Sultan Singh, J.—The appellants-landlords filed a petition for eviction of the respondent in February 1967 on the grounds mentioned in clauses (a)&(e) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958 (for short ‘the Act’). Rent was claimed from 1st March, 1964 @ Rs. 67.50 They alleged that a notice of demand dated 15th October, 1966 was served upon the respondent but he neither paid nor tendered any amount. In the written statement the respondent alleged that in other proceedings interim rent was fixed at Rs. 55/- per month. The Additional Controller therefore passed an order dated 28th July, 1967 under section 15(1) of the Act directing the respondent to deposit arrears of rent from 1st March, 1964 at Rs. 55/- per month and future rent at the said rate by the 15th of the succeeding month till the decision of the case.
2. By order dated 20th July, 1976 the Additional Controller held that the respondent had failed to comply with the order passed under Section 15(1) of the Act. He therefore passed an order of eviction under Section 14(1)(a) of the Act. The other ground of eviction under Section 14(1)(e) of the Act was negatived.
3. On appeal the Rent Control Tribunal by order dated 27th September, 1979 confirmed the order of eviction on ground of non-payment of rent. During the pendency of the appeal before the Tribunal there was no stay of the eviction order. The appellants in execution obtained possession of the premises on 9th October, 1976.
4. The respondent filed second appeal (S.A.O No. 42 of 1980) which was accepted on 8th May, 1980. It was observed that in the previous litigation between the parties the agreed rent was held to be Rs. 67.50 per month and that finding was res judicate. This court further held that the respondent had complied with the order passed under Section 15(1) of the Act and therefore he was not liable to be evicted. The eviction petition was dismissed. As the landlord-appellants had taken possession of the premises during the pendency of the appeal before the Tribunal this court directed the landlords to restore possession of the premises to the respondent. The respondent at that time had agreed: that a sum of Rs. 12.50 per month being the difference between rent @ Rs. 67.50 per month and the rent at Rs. 55/- per month deposited by him was payable to the appellants for the period ending 9th October, 1976. This court therefore directed the respondent to deposit the sum of Rs. 1735.50 as arrears upto 9th October, 1976 within one month from the date of the order. A condition was however placed that the landlords would not be entitled to withdraw the amount so deposited unless possession of the premises was handed over to the respondent.
5. The landlords filed an appeal in the Supreme Court challenging the judgment and order of this court. Before the Supreme Court it was discovered that the respondent-tenant had acquired a flat from Delhi Development Authority in the name of his wife and that flat was available to the respoddent the Supreme Court allowed the appellants to amend their petition for eviction respondent that the respondent had acquired possession of a vacant residence within the meaning of Section 14(1)(h) of the Act. The respondent filed his reply to the amended petition for eviction. After considering the averments of the parties the Supreme Court held that the respondent had through his wife acquired vacant possession of a residence in Delhi the appellants petition for eviction of the respondent under Section 14(1)(h) of the Act was allowed “and the judgment of this court was set aside (see: Prem Chand v. Sher Singh, (1981) 2 DRJ 287).
6. The respondent-tenant in accordance with the order of this court dated 8th May 1980 had deposited the amount of Rs. 1,735.50 which was withdrawn by the appellants on 22nd May 1981.
7. The respondent-tenant filed an application on 13th July 1981 before the Additional Controller for withdrawal of the amount deposited by him as the landlords-appellants had not restored possession in accordance with the order of this Court. The appellants resisted the refund of the amount but the Additional Controller and the Tribunal held that possession was not restored as directed by this court and therefore the respondent was entitled to the refund of the said amount.
8. The judgment dated 8th May, 1980 of this Court is Sher Singh Gupta v. Prem Chand 1980 Raj. Law Reporter 413. The last paragraph of the judgment reads as under:
“Counsel for the landlords have argued that the tenant should be required to deposit Rs. 12.50 per month for the period from 1-3-1964 to 9-10-1976 the date on which he was dispossessed. It is admitted by the tenant that for this period he has paid rent at the rate of Rs. 55/- per month, the interim rate fixed by the Additional Controller. No doubt the rent has been held to be Rs. 67.50 by this court in revision. The tenant ought to pay the difference of Rs. 12.50 p.m He is prepared to dp so. This amount comes to Rs. 1,887.50. Counsel for the landlords agree that they have received an excess amount of Rs. 151/- from the tenant. They are prepared to give a credit for it. Therefore the net amount comes to Rs. 1,735.50. The tenant is directed to deposit this amount. He will do so in cans with the Additional Controller. But the landlords will not be entitled to withdraw the amount so deposited unless and until they hand over possession to the tenant in terms of my order”.
9. Learned counsel for the appellants submits that the appellants were entitled to the amount of rent for the period 1st March, 1964 to 9th October, 1976 at Rs. 67.50 per month and the amount in question was deposited by the respondent as arrears for the period only. He submits that the Controller and the Tribunal have erred in directing the refund of the amount to the respondent. The order of this court directing the appellants to restore possession to the respondent was set aside by the Supreme Court. According to the above observation of this court the only restriction was that the landlords would not be entitled to withdraw the amount so deposited unless they hand over the possession to the tenant. It is not disputed that the amount was due to the appellants arrears for the period ending 9th October, 1976 but the question is whether they are entitled to retain it without handing over possession. The order of this court directing delivery of the possession to the respondent was wet aside by the Supreme Court and therefore it is not possible for the appellants to deliver possession to the respondent. The Additional Controller and the Tribunal have observed that as possession was not delivered, the landlords were not entitled to retain the amount. This is wrong approach. The order directing the appellants to deliver possession to the respondent was set aside by the Supreme Court and as such the appellants were not required to deliver possession. The Tribunal and the Additional Controller, in my view, have not taken into consideration the subsequent events and facts since the passing of the order dated 8th May, 1980 by this court. After taking into consideration the order of the Supreme Court, it is clear that the appellants were granted an order for eviction of the respondents under Section 14(1)(h) of the Act and judgment of this Court directing delivery of possession to the respondent was set aside.
10. The appeal is accepted setting aside the judgment and order dated 21st March, 1984 confirming the order dated 20th January, 1984 of the Additional Controller. The application of the respondent dated 13th July, 1981 for withdrawal of the amount deposited by him is dismissed. No order as to costs.
Appeal allowed