Mohammad Iliyas v. Shri Ram — 1971 DIGILAW 311 (ALL)

JUDGMENT 1. This is a second appeal by the defendant in a suit for recovery of arrears of rent and mesne profits and ejectment from a house. Respondent Sri Ram instituted the suit in question on the ground that the tenant had failed to pay the arrears of rent on demand by notice under Cl.(a) of Section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 within the period of one month. The case of the tenant was that he had deposited rent under Section 7C of the aforesaid Act (hereinafter referred to as the Act), and, therefore, he had not failed to pay the rent. The trial court accepted the defendants plea and dismissed the suit. On appeal by the plaintiff landlord, the appeal was allowed and the suit was decreed for ejectment and mesne profits at the rate of Rs.10/ per month till the date of actual delivery of possession. As to the arrears of rent the trial court had partly decreed the suit and directed that the rent in deposit in court will be refundable to the landlord. That part of the decree was not challenged in appeal and became final. In this second appeal the principal ground taken to challenge the appellate judgment and decree is that the appellate court was wrong in holding that there was no deposit of rent by the appellant within the meaning of subsection (6) of S.7C of the Act. A ground has also been taken that the notice of termination of tenancy was invalid. 2. Subsection (6) of S.7C of the Act lays down that "In any case where a deposit has been made as aforesaid, it shall be deemed that the rent had been duly paid by the tenant to the landlord". It is proved that the defendantappellant had deposited the rent for the period 121964 to 3111967 by means of tenders Exts.A1 to A7, by making applications under Section 7C(1) of the Act. The question which therefore arose for consideration before the lower courts was whether the rent alleged by the landlord respondent to be in arrears had been deposited in terms of Section 7C of the Act. It is in evidence that the rent deposited by some of the tenders was actually withdrawn by the landlord on issue of notice to him under subsection (4) of S.7C. It is in evidence that the rent deposited by some of the tenders was actually withdrawn by the landlord on issue of notice to him under subsection (4) of S.7C. In the case of two deposits the landlord did not turn up and the tenant also did not appear before the court and thereupon orders Exts.Ka4 and Ka5 were passed by the concerned Munsif dismissing the case in default. The two orders may be usefully reproduced: (1) "22864: Case called out. Parties are absent. ORDER The case is dismissed in default. Sd. V.S. Kulshreshtha". (2) "181265: Case called out. Applicant is absent. O/P is personally remained absent. It is 2.30 p.m. ORDER Struck off in default. Costs on parties. Sd. V.S. Kulshreshtha". 3. On the grounds of these two orders it is contended on behalf of the respondent that the deposits made with applications which were dismissed as aforesaid should not be regarded as deposits under Section 7C of the Act and the benefit of subsection (6) of S.7C would not be available to the tenantappellant in the case of those two deposits and he should, in consequence, be held to have failed to pay the rent. The trial court had found that the landlord had refused to accept a money order of Rupees 310/, being rent for the period from January, 1962 to July, 1962 and the same was accordingly deposited in court under Section 7C of the Act on 1991962 by means of tender Ex.A7 and that in the absence of proof on the part of the landlord of the fact that subsequently he had signified by notice in writing to the tenant his willingness to accept the rent in terms of subsection (1) of S.7C, the tenant had the right to deposit and continue to deposit future rent as well under Section 7C(1). Thus the trial court held the appellant to be entitled to deposit rent under Section 7C. It did not deal with the effect of the aforesaid orders but on the basis of proof of refusal, held the tenant to be entitled to deposit rent under Section 7C(1) and found the appellant not to have failed to pay rent. 4. Thus the trial court held the appellant to be entitled to deposit rent under Section 7C. It did not deal with the effect of the aforesaid orders but on the basis of proof of refusal, held the tenant to be entitled to deposit rent under Section 7C(1) and found the appellant not to have failed to pay rent. 4. The appellate court accepted the case that there was refusal by the landlord to accept the sum of Rs.310/and that therefore the tenant had a right to deposit rent under Section 7C(1) but he proceeded to consider whether the total sum of Rs.120/ deposited under the two tenders Exts.A1 and A5 relating to the two applications dismissed as above was validly deposited under Section 7C of the Act. In that connection the appellate court referred to two decisions of the Court, these being Shanti Devi v. Chandra Mukhi, 1967 All LJ 788 and Bihari Lal v. Shyam Das, 1963 All WR (HC) 399. In the former case Dhavan, J. before whom Bihari Lals case does not appear to have been cited, laid down that under Section 7C no dispute is to be decided and that all that the Court has to do upon a deposit allowed under Section 7C(1) is to send a notice to the landlord informing him about the deposit so that the landlord may come and withdraw the money if he likes. There is no requirement of issuing any notice to the landlord to show cause against the application. It will be in a suit in which the controversy arises whether the tenant has failed to pay rent, that the question will be decided whether the tenant was entitled to deposit rent under Section 7C and whether he be deemed to have paid the rent by such deposit as provided by subsection (6) of S.7C. In the earlier decision 1963 All WR (HC) 399 it had however been laid down that the Court in which an application under Section 7C(1) is made is entitled to satisfy itself about the jurisdictional facts which must exist before a tenant can move an application under subsection (1) of Section 7C, namely, that the applicant is a tenant and that the landlord has refused to accept rent which was lawfully paid to him. It was further held that where the landlord contests these facts by filing an application in the court, the court is bound to enter into those questions and to decide whether or not the applicant was a tenant and whether the rent which was tendered to the landlord was refused by him and it is only when the court decides the question in favour of the applicant that it can receive the money and retain it on behalf of the landlord. After referring to these two conflicting decisions the appellate court referred to a till then unreported case, civil revision No. 1779 of 1964 Fateh Chand v. Bal Sarup Goel, a Division Bench case which has since been reported in 1967 All LJ 979. Therein the view taken by S.D. Singh, J. in the case 1963 All WR (HC) 399 (Supra), was accepted and it was laid down that while the Munsif will no doubt satisfy himself before issuing notice to the landlord whether the jurisdictional facts were prima facie made out by the application made by the tenant but after notice has been issued to the landlord under subsection (4) and if the landlord appears and files an objection questioning the existence of any of the two jurisdictional facts, it will not only be within the powers of the Munsif but indeed the duty of the Munsif to go again into the question as to whether or not the procedural fact necessary to enable him to act under clause (1) of Section 7C of the Act exists. It seems that the whole object and purpose of Section 7C of the Act was overlooked by the Division Bench, nor was it considered as to what would be the consequences of that view. Supposing the landlord raises a dispute about the two jurisdictional facts and the Munsif decides them, will that be a final decision binding both the parties, there being no provision for any appeal from the order of the Munsif. The decision will not give rise to a decree. How will then the rights of the parties so determined be affected in any future litigation? If the decision were directly applicable to the facts of this case there could be only two courses open to me either to follow it, being a Division Bench case or to make a reference to a Full Bench. How will then the rights of the parties so determined be affected in any future litigation? If the decision were directly applicable to the facts of this case there could be only two courses open to me either to follow it, being a Division Bench case or to make a reference to a Full Bench. But as a matter of fact, the decision is not applicable at all and the appellate court hit wide of the mark in thinking as to what it had to decide in the appeal. In the instant case the Munsif had the preliminary satisfaction in the case of both the tenders about the maintainability of the application and it was because of that prima facie satisfaction that he allowed the deposits to be made and issued notice under subsection (4) of Section 7C. The landlord did not come and make any oral or written objection. No question arose, therefore, for the Munsif to look again into the jurisdictional facts. By his orders quoted above he has not decided any such facts. As a matter of fact the learned Munsif never applied his mind to his function under Section 7C and he thought that he was dealing with a proceeding between two parties in which the applicant had to appear before him and to do something and that therefore in default of the parties the application was liable to be rejected. This was not the case at All. The tenant applicant had played his part each time by making an application with a tender as prescribed under S.7C(1) and the tender had been passed after the satisfaction of the Munsif about the maintainability of the application and the money had also been actually deposited. Steps for issue of notice to the landlord under Section 7C(4) had also been taken and notice issued and served. The landlords appearance in the notice was not required. All that he was informed was about the deposit of the rent and that he could seek refund of it if he liked. Even supposing the Munsif thought of fixing some date for the landlord to appear then in default of appearance of the landlord he should have consigned the case without dismissing or striking out the case in default. All that he was informed was about the deposit of the rent and that he could seek refund of it if he liked. Even supposing the Munsif thought of fixing some date for the landlord to appear then in default of appearance of the landlord he should have consigned the case without dismissing or striking out the case in default. The second time he passed an order even about cost, showing his utter ignorance about the nature of proceedings under Section 7C of the Act. It is in evidence that later on the landlord even applied for payment to him of the rents deposited through the aforesaid two applications but the repayment applications were rejected, again erroneously, on the ground that there was no order of the court in the case for payment to the landlord. As a matter of fact no such order was required because S.7C(4) itself provides that the landlord may withdraw the amount deposited by making an application to the Court in that behalf. The application for repayment should have been put before the Munsif for being accepted or for ordering payment. It will appear from the above discussion that the deposit itself had been accepted each time and no controversy had been raised by the landlord at any time in respect of those deposits upon notice being issued to him under Section 7C(4). They were good deposits entitling, in consequence, the tenant to the benefit of subsection (6) of that section. The wrong and meaningless orders of the learned Munsif on those applications after the deposits had been accepted could not affect the validity of the deposits. The case of the appellant, in this connection stands in a far better position as compared to the case dealt with by Dhavan, J. in 1967 All LJ 788 in which the Munsif had rejected the application and directed the applicant under Section 7C(2) to withdraw the amount deposited by her on a controversy arising whether the rent had been deposited in terms of Section 7C(2) and the benefit of Section 7C(6) was available. Dhavan, J. held that it was a case of an application under Section 7C(2) and the Munsifs order was wrong and the deposit made could not be regarded, by reason of the Munsifs order, as not made under Section 7C(2) of the Act. 5. Dhavan, J. held that it was a case of an application under Section 7C(2) and the Munsifs order was wrong and the deposit made could not be regarded, by reason of the Munsifs order, as not made under Section 7C(2) of the Act. 5. It Is clear in this case that there was a proper deposit under Section 7C(1) and the appellant had not failed to pay rent and there were no arrears for which notice could have been issued by the landlord. The decision of the learned Munsif that the notice was valid does not appear to have been challenged by the tenant respondent in the first appellate court and it cannot therefore be challenged in the second appeal. In any case, because the appeal is to succeed on the other point, there need be no discussion on the question of validity of notice. 6. The appeal is allowed with costs and the decree of the first appellate court by which the claim of the respondent for ejectment has been allowed is set aside and the decree of the trial court is restored. The appellant shall also get costs of the appeal in the lower appellate court. Appeal allowed.