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1985 DIGILAW 587 (ALL)

Gyanendra Lal v. Bishun Narain Misra

1985-05-20

KAMLESHWAR NATH

body1985
JUDGMENT Kamleshwar Nath, J. - This writ petition, under Article 226 of the Constitution of India, is for a Writ of Certiorari to quash judgment and order dated 1121983, contained in Annexure 3 to the writ petition, passed by learned Additional District Judge (Special Judge), Lucknow, in a proceeding under Order 15 Rule 5 CPC. 2. The petitioners are landlords of a house in which opposite party no. 1, Bishun Narain Misra is a tenant. The former served a composite notice of ejectment and demand of arrears of rent, under Section 106 Transfer of Property Act and under Section 20(2) (a) of The U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972) (For short, the Act), on the opposite party no. 1 on 25111980. Ultimately, suit for ejectment and arrears of rent was filed by the petitioners against opposite party no. 1 in the Court of Judge, Small Causes, Lucknow. Summons were issued on 341981 fixing 751981 for filing written statement, but the date was adjourned to 3051981 on the request of opposite party no. 1. On the adjourned date, the opposite party no. 1 filed a written statement and stated, inter alia, that he had deposited the entire rent for the period from 1531979 to 1451981 in the Court of Munsif North, Lucknow, in Misc. Case No. 193 of 1979 because the plaintiffs in the first instance refused the tender of rent and subsequently refused the rent sent by money order. The petitioners then applied for striking off the defence of opposite party no. 1 under Order 15 Rule 5 CPC. The only point which was agitated on behalf of the petitioner, before the Judge, Small Causes, in that connection, was that the deposit of rent should have been made in his court and not under Section 30 of the Act in the Court of Munsif, North, Lucknow, and, therefore, there was no deposit in accordance with law. The contention, on behalf of the opposite party no. 1, was that the deposit made in the Court of Munsif is within the scope of the provisions of Order 15 rule 5 CPC and, therefore, it was a deposit according to law. 3. Learned Judge, Small Causes. Lucknow. accepted the contention on behalf of the petitioners and struck off the defence. 1, was that the deposit made in the Court of Munsif is within the scope of the provisions of Order 15 rule 5 CPC and, therefore, it was a deposit according to law. 3. Learned Judge, Small Causes. Lucknow. accepted the contention on behalf of the petitioners and struck off the defence. Thereafter, he relied upon the evidence led by the petitioners on various issues framed in the suit, ignored the evidence produced on behalf of opposite party no. I. and decreed the suit for ejectment and arrears of rent. 4. In the revision before the Court of Additional District Judge. Lucknow, the contention on behalf of the petitioners was not accepted and relying upon the decision in the case of Munni Lal v. The Ilnd Addl. District Judge, Ghazipur, and others, (1980 All Rent Cases 544) it was held that the deposit made in the Court of Munsif was to be taken into consideration for the purposes of deposit under Order 15 rule 5 CPC. The finding of the Judge Small Causes Court, striking off the defence, was set aside and the case was remanded to the Judge Small Causes Court for disposal on merits. 5. Learned counsel for the petitioners contends that the expression "in any suit by a lessor" in subrule (1) of Order 15 rule 5 CPC would signify that the deposit must be made in the court where the suit itself is pending i.e., in the Court of Judge Small Causes, and that the view of the Addl. District Judge being contrary, is erroneous. It is not possible to accept the contention for two reasons. 6. Firstly, learned counsel for the petitioners has not been able to show that the decision in the case of Munni Lal v. The Ilnd Addl. District Judge, Ghazipur, (Supra) did not support the view adopted by the learned Additional District Judge. The learned Judge has referred to Para 12 of the report, whose relevant portion is extracted as follows : "In my judgment all such sums of money which the tenant is required or permitted by or under a statute to deposit in any court or with any authority towards arrears of rent can be taken into consideration on proof of the fact that the deposits were lawfully made. The clear import is that the amount deposited under Section 30 of the Act in the Court of Munsif, as the amount of rent payable by the tenantopposite party no. 1 to the landlord petitioners, has to be taken into consideration for the purposes of determining whether compliance of Order 15 rule 5 CPC has been done or not. It is clear enough that under Section 30(1) of the Act, a person claiming to be a tenant may deposit any amount as rent in the Court of Munsif having jurisdiction, if the landlord refuses to accept the same. The notice of demand of rent had been served on 25111980; the suit was filed sometime in the year 1981. Section 20(2)(a) of the Act obliges a tenant to pay the rent to the landlord within one month from the date of service upon him of a notice of demand. If the landlord refused to accept the rent, when tendered by the tenant, the only forum available to the tenant for depositing the rent, in order to save the mischief of Section 20(2) (a) of the Act, was to deposit the amount in the court of concerned Munsif at least till service of summons upon him of the suit filed by the landlord. If the deposit thus made in the Court of Munsif is not given credit to for the purposes of deposit under Order 15 Rule 5 CPC, the tenant would have to make a double deposit, namely, to make a deposit over again of the amount already deposited under Section 30 of the Act. That could not be the intention of the Legislature in enacting the provision of Order 15 rule 5 CPC. The object thereof was to ensure the deposit of the rent to the landlord and not merely to provide a penalty against the tenant. It appears to me that it would be contrary to the object of the rule if the expression "in any suit" in subrule (1) thereof was so strictly to be construed as to signify the proceedings of the particular suit alone and not the ancillary proceeding under Section 30 of the Act. 7. It will also be appreciated that once the landlord refuses to accept rent, the right of the tenant, under Section 30(1) of the Act, to deposit the amount in the Court of Munsif, accrues. 7. It will also be appreciated that once the landlord refuses to accept rent, the right of the tenant, under Section 30(1) of the Act, to deposit the amount in the Court of Munsif, accrues. This right must continue unless it is forbidden, expressly or by necessary implication, by any other statutory provision. The provisions of Order 15 rule 5 CPC cannot be interpreted to, expressly or by necessary implication, curtail operation of the provisions of Section (l) of the Act. The result would be that from the time of the filing of a suit by the lessor against the lessee, there would be two courses open to the tenant, namely, either to deposit the amount under Section 30(1) of the Act or to deposit it in the court where the ejectment suit is pending under Order 15 rule 5 CPC. This option necessarily belongs to the tenant and if he opts in favour of one of these, he does not commit any illegality or impropriety. He is certainly entitled to the benefit of the deposit made under Section 30(1) of the Act, not only during the period prior 10 the institution of the suit for ejectment, but also during the subsequent period. 8. Learned counsel for the petitioners then contended that the deposit under Section 30 of the Act was not lawful because the landlord had not refused to accept the rent which, indeed, had never been tendered to them. He further contends that the tenant did not pay water tax which was liable to be paid as rent, and in that sense also the amount deposited was inadequate. 9. The pleading of the tenant in these respects was that he had tendered the amount in the first instance which the landlord refused and thereafter he sent the rent by money order, which again the landlord refused and, therefore, he deposited the rent under Section 30 of the Act. It was also urged that by agreement between the parties, water tax was already included in the agreed monthly rent of Rs. 50/. 10. The important aspect, for the purposes of this writ petition, is that these points had not been raised, either before the trial court or before the revisional court, and cannot be permitted to be raised for the first time in this writ petition. 50/. 10. The important aspect, for the purposes of this writ petition, is that these points had not been raised, either before the trial court or before the revisional court, and cannot be permitted to be raised for the first time in this writ petition. The matter rests upon findings of fact which can be recorded only after both the parties had entered evidence and the same is assessed and appreciated for the purpose. It is a different matter that on the merits of the case these points would still be available to the petitioners to be agitated to make out that the Opposite Party no. 1 had made a default in payment of rent as contemplated by Section 20(2) (a) of the Act, inasmuch as he unlawfully deposited the amount of rent under Section 30 of the Act and did not pay so much of the rent as was in the form of water tax. There is no doubt that if these points had been urged before the trial court, they would have been considerd and discussed in the light of evidence of both the parties before striking off the defence. On the face of it, these points had not been raised for the purposes they cannot be permitted to be raised in this writ petition. 11. In view of what has been stated above, this writ petition is not fit to be admitted and is dismissed in limine, (Petition dismissed.)