Non-payment of costs of the first application for eviction does not furnish a ground for eviction under Section 13(1) and 13(2)(I) of the Act after a second application covering the same period has been made and in the second application the proviso to S. 13(2)(I) has been complied with.

Mahajan, J.

1. This petition for revision is directed against the order of the Appellate Authority allowing the landlords application for eviction of the tenant.

2. An application was made in the first instance by the landlord on the 3rd of October, 1968, claiming rent at the rate of Rs.25/- per mensem from the tenant from 1st of October, 1967. That application was dismissed on the 11th of June, 1969 because the Rent Controller accepted the plea of the tenant that there was no relationship of landlord and tenant between the parties. It may be mentioned that at the first hearing neither the rent due nor interest or costs were paid by the tenant, though the costs were assessed by the Rent Controller. The landlord then appealed and during the pendency of the appeal the landlord filed a second application on the 9th of January, 1970. In this application, again rent was claimed from 1st October, 1967, to 31st December, 1969. On the 4th of March, 1970, the tenant paid the rent claimed without prejudice to his right to a decision that he was not the tenant of the landlord. This application was dismissed on 4th of March, 1970, because arrears of rent with costs and interests had been paid.

3. The appeal that had been filed in the first application, was allowed by the Appellate Authority and it was held that the relationship of landlord and tenant existed between the parties. Against that decision, the present petition for revision has been filed by the tenant.

4. The contention of the tenant is that the ground on the basis of which eviction has been ordered, namely non-payment of arrears of rent at the first hearing, was not available to the landlord in view of the second application filed by him in which those arrears had been claimed. For this contention, reliance has been placed on M/s. Bagarian Armoury V/s. Rakha Ram, 1966-68 Pun LR 847. Mr. R. L. Aggarwal, who appears for the landlord, on the other hand, contends that this decision is distinguishable, and, in any case, the costs of the first application cannot be said to have been cleared because that application was still pending and on the basis of non-payment of costs the tenant had suffered eviction. His further contention is that the tender in the second application was a conditional tender and, therefore, that was no tender in law which would take away his plea of non-payment of arrears of rent in the first application. Mr. Sarin, for the tenant, meets the argument of Mr. Aggarwal regarding conditional tender by reference to the decision of Harnam Singh J. in Maya Ram V/s. Shivji Maharaj Idol Mandir, Shawla, Batala, Civil Misc. No. 141 of 1955, D/- 22-8-1955 (Punj), wherein such a tender was held to be not a conditional tender. Mr. Aggarwal disputes the correctness of this decision as well.

5. This is a matter which is of considerable importance on both the aspects and is likely to arise frequently. As no letters patent appeal lies against my decision, it would be proper that this case is heard by a larger Bench. I, therefore, direct that the papers of this case be laid before my Lord the Chief Justice for constituting a Division Bench for disposal of this case. ORDER OF DIVISION BENCH

6. This case was referred by me to a Division Bench in order to consider the question whether non-payment of costs of the first application for eviction would furnish a ground for eviction under Section 13(1) and 13(2)(I) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) after a second application covering the same period has been made and in the second application the proviso to S. 13(2)(I) has been complied with. It is not necessary to state the facts because they are fully set out in the referring order which should be read as part of this order.

7. The first contention of Mr. Ram Lal Aggarwal, learned counsel for the respondent is that the costs of the first application were not paid and, therefore, the tenant is still in arrears. In order to