Bal Krishna Gupta v. Brijeshwari Prasad — 1962 DIGILAW 353 (ALL)

JUDGMENT S.S. Dhavan, J. - This is plaintiffs' second appeal from the concurrent decisions of the courts below dismissing their suit for the ejectment of the tenant. The plaintiff-appellants Bal Krishna Gupta and Smt. Kalawati alleged in their plaint that they were the owners of a portion of the house No. 85/52, Kooperganj, Kanpur, which was let out to the defendant respondent Brijeshwari Prasad in pursuance of an allotment order dated 5-5-55 that the rent of the accommodation was Rs. 8/- p.m. but the plaintiff did not make any payment for nine months from the date of the tenancy till 4-2-56, that on 15-2-56 the plaintiffs served a notice of demand but the defendant did not pay the arrears of rent; hence the suit for ejectment and recovery of arrears of rent. 2. The defendant resisted the suit. In his written statement he admitted that the plaintiffs were the owners of the accommodation but denied that he had made any default in payment of rent. According to him, the plaintiffs were unwilling to have him as a tenant from the very beginning and were anxious to get rid of him somehow. They had filed an application under Section 7-B of the U.P. Control of Rent and Eviction Act in response to which the defendant deposited a sum of Rs. 64/- in the court of Munsif City Kanpur. The defendant claimed that this deposit amounted to payment and therefore the subsequent notice of demand served on him was invalid as no rent was due from him on the date when demand was made. Both the courts below held that the plaintiff's were not entitled to serve any notice of demand after the defendant had deposited the rent in court in the proceedings under Section 7-B and dismissed the suit for ejectment while decreeing in part the claim for arrears of rent. The plaintiffs have now come to this court in second appeal. I have heard learned counsel for the appellant and respondent at some length, and I am of the opinion that the decision of the courts below is erroneous. They have taken the view that the deposit made by the defendant before the Munsif in the proceedings under Section 7-B amounted to payment of rent to the landlord. In this both the courts were in error. They have taken the view that the deposit made by the defendant before the Munsif in the proceedings under Section 7-B amounted to payment of rent to the landlord. In this both the courts were in error. I have perused the application made by the landlord under Section 7-B and the objection filed by the defendant both of which are on the record. The defendant filed an objection under sub-Section (vii) in which he alleged that the plaintiffs' title was not free from doubt and he relied on some decision of the Civil Court in earlier proceedings in support of his contention that the plaintiffs could not claim the rent without apportioning it. He admitted his liability to pay the rent but prayed that the court should hand over the amount which was being deposited by him "to the rightful owner after the court was satisfied regarding the title of the applicant to the portion of the house under allotment order." 3. It is clear that in treating the deposit made by the defendant along with his objection as payment or tender of rent both the courts below misconceived the nature of the deposit which is required to be made under sub-section (vii). After an application under Section 7-B has been made by the landlord the tenant has the option either under sub-Section (iv) to pay the amount demanded in the application or under sub-Section (vii) to resist the claim. If he elects to pay under (iv) the payment is un-conditional and the amount deposited by him is paid to the landlord in satisfaction of the arrears of rent. If on the other hand he decides to oppose the application, he may file an objection provided he deposits in court the amount claimed by the landlord or furnishes security to the satisfaction of court. Thus there is a vital difference in the nature of payment under the two sub-Secs. Under (iv) it is made to satisfy the landlord's claim but under (vii) to resist it. Payment under (vii) is the condition for opposing the claim and is in the nature of security demanded by the Court before permitting the tenant to resist the demand. It is not a payment to the landlord. The courts below failed to draw a distinction between payment under sub-Section (iv) and one under sub-Section (vii). 4. Mr. Payment under (vii) is the condition for opposing the claim and is in the nature of security demanded by the Court before permitting the tenant to resist the demand. It is not a payment to the landlord. The courts below failed to draw a distinction between payment under sub-Section (iv) and one under sub-Section (vii). 4. Mr. S. N. Misra for the defendant-respondent argued in the alternative that the landlord was not entitled to send any notice of demand under Section 3(1) of the U.P. Control of Rent and Eviction Act, while his application under Section 7-B was pending. He contended that the question whether the landlord was entitled to receive the rent was in issue between the parties in the proceedings under Section 7-B and any notice of demand before the final disposal of the proceedings under Section 7-B was invalid. This argument is based on a misapprehension of the nature of the proceedings under Section 7-B prior to their convention into a suit for recovery of rent. The landlord's application under sub-Section (1) for the ejectment of the tenant is not a suit though it has to be verified like a plaint. The proceedings under Section 7-B in the initial stage are of a summary nature. The tenant has the option to pay up or resist the landlord's claim. If he elects to resist, he can file an objection provided he deposits the amount of the claim or furnishes security. After an objection has been filed the summary proceedings terminate and the Munsif is bound to inform the landlord that he has the right to convert his application into a suit for recovery of rent, provided he pays the necessary court fee. If the landlord deposits the court fee, the proceedings are automatically converted into a suit and the application into a plaint, but if the court fee is not paid within the time allowed by the Munsif, the entire proceedings must be quashed without prejudice to the right to the landlord to file a separate suit for the ejectment of the tenant and recovery of arrears from him. After a quashing order has been passed the plaintiff's right to convert the application into a suit is gone. 5. The legal position during the interval when the tenant has filed his objection but the landlord has not deposited the court fee is somewhat complicated. After a quashing order has been passed the plaintiff's right to convert the application into a suit is gone. 5. The legal position during the interval when the tenant has filed his objection but the landlord has not deposited the court fee is somewhat complicated. The application under Section 7-B is certainly on the record during this interval, but it ceases to be an application for the ejectment of the tenant and the ejectment proceedings terminate. Nor can it be regarded as a plaint because the landlord's right to convert the proceedings into a suit does not accrue until he pays the court fee. Therefore the position in law after the tenant has filed his objection is that there are no proceedings either for ejectment or recovery of rent pending between the parties. 6. In the present case the tenant filed an objection after which the proceedings for ejectment automatically ceased. The landlord never paid the court fee and consequently on 8-3-56 the Munsif quashed the proceedings in the exercise of his powers under sub-Section (8). The notice of demand was sent by the landlord on 17-2-1956-that is, before the proceedings were formally quashed. I do not think that this notice was invalid because it was issued before the Munsif quashed the proceedings. During the interval between the filing of the objection by the tenant and the quashing of the proceedings, there was no proceeding pending between the parties, though the landlord had a right to convert the application into a plaint. But this right was no more than the right of any landlord to sue for rent and could not debar him from sending a notice of demand for rent under Section 3(1) (a). I cannot therefore accept the argument that the notice of demand was invalid because it was issued before the proceedings under Section 7-B had been quashed. 7. Mr. Misra finally argued that the defendant cannot be adjudged a defaulter in view of the fact that he had admitted his liability to pay rent in the proceedings under Section 7-B but merely asked the Court to pay the amount to whoever was entitled to receive the rent. Learned counsel argued that the defendant had the right to safeguard his position by asking the court to consider the question of the title of the plaintiffs in preference to any other rival claimants. Learned counsel argued that the defendant had the right to safeguard his position by asking the court to consider the question of the title of the plaintiffs in preference to any other rival claimants. There are several answers to this argument. In the first place, as stated above, the appellant deposited the rent under sub-Section (vii) of Section 7-B and not under Sub-Section (iv). Secondly a plea by the tenant that there are rival claimants to the right to receive rent is a denial of the landlord's title except when a deposit is made and accepted under Section 7-C (2) of the Act. Thirdly, the defendant admitted the landlord's title as owner of the accommodation and it is not open to him to plead that there were rival claimants. Such a plea must be regarded as bona fide. 8. The position in law may be summarised thus. The defendant admits the title of the plaintiff as landlord. The rent for the period between 5-5-55 and 6.2.56 was not paid. An application under Section 7-B was filed by the landlord but the proceedings were quashed because the landlord did not wish to pursue the matter and did not pay the court fee. Before the formal order quashing the proceedings was passed, the landlord exercised his right to file a suit for ejectment and served a notice of demand under Section 3 of the U.P. Control of Rent and Eviction Act. The tenant made no payment within the prescribed period of one month. Consequently the bar against a suit for ejectment was lifted and the landlord was entitled to terminate the tenancy and sue for eviction of the defendant. Mr. Misra argued vehemently that the tenant had acted bona fide throughout and had no intention of not paying the rent. In support of this argument he pointed out that the defendant had stated in his objection under Section 7-B and in his written statement in the present suit that he has always been ready and willing to pay the rent. It is not necessary for me to consider the bona fides of the defendant. It is possible that he may have been ill-advised to take the attitude which he did. It is not necessary for me to consider the bona fides of the defendant. It is possible that he may have been ill-advised to take the attitude which he did. The proper course for him on receipt of demand by the landlord under Section 3 was to pay the rent within the prescribed period and then withdraw the amount which he had deposited before the Munsif in the proceedings under Section 7-B, but he did not do so. Therefore he failed to pay within one month of demand and he is liable to ejectment, though I cannot help having some sympathy for him. 9. The landlord has also appealed against the partial dismissal of recovery of rent. It appears that the courts below treated the amount of Rs. 64/- deposited by the defendant before the Munsif in the proceedings under Section 7-B as payment to the landlord. As indicated above they were in error in taking this view. The landlord is entitled to a decree for the entire amount of rent claimed by him. I allow this appeal, set aside the decision of the courts below and decree the plaintiffs' suit for ejectment and recovery of rent in full. However, in view of the peculiar circumstances, I direct the parties to bear their own costs throughout. 10. The defendant-respondent filed a cross-objection but no argument was addressed in support of it and Mr. Misra did not refer to it at all during his argument which was confined exclusively to the appeal. The cross-objection is dismissed.