Khachera v. Jagdish Prasad — 1988 DIGILAW 360 (ALL)

ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India arising out of suit No. 109 of 1976, Jagdish Prasad and others v. Tara Chand and another, filed in the Court of Judge, Small Causes, Kasganj, for recovery of arrears of rent, ejectment and damages. 2. The petitioners are the tenants of the property in dispute. Respondents 1 to 10 are the landlords. Initially, two shops were taken on rent by the petitioners at the rate of Rs. 25/- per mensem. Later on, one of the shops was released in favour of the plaintiffs-respondents on an application made by the respondents under S. 21(1)(a) of the U.P. Urban Buildings (Regulation ,of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). Thereafter, only one shop remained with the petitioner and the rent was fixed at Rs. 15.62P per mensem. The suit was filed by the respondents on the ground of default. The petitioners' case was that, in fact, they had committed no default and the rent demanded by the respondents had been deposited by the petitioners in the Court of Munsif under S. 7-C of the U.P. (Temporary) Control of Rent and Eviction Act. 1947, (hereinafter referred to as the old Act) and, consequently, they were entitled to the benefit of the said deposit and no decree for ejectment could be passed against them. 3. The Judge, Small Cause Court dismissed the suit for ejectment and gave the benefit of deposits made under S. 7-C of the old Act to the petitioners. Aggrieved by that decision, the respondents landlords filed a revision under S. 25 of the Provincial Small Cause Courts Act, being revision No. 36 of 1979. This revision was allowed by the 1st Additional District Judge, Etah, by his judgment dated 20th July, 1981, and the revisional Court decreed the suit for ejectment against the petitioners. The petitioners, consequently, have challenged the judgment dated 20th July 1981, by means of the present petition. 4. I have heard Sri S. C. Verma, learned counsel for the petitioners and Sri Ajit Kumar, learned counsel for the respondents landlords. 5. Learned counsel for the petitioners has only challenged before me the finding given in regard to the question of default. 4. I have heard Sri S. C. Verma, learned counsel for the petitioners and Sri Ajit Kumar, learned counsel for the respondents landlords. 5. Learned counsel for the petitioners has only challenged before me the finding given in regard to the question of default. The submission of the learned counsel is that the petitioners were entitled to the benefit of the deposits made under S. 7-C of the old Act. If that benefit is given then on the facts on the record, since they had deposited the entire arrears of rent within time, no decree for ejectment could have been passed by the revisional Court. It is, therefore, submitted that the impugned judgment by which the petitioner has been refused benefit of the deposit under S. 7-C of the Act is manifestly erroneous. 6. It is not in dispute that in the year 1968, the petitioners had made an application under S. 7-C of the old Act seeking permission to deposit the rent of the property in dispute in the court of Munsif having jurisdiction in the area where the accommodation is situate. This application was registered as Misc. Case No. 22 of 1968. On 22nd August, 1970, the Munsif, Kasganj, allowed the application and permitted the petitioner to deposit the rent. He further permitted the landlord respondents to withdraw the same and specifically directed that the petitioners may continue to deposit future rent too. In pursuance of this order, the petitioners continued to deposit rent under S. 7-C of the old Act. 7. On 15th September, 1975, the respondents issued a notice of demand to the petitioners. The case of the petitioners is that after receiving the notice of demand, they deposited the arrears of rent under S. 7-C of the old Act. The question to be determined in the instant case is as to whether the deposit made by the petitioner under S. 7-C of the old Act after the notice of demand dated 15th September, 197.5, was a valid deposit or not. 8. The question to be determined in the instant case is as to whether the deposit made by the petitioner under S. 7-C of the old Act after the notice of demand dated 15th September, 197.5, was a valid deposit or not. 8. The Court below has not accepted it to be a valid deposit on the ground that once a notice of demand was issued to the petitioners, it should be deemed that there was no refusal on the part of the landlords to accept the rent and, consequently, the deposit was invalid I have, therefore, to consider whether mere issuance of a notice of demand would amount to be willingness on the part of the landlords to accept rent : "Section 7-C(1) of the old Act is as under 7C(1) :- When a landlord refuses to accept any rent lawfully paid to him by a tenant in respect of any accommodation, the tenant may in the prescribed manner deposit such rent and continue to deposit any subsequent rent which becomes due in respect of such accommodation unless the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept." After coming into force of U.P. Act No. 13 of 1972, a similar provision has been made in S. 30(1) of the Act. It reads as under : "30(l) 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." 9. From a reading of sub-s.(1)of section 7-C of the old Act and S. 30 of the Act, it is absolutely clear that the tenant has a right to continue to deposit rent if his application has been allowed by the Court until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept the rent. These words are very significant. The notice which is contemplated here is a very specific notice wholly unambiguous. These words are very significant. The notice which is contemplated here is a very specific notice wholly unambiguous. It should be an unequivocal notice to the tenant specifically telling him that now the landlord was prepared to accept the rent which up till then was being deposited by the tenant under the above mentioned provision. Unless such a specific notice is given, the tenant cannot be penalised for depositing rent, as directed by the Court and to be deprived of the benefit which the Legislature conferred upon him. In my opinion, the Legislature specifically provided for this contingency in order that the landlord may not by a vague or by a mere notice of demand of rent without specifically stating therein that they are now prepared to accept the rent make him liable for ejectment even though the arrears of rent have been deposited under the provisions of the Act. 10. In Dr. Brahmanand v. Smt. Kaushilaya Devi (1977 All Rent Cas 262) : ( AIR 1977 SC 1198 ), the Hon'ble Supreme Court had an occasion to consider the effect of S. 7-C of the old Act. The Hon'ble Supreme Court has clearly laid down that S. 7 of the old Act has to be interpreted upon the facts and circumstances prevailing between the parties. In this case, the Hon'ble Supreme Court clearly held that where the relations between the parties were very estranged, it is an idle ritual to insist on a physical tender of payment of the rent where the circumstances make it impracticable. The court, consequently, gave the benefit to the tenant, as provided under S. 7-C(6) of the old Act. 11. In Lakhan Rai v. Ram Kumar Agarwal 1979 All Rent Cas 283: (1979 All LJ 400), the Hon'ble Supreme Court again had an occasion to consider the effect of S. 7-C of the old Act and it held whether the deposit-into court is equal to payment to the landlord depends on the expression of willingness by the landlord to receive payment of rent from the tenants. It further held that notice of demand in that case issued by the landlord did not signify any such willingness. It further held that notice of demand in that case issued by the landlord did not signify any such willingness. From this authority, it can be culled out that it is not a mere notice of demand, which is enough to make the tenant at guard, but there has to be a specific statement in the notice by the landlord signifying his willingness to accept the rent. 12. In a very recent decision of the Hon'ble Supreme Court in Kamleshwar Singh Srivastava v. 4th Additional District Judge, Lucknow, (1987) 1 All Rent Cas I: ( AIR 1987 SC 138 ) the Supreme Court again had an occasion to consider the effect of S. 30 of the Act, which, as I have already quoted above, is analogous to S. 7-C of the old Act. Here also, the Hon'ble Supreme Court has specifically laid emphasis on the words of the statute, namely, that the landlord has to signify in writing his willingness and readiness to accept the rent and it is then only that the tenant can be held to be a defaulter if he deposits rent under S. 30 of the Act and not otherwise. In that case, on the principles laid down, the Hon'ble Supreme Court took the view that in the facts and circumstances of that case, it would be unjust to hold the tenant in arrears of rent rendering him liable to eviction. 13. In the present case, as I have already observed above, there,are many landlords o the property. The petitioners tenants initiate proceedings under S. 7-C of the Act as far back as in 1968. The Munsif concerned permitted the petitioners to deposit rent and they were continuing to deposit the same all through till the date of the notice dated 15t September 1975. In view of the fact that already deposits were being made under S. 7C of the old Act, it was incumbent upon the landlord to give a specific notice, in writing, to the tenant petitioners that now the landlords were prepared to accept the rent and that the tenants need not deposit the same under S. 7- C of the old Act. 14. I have examined the notice dated 15th September 1975. 14. I have examined the notice dated 15th September 1975. It is only a notice of demand There is no averment in the notice that the landlords respondents are now prepared to accept the rent and that the tenants should not, in future, deposit rent under S. 7-C of the old Act. In the circumstances, it cannot be said that, on the record, there is any material to show that the landlords respondents had signified in writing, in the notice their willingness to accept the rent. In the circumstances, it cannot be held that on the mere fact, that the petitioners did not pay rent to the landlords respondents, the petitioners should be held defaulters in the eye of law. 15. The court below, however, has relied upon a decision of this court in Radha Krishna Ji Mahraj Virajman Mandir v. Raja Ram 1978 All WC 403: (1978 All LJ NOC 16). This case is clearly distinguishable. Hon'ble M. P. Saxena, J. (as he then was) in the judgment has categorically stated that, in that case, the plaintiff had expressed an unequivocal willingness to accept the rent through its Sarvakar. This is not the case here. In my opinion, consequently, the view taken by the court below, that the petitioners are defaulters by the very fact that they did not offer rent to the landlords respondents is a view manifestly erroneous and cannot be sustained. 16. Learned counsel for the respondents has urged that even if the deposit under S. 7-C of the old Act is held to be valid then too, their deposit fell short. This is dependent on facts and the entire record has to be examined to ascertain the correct position in this regard. This can only be done by the trial court. 17. Learned counsel for the petitioners has also urged before me that the notice of, demand issued by the landlord respondents is wholly invalid, as one of the shops in dispute had already been released and the said shop is in possession of the landlords respondents. The demand made in respect of the rent for the shop, which has already been released, is an illegal demand. This could not have been combined with the demand in respect of the shop in respect of which the ejectment has been sought for. In fact the petitioners want to challenge the validity of the notice. The demand made in respect of the rent for the shop, which has already been released, is an illegal demand. This could not have been combined with the demand in respect of the shop in respect of which the ejectment has been sought for. In fact the petitioners want to challenge the validity of the notice. This also would be dependent on the facts and can be gone into by the trial court. 18. In the result, the writ petition is allowed and the order of the appellate authority dated 20th July 1981, is hereby quashed. The entire case is remanded to the Judge, Small Cause Court for decision afresh i accordance with law. Since matter is pending since 1976, the Judge, Small Clause Court is directed to dispose of the suit very expeditiously. Parties are directed to bear their own costs.