Charanjit Talwar, J.
(1) Since common questions of law arise in these two appeals, I propose to dispose them of by this common judgment.
(2) Except where necessary to refer to the facts of S.A.O. No. 366 of 1981, mainly the facts of S.A.O. 365 of 1981 are being referred to in this judgments
(3) The challenge in this Second Appeal (S.A.O. 365 of 1981) is to the legality of the order passed under section 15(1) of the Delhi Rent Control Act (herein called 'the Act'), which order has been affirmed by the Rent Control Tribunal, whereby the tenant, appellant herein, 'has been directed to pay to the landlord, respondent herein, or to deposit in Court rent at the rate of3472.00 with effect from 1st June, 1980, and continue to pay or deposit the future monthly rent by the 15th of each succeeding month. This order has been passed during the pendency of the petition under section 14(1)(a) of the Act in which it has been alleged that the appellant had not paid or tendered the rent since 1st March, 1980 in spite of a valid notice of demand.
(4) The case made out in this appeal is that on the showing of the landlord himself there were no arrears of rent due or in any case within sixty days of demand the amount of arrears had been tendered to the landlord ; as such, there being no dispute regarding the arrears of rent, the impugned order under Section 15(1) of the Act was incompetent.
(5) To appreciate the rival contentions of the parties it is necessary to notice the relevant portions of the pleadings to bring out clearly the case of the respective party. The grounds on which the eviction of the appellant- tenant was sought in the petition under section 14(1)(a) of the Act, inter alia, are as follows:
'THErespondent is a habitual defaulter in payment of rent and has not paid rent since 1-3-80 and now a sum of Rs. 24,304.00 has become due as arrears of rent up to 30-9-1980. Besides this he has also not paid Rs. 911-40 towards service charges'.
It is further averred that notice dated 6th August, 1980, was duly served on the tenant.
(6) In paragraph 5 of the preliminary objections in the written statement, the case put forward by the tenant was that no legal and valid notice in accordance with law had been served on him. It is further stated, 'The rent of the tenanted premises up to the period May, 1980 was already paid by the respondent to the petitioners vide cheque No. 084049 dated 25-7-1980 for Rs. 10416.00 drawn on New Bank of India, New Delhi, and the said cheque was duly encased by the petitioner through clearing. Besides, this the rent up to the period of September, 1980, was tendered to the petitioners vide Cash Order No. 005977 dated 10-9-1980 for Rs. 13888.00 drawn on New Bank of India but very surprisingly the petitioners have filed the present petition illegally and unlawfully and without any cause of action as there has been payment of rent by the respondent to the petitioners within the period of two months from the date of notice 6th August, 1980. However, the petitioner after accepting the said Gash Order dated 10-9-1980 did not choose to encash the same and returned the same to the respondent with mala fide intention.'
(7) By leave of the Court replication was filed by the landlord. In reply to para 5 of the preliminary objections it was denied that the notice dated 6th August, 1980, was invalid. On. the question of payment of rent it was submitted therein, 'It is, however, submitted that the. cheque of Rs. 10,415.00 was received by the petitioner. However, it is denied that a sum of Rs. 13,888.00 waspaidby cash order on 10-980. It is denied that the present petition is illegal and unlawful and without any cause of action. It is also denied that the respondent has paid the rent on account of arrears within the period of two months from the date of the notice.'
(8) Further, in reply to para 18(a) of the written statement, it was, inter alia, stated, 'It is, however, submitted that a cheque of Rs. 10,416.00 was received from the respondent which includes the service charges. The petitioner has no knowledge about the cash order by which the petitioner deposited Rs. 13,888.00 . It is also denied that the rent has been paid up to September, 1980. The cash order was duly returned as it was not proper, and the petitioner had no knowledge of the same earlier.
(9) Shri O.N. Vohra, learned counsel for the appellant submitted that admittedly prior to the notice of demand rent up to May, 1980, had been paid to the landlord vide cheque No. Jpt 084049 dated 25th July, 1980, for Rs. 10416.00 drawn on New Bank of India, New Delhi. His case is that regarding the arrears of rent from June, 1980, to September, 1980, cash order dated 10th September, 1980, for Rs. 13888.00 was tendered to the landlord. He urges that the reply of the landlord in the replication to this averment although evasive yet shows that the said cash order was returned by him. The amount was tendered, according to the tenant, within sixty days of the notice of demand, but was returned by the landlord without any justification.
(10) Sh. Vohra contends that under the law if the arrears of rent arc tendered within the stipulated period, the obligation of the tenant is over. The plea is that it is not permissible for the landlord to refuse to accept the arrears tendered within the stipulated period of sixty days. In the present case, according to Shri Vohra, the averement of the landlord that 'the cash order was duly returned as it was not proper' is an admission of the fact of the cash order having been tendered within the time prescribed. The refusal to encash it was simply to create a ground for filing the petition under section 14(1)(a) of the Act. He submits that there being no dispute regarding the payment of three months' of arrears prior to the notice of demand and because of tendering of the cash order dated 10th September, 1980, within a day or two of the receipt of the notice, prima facie there was no dispute regarding there being any arrears of rent and, thereforee, it was not permissible for the Rent Controller to pass the order under Section 15(1) of the Act.
(11) Shri S.CG.Dhanda, learned counsel for the landlord, while contesting this proposition of law has submitted on facts that the sentence, 'Gash order was duly returned as it was not proper' in the replication is a typographical mistake. In support of this submission he refers to the replication in the connected matter in which this sentence does not appear. He says that the replication has to be read as a whole ; in fact, the petitioner landlord was denying the factum of having received the cash order. He further contends that merely because the tenant had raised the plea of payment of arrears of rent it cannot be urged that the passing of the impugned order under Section 15(1) of the Act wasnot permissible. He relies on a Full Bench decision of this Court in Pritam Dass v.Kumari Jiya Rani, 20 (1981) DLT 205Sachar,J. speaking for the Full Bench, while observing that an order under Section 15(1) of the Act is not mandatory but is directory, has held that simply because a dispute has been raised by the tenant, it does not oust the jurisdiction of the Controller to pass an order under Section 15(1) ; passing of such an order on a prima facie. view of the matter is permissible. After noticing the conflict in the opinion of two Division Benches of this Court on this question, it was thus held :-
'WE,therefore, hold that it is open to the Rent Controller to pass an order under Section 15(1) of the Act on a prima facie view of the evidence even in a case where the alleged tenant denies the existence of the tenancy qua the premises. In so saying we wish to clarify that the order under Section 15(1) of the Act is final so far as Section 15(1) is concerned, though it is not final so far as the application on merits is concerned. This means that it will be open to the parties to lead evidence even on those points on which prima facie evidence may have been given before passing an order under Section 15(1) of the Act. Prima facie determination of matter does not mean that order under Section 15(1) will be passed against. All that it means is that full evidence may not be taken at this interim stage. We answer the reference accordingly'.
(12) Shri Vohra, learned counsel for the tenant appellant, contends that no doubt it is permissible for the Rent Controller to pass an order under Section 15(1) of the Act on a prima facie view but in cases where there is no dispute regarding the payment of the rent or tendering of the same to the landlord, there is no mandate for him to pass an order simply because a petition under Section 14(1)(a) of the Act has been filed.
(13) In the present case, the landlord has sought eviction on the ground that the tenant has not paid the arrears of rent since March, 1980, and that a sum of Rs. 24.304.00 has become due as arrears of rent up to 30th September, 1980. As noticed above, the tenant has categorically denied the fact and has specifically stated that (1) rent up to May, 1980, had been paid vide cheque No. Jpt 084049 dated 25th July, 1980, which had been duly enhanced by the landlord and (2) the rent up to September, 1980, had been tendered vide cash order No. 005977 dated 10th September, 1980, for Rs. 13,888.00 . In the replication filed by the landlord the enactment of the cheque for Rs. 10416.00 has been categorically admitted while, according to the landlord, the cash order for Rs. 13,888.00 had been returned.
(14) In view of this state of pleadings can it be said that there is any dispute regarding the acceptance of rent up to May, 1980, although it has been pleaded in the eviction petition that rent from March onward is in arrears. In my view, the answer has to be in the negative. Supposing a landlord files a petition on the ground that the tenant has not paid the rent for the period March 1980 to May 1980 but in the replication admits to have received it. As there is no dispute it would not be permissible to for the Rent Controller to pass an order under Section 15(1) of the Act. In the present case for the period beyond May 1980 up to September 1980 the reply of the landlord seems to be evasive. The denial coupled with the fact that the cash order in question had been returned to the tenant, supports the fact that the said amount in fact had been tendered to the landlord. In these circumstances it has to be held at this stage that the arrears of rent were tendered within the prescribed period of the notice and as such prima facie there was no dispute although it had been raised in the main petition. As has been held by the Full Bench in Pritam Dass's case (supra) it is not mandatory for the Rent Controller to pass an order under Section 15(1) especially where prima facie on the material available on the record there does not seem to be a dispute regarding the payment and/or tendering of the arrears of rent.
(15) In view of the law laid down by the Full Bench in the abovecited case, it was not mandatory for the Rent Controller to have passed the order under Section 15(1) of the Act as far as the same pertains to the case filed by T.C. Jain against the appellant in S.A.O. No. 365 of 1981. On the facts of this case I find that prima facie. there is no dispute regarding the nonpayment or tendering of the arrears of the rent and, thereforee, the order passed under Section 15(1) of the Act qua the case filed by T.C. Jain is without jurisdiction.
(16) The impugned order of the Rent Controller which has been upheld by the Rent Control Tribunal qua the petition filed by Rakesh Jain against the appellant herein, has, however, to be upheld as it was within the jurisdiction of the Rent Controller to do so in the facts of this case. The tenant in this case had also pleaded tendering of cash order for the arrears of rent from June to September, 1980, as well as encashment of a cheque amounting to Rs. 5400.00 by the landlord. While accepting the fact that the amount of arrears of rent for the period March to May, 1980, had been paid by the tenant, the landlord Rakesh Jain has denied that the cash order for Rs. 7200.00 was tendered to him on 10th September) 1980. This averment has been made in reply to paragraph 5 of the preliminary objections taken by the tenant in the written statement and also in reply to paragraph 18 (a) of the written statement. It has been specifically averred therein that the petitioner has no knowledge of the cash order by which the respondent deposited Rs. 7200.00 . It has further been denied that the rent had been paid up to September, 1980 and that despite the repeated demands by the landlord the respondent-tenant has neither paid nor tendered the rent. In this case Prima facie it was permissible to hold on the material available on the record that there was a dispute about the non-payment of the rent for the period June to September, 1980. The order passed under Section 15(1) qua this case is thus within jurisdiction. Accordingly it has to be upheld.
(17) The result is that S.A.O. No. 365 of 1981 is allowed. The other appeal, S.A.O. No. 366 of 1981, is dismissed and the impugned order, which is common to both the cases, qua this appeal is upheld. It is directed that in the petition filed by Rakesh Jain against 'the appellant the arrears of rent from 1st June, 1980, up to date be deposited within one month from today. It is further directed that the appellant in S.A.O. No. 366 of 1981 shall continue to pay or deposit the future rent month by month by the 15th of each succeeding month.
(18) While calculating the arrears of rent qua the tenant in S.A.O.No. 366 of 1981, the tenant will be entitled to the credit of the deposit already made by him as directed by this court vide orders passed on 4th November, 1981. The amount deposited in the other appeal, S.A.O. No. 365 of 1981, as per orders of this Court passed on 4th November, 1981 shall be deemed to have been paid, if already withdrawn by the landlord, towards the arrears of rent due from the tenant in that appeal.