Babu Lal v. Swarup Lal — 1987 DIGILAW 454 (ALL)

JUDGMENT V.K. Mehrotra, J. 1. This is a revision under section 25 of the Provincial Small Cause Courts Act by the defendants in a suit instituted by plaintiff- opposite party Swarup Lal. The suit was decreed by the Trial Judge on November 20, 1982 both for eviction of the defendants from a shop as also for recovery of certain amount claimed as arrears of rent (for the period between April 1, 1980 and December 12, 1980) and water tax, damages etc. 2. The suit, out of which the present revision arises, was preceded by Small Cause Courts Suit No. 87 of 1975 in which also a claim was made by Swaruplal for the eviction of the present applicants and for recovery of some amount as arrears of rent and damages. That suit was decreed on May 28, 1979. The relief of ejectment was refused, inasmuch as, the present applicants, who were defendants in that suit also, had deposited the requisite amount and were extended relief under section 39 of U. P. Act No. 13 of 1972. The plaintiff was permitted to withdraw the amount of rent. But, what he actually withdrew included the amount of interest and costs, (in addition to the amount of arrears of rent), and was a sum of Rs. 1966-50. There is no dispute between the parties that this amount withdrawn by Swarup Lal was in excess of the amount he was entitled to withdraw under the decree passed in that suit. In the present suit, by his first notice, Swaruplal claimed from the applicants arrears of rent for the period between October 1, 1978 and July 31, 1980. He gave a second notice to the defendants in which the claim made was for the period between October 1, 1978 and October 31, 1980. It is not in dispute that for the period between April 1, 1980 and October 31, 1980, the amount which was actually due from the present applicants to the plaintiff was a sum of Rs. 1120/-. It may be added that in Civil Revision No. 80 of 1979 (arising out of the earlier suit No 87 of 1975). the present applicants had deposited the amount of rent due from them till March 31, 1980. 3. 1120/-. It may be added that in Civil Revision No. 80 of 1979 (arising out of the earlier suit No 87 of 1975). the present applicants had deposited the amount of rent due from them till March 31, 1980. 3. In the present suit, the Trial Judge has returned a finding that the defendants were liable to pay water tax to the plaintiff in addition to a monthly rent of Rs. 160/- that on the date of service of the notice the arrears due from the present applicants to the plaintiff was only for the period between April 1, 1980 and October 31, 1980 and that this amount was not tendered to the plaintiff within a month of the service of notice upon the defendants so that the defendants committed default in the payment of rent within the meaning of section 20 (2) (a) of U. P. Act No. 13 of 1972. 4. After hearing Sri Vishnu Sahai for the defendant-applicants and Sri Sunil Ambwani for the plaintiff both of whom have ably placed the case of the party represented by them, I am of opinion that the defendant-applicants are entitled to relief from this Court. The only question upon which the decision of this revision turns is whether on the facts admitted to the parties and the findings recorded by the learned trial Judge, the defendants-applicants can be said to have committed default in payment of rent to the plaintiff so as to render them liable for ejectment from the shop. The submission of Sri Sahai is that a finding of default can only be recorded in case the Court comes to the conclusion that the tenant was in arrears of rent for ' not less than four months '. Since, in the present case, according to the submission the defendants could not be said to be in arrears of rent for that period, the conclusion of the Trial Judge that they had committed default was not a conclusion according to law. 5. In the plaint, which Swarup Lal filed in the instant case, it was asserted in paragraph 11, after giving in the earlier paragraphs facts about the previous Suit No. 87 of 1975, that as far as the amount of Rs. 5. In the plaint, which Swarup Lal filed in the instant case, it was asserted in paragraph 11, after giving in the earlier paragraphs facts about the previous Suit No. 87 of 1975, that as far as the amount of Rs. 1966-50 was concerned, the plaintiff was prepared to pay to the defendants the said amount as was due to them and in case the plaintiff did not pay that amount it would be open to the defendants to take legal proceedings about it but the defendants had no right to adjust the amount towards any amount of rent or water tax. The precise words in paragraph 11 of the plaint are these : 6. It is clear from the recital made in paragraph 11 of the plaint that by acknowledging that a sum of Rs. 1966.50 belonging to the defendants was in deposit with the plaintiff which the defendants could recover from the plaintiff in case the plaintiff refused to refund it, the plaintiff was not prepared to adjust that amount towards any amount due as rent or water tax from the defendants What has actually been canvassed before me on behalf of the plaintiff is that the plaintiff was well within his right to refuse adjustment of the amount towards arrears of rent or water tax and leave the defendants to take recourse to legal proceedings for recovery thereof while accepting the fact that the amount was in deposit with him and take the stand that in the event of the defendants failing to tender the amount asked for from them by the notice, treat them to be defaulters in the matter of payment of rent. In other words, the contention is that even where the landlord has some money which is due to the tenant from him, he can refuse to adjust it towards payment of rent due from the tenant. 7. Some decisions were cited by Sri Ambwani in support of this submission. For example, in Ram Deo v. Umrao Singh, 1979 AWC 737 the Supreme Court, while reversing the decision of this Court, observed (in paragraph 12 of the Report) : ".........In the present case, there is no dispute that at the date of the notice, the tenant owed an amount of Rs. 150/- to the landlord, out of which Rs. 75/- represented three months' rent preceding the notice. 150/- to the landlord, out of which Rs. 75/- represented three months' rent preceding the notice. There is also no dispute that the balance of Rs 75/- due from the tenant related to the period prior to the agreement dated June 12, 1960, and under the agreement the tenant was bound to pay the same in three monthly instalments, which he had, in breach of the agreement, failed to pay.........The agreement had 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 appellant, 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 dated June 12, 1960. Thus, the arrears of three instalments due under the agreement had ceased to be " arrears of rent " and could not be tacked on to the arrears of three months rent due at the date of the notice, for the purpose of clause (a) of section 3 (1) " 8. The submission which has been founded upon these observations is that, inasmuch as, the amount which the tenant owes to the landlord under an agreement changes its character and in case of the failure of the tenant to pay the same, the only remedy that the landlord has is to recover it by recourse to a suit, the principle accepted by the Supreme Court can be characterised as one laying down that if the remedy to recover the amount due to a party is separately available to him in a suit, it cannot be characterised as an 'arrears of rent' and that for the purposes of the present case, on parity of reasoning the tenant could only recover the amount from the plaintiff-landlord but could not insist that it be adjusted towards the amount due as rent. The other decision upon which reliance was placed by Sri Ambwani was in the case of Radbey Shyam Jaiswal v. Radha Raman Srivastava, 1983 (2) ARC 291 in which this Court, relying upon the judgment of the Supreme Court in the case of Ram Deo, took the view that once a decree is passed against a tenant in respect of arrears of rent and the decretal amount is deposited by the tenant, the amount so deposited loses its character as arrears of rent and cannot, therefore, be taken into account in adjudging the amount of arrears of rent due against the tenant for purposes of Rule 5 of Order XV CPC. In that case, the plea that had been taken on behalf of the plaintiff was that certain amounts were due from the tenant. The question was whether the tenant had complied with the provisions of Order XV Rule 5 CPC or not. The Court refused to interfere with the order passed by the Trial Judge, rejecting the plaintiff's application for striking off the defence of the tenant, inter alia, on the ground that the amount which was the subject matter of an earlier decree for arrears of rent etc. could not be asked by the plaintiff- landlord to be deposited for purposes of Rule 5 of Order XV CPC inasmuch as, the amount of arrears in respect whereof a decree had been passed earlier ceased to be arrears of rent and had acquired the character of a debt. 9. These decisions are of no assistance to the plaintiff in the present case where as seen earlier, the plea in paragraph 11 of the plaint clearly is to the effect that though the plaintiff" accepted that some amount due to the defendants was in deposit with the plaintiff and the plaintiff was prepared to refund the same to the defendants but he was not prepared to accept the prayer of the defendants for the adjustment of that amount towards arrears of rent due to the plaintiff from them. If, even in a situation like this, the Courts were to hold that the landlord-plaintiff had the option not to adjust the amount towards any amount due from the tenant as rent, the result would be plainly inequitable and would defeat one of the avowed objects of an Act like U. P. Act No. 13 of 1972 to the effect that the benefit of its protective provisions should be available to the tenant in the matter of his ejectment. 10. Section 20 (2) (a) permits the filing of a suit for eviction of a tenant from a building on the ground that the tenant is in arrears of rent for not less than 4 months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. The existence of arrears of rent for a period of not less than four months is, therefore, a condition-precedent for the filing of a suit by a landlord under this clause. Where, as in the present case, some amount due to a tenant is held by the landlord, who is also prepared to give it back to the tenant, the stand that the landlord will not adjust that amount towards payment of rent due from the tenants on their request would be providing to the landlord an unfair option and, thus, negate the protection which is available to a tenant in this respect. 11. Some decisions were brought to my notice by Sri Vishnu Sahai in support of his plea that in certain circumstances the amount belonging to the tenant which was held by the landlord could be adjusted towards any amount due to the landlord from the tenant. For example, in Dr. Nilamber Jha v. Additional District Judge, Gorakhpur, 1982 ALJ 982 learned Single Judge, while considering the question whether requirements of section 20 (4) of U. P. Act No. 13 of 1972 of which benefit was being claimed by the tenant were satisfied, observed that an excess deposit amounting to Rs. 483/- in respect of water tax made by the tenant could be taken into account for adjusting the amount of Rs. 140/- due as rent for two months. 483/- in respect of water tax made by the tenant could be taken into account for adjusting the amount of Rs. 140/- due as rent for two months. In Mohammad Salimuddin v. Misrilal, AIR 1986 SC 1019 the Supreme Court, while reversing the decision of the Patna High Court, took the view that an amount of loan advanced by the tenant under an agreement, which interalia, contained a stipulation that the loan amount was to be adjusted against the rent which accrued, could be claimed to be adjusted by the tenant even though the loan which was advanced by the tenant was in violation of the provisions contained in section 3 of the Bihar Building (Lease, Rent and Eviction) Control Act. Similarly, in Gyanendra Prakash Sangal v. 1st Additional District Judge, Muzaffarnagar, 1982 (2) ARC 297 a learned Single Judge of this Court, relying upon some earlier decisions, took the view that an amount deposited by the tenant, even where the deposit was illegal, was not required to be deposited again and was adjustable towards arrears of rent. 12. The situation in the present case is different from that obtaining in the various decisions brought to my notice by the learned counsel. Unlike these cases, what actually happened in the present case is that though some amount belonging to the tenant is, admittedly, held by the landlord and the landlord is willing to refund the same, yet, though the tenant makes a request about it, the landlord is not willing to adjust it towards the rent due to the tenant. In a situation like this, the equitable approach of the Supreme Court, implicit in the observations in paragraph 4 of its decision in Mohammad Salimuddin v. Misrilal, AIR 1986 SC 1019 applies with greater vigour. And, equity ordains that the protection available to a tenant under the Rent Control Act cannot be denied to him on a consideration that though the amount claimed by a landlord from a tenant is already held by the landlord, since its recovery can be made in some other proceedings, the landlord can treat the tenant to be defaulter at his option by refusing adjustment. In sum, the revision succeeds and is allowed. The decree under challenge is set aside and the suit is dismissed. Parties are, however, left to bear their own costs. Revision allowed.