S. C. Jain, J. ( 1 ) THIS case has a checkered history. In brief, the factsgiving rise to this second appeal are that flat No. 22-B, Sujan Singh Park, Newdelhi along with servant quarter and garage had been let out to H. L. Pathakw. e. f. 1. 11 1949. Shri K. R. Bedi, father of the appellants was inducted as asub tenant in this flat. The respondent landlord brought an eviction petitionagainst H. L. Pathak on the ground of sub letting. In that case Shri K. R. Bedi had taken the plea that he had been a lawful sub tenant. On 11. 8. 1961,shri K. R. Bedi died and in February, 1963, the Counsel for the landlordmade a statement in that case withdrawing the eviction petition andstating that appropriate proceedings would be taken against the legalrepresentatives of late K. R. Bedi who were in possession. of the premises. On 13-3-1963, the respondent landlord filed an eviction petition pleading thatthe appellants, Devinder Singh and widow of late K. R. Bedi were the tenantsin the premises comprising the flat, servant quarter and garage on a monthlyrent of Rs. 283. 69. One of the grounds of eviction was non payment of rent. In the written statement filed in that eviction petition the appellants, Devendersingh and the widow of K. R. Bedi admitted the respondent company to bethe landlord and themselves to be tenants but mentioned that Narinder Singhand Shakuntla Bammi who were residing in the flat were not strictly speakingthe tenants. Another plea taken was that they were not in possession of theservant quarter and garage and as such they are tenant in respect of the flatonly and not in respect or servant quarter and garage and the rent of the flatshould be much less than claimed. Another plea taken was that they hadbecome direct tenants w. e. f. , 19. 2. 63 after termination of tenancy of Shripathak and were liable to pay rent from 19. 2. 63 which they were willing topay. ( 2 ) SHRI A. S. Gill, the then Rent Controller, passed an order on 1 7/07/1963 under Section 15 (1) of the Delhi Rent Control Act directing theappellants-tenants to deposit in Court the arrears of rent from 11. 8. 1961 atthe rate of Rs. 175. 2. 63 which they were willing topay. ( 2 ) SHRI A. S. Gill, the then Rent Controller, passed an order on 1 7/07/1963 under Section 15 (1) of the Delhi Rent Control Act directing theappellants-tenants to deposit in Court the arrears of rent from 11. 8. 1961 atthe rate of Rs. 175. 00 (interim rent) within one month of that order and todeposit future rent at the same rate by the 15th of the following. month. ( 3 ) AN appeal was taken against that order before the Tribunal. The Rent Control Tribunal vide order dated 17. 10. 1963 ordered the appellantstenants to deposit arrears w. e. f 19. 2. 63 at the interim rate of Rs. 175. 00 withinone month from that date and to deposit the future rent month by monthby the 15th of the following month and the case was remanded back to therent Controller. ( 4 ) THE then Rent Controller Shri A. S. Gill, vide order dated 14. 2. 66. declined the request of the respondent landlord for eviction of the appellantson the ground of non payment of rent because the parties Counsel agreedthat the order passed by the Rent Control Tribunal on 17. 10. 1963 had beencomplied with. However, an order for recovery of the suit premises waspassed in favour of the respondent landlord on the grounds contained inclauses (b) and (h) of sub-Section (1) of Section 14 of the Act. On appealbefore the Rent Control Tribunal, the order of eviction passed by the Rentcontroller under Clauses (b) and (h) was set aside and its appeal before thehigh Court was dismissed. ( 5 ) AGAIN, in September, 1971 the respondent-landlord filed anpeviction petition under Section 14 (1) (a) of the Delhi Rent Control Actagainst the appellants with respect to the suit premises No. 22-B, Sujan Singhpark, New Delhi, alleging that the monthly rent was Rs. 225. 50 plus 28. 19towards house tax and Rs. 30. 00 as water charges. Eviction was sought on thefollowing grounds:- "non payment of rent: A sum of Rs. 19869. 88 is due from therespondent on account of arrears of rent and other charges from19. 2. 63 to 31. 8. 71. Out of this amount the petitioners have alreadyfiled a suit for the recovery of Rs. 14558. 14 being the rent andother charges from 19. 2. 63 to 30. 11. 69 of the premises in dispute. 19869. 88 is due from therespondent on account of arrears of rent and other charges from19. 2. 63 to 31. 8. 71. Out of this amount the petitioners have alreadyfiled a suit for the recovery of Rs. 14558. 14 being the rent andother charges from 19. 2. 63 to 30. 11. 69 of the premises in dispute. Thus a balance of Rs 5311 74 is due on account of the arrears ofrent and other charges from 1. 12. 69 to 31. 8. 71 respecting which nolitigation is pending between the parties. Respondents have thuscommitted a default in the payment of rent and other charges formore than three consecutive months. The respondents having thusenjoyed the benefit of deposit in an earlier petition cannot be givenfurther benefit of deposit and are liable to eviction". ( 6 ) THAT eviction petition was contested by the appellants-tenantsand a written statement was filed pleading, inter alia, that Rajinder Singhbedi is co-tenant in the suit premises and no notice of ejectment under Section106 of the Transfer of Property Act has been served on him. It is alsodenied that rate of rent was Rs. 225. 50 per month besides Rs. 28. 19 towardshouse tax and Rs. 30. 00 towards water charges. The landlord s suit for recovery of rent of Rs. 14558. 00 for the period ending December, 69 was dismissedwith costs by Shri R. K. Sinha Sub Judge 1st Class on 23. 3. 72 and its appeal ispending before Delhi High Court. In view of the dismissal of the suit forrecovery of rent, the eviction petition is not maintainable. It is denied thatthe tenant has enjoyed the benefit of deposit of rent under Section 14 (2) ofthe Delhi Rent Control Act in the earliear eviction petition. No notice ofdemand was served on the respondent and the petition for eviction on theground of non payment of rent is bound to fail as there is no cause of actionas alleged in para 18 of the petition. The Additional Rent Controller in his orderdated 1. 4. 1976 found that the appellants had taken the benefit under Section14 (2) and that they have not paid rent after the service of notice of demandnor deposited any amount and as such they had fallen in arrears of rent formore than three consecutive months. In such circumstances an order of eviction was passed under Section 14 (1) (a) on 1. 4. 1976. In such circumstances an order of eviction was passed under Section 14 (1) (a) on 1. 4. 1976. ( 7 ) THAT order of the Additional Rent Controller was challenged beforethe Rent Control Tribunal by filing an appeal which was dismissed by the Rentcontrol Tribunal on 27. 5. 78. This order of the Rent Control Tribunal hasbeen challenged by the appellant-tenants by filing this second appeal. ( 8 ) THE only point pressed before me by the learned Counsel for theappellants is that in the earlier eviction proceedings (Eviction Petition No. 254/63) the appellant had not availed the benefit under Sub-Section (2) ofsection 14 of the Act and therefore impugned eviction order dated 1. 4. 76passed by the Rent Controller under Section 14 (1) (a) read with proviso tosub-Section (2) of Section 14 of the Act and confirmed by the Rent Controltribunal on 27. 5. 78 could not have been legally passed. ( 9 ) ACCORDING to the Counsel for the appellants the ground of nonpayment of rent was not available because at the time when the evictionpetition was filed, there were no arrears of rent due from the appellants. Counsel submitted that when the eviction order could not have been passedunder Section 14 (1) (a) on the ground of non payment of rent, the questionof taking the benefit under Section 14 (2) of the Act did not arise. Admittedly,the appellants became tenants under the respondent in the suit premises onlyon 19. 2. 1963. They could be liable to pay rent at the most from 19. 2. 63. The eviction petition was filed on 12. 3. 63. No rent was legally recoverablefrom the appellant at the time of filing of the eviction petition and therefore,the eviction petition on the ground of non payment of rent was not maintainable, learned Counsel submitted. ( 10 ) COUNSEL for the respondent landlord, however, argued that thisplea taken by the appellants cannot be raised at this stage as the previousjudgment has become final on this point. According to him, a perusal ofthe previous order passed on 14. 2. 1966 by Shri A. S. Gill the then Rentcontroller shows that the appellants tenants were asked to deposit the arrearsof rent at the interim rate of Rs. 175. 00w. e. f. 19. 2. According to him, a perusal ofthe previous order passed on 14. 2. 1966 by Shri A. S. Gill the then Rentcontroller shows that the appellants tenants were asked to deposit the arrearsof rent at the interim rate of Rs. 175. 00w. e. f. 19. 2. 63 and the compliance ofthat order was made and on that account no further action was foundnecessary on the ground of non payment of rent and the appellants tenantswere held not liable to be evicted on the ground of non payment of rent. This finding, according to the Counsel, amounts to taking benefit under Section14 (2) and it is not necessary to mention in the order that benefit undersection 14 (2) had been availed of. This finding was not challenged at anytime before, meaning thereby that it has attained finality and the appellantscannot come forward to say now that they have not availed the benefit undersection 14 (2) the Act. After availing the benefit under Section 14 (2), theappellants cannot now be protected because they have admittedly committeddefault in the payment of rent for three consecutive months. ( 11 ) THE Supreme Court interpreted the provisions of Section 14 (2) of the Delhi Rent Control Act in Jagan Nath v. Ramkishan, AIR 1985 S. C. 265 as under: "s. 14 (2) provides that no order for the recovery of possession ofany premises can be made on the ground that the tenant has committed default in the payment of rent, if he pays or deposits therent in accordance with the provisions of Section 15. The benefitwhich the tenant obtains under Section 14 (2) is the avoidance ofthe decree for possession. Though he had committed default inthe payment of rent, no decree for possession can be passed againsthim. This benefit accrues to the tenant by reason of the fact thathe has complied with the order passed by the Controller undersection 15. The passing of an order under Section 15 is not abenefit which accrues to the tenant under Section 14 (2 ). It isobligatory upon the Controller to pass an order under Section 15 (1)in every proceeding for the recovery of possession on the groundspecified in Section 14 (1) (a) that is on the ground that the tenanthas committed default in the payment of rent. That is a facilitywhich the law obliges the Controller to give to the tenant undersection 15. It isobligatory upon the Controller to pass an order under Section 15 (1)in every proceeding for the recovery of possession on the groundspecified in Section 14 (1) (a) that is on the ground that the tenanthas committed default in the payment of rent. That is a facilitywhich the law obliges the Controller to give to the tenant undersection 15. It is through the medium of that facility that the tenantobtains the benefit under Section 14 (2 ). And that benefit consistsin the acquisition of an immunity against the passing of an order ofpossession on the ground of default in the payment of rent. Itmust follow that it is only if an order for possession is not passedagainst the tenant by reason of the provision contained in Section14 (2), that it can be said that he has obtained a benefit under thatsection. The key words of the proviso to sub Section (2) of Section14 are : Provided that no tenant shall be entitled to the benefit underthis sub Section. . . . . . . . . ". ( 12 ) IN this case, admittedly the eviction petition was filed on 12. 3. 63and one of the grounds of eviction was non payment of rent. Rent wasclaimed at the rate of Rs. 283. 69 including house tax and water chargesamounting to Rs. 8900. 87 till 28. 2. 1963. The Rent Control Tribunal held thatthe tenancy started w. e. f. 19. 2. 63 and the landlord is entitled to recover rentfrom that date i. e. 19. 2. 63. Interim rent was fixed at the rate of Rs. 175. 00itshows that on the date of filing of the eviction petition (No. 254/63) on theground of non payment of rent no rent was due and no eviction order couldhave been passed on the ground of non payment of rent because on the dateof filing the eviction petition there was no arrears of rent which were legallyrecoverable. What clause (a) of sub-Section (1) of Section 14 requires is thatthe tenant must be in arrears of rent and that (ii) the tenant must not havetendered or paid the arrears within two months of service of notice of demand. What it means is that the tenant must be in arrears at the time of service ofnotice of demand. The. What clause (a) of sub-Section (1) of Section 14 requires is thatthe tenant must be in arrears of rent and that (ii) the tenant must not havetendered or paid the arrears within two months of service of notice of demand. What it means is that the tenant must be in arrears at the time of service ofnotice of demand. The. cause of action for eviction on the ground of nonpayment of rent consists of facts (a) the relationship of landlord and tenant (b) existence of arrears of rent on the date of notice of. demand (c) service ofnotice of demand provided under Section 106 of the Transfer of Property Actand (d) failure of the tenant to pay the arrears of rent legally recoverable fromhim within two months of the service of notice. ( 13 ) RECORD shows that the appellants were admitted as tenants w. e. f. 19. 2. 63 and previous eviction petition was filed on 12. 3. 63 and one of thegrounds of eviction was nonpayment of rent. When the eviction petitionwas filed within 20 days of the commencement of the tenancy it will be preposterous to presume that any notice of demand was given and that the tenanthad failed to pay the arrears within 2 months of the notice of demand. Nonotice of demand was produced on record. When no eviction petition undersection 14 (1) (a) of the Delhi Rent Control Act was maintainable on 12. 3. 63,the question of availing of the benefit under Section 14 (2) of the Act did notarise. Both the Courts below have gone wrong in holding that the appellants had availed the benefit under Section 14 (2) of the Act in. the earlierproceedings (Eviction Petition No. 254/63) and I, therefore, set aside theimpugned order and accept this appeal. The eviction order passed by theaddl. Rent Controller on 1. 4. 1976 and the order of the Rent Controltribunal dated 27. 5. 78 are hereby quashed. The appeal is accepted and theparties are left to bear their own costs. Appeal allowed.