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1992 DIGILAW 665 (ALL)

Ram Prasad v. Viith Additional District Judge

1992-05-01

G.P.MATHUR

body1992
JUDGMENT : G.P. Mathur, J. A suit for arrears of rent and ejectment filed by the land lord-Respondent No. 3 against the Petitioner Ram Prasad has been decreed by the Judge, Small Cause Court, and the decree was affirmed by the Additional District Judge in revision. Aggrieved the tenant-Petitioner has filed the present writ petition. Parties have exchanged affidavits and, therefore, the writ petition is being disposed of finally at the admission stage. 2. The first submission of learned Counsel for the Petitioners is that the tenant had deposited the entire amount of rent together with landlord's costs of the suit on the date of first hearing of the suit and, therefore, no decree for eviction could be passed against him in view of the provisions of Section 20(4) of Uttar Pradesh Act No. 13 of 1972 (hereinafter referred to as the Act). In order to appreciate the argument of the learned Counsel, it will be necessary to mention certain dates. The landlord sent a notice demanding arrears of rent and determining the tenancy of the Petitioner which was served upon him on 24-10-1977. Thereafter the landlord filed the suit for arrears of rent and ejectment which was decreed ex-parte on 4-12-1979. The tenant moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree on 15-1-1980 and the decree was set aside on 5-7-1980 and the suit was restored to its original number on 11-8-1980. The parties were informed of the date of hearing as 12-11-1980. However on 12-11-1980 the tenant moved an application 27.C praying for adjournment of the case and the said application was allowed and 12-2-1981 was fixed for the hearing of the suit. On 12-2-1981 tenant deposited Rs. 1043/- which included Rs. 936/- as rent from 27-10-1976 to 26-2-1981, Rs. 72/- as the court fee, Rs. 25/- as advocate's fee and Rs. 10/- as miscellaneous expenses. 3. Section 20(4) of the Act provides that if at the "first hearing" of the suit the tenant deposits the entire amount of rent together with interest at the rate of nine per cent and the landlord's costs of the suit the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability of eviction. Explanation (a) to this Sub-section provides that the expression "first hearing" means the first date for any step or proceedings mentioned in the summons served on the Defendant. The material on record does not show as to when the summons were actually served upon the Petitioner tenant and what was the date mentioned therein. Shri Mandhyan has submitted that the fact that the suit was decreed ex-parte itself shows that the summons were not served upon the Petitioner. In my opinion from the mere fact that the suit was decreed ex-parte and the said decree was later on set aside no inference can be drawn that the summons were not duly served upon the Petitioner. There is no averment in the writ petition that the summons were not served upon the Petitioner or that he got no knowledge of the suit Even assuming that the summons were not duly served the fact that the Petitioner filed a restoration application on 15-1-1980 for setting aside the decree would lead to the conclusion that at least on 15-1-1980 the Petitioner got knowledge of the suit. The ex-parte decree was set aside on 5-7-1980 and the suit was restored to its original number on 11-8-1980 and was fixed for hearing on 12-11-1980. Even if the contention of the learned Counsel for the Petitioner is accepted he should have deposited the entire amount on the said date, i.e. on 12-11-1980, in order to get benefit of Section 20(4) of the Act., Since the Petitioner did not deposit the amount on the said date but sought adjournment and deposited the same on 12-2-81 he cannot get any benefit of the deposit made by him and the suit was rightly decreed. 4. Learned Counsel has submitted that the date of first hearing should be deemed to be the date on which the court took up the case and applied its mind to the controversy between the parties and relied upon Subhash Chandra Jain v. Ist AD J. 1989 (1) ARC 387 in support of his submission. In my opinion the contention raised by learned Counsel for the Petitioner cannot be accepted for an artificial meaning has been given to the expression "first hearing" by Explanation (a) to Section 20(4) of the Act which means the first date for any step or proceeding mentioned in the summons served on the Defendant. In my opinion the contention raised by learned Counsel for the Petitioner cannot be accepted for an artificial meaning has been given to the expression "first hearing" by Explanation (a) to Section 20(4) of the Act which means the first date for any step or proceeding mentioned in the summons served on the Defendant. This explanation has been added by Uttar Pradesh Act No. 28 of 1976 with effect from 5-7-1976. In the case of Subhash Chandra Jain (supra) the court was considering the situation as it existed prior to the amendment. In Sia Ram v. District Judge 1984 (1) ARC 410, a Full Bench of our Court has held that where the court, on the date mentioned in the summons, adjourns the case to some other date without transacting any business or without applying its judicial mind to the list, the date of first hearing for purposes of Section 20(4) would still be the date mentioned in the summons. In Sheo Kumar Sharma v. IV ADJ 1985 (2) ARC 344 and Baburam Cupta v. Daya Shanker 1982 (1) ARC 161, it has been held that the date of the first hearing will not be altered where after service of summons the suit is decreed ex-parte and the ex-parte decree is later on set aside. In Mohd. Alim v. Mohd. Abrar 1989 (1) ARC 329, it has been held that the date of first hearing will not be altered if from service of summons the suit is dismissed for default and later on it is restored. Therefore, in order to get the benefit of Section 20(4) of the Act the Petitioner should have deposited the entire amount latest by 12-11-1980. Since he moved an adjournment application on the said date and deposited the amount on 12-2-1981 it is obvious that he cannot get any benefit of the deposit made by him and the decree for eviction was rightly passed against him. 5. There is another reason due to which the Petitioner is not entitled to the benefit of Section 20(4) of the Act. It is not disputed that the Petitioner did not deposit the interest amount which came to Rs. 190/- when he deposited the money on 12-2-1981. u/s 20(4) of the Act the tenant has to deposit the entire amount of rent together with interest thereon at the rate of nine percent per annum. It is not disputed that the Petitioner did not deposit the interest amount which came to Rs. 190/- when he deposited the money on 12-2-1981. u/s 20(4) of the Act the tenant has to deposit the entire amount of rent together with interest thereon at the rate of nine percent per annum. If the deposit falls short by a very small amount the same may be ignored or the shortage may be condoned on the facts and circumstances of a particular case. However, in the present case the amount of rent deposited by the Petitioner is Rs. 936/- and the interest amount is Rs. 190/-. The shortage in deposit is not a very small or negligible amount which may be ignored. The shortage being considerable the only conclusion which can be drawn is that the Petitioner has not complied with Section 20(4) of the Act and he cannot get the benefit of the said provision. 6. Learned Counsel for the Petitioner next submitted that Respondents 1 and 2 have erred in not giving the benefit of the deposit made by him u/s 30 of the Act and if the said deposits are taken into consideration the deposit made by him on 12-2-1981 would be sufficient and no decree for eviction could be passed against him. The record shows that the Petitioner deposited rent for the periods 1-11-1976 to 31-3-1977 on 4-4-1977 and then for 1-4-1977 to 31-8-1980 between 7-2-1978 and 1-5-80. The deposits u/s 30 have been made in the court of the City Munsif, Meerut on Various dates between 7-2-1978 and 1-5-1980. It is not disputed that the landlord gave a notice of demand to the Petitioner which was served upon him on 24-10-1977. Section 30(1) 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 to deposit any rent for any subsequent period until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. It is, therefore, clear that the deposit u/s 30(1) can be made only till the landlord has signified his willingness to accept it by notice in writing. It is, therefore, clear that the deposit u/s 30(1) can be made only till the landlord has signified his willingness to accept it by notice in writing. Once the notice' has been given by the landlord it is not open to the tenant to deposit the rent in court. If the tenant deposits the rent in court after service of notice upon him he cannot get the benefit of the said deposit. In the present case the notice was served upon the Petitioner on 24-10-1977 whereby the landlord asked him to pay him arrears of rent. On the said date the Petitioner had neither paid any rent with effect from 1-4-1977 nor had deposited the same in the court. However even after receipt of the notice he did not pay the rent to the landlord but deposited the same in court on 7-2-1978. In this view of the matter the Petitioner is not entitled to claim the benefit of the deposit made by him u/s 30(1) of the Act. in Kanchan Singh v. Additional District Judge 1986 (1) ARC 195, it has been held that the if after service of notice by the landlord upon the tenant showing his willingness and readiness to accept the rent and asking the tenant to tender rent to him, the rent is deposited u/s 30(1) of Act, no benefit of the deposit can be given to the tenant and he would be deemed to be a defaulter. The same view has been taken in Vijai Kumar v. Ist A.D.J. 1988 (2) ARC 486 In Pyare Lal v. I A.D J. 1989 (1) ARC 169 it has been held that if the deposit has been made more than one month after the service of notice no benefit can be given to the tenant. In the case in hand the notice was served on 24-10-1977 but the deposit was made more than one month after on 7-2-1978. In this view of the matter the Petitioner was not entitled to the benefit of the deposit made u/s 30(1) of the Act. 7. In view of the discussions made above it is clear that the decree passed by the Judge, Small Causes, as affirmed by the Additional District Judge in revision does not suffer from any illegality. The writ petition Jacks merit and is accordingly dismissed, Stay order is vacated.