Sbeo Marti Gupta v. Ghoorey Lal — 1985 DIGILAW 956 (ALL)

JUDGMENT A.N. Dikshita, J. - The Petitioner has filed the instant petition Under Article 226 of the Constitution of India for quashing by means of certiorari the judgment and Order dated 24.05.1980 (Annexure: 11 to the writ petition) passed by District Judge, Allahabad. 2. In brief the facts are that the Petitioner is the owner and landlord of premises No. 260/17,Fura Baldi, Kydganj, Allahabad of which the Respondent No. 1 was tenant of a protein comprising of a Kothari on a monthly rent of Rs. 10/-. As the Respondent No. 1 failed to pay the rent since 01-08-1975 the Petitioner sent to him notice dated 29/31-03-1978 u/s 6 of Transfer of Property Act demanding arrears of rent and also determining the tenancy. The notice was served on Respondent No. 1 on 03-04-1978 but inspire of the service of the notice the Respondent No. 1 neither paid the rent to the Petitioner nor vacated the accommodation in suit. Consequently, the Petitioner filed a suit against the Respondent No. 1 claiming a decree of adjustment of the Respondent No. 1 from the portion in his occupation in the suit premises as well as for the recovery of the amount of rent due and damages for illegal use besides the costs of the suit. The suit was contested by the Respondent No. 1 on various grounds. 3. The trial court (Judge Small Causes Court, Allahabad) decreed the suit-vide judgment and Order dated 17-11-1979 for the recovery of amount to Rs. 350/- being the rent and also for adjustment of the Respondent No. 1 from the suit premises, besides payment of pendent elite and future damages. The trial court further allowed time to the Respondent No. 1 to vacate and deliver possession of the suit premises within a month to the Petitioner failing which he was liable to adjustment through the process of the court. 4. Aggrieved by the judgment and Order dated 17-11-1979 decreeing the suit the Respondent No 1 preferred a revision to the court of District Judge, Allahabad Respondent No. 2 who allowed the same-vide judgment and Order dated 24-05-1980. 5. The instant petition has been filed by the Petitioner Under Article 226 of the Constitution of India for quashing the judgment and Order dated 24-05-1980 passed by Respondent No. 2. 6. 5. The instant petition has been filed by the Petitioner Under Article 226 of the Constitution of India for quashing the judgment and Order dated 24-05-1980 passed by Respondent No. 2. 6. The controversy in the instant case would lie in a narrow compass as to whether the deposit made by the Respondent No. 1 in the court would be unconditional so as to entitle him to claim the benefit of Section 20(4) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Respondent No. 2 came to the conclusion that the deposits so made by the Respondent No. 1 was unconditional and would thus entitle him to the benefit of Section 20(4) of the Act. 7. Counsel for the parties have been heard. 8. Learned Counsel for the Petitioner has submitted that the Respondent No. 1 did not deposit the amount unconditionally as enjoined u/s 20(4) of the Act and was thus not entitled to claim benefit thereof. It has been urged on behalf of the Petitioner that Respondent No. 1 had denied the contract of tenancy between him and the Petitioner as the Respondent No. 1 acknowledges one Mahant Sant Das as his landlord but not the Petitioner. The trial court on the basis of the evidence produced before it came to the conclusion that Respondent No. 1 has not made an unconditional deposit of rent as contemplated u/s 20(4) of the Act and was thus not entitled to its benefit. A perusal of Para 15 of the written-statement filed by the Respondent No. 1 would also reveal that he had deposited the rent without prejudice to his right. This by itself would reveal that the deposit made by Respondent No. 1 was a conditional one. It has further been stated in this Para of the written-statement by Respondent No. 1 that in the circumstances he being the tenant of the Plaintiff (Petitioner) is not acceptable to him. It was further submitted by Respondent No. 1 in his statement on oath before the trial court had clearly stated that he has objection to the payment of rent so deposited by him and shall not be given to the Petitioner until he is found and held to be the owner of the disputed premises. It is not in dispute that the entire amount of rent, costs of the suit and interest were deposited by Respondent No. 1. It is not in dispute that the entire amount of rent, costs of the suit and interest were deposited by Respondent No. 1. The only point that remains to be considered is whether such deposit would be deemed to be conditional disentitling the Respondent No. 1 to claim the benefit of Section 20(4) of Act XIIT of 1972. The Respondent No. 1 while depositing the rent had denied the ownership of the Petitioner and was not amendable to payment of such an amount, deposited by him, being made to the Petitioner. Strings were attached by the Respondent No. 1 to the payment of the amount deposited by him to the Petitioner. It would thus be clear that the Respondent No. 1 had not made an unconditional deposit as contemplated by Sub-section (4) of Section 20 of the Act. The very intention of the deposit u/s 20(4) of the Act was thus frustrated when it was not made unconditional. The intention of the legislature was to protect tenants from unwarranted eviction on the mere premise that the tenant has committed default in payment of rent due to the landlord and to obviate such a hazardous ordeal Sub-clause (4) of Section 20 was enacted but with a clear intention that the tenant shall deposit the amount of rent, costs of the suit, interest etc. in the Court unconditionally so that it may be paid to the landlord Here the Respondent No. 1 advanced a condition that the rent shall be kept in deposit in the court and shall not be paid to the Petitioner till he is found to be the landlord. It is thus clear that Respondent No. 2 has not deposited the amount unconditionally. 9. Learned Counsel for the Respondent No. 1 placed reliance on the case of Smt. Inder Kaur Vs. Chandra Shekhar Trivedi, (1979) AWC 556 but it is of no avail to him. In that case the amount was deposited without attaching any pre-condition except the protest. By merely depositing the rent under protest no condition is imposed except that the person depositing the rent expressed his unwillingness to accept the case of the adversary. It was observed in the case Mangal Sen v. Kanchhid Mai 1981 AWC 618 by the Supreme Court that the unconditional deposit would only mean that it is liable to be paid to the landlord without attaching any condition thereto. It was observed in the case Mangal Sen v. Kanchhid Mai 1981 AWC 618 by the Supreme Court that the unconditional deposit would only mean that it is liable to be paid to the landlord without attaching any condition thereto. In the case of a conditional deposit it would mean that till the fulfillment of such condition the amount shall continue in deposit and not liable to be paid to the landlord. By mere protest it was held the amount deposited would not become conditional. As discussed above m the instant case the amount was deposited by Respondent No. 1 with a condition and was thus not entitled to protection of Sub-section (4) of Section 20 of the Act. The counsel for the Petitioner has successfully distinguished the law as laid down in the case of Smt. Inder Kaur v. C.S. Trivedi. In this case the tenant had deposited the amount unconditionally (sic) under protest. Unconditional payment means that the amount can be paid to landlord without any pre-condition being attached thereto. A mere protest is only to decry the case of the adversary but this authority is of no avail to Respondent No. 1 when he had stubbornly resisted the payment of the amount so deposited by him to the Petitioner. The Respondent No. 2 failed to appreciate this aspect of the case and allowed the revision on the basis of the view as laid down in Smt. Inder Kaur v. C.S, Trivedi. The Supreme Court in the case of Mangal Sen v. Kanchhid Mai 1981 AWC 618 while examining the controversy held that the provisions of Sub-section (4) of Section 20 will get attracted only when the ternate has at the first hearing of the suit unconditionally paid or tendered to the landlord the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting there from any amount already deposited by him Under Sub-section (11) of Section 30. There is ample material on record to show that the alleged deposit was made by way of a conditional tender for payment to the landlord. There is ample material on record to show that the alleged deposit was made by way of a conditional tender for payment to the landlord. It is thus clear that the Respondent no I having not complied with the provisions of Section 20(4) of the Act was not entitled to its benefit. 10. In view of the above discussions this petition deserves to be allowed and the findings of the Respondent No. 2 which are based on erroneous assumption of law deserve to be quashed. 11. In the result the petition is allowed with costs. The judgment and Order alit vine the revision dated 24-05-1980 passed by the District Judge, Allahabad, Respondent No. 2 are set aside and the judgment and order passed by the learned Judge Small Cause Court, Allahabad are restored.