AVADH BEHARI ROHATGI, J

( 1 ) THIS is an appeal from the order of the rent control tribunal dated February 21, 1978.

( 2 ). Kanwar Hira Lal and Banarsi Dass were the sons of Bhola Nath. These two brothers had taken on rent a shop in main bazar Mehrauli. On September 30, 1974 their landlady, Smt. Mewa Devi, brought an application for ejectment against them. The sole ground of eviction was that the tenants had defaulted in the payment of rent a second time. It was alleged that inspite of notice of demand dated July II, 1974 the tenants did riot pay Rs. 152. 50 on account of arrears of rent from November 7, 1973 to September 17, 1974 at the rat,e of Rs. 14. 30 per month.

( 3 ). Earlier too a notice dated December 6, 1971 was served on the tenants. And when they did not pay rent an application for eviction was filed against them on July 31, 1972. In those proceedings the additional controller allowed them to deposit the rent and thus gave. them the benefit of section 14 (2) of the Delhi Rent Cental Act, 1958 (the Act ). After those proceedings were over the tenants again committed default in the payment of rent. This second default was the subject matter of these proceedings.

( 4 ). At the outset it may be stated that the tenants have deposited the arrears of rent and future rent under the order of the controller dated January 27, 1975 passed under section 15 (1) of the Act. The controller directed the tenants to deposit rent at the rate of Rs. 14. 30 per month with ecect from November 7, 1973 and future rent at the same rate by the 15th of each succeeding month. The tenants deposited the rent. Whether the tenants who have been stigmatized as "second defaulters" by the landlady can be ejected in view of the order made under section 15 (1) is a question to which I will return later.

( 5 ). The controller found that the notice of demand dated July II, 1974 was duly served on the tenants and they did not pay inspite of demand the arrears of rent due from them. But he held that the notice of demand itself was had inasmuch as the landlady had made a claim for "damages for use and occupation" and not rent pure and simple. He followed my decision in Pritam Lal v. Smt. Anand Kaur (1976 R. L. R. 271) (1 ). He took the view that the notice of demand being not in conformity with the requirement of section 14 (l) (a) of the Act the application for ejectment was not maintainable. He, therefore, dismissed, the eviction case.

( 6 ). On appeal the rent control tribunal reached a contrary conclusion. He held that Pritam Lal s ruling was not applicable to the facts of the present case. The notice of demand in question he construed as a notice demanding arrears of rent and not damages. Since he agreed with the controller that the notice of demand was duly served on the tenants he held that this was a case of second default because the tenants did not pay rent inspite of notice of demand. He passed an eviction order against the tenants on the ground of second default. From his decision the tenants appeal to this court.

( 7 ). On the question of service of notice dated July II, 1974 there is a concurrent finding and it cannot therefore be interfered with in second appeal. Four questions arise for decision. It will take them separately. FIRST-QUESTION:

( 8 ). The first question is about the competency of the appeal. The present appeal in this court was filed by Smt. . Kela Devi, widow of Hira Lal, and the surviving tenant, Banarsi Dass. Hira Lal and Banarsi Dass were the original tenants, as I have said. They were alive when the ejectment proceedings were launched against them before the Rent Controller in 1974. The controller dismissed the eviction case.

( 9 ). On August 26, 1977 the landlady brought an appeal before the tribunal impleading Hira Lal and Banarsi Dass as respondents. During the pendency of the appeal in the tribunal Hira Lal died on November 4, 1977. The landlady made an application for bringing the legal representatives of Hira Lal on re

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