Badi Uzzaman v. District Judge, Kanpur — 1986 DIGILAW 912 (ALL)

Judgment S.D. Agarwala, J. 1. THIS is a petition under Article 226 of the Constitution of India arising out of suit No. 1137 of 1980 filed in the court of Judge Small Causes, Kanpur for ejectment and arrears of rent and damages for use and occupation by the respondent No. 2 Mushtaq Ahmad against the petitioner, Badiuzzaman. The landlord, respondent No. 3 sent a notice of demand and termination of the tenancy of the petitioner which was alleged to be dated 1st of February, 1980. By this notice arrears of rent for the period of 1st August, 1979 to 31st March, 1980 were demanded. The suit had been filed on the allegations that the property in dispute did not come under the purview of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act XIII of 1972, hereinafter referred to as the Act. 2. THE suit was contested by the petitioner tenant on the ground that the building in dispute was covered by the provisions of the Act. THE service and the validity of the notice terminating his tenancy was also questioned. It was also urged that the tenant was not a defaulter in the eye of law and ultimately it was claimed that he was entitled to the benefit of Section 39 of the Act. The trial court after examining the evidence on the record came to the conclusion that the construction of the building in question was completed on April 1, 1973 and as such it came within the operation of the Act on completion of ten years, i. e. on 1-4-1983. The trial court further found that the petitioner-tenant had not deposited the amount as required by Section 39 of the Act and as such he was not entitled to the benefit of Section 39 of the Act. In regard to the validity of the notice the trial court found the notice to be valid. It also found that the notice was duly served on the tenant. In view of the above findings the trial court decreed the suit by judgment dated 11th January, 1985. Aggrieved by the said decision the petitioner filed a revision under Section 25 of the Small Causes Courts Act. The revision was dismissed by the revisional court on 10th March, 1986. The revisional court affirmed the finding recorded by the trial court. 3. Aggrieved by the said decision the petitioner filed a revision under Section 25 of the Small Causes Courts Act. The revision was dismissed by the revisional court on 10th March, 1986. The revisional court affirmed the finding recorded by the trial court. 3. AFTER the revisional court passsed the order dismissing the revision, the petitioner moved an application for review of the judgment dated 10th March, 1986. This review application has also been dismissed by an order dated 22-3-1986. The petitioner has now challenged all the three orders dated 11th January, 1985, 10th March, 1986 and 22nd March, 1986 by means of tne present petition. 4. I have heard the learned counsel for the parties. Learned counsel for the petitioner has contended that the amount deposited by the petitioner under Section 17 of the Provincial Small Causes Courts Act was liable to be adjusted towards the amount to be deposited under Section 39 of the Act and as such the petitioner was entitled to the benefit of Section 39 of the Act. The view to the contrary taken by the courts below is manifestly erroneous. 5. LEARNED counsel for the respondent-landlord has, however, urged that the amount deposited under Section 17 of the Provincial Small Cause Courts Act is only by way of a security and could not be considered for the purposes of a deposit to be made under Section 39 of the Act. LEARNED Counsel for the respondent in order to support the ultimate judgment given by the revisional court has further urged that in any case even if the amount deposited under Section 17 of the Act is adjusted, then too the deposit made by the petitioner under Section 30 of the Act could not have been adjusted towards the deposit to be made under Section 39 of the Act and the revisional court's view to the contrary to this extent is manifestly erroneous. If the deposit under Section 30 of the Act is excluded, then too the ultimate order passed by the revisional court affirming the decree for ejectment is a valid order and needs no interference by this court. 6. THE question whether an amount deposited under Section 17 of the Provincial Small Cause Courts Act can be adjusted towards the deposit to be made under Section 39 of the Act, will be considered by me subsequently. 6. THE question whether an amount deposited under Section 17 of the Provincial Small Cause Courts Act can be adjusted towards the deposit to be made under Section 39 of the Act, will be considered by me subsequently. I will first consider the question in regard to the validity of the deposit made under Section 30 of the Act because admittedly if the deposit under Section 30 of the Act cannot be adjusted as a valid deposit under Section 39 of the Act, then the provisions of Section 39 of the Act could not be said to have been complied with in the present case. It has been now found by both the trial court as well as the revisional court that the Act became applicable to the property in question on 1-4-1983. It is also not disputed that an application under Section 30 (1) of the Act was made by the petitioner on 2nd December, 1979 and by an order dated 1st November, 1980 the Munsif City, Kanpur disposed of the application and permitted the petitioner to deposit the amount of rent. The question which has been raised by the learned counsel for the respondent-landlord is that the deposit made prior to the coming into force of the Act in respect of the building could not be adjusted towards the payment of rent as required by Section 39 of the Act. In this connection, it is relevant to mention the details of the proceedings under Section 30 of the Act. 7. ON 2nd December, 1979, the petitioner moved an application under Section 30 (1) of the Act stating therein that the petitioner tendred the rent to the landlord which was refused acceptance. Thereafter the rent was remitted by money order which was also refused acceptance and hence it was stated that the application was made under Section 30 (1) of the Act. It is to be noted here that in this application the petitioner did not state that the Act is applicable to the property in question nor it was stated in the affidavit which was filed in support of the application. The Munsif City, Kanpur before whom the application had been moved passed the following order on 1-11-1980 :- "Case called out. Learned counsel for the parties are present. Heard them on the application and objection. The Munsif City, Kanpur before whom the application had been moved passed the following order on 1-11-1980 :- "Case called out. Learned counsel for the parties are present. Heard them on the application and objection. Learned counsel for the opposite party submitted that the applicant has not deposed in his affidavit that the building is covered under the Rent Control Act. In the circumstances, the application under Section 30 of Act No. XIII of 1972 is allowed subject to the objection of O. P. Applicant is permitted to continue to deposit the rent in future in court subject to the objection of O. P. at his own risk and without prejudice to the rights of P.P. P.P. may withdraw the amount of deposit on proper application. Application is disposed of accordingly." 8. IT would be apparent from the order dated 1st November, 1980 that the Munsif had only allowed the application at the risk of the petitioner and without prejudice to the rights of the opposite party. In Prem Chand v. District Judge, Ghazipur, 1985 AWC 414 Hon'ble H. N. Seth, J. (as he then was) took the view that if a deposit is made under Section 30 of the Act during the period when the Act was not applicable to the building, the said deposit cannot be taken into account while giving benefit of Section 39 as the said deposit would be without jurisdiction. In this case also the munsif had permitted the deposit at the own risk of the tenant. The relevant portion of the judgment is quoted below :- "The revisional Court has found that the premises in question was constructed some time in the end of April, 1974. Accordingly, prior to that, the premises in question fell out side the purview of the Act and any deposit purported to have been made by the tenant under Section 30 of the Act before April, 1984 would be without jurisdiction. Learned counsel for the petitioners admitted that from out of sum of Rs. 2,040 a sum of Rs. 1,445 had been deposited by him prior to 1-4-1984. That much amount, therefore, was deposited at a time when Section 30 of the Act was not applicable to the accommodation in question and as such it cannot be treated either as deposit or payment of rent made under Section 30 of the Act. 2,040 a sum of Rs. 1,445 had been deposited by him prior to 1-4-1984. That much amount, therefore, was deposited at a time when Section 30 of the Act was not applicable to the accommodation in question and as such it cannot be treated either as deposit or payment of rent made under Section 30 of the Act. IT certainly was not, as contemplated by Section 39 of the Act, a deposit made in the court before which the suit for eviction was pending. Once this amount of Rs.1,445 is ignored it becomes clear that the entire rent that was due from the tenant upto the date on which the Act became applicable to the accommodation in question did not stand deposit within one month of the relevant date." In Smt. Mirdula Dayal v. Vlth Additional District Judge, 1986 AWC 695 the Division Bench had an occasion to consider the following question :- "Whether a tenant can claim deduction to invalid deposit made under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for taking advantage of sub-section (4) to Section 20 of the said Act." 9. THE Bench answered this question in negative, distinguished the case of Ram Gopal v. Hari Shanker, 1985 (1) ARC page 305 and held that the tenant is not entitled to claim adjustment in respect of illegal deposits made by him under Section 30 (1) of the Act. THE principle laid down in the case of Smt. Mirdula Dayal (supra) fully applies to the instant case also. Section 30 of the Act is quoted below :- "Deposit of rent in court in certain circumstances.-(1) 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 refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to 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. (2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building. (3) THE deposit referred to in sub-section (1), or sub-section (2) shall be made in the Court of the Munsif having jurisdiction. (4) On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf. (5) On a deposit being made under sub-section (2), the court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent court or by a settlement between the parties, and the same shall be payable to such person. (6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2)." 10. SECTION 1 of the Act prescribes the area to which the Act would be applicable. SECTION 2 of the Act enumerates the buildings which will be exempt from the operation of the Act. SECTION 2 (2) specifically provides that except as provided in sub-section (5) of SECTION 12 of sub-section (1-A) of SECTION 21, sub-section (2) of SECTION 24, SECTION 24-A, 24-B and 24-C or sub-section (3) of SECTION 29 nothing in this Act shall apply to a building during the period of ten years from the date on which this construction is completed. In view of this sub-section (2) no provision of the Act would be applicable to a building during a period of ten years from the date on which its construction is completed. To such a building the provisions of SECTION 30 of the Act would not apply. Section 30 (1) of the Act applies to a case of a person who claims to be a tenant of a building. The building has to be such to which the provisions of the Act would apply. It cannot possibly apply to a person who is tenant of a building to which the Act does not apply. It is when the Act becomes applicable to a building that the provisions of Section 30 of the Act also become applicable. If prior to the applicability of the Act to a building the tenant goes on depositing the amount under Section 30 (1) of the Act, he cannot possibly take the benefit of deposit made under Section 30 (1) of the Act, or claim its adjustment as required by other provisions of the Act. This possibly could not have been the intention of the legislature. If a person goes on depositing the rent under Section 30 of the Act in order to harass the landlord though the Act does not apply at all, he cannot lateron be permitted to say that though the Act was not applicable, he should be given the benefit of the said deposit. The deposit under Section 30 of the Act has to be a valid deposit in order to entitle the tenant to all the benefits which are laid down under Section 30 of the Act. In the instant case as I have already quoted above, the Munsif before whom the application under Section 30 of the Act was made, made it clear that the amount so deposited shall be deposited by the tenant at his own risk and without prejudice to the rights of the opposite party. In the circumstances, the petitioner cannot claim the benefit of the amount deposited under Sec. 30 of the Act prior to the date of applicability of the Act to the building in question. 11. THE revisional court has relied upon a decision on the case of Ram Gopal v. Hari Shanker, 1985 AWC 210. This decision as already stated above was distinguished in the case of Smt. Mridula Dayal (supra). 11. THE revisional court has relied upon a decision on the case of Ram Gopal v. Hari Shanker, 1985 AWC 210. This decision as already stated above was distinguished in the case of Smt. Mridula Dayal (supra). In fact this was a case where the question was about the deposit made under Section 7-C of U. P. Act III of 1947. In that case the deposit had not been made prior to the applicability of 1947 Act to the building in question and as such the principle laid down in Ram Gopal's case could not apply to the present case. 12. LEARNED counsel for the petitioner has relied upon a very recent decision of the Division Bench in Param Sukh v. Ill Additional District Judge, 1986 AWC 887. In this case also the Division Bench was not called upon to consider the question as to what is the effect of a deposit made before the Act became applicable to the building in question and as such this case does not help the petitioner at all. I fully agree with the view taken by the Hon'ble H. N. Seth, J. (as he then was) in the case of Prem Chand (supra). Recently the Supreme Court of India had an occasion to consider the scope of Section 30 of the Act in Kameshwar Singh Srivastava v. IV Addl. District Judge, Lucknow, in Civil Appeal No. 203 of 1986 decided on 14th November, 1986-See 1987 AWC 91. Hon'ble Mr. Justice K. N. Singh delivered the judgment for the court. After analysing the provisions of the Act His Lordship opined as follows :- "We should not be understood to have laid down that the tenant should deposit rent in court instead of paying the same to the landlord. Primarily a tenant is under a legal obligation to pay rent to the landlord as and when due and if he fails to pay the same on demand from the landlord and if he is in arrears for a period of more than four months he would be liable to ejectment. Where there is a bona fide dispute regarding the landlord's right to receive rent on account of there being several claimants or if the landlord refuses to accept the rent without there being any justification for the same, the. Where there is a bona fide dispute regarding the landlord's right to receive rent on account of there being several claimants or if the landlord refuses to accept the rent without there being any justification for the same, the. tenant would be entitled to take proceeding under Section 30 of the Act and deposit the rent in court thereupon he would be deemed to have paid the rent to the landlord, consequently he would be relieved of his liability of eviction. It does not however follow that the tenant is entitled to disregard the landlord or ignore his demand for payment of rent to him. The provisions of the Act safeguard tenant's interest but it must be kept in mind that the landlord's right to receive rent and in the event of the tenants' being in arrears of rent for a period of more than four months, his right to evict the tenant is preserved. If the tenant makes the deposit in court without there being any justification for the same or if he refuses to pay the rent even on the service of notice of demand by the landlord, he could be liable to eviction. However, the question whether the tenant is justified in depositing the rent in court and whether deeming provision of Section 30 (6) would be available, to relieve him from the liability of eviction would depend upon facts of each case." 13. IN this case also it was categorically observed by the Supreme Court that if the tenant makes a deposit in court without there being any justification for the same or if he refuses to pay the rent even on service of notice of demand by the landlord, he would be liable for eviction. It has been further observed that the question whether the tenant was justified in depositing the rent under Section 30 of the Act would depend upon the facts and circumstances of each case. Every deposit under Section 30 of the Act does not entitle the tenant to the benefit of Section 30 (6) of the Act unless the tenant was justified in depositing the rent under Section 30 (1) and (2) of the Act. When the Act itself is not applicable to the building, there is no justification for the tenant to deposit the rent under Section 30 (1) or (2) of the Act. 14. When the Act itself is not applicable to the building, there is no justification for the tenant to deposit the rent under Section 30 (1) or (2) of the Act. 14. IN view of the above, I am of the opinion that if a deposit has been made under Section 30 of the Act before the Act became applicable to the building in question, the benefit of such a deposit cannot be availed of by a tenant and it cannot be adjusted towards the payment of rent for the purposes of Section 39 of the Act. In the instant case, it is further relevant to point out that even otherwise the deposit was not justified as on 1st of April, 1980 a notice was given to the petitioner demanding arrears of rent from him. When the landlord was willing to accept the rent, there was no justification for the petitioner-tenant to have deposited the rent for a period subsequent to the date of the notice. The submission therefore made by the learned counsel for the respondent, in my opinion, is substantiated. 15. IN order to consider the submission made by the learned counsel for the petitioner in regard to the deposit made under Section 17 of the Provincial Small Cause Courts Act, 1887, it is necessary to quote Section 17 of this Act :- "17. Application of the Code of Civil Procedure- (1) The procedure prescribed in Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits : Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give, such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed. (2) Where a person has become liable as surety under the proviso to subsection (1), the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908." 16. (2) Where a person has become liable as surety under the proviso to subsection (1), the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908." 16. THE above Section 17 provides that in case an applicant wants to get a decree passed by the Judge Small Causes Court ex parte set aside or he wants to get a review of the judgment of the Judge Small Causes Court, he shall at the time of presenting of his application either deposit in court the amount due from him under the decree or in pursuance of the judgment or give such security for the performance of the decree or compliance with the judgment as the court may on a previous application made by him in this behalf have directed. There are consequently, two alternatives, firstly either to deposit the amount or to give security. If the court permits that security to be furnished, then of course the question of treating it to be deposit for the purposes of Section 39 of the U. P. Act XIII of 1972 does not arise at all. THE only question which has to be considered is that when a deposit is made, then whether such a deposit can be considered for the purposes of Section 39 of the Act or not. The benefit of Section 39 of the Act would be available to a tenant in case he deposits in court before which the suit is pending, the entire amount of rent and damages for use and occupation together with the interest thereon at the rate of 9% per annum and the landlord's full costs of the suit. For availing the benefit of Section 39 of the Act the amount of rent and damages for use and occupation have to be deposited in the court before which the suit is pending. The deposit which is made under Section 17 of the Act is also a deposit towards the rent and damages for use and occupation in accordance to the decree which is passed by the Judge Small Causes Court. In my opinion, therefore, deposit made under Section 17 of the Provincial Small Cause Courts Act should entitle the tenant to take benefit of the same for the purposes of Section 39 of the Act. 17. In my opinion, therefore, deposit made under Section 17 of the Provincial Small Cause Courts Act should entitle the tenant to take benefit of the same for the purposes of Section 39 of the Act. 17. LEARNED counsel for the respondent has, however, vehemently urged that the amount deposited under Section 17 is only by way of security and once the ex parte judgment is set aside, the amount is not available to the landlord and as such it cannot be treated as a deposit under Section 39 of the Act. In this connection he has relied upon three cases of this court. The first decision relied upon is in the case of Tulsi Misir v. Bindeshri Misir, AIR 1936 Alld. 593. In this case Tulsi Misir stood surety for the judgment-debtor and executed a security bond undertaking to pay the amount under decree, if not otherwise realised. The court had set aside the ex parte decree. In those circumstances the Hon'ble Suleman, J. (as he then was) held as follows :- "It also seems reasonable to hold that the security is offered for the performance of the ex parte decree in case the application ultimately fails. If the application succeeds, then the judgment-debtor for the time being is discharged from the liability under the decree which has been set aside and it will follow that the surety also is automatically discharged. The mere fact that at a subsequent stage another decree is passed on the merits seems to be no ground for making the surety liable to pay the amount under this second decree. He never stood surety for the performance of the second decree." 18. IN the present case, as I have already indicated above, there was no deposit of the amount which was the first alternative available under Section 17 of the Act but only security for the purposes of the decree was furnished and as such this in my opinion, does not decide the question either way and is of no assistance to the respondent. The second decision on which reliance has been placed is in Seth Dawood Haji Ibrahim Kachhi v. Ram Prasad Ganga Prasad Bania, AIR 1938 Nagpur 75. The second decision on which reliance has been placed is in Seth Dawood Haji Ibrahim Kachhi v. Ram Prasad Ganga Prasad Bania, AIR 1938 Nagpur 75. In this case no deposit was made but only a surety was furnished for due performance of the ex parte decree and the court held as follows :- "If that decree is set aside, it follows the surety is discharged, for, under Sec. 17 (2) the only manner in which the surety may be proceeded against is that provided by Sec. 145, Civil P. C., and that allows the decree "to be executed against the surety." If there is no decree under which he can be held liable it is obvious he cannot be proceeded against." In this case also the question involved in the present case was not considered and as such it does not help the respondent. 19. THE last case relied upon by the respondent is Smt. Krishna Devi v. Shobha Chandra, 1981 ALJ 989. In this case it was held as follows :- "Although the proviso has been incorporated in Sec. 17 to protect the interest of the decree holder, but its language does not justify the contention that the amount deposited or the security furnished should remain lying in the court till such time that the suit is disposed of. THE deposit and the security under the proviso have to remain intact during the pendency of the application for setting aside the ex parte decree. In case the application for setting aside the ex parte decree is dismissed the amount deposited will be adjusted towards the decree and the security furnished enforced for the same purpose. In the event of the decree being set aside the purpose of the deposit comes to an end for there is no decree left to be set aside and the defendant is free to withdraw this amount." 20. IN this case also the provisions of Section 17 has been analysed and it has been further found that as soon as ex parte decree is set aside, the purpose of the decree comes to an end. It was not decided that such a deposit cannot be availed of for the purposes of Section 39 of the Act. In this connection it is relevant to mention the case of Sant Ram Gupta v. Ratan Prakash Gara, 1982 (1) ARC 16. It was not decided that such a deposit cannot be availed of for the purposes of Section 39 of the Act. In this connection it is relevant to mention the case of Sant Ram Gupta v. Ratan Prakash Gara, 1982 (1) ARC 16. In this case Hon'ble Satish Chandra, J. (as he then was) considered the question as to whether a deposit of security under the proviso to Section 17 of the Provincial Small Cause Courts Act can be utilized for the purposes of deposit required under Section 20 (4) of the Act. It was held that the said deposit could be treated as a deposit under Section 20 (4) of U. P. Act. XIII of 1972. 21. I agree with the view taken in the case of Sant Ram Gupta (supra). In my opinion, the same principle would apply to a case where the question is whether the deposit under the proviso to Section 17 can be taken benefit of while considering the provisions of Section 39 of the Act. If a deposit has been made though it may have been made by way of security, but is not withdrawn by the tenant after the ex parte decree is set aside, then such a deposit is available to the landlord for adjusting it towards the rent or damages as the case may be. If such an amount is available, then the tenant can legitimately ask the court to treat the said deposit as being a deposit also under Section 39 of the Act and the amount so deposited under Section 17 could be adjusted for the purposes of giving benefit under Section 39 of the Act. The only requirement of Section 39 is that the tenant has to deposit the rent and damages. If the first option under the proviso to Section 17 has been exercised by the tenant and he deposited the amount in cash by way of security for setting aside the ex parte decree, then there is no reason why the said amount cannot be taken for the purposes of giving benefit to the tenant while considering the deposit made under Section 39 of the Act. In my opinion, consequently the deposit made under Section 17 of the Act in cash under the first option available under the proviso to Section 17 of the Act, could be treated as a deposit by the court for the purposes of Section 39 of the Act and the tenant would be entitled for the benefit of the said deposit. 22. THIS contention raised by the learned counsel for the petitioner, in my opinion, is consequently well founded. In view of the fact that I have taken the view that the deposit made under Section 30 of the Act prior to the date when the Act became applicable to the building in question cannot be taken benefit of under Section 39 of the Act, ultimately the judgment of the revisional court has to be upheld. 23. IN the result, the petition fails and is accordingly dismissed. The parties are directed to bear their own costs. Petition dismissed.