Har Prasad Garg v. Dharam Deo Nagpal — 1980 DIGILAW 1153 (ALL)

ORDER K.M. Dayal, J. - The present petition has been filed against an order passed by the revisional court allowing the revision partly under section 25 of the Provincial Small Cause Courts Act. The petitioner filed a suit for ejectment of respondent no. 1 on the ground of default under section 20 (2) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the said Act). The defence was that the defendant had deposited a part of the amount due in the proceeding under section 30 (1) and 30 (2) of the said Act; the plaintiff was not the landlord and had no right to file the suit and that no default had been committed. The trial court (Judge, Small Cause Court) decreed the suit of the plaintiff and held that the plaintiff was the owner under a will which was Exhibit-1 and proved by Suresh Narain (P.W. 1) who was the attesting witness. It was also found that the amount that had been deposited under section 30 (2) of the said Act could not be taken into account for giving the tenant the benefit of sub-section (4) of section 20 of the Act. It was found that the defendant was defaulter. On these findings the suit was decreed for ejectment as well as for arrears of rent. A revision was filed by respondent No.1 under Section 25 of the Provincial Small Cause Courts Act. It was argued before the revisional court that the will relied upon by the plaintiff was not proved in accordance with law. The same irregularity has been repeated before me by respondent No. 1. The memorandum of evidence noted by the Judge, Small Cause Court in proof of the will is as under: "Kagaj No.32 Ga ka attestation gawah ne sidh kiya, Exhibit-1 dala gaya." The lower revisional court has rightly held that the Judge, Small Cause Court is not expected to record full statement but is only to note the substance of evidence. The aforesaid statement proves that the will was duly proved before it by the attesting witness. The trial court has also mentioned that one of the attesting witness has proved the will. In these circumstances this argument of the respondent No.1 cannot have any substance that the will was not proved in accordance with law. The aforesaid statement proves that the will was duly proved before it by the attesting witness. The trial court has also mentioned that one of the attesting witness has proved the will. In these circumstances this argument of the respondent No.1 cannot have any substance that the will was not proved in accordance with law. Section 68 of the Indian Evidence Act requires that the document requiring proof of the attestation can be proved by any one of the attesting witnesses. That has been complied with in the instant case. 2. Learned counsel for the petitioner, however, argued that the lower revisional court was not justified in holding that the notice was vague. The notice specifically mentioned that the defendant was a tenant of a portion in the building the boundary of which was given at the foot the notice. There cannot be any vagueness as regards the notice specifically asking the tenant to vacate the portion in his tenancy. Notice was not given to a stranger. It was given by the landlord to the tenant and the notice should have been read in that context. In these circumstances the finding of the court below that the notice was vague has to be set aside. Learned counsel for the respondent, however, argued that the suit had to be dismissed on account of deposits under sub-section (2) of section 30 which should have been adjusted towards the dues required to be deposited under sub-section (4) of section 20 of the Act and as such the tenant would be entitled to have the suit for ejectment dismissed. Learned counsel for the respondents relied upon Hemraj v. Smt. Maheshwari Devi, (1979 U.P. R.C.C. 141) : (1979 All. L.J. 669). That case related to the deposit made under sub-section (4) of section 20 of the Act and the learned single Judge who decided the case observed that in the provisions like sections 39 and 20 (4) of the Act the idea was to give benefit to the tenant. Therefore, these provisions should be construed in a liberal manner so as to effectuate the purpose with which it was enacted by the legislature. This principle is not disputed. So far as the benefit is to be given to the tenant, it must be given wherever it is available. Learned counsel for the respondents also relied on Mangat Rai v. Kidar Nath, (A.I.R. 1980 SC 1709). This principle is not disputed. So far as the benefit is to be given to the tenant, it must be given wherever it is available. Learned counsel for the respondents also relied on Mangat Rai v. Kidar Nath, (A.I.R. 1980 SC 1709). This was a case under East Punjab Urban Rent Restriction Act. The deposits in that case were made under section 13 of that Act and it was held that the tenant was entitled to adjustment of the amount under section 13 (2) of the said Act. Section 31 of the East Punjab Urban Rent Restriction Act reads as under: "Deposit in court:- (1) Any person who owes money is entitled to deposit in court the money owed either in full or in part in the name of his creditor. (2) The court on receipt of such deposit shall give notice thereon to the creditor and shall, on his application pay same to him. (3) From the date of such deposit interest shall cease to run on sums so deposited." The Supreme Court considering the deposits made under section 31 held that they could be deemed to have been made under section 13 (2) of the Rent Act. Section 13(2) of the Rent Act provides the deposit to be made on the first date of nearing. The Supreme Court has held as under:- "There is no magical formula or any prescribed manner in which rent can be deposited by the tenant with the landlord. The rent can be deposited by placing the money in the hands of the landlord which would amount to actual tender; second mode of payment is to deposit the amount in the court where a case is pending in such a manner so as to make the amount available to the landlord without any hitch or hindrance whenever he wants it. Even the Act does not prescribe any particular mode of deposit. In fact, the use of the words "tender or deposit" in the proviso clearly postulates that the rent can be given to the landlord in either of the two modes. It may be tendered to the landlord personally or to his authorised agent or it may be deposited in court which is dealing with the case of the landlord to his knowledge so that the landlord may withdraw the deposit whenever he likes ........ It may be tendered to the landlord personally or to his authorised agent or it may be deposited in court which is dealing with the case of the landlord to his knowledge so that the landlord may withdraw the deposit whenever he likes ........ In fact, if the tenant deposits the rent even before the first date of hearing it is a solid proof of his bona fides in the matter and the legal position would be that if the rent is deposited before the first date of hearing, it will be deemed to have been deposited on the date of the hearing also because the deposit continues to remain in the count on that date and the position would be as if the tenant has deposited the rent in court for payment to the landlord". The test that seems to have been laid down by the Supreme Court as well as by the learned single Judge, in the cases relied upon by the respondent, is that the money deposited should be readily available to the landlord. A reading of sub-section (4) of Section 20 leads to the same conclusion. It waives ejectment "if the tenant, unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building." It is clear that the amount has to be paid to the landlord or at least to be tendered to him or it has to be deposited in the Court. Sub-section (6) of section 20 lays down that if any amount has been deposited by tender either under sub-section (4) of that section or under Rule 5 of Order 15, C.P.C. that has to be paid to the landlord without prejudice to the parties pleadings and subject to the ultimate decision of the suits. The amounts so deposited are certainly available to the landlord as soon as the deposit is made. So far as deposit under section 30 (2) is concerned, that is not available to the landlord readily and the amount deposited can be paid to any party after adjudication of the dispute mentioned in the sub-section. The legislature had that eventuality in mind, therefore, sub-section (4) of section 20 specifically mentions that the amount deposited by the tenant under section 30 (1) of the Act would be deducted. The legislature had that eventuality in mind, therefore, sub-section (4) of section 20 specifically mentions that the amount deposited by the tenant under section 30 (1) of the Act would be deducted. The deposits under section 30 (2) have not been included in the deductible amounts. Had the legislature intended that even the amount which was not readily available to the landlord be also excluded from such deposit, it could also have mentioned sub-section (2) as it mentioned sub-section (1) of section 30. In these circumstances, I do not see any mistake in the decision of the courts below when they did not allow the benefit of deposits under section 30 (2) of the said Act to the respondent No. 1. 3. Learned counsel for the respondents further contended that as in the present case the question of title of the house was involved, the court of Small Causes should have returned the plaint for presentation to the regular court under section 23 of the Provincial Small Cause Courts Act. In view of the judgment of the trial court where it has given a finding on the basis of a will proved by the attesting witness and the lower revisional court on the same basis has decided the case, no serious question of title was to be examined. In any case, if the question of title is incidentally involved in a suit, that can always be decided by it. 4. The lower revisional court has held the notice to be vague which has already been negatived, the plaintiff-petitioner was entitled to a decree for ejectment and the revision could not have been allowed. 5. In view of what has been stated above, the present petition is allowed and the judgment and order passed by the lower revisional curt dated 3-5-79 in S.C.C. Revision No. 83 of 1978 is quashed so far as it relates to the dismissal of the plaintiff's suit of ejectment. The remaining order is confirmed. In the circumstances of the case parties are directed to bear their own costs. 6. Learned counsel for the petitioner contended that it was not possible, for the tenant to have another accommodation, as his family was quite big arid he was residing in the disputed accommodation, he should be granted some time to vacate the same. His request is reasonable. 6. Learned counsel for the petitioner contended that it was not possible, for the tenant to have another accommodation, as his family was quite big arid he was residing in the disputed accommodation, he should be granted some time to vacate the same. His request is reasonable. I, therefore, hereby order that the decree for ejectment of the defendant will not be executable for a period of three months from today provided that he pays in the court the entire decretal amount along with the damages including dues for three months granted above within one month from today. He is further directed to hand over peaceful and vacant possession to the landlord on or before 28th February, 1981.