( 1 ) THE reference to the Full Bench has been necessitated because my lord the Chief Justice found an apparent conflict between the two Division Bench Judgments of this Court namely (1973 0 RCR 240) Ram Parkash Kapur v. Smt. Bhagwanti Devi and (ILR 1977 (2) Delhi 139) Ram Nurain Khanna v. ishar Singh. The conflict relates to the nature of evidence that is required to be taken and what is the procedure to be followed by the Rent Controller while passing an order under Section 15 (1) of the Delhi Rent Control Act (hereinafter to be called the Act ).

( 2 ) THE respondent/landlady filed an application for recovery of possession on the ground of non-payment of rent and substantial damage caused to the demised premises. The allegations were that the appellant who was a tenant in respect of a shop in dispute was in arrears of rent @ Rs. 75. 00 per month w. e. f. 1. 10. 1973. The appellant/tenant however, took the plea that the land underneath the superstructure belonged to the Delhi Development Authority which had cancelled the lease in favour of the respondent,/landlady and had taken back the possession and, therefore, the respondent had no locus standi to eject the tenant. As for the superstructure it was contended that the appellant had built the superstructure himself. It was also claimed that the tenant had paid damages in respect of the premises in suit to the Delhi Development Authority. The contractual rate of rent being Rs. 75. 00 per month was not disputed. The Rent Controller held that as the possession had not yet been taken from the landlady even if there was cancellation of the lease she could sue for recovery of rent and possession. He, therefore, passed an order under Section 15 (1) of the Act directing the appellant/tenant to deposit the arrears of rent w. e. f. 1. 10. 1973 till 31. 12. 1976.

( 3 ) THE tenant took up the matter in appeal to the Tribunal who also found that at no time physical possession of the plot had been taken by the Delhi Development Authority. It also took into account the fact that the premises in question had been let out to the appellant by the respondent in 1971 and that even if the lease had been cancelled the relationship of landlord and tenant could continue between the parties. He, therefore, taking the prima facie view that the relationship of landlord and tenant had not ceased upheld the order of the Rent Controller, and in this he relied on the Division Bench Judgment in Ram Narain s case (supra) though Ram Parkash s case (supra) was referred to before him.

( 4 ) THE second appeal filed by the tenant came before the Hon ble Chief Justice who has found that the alleged payment by the appellant to the Delhi Development Authority of the damages in persuance of an order under the Public Premises (Eviction of Unauthorised Occupants) Act 1971 could not be equated to payment of rent as the appellant continued to be treated as unauthorised occupant, and no attornment was accepted by the D. D. A. The learned Judge was, therefore, inclined to hold that on the pleadings the order passed under Section 15 (1) was unchallengeable. But as the Tribunal had passed an order on prima facie view of the matter which according to Ram Parkash s case was not permissible in a situation where the relationship of landlord and tenant is denied without first deciding such a question finally, while Ram Narain s case permitted such a course, the learned Judge has referred the matter to resolve the conflict.

( 5 ) MR. Seth, the learned counsel for the appellant, contends that as the appellant had raised the plea that the land underneath belonged to D. D. A. and as superstructure was built by him and had denied that he was the tenant of the respondent, no order under Section 15 (1) could have been passed until it was first finally decided by the Rent Controller that the appellant was a tenant ; in short passing an order on a prima facie view of the matter was impermissible. Now Clause (a) of proviso to su