Lesser shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption'.
For this clause to come into operation the condition precedent is that the lessee pays the rent reserved by the lease and performs the contract binding on the lessee. It is only then there is a duty on the Lesser not to interrupt in the peaceful use of the premises by the tenant. But once the prima facie conclusion has been reached that the lessee has not performed his part of the contract and was in arrears of rent reserved by the agreement, the tenant cannot take the benefit of the principles of suspension of rent in the circumstances of the case. This conclusion again is prima facie.
(9) The result is that the appeal fails and is dismissed. But in view of the interim orders passed by this Court and since the appeal has failed. I pass a fresh order under Section 15(1) of the Act with effect from today on the same terms as passed by the learned Rent Control Tribunal. The deposits, if any, made by the tenant in pursuance of the order of the Tribunal or in pursuance of the interim orders passed by this Court will be liable to be adjusted towards the order passed by me under Section 15(1) of the Act.
(10) As requested by Mr. Garg on behalf of the tenant, the Bank is directed to deposit the guarantee amount in the Court of Shri D.S. Sidhu, 1st Additional Rent Controller, Delhi. This deposit, when made, will be treated as a deposit under Section 15(1) of the Act on behalf of the tenant in favor of the landlord.