Sultan Singh, J.
(1) This second appeal under section 39 of the Delhi Rent Controller Act, 1958 (hereinafter called 'the Act') by the tenant is directed against the order dated 12th March, 1981 of the Rent Control Tribunal confirming the order of the Additional Rent Controller dated 12th February, 1981 directing the appellant to pay or deposit arrears of rent from 1st September, 1979 at Rs. 100.00 per month within one month and to conti- nue to pay or deposit future monthly rent by the 15th of each succeeding month.
(2) Briefly the facts are that the respondent-landlord on 21st February, 1978 filed an application for eviction of the appellant under Section 14(1)(e) read with Section 25B of the Act. The tenant filed an application for leave to defend which was dismissed by the Controller and an order of eviction was passed on 28th November, 1978. He filed Civil Revision No. 216 of 1979. His dispossession was stayed on deposit of arrears of rent. He deposited Rs. 1150.00 in the office of the Additional Rent Controller as rent for the period ending 31st August, 1979 at Rs. 50.00 per month. By order dated 9th October, 1979 Civil Revision against the order dismissing his application for leave was set aside and he was granted leave to defend the eviction petition.
(3) The respondent in his eviction application has alleged that the portion consisting of one room on the ground floor and one room (wooden partition room) and kitchen on the terrace floor, was let out to the appellant for residence on 16th May, 1957 at Rs. 100.00 per month excluding water and electricity charges.
(4) The appellant in his written statement has alleged that the rent of the premises was Rs. 50.00 per month excluding water and electricity charges and that the premises were let with effect from 1st April, 1963 and that besides the premises admitted by the respondent the roof was also under his tenancy.
(5) The landlord filed an application under Section 15(2) of the Act requiring the tenant to deposit the arrears of rent at Rs. 100.00 per month from 16th May, 1972. He however admitted that the tenant had already deposited Rs. 1150.00 as ordered by the High Court during the pendency of the Revision.
(6) The tenant in reply submitted that the agreed rent was Rs. 50.00 per month, that he had been deprived of the portion of the tenanted premises and that the receipt filed by the landlord was a fabricated one. This receipt is dated 5th June, 1976. He further alleged that rent had already been paid for the period ending 31st August, 1979, and that the landlord was not entitled to demand rent till restoration of the possession of the roof to him. The Additional Controller without deciding whether the rent was Rs. 50.00 or Rs. 100.00 per month directed the tenant to deposit rent from 1-9-1979 at Rs. 100.00 per month. In appeal this order was confirmed on the basis that the receipt dated 5th June, 1976 filed by the respondent prima facie indicating the rent at Rs. 100.00 per month was purported to have been signed by the appellant.
(7) The appellant challenges the order for deposit on the ground that there was dispute regarding the agreed rent or the last paid rent and without deciding the rate of rent no order could be passed under Section 15(2) of the Act. The appellant in this Court has also filed an application under Order 41 Rule 27 of the Code of Civil Procedure with a photostat copy of the rent receipt No. 351 dated 1.9.1964 indicating the rate of rent Rs. 50.00 per month. This receipt is issued by the then landlord Shri Tirkha Ram, brother of the respondent.
(8) It is admitted at the Bar that a Civil suit for the recovery of arrears of rent at Rs. 100.00 per month is pending and one of the disputes is whether the agreed rent was Rs. 100.00 or Rs. 50.00 per month.
(9) When there is a dispute about the agreed rent or the last paid rent an order under Section 15 of the Act can be passed in view of the Full Bench Judgment in the case of M/s. Metro Electric Co. New Delhi v. Delhi Development Authority, New Delhi reported as Vol. 20 (1981) D.L.T. 64 on the basis of prima facie evidence. Before the Additional Rent Controller and the Rent Control Tribunal the receipt dated 5th June, 1976 filed by the respondent was disputed. It is admitted that there was no other evidence on record to determine that the rent was Rs. 100.00 per month. The respondent in reply to the application under Order 41 Rule 27 of the Code of Civil Procedure (C.M. No. 3254/1981) has submitted that receipt dated 1.9.64 was not relevant as according to him it pertained to one room (wooden partition room) and kitchen on the terrace floor and that from 1st October, 1970 one more room was added to the tenancy of the appellant at Rs. 50.00 per month and there- fore the rent of the entire premises was enhanced to Rs 100.00 per month with effect from 1st October, 1970. In other words genuineness of the receipt was not denied.
(10) Today the learned counsel for the appellant produced for inspection the original receipt dated 1st September, 1964 and the learned counsel for the respondent admitted that it was issued by the respondent's brother, who was also landlord at that time. He says that there has been partition since then and the suit property now belongs to the respondent.
(11) The story of the respondent that the rent was increased to Rs. 100.00 per month from 1st October, 1970 as one room was added to the tenancy as contained in the reply dated 23rd September, 1981 is prima facie not reliable. According to the allegations contained in the eviction application the premises already described were let out: on 16th May, 1957 at Rs. 100.00 per month. The story set up by the respondent in the reply to the appellant's application under Order 41 Rule 27 of the Code is thus contrary to the contents of the eviction application. The eviction application admits that the appellant has been a tenant in one room on the ground floor and one room (wooden partition room) and kitchen on the terrace floor since 1957. It is also admitted that the said rent receipt at Rs. 50.00 per month dated 1.9.1964 pertain to the premises, which were with the appellant. This receipt however does not mention the particulars of the tenancy premises. In view of the admission contained in the eviction application that the appellant has been a tenant in suit premises since prior to 1.9.64 when receipt was issued, it must prima facie be held that the rent of the premises was Rs. 50.00 per month and the same rate continued thereafter as there is no prima facie evidence of addition of any portion to the tenancy premises or increase in the rate of rent. It also appears at this stage that the story of the respondent-landlord in the reply that the room was added to the tenancy premises from 1st October, 1970 is not correct.
(12) Learned counsel for the respondent submits that order under Section. 15(2) is to be passed on the basis of the last paid rent. There is no doubt about this proposition of the law. The only question is what was the last paid rent The only admitted document on record regarding the last paid rent is the receipt dated 1st September, 1964.
(13) The Controller and the Tribunal have not taken into consideration the plea of the appellant that the receipt dated 5th June, 1976 was a forged one. It also appears that no opportunity was granted to the parties to substantiate what was the agreed rent or the last paid rent. The Controller and the Tribunal in my view, thereforee, did not act in accordance with law.
(14) The appellant in his application C.M. No. 3254 of 1981 under Order 41 Rule 27 of the Code states that receipt No. 351 dated 1.9.64 indicating the monthly rent at Rs. 50.00 could not be produced before the Controller or the Tribunal inspire of exercise of due diligence that the same was not traceable at that time and that during checking of old records the same was recently traced. Moreover in the absence of any other admitted evidence to determine the rent last paid, the permission to produce the said receipt dated 1.9.64 is necessary as it would enable this Court to determine the rent and pass order under Section 15(2) of the Act. The production of the photostat receipt No. 351 dated 1.9.64 is thereforee allowed.
(15) Taking into consideration the receipt No. 351 dated 1.9.1964 indicating rate of rent at Bs. 50.00 per month I accept the appeal and set aside the order of the Controller and the Tribunal. There was also dispute whether rent was due from 16th May, 1972 onwards. But as the matter is subjudice before the civil court, I- need not decide this point. Moreover from the orders of the Controller and the Tribunal, it appears that the landlord has accepted that the tenant in these proceedings may be directed to. deposit rent for the period from 1st September, 1979 onwards.
(16) The orders of the Tribunal and the Controller are thereforee set aside and the appellant-tenant under Section 15(2) f the Act is directed to deposit all arrears of rent at Rs. 50.00 per month for the period from 1st September, 1979 onwards till date within one month from today and continue to deposit future monthly rent at the said rate by the 15th of the succeeding month. The amount of rent already deposited for the period from 1st September, 1979 in accordance with the order of the Controller or the Tribunal may be adjusted by him against future rent that may fall due. There will be no order as to costs.