Sultan Singh, J.
(1) The appellant-tenant in this 2nd appeal u/s 39 of the Delhi Rent Control Act, 1958 ('the Act') challenged the Judgment and order of the Rent Control Tribunal dt. 4.5.81 partly allowing his appeal directing the respondant landlord to restore the amenity of electricity but confirming the order of the Additional Controller dated 23.9.80 dismissing his petition u/s 45 of the Act with respect to other amenities.
(2) Briefly the facts are that the appellant Ajit Pershad Jain was inducted as tenant in 1972 in a portion of the property, bearing Municipal No. X-264, Jain Mandir Gali No. 3, Mohalla Ram Nagar, Gandhi Nagar. The appellant alleges that he has been a tenant with respect to one room besides common user of laterine, bath room, stair case and open roof on the floor on a monthly rent of Rs. 29.00 inclusive of electricity and water charges, that the respondent has not been granting rent receipts since the inception of the tenancy, and has also been harassing to enhance the rent, which he refused, that the respondent on 18.5.76 filed a petition for his eviction u/s 14(1)(e) of the Act which was dismissed on 9.2.78, that after dismissal of the eviction petition he started harassing him to get the premises vacated; the respondent threatened him with dire consequence if he did not vacate the premises ; the respondent disconnected the supply of electricity, closed the entrance to the stair case and deprived him the use of bath room and the latrine with effect from 18.2.78. A complaint was lodged by the appellant with police and a telegraphic notice was sent to the respondent for the restoration of (he amenities but with no result. The petition u/s 45 of the Act was filed on 7.3.78 for restoration of the amenities. The respondent in his w/s dt. 15.3.78 pleaded that the appellant was tenant only with respect to one room on ground floor on a monthly rent of Rs.46.00 which includes Rs. 11.00 p.m. as electricity charges, that bath room, latrine and open roof were not under his tenancy, that he had been in arrears of rent since 1.9.75, that he did not disconnect the electricity but it was disconnected by the Desu on account of non payment of electricity charges. The respondent denied that he had closed the entrance to the stair case or deprived the appellant of bath room and latrine. The Addl. Controller by his judgment dt. 23,9.80 held that the rent was inclusive of electricity and other charges, that the appellant was enjoying the amenities but on account of the appellant's failure to file the site plan showing the premises, latrine, bath room etc. his petition for restoration of amenities was dismissed. On appeal. Tribunal by its judgment dt. 4.5.81 partly accepted the appeal and directed the respondent to restore the amenity of electricity on deposit of Rs. 356.00 within a week by the appellant. His appeal for restoration of other amenities was dismissed for failure to file the site plan. It was however, held that the appellant was enjoying the other amenities provided by the respondent. Hence this second appeal.
(3) According to the submission of the counsel for the appellant, the respondent filed a petition for eviction of the appellant u/s 14(1)(e) of the Act on 18.5.76, which was dismissed on 9.2.78 and the resdondent disconnected the electricity supply and withheld other amenities with effect from 18.2.78 by closing the entrance to the stair case, depriving the appellant af the use of bath room and latrine. He further states that the respondent filed a suit for recovery of Rs. 1380.00 as arrears of rent for the period from 1.975 to 28.2.78 @ Rs. 46.00 p.m. which was decreed by the trial Court but on appeal decided on 22.8.79 the decree for Rs. 684.00 only was passed after giving credit for Rs. 586.00 paid to landlord on 20.3.78 and Rs. 110.00 deposited with DESU. The counsel further say that the respondent on 27.3.79 filed another petition for eviction of the appellant u/s 14(1)(a) of the Act i.e. on ground of non-payment of rent for the period from 1.9.75 at Rs. 46.00 p.m. without giving credit for Rs. 506.00 paid to him on 20.3.78 and Rs. 110.00 deposited on his behalf with the DESU. The Additional Controller by order dated 308.79 passed u/s 15(1) of the Act directed the appellant to deposit the amount of Rs. 684.00 as arrears of rent for the period ending 28.2.78 and also rent at Rs. 46.00 with effect from 1.3.78. The appellant, it appears, deposited the amount of rent and the petition on ground of non-payment was dismissed on 112.80.
(4) The learned counsel for the appellant submits that failure to file site plan showing the premises, the bath room and latrine by the appellant is no ground to refuse relief to the appellant u/s 45 of the Act. He further says that the Tribunal was not justified in directing the appellant to deposit a sum of Rs. 356.00 as electricity charges as a condition for restoration of the electricity. He submits that after the filing of this second appeal as per order dated 30.9.81 of this Court the appellant paid Rs 356.00 to the respondent-1andlord on 5.10.81 and got the electricity current restored. He says that the appellant was deprived of the amenity of electricity from 18.2.78 and thereforee, the appellant was not liable to pay electricity charges at Rs. 11.00 per month from 18.2.78 till its restoration in October, 1981. This contention has substance. It is not disputed that the monthly rent of Rs. 46.00 includes Rs. 11.00 per month as electricity charges. It has been held by the Tribunal that the amenity of electricity was disconnected for non-pay- meat 0 DBSU. In other words the appellant has not enjoyed the supply of electricity from 18.2.78 till its restoration on or aboat 5.10.81. In these circumstances the appellant is not liable to pay electricity chargas at R.5. 11.00 p.m. for the said period. The direction of the Tribunal to pay Rs. 356.00 as electricity charges is thereforee not sustainable in law. The sum of Rs. 356.00 paid by the appellant on 5.10.81 in pursuance of this Court's order dated 30.9.81 to the landlord is liable to be refunded by the respondent or it may be adjusted by him towards rent payable by the appellant.
(5) S. 45(1) of the Act provides that no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him; sab-section (2) enables the tenant to make an application for restoration of the essential supply or service ; sub-section (3) provides for interim orders for restoration of essential supply or service during the pendency of the main petition; sub-section (4) provides that if on inquiry Controller finds that essential supply or service enjoyed by the tenant in respect of the premises was cut off or withheld by the landlord without just and sufficient couse, the Controller shall make an order directing the landlord to restore such supply or service. 'Essential supply or service' includes supply of water, electricity, lights in passages and on staircases, conservancy and sanitary services.
(6) Failure to file a site plan showing the premises and other essential supply or service is not a ground for dismissal of a petition u/s 45 of the Act if there is other sufficient material on record to grant relief to the tenant. It is in evidence of the respondent- landlord that there is one bath room and one latrine on the ground floor. The appellant has also deposed that there is a bath room and a latrine on the ground floor and that he has been using the same. The respondent in para 5 of his w/s to the petition u/s 45 of the Act has pleaded as follows :
'PARA5 of the application is wrong and is denied. It is denied that the respondent has disconnected the electricity, closed the entrance on the stair case and has deprived the petitioner of bath room and latrine.'
(7) This plea of the respondent leaves no doubt (hat the appellant was enjoying the amenities of bath room. latrine, electricity, stair case and open roof above. The case of the respondent is that he never obstructed the appellant. His only contention is that the bath room, laterine, stair case and open roof are not included in the premises let to the appellant. It is correct that these premises other than one room on ground floor are not under the tenancy of the appellant. But the appellant as per finding based on evidence was enjoying all these amenities in respect of the room under his tenancy. There has been litigation between the parties for the eviction of the appellant but the respondent has not been successful to evict in accordance with law. Withholding of the amenities of user of bath room, latrine, entrance to stair case for going to the roof was without any just and sufficient cause. Withholding the user of these amenities to the appellant was to harass the appellant to vacate the premises. Where there is only one bath room and one latrine in the house on ground floor, there was no necessity of any plan The respondent can be directed not to obstruct the appellant from using the bath room and the latrine. In other words he can be directed to restore the user of the latrine and bath room on ground floor. There is no difficulty in identifying the one bath room and one latrine on ground floor in the circumstances of this case.
(8) This secound appeal was filed on 10.7.81 and was admitted on 15.7.81. The appellant filed a plan of the property in question in this Court on 9.12.81. The appellant is tenant on the ground floor and the room under his tenancy has been shown in red in this plan which is marked 'Z' for purpose of identification. Latrine and bath room are also shown to be in existence on the ground floor. There is no other latrine or bath room either on the ground floor or on the upper floor as shown in this plan. On 11.12.81 the counsel for the respondent took time to take instruction and if necessary to file a plan of his own. He was directed to file the plan within three weeks from that date. It however appears that neither any objection to the correctness of this nor any plan on behalf of the respondent has been filed. Thus I presume that this plan marked 'Z' today is the correct plan of the property in question. The latrine in this plan is marked as A-1 and the bath room is marked as A-2. The order of the Tribunal and the Controller are set aside. The respandent- landlord is directed to restore the amenities of bath room, latrine on the ground floor and not to close the entrance to the stair case for going on the roof. The supply of electricity was restored to the appellant in Oct. 1981. The respondent is directed not to disconnect the electricity supply to the appellant. The respondent-1andlord may either refund the said amount of Rs. 356.00 to the appellant- tenant or adjust the same towards rent for the period payable by the appellant to him. As regards refund of electricity charges paid by the Appellant if any for the period from 18,2.78 to 5.1. .81 to the respondent he is granted leave to seek his remedy before the Additional Rent Controller who decided the petition for eviction u/s 14(1)(a) of the Act or claim adjustment against rent payable to the respondent. No order as to costs.