Kohinoor Cable Industries v. Daya Nand Garg — 1983 DIGILAW 193 (ALL)

JUDGMENT P.N. Bakshi, J. - This is a Defendant's revision. The Plaintiff filed a suit for the ejectment of the Defendants from House No. 318 Balupura Ramate Ram Road Ghaziabad and for arrears of rent. Their case was that the Defendants were in arrears from 1-8-1972 to 31-2-1972. A notice of demand was sent to them. The Defendants remitted a sum of Rs. 1000/- by money order, thereafter suit No. 77 of 1973 was filed in Court of II Additional Civil Judge Ghaziabad for recovery of arrears of rent and future damages. That suit was compromised on 11-1-1974. At the time of the compromise it was orally stated by the Defendants that they had deposited a sum of Rs. 2400/-. The compromise was to the effect that the Plaintiff would withdraw the rent deposited by the Defendants and that the arrears of rent would be payable at the rate of Rs. 200/- upto 31st January 1974, and thereafter at the rate of Rs. 300/-per month. After the decision of that case it appears that since only a sum of Rs. 2000/- was deposited by the applicant, there still remained an arrears of Rs. 400/-. The instant suit was filed for recovery of that specified sum of Rs. 400/- as per the compromise, and future arrears of rent amounting to Rs. 1500/- and Rs. 35/- as water charges. It was alleged that despite notice the Defendants had not paid the arrears nor vacated the permises, as such the Defendants were liable to ejectment. 2. The suit was contested by the Defendants on the ground that no statement was made by him in the earlier suit that he had deposited Rs. 2400/-. As a matter of fact they had only deposited Rs. 2000/- for which tenders had been filed. The rent of Rs. 1500/- and Rs. 35/- as water charges was sent through money order after receipt of the notice which was refused by the Plaintiff. The Defendants deposited the rent etc. in Court on the first date of hearing on 2-4-1979 as required u/s 20(4) of U.P. Act No. 13 of 1972. Some other pleas were also raised in defence. The suit of the Plaintiff, therefore was liable to be dismissed. 3. The Defendants deposited the rent etc. in Court on the first date of hearing on 2-4-1979 as required u/s 20(4) of U.P. Act No. 13 of 1972. Some other pleas were also raised in defence. The suit of the Plaintiff, therefore was liable to be dismissed. 3. The trial Court on a consideration of the evidence on record and the circumstances of the case decreed the Plaintiff's suit for ejectment of the Defendants and for the recovery of arrears of rent. Aggrieved thereby the' instant revision was filed. 4. I have heard learned Counsel for the parties and have also perused the impugned order. The applicant's Counsel has made two submissions. His first submission is that the amount of Rs. 400/- which was claimed as arrea's of rent could not form the subject matter, of a cause of action arising in the instant suit for the ejectment of the Defendants. He argued that for the enforcement of that liability a separate suit ought to have been instituted. Learned Counsel has submitted his argument on the basis of a Supreme Court decision, Ramdeo v. Umrao 1979 AWC 737 . In that case a sum of Rs. 600/- was due from the Appellant to the Respondent as arrears of rent. An agreement was executed between the parties for the payment of arrears. It appears that inspite of the contract the Appellant fell in arrears. In these circumstances it was held by the Supreme Court 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 a consolidated debt which under the terms of the agreement, was payable by the debtor (Appellant) in monthly instalments. The agreement had been in respect of the past arrears, brought into being a new cause of action and created a liability against the tenant, independent and distinct from that founded on the rent note or the lease of the premises. Consequently if the applicant, in breach of the agreement, defaulted to pay any instalment, the remedy of the Respondent (creditor) would be to file a suit for the recovery of the amount due on the basis of the agreement. 5. Having regard to this decision it may be observed that the amount of Rs. Consequently if the applicant, in breach of the agreement, defaulted to pay any instalment, the remedy of the Respondent (creditor) would be to file a suit for the recovery of the amount due on the basis of the agreement. 5. Having regard to this decision it may be observed that the amount of Rs. 400/- which has been deposited as arrears due to the Plaintiff, in view of the compromise arrived at between the parties in the earlier suit No. 77 of 1973, could only be realised by a separate suit. That amount could not be tagged on as arrears of rent in the present suit. 6. Thus in view of this decision of the Supreme Court the deposit of Rs. 400/-deposited by the Defendants on the first date of hearing is not an " arrear of rent " and far in excess of the rightful claim of the Plaintiff in this suit. 7. The next submission made by the applicant's Counsel is that he has deposited a total sum of Rs. 6,000/- on 2nd April, 1979. The details of which are as follows: From 1111973 to 311273 Rs. 400.00 as per agreementFrom 1 to 31-378 Rs. 99.00 interest at 9%Rs. 3900.00 At the rate of Rs. 300 P.M.Rs. 91.00 Water ChargesRs. 21000 Interest on Rs. 3900/Rs. 242.00 Counsel feeRs. 187.00 Court feesRs. 20.00 Other expenessRs. 11.00 Extra Learned Counsel submits that he was not liable for the payment of Rs. 91/-water charges and adding that amount to the sum of Rs. 11/- deposited extra, he has deposited in all a sum of Rs. 102/- extra. It appears that the Plaintiff objected that the interest of Rs. 99/- which had been deposited on the sum of Rs. 400/- was inadequate and therefore, the Defendant deposited a further sum of Rs. 100/- on 12th April, 1979. The argument on behalf of the Plaintiff was that the total amount deposited, thus fell short by Rs. 100/- and as such there is no compliance of the provisions of Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The question is whether the Defendant was liable for the payment of water charges or not? In this connection a Single Judge decision of this Court has been cited by the applicant's Counsel Civil Misc. Writ Petition No. 1922 of !980, 1981 ARC 298. The question is whether the Defendant was liable for the payment of water charges or not? In this connection a Single Judge decision of this Court has been cited by the applicant's Counsel Civil Misc. Writ Petition No. 1922 of !980, 1981 ARC 298. In that decision it was held by the learned Judge that water charges and conservancy tax are not required to be paid by the tenant when he makes the deposit u/s 20(4) of the Act. The tenant is not liable to deposit these amounts. The argument of the other side is that this decision ignores Section 7 of the U.P. Amendment Act No. 13 of 1972 which is to the effect: "the tenant shall be liable to pay to the landlord in addition to and as part of the rent ".... ...the water tax. It is not necessary for me to decide this question. There is much difference between Water charges and Water tax. There is no evidence to indicate as to what is the exact nature of these water charges of Rs. 91/- claimed by the Plaintiff. For all we know they may be excess water charges, or some after liability which may have been attached to the Defendant for the payment of such charges by an agreement interse parties. In these circumstances I am not prepared to place the liability for the payment of water tax on the same footing as the water charges. Therefore, the opposite party can not get the advantage of Section 7 of the Act, for purposes of determining the question whether the amount deposited as a water charges was the due liability of the tenant or an extra payment made by him. The inference seems to be inevitable that this amount can also be treated as an extra payment for which the tenant was not liable. Adding the sum of Rs. 91/-to the sum of Rs. 11/- which has admittedly been deposited in excess, I find that Rs. 102/- were deposited extra by the Defendant on the first date of hearing. As such it covered the further demand which was made by the Plaintiff for the deposit of balance interest on the sum of Rs. 400/-. The deposit of Rs. 100/- made on 12th April, 1979 can, therefore, be ignored for this limited purpose of deciding the liability of the Defendant to pay on the first date of hearing. As such it covered the further demand which was made by the Plaintiff for the deposit of balance interest on the sum of Rs. 400/-. The deposit of Rs. 100/- made on 12th April, 1979 can, therefore, be ignored for this limited purpose of deciding the liability of the Defendant to pay on the first date of hearing. The entire amount, therefore, including arrears of rent, interest, Counsel fee, Court fee and others expenses, having been deposited by the Defendant on the first date of hearing, he can not be held liable to ejectment. The judgment of the Court below, therefore, is clearly illegal inasmuch as he has directed the Defendant to be ejected from the permises in question, despite full payment having been deposited on the first date of hearing as required u/s 20(4) of U.P. Act No. 13 of 1972. 8. Another argument has been raised by the Counsel for the opposite party, which in all fairness be dealt with by me. He has argued that even if it is accepted that the deposits had been made by the Defendant on the first date of hearing the deposit was not unconditional and therefore, the liability of the Defendant to ejectment remained intact. His argument proceeds on the basis that written statement had been filed by the Defendant in which he denied his liability for the payment of the entire claim of the Plaintiff, therefore, the deposit should be taken as conditional and as such not covered by the aforesaid provisions of law. In support of this submission learned Counsel has placed reliance on the decision of the Supreme Court reported in 1981 ARC 632. I have carefully perused that decision. In my opinion that decision is distinguishable. In that case Hon'ble the Supreme Court has dealt with the plea u/s 20(4) of the Act. It is noticeable that this plea was not taken before the trial Court or before the lower appellate Court, but was permitted to be taken for the first time by the Supreme Court. While dealing with this question in para 10 of the judgment, the Hon'ble the Supreme Court recorded a number of findings, namely- (1) It is not clear whether the deposit was made on the first date of hearing. (2) It is not clear whether the deposit pertained to the full amount of arrears due. While dealing with this question in para 10 of the judgment, the Hon'ble the Supreme Court recorded a number of findings, namely- (1) It is not clear whether the deposit was made on the first date of hearing. (2) It is not clear whether the deposit pertained to the full amount of arrears due. (3) that there is absolutely no material available on the record to show that the alleged deposit of Rs. 1980/- was made by the tenant on the first date of hearing itself, and what is more important, that the said deposit is made by way of an unconditional tender for payment to the landlord. In these circumstances the Supreme Court held that the denial of the correctness of the arrears due in the written statement amounted to a conditional deposit, which should not be taken into consideration. 9. In the instant case, however, the factual position is: that the amount of deposit made by the Defendant covers correctly the arrears due; that even though (he Defendant has in his written statement pleaded that if the amount claimed by the Plaintiffs are not due to be paid, yet he has in para 23 of his written statement specifically alleged that the amount deposited by him is an unconditional deposit, but if in the opinion of the Court, it is finally decided that any excess amount has been paid by him, it may be returned to him. It is to be noticed that Sub-section (6) of Section 20 preserves the right of a Defendant to take up any plea he desires challenging the Plaintiff's claim for arrears. It runs as follows: Section 20(6): Any amount deposited by the tenant under Sub-section (4) or Under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the land-lord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suits. This provision has been interpreted by Division Bench of this Court in Mahendra Pratap Garg Vs. Smt. Vijay Laxami Gengal, (1982) AWC 731 . The Division Bench of this Court while interpreting this section has held as follows: Sub-section (6) makes it clear that irrespective of the tenant unconditionally depositing the amount due and the same being paid to the landlord, the pleadings of the parties remain operative. Smt. Vijay Laxami Gengal, (1982) AWC 731 . The Division Bench of this Court while interpreting this section has held as follows: Sub-section (6) makes it clear that irrespective of the tenant unconditionally depositing the amount due and the same being paid to the landlord, the pleadings of the parties remain operative. The suit is liable to go on if the pleadings raise triable issues. The payment has been made subject to the decision, namely, the findings. The payment of the unconditional deposit to the landlord is with prejudice to the parties' pleadings, i.e. the pleadings of both the parties are protected or safeguarded. By receiving payment of the unconditional deposit a land-lord does not compromise his pleadings. The payment of the deposit does not imply any admission by the land-lord of any part of the tenant's case. The same should be the tenant's fate. The making of the payment, tender or deposit cannot have any impact or effect on the tenant's pleadings. It is thus clear that the objection taken by the Defendant in the circumstances of the present case in his written-statement challenging the quantum of payment deposited by him which was claimed by the Plaintiff as arrears of rent, can not be taken to his prejudice and on this basis, it can not be held that the deposit was not unconditional and not made in accordance with law. 10. For the reasons given above, this revision application is allowed and the decree of the Court below ejecting the Defendants is set aside. The suit of the Plaintiff-Respondent for ejectment shall stand dismissed. In the circumstances costs shall be easy.