JUDGMENT
H.C. Goel, J.
(1) Smt. Pushpa Kapur, respondent No. 1, had filed an application for ejectment of M/s. Galaxy International Hotels Ltd., respondent No. 2, and Shri Darvesh Bhargava, appellant, who was an employee of respondent No. 2. The case of the landlady has been that she had let out the premises to M/s. Galaxy International Hotels Ltd. at a monthly rent of Rs. 1800.00 and that it had fallen in arrears of rent and it did not pay the same despite service of notice of demand on it (respondent No. 2). The appellant took up the plea before the Rent Controller that he was a direct tenant under Smt. Pushpa Kapur, respondent No. 1. Smt. Pushpa Kapur, however, succeeded before the Rent Controller. The Rent Controller held that M/s. Galaxy International Hotels Ltd. was a tenant of respondent No. 1 and it failed to pay the arrears of rent despite the service of notice of demand on it. The plea of the appellant that he was a tenant of respondent No. 1 was negatived by the Rent Controller and an order of ejectment was passed by the Rent Controller against both M/s. Galaxy International Hotels Ltd. and the appellant under Section 14(1)(a) of the Delhi Rent Control Act. This order was affirmed on appeal by the Rent Control Tribunal.
(2) Darvesh Bhargava filed an’ appeal against the impugned order of the Rent Controller as affirmed by the Rent Control Tribunal. The second appeal was admitted by this Court. The appellant moved an application for stay of the operation of the impugned order of the Rent Controller, being C.M. 692/86. A notice of this application was directed to be issued to the respondents. Service of notice was accepted on behalf of the landlady, Smt. Pushpa Kapur, then and there. The dispossession of the appellant from the premises in question was stayed subject to the condition that the appellant was directed to deposit in the Court the arrears of rent viz. from September 1, 1983 till the date of the passing of the order on February 24, 1986 within one month from that date. It was further stated in the said order that the deposit would be without prejudice to the rights of the parties. M/s. Galaxy International Hotels Ltd. subsequently filed a complaint under Section 630 of the Companies Act against Darvesh Bhargava for convicting the appellant and punishing him for his not having vacated the premises. It was alleged by respondent No. 2 that the appellant was inducted in the premises, being an employee of the company, and has not vacated the premises after he ceased to be the employee of respondent No. 2 company. The appellant was convicted by the court of the Magistrate under Section 630 of the Companies Act and was sentenced to a fine of Rs. 1,000.00 . He was also directed to deliver the possession of the premises to respondent No. 2 within two months of the order. The matter was taken by the appellant up to the Supreme Court. This order was upheld up to the High Court, the Special Leave Petition filed by the appellant against the order of the High Court upholding the order of the Magistrate was dismissed. Respondent No. I then moved an application, being Cm 1402/87, before this Court staling that the appellant had since vacated the premises on April 13, 1987 and that the possession of the premises was now with respondent No. 2 and that the stay has become infructuous in view of the appellant having vacated the premises on April 13, 1987. It was prayed that respondent No. 2 be directed to hand over the possession of the premises to respondent No. 1. It was stated on behalf of the appellant before this Court that the possession of the premises had been handed over to respondent No. 1 on April 13, 1987 in compliance with the order of the Supreme Court. An order was passed by this Court on May 19, 1987 staling that in view of the fact that the appellant was no longer in possession of the disputed premises the interim order made on February 24, 1986 is vacated. Respondent No. I had moved an application to the Rent. Controller for delivery of possession of the premises by execution of the order of ejectment passed in her favor and against the appellant and respondent No. 2 and the possession of the premises was got delivered to her by the Rent Controller.
(3) The appellant had earlier moved the present application, being Cm 1327/87 in April, 1987. It is stated in the application that as the Supreme Court has finally held that respondent No. 2, Galaxy International Hotels Ltd. is the tenant under respondent No. I, Smt. Pushpa Kapur, and the appellant is not the tenant under respondent No. I the appellant/applicant wishes to withdraw the appeal and does not want to proceed with the same as he had already handed over possession of the premises to respondent No. 2. The appellant prayed that the sum of Rs. 75,600.00 as deposited by him in the Court in pursuance of the stay order may be returned to him. This application, . has been opposed by respondent No. 1. No appearance, was put in on behalf of respondent No. 2 despite service of notice of this application on it.
(4) From the facts as narrated above it is clear that the appellant was directed to deposit the amount in question in the Court on the application of The appellant that the operation of the impugned order of eviction as against him should be stayed till the decision of the appeal. The order directing the depositing of the amount also says that the deposit shall be without prejudice to the rights of the parties. There is nothing in that order as to whom the amount was to be paid in the event of the appeal failing. However, as the same was got deposited from the appellant for allowing him the concession of staying the order of ejectment against him pending the decision of the appeal, the appellant could not ordinarily be considered to be entitled to withdraw that amount on the appeal having failed. The amount became payable to the person entitled to the same on the appeal having failed. Mr. Rohatgi, learned counsel for respondent No. 1, submitted that the amount is liable to be paid to respondent No. 1 as the same was got deposited for the twin purposes. of allowing the said concession to the appellant and also to safeguard the legitimate rights of respondent No. I for the recovery of the arrears of damages for use and occupation from the appellant. It was submitted that in a case in which a tenant inducts another person in the tenanted premises the owner- landlord is entitled to recover the arrears of the rent from the tenant as also damages for use and occupation from the person in possession i.e. the person who had been put in possession by the tenant. Mr. Makhija, learned counsel for the appellant, on the other hand, submits that so far as the appellant is. concerned, it having been held that he took the premises from respondent No. 2, his obligation was only to pay rent/damages for use and occupation only to respondent No. 2 and there was no privity of contract between him and respondent No. 1. Therefore, respondent No. 1 is not entitled to recover any amount for use and occupation from him. As stayed by me above the amount in question has been deposited under the directions of the Court to safeguard the legitimate rights of respondent No. 1 i.e. that in case respondent No. 1 be entitled to recover dues, namely damages for use and occupation from the appellant, then the amount deposited by the appellant shall be payable to respondent No. 1. I am of the view that an owner of an immovable property can successfully maintain an action for the recovery of arrears of rent from his tenant and simultaneously for the recovery of damages for use and occupation from the person who may have been put in possession by the tenant and the fact that there is no privity of contract between the owner and the person inducted by the tenant is no defense to the suit of the owner being decreed against the occupani. In such a case the decree for the recovery of the amount is executable against either the tenant or the actual occupant of the property. That being so, I am of the view that the amount that was got deposited from the appellant to protect the right of respondent No. 1 for recovery of damages for use and occupation from the appellant is liable to be paid to respondent No. I The fact that the order dated February 24, 1986 states that the appellant shall deposit the arrears of rent is inconsequential as by directing the appellant to deposit money all that was intended to be done was to secure the amount that respondent No. 1 would be entitled to recover from the appellant for his use and occupation of the demised premises for the period in question whether as rent or as damages for use and occupation. By the use of the words “arrears of rent” in that order it could not be said by any stretch of imagination that the Court was suggesting that the appellant was a tenant in the premises or was liable to pay rent for the same. Therefore, the fact that the amount in question was got deposited stating the same as arrears of rent did not have any repercussion on the question as to whether the amount in question would be payable to respondent No. 1 or not. Obviously the amount was got deposited for balancing the equities between the appellant and respondent No. 1 and for protecting the legitimate right and interest of respondent No. 1. Now that the appellant has been finally held not to be a tenant of the premises, but having been inducted in the premises by respondent No. 2 who has been held to be the tenant of respondent No. 1, respondent No. 1 is entitled to recover damages for use and occupation for the period in question from the appellant and the appellant cannot be allowed to place them out of the reach of respondent No. 1 so as to be entitled to get the refund of the amount himself. I accordingly order that the sum of Rs. 75,600.00 in question be paid to respondent No. 1 who shall .adjust the same towards the arrears of damages of the premises that are due to her from the appellant The application is disposed of accordingly Respondent No. 1 is directed to appear before the Registrar for obtaining the cheque of the amount in question on August 7, 1987.
(5) The appellant wishes to withdraw the appeal. The same is dismissed as withdrawn. The parties to bear their own costs of these proceedings.