Soltan Singh, J.
(1) The landlord in this second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') challenges the judgment and order of the Rent Control Tribunal dated 18-8-1981 dismissing his application for eviction of the respondent on the ground of non payment of rent as mentioned in Section 14(l)(a)ofthe Act.
(2) Briefly the facts are that the appellant on 21-10-1975 filed the application for eviction of the respondent alleging that he was her tenant in one room of property No. 5A/5 Ansari Road, Darya Ganj, Delhi on a monthly rent of R8.150.00 as besides Rs. 20.00 fixed charges for water and electricity, that he has been in arrears since 5-10-1974, that he remitted two money orders ofRs.l50.00 each received on 6-2-1975 and 17-3-1975 and another money order for Rs. 300.00 , received on 17-5-1975, that notice of demand dated 9-8-1975 was sent by registered A.D. post as well as under certificate of posting, which was served on 16-8-1975. She further pleaded that after notice the respondent paid Rs. 80.00 as electricity charges and another sum of Rs. 340.00 as rent and electricity charges as per receipt No. A-59 dated 13-8-1975, that the respondent was liable to eviction as he neither paid nor tendered the whole of arrears of rent in spite of service of the notice of demand, that the respondent had availed of the benefit under Section 14(2) of the Act in previous suit No. E-325 of 1973 decided on 5-3-1974.
(3) The respondent in his written statement pleaded that the rent of Rs. 150.00 was inclusive of electricity charges, that no notice of demand was served upon him, that he paid Rs. 450.00 on account of rent on or about 4-8-1975, that he had been regularly paying advance rent and as such had paid rent up to 4-1-1976, that the appellant with malafide intention had not been issuing the rent receipts whenever asked for by him. The appellant in her replication denied receipt of Rs, 450.00 on or about 4-8-1975 or any other amount. Other allegations were also controverter by the appellant. The Additional Controller passed the eviction order holding that the alleged payments were not proved and the respondent had previously availed of the benefit under Section 14(2) of the Act. On appeal the Rent Control Tribunal held that the respondent had availed of the benefit under Section 14(2) of the Act but he had paid all rents, that no rent was due when the notice of demand was served/issued. Accordingly the eviction petition was dismissed by the Tribunal. Hence this second appeal.
(4) The appellant had previously filed an eviction application on ground of non payment of rent wherein on 5-3-1974 an order of eviction was passed directing the respondent to deposit all arrears of rent within one month. It was further ordered that if he deposited the amount, he would be deemed to have taken the benefit under Section 14(2) of the Act and the eviction petition would stand dismissed. After decision of the earlier eviction case the respondent used to pay rent to the appellant by money order or by cash. He remitted Rs. 170.00 on 10-4-1974 by money order as rent and electricity charges for the period from 5-3-1974 to 4-4-1974 (receipt A-20 in counterfoil receipt book Ex. AW-1/7). Thereafter the respondent paid monthly rent and electricity charges Rs. 170.00 by means of receipts No. A-22, A-24, A-26, A-30, A-35 and A-37, signed by the respondent showing payment for the period ending 4-10-19 74. Thereafter it appears that disputes arose between the parties regarding issuance of rent receipts. The respondent alleges that he used to pay rent in cash and the appellant's husband used to avoid issuing receipt on one pretext or the other, that he started remitting rent by money order. He sent Rs. 150.00 on 6-2-1975 another Rs. 150.00 on 17-3-1975 and Rs. 300.00 on 17-5-1975 by money order. The respondent's further case is that thereafter appellant's husband asked him not to send rent by money order but to pay him cash against receipts) that he regularly paid advance rent up to 4-1-1976 but again receipts were not issued. In the written statement the respondent had also pleaded payment of Rs. 450.00 on or about 4-8-1975 without receipt which fact was specifically denied by the appellant in the replication. While in the witness box the appellant's husband admitted receipt of Rs. 450.00 on or about 4-8-1975 and stated that amount of Rs. 450.00 was accounted for in receipts A-39, A-43, A-58 andA-59inEx.AWI/7. These counter foil receipts are purported to have been signed by one Vinod Kumar on 13-8-1975. The respondent stated that Vinod Kumar was never his servant or representative, that he never paid any rent through him. His case is that he has always been paying the rent personally and signing the counter foil of rent receipts. The Rent Control Tribunal after taking into consideration the various counter foils in receipt book Ex. AW-1/7 and the evidence on record has concluded that it cannot be inferred that arrears of rent were due. The Tribunal has also held that Vinod Kumar appears to be a procured person unconnected with the respondent who is alleged to have signed the counter foils. In other words the Tribunal believed the version of the respondent and disbelieved that of the appellant. (The question whether payment of rent has been made by the respondent up to 4-1-1976 as alleged by him is a question of fact. The finding given by the Tribunal on a question of fact is binding on this Court unless the finding is perverse, contrary to law or based on no evidence. The learned counsel for the appellant submits that the finding is contrary to record. With the help of learned counsel for the parties I have gone through the oral and documentary evidence on record.
(5) The appellant in replication denied the payment of Rs. 450.00 as alleged by the respondent but while in the witness box her husband had to admit the same. He came out with a new plea that the said amount of Rs. 450.00 was adjusted in the said four receipts. These counter foils A-39, A-43, A-.18 and A-59 have their own story to tell. Receipt A-39 is dated 14-10-1974, purporting to bear the signatures of Vinod Kumar under date 13-8-75. It shows payment of Rs. 150.00 . Initially it was mentioned that this payment was 'cash'. But subsequently by a different ink the word 'M.O.' has been added. Further by a different ink it is mentioned that Rs. 20.00 cash was received as 'electric charges' on 13-8-1975. According to the appellant this is the receipt with respect to the money order received on 6 2-1975. This counter foil cannot pertain to the money order received on 6-2-1975, as the counter foil is dated 14-10-1974 and the receipts in this counter foil book for the month of February start from Seriall No. A-45 which is dated 5-2-1975. As already observed subsequent addition in different ink was made on this receipt. Receipt A-39 thereforee cannot be with respect to the money order received on 6-2-1975. This receipt must pertain to the amount paid cash by the respondent. Thus I am of the view that the receipt A-39 is not with respect to the money order received on 6-2-1975. Receipt No. A.43 is dated 15 12-1974. According to the appellant this is with respect to the money order for Rs. 150.00 received on 17-3-1975. This is also wrong. This receipt shows that Rs. 150.00 was received in cash on 15-12-1974. This counter foil also purports to have been signed by Vinod Kumar on 13-8-1975. Learned counsel argues this receipt pertains to money order received on 17-3-1975. In another column it has also been mentioned that electric charges Rs 20.00 were received on 13-8-1975. This receipt dated 15-12-1974 also cannot pertain to the money order received on 17-3-1975. The reasons are that the counter foil is dated 15-12-1974 for cash while the counter foil after 17-3-1975 bears Seriall No. A-51. Receipt A-58 dated 17-5-1975 shows payment of Rs. 340.00 (Rs. 300.00 by money order and 40.00 as cash) on 13-8-1975. This counter foil also is purported to have been signed by Vinod Kumar on 13-8-1975. Receipt A-59 is dated 13-81975 and it shows receipt of Rs. 340.00 cash as rent and electricity charges purported to have been signed by Vinod Kumar on 13-8-1975. These four receipts signed by Vinod Kumar were not held to be genuine by the Tribunal. I have examined this receipt book. Receipt A-45 is dated 5-2-1974 while receipt A-46 is dated 5-1-1975. Similarly receipt A-52 is dated 20-6-1975 and receipt A-53 is dated 19-6-1975. Again receipt A-57 is dated 11-8-1975, while receipt A-58 is dated 17-5-1975. Receipt No. A-62 is dated 6-11-1975 while receipt No. A-63 is dated 30-9-1975. Further receipt No. A-78 is dated 25-3-1975. The receipt book shows that it has not been maintained regularly and in two counter foils in favor of the respondent there are additions in different ink. On the basis of this receipt book and the statement of the appellant's husband the Tribunal held that no reliance can be placed on the appellant's version. I am also of the same view. I, thereforee, hold that the defense set up by the respondent-tenant is correct that he paid rent up to 4-1-1976. The notice was served on 16- 8-19 75 and no amount was due from the respondent on that date. According to the appellant rent was due for the period from 5-10-1974 to 4-8-1975. The appellant admittedly received Rs. 600.00 by money order and a sum of Rs. 300.00 cash as per receipts A-39 and A-43. Receipt A-43 is for cash payment while in receipt A-39 the words 'MO.' were added in different ink subsequently. A sum of Rs. 450.00 is also admitted to have been received on 4-81975. Besides this the appellant received Rs. 340.00 and Rs. 80.00 on 13-8-1975, as pleaded by her. The notice of demand was served on 16-8-1975 and before that date all arrears of rent had already been received by the appellant for the period ending 4-8-1975. The respondent also paid rent subsequently for the period ending 4-1-1976. Thus I hold that the appellant had no cause of action against the respondent to seek eviction under Section 14(1)(a) of the Act and his petition was rightly dismissed by the Rent Control Tribunal. The appeal is thereforee, dismissed with costs. Counsel fee Rs. 300.00 .
(6) At the time of admission of this appeal on 3-12-1981 it was admitted on behalf of the appellant that she had obtained possession of the suit premises in execution of the eviction order passed by the Additional Rent Controller. It was also admitted that the appellant had been in possession and had not alienated the same. The appellant was restrained by the Court from alienating the suit premises till further orders and restoration of possession after the dismissal of the eviction petition by the Rent Control Tribunal was stayed. This appeal now stands dismissed and thereforee, the respondent-tenant is entitled to possession. The appellant is directed to restore possession of the premises in suit to the respondent. The Additional Rent Controller is directed to issue warrants of possession for restoration of possession of the suit premises to the respondent. If there is resistance, police aid may be provided to the respondent for obtaining possession of the premises.