MAIKU versus VILAYAT HUSSAIN THROUGH L.RS.

R.B. MISRA, J. The only question for consideration in this appeal by special leave is whether the deposit of arrears of rent under s. 7C of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 will save the te ant from the penalty of being evicted for non-payment of rent.n

p. 463, margin G

The appellant is a tenant of the respondent on a monthly rent of Rs. 6. 25 per mensem. He fell into arrears of rent amounting to Rs. 318.75 for the period from 1st October, 1959 to 31st Lecember, 1963. The tenant did not pay the aforesaid amount in spite of the verbal demand. Consequently, the landlord served upon the tenant a notice of demand. The tenant, however, failed to comply with the said notice, hence he became a defaulter. The landlord thereafter served another notice on the tenant under s. 106 of the Transfer of Property --'. Act. The tenant, however, neither vacated the premises nor cleared the arrears of rent. The landlord was, therefore, obliged to file a suit. He, however, claimed a sum of Rs. 176.68 as arrears of rent for the period from 1st October, 1961 to 8th February, 1964 the claim for rent for the·"( remaining period having become barred by time. He also claimed --fa sum of Rs. 58. 23 as damages for the period from 9th February, 1964 to 22nd October, 1964 as also pendente lite and future damages at the rate of Rs. 6.25 per mensem.

p. 464

The claim was resisted by the tenant on the ground that he was not a defaulter inasmuch as whatever rent was tendered to the landlord he refused to accept the same and, therefore, he was constrained to deposit the amount, that is, a sum of _,, Hs. 231.25 for the period from 1st September, 1961 to 30th September, 1964 in the Court under s. 7C of the Act. He also disputed the date of tenancy as alleged by the respondent-landlord. •

p. 464, margin D

The trial Court came to the conclusion that the y ., defendant became a tenant from 17th January, 1962 and not from 1959, as alleged in the plaint. the deposit of arrears of_,1 rent by the tenant under s. 7C was not a valid deposit, l' therefore, it could not absolve the liability of the tenant from eviction inasmuch as the defendant had failed to establish that the landlord had refused to accept the tender made by the tenant. Accordingly, the suit for recovery of arrears of rent amounting to Rs. 154 and damages amounting to Rs. 58.23 was decreed with pendente ~ and future mesne profits at the rate of Rs. 6.25 per mensem. 't

p. 464, margin E

appeal the learned Addl. Civil Judge reversed the finding of the trial court and held that the tenant was not a defaulter on account of the deposit made by him under s. 7C of .• -*the said Act and set aside the judgment and decree of the trial Court for eviction. In second appeal the High Court set aside the judgment and decree of the lower appellate court as regards eviction and restored the decree of the trial Court. The tenant has now come in appeal to this Court as stated earlier, by special leave. ~ Shri R.K. Jain appearing for the appellant has contended that if the arrears of rent had been deposited with permission of the court under s. 7C of the Act it will be presumed that the landlord had refused to accept the rent tendered by the tenant. As a second limb to this argument it was contended that it was not open to the Court in a suit for eviction to go )'into the question of validity of the deposit made under s. 7C. ~ produced a certified copy of the order pf the Munsif City, Kanpur dated 30th July, 1962 allowing the application made by the tenant for permission to deposit the arrears of rent. The Order reads :

pp. 464–465, margin G

"This is an application under s. 7C(l) of the U.P. Act Ill of 1947. The opp. party was served with the notice. No objection filed. The case falls under s. 7C(l) the ingredients of which are made out. Hence the applicant tenant is allowed to deposit rent in this Court regularly under s. 7C(l) and the opp. party landlord is entitled to withdraw the

p. 465, margin D

money." -10n the strength of this order it was strenuously contended by Shri Jain that no objection was ever raised by the landlord in ~roceedings under s. 7C of the Act and, therefore, it is not open to him to raise the question of validity of the order passed under s. 7C.

p. 465, margin E

The question that squarely falls for consideration is whether the order granting permission to the tenant to deposit the arrears of rent in court is sacrosanct and cannot be challenged in a regular suit for eviction. Indeed, the Munsif )'before whom the application for permission was filed was not required to determine the rights and obligations of the tenant. All that he had to do on deposit of rent under s. 7C was to issue a notice to the landlord informing him that such deposit had been made. Section 7C so far as material, provides :

p. 465, margin F

"7C Deposit of Rent in Court:- (!) When a landlord,+ refuses to accept any rent lawfully paid to him by a tenant in respect of any accommodation the tenant may in the prescribed manner deposit such rent and continue to deposit any subsequent rent which

p. 466

becomes due in respect of such accommodation unless the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept. ~ (2) Where any bona-fide doubt or dispute has arisen as to the person who is entitled to recei1Te any rent referred to in sub-s. (I) in respect of any

p. 466

.. accommodation, the tenant may similarly deposit the rent stating the circumstances under which sucft\ deposit is made and may until such doubt has bee~ ren~)lled or such dispute has been settled by the decision of any competent Court, or by settlement

p. 466, margin B

between the parties, continue to deposit, in like manner, the rent that may subsequently become due in respect of such building. (3) The deposit referred to in sub-s. (!) or (2) shall be made in the Court of the MunsiE havin~

p. 466, margin C

jurisdiction in the area where the accommodation is situate.

p. 466, margin D

(4) On any deposit being made under sub-s. (!), the court shall cause a notice of the deposit to be served on the landlord, and the amount of deposit

p. 466, margin E

may be withdrawn by the landlord on application made by him to the Court in this behalf, )1-

p. 466, margin E

Section 7C gives a right to the tenant to deposit rent when a landlord refuses to accept any rent lawfully paid to him by the tenant. A tenant may allege that the landlord had

p. 466, margin F

ref used to accept any rent lawfully paid to him. The section itself does not require the Munsif to go into the question whether the landlord had refused to accept the rent paid lawfully or otherwise. fail to understand how, as thE!,learned Munsif observed, the opposite party was served with a notice. Sub-s. (4) of s. 7C contemplates of only one notice

p. 466, margin F

after the deposit, in pursuance of the permission granted to deposit the arrears of rent under this section. In the absence ~ of any provision for sending notice to the landlord before granting permission to the tenant, we fail to understand how a notice was sent to the landlord before the passing of the order. The sub-s. clearly contemplates that on any deposit being made under sub-s. (1) the court shall cause a notice of the deposit to be served on the landlord and the amount of deposit may be withdrawn by the landlord on application made

pp. 466–467, margin G

by him to the court in this behalf. If the Munsif was to ,.._accord the permission to deposit the arrears of rent merely on being satisfied that the necessary allegation as required by s. 7C of the Act has been made, viz. the landlord had refused to accept the rent lawfully tendered to him, he was not

p. 467

obligated to enquire whether the allegation made in the .Y'application was correct or not.

p. 467

Section permits a tenant to deposit the arrears of rent in court only under two conditions (1) when the landlord refuses to accept any rent lawfully paid to him by the tenant in respect of any accoimnodation, and (ii) where any bonafide doubt or dispute has arisen as to the person who was entitled to receive any rent referred to in sub-s. (1) in

p. 467

respect of any accommodation. If the deposit of arrears of ~rent was a valid deposit in accordance with the requirements of s. certainly it will amount to payment to the landlord and the tenant will be absolved from the liability of being evicted. But if the Munsif had only to accept the application and accord permission to the tenant to deposit the arrears in

p. 467

court merely on the basis that necessary allegations in the -1 application as required by s. had been made, the court

p. 467

trying the suit for eviction cannot be precluded from , enquiring about the validity of the permission under s. 7C. "' It was next contended for the appellant that the first appellate court had recorded a finding of fact believing the statement of the tenant that the landlord had refused to accept the rent when tendered to him and also refused to accept the amount sent by money order and this finding could not have been set aside by the High Court in second appeal. are afraid this contention has no substance. The finding recorded by the first appellate court is based more on surmises and conjectures than on the basis of the material on record. would do no better than quote the observations made by the first appellate court :

p. 467

"The appellant having admitted deposit court under s. 7C and the court having accepted the deposit holding the ingredients of the have been made out and permitting continue depositing rent in future facie the deposit has to be treated the burden lay on the plaintiff to entire proceedings under s. 7C were runsif had absolutely no jurisdiction the application and accept the circumstances of the case also indicate rent must have been tendered by the might have been refused by the plaintiff. defendant had applied for allotment of his name, plaintiff had filed objections Rent Control and Eviction Officer objections were over-ruled and allotment in favour of the defendant. This was annoyance to the plaintiff and

p. 468, margin A

refused to accept the rent on that

p. 468, margin D

Obviously, the first appellate court was that once permission had been granted by the tenant to deposit arrears of rent it would be the permission was a valid one under s. 7C and that court had coloured its findings and it had surmises and conjectures.

p. 468, margin D

The trial Court had rejected the testimony defendant with regard to the tender of rent on he was'an interested witness. According to his had gone to pay the arrears of rent prior application under s. 7C and that he had twice tendered amount of arrears by hand to the plaintiff in plaintiff's son and the plaintiff had refused to further deposed that the rent was tendered by money but the plaintiff had refused to accept it. The not care to file the postal . receipts in the present did he produce the plaintiff's son before whom which was refused by the plaintiff. Unless the filed in the present case that could not consideration by the court by summoning the file case. The first appellate court had, however, postal money order receipts by looking into the records of the A proceedings under s. 7C. The High Court in the circumstances was fully justified in reversing the finding recorded by the first appellate court as it was vitiated in law.

pp. 468–469, margin E

It may look hard that the tenant who had deposited the rent in court under s. 7C, has to be evicted as the B ingredients of 7C had not been established but there is no help. In the instant case the only evidence is the deposition of the tenant which the trial court did not rely upon and even the first appellate court did not categorically say that it believes the deposition of the defendant. The law in our

p. 469

opinion is clear that the tenant must establish before the JI court in which the suit for eviction has been filed, the C -;irfactum of refusal by the landlord when the payment was sought to be made to him. The mere fact that an application under S• 7C for permission to deposit the arrears of rent has been allowed by the Munsif will not absolve the tenant from establishing before the court, where the suit for eviction was filed, that the landlord had refused to accept the rent D

p. 469

lawfully tendered. )' For the reasons given above we do not find any e'rror, much less a manifest error, for interference with the judgment of the High Court. The appeal is accordingly dismissed, but there is, however, no order as to cost. With the dismissal of E the appeal the stay order stands vacated and no separate order

p. 469

is needed. The civil miscellaneous petition is disposed of _, accordingly.

p. 469

A.P.J. Appeal dismissed.

p. 469