Mridnla Dayal v. VI Additional District Judge — 1986 DIGILAW 81 (ALL)

JUDGMENT H.N. Setb, A.C.J. 1. Petitioner Smt. Mridula Dayal is the landlady of House No. 34/4, Jawahar Lal Nehru Road, Allahabad. Lt. Col. S.S. Rai (Retd), Respondent No. 4, was the tenant of the said accommodation on payment of Rs. 150/- per month as rent. Petitioner served a notice on Respondent No. 4 determining his tenancy and filed suit No. 277 of 1980 in the court of Judge Small Causes seeking his eviction on the ground that he had defaulted in payment of rent. She also claimed a decree for arrears of rent and damages for use and occupation of the premises. 2. Respondent No. 4 contested the suit and made an application claiming that inasmuch as he had, before the first date of hearing of the suit, deposited the entire amount of rent and damages for use and occupation of the premises together with requisite interest and cost, partly in proceedings u/s 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and partly in the court, he was, as, provided by Section 20(4) of the Act, entitled to be relieved of his liability for eviction on ground of committing default in payment of rent. 3. Petitioner objected to the claim made by Respondent No. 4 (hereinafter referred to as the Respondent) and urged that in the circumstances of the case, the deposit purported to have been made by the Respondent in proceedings u/s 30 of the Act were not valid and as such they could not be taken into account in relieving him of his liability for eviction on grounds of committing default in payment of rent. She also objected that as the Respondent had failed to deposit the entire amount of interest due from him, the relief claimed by him could not be countenanced. 4. After considering the submission made by the parties, the trial court came to the conclusion that the amounts deposited by the Respondent in proceedings u/s 30 of the Act, as also that tendered by him in court, were in order, and he was entitled to the relief claimed by him u/s 20(4) of the Act. Accordingly, the court, vides its Order, dated 24th on March, 1982, directed that the Respondent be relieved of his liability for eviction and dismissed the Plaintiff's suit for his adjustment. Accordingly, the court, vides its Order, dated 24th on March, 1982, directed that the Respondent be relieved of his liability for eviction and dismissed the Plaintiff's suit for his adjustment. The Plaintiff was, however, permitted to withdraw and appropriate the amounts deposited by the Respondent. 5. Aggrieved, the Plaintiff went up is revision before the District Judge, Allahabad. The revision application was heard by VI Addl. District Judge, Allahabad who dismissed the same with the observation that the judgment of the trial court did not appear to suffer from any error of law or of jurisdiction. The Plaintiff then filed the present petition seeking relief Under Article 226 of the Constitution. 6. Learned Counsel appearing for the Petitioner contended that in the circumstances of the case the Respondent (tenant) was not entitled to make the deposits in proceeding u/s 30 of the Act. The deposits made by the Respondent in proceedings u/s 30 of the Act being invalid, they could not be taken into account for purposes of claiming relief u/s 20(4) of the Act. In support of his submission, he relied upon two decisions of this Court in the cases of Satish Chandra Nigam v. The District Judge, Kanpur 1984 (2) ARC 324 and Mohd. Shamim Hashmi v. Addl. District Judge, Allahabad 1980 ALJ 251 which according to him laid down that only such deposits which had been validly made u/s 30 of the Act which could for purposes of Section 20(4) of the Act, be taken into consideration. The contention of learned Counsel for the Defendant, on the other hand was, that for purposes of Claiming benefit u/s 20(4) of the Act even an invalid deposit made u/s 30 of the Act could be taken into consideration. In support of his submission, he relied upon a decision of this Court in the case of Ram Das Vs. The V Additional District Judge and Others, (1985) AWC 856 which according to him ruled that even an invalid deposit made u/s 30 of the Act ensured for claiming the benefit of Section 20(4) of the Act. In support of his submission, he relied upon a decision of this Court in the case of Ram Das Vs. The V Additional District Judge and Others, (1985) AWC 856 which according to him ruled that even an invalid deposit made u/s 30 of the Act ensured for claiming the benefit of Section 20(4) of the Act. Learned single Judge hearing the writ petition, therefore, felt that it would, in the circumstances of the case, be appropriate to obtain the opinion of a larger Bench on following question: Whether a tenant can claim deduction of invalid deposit made u/s 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for taking advantage of Sub-section (4) of Section 20 of the said Act. 7. Section 20(1) of the Act inhibits the right of a landlord to file a suit for eviction of a tenant on one or more of the grounds enumerated in Sub-section (2) thereof. According to this Sub-section, one such ground available to the landlord for filing a suit for eviction of a tenant after determination of his tenancy, as enumerated in clause of Sub-section (2) of Section 20 is, that the tenant is in arrears of rent for not less than four months and he has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Sub-section (4) of Section 20 provides that in any suit for eviction on the aforesaid ground, if at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord or deposits in court the entire amount of rest and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of 9% per annum and landlord's costs of the suit in respect thereof, after deducting there from any amount already deposited by the tenant Under Sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground pass an order relieving the tenant against his liability for eviction on that ground. 8. 8. Sub-section (1) of Section 30 provides that if any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refused to accept the same then the former may deposit such amount in the prescribed manner and continue in deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. Sub-section(6) of Section 30 then creates a legal fiction where under the amount so deposited shall be deemed to have been paid to the person in whose favor it had beta deposited. 9. The rationale behind the provision contained in Section 20(4) of the Act permitting the tenant to deduct the amount deposited by him Under Sub-section (l) of Section 30 from out of the rent, interest and cost payable by him is to be found in Sub-section (6) of Section 30 which creates a fiction to the effect that deposits made Under Sub-section (1) of Section 30 are deemed to be payments made to the concerned person. The fiction under Sub-section (6) of Section 30 arises where the deposits have been made by the tenant in the circumstances enumerated in Sub-section (1) or Sub-section (2) of Section 30 and (not) otherwise. Sub-section (1) of Section 30 countenances deposits being made by a person in the prescribed manner- (i) if such person claims to be a tenant of the building. (ii) he tenders any amount as rent in respect of that building to the alleged landlord and (iii) the alleged landlord refused to accept the same. The section envisages that there may be a controversy between the person claiming to be a tenant and the person whom he alleged to be his landlord with regards either to their relationship of being landlord and tenant or about the rate of rent payable by the person claiming to be the tenant or even about the actual amount of rent may due from such person. The person alleging himself to be the tenant can deposit the amount which was tendered by him as rent to the person whom he claims to be his landlord, and such person had refused to accept the same irrespective of whether the refusal of the landlord in accepting the said amount was justified or not. Any deposit so made by the person claiming to be a tenant is, as laid down in Sub-section (6) of Section 30 deemed to be the amount of rent paid to be the person in whose favor it had been made. Accordingly whenever a question regarding extent of the amount of rent paid to the landlord arises, the amount deposited in accordance with the provisions of Sub-section (1) of Section 30 of the Act has to be taken into consideration and accounted for. The fiction does not come into play where the deposit has been made by a person in circumstances not covered by Sub-section (1) of Section 30 (we are omitting from consideration the provisions of Sub-section (2) of Section 30 as they are not relevant for our purposes). 10. Coming now to the question referred to us for opinion, we find that we are called upon to decide whether an invalid deposit made u/s 30 of the Act can be taken into account for claiming advantage of Sub-section (4) of Section 20 of the same. The expression ' invalid deposit made u/s 30 of the Act "appears to be incongruous. If the deposit has been made in circumstances covered by Sub-section (1) of Section 30 and in the prescribed manner, it would be a valid deposit made under that provision, and it obviously would ensure towards claiming of benefit of Sub-section (4) of Section 20 if, on the other hand, the deposit has either not been made in the circumstances contemplated by Sub-section (1) of Section 30 or not in the prescribed manner, it is not a deposit Under Sub-section (1) of Section 30 at all and no question of taking such deposit into consideration while considering the question whether or not the person claiming to be a tenant is entitled to be relieved of his liability as laid down in Section 20(4) of the Act would arise. In the context the expression ' invalid deposit made u/s 30 of the Act ' used in the question referred to us for opinion does not appear to be happy. 11. We take it that while using the said expression what the learned Judge meant was as to whether a deposit purporting to have been made u/s 30, in circumstances other than those enumerated therein, can be taken advantage of for purposes of Sub-section (4) of Section 20 of the Act. If that be so, we have no hesitation in saying that a deposit made by a tenant in circumstances not contemplated Under Sub-section (1) of Section 30 cannot be deemed to be payment made to the landlord as provided by Sub-section (6) of Section 30, consequently it cannot be taken, advantage of for claiming benefit of Sub-section (4) of Section 20 of the Act. 12. If, however, by using the words ' invalid deposit made u/s 30 of the Act ' in the question referred, the learned Judge meant to convey a deposit which otherwise complied with the conditions laid down in Sub-section (1) of Section 30 but then the landlord was, for some reason justified in refusing to accept the same, our answer would be that despite the validity or justification for such refusal by the landlord, such deposit would still be available to the alleged tenant for taking advantage of Sub-Section 14) of Section 20 of the Act. In Satish Chandra Nigam v. The District Judge, Kanpur 1984 (2) ARC 324, a learned single Judge observed thus: So far as the rent is concerned, the Petitioner's case was that as he had deposited rent u/s 30 of the U.P. Act No. XM of l972 on 02.07.1977, the same was required to be taken into account for conferring upon him the benefit of Section 20(4). u/s 30 deposit of lent can be made by a tenant only when the landlord has refused to accept the rent offered to him. In the instant case, the two courts concurrently found that the Plaintiff landlords were justified in refusing to accept the money order of Rs. 340/-. Refusal was held mystified as the same was remitted after one month of service to notice of demand effected on the Petitioner on 03.03-1977. In the instant case, the two courts concurrently found that the Plaintiff landlords were justified in refusing to accept the money order of Rs. 340/-. Refusal was held mystified as the same was remitted after one month of service to notice of demand effected on the Petitioner on 03.03-1977. Refusal in the circumstances, a fly justified and the Petitioner could not avail Section 30 for depositing the amount on 02.07.1977. As his amount also cannot be considered as valid deposit, the courts below rightly ignored the same. 13. We have no quarrel with the proposition that u/s 30 deposit of rent can be made by a tenant only when the landlord has refused to accept the amount offered to him as rent, but then we are not able to subscribe to the view that in a case where the landlord refuses to accept the same and the refusal was, in the circumstances, justified, the person claiming to be the tenant cannot deposit the same u/s 30(1) and that such deposit would be invalid and would not enuretor the purposes of Sub-section (4) of Section 20. 14. In the case of Mohd. Shamim Hashmi v. Addl. District Judge, Allahabad 1980 ALJ 251 it was ruled that where a tenant who has been served with a notice u/s 20(2) demanding rent and he does not send the rent to the landlord within one month of the date of service upon him of the notice of demand, he becomes defaulter and the inhibition contained in Section 20 restricting the right of the landlord to file a suit for his adjustment would disappear and any deposit made by him u/s 30 of the Act thereafter would be of no consequence and would not affect the right of the landlord to file the suit for his adjustment. Again we have no quarrel with the said proposition. However, the learned Judge thereafter went on to observe that as in that case the entire amount had not been deposited or paid before the date of first hearing, the tenant was not entitled to claim any relief u/s 20(4) of the Act. Again we have no quarrel with the said proposition. However, the learned Judge thereafter went on to observe that as in that case the entire amount had not been deposited or paid before the date of first hearing, the tenant was not entitled to claim any relief u/s 20(4) of the Act. This case is no authority for the proposition that where a person claims to be a tenant of the building tenders any amount as rent in respect of the said building and the landlord refused to accept the same for some justifiable reason, the same cannot be taken into account in considering the relief claimed by him u/s 20(4) of the Act. 15 In the course of delivering judgment in the case of Ram Das Vs. The V Additional District Judge and Others, (1985) AWC 856 a learned Judge of this Court observed thus: It has been held in the case of Ram Gopal and Others Vs. Hari Shanker, (1985) AWC 210 that the deposit made by the tenant in the Court would entitle him to be absolved of his liability to eviction. In the case of Ram Gopal v. Had Shanker (supra) it was further held that even if the deposits were illegal even then the same were not required to be deposited again and were adjustable. The tenant was entitled to claim the Benetton such deposit. 16 A perusal of the said judgment indicates that the learned Judge had come to the conclusion that the deposit in question had been made in accordance with the provisions of Section 30(1) of the Act and that the tenant was entitled to claim the benefit of such deposits while seeking relief u/s 20(4) of the Act. However, as it was being alleged that the deposit was invalid, the learned Judge, without going into that question, relied upon the case of Ram Gopal (supra) and held that that even if that was so, the tenant was entitled to claim the benefit of Sub-section (4) of Section 20 of the Act. 17. We have carefully perused the judgment of this Court in Ram Gopal's case (supra) relied upon for supporting the proposition that for purposes of claiming benefit u/s 20(4) of the Act, the tenant would be entitled to rely even on invalid deposits made by him u/s 30 of the Act. 17. We have carefully perused the judgment of this Court in Ram Gopal's case (supra) relied upon for supporting the proposition that for purposes of claiming benefit u/s 20(4) of the Act, the tenant would be entitled to rely even on invalid deposits made by him u/s 30 of the Act. In that case following question of law was referred by a learned single Judge for decision by a Division Bench: Whether the deposit made u/s 7C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, could be adjusted u/s 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inspire of the finding that the provisions of U.P. (Temporary) Control of Rent and Eviction Act, 1947, were not applicable to the accommodation and the deposits were illegal? 18. While considering the aforesaid question, the Court was required to interpret the ambit of expression "the entire amount of rent and damages for use and occupation "appearing in Section 39 of the Act and in this connection, it observed thus: The expression "the entire amount of rent and damages for use and occupation " denotes in our opinion such amount as is under the law due to the landlord This necessarily leaves out such amount of rent or damages for use and occupation as has been paid before the commencement of the Act. 1972 or duly tendered and is kept in deposit in some court or other authority and has been appropriated to the credit of or made available to the landlord by some direction of court or otherwise. Whatever has thus been paid/tendered and deposited ceases to be payable further by the tenant and, therefore, it need not be deposited over again. It depends on such facts of a case whether there has such payment/tender and deposit covered under a direction of the court been made or not. 19. Whatever has thus been paid/tendered and deposited ceases to be payable further by the tenant and, therefore, it need not be deposited over again. It depends on such facts of a case whether there has such payment/tender and deposit covered under a direction of the court been made or not. 19. Eventually the court concluded that the question referred to it had to be answered in the negative but with the qualification that in case the court found that under some order or direction of the court below attaining finality the amount deposited had become adjustable towards the rent before the commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in relation to the building in dispute, the same would not be required to be adjusted over again in order to enable the tenant to obtain the benefit of Section 40 read with Section 39 of the Act. What the Court really held was that an illegal deposit maser u/s 7C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 could not be taken into account for the purposes of adjustment u/s 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, but then if because of some orders of the court or otherwise any deposit whether legal or illegal had become adjustable towards the rent, it amounted to payment of a part of rent to the landlord, and to that extent the rent ceased to be due to the landlord and as such the tenant would, for claiming the benefit of Section 40 read with Section 39 of the Act, not be required to deposit the same over again. This is something very different from saying that an illegal deposit made u/s 7-C which in fact did not result in reducing the rent liability of the tenant could be taken into account and could be adjusted towards the rent due to the landlord. 20 We are accordingly of opinion that the case of Ram Gopal v. Hari Shanker (supra) does not support the proposition that for claiming benefit u/s 20(4) of the Act, the tenant is entitled to claim adjustment even in respect of illegal deposits made by him u/s 30(1) of the Act. 21. 20 We are accordingly of opinion that the case of Ram Gopal v. Hari Shanker (supra) does not support the proposition that for claiming benefit u/s 20(4) of the Act, the tenant is entitled to claim adjustment even in respect of illegal deposits made by him u/s 30(1) of the Act. 21. During the course of arguments, large number of points was canvassed by the counsel for the Petitioner in support of his submission that various deposits made by the tenant by virtue of which he claimed the benefit of Sub-section (4) of Section 20 of the Act were illegal. These submissions, in our opinion, fell outside the ambit and scope of the question referred to us and as such we have refrained from formulating those submissions and express our opinion thereon. 22. In the result, the question referred to us is, subject to above discussion, answered in the negative. 23. Let the opinion expressed by us to be laid before the concerned Bench so that it may proceed to dispose of the petition in accordance with law.