JUDGMENT
Gokal Chand Mital, C.J.
(1) Radhey Devi is the landlady. Different parts of the building were let out by her to four different tenants, Girdhari Lal is one of them.
(2) Monthly rent payable by Girdhari Lal is Rs.20.00 . On account of non- payment of rent, earlier he was proceeded against under Section 15(1) of the Delhi Rent Control Act (hereinafter referred to as “the Act”) and that matter was decided on 25th November, 1970 by Additional Rent Controller wherein he noticed that the tenant has deposited the arrears of rent and the ground of eviction on account of non-payment of rent did not survive. There was another ground of eviction in that petition, namely, that the landlady required the building for reconstruction. The landlady gave up that point in the first application with permission to take up this ground whenever she files a fresh application for eviction. The Rent Controller consigned that rent application of the landlady with permission to her to take up the point of eviction on the ground of reconstruction on payment of costs of Rs.20.00 .
(3) The landlady filed four separate eviction petitions against four tenants on the ground of rebuilding including Girdhari Lal, tenant, and in his case, she sought his eviction on the ground that he was in arrears of rent with effect from 1st November, 1970 and despite notice did not pay the arrears of rent and, therefore, was liable to eviction under Section 14(1)(a) read with Section 14(2) of the Act.
(4) All the eviction applications were tried separately. In case of Shiv Mohan Band, tenant, eviction on the ground of rebuilding was dismissed by the Rent Controller but eviction orders ‘were passed against the remaining three tenants including Girdhari Lal. Against Girdhari Lal. eviction order was also passed on the ground that he failed to comply with the notice issued by the landlady for payment of the rent for the month of November, 1970. The landlady filed appeal before the Rent Control Tribunal against Shiv Mohan Band and the remaining three tenants filed separate appeals against their eviction orders. The leaned Rent Control Tribunal heard all the appeals together. The order of ejectment in the case of Shiv Mohan Band was maintained by the Rent Control Tribunal. The Tribunal held that the premises with the remaining three tenants was part of the same building which was occupied by Shiv Mohan Band and since Shiv Mohan Band’s portion was not to be demolished for reconstruction, the remaining tenants could also not be ordered to be evicted on the ground of rebuilding. It was also held that the landlady did not have funds to rebuilt. As a result the order of eviction passed by the Rent Controller on the ground of rebuilding was set aside regarding the other three tenants also.
(5) Adverting to the case of Girdhari Lal on the ground of non-payment of rent, the learned Tribunal came to the conclusion that while before the Rent Controller it was not shown that the tenant had deposited the arrears of rent, however, evidence was produced before the Tribunal by producing challan dated 4th November, 1970 to show that the tenant had deposited RS.100.00 in the first eviction application and this deposit of RS.100.00 was towards rent for the period 1st October, 1970 to 28th February, 1971. Inspite of the aforesaid piece of evidence, the Tribunal proceeded to hold that although deposit may not strictly in compliance with the provisions of Sections 26 and 28 of the Act, even then the said deposit could be deemed to be a tender to the landlady provided the tenant intimated to the landlady within two months of the service of the notice that such rent had been so deposited and since there was no evidence on record about the intimation to the landlady, it would be deemed that the tenant failed to pay or tender the arrears of rent for the month of November, 1970 onwards within two months of the service of notice of demand. This is a second appeal filed by Girdhari Lal.
(6) Inspite of service of notice and the listing of the case on the Daily Board for a long period, none has appeared on behalf of the landlady. Accordingly, I proceed to decide the case ex pane.
(7) On a consideration of the matter. I am of the view that the appeal deserves to succeed. The previous ejectment application was disposed of by the Rent Controller on 25th November, 1970 and during the pendency of that petition, on 4th November. 1970 the tenant deposited RS.100.00 which covered the rent for the period 1st October. 1970 to 28th February .1971. Once deposit of rent is to be taken as payment in the eyes of law and this deposit was to the notice of the landlady through her counsel in the first ejectment application as on the basis of the statement of counsel for the parties made on 25th November, 1970, the first ejectment application was consigned to record room, there was no occasion with the landlady on 4th December, 1970 to issue notice to claim rent for the month of November, 1970, as not only for the month Accordingly, I am of the view that the eviction order does not fall within the ambit of Section 14(1)(a) read with Section 14(2) of the Act and the same is hereby set aside.
(8) On behalf of the tenant one more point was raised that the second eviction application was not competent as the landlady failed to pay additional costs of Rs.20.00 before filing of the application. It is not disputed that costs of Rs.20.00 had been paid during the pendency of appeal. The Court has always the power to extend the time and if necessary reference in this behalf may be made to M/s.Konkan Trading Company v. Suresh Govind Kamar Tarkar and others. . Moreover, the conditional costs were payable to take up the ground of eviction on account of rebuilding. If she did not pay Rs.20/ – as costs before filing of the petition at best the Rent Controller could refused to look into the ground of rebuilding but could not refuse to decide the ground of eviction for non-payment of rent. On this reasoning also the whole of the ejectment petition was not liable to be dismissed viewing the case from any angle.
(9) Before parting, I am now adverting to the appeal filed by the landlady against Shri Girdhari Lal, tenant, being S.A.O.I 50 of 1978, wherein she has claimed ejectment on the ground of rebuilding. Since I have separately dismissed the appeals filed by Radhey Devi against other tenants on the ground of rebuilding, this appeal of the landlady to evict Girdhari Lal on the ground of rebuilding of the premises also cannot succeed.
(10) For the reasons recorded above, S.A.0.37 of 1978 is allowed and orders of eviction passed by the two courts below are set aside. As a result, the eviction application is dismissed with no order as to costs. S.A.O. 150 of 1978 filed by the landlady is dismissed with no order as to costs.