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1988 DIGILAW 763 (ALL)

Padamnabh Jai Kishan v. Mohan Lal Agarwal

1988-08-26

A.P.MISRA

body1988
ORDER A.P. Misra, J. - In this case the respondent was served at the stage of admission and after exchange of counter and rejoinder affidavits it is being decided finally at the admission stage. 2. Heard counsel for the parties. In the present case a suit for eviction, recovery of arrears of rent, water tax, sewage tax and also damages for wrongful use and occupation was filed. The plaintiff's case is that defendant Nos. 2 and 3 are partners and tenants of the disputed premises of the plaintiff on monthly rent of Rs. 535/-. It is alleged that in the year 1982 the plaintiff instituted a suit for recovery of arrears from 1.6.1981 to 31.10.1982 against defendant No. 2. In that case the trial Court repelled the other pleas of defendant Jai Kishan but held that defendant No. 1 and defendant No. 2 were the tenants. Aggrieved as against that a revision (Civil Revision No. 647 of 1984) preferred by defendant No. 2 is pending for disposal. However, the present suit has arisen on account of the applicants-defendant-tenants having failed to pay the rent from 1.6.1985 to 31.1.1988. The notice by the plaintiff-respondent was served under Section 20 of U.P. Act No. 13 of 1972 read with Section 106 of the Transfer of Property Act. In the said notice demand of rent for the aforesaid period along with water tax and sewage tax from Ist June, 1985 to 31st January, 1988 was also made while it is admitted that the tenant-applicant has paid rent from 1st November, 1982 to 30th November, 1985 after service of demand made on him. On the basis of that notice suit was filed. As per plaint the relief sought was for a decree of a sum of Rs. 20474.44 from 1.6.85 to 28th February, 1988 on account of rent and water tax as well as sewage tax from 1st May, 1985 to 28th February, 1988 along with interest at the rate of Rs. 9% and decree for pendente lite and future damages for use and occupation at the rate of Rs. 535. 3. The trial Court decreed the suit for arrears of rent and damages and for eviction of the applicant from the disputed premises. Aggrieved as against that, the present revision has been filed. 4. 9% and decree for pendente lite and future damages for use and occupation at the rate of Rs. 535. 3. The trial Court decreed the suit for arrears of rent and damages and for eviction of the applicant from the disputed premises. Aggrieved as against that, the present revision has been filed. 4. The main contention raised by the learned counsel for the applicant is that since he has deposited entire rent including water tax and sewage tax as demanded by the plaintiff-respondent in accordance with Section 20(4) of the aforesaid Act, the decree for eviction granted by the trial Court is liable to be set aside. Argument was that since he has deposited every amount demanded as mentioned in the notice and also for which relief was claimed in the plaint, the finding of the trial Court that since he has not deposited the rent for the period 1st June, 1981 to 31st October, 1982 which is admittedly the subject-matter of the previous suit benefit of Section 20(4) of the Act cannot be given to the tenant is patently erroneous and liable to be set aside. Reliance was placed on the case of Krishna Manohar Dhawan v. VIIth Addl. District Judge Kanpur, (1983)1 All Rent Case 823. In this case what has been held is quoted below :- "That is beneficent provision in furtherance of objective of the Act to save tenant from eviction. It has, therefore, to be construed liberally in his favour. A tenant should not be denied benefit of this provision for technical omissions or unintended failures. It is further held that "even if there was some deficiency in payment of interest there is hardly any doubt that opposite party was not only keen but was taking all steps to save him from liability of eviction." Next reliance was placed on the case of Kamleshwar Singh Srivastava v. 4th Addl. District Judge, Lucknow (1987)1 All Rent Case. In this case the Hon'ble Supreme Court while interpreting Section 20(4) of the aforesaid Act has held as under : "The legislature has taken care to make special provisions protecting the interest of tenant from eviction while placing obligation on him to pay rent. District Judge, Lucknow (1987)1 All Rent Case. In this case the Hon'ble Supreme Court while interpreting Section 20(4) of the aforesaid Act has held as under : "The legislature has taken care to make special provisions protecting the interest of tenant from eviction while placing obligation on him to pay rent. The right of a tenant not to be evicted and the prohibition against a landlord from seeking eviction except upon specified grounds are well protected by the provisions of the Act and the tenant is afforded opportunity to pay arrears of rent even after filing of the suit, and, in some cases even after a decree of eviction is passed. The special provisions as contained in Sections 20(4), 30, 39 and 40 indicate the legislative policy to safeguard the interest of a tenant, when he deposits rent in accordance with those provisions. The Court must strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretations of the provisions would defeat the legislative policy. The Court must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of case." In view of the aforesaid decisions it is urged on behalf of the applicant that in the present case since the defendant-applicant has deposited entire rent which is claimed as per notice of demand for which relief was claimed benefit of Section 20(4) of the said act could not be refused on account of the reference, both in the plaint and in the notice that it relates to earlier suit as aforesaid. Further reliance placed was on the case of Sushil Chand Jain v. Govind Prakash Mittal, 1979 All Rent Cas 301. In this case it is held that the provision of Section 20(4) is mandatory in character. This provision is not disputed by the learned counsel for the respondents. 5. It is further contended that the notice is invalid since the notice did not mention the full payment what is due for which reliance was placed on the case of Parbati v. Babu Lal, 1965 All LJ 266. The relevant para of this case is quoted as under :- "Notice where exaggerated amount is mentioned or no amount is mentioned is good. The relevant para of this case is quoted as under :- "Notice where exaggerated amount is mentioned or no amount is mentioned is good. Notice where landlord deliberately demands smaller amount than what is actually due as arrear is not notice contemplated under Clause (a)." 6. Learned counsel for the respondents urged in response to the latter argument that in this case neither any such plea was raised in the trial Court nor the same was decided by the trial Court and it would not be right for this Court to take up this matter for the first time in revision. It is true that in this case such plea was not taken nor was adjudicated upon. However, even otherwise I do not find that the notice given in the present case would be bad notice. Admittedly notice in this case was given to the tenant for a period for which relief was claimed in the plaint and details were specified thereunder. It is always open for the party to specify the period for which relief is claimed and if the rent is not paid, it would be subject-matter of suit and that having been given, notice could not be constituted to be a bad notice. Therefore, the contention raised on behalf of the applicant is not tenable and I do not find the notice to be bad. 7. Learned counsel for the respondent urged that in view of the decision in the case of Khadi Gramudyog Trust v. Shri Ram Chandraji Virajman Mandir, AIR 1977 Allahabad 399, even the rent which has become time barred must be paid and having not paid no benefit can be given to the tenant under Section 20(4) of the Act. The aforesaid case is also confirmed by the Hon'ble Supreme Court in the case of Khadi Gramudyog Trust v. Shri Ram Chandraji Virajman Mandir (supra). In this case while interpreting words "entire amount of rent due" under Section 20(4) the Supreme Court held that it would include even time barred rent. The aforesaid case is also confirmed by the Hon'ble Supreme Court in the case of Khadi Gramudyog Trust v. Shri Ram Chandraji Virajman Mandir (supra). In this case while interpreting words "entire amount of rent due" under Section 20(4) the Supreme Court held that it would include even time barred rent. It is on this ground an argument was raised that the tenant must pay the entire rent what is referred to in the notice and also what is due against him which is for the period from 1.6.1981 to 31st October, 1982 and admittedly that having not been paid, the trial Court in refusing the benefit of Section 20(4) acted in consonance with the spirit of the said section. Further learned counsel for the applicant urged that the finding of arrears of rent is a finding of fact and the same could not be interfered with by this Court in exercise of revisional jurisdiction. The proposition is not in dispute and is not the question which is relevant to be gone into in the present case. Perusing Section 20(4) of the U.P. Act No. 13 of 1972 it is significant to refer to sub-section (2)(a) of Section 20 which speaks about the filing of the suit for eviction of a tenant after the determination of his tenancy and specify the grounds on which it could be made. Sub-clause (2)(a) of Section 20 speaks about where a tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service of a notice of demand. It is significant that if any one of the ingredients mentioned therein is absent, the suit cannot be filed by the landlord. Therefore, it is significant while interpreting the wording of Section 20(4), the use of words in Section 20(2)(a) should also be kept in mind. 8. Under Section 20(4) the tenant has to deposit the 'entire rent'. The entire amount qualify the present word in the same section which must in terms qualify the amount referred to in sub-section (2)(a). Therefore, it is significant while interpreting the wording of Section 20(4), the use of words in Section 20(2)(a) should also be kept in mind. 8. Under Section 20(4) the tenant has to deposit the 'entire rent'. The entire amount qualify the present word in the same section which must in terms qualify the amount referred to in sub-section (2)(a). Under that provision the amount must be paid for which notice of demand was made and if such amount was not paid within thirty days of the said notice coupled with the arrears for more than four months, the landlord gets a right to institute a suit by virtue of Section 20(2)(a). In the light of this it has to be seen the wordings of 'entire amount' referred to in Section 20(4) of the Act and what is liability of the tenant if it is undertaken he would be entitled to be granted benefit under Section 20(4) of the Act. It is true that the stand taken in the aforesaid decision that even if time barred, rent would be inclusive in the wording of 'entire rent' for which no decree could be passed. Learned counsel for the applicant in this case urged that even while paying the Court-fee, it has been paid only for the amount for which the relief was claimed and it was not for the aforesaid period i.e. 1.6.81 to 31st October, 1982 and, therefore, it would not be right for me to ask the tenant to deposit the rent for this period. This part of the argument of the learned counsel for the respondent cannot be sustained in view of the decision of this Court and the Supreme Court that even the time barred rent could be inclusive in the words 'entire rent'. It could not be doubted that the relief for which the plaintiff is entitled could only be what is within limitation and time barred rent cannot be decreed and for that the plaintiff does not pay the Court-fee. However, in view of the language used under Section 20(4) 'entire rent' having been interpreted by this Court to be inclusive of time barred rent even if no Court-fee has been paid it was obligatory on the part of the tenant to pay the amount for getting benefit under said section. 9. However, in view of the language used under Section 20(4) 'entire rent' having been interpreted by this Court to be inclusive of time barred rent even if no Court-fee has been paid it was obligatory on the part of the tenant to pay the amount for getting benefit under said section. 9. Question, however, in the present case, is not of time barred rent but whether in this revision non-deposit of certain rent for certain period which is claimed for which no notice was given by the landlord nor any relief was claimed, if such amount was not deposited could also be inclusive within the definition of 'entire rent'. Looking to the aforesaid provisions of Section 20(2)(a) it becomes clear that no suit could be filed unless a notice of demand is made and demand should be for a period more than four months and such amount is not paid by the tenant. In the aforesaid sub-section use of word 'same' qualifies the amount for which notice of demand was made. It cannot be urged on behalf of the landlord that non-deposit by the tenant for which no notice of demand was made should also be paid by him and his failure to pay would disentitle him to the benefit given to a tenant under Section 20(4) of the Act. Section 20(4) does not place an obligation on the tenant to pay even that amount for which no notice in that suit was given. Failure to deposit the amount for which no notice was given could not be inclusive of the meaning of 'entire rent' as expressed under Section 20(4) of the Act. However, in the present case it is not in dispute that notice on the basis of which the present suit is filed does not include the demand for the aforesaid period. Therefore, the finding of the trial Court that the tenant having failed to deposit the rent for the said period is not entitled to the benefit under Section 20(4) cannot be sustained. 10. It is also significant to refer here Section 20(2) starting from words "suit for eviction for a tenant from a building" and is qualified under clause (a) for which a notice of demand is served. 10. It is also significant to refer here Section 20(2) starting from words "suit for eviction for a tenant from a building" and is qualified under clause (a) for which a notice of demand is served. Therefore, the word 'entire amount of rent' referred under sub-section (4) of Section 20 are also supported with the word 'in any suit for eviction on the ground mentioned in clause (a) of sub-section (2)' brings within the four corners of the suit filed in which demand is made. It cannot refer to the nature of the suit nor any other notice of demand. In the present case there is nothing on record to show that any notice of demand was made for the aforesaid period on the applicant-tenant. As even the previous suit which is subject-matter of the dispute between the parties has not been filed in this case. Thus, in the absence of any notice of demand in the present suit and proceedings, the tenant cannot be refused benefit of Section 20(4) if he had deposited the entire amount of rent which has been demanded in the notice for which relief in the present suit has been claimed. 11. It was urged by the learned counsel for the respondent that the words "suit for eviction" used under Section 20(2) and in sub-section (4) of the said section the use of words "in any suit" include the General Clauses act meaning thereby more than one suit. Firstly, the said expression in the aforesaid two sub-sections, makes it clear that the legislative intent is to refer to the suit in which prayer of eviction is made only demand notice is made and in the alternative even if for argument's sake it could be accepted that the demand referred to would include in the two suits also then if two interpretations are possible, one which is beneficial to the tenant should be accepted. It is not in dispute that this provision is beneficial to the tenant. Thus even on this ground the contention raised on behalf of the respondent cannot be accepted. 12. In view of the aforesaid, the present revision is liable to be allowed and the impugned order dated 20.4.88 is set aside. It is not in dispute that this provision is beneficial to the tenant. Thus even on this ground the contention raised on behalf of the respondent cannot be accepted. 12. In view of the aforesaid, the present revision is liable to be allowed and the impugned order dated 20.4.88 is set aside. It is further directed that since the applicants are entitled to the benefit of Section 20(4) and they having deposited the entire amount which has not been disputed on behalf of the respondent as demanded in the notice, the eviction of the applicants as decreed is set aside. Accordingly, the suit of the plaintiff is dismissed in view of the aforesaid finding. 13. In the result the present revision is allowed with costs.