Abdul Sattar Khan v. District Judge, Shahjahanpur — 1996 DIGILAW 568 (ALL)

Judgment : Sudhir Narain 1. THE petitioner seeks writ of certiorari for quashing the judgment dated 1.8.1992, passed by Judge, Small Causes Court, decreeing the suit of the plaintiff-respondent for recovery of arrears of rent, ejectment and damages and the order dated 17.5.1993, passed by respondent No. 1, dismissing the revision against the aforesaid judgment. 2. THE facts in brief are that the petitioner is tenant of shop No. 145. Tareem Bahadurganj, district Shahjahanpur. This shop was originally owned by Sri Vasalat Ali Khan and let out to the petitioners on monthly rent of Rs. 25. Vasalat Ali Khan executed a sale deed in respect of the shop in question on 1.8.1981 in favour of respondent No. 3. The version of the petitioner is that he sent rent to Vasalat Ali Khan by money order but he refused to accept the rent. He deposited the rent in the Court of Munsif under Section 30 (1) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'). On 27.3.1982, he filed an application for adding the name of respondent No. 3 on the ground that he had come to know that the property has been sold in his favour. The application was allowed by the court concerned on 17.1.1983. The petitioner thereafter continued to deposit the rent under Section 30 of the Act. 3. RESPONDENT No. 3 sent a notice on 27.11.1986 to the petitioner stating that he had purchased the disputed property vide registered sale deed dated 1.8.1981 and he is entitled to the rent for the period after 1st August, 1981. The petitioner sent a reply to respondent No. 3 through his counsel on 8.12.1986 stating that he had to deposit the rent under Section 30 of the Act as Vasalat Ali Khan had refused to accept the rent. He has been depositing the rent under the orders of the Court dated 11.1.1983. He can withdraw the amount on furnishing proof of his ownership. RESPONDENT No. 3 filed suit No. 16 of 1987 for recovery of arrears of rent and ejectment on 31.7.1987 on the allegation that the petitioner failed to pay arrears of rent due against him for the period since 1.8.1981 in spite of the service on the respondents and thereby committed default and was liable for ejectment. RESPONDENT No. 3 filed suit No. 16 of 1987 for recovery of arrears of rent and ejectment on 31.7.1987 on the allegation that the petitioner failed to pay arrears of rent due against him for the period since 1.8.1981 in spite of the service on the respondents and thereby committed default and was liable for ejectment. The petitioner filed written statement and stated that he had deposited the rent under Section 30 of the Act. He was never informed by the previous landlord about the execution of the sale deed. RESPONDENT No. 3 further filed an application for amendment of the plaint stating that as the petitioner had denied his right and title in the property, he is liable for eviction on the ground of denial of title itself. The petitioner filed additional written statement. 4. THE trial court decreed the suit for recovery of arrears of rent, damages and ejectment on 11.8.1992 on the finding that the petitioner had failed to pay the rent to the plaintiff inspite of the service on notice upon him and further he had denied the title of the plaintiff. THE petitioner filed revision against the said order and the revision has been dismissed by respondent No. 1 by order dated 17.5.1993. These orders have been challenged in the present writ petition. I have heard learned counsel for the parties. 5. THE first question is as to whether the petitioner had denied the title of the plaintiff in respect of the disputed shop. THE petitioner in Paragraph 14 of his written statement stated that Vasalat All Khan was the landlord. He never intimated him that he had sold the property to the plaintiff. THE respondent Nos. 1 and 2 took the view that the petitioner had not accepted the ownership of the plaintiff in the suit. This amounts to denial of his rights and was liable for ejectment on this ground. THE petitioner nowhere renounced his character as that of the tenant. Admittedly, Vasalat Ali Khan was the landlord. He only contended that Vasalat Ali Khan had never intimated him that he had sold the property to the petitioner. He was only insisting the plaintiff to produce the necessary documents in respect of the title of the property in question. 6. THE petitioner nowhere renounced his character as that of the tenant. Admittedly, Vasalat Ali Khan was the landlord. He only contended that Vasalat Ali Khan had never intimated him that he had sold the property to the petitioner. He was only insisting the plaintiff to produce the necessary documents in respect of the title of the property in question. 6. LEARNED counsel for respondent No. 3 Sri K. M. Hazela urged that the petitioner having himself filed an application for impleadment under Section 30 of the Act, it was not open to him to challenge the right of the plaintiff to realise the rent or his title. It may be that the petitioner was insisting for proving the title by producing the sale deed executed by Vasalat Ali Khan in favour of respondent No. 3 but that does not indicate that he unequivocally denied his title. In Kundan Mal v. Guru Datt, 1989 ALR 367, their Lordships of the Supreme Court interpreted clause (f) of Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which was in pari materia with Section 20 (2) (f) of U. P. Act No. 13 of 1972. It was held that if the tenant described the character of his possession as that of a tenant and did not deny the title of the landlord in clear and unequivocal terms, he shall not be liable for eviction on the ground of disclaimer of title. 7. IN another decision of the Supreme Court in Munsami Naidu v. Sri Ranganathan, 1991 (1) ARC 382, it was held that the mere statement of the tenant that he was not aware about the particular set of facts as to who was landlord does not amount to denial of title of his landlord. The version of the petitioner that the previous landlord had not intimated him about the transfer of the property in question in favour of the plaintiff does not itself amount to denial of title of the plaintiff. The petitioner never renounced his character as that of a tenant. He is, therefore, not liable for eviction on the ground mentioned under Section 20 (2) (f) of the Act. 8. THE second question is as to whether the petitioner committed default in payment of the arrears of rent. His defence is two fold. The petitioner never renounced his character as that of a tenant. He is, therefore, not liable for eviction on the ground mentioned under Section 20 (2) (f) of the Act. 8. THE second question is as to whether the petitioner committed default in payment of the arrears of rent. His defence is two fold. Firstly, he has deposited the rent under Section 30 of the Act for the period claimed in the notice and on the date of service of the notice more than four months rent was not due against him and secondly, he had deposited the entire arrears of rent and cost, etc., as contemplated under Section 20 (4) of the Act and was not liable for eviction on that ground. The petitioner had not deposited the amount under Section 20 (4) of the Act for the period for which he is alleged to have deposited the rent under Section 30 of the Act. If the amount deposited under Section 30 of the Act is excluded, the petitioner shall not get the benefit of such deposit. 9. THE petitioner had filed an application on 22.11.1981 under Section 30 of the Act on the ground that he had sent a money order to Vasalat Ali Khan but he had refused to accept it. During the pendency of that proceeding, the petitioner filed an application on 27.3.1982 for impleading the name of respondent No. 3 on the ground that he had come to know that respondent No. 3 has purchased the property from Vasalat All Khan. His application was allowed and respondent No. 3 was Impleaded as one of the opposite parties in the said application. A notice was Issued to him. THE process server submitted a report that he refused to accept the notice. THE Court allowed the application on 17.1.1983 and permitted the petitioner to deposit the amount. 10. THE version of the petitioner is that he had sent rent through money order to the previous landlord prior to 22.11.1981 but he had refused to accept it. In case the landlord had refused to accept the rent without giving any reason, the petitioner was justified in depositing the rent and continue to deposit the same unless the landlord signified his willingness to accept the rent. THE previous landlord was party in the proceedings under Section 30 of the Act. In case the landlord had refused to accept the rent without giving any reason, the petitioner was justified in depositing the rent and continue to deposit the same unless the landlord signified his willingness to accept the rent. THE previous landlord was party in the proceedings under Section 30 of the Act. He, however, did not put in appearance in the proceedings under Section 30 of the Act. A notice was served upon him in the proceedings under Section 30 of the Act. It was held that he was served with notice. In suit No. 16 of 1987, the plaintiff did not produce any evidence that he was not served with any notice in that proceedings. He did not file any objection stating any ground on which he had refused to accept the money order. It was open for him to take a plea that he was Justified in refusing to accept the rent as he had sold the property and it was intimated to the petitioner but no such objection was filed by him. THE petitioner had adduced the evidence that he had sent money order to him and it was refused. He was, therefore, justified in depositing the amount under Section 30 (1) of the Act and was further entitled to deposit the rent for subsequent period till the landlord signified by notice in writing to the petitioner his willingness to accept it. Respondent No. 3 purchased the property from the previous landlord. He was bound by the action of the previous landlord. He was also impleaded as a party in the proceedings under Section 30 of the Act and was given a notice. Learned counsel for the respondent contended that respondent No. 3 never received the notice alleged to have been issued by the court in the proceedings under Section 30 of the Act and evidence was adduced to this effect by him. The trial court has not recorded any finding that the finding recorded by the Court in proceedings under Section 30 that respondent No. 3 was served with notice was wrong. In any case, respondent No. 3 being purchaser of the property from the previous landlord is bound by his action. He had not issued any notice to the petitioner to pay the rent prior to 27.11.1986 which was replied to by the petitioner on 8.12.1986. 11. In any case, respondent No. 3 being purchaser of the property from the previous landlord is bound by his action. He had not issued any notice to the petitioner to pay the rent prior to 27.11.1986 which was replied to by the petitioner on 8.12.1986. 11. SECTION 30 (1) provides that if the landlord refused to accept the rent tendered to him by the tenant, such tenant may deposit the rent under SECTION 30 (1) of the Act and continue to deposit the rent which is alleged 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. The petitioner in view of this provision was entitled to deposit the rent under SECTION 30 of the Act till he received the notice dated 27.11.1986 from respondent No. 3. 12. LEARNED counsel for the plaintiff-respondent alleged that the amount was deposited in the name of the previous landlord and respondent No. 3 could not have withdrawn the amount under Section 30 of the Act. He has referred to column 7 of Form 'E' prescribed under Rule 21 of the Rules 1972 which requires the name and address of the alleged landlords. Vasalat All Khan was the previous landlord and his name was indicated in column No. 7. The respondent No. 3 was impleaded as one of the opposite parties in the application on the ground that he had purchased the property. The mere fact that his name was not added in column No. 7 of Form 'E' did not debar him from withdrawing the amount If he had filed an application for withdrawal of the amount on the ground that he was already impleaded as a party in the case as purchaser from the landlord. The deposit will be treated as a valid deposit and will enure to the benefit of the landlord under Section 30 (6) of the Act. The Court will have to examine as to how much amount was deposited by the petitioner before service of the notice dated 27.11.1986 on the petitioner. The deposit made by the petitioner under Section 30 (1) of the Act prior to the date of service of the notice shall be treated as a valid deposit. The Court will have to examine as to how much amount was deposited by the petitioner before service of the notice dated 27.11.1986 on the petitioner. The deposit made by the petitioner under Section 30 (1) of the Act prior to the date of service of the notice shall be treated as a valid deposit. In view of the discussion above, the case is remanded to respondent No. 1 to record finding whether the petitioner was in arrears of rent for four months on the date of service of the notice dated 27.11.1986 on him after taking into consideration the amount deposited by him under Section 30 of the Act as valid prior to the date of service of notice dated 27.11.1986 on him and then pass the decree accordingly. 13. IN the result, the writ petition is allowed and the case is remanded to respondent No. 1 to decide the revision in accordance with law in the light of the observations made above. The parties shall bear their own costs.