Rajinder Sachar, J.
(1) This is a revision petition under section 35 of the Delhi and Ajmer Rent Control Act of 1952 (hereinafter to be referred as the Act) filed by defendant No. 3 against the judgment and decree passed by the District Judge, Delhi, by which the appeal of plaintiff-respondent No. 1; landlord, was allowed and a decree for eviction was passed against the defendants from the premises in suit and a decree for Rs. 3,570/2/5 in favor of the plaintiff against the defendants on account of arrears if rent and electricity charges was also passed.
(2) The facts of the case as alleged in the plaint are that one L. Cyan Chand, grand father of plaintiff-respondent No. 1 is alleged to have leased out the premises known as 17, Bara Khamba Road, New Delhi, to Shri Kidar Nath Malhotra. father of the present petitioner, on a monthly rental of Rs. 75.00 in the year 1941. Later on by a partition award dated 26-10-1946, the property fell to the share of plaintiff-respondent No. 1. A suit was brought in which apart from claiming ejectment the prayer for arrears of rent, water and electricity charges was also made. The details of the arrears were as under :-
(a) Rent from 188.8.131.526 to Rs. 387.00 31.3.1947 @ Rs. 75.00 P.M. (b) Rent including the increased allowed by the rent Control Act, 1947 from. 1.4.1947 to 31.10.1954 @ Rs. 89/1.00P.M. 8,104/11..00 (c) Electric charges from Rs. 16.851/3.00 Nov. 1946 to June, 1954. (d) Water charges from Nov. 1946 to July 1954. Rs. 568/2/6
Some adjustments on account of the amounts due were also mentioned by the plaintiff and after making the adjustment the plaintiff claimed the following amounts :-
(a) Arrears of rent up to 31.10.1954 Rs. 5,232/9/3 (b) Electric charges up to June, 1954 Rs. 1,561/5/3 (c) Water charges up to July, 1954 Rs. 492/2/3 (d) Ariesars of rent from 1.11.54 to end of January, 1955 Rs. 267/3.00 (e) Electric charges up to 23.11.54. Rs. 174/7.00 (f) Water charges to November, 1954. Rs. 29/13.00
(3) Shri Kidar Nath died during the pendency of the suit and his legal representatives including the petitioner were brought on record. The claim of the plaintiff for asking for eviction of the defendants was that :-
(A)They had not paid the sum of Rs. 7,759/7/9 as arrears due from them. (b) They had sub-let the premises to Defendant No. 2. (c) either the defendant nor any member of his family had resided in the premises for a period of more than 6 months prior to the institution of the suit. (d) The premises had been used for a purpose other than that for which they had been let.
(4) The defendants resisted the claim of the plaintiff both for ejectment and for the amount due. The petitioner who is defendant No. 3, however, pleaded that the premises in suit were not in the tenancy of his father and that, in fact, he was the tenant of the premises. He also alleged that he had made the payments to L. Cyan Chand, the predecessor in interest of plaintiff-respondent No. 1 on account of rent for the period from 1943 up to the period ending the year 1946. The other allegations of the plaintiff about the sub-letting, the mis-user of the premises were denied. On the pleadings of the parties the trial court framed the following issues :-
1.What amount of rent, water and electricity charges are due to the plaintiff ? 2. Whether defendant No. 3, has been the tenant in the premises in suit, if so, with what effect ? 3. Whether defendant No. 3 is estopped to take the pica mentioned in issue No. 2 ? 4. Whether the Rent Controller decided that defendant No. 3 was not a tenant for the premises in suit ? 5. Whether the plea that defendant No. 3 is the tenant for the premises in suit is barred by resjudicata or by principles of res judicate? 6. Whether Rs. 3,000.00 paid in the court of Shri Mool Rai Sikka, Sub Judge Delhi for L. Kidar Nath Malhotra to the plaintiff was in full and final settlement of rent ? If so, up to what date ? 7. Whether the sum of Rs. 1,000.00 deposited by L. Kidar Nath Malhotra in the Court of Shri M. R. Sikka, Sub Judge, Delhi has been paid to the plaintiff towards the rent ? 8 .'Whether notice of demand was served on late Shri Kidar Nath Malhotra ? If not, its effect ? 9. What is the effect of want of notice of demand or ejectment to defendant No. 3 ? 10. Whether the defendants are liable to ejectment on the grounds mentioned in para 17 and 20 of the plaint ? 11. Whether the defendants have no legal right to contest the plea of ejectment vide para 21 of the plaint ? 12. Whether the plant is defectvie, if so to what effect ?
13. Whether the mother of the plaintiff is co-owner in the property in suit ? 14. If issue No. 13 is proved, whether the plaintiff alone can maintain this suit ? 15. If the plaintiff or defendant No. 2, are entitled to special costs, if so how much ? 16. Relief and against whom ?
(5) Under Issues 1,6 and 7 the trial court held that on the date of the institution of the suit the plaintiff could claim only 3,150.00 on account of rent, arrears but nothing for water and electricity charges. He also held that Rs. 11,000.00 deposited by Shri Kidar Nath Malhotra towards electric and water charges could be withdrawn by the plaintiff. Under issue No. 2 the trial court held that defendant No. 3 was never a tenant of the plaintiff and that Shri Kidar Nath Malhotra, father of the petitioner, had all the time been claiming to be the tenant and was, in fact, tenant of the premises in suit. Under issue No. 4 he held that it could not be spelt out from the order of the Rent Controller that he had held that the petitioner was not the tenant. Under issue No. 5 he held that the decision of the Assistant Rent Controller was net in any way res judicata in the suit. Under issue No. 8 he held that though a, notice of demand was served by the plaintiff-respondent on Shri Kidar Nath Malhotra, but the said notice Exhibit P. 8 gave an exaggerated rate of rent and contained highly inflated demand and was, therefore, invalid and the plaintiff could not claim ejectment on the ground of non-payment of rent. Under issue No. 9 he held that in view of the decision on issue No. 2 that defendant No. 3 was not a tenant it was not necessary to serve a notice of demand on him and that the non-service of notice does not affect the suit. Under issue No. 10 the trial court noted that the pleas for the grant of ejectment against the plaintiff on the allegations of sub-letting, perversion of user and bona fide requirement for rebuilding were not pressed and the only plea that was pressed was on account of non-payment of rent. As regards the non-payment of rent the trial court held that as he had already held that the notice of demand served on Shri Kidar Nath Malhotra was invalid ejectment could not be ordered because of the nonpayment of rent. He also held that as during the pendency of the suit the Delhi Rent Control Act, 1958 had come into force, therefore, an order under Section 15(1) had to be passed by the court giving one month's time from the date of the order for the deposit of the amount due and as no order had been passed, therefore, no ejectment could be ordered as in his view because of proviso to sub-section (2) of Section 57 the case was to governed by the provisions of 1958 Act. He, therefore, held that even if the notice of demand was valid then too the tenant has to be given one month's time to make up the deficiency and he, therefore, granted time to the defendants to make up the deficiency in the rent arrear. Under issue No. 11 he held that defendants 1. 3 to 6 could contest the plea of ejectment as they were the legal representatives of Shri Kidar Nath Malhotra, the tenant. Issues Nos. 12, and 13 were not pressed and decision on issue No. 14 did not arise. In the result the trial court passed a decree in favor of the plaintiff for recovery of rent amounting to Rs. 3.150.00 for the period from 1-8-1951 to 31-1-1955 at the rate of Rs. 75.00 p.m. He also found that the arrears of rent due from 1-2-1955 to 33-1-1961 worked out to Rs. 5,400.00. Thus as against the total of Rs. 8,550.00 due to the plaintiff, the defendant had"paid Rs. 5,550.00 and the amount of Rs. 3,000.00 was still due to the plaintiff up to 31-1-1961. The defendants were directed to deposit the same amount within one month from the date of the order. He however dismissed the suit for ejectment.
(6) The plaintiff-respondents dis-satisfied with the order of the Trial Court filed an appeal before the District Judge praying for the eviction of the defendant respondent and also prayed for an' additional amount of Rs. 1,700.00. Objection was taken to the maintainability of the appeal before the District Judge, but the same was decided against the defendant by an order of the District Judge dated April 28, 1963. Thereafter the District Judge heard the appeal on merits. The learned District Judge has held that the notice of demand Exhibit P. 8 was valid. He also agreed with the trial court and held that the petitioner was not a tenant of the premises in dispute and that mere payment by defendant No. 3 could not create a tenancy in his favor. He also held that as defendant No. 3 was not the tenant, it was not necessary to serve a notice of demand terminating the tenancy. He also held that Exhibit P. 8 was composite notic i.e. a notic of demand and a notice to quit and therefore, the contractual tenancy of Shri Kidar Nath Malhotra terminated on the expiry of the notice and he became a statutory tenant. The learned District Judge also found that the plaintiff was entitled to a decree for Rs. 1109/7/3 on account of electricity charges as against Rs. 689/4/10 given by the. trial Court. Thus entitling the plaintiff to an additional amount of Rs. 420/2/5. He thus accepted the appeal of the plaintiff and passed a decree for Rs. 3,570/2/5 comprising of 3,150.00 already decreed by the trial court and an additional amount of Rs. 420/2/5 on account of electric charges. He, therefore, by his order dated 25-7-1963 passed a decree for Rs. 3,570/2/5 against the defendants. He also passed a decree for eviction of the defendants from the premises in suit in favor of the plaintiff.
(7) The present revision petition has been filed by Shri K. G. Malhotra, defendant No. 3. Mr. H. R. Sawhney, the learned counsel for the petitioner has urged that the appeal which was filed by the plaintiff before the District Judge was filed in a wrong court and the District Judge had no jurisdiction to decide the appeal and therefore, the order of the District Judge should be set aside. He also submitted that Shri K. G. Malhotra was a tenant in his own right and tile finding of title courts below that he was not the tenant of the premises is erroneous and should be set aside and that admittedly no notice of demand was served on the petitioner, the suit by the plaintiff for eviction of the defendants was not maintainable. He further alleged that notice Exhibit P. 8 was not a valid notice and the eviction could not, therefore. be ordered as there was no valid notice of demand and that even if Exhibit P. 8 is held to be a valid notice of demand the same is a notice as required by Section 13(1) of the Act but the same is not a notice of termination of tenancy under Section 106 of the Transfer of Property Act. The eviction could not be sought for unless there is a valid termination of tenancy and as tenancy has not been terminated, eviction could not be ordered. Assuming that the petitioner was not a tenant, but as he was imp leaded as a legal representative of Shri Kidar Nath Malhotra, he must be deemed to have all the rights possessed by Shri Kidar Nath Malhotra.
(8) Before the suit could be disposed of Delhi Rent Control Act of 1958 had come into force and by virtue of Section 15(1) of this Act the court had to order payment of the arrears of rent due and it was only if the rent was not paid within one month of the date of the order, could the eviction be ordered and as the petitioner had deposited the full amount of rent as ordered by the trial court when delivering the judgment on 15-2-1961 there was no default and the eviction of the petitioner could not be ordered.
(9) He further alleged that assuming Exhibit P. 8 was a valid notice both of notice of demand as well as a notice terminating the tenancy under Section 106 of the Transport of Property Act, the result was that Shri Kidar Nath Malhotra became a statutory tenant and the suit of the plaintiff, therefore, could not be proceeded against the legal representatives.
(10) I shall be dealing with these points. As regards the first contention of Mr. Sawhney it is based on Section 34 of the Act which is to the following effect : "34. Appeals: (1) Any person aggrieved by any decree or order of a Court passed under this Act may, in such manner as may be prescribed, prefer an appeal:-
(A)to the Court of the Senior subordinate judge, if any, where the value of the case does not exceed two thousand rupee: provided that where there is no Senior subordinate judge, the appeal shall lie to the District Judge: (b) to the Court of the District, where the value of the case exceeds two thousand rupees but does not exceed ten thousand rupees; and (c) to the High Court, where the value of the case exceeds ten thousand rupees. (e) No second appeal shall be from any decree or order passed in any case under this Act.
(11) Mr. Sawhney contends that appeal from the order of the first court lay either to the High Court or to the Senior Sub Judge. His contention is that the plaint was verified for Rs. 1068/12.00 on account of ejectment and court fee and for Rs. 7,750.00 for recovery of arrears etc. and for the purpose of jurisdiction it was valued at Rs. 8,817/12.00 and as the suit amount is more than Rs. 5,000.00 the appeal should have been filed before the High Court under the Punjab Courts Act. Alternatively it is submitted that if the value for the purpose of ejectment alone is to be taken then it should have been filed before the Senior Sub Judge in terms of Section 34(a) of the Delhi Rent Control Act, 1952. It was contended that the claim for arrears of rent was not correct under the Rent Control Act and the appeal should have been filed in the High Court if claim was also to be made for recovery of the rent. The learned District Judge rejected this preliminary objection by his order dated April 8, 1963. In arriving at his finding he followed a decision of the Punjab High Court given in R.F.A. 103-D of 1956. Tulsi Ram V. Mahabir Parshad and another decided on October 18, 1957. In the said case similar contentions were raised. In that case the claim on account of ejectment and for arrears of rent amounted to Rs. 9,406.00. The argument raised was that as the amount was less than Rs. 10,000.00, the appeal should have been made in the Court of the District Judge. In order to meet the said objection it was sought to be urged before the Bench that as the rent claimed exceeded 5,000.00 the same would not be a suit under the Rent Act and the first appeal would lie to the High Court. This plea was rejected by the Bench and it was held that in suits for ejectments of tenants where ejectment is sought on account of non-payment of rent, jurisdiction is determined by combining the value for both the reliefs. In the present case if the relief is both on account of ejectment and on account of arrears of rent the combined value exceeds Rs. 2,000.00 but does not exceed Rs. 10,000.00 and the appeal would lie to the District Judge. Mr. Sawhney sought to distinguish this authority by submitting that apart from the demand of arrear of rent the present suit also contain a claim for the charges on account of electricity. His plea was that even if it can be said that a claim on account of arrears of rent would be covered by an appeal under Section 34 of the Act, but as the present suit contained a claim for the arrears on account of charges of electricity the same could not be covered under Section 34 of the Act as the charges for electricity are not rent. Mr. Sawhney. in this connection, referred to Civil Revision No. 60 of 1944 decided on 14-11-1949 by Soni J. in which it was held that electricity charges are not included in the definition of the arrear of rent. Mr. Sawhney however, had to concede that even if the value of the claim on account of electricity is excluded and the value of the claim on account of ejectment and arrears of rent is combined the appeal in terms of the decision on the above mentioned R.F.A. 103-D of 1956 would lie to the District Judge. He also conceded that even if the value on account of Electricity charges are added even then the appeal would lie to the District Judge on the basis of ratio of the decision in the R.F.A. 103-D/ 56. Thus from whatever angle it is looked at the jurisdiction of the District Judge to hear the appeal cannot be questioned and I, therefore, following with respect the decision in the first appeal repel this contention of Mr. Sawhney and agree with the learned District Judge that the appeal was properly filed before him.
(12) The next contention of Mr. Sawhney is that the finding of the courts below that the petitioner was not a tenant of the premises is erroneous and should be set aside. In this connection it is well set bear in mind that this is a revision under Section 35 of the Act and the scope of revision is quite limited as laid down by a case reported as Hari Shankar and others V. Rao Girdhari La! Chowd- dhury (1962 P.L.R. 1097) where it has been held :-
"THEphrase 'according to law' refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. Section 35 is framed to confer larger power to correct error of jurisdiction."
(13) Normally, therefore the finding whether the petitioner was a tenant of the premises is a finding of fact and sitting in revision it would be binding on me. Mr. Sawhney contends that this rinding is vitiated as it was based on no evidence. He contends that it was an admitted case that the receipts for the payment of rent Exhibits D.1 to 10 D. 12 to D. 14 and D.I? to 22 all show that the same were issued in the name of the petitioner. It was contended that though it is true that originally the tenancy was in the name of the father of the petitioner Shri Kidar Nath Malhotra yet the tenancy from 1943 onward was that of the petitioner and the receipts are evidence to this. It has also been contended that the petitioner was carrying on his business and was showing the premises in dispute as being his address, in Delhi. Mr. Sawhney also pointed out that the plaintiff-landlord moved an application against the petitioner for ejectment on 28-1-1946 in which he stated that the petitioner was a tenant, and this also showed that the petitioner was being recognised as a tenant. Mr. Sawhney also contended that the courts below had erred in relying on the statement given by Shri Balraj Arora in the proceedings before the Rent Controller and relying on his earlier statement which is Exhibit P. 21. Mr. Sawhney contended that the petitioner had never engaged Shri Balraj Arora as his Advocate and, therefore, his statement that the petitioner was not a tenant in the premises and that the petitioner's father Shri Kidar Nath Malhotra was a tenant, was made unauthorisedly and the courts below committed error in placing any reliance on the statement of Mr. Arora. He also submits that there is no power of attorney given to Mr. Arora on record and that, therefore, any statement made by Mr. Arora would not possibly bind the petitioner. His contention is that an advocate has authority only to bind his client if he has been given a power of attorney and as there no power of attorney in favor of Mr. Arora, his statement should not have been used by the courts-below. Mr. Bedi, the learned counsel for the respondents, however, states that apart from the fact that the finding whether the petitioner is a tenant of the premises in dispute being a finding of fact is not open to challenge in revision, there is ample evidence on record to justify the conclusion that the petitioner was not a tenant of the premises in dispute. He submits that though it is true that an eviction application before the Rent Controller in 1946 was filed against the petitioner alone and he was described there as a tenant, this was done by a mistake and on the wrong impression of law created in the respondent-landlord's mind that the petitioner was a tenant because receipts have been issued in his name. He further stated that the statement of Mr. Arora in the proceedings before the Rent Controller were given on the authority of the petitioner and, therefore, the petitioner could not now be allowed to say that he was the tenant of the premises when he had taken a contrary stand before the Rent Controller. He has in this connection referred me to the evidence of the petitioner as Dw 11 wherein he admitted that he received notice from the Rent Controller in an application filed for eviction and that he had sent a realy to that. He categorically admitted having re- ceived notices Exhibits D. 92 and D. 93 from the Assistant Rent Controller. Notices Exhibits D. 92 and D. 93 were issued by the Assistant Rent Controller giving him the information that an application under the New Delhi House Rent Control Order, 1939 had been filed against him on account of non-payment of rent and sub-letting and asking him to attend the inquiry and produce any document thereof. It is quite obvious, therefore, that the petitioner was aware of the proceedings having been taken against him and according to him he had replied to the notices (though the reply to the notices is not on record). Mr. Bedi contends that it is un-believable that Mr. Arora, an Advocate, would have appeared for the petitioner if he had not been so authorised. There is nothing on record to show that relations between the petitioner and his father were strained and that his father would connive at getting a statement made from an Advocate which would adversely affect the petitioner. The fact that Shri Kidar Nath Malhotra also made a statement that he was the tenant and not his son also lend support to the findings of the courts below that Mr. Arora made that statement with the full consent and authorisation of the petitioner. Exhibit P. 21, the statement or Mr. Arora is absolutely clear. In this statement it is stated that the tenant is the father of the petitioner and that the rent had been paid by him on behalf of Shri Kidar Nath Malhotra. There is also a statement made by Shri Kidar Nath Malhotra in which he asserted that he was the tenant all alone and that. in fact, he was the tenant even today. It is hard to believe that if the petitioner was a tenant in his own right and was seriously contesting the tenancy, he would have participated in the proceedings to protect his rights. The fact that he was satisfied even after the receipt of notice to let the litigation be fought out by Mr. Arora and his father clearly proves that the statements were made with his consent. In my view, therefore, the courts below have committed no error in relying on the evidence of Mr. Arora. The mere fact that there is no power of attorney would not take away from the truthfullness of the statement made by Mr. Arora. The statement made by Mr. Arora is not being used as an admission to bind the petitioner but is merely used as a piece of evidence to show that the petitioner was not laying claim to the tenancy of the premises in dispute. Mr. Sawhney has also urged that the previous statement of Mr. Arora was brought on record without the original having been summoned before the court. He submitted that the original filed was not called because a report was received that the same was not traceable. He submits that the file is available now and, therefore, the statement Exhibit P. 21 which was taken on record without the original file having been before the court is not admissible. In my view there is merit in this contention. At the time when Exhibit P. 21 was accepted there was a report (whether rightly or wrongly) that the file was not traceable. In that view of the matter the court was justified in admitting and accepting the certified copy of the previous state- ment of Mr. Arora. The conclusion that the petitioner was not a tenant of the premises is further supported by the subsequent judicial proceedings that were started by the petitioner's father Shri Kidar Nath Malhotra. After the original application against the petitioner had been dismissed on 13-11-1946, a fresh application against Shri Kidar Nath Malhotra was filed on 5-2-1947 and an order of eviction was obtained against Shri Kidar Nath Malhotra. Shri Kidar Nath Malhotra later on filed a suit on 11-7-1947 for a declaration that eviction order dated 5-2-1947 was illegal and not binding on him. After a protacted litigation the suit was ultimately decided by the High Court in favor of Shri Kidar Nath Malhotra and the order of eviction passed on 5-2-1947 by the Assistant Rent Controller was set aside. During ail these proceedings the petitioner took no part in this litigation. It was the petitioner's father who fought this litigation. Mr. Sawhney contended that as there was no eviction order against the petitioner it was not necessary for me to fight the litigation and, therefore, no inference could be raised against him. It is true that there was no eviction order against the petitioner, but the fact that the eviction order was being challenged by his father and on the basis of being a tenant must have been known to the petitioner all through. It is not explainable why the petitioner should sit silent and all this litigation be fought out by his father on the basis that he was the tenant and not the petitioner if it was not a fact. This conduct of the petitioner in letting his father fight the litigation further land support to the fact that he was accepting the position that it was his father who was the tenant of the premises in dispute.
(14) One further fact supports the finding of the courts below that the petitioner was not the tenant of the premises in dispute. Shri Kidar Nath Malhotra filed an application under Section 41 of the Act being suit No. 72 of 1952 for restoration of electric and water supply which were alleged to have been cut without a sufficient reason by the respondent-landlord Section 41(1) & (2) of the Act read as under;-
"(1)No landlord either himself or through any person purporting to act on his behalf shall without just or sufficient cause cut off or withold any essential supply or service enjoyed by the tenant in respect of the premises let to him. (2) If a landlord contravenes the provisions of subsection (1), the tenant may make an application to the Court complaining of such contravention."
(15) A reading of this section clearly shows that an application under Section 41 of the Act is maintainable only at the instance of a tenant. It is, therefore, a condition precedent to such an application being moved that a person who applied should be a tenant. Now this application was admittedly moved by the petitioners father. If the petitioner was a tenant in his own rights and as he stated that he was living in the premises in dispute, it is not understood why he did not file an application in his own right. It is not as if the petitioner was not aware of this application having been filed by his father. It is clear from the crossexamination of the petitioner as Dw 11 that he knew that an application under Section 41 of the Act was filed in the name of the petitioners father. Not only that the petitioner had himself engaged a lawyer in that petition. He had also admitted that he had met the counsel and had instructed him in these proceedings. Though he stated that he did not remember whether he had told the counsel that he was the tenant of the suit premises and not his father. The petitioner had also admitted that some payments were made to the lawyer by his father by a draft which he handed. over to the counsel. It is obvious therefore, that the petitioner knew that an application had been filed by his father under Section 41 of the Act obviously on the basis that the tenancy was in the name of his father. He participated in the proceedings and at no stage did he ever object to his father claiming the tenancy for himself. During the pendency of this application under Section 41 of the Act, Shri Kidar Nath Malhotra died and his legal representatives were brought on record. The petitioner was also imp leaded in the application under Section 41 of the Act. Even when he was imp leaded he never took up the plea that it was wrongly mentioned that Shri Kidar Nath Malhotra was the tenant and in fact the tenancy was that of the petitioner. All these circumstances, therefore, go to show that the petitioner had all the time been accepting the fact that the tenancy was that of his father. It seems that he now wishes to take advantage of the dismissal of the original application filed before the Assistant Rent Controller in which the landlord stated that the petitioner was the tenant. If the matter had stood there alone, it might have been a different story, but all these circumstances indicated above lead consistently to one view that the petitioner is now claiming himself to be the tenant but had previously been accepting the position that Shri Kidar Nath Malhotra was the tenant in the suit premises. In any case the conclusion whether the petitioner was a tenant of the premises or not was to be inferred from these various circumstances mentioned by the courts below. It cannot be said that the conclusion of the courts below that the petitioner is not a tenant of the premises in dispute was an impossible conclusion or was based on any inadmissible evidence. Such being the case findings of the courts below that the petitioner is not a tenant of the premises in dispute has to be up-held and I do so accordingly.
(16) The next contention of Mr. Sawhney is that even assuming that the petitioner was not a tenant of the premises even then no order for recovery of possession could be made because there was no valid notice given as required by Section (a) to Section 13(1) of the Act. He also submitted that even if it be assumed that notice Exhibit P. 8 is a valid notice in terms of proviso (a) to Section 13(1) of the Act, even then it was no notice to quit and for termination of tenancy as required by Section 106 of the Transfer of Property Act. He, therefore, submitted that in the absence of a valid notice on both these grounds the order for the recovery of possession of the premises in dispute could not be passed in favor of the respondents. In this connection, the trial court had under issue No. 8 held that a notice of demand dated 31-10-1954 Exhibit P. 8, which has been sent by the landlord was invalid because it gave an exaggerated rate of rent and made a highly inflated demand. It was held by the trial court that the notice was invalid and the tenant was justified in ignoring the same. The appellate court has pointed out that in the notice the rent had been demanded by calculating the rent at the rate of 891/1.00 per mensem from 1-4-1947 which included the permissible increase as provided in the Act and the plaintiff claimed this amount as standard rent. The appellate court pointed out that there was no doubt that Rs. 14/1.00 was a permissible increase but the dispute only was whether it was automatic or whether the same could not be demanded unless an order of the court had been obtained, He, therefore, found that the notice could not be held invalid only on the ground that the rent was demanded at the rate of Rs. 89/1.00 and not at the rate of Rs. 75.00 per mensem. The appellate court observed that the trial court in holding the notice of demand Exhibit P. 8 to be invalid had been influenced by the fact that the notice of demand had also claimed arrears of rent which was not legally recoverable in the proceedings because it had become barred by time. It is now well settled by the case reported as Rulia Ram V. S. Fateh Singh (1962 Plr 255) that the words 'arrear of rent' in the Act of 1952 are to be interpreted to mean arrears of rent irrespective of the fact whether any part of the arrear was beyond limitation. The appellant court therefore, held that Exhibit P. 8 could not be considered to be invalid for the reason that it had created a demand for a time barred rent even though the landlord may not be able to recover the time barred arrears. In my view the appellate court came to a correct view that the notice Exhibit P. 8 was not invalid on the ground that it contained a demand for time barred rent or that it contained a demand for rent at an increased rate other than, might have been permissible. It has been held in Parkash Nath Vatsa V. Uttam Chand Chadha (1963 Plr 1116) a decision of Mr. Justice H. R. Khanna (as he then was) as follows :-
"THEfact that the landlord had in his notice demanded excessive amount as arrears of rent from the tenant does not absolve the tenant from paying the arrears of rent which were in a fact due from him. There is no justification for the tenant to remain silent and not to pay even the amount which, according to him, was due after the notice of demand had been given to him."
(17) His lordship referred to the various authorities and came to the conclusion that even if an incorrect figure about the arrears of rent are given, it does not absolve the tenant from paying the arrears of rent which was due from him. Similarly there is another case in which it was held that it does not require that the notice should state the exact amount which is due and that the landlord may make an exorbitant claim but the law is that the payment to be made should be of the sum due under the contract and that if no payment or tender was made, the landlord is entitled to get eviction of the tenant. See Civil Revision No. 252 of 1950 Govind Sara Gupta V. Kishan Lal decided on 19-3-1951 by J. L. Kapur J. (as he then was).
(18) It has also been alleged by Mr. Sawhney that the notice was bad because it is not a notice for demand for arrears of rent but is for damages. But as pointed out by the appellate court though the word damages are mentioned in Exhibit P. 8, it seems to have been used as inter-changeable rent and therefore it cannot be held that this was not a notice for demand of rent. I would, therefore, agree with the finding of the appellate court that Exhibit P. 8 was a valid notice of demand under proviso (a) to Section 13(1) of the Act.
(19) The next objection of Mr. Sawhney was that even though Exhibit P. 8 is to be held a valid notice of demand under proviso (a) to Section 13(1) of the Act, it was not a notice of termination of tenancy under Section 106 of the Transfer of Property Act. and, therefore, no order for evicticn could be passed. Admittedly this Exhibit p8 is the only notice that has been issued by the landlord and unless this notice can be held to be both a notice under proviso (a) to Section 13(1) of the Act as well as a notice for termination of the tenancy under Section 106 of the Transfer of Property Act, recovery of possession could not be ordered. The question therefore, to be seen is whether Exhibit P. 8 does not also satisfy the requirements of a notice of termination of the tenancy as required under Section 106 of the Transfer of Property Act. Mr. Sawhney contended that now it is well settled that a notice of termination under Section 106 of the Transfer of Property Act was essential to be given before recovery of possession could be obtained. He in this connection referred me to the
proposition that a notice of termination under Section 106 of the Transfer of Property Act was essential before an order for recovery of possession could be obtained. Mr. Bedi, the learned counsel for the respondents does not dispute the correctness of this proposition. His submission, however is that notice Exhibit P. 8 is a composite notice both as a notice of demand and a notice of termination of tenancy. Mr. Bedi's contention is that the lower appellate court has correctly found that Exhibit P. 8 was the composite notice i.e. a notice of demand and a notice to quit. He in this connection, has drawn my attention to para 15 of Exhibit P. 8 which is as follows :-
"THATI hereby call upon you to pay the aforesaid sum of Rs. 8,149/11 within a-of the receipt of this notice and also to vacate the premises by 30th November, 1954, failing which my client will move the matter in court, holding you liable for all costs and. . . . "
(20) His contention is that such a notice as Exhibit P. 8 contained both a notice for rent and a notice to quit, and there by termination of the tenancy. In this connectiom he has relied on Mangilal V. Sugan Chand Rathi (deceased and after him his heirs and legal representatives and another wherein it is held as follows :-
"IThas to be observed that the plaintiffs, after requir- ing the defendant to pay the rental arrears due up to the end of March, 1959, within one month from the date of service of the notice, proceeded to say, 'failing which suit for ejectment will be filed'. These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts."
(21) He says that in the present case also Exhibit P. 8 clearly demanded the arrears of rent staling that on failure a suit would be filed. This he says is a notice to quit and the termination, therefore, was valid. I think there is force in the submission of Mr. Bedi. Exhibit P. 8 must be held to be a composite notice in which there was a notice of demand as well as a notice to quit. The authority clearly lays down that it is not necessary that a notice of demand and a notice to quit should be given in separate document as held in Ahmad Ali V. Mohd. Jamal Uddin .:
"THEREis nothing in section 106 and 111(h) of the Transfer of Property Act to indicate that if a notice terminating the tenancy contains another demand it is invalid or ceases to be a notice terminating the tenancy. It has been held by this Court that one notice terminatnig the tenancy and demanding arrears of rent is not invalid".
(22) Mr. Bedi has referred to Bradley V. Atkinson (I.L.R, Vii Allahabad)(8) and submitted that the said case is distinguishable. In that case notice was issued on 11-12-1882 and called upon the tenant to vacate the premises within a month. It was on these facts that their lordships held that this was not a notice to quit as required by Section 106 of the Transfer of Property Act because the notice did not terminate the tenancy by the end of the month. It was further held that as the tenancy began on 1-7-1882 a notice issued to quit would have to be issued as to require the tenant to quit an the 1st of the month. In the present case, however, notice given on 31-10-1954 called upon the tenant to vacate the premises by 30-11-1954 that is the period ending with the month of the tenancy. In my view, therefore, notice Exhibit P. 8 was a composite notice both as a notice of demand and a notice to quit. The result would be that the contractual tenancy of Shri K. N. Malhotra therefore, stood terminated from 1-12-1954.
(23) Mr. Sawhney next contended that even if it be held that a valid notice was given by Exhibit P. 8 even then the petitionswas not liable to be evicted as he was entitled to the benefit of Section 15(1) of the Delhi Rent Control Act, 1958, which reads as follows:-
"(1)In every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14 the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the months previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate."
(24) The contention of Mr. Sawhney is that as the suit is for the recovery of possession on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14 on account of non-payment of rent no order for recovery of possession of the premises could be made if the tenants makes payment of the deposits as required by Section 15 and he referred me in this connection to sub-section (2) of Section 14. It is his contention that until the controller has passed an order directing the tenant to pay the rent and untile he has defaulted to so pay within one month from the date of order, the order of recovery of possession could not be passed. He says that no order under Section 15(1) of the Act, 1958 had been passed by the trial court at any earlier date and actually the trial court only at the time of passing the judgment on 15-2-1961 directed the petitioner and other defendants to deposit the balance of the amount of Rs. 3,000.00 within one month of the date of order. Mr. Sawhney says that admittedly Rs. 3,000.00 have been deposited and, therefore, no order for eviction could be passed against the petitioner.
(25) Mr. Bedi, the learned counsel for the respondents has two fold objections to the submission of Mr. Sawhney. His first objection is that as Exhibit P. 8 had determined the tenancy of Shri Kidar Nath Malhotra the latter must be held to be a statutory tenant on 1-12-1954. His second objection is that now it is well settled that statutory tenancy is a personal right to remain in pos- session and on the death of the statutory tenant, the tenancy lapses and does not pass on to the legal representatives In this connection he has referred me to Nihal Chand V. Shiv Narain and others (1958 P.L.R. 297(9), and Niadre V. Nanneh (1960 P.L.R. 451)(10). These authorities lay down that on the death of the statutory tenant the right comes to an end and the legal representatives of the tenant would have no right for the possession of the premises, as they do not succeed to the tenancy rights of the tenant. He submits that on 28-5-1955 Shri Kidar Nath Malhotra died and as he was a statutory tenant on that date nothing survived to the petitioner and the other legal representatives. It is his contention, therefore, that even if any amount was paid by the legal representatives of Shri Kidar Nath Malhotra, the same would be of no avail to them to avoid eviction. Rereference was made to the definitions of tenant under Section 2(1) of the Rent Control Act of 1958 and it was sought to urge that a tenant means a person whose tenancy has been determined and these the petitioners case is covered. But the said contention was rejected by the appellate court. It came to the conclusion that the said definition only saved the rights of a person whose tenancy has been terminated and who continued to remain in possession of the property, therafter. The said definition would not give any right to the legal representatives of a statutory tenant because no rights passed on the death of the statutory tenant to the legal representatives and therefore, this definition was of no avail to the petition. In this view of the matter Mr. Bedi contended that there is no necessity of any order having been passed under Section 15(1) of the Act of 1958; before the eviction of the petitioner and other defendants could be ordered. Mr. Bedi submits that the position might have been different if Shri Kidar Nath was alive and in that case it may have to be considered whether without the trial court passing an order under Section 15(1) of the Act of 1958 and the non-compliance thereof having been established could have been ordered to be evicted. But as Shri Kidar Nath Malhotra died on 28-5-1955 the necessity to pass an order under Section 15(1) of the Act of 1958 did not arise. I think there is force in the contention of Mr. Bedi and I would uphold the finding of the appellate court on this point.
(26) Mr. Bedi also argued in the alternative that even if it was to be assumed that an order under Section 15(1) of 1958 Act was to be passed the said situation could only arise in a case where a party had not availed of the provision, of Section 13(2) of the Act. Mr. Bedi submits that the suit was filed on 18-2-1955 against Shri Kidar Nath Malhotra. Summonses were issued for the appearance of Shri Kidar Nath Malhotra for 3-6-1955. He unfortunately died on 28-5-1955. An application to bring on re- cord the legal representatives was allowed and the legal representatives including the petitioner were ordered to be brought
(27) A on record on 3-4-1956. In the first instance ex-parte proceedings were taken against the petitioner and subsequently the ex-parte proceedings were set aside on 13-9-1956. The petitioner filed an application dated 10-12-1956 wherein he stated that he had been imp leaded and the first date of hearing was fixed as 19-12- 1956. In this application the petitioner stated that he might be allowed to deposit Rs. 1,500.00 without prejudice in any manner in which this amount might ultimately have to be adjusted. On this the court passed an order but on the same date that Rs. 1,500.00 be deposited. It is the contention of Mr. Bedi that this application and order must be deemed to be under Section 13(2) of the Act. He submits, therefore, that the time which a court could have given for payment of the deposit was given by this court and in pursuance of that Rs. 1,500.00 was deposited. It is a common ground that the amount due ultimately is Rs. 3,000.00 which is more than the amount deposited. He, therefore, contends that the petition having avail of an opportunity under Section 13(2) of the Act of 1952 cannot now again be permitted to avail of a further opportunity under Section 15(1) of the Act of 1958, because such an opportunity cannot be permitted to be taken under the 1958 Act if the same had already been availed of in the Act of 1952. Mr. Bedi's contention is that Section 15(1) of 1958 Act is not applicable to the proceedings which are pending prior to the coming into force of the Act. He, however, states that even if it is held that these proceedings are governed by 1958 Act, yet section 15(1) will apply only in those cases where the order under Section 13(2) of the 1952 Act had not been passed. I think there is force in the contention of Mr. Bedi. The petitioner had availed of an opportunity under Section 13(2) of the 1952 Act and even if it was to be held that the proceedings under Section 15(1) of the Act of 1958 was to cover cases where proceedings were pending on coming into force of the Act, the same will not apply in the peculiar circumstances of the case as an opportunity had already been obtained under Section 13(2) of the 1952 Act. Moreover no order under Section 15(1) of the Act of 1958 was passed by the trial court earlier to the judgment. The direction that was given was in the judgment and it seems to me to be doubtful whether directions under Section 15(1) could be passed at the time of giving the judgment. Section 15(1) contemplates the stage of trial before the final judgment is given and does not envisages a situation where the order under Section 15(1) can be passed simultaneously with the passing of the final judgment by the trial court. But as I have already held that Section 15(1) of 1958 Act was not applicable for the reasons mentioned above, it is not necessary to give final decision on this point.
(28) Mr. Sawhney also sought to urge the point that if it is to be held that Shri Kidar Nath Malhotra'had become a statutory tenant when no suit could have been proceeded against the legal repre- sentatives on the death of Shri Kidar Nath Malhotra and he in this connection referred me to Shri Sunder Singh V. Madhusudan Singh and others (1967 P.L.R. Short Notes of cases No. 7)(11). I am afraid Mr. Sawhney cannot avail of this contention as this point was not taken in any of the pleading of the petitioner. In the written statement filed by the petitioner it was specifically his case that he was the tenant of the premises. It was not his case that suit was not maintainable against him because Shri Kidar Nath Malhotra was a statutory tenant and the suit could not proceed against his legal representatives. Had such a plea been taken the suit might been withdrawn by the plaintiff and a fresh suit might have been filed for the eviction of the petitioner on the ground that he was an unauthorised occupant. The petitioner having definitely pleaded that he was the tenant of the premises cannot be allowed to urge at this late stage that the suit could not have been proceed with on the death of Shri Kidar Nath Malhotra. This is obviously a contradictory plea to the one which he took in the written statement. No issue was struck on this point nor was it argued in the courts below. I, therefore, do not think that it will be in the interest of justice or fitness of things that such a plea should be allowed to be raised by him at revisional stage. Even otherwise I don't think there is any force in this contention of Mr. Sawhney. Once it is held, as I have, that Shri Kidar Nath Malhotra was the tenant of the premises and his tenancy had been terminated validly by the notice Exhibit P. 8 the suit for possession could not be resisted by the petitioner who is a legal representative of Shri Kidar Nath Malhotra. The reason is that as notice to quit had terminated the tenancy of Mr. Kidar Nath Malhotra as no rights of tenancy were inherited by the petition the legal representatives could not challenge the right of the respondent landlord to recover possession.
(29) The result is that I up-hold the judgment of the District Judge dated July 25, 1963 and dismiss the revision petition, but in the circumstances of the case with no order as to costs. The petitioner is given two months' time to vacate the premises.