Chhadammi Lal v. Satish Chander — 1980 DIGILAW 791 (ALL)

JUDGMENT R.R. Rastogi, J. -This is defendants second appeal arising out of a suit filed by the plaintiff-respondent for his ejectment from a shop and for recovery of arrears of rent and damages. The plaintiff-respondent is owner of the shop and the defendant was its tenant on a monthly rent of Rs. 14/-. The defendant had paid rent up to 12-9-1965 and thereafter he did not pay anything. Hence a notice of demand under Section 3 of U. P. Act No. 3 of 1947 and a notice to quit under Section 106 of the Transfer of Property Act, was given on 9-9-1966. The defendant refused to accept that notice. He did not comply with that notice and and hence the plaintiff filed Suit No. 37 of 1967, for ejectment and arrears of rent. 2. The defence taken by the defendant-appellant in that case was that he had not committed any default in payment of rent and the notice under Section 106 of the Transfer of Property Act was not valid. The suit was decreed by the trial Court. There was an appeal filed from that decision which failed and then a second appeal was filed before this Court. This Court affirmed the findings of the courts below that the defendant had committed default in payment of rent but in regard to the notice to quit held that it was not valid, with the result that in respect of relief for ejectment the suit was dismissed. The plaintiff thereafter gave another notice terminating the tenancy of the defendant on 10-8-1969 which was served on the defendant 11-8-1969. The defendant did not comply with that notice and hence the plaintiff filed Suit No. 7 of 1970 for ejectment of the defendant from the disputed shop, for recovery of Rs. 28/- as arrears of rent and Rs. 66/- as damages for use and occupation at the rate of Rs. 20/- per month. Ad item and future damages were also claimed at the same rate. 3. The defendant-appellant contested the suit on the ground that the principle of res judicata did not apply to the case and the suit based on the previous notice of demand could not succeed. 20/- per month. Ad item and future damages were also claimed at the same rate. 3. The defendant-appellant contested the suit on the ground that the principle of res judicata did not apply to the case and the suit based on the previous notice of demand could not succeed. He further claimed that he had deposited the entire rent under Section 7-C of U.P. Act No. 3 of 1947 and thus he could not be treated in default under Section 3 (1) (a) of that Act. 4. The trial court framed four issues and held that the defendant had committed default in payment of rent as claimed by the plaintiff, that the decision in the previous suit operated as res judicata and the plaintiff was entitled to damages but at the rate of Rs. 14/- per month. The suit was thus decreed for I ejectment and arrears of rent and damages. 5. Being aggrieved, the defendant-appellant filed an appeal. The lower appellate court has taken the same view and has confirmed the judgment and decree of the trial court, hence this further appeal by the defendant before this court. 6. It was submitted before me on behalf of the defendant-appellant that the decision in the earlier suit on the question of the defendant being in default in payment of rent would not operate as res judicata and after the decision of that suit that notice of demand stood exhausted and on the basis thereof the present suit could not be filed. According to the learned counsel the arrears for the payment of which the defendant-appellant was found to be in default has now been converted in the form of a decree which in the event of non-payment of the decretal amount can be put into execution by the plaintiff-respondent. Anyhow that default cannot furnish a legal ground for the filing of the present suit. Reliance was placed on Ram Deo v. Umrao Singh, (1979 All WC 737); ( AIR 1980 SC 323 ) and Laxmi Narain v. Sita Ram, (1966 All LJ 321). In my opinion there is not much of the merit in the above contention and the decisions cited do not help the defendant-appellant. In Ram Deo v. Umrao Singh (supra) a sum of Rs. 600/- was due to the respondent from the appellant as arrears of rent on June 30. In my opinion there is not much of the merit in the above contention and the decisions cited do not help the defendant-appellant. In Ram Deo v. Umrao Singh (supra) a sum of Rs. 600/- was due to the respondent from the appellant as arrears of rent on June 30. 1960 and an agreement was executed between the parties on that date according to which the tenant had to pay Rs. 50 every month to the respondent, to wit, Rs. 25/- towards liquidation of the compounded arrears of rent and Rs. 25 -per month towards the current rent falling due. The appellant fell in arrears again and thereupon the respondent served a notice of demand upon the appellant on August 21, 1961 requiring him to pay Rs. 380/- as arrears of rent within one month from the receipt of the notice. The appellant tendered Rs. 200/- only but several months after the receipt of the notice. The respondent did not accept this tender and instituted a suit for damages and eviction of the appellant from the disputed premises. 7. On these facts the view taken by the Supreme Court was that as a result of the aforesaid agreement, the pre-agreement arrears lost their original character as arrears of rent and assumed the character of consolidated debt which, under the terms of the agreement, was payable by the appellant in monthly instalments. The agreement had in respect of the past arrears, brought into being a new cause of action and created liability against the tenant, independent and distinct from that founded on the rent note or the lease of the premises. Consequently if the appellant in breach of the agreement, defaulted to pay any instalment, the remedy of the respondent would be to file a suit for the recovery of the amount due on the basis of the agreement. Thus, the arrears of three instalments due under the agreement had ceased to be 'arrears of rent" and could not be tacked on to the arrears of three months rent due at the date of notice for the purposes of clause (a) of Section 3 (1) of U. P. Act 3 of 1947. Thus, the arrears of three instalments due under the agreement had ceased to be 'arrears of rent" and could not be tacked on to the arrears of three months rent due at the date of notice for the purposes of clause (a) of Section 3 (1) of U. P. Act 3 of 1947. It would be seen that in that case the original rent deed for the lease agreement had been substituted by the agreement dated June 30, i960 whereby the arrears of rent due till then assumed the character of a consolidated debt and could not be treated as arrears of rent which could be tacked on to the arrears of rent contemplated by clause (a) of Section 3 (1). In the present case there was no such renovation of the contract and the fact that in respect of the arrears of rent for the demand of which the earlier notice had been given had been converted into a decree, would not mean that the advantage of that default cam not be taken by the respondent till the purpose is fulfilled. Section 3 of U. P. Act No. 3 of 1947 only places a bar on the landlords right to file a suit for eviction on determining the tenancy. Such a suit cannot be filed without the permission of the District Magistrate. However, there are certain cases where if the tenant is guilty of some misconduct, the landlord has a right to eject the tenant without obtaining such permission of the District Magistrate and those cases are: (a) default in payment of rent, (b) causing wilful damage to the accommodation, (c) making unauthorised construction (d) creating a nuisance, (e) subletting without permission of the landlord, and (f) renouncing his status as a tenant and denying the title of the landlord. It would be seen that the bar imposed by Section 3 can be lifted either by obtaining the permission of the District Magistrate or alleging some misconduct of the type to the tenant as specified above. The question is that once the bar is lifted can the landlord go ahead and exercise his ordinary right of terminating the tenancy and on the failure of the tenant to quit, file a suit for his dispossession. 8. The answer to this question is covered by several decisions of our Court. The question is that once the bar is lifted can the landlord go ahead and exercise his ordinary right of terminating the tenancy and on the failure of the tenant to quit, file a suit for his dispossession. 8. The answer to this question is covered by several decisions of our Court. In Pahlad Das v. Ganga Saran ( AIR 1958 All 774 ): (1957 All LJ 804) a Division Bench took the view that the obvious purpose of the permission under Section 3 is to enable the plaintiff to evict the defendant from the premises. As long as that purpose is not fulfilled the permission cannot obviously exhaust itself. Where it is not shown that permission was granted to file a single suit or that it had been specified in it that a second suit could not be filed on its basis, the permission cannot exhaust simply because the first suit filed on its basis was dismissed on some technical ground, such as defective notice, and the permission obtained can be availed of for filing the second suit for ejectment. There is another unreported decision of a learned single Judge of this Court in Second Appeal No. 4456 of 1960. Sri Ram Janki v. Triveni Kalwar decided on 18-2-1963, which was on identical facts. In that case the defendants-tenants did not pay rent for ten months after June, 1951 and on 9-4-1952 the plaintiffs served a notice of demand on them under Section 3 of the U. P. Act No. 3 of 1947 as also a notice of termination of tenancy under Section 106 of the Transfer of Property Act. The tenants did not comply with that notice and the plaintiff brought a suit for their ejectment and recovery of rent. The suit was decreed by the first appellate Court for recovery of rent, but was dismissed for ejectment on the-ground that the notice terminating the tenancy was invalid. The plaintiff then filed a suit for recovery of damages for use and occupation which was decreed and then filed a suit for ejectment after terminating tenancy by a fresh notice under Section 106 of the Transfer of Property Act. One of the pleas taken in defence was that the suit was barred since permission of the District Magistrate had not been obtained under Section 3 of the Act. One of the pleas taken in defence was that the suit was barred since permission of the District Magistrate had not been obtained under Section 3 of the Act. That objection was upheld by the trial Court as ,also by the first appellate Court. The plaintiffs contention that the earlier notice of demand was still effective was repelled. On second appeal it was held by this Court that the bar of Section 3 was lifted because of the tenant being in arrears of rent for more than three months having failed to pay the rent within one month of the demand by the landlord. Though the suit for ejectment was dismissed on the technical ground that the notice of ejectment was defective after that default had been made good by means of a fresh notice, the plaintiff could file a suit for ejectment and arrears of rent without obtaining the permission of the District Magistrate. It was held that the dismissal of the earlier suit did not have the effect of reimposing the bar under Section 3 of the Act. 9. There is another decision of this Court in Mohammad Swalleh v. 3rd Addl. District Judge, 1978 (UP) RCC 686: (1978 All LJ 981) in which also the same view has been taken and it is that a permission does not exhaust simply because the first suit filed on its basis was dismissed on some technical ground. 10. It may be noted that Section 3 contains only a procedural restriction and does not create a substantive right, vide Kudrat Ullah v. Municipal Board, Bareilly ( AIR 1974 SC 396 ). Thus, the disability of the plaintiff to enforce his cause of action under the ordinary law cannot be transmuted into a substantive right in the defendant and, therefore, when once the bar imposed by this Section is removed, unless the purpose is fulfilled, the permission granted under this section does not exhaust itself. Similarly the default or misconduct of the type mentioned above attributed to the tenant continues to remain even though the suit filed on the basis of the same is dismissed for a technical defect in the notice of ejectment. When after removing that defect a fresh suit is filed that default will still be available. 11. Similarly the default or misconduct of the type mentioned above attributed to the tenant continues to remain even though the suit filed on the basis of the same is dismissed for a technical defect in the notice of ejectment. When after removing that defect a fresh suit is filed that default will still be available. 11. The other case, that is, of Laxmi Narain v. Sita Ram (1966 All LJ 321) (supra) relied upon by the appellant, also does not support him. What has been held in that case is that after a decree for ejectment has been passed against the tenant and he has appealed from it, a tenant is not entitled to tender any rent direct to the landlord who will refuse to treat him as a tenant in view of the decree. I do not think that this principle would have any application to the facts of the present case where a decree for ejectment had not been passed and the tender of the amount of arrears of rent for which the tenant had been treated in default would not amount to a valid tender as required by Section 3 (1) (a) of the Act so as to cure the default. Apart from this, my attention has been invited to a decision of the Supreme Court in this regard in the case of Mangi Lal v. Sugan Chand ( AIR 1965 SC 101 ). That was a case under the M. P. Accommodation Control Act. Section 4 of that Act is in the same terms as Section 3 of our Act. In that case the defendant-tenant was in arrears of rent from April 1955 to 31st March 1959. On April 11, 1959, the plaintiff served a notice on the defendant of demand as also of determination of tenancy and the tenant was called upon to pay the amount within one month from the date of service of notice. The defendant did pay the amount but after the expiry of one months period and the plaintiff accepted that amount and gave another notice of ejectment and then filed a suit. The defendant did pay the amount but after the expiry of one months period and the plaintiff accepted that amount and gave another notice of ejectment and then filed a suit. The view taken was that the notice dated 11th April, 1959 was a composite notice but in respect of determination of tenancy it was defective and after the removal of the defect the suit for eviction was properly instituted, and the fact that the defendant was not in arrears of rent on the date of the suit did not render the suit incompetent. It would be seen that this view was taken on the fact that the payment of rent had been made by the defendant not within the required period but after the expiry thereof and he was deemed to be a tenant in default and the suit for eviction was decreed. 12. In view of the foregoing discussion, the suit of the plaintiff-respondent was rightly decreed and there is no merit in this appeal. It is hence dismissed with costs to the plaintiff-respondent.