Janki Singh v. Munsif West — 1967 DIGILAW 167 (ALL)

ORDER R.S. Pathak, J. - The Respondents, Sheikh Waheed Uddin and Sheikh Sayeed Uddin, are owners of a house, one block of which has been let out on rent to the Petitioner, Janki Singh. 2. On 21-8-1962, an application u/s 7-C(1) of the UP (Temporary) Control of Kent and Eviction Act, 1947 was made by the Petitioner in the court of the Munsif (West), Allahabad depositing a sum of Rs. 45/- on account of rent for the period May, 1962 to July, 1962 and stating that the landlords had refused to accept the rent and it was therefore being deposited u/s 7-C(1). Then on 9-9-1962 the Petitioner deposited a further sum of Rs. 420/- in the court of the Munsif (West) on account of rent for the period January, 1960 to April, 1962 in the aforesaid proceedings u/s 7-C(1). A further deposit of Rs. 15/- on account of rent for August, 1962 was made on 27-9-1962. In this manner the Petitioner deposited a sum of Rs. 480/- on account of rent for the period January, 1960 to August, 1962. On 3-11-1962 the landlords filed an objection in the proceedings u/s 7-C contending that the application was not maintainable and that the entire amount of rent due from January, 1960 was due but the Petitioner had deposited rent from May, 1962 only. On the same date the learned Munsif recorded the statement of the Petitioner's counsel that the entire amount deposited was tendered as rent for the period mentioned in the application and that it was open to the landlords to withdraw the amount. The learned Munsif made an order stating that the Petitioner was allowed at his own risk to deposit the rent and to continue to deposit it without prejudice to the rights of the parties and directed that on each deposit notice would be issued to the landlords who would be free to withdraw the amount deposited. 3. On 19-9-1962, the landlords filed an application u/s 7-B in the court of the Munsif (West) claiming that a sum of Rs. 480/- was due from the Petitioner as arrears of rent for the period January, 1960 to August, 1962 and praying that the court should issue notice to the Petitioner to deposit the entire arrears totalling Rs. 3. On 19-9-1962, the landlords filed an application u/s 7-B in the court of the Munsif (West) claiming that a sum of Rs. 480/- was due from the Petitioner as arrears of rent for the period January, 1960 to August, 1962 and praying that the court should issue notice to the Petitioner to deposit the entire arrears totalling Rs. 480/- within 15 days from the receipt of the notice and that in case he did not do so, he should be evicted from the accommodation. Accordingly, on 12-9-1962, the learned Munsif issued a notice to the Petitioner in the following terms: Whereas the abovenamed Applicant has filed an application in this Court u/s 7-B of the UP (Temporary) Control of Rent and Eviction Act claiming that a sum of Rs. 480/- is in arrears as rent for the period from January 1960 to 31-8-1962 for the premises M. Malaviya Nagar, Allahabad. You are here by directed to deposit the said sum of arrear in this Court within a period of 15 days from the receipt of this notice and after depositing the amount to file objection, if any. Notice was served upon the Petitioner on 17-9-1962 and the Petitioner filed what was described as an "objection" on 1-12-1962. The material paragraphs are set out below: 9. That the objector has in view of the technicalities of law deposited the entire rent including that already paid i.e. prior to May 1962 and has reserved his right to realise the same through separate proceeding against the Applicant. 10. That the details of the deposit are given below: 1. Rs. 15/- for August 1962 dated 27-9-1962. 2. Rs. 420/- January 1960 to April 1962 dated 7-9-1962. 3. Rs. 45/-May 1962 to July 1962 dated 25-8-1962, 11. That the entire arrears claimed though wrongly by the Applicant have thus been deposited within time and the application merits dismissal with costs to the objectors. An affidavit was also filed by the Petitioner stating inter alia that the notice u/s 7-B had been served on 17-9-1962 requiring the Petitioner to deposit arrears totalling Rs. 480/- within 15 days of receipt of the notice and that the money had already been de posited and the Petitioner had filed no objection; Reference was made to the counter-foils of the documents of tender. 480/- within 15 days of receipt of the notice and that the money had already been de posited and the Petitioner had filed no objection; Reference was made to the counter-foils of the documents of tender. The Petitioner also applied for summoning of the record of the proceedings u/s 7-C and that record was duly requisitioned and placed before the learned Munsif. After hearing the parties the learned Munsif made an order on 2-1-1963 holding that as the Petitioner had failed to deposit in court the amount mentioned in the notice or to furnish security to the satisfaction of the court, the objection could not be entertained in view of the provisions of Section 7-B(7) and in the circumstances directed the eviction of the Petitioner. 4. The Petitioner applies for relief under Article 226 of the Constitution against that order. 5. For the better appreciation of the issue involved in this case it is desirable to set out certain material provisions of Section 7-B. 7-B (1) When any tenant, who is in occupation of an accommodation in pursuance of an order made under the provisions of Sub-section (2) of Section 7, is in arrears of rent or any instalment thereof (where it is payable in installment )for more than three months, the landlord may make an application to the Munsif having territorial jurisdiction for an order of ejectment of the tenant from the accommodation. (2)... ... ... (3) On the making of the application under Sub-section (1) the Munsif shall, without unnecessary delay, serve by registered post or otherwise a notice on the tenant asking him to pay the amount of arrears within 15 days of the service thereof, or to show cause within the said period why an order directing him to be evicted from the accommodation be not passed against him. (4) If within the time allowed in the notice under Sub-section (3), the tenant pays into court the amount mentioned therein, the Munsif shall dismiss the application and direct the amount deposited to be paid to the landlord in satisfaction of the arrears and shall make such order as to costs as may appear to him to be just and proper. (5) Where the tenant has been duly served with the notice under Sub-section (3) but has failed to deposit the amount mentioned within the time allowed therein and he does not file any objection, the Munsif shall, notwithstanding anything in the Transfer of Property Act, 1882, make an order directing that the tenant be evicted from the accommodation and pay the costs of the application. (6)... ... ... (7) If the tenant appears in reply to the notice under Sub-section (3) and files an objection, other than an objection as to costs of these proceedings, the Munsif shall inform the Applicant that he may, subject to the payment of the court fee within such time, as may be specified, have the application treated as a plaint in a suit for recovery of arrears of rent alone: Provided that the tenant shall not be permitted to file any objections, unless he has deposited in court the amount mentioned in the notice, or furnishes security to the satisfaction of the court. Upon the facts before me I have no hesitation in holding that the "objection" filed by the Petitioner on 1-12-1962 is not an objection contemplated by Section 7-B(7). That sub-section contemplates an objection in reply to the notice under Sub-section (3). It is an objection by which the tenant opposes the demand made in the notice and disputes his liability to pay. In the instant case, the Petitioner did not dispute his liability to pay the rent for the period mentioned in the notice. On the contrary, he stated that he had deposited the entire amount of Rs. 480/- due as rent for the period January, 1960 to August, 1962 in the court of the Munsif and he specifically pointed out that the entire arrears "has thus been deposited within time." It is plain that the assertion that the amount has been deposited within time can refer only to the direction contained in the notice that the Petitioner should deposit the arrears within 15 days from receipt of the notice. The "objection" filed by the Petitioner amounts in substance to no more than a statement that the entire amount demanded by the notice has been deposited within time. There is nothing in the "objection" indicating that the Petitioner disputes his liability. The "objection" filed by the Petitioner amounts in substance to no more than a statement that the entire amount demanded by the notice has been deposited within time. There is nothing in the "objection" indicating that the Petitioner disputes his liability. The Petitioner does not say that he was not liable to deposit the amount as the amount had already been paid to the landlords. In my judgment, the statement of the Petitioner cannot be construed as an objection u/s 7-B(7) and consequently it was not necessary for him to deposit the amount again in the court of the Munsif or to furnish the security. 6. It is contended on behalf of the landlords that the amount of Rs. 480/- was deposited in proceedings u/s 7-C and not in proceedings u/s 7-B and therefore the amount deposited could not be considered for the purpose of Section 7-B. It is pointed out that the landlords do not accept the position that they refused to accept the rent and therefore it is claimed, the deposits made u/s 7-C are without jurisdiction. The validity of the deposits with reference to the provisions of Section 7-C is relevant primarily for the purpose of determining whether, by virtue of Section 7-C(6), it can be deemed that the rent has been duly paid by the tenant to the landlord. It is not necessary to pronounce upon the validity of the deposits in the light of Section 7-C for the purpose of applying the provisions of Section 7-B. It is not the case of the Petitioner here that because he had made deposits totalling Rs. 480/- it should be deemed that he has duly paid the rent to the landlords. His case is that he has deposited the entire amount demanded by the notice u/s 7-B(3) within time. The learned Munsif was required to determine only whether the deposits made in the proceedings u/s 7-C could be considered for the purpose of the demand made in the notice u/s 7-B(3). It is, I think, making a fine but empty distinction that because the deposits were made u/s 7C, the court cannot consider them for the purpose of determining whether there has been compliance with the notice u/s 7-B(3). It is not disputed that the entire amount demanded by the notice is in deposit in the very court in which the proceedings u/s 7-B have been taken. It is not disputed that the entire amount demanded by the notice is in deposit in the very court in which the proceedings u/s 7-B have been taken. That deposit, when made u/s 7-C, was intended by the Petitioner for payment to the landlords. Section 7-C(4) expressly contemplates their withdrawal by the landlords. That is also the purpose for which the deposit is contemplated u/s 7-B(4). There is, in my opinion, nothing to prohibit the learned Munsif from applying the deposits made u/s 7-C to the purpose contemplated by Section 7-B, especially when the purpose is identical and the tenant himself desires it. 7. On behalf of the landlords reliance has been placed on a number of decisions of this Court, but it is unnecessary to refer to them. Some of them support the proposition that an objection u/s 7-B(7) cannot be filed unless the tenant has deposited the amount mentioned in the notice or furnished security to the satisfaction of the court. The others refer to the validity of the deposits with reference to the provisions of Section 7-C. 8. It is urged On behalf of the landlords that the deposits u/s 7-C were made before service of the notice u/s 7-B(3) and consequently they cannot be treated as made in compliance with that notice and pursuant to it. It seems to me immaterial whether the deposit is made before the notice is served or after. There is nothing to prevent a tenant from anticipating service of the notice and depositing the entire amount in court before service is effected. Whether the deposit is made in court before or after service of the notice, the tenant is entitled to invoke the benefit of the provisions of Section 7-B(4). 9. The Petitioner is entitled to judgment in his favour. 10. An objection has been taken on behalf of the landlords to the grant of relief upon this petition on the ground that a revision application lay u/s 115 of the CPC by way of alternative remedy. Even if it does, it is well settled that the mere existence of an alternative remedy will not bar the grant of relief, especially when the error committed by the inferior court is so patent and loudly obtrusive. The objection is overruled. 11. The petition is allowed. Even if it does, it is well settled that the mere existence of an alternative remedy will not bar the grant of relief, especially when the error committed by the inferior court is so patent and loudly obtrusive. The objection is overruled. 11. The petition is allowed. A writ in the nature of certiorari shall issue quashing the order dated 2-1-1963 of the learned Munsif (West), Allahabad. The learned Munsif will now dispose of afresh the application filed by the landlords. The Petitioner is entitled to his costs.