Ved Parkash v. IIIrd Additional District Judge, Mainpuri
1977-05-19
K.N.SETHA
body1977
DigiLaw.ai
ORDER K.N. Seth, J. - Respondent Nos. 3 to 5 filed a suit for ejectment of the petitioner from shop No. 246, Bara Bazar, Shikohabad and for recovery of arrears of rent and mesne profits. The suit was filed on the ground of default in payment of rent inspite of a notice of demand and for causing substantial damage to the shop in question. The suit was tried by the Judge Small Cause Court. The trial Court held that no damage had been caused to the shop at the hands of the defendants. It was, however, held that the tenant committed default in payment of rent and was liable to eviction. A decree for Rs. 180 as rent mesne profits at the rate of Rs. 20 per month was also passed. The decree for ejectment was challenged by way of revision. The learned Additional District Judge affirmed the view of the trial Court that the defendant committed default in payment of arrears of rent inspite of valid notice of the landlords and was liable to eviction. 2. It is admitted that the petitioner has been a tenant of the disputed shop for over 25 years on a monthly rent of Rs. 20 Sri Rameshwar Dayal, father of respondent Nos. 3 to 5 and husband of respondent No. 4 was landlord of the shop. He died in December, 1970 leaving the respondents as his heirs and rent from October, 1970 was due. A notice dated 24th April, 1974 signed by the three respondents was served on the petitioner 27th April, 1971 by registered post, alleging that the tenant had caused considerable damage to the shop and asking him to pay arrears of rent amounting to Rs. 120 within a month of the notice. The petitioner sent a reply dated 5th May, 1971 wherein he refuted the allegation that he caused damage to the shop in question. The petitioner further informed respondent Nos. 3 to 5 that he was remitting by money orders Rs. 40 to each them. The money orders were sent on the same day. Respondent Nos. 3 to 4 refused to accept the money and the money order addressed to respondent No. 5 was returned with the endorsement that she was not found at the address.
3 to 5 that he was remitting by money orders Rs. 40 to each them. The money orders were sent on the same day. Respondent Nos. 3 to 4 refused to accept the money and the money order addressed to respondent No. 5 was returned with the endorsement that she was not found at the address. The question for consideration on these admitted facts is whether the tenant committed default in payment of arrears of rent and was liable to ejectment. 3. Before dealing with the merits of the case, a preliminary objection raised by learned counsel for the respondents may be considered. It was urged that the petitioner had an alternative remedy to approach this Court by way of revision petition under Section 115 C.P.C. and in view of Article 226(3) of the Constitution, as it stands now, this petition is not maintainable. This provision came up for consideration before a Full Bench of this Court in Bijli Cotton Mills v. Estate Officer and others, Civil Misc. Writ 416 of 1977 and the question referred to the Full Bench was whether clause (3) of Article 226 of the Constitution will bar a petition under clause (1) of that Article in cases where the remedy by way of a suit or any other remedy is not effective or adequate to redress the injury complained of. After considering a large number of authorities on the point the Full Bench answered the question in the negative, while it is true that the petitioner could approach this Court under Section 115 C.P.C. but the scope of inquiry in the revision would have been confined to the question of jurisdiction of the Court below. The petitioner could get no redress from this Court even if it had been shown that the decree of the Court below was contrary to law inasmuch as it could not possibly be treated as a question of jurisdiction which alone could be looked into a revision petition under Section 115 C.P.C. Since the revision under Section 115 C.P.C. would not have been an effective or adequate remedy to redress the injury complained of the present petition is not barred under clause (3) of Article 226 of the Constitution. 4.
4. Learned counsel next contended, relying on Ladley Prasad v. Ram Shah Billa and others, that the extraordinary jurisdiction of the Court under the Constitution is not meant to correct error of law or fact committed by the subordinate Courts during the proceeding of a suit. In the aforesaid case, to which I was a party, it was observed that even if the order complained of could be demonstrated to be erroneous, it should normally be not interfered with and it is only in exceptional cases of grave injustice that the extra ordinary jurisdiction under the Constitution can be invoked. Normally this Court is reluctant to exercise its inherent power under Article 226 of the Constitution in a matter where an alternative remedy is available to the aggrieved party to approach this Court but the existence of an alternative remedy to approach this Court has never been considered to be an absolute bar to the maintainability of a petition under Article 226 of the Constitution (see Collector of Customs and Excise, Cochin and others v. M/s. A.A. Bawa, AIR 1968 Supreme Court 13. 5. On the merits of the case, I do not find it possible to agree with the view taken by the Court below that the petitioner committed default in payment of arrears of rent. Admittedly on the death of Rameshwar Dayal, his rights were inherited by respondent Nos. 3 to 5. The notice of demand was on behalf of all of them and it was actually signed by them all. After the death of Rameshwar Dayal no claim was made that any one of the heirs was to be treated or accepted as the landlord of the premises to whom alone the rent payable. The tenant also by his conduct did not accept or recognise any one of them as the landlord of the premises. In view of the fact that notice was issued under the signatures of all heirs of Rameshwar Dayal, the tenant could legitimately treat them as the landlords to whom rent was payable.
The tenant also by his conduct did not accept or recognise any one of them as the landlord of the premises. In view of the fact that notice was issued under the signatures of all heirs of Rameshwar Dayal, the tenant could legitimately treat them as the landlords to whom rent was payable. It is true that under the law payment to any one of them would have discharged the tenant's liability but if the rent was tendered to all the three well within time, the tenant could not be treated as a defaulter merely on the ground that instead of remitting the entire amount due to one of them, he remitted the same by three separate money orders. More so when in his letter he made it clear that the entire amount claimed as arrears of rent was being simultaneously remitted by three separate money orders. In view of the decision of this Court, learned counsel for the respondent conceded that a tenant is entitled to pay the arrears of rent even in instalments if the entire amount is paid within the prescribed time. If the total arrears of rent could be paid in instalments, the payment could be made to any one of persons who was entitled to receive it, in a case where there were more than one landlord, the position for the tenant would not be worst where he tendered the amount to all the persons competent to receive it at the same time. 6. It was urged that there was no evidence to hold that the amount was tendered to Smt. Shanti Devi (respondent No. 5) as she was not met by the postman. The argument is not acceptable. All the money orders were sent at the same address. In the notice that very address was mentioned. Again when the suit was filed, the plaintiffs were shown the residents of the same place. No separate address of Smt. Shanti Devi was mentioned at any stage. The tenant was, therefore, justified in sending the money orders to Smt. Shanti Devi also at the same address. If Smt. Shanti Devi manage to evade tender of the amount, the petitioner cannot be penalised for that. He acted rightly in remitting the money orders to the address given in the notice and it must be held to be a valid tender even in respect of Smt. Shanti Devi.
If Smt. Shanti Devi manage to evade tender of the amount, the petitioner cannot be penalised for that. He acted rightly in remitting the money orders to the address given in the notice and it must be held to be a valid tender even in respect of Smt. Shanti Devi. It was lastly contended that the mode of payment adopted by the petitioner was illegal and could not save him from being treated as a defaulter inasmuch as it amounted to splitting up of the tenancy. In support of this proposition, reliance was placed on Baraboni Coal Concern Ltd. v. The Servitors and Shebaits of Sree Gopinath Jirs and others, AIR 1934 PC 58 Badri Narain Jha and others v. Rameshwar Dayal Singh and others, AIR 1951 Supreme Court 186, Raja Pramod Nath Roy v. Raja Ramoni Kant Roy, Calcutta Weekly Notes 34 and Dhaneshwar Choudhary and others v. Subodh Kumar Sett and others, AIR 1967 Calcutta 334. I have carefully looked into these cases but none of them supports the proposition canvassed by the learned counsel. Offer of the arrears of rent to all the persons who were competent to receive it, could not by any stretch of imagination be treated as splitting up of the tenancy. In fact, no unilateral act of the tenant could bring about such a situation. I am of the opinion that the petitioner did not commit any default in payment of arrears of rent by tendering the entire amount due to the persons concerned instead of making the entire payment to only one of them. 8. In the result, the petition is allowed. The decree of the Court below directing the eviction of the petitioner is quashed. Parties shall bear their own costs.