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Allahabad High Court · body

1996 DIGILAW 576 (ALL)

RAM DEVI v. ADDL DISTRICT JUDGE ETAH

1996-05-10

S.K.PHAUJDAR

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S. K. PHAUJDAR, J. This is an application under Article 226 of the Constitution of India. An order passed by the 1st Additional District Judge, Etah on 22-3-77 on a Revision Application under Section 25 of the Provincial Small Cause Courts Act has been impugned. 2. Admittedly the respondents 3 and 4 were the landlords, in respect of a tenanted premises wherein Bishambhar Dayal, Sheo Shankar and Raj Bahadur, three brothers, were joint tenants. The present petitioner Smt. Ram Devi is the widow of Bishambar Dayal. The present petitioner No. 2 is one of the joint tenants while the heirs of the third joint tenant Raj Bahadur have been arrayed as respon dents. 3. A suit was filed by the owner landlords against the aforesaid three brothers for ejectment from the tenanted premises and for arrears of rent of the same on the ground of default in payment of rent. Notices were issued separately to all the three joint tenants demanding arrears of rent for five months @ Rs. 44 per month, amounting to Rs. 220 in all. 4. It is further the admitted case of the parties that the three brothers Bishambhar, Sheo Shankar and Raj Bahadur, in response to the notices, sent three separate money orders amounting to Rs. 100/-, Rs. 80 and Rs. 40. The landlords refused to accept such money orders. 5. The suit was decreed by the Small Causes Court on 20-5-74. A revision was preferred under Section 25, Provincial Small Cause Courts Act before the 1st Addi tional District Judge, Etah and this revision was dismissed on 23-3-77. It appears that a Second Civil Revision No. 1002/71 was preferred before the Allahabad High Court and this Second Revision too was dismissed on 29-9-81 and thereafter the present writ petition was filed. 6. The only question that arises for consideration by this court, in terms of the arguments of the learned counsel of the parties, is whether the tender of rent by the three joint tenants separately as per the aforesaid money- orders was valid tender to wipe out the default on their part. It is not disputed that the total sum so sent by the 3 money-orders equals the total sum under claim in the notice. It is also not disputed that all the 3 money-orders reached the landlords within the time indicated in the notice. 7. It is not disputed that the total sum so sent by the 3 money-orders equals the total sum under claim in the notice. It is also not disputed that all the 3 money-orders reached the landlords within the time indicated in the notice. 7. The learned counsel for the petitioners submitted that the trial Court and the Court of revision erred in their approach that by separate remittance of money-orders the tenants had split up their tenancy. It is not a case of split-up tenancy. The notice demanded the arrears for an amount of Rs. 220/ -. Each had a right to send the whole or a part thereof so as to complete the payment within the notice period for the whole sum under due. It was contended that (sic) seen in this light, the tender was a valid one and the suit should not have been decreed and the revision should not have been dismissed. 8. In reply to this contention the learned counsel for the respondents 3 and 4 submitted that there could not have been any acceptance on the part of landlords to the prejudice of their right. The tenancy originally belonged to the predecessor of present tenants and when a suit was filed for eviction on certain other grounds, there was a compromise between the landlords and tenants whereby a joint tenancy of all the three brothers was accepted and the rent was enhanced. It was contended that the money orders did not indicate that a part of the sum under claim was tendered, rather in each money order it was stated that the rent for five months was being sent. Had the landlord accepted any one of these money orders, he would accept a split up tenancy to his own prejudice. 9. I was taken through a decision of the Allahabad High Court in the case of Kishori Lal v. Triloki Nath as reported in AIR 1962 All 360. It was also a case between a landlord and a tenant and there was also a question of default. The monthly rent for the premises was Rs. 10. On the date of receipt of notice, the tenant was in default of payment of 3 months rent. He remitted a money order of Rs. 10 at the first instance. The landlord refused to accept the same. Thereafter, the tenant remitted a further sum of Rs. The monthly rent for the premises was Rs. 10. On the date of receipt of notice, the tenant was in default of payment of 3 months rent. He remitted a money order of Rs. 10 at the first instance. The landlord refused to accept the same. Thereafter, the tenant remitted a further sum of Rs. 20 which was, however, accepted by the landlord. After the notice period a further sum of Rs. 10 was sent by the tenant by money order which was again refused by the landlord. The Allahabad High Court was of the view that the protection of law to the tenant was available, if he remitted the sum under demand within one month from the receipt of notice. The court was of the view that the law did not insist that the tenant must pay the amount in a single instalment and the tenant had the right to pay the due in instalment provided the whole amount of arrears would be cleared within the prescribed period of one month. 10. On the basis of this finding it was stated that the tender by the joint tenants was a legal one. The learned counsel for the other side, however, relied on the observation of the Allahabad High Court in their very case in paragraph 3 of the Judgment to the effect: "the landlord is justified in refusing a tender of payment only if the tenant offers it on condition which will prejudice his right to recover the entire amount from the tenant as for example, where the tenant offers a reduced amount in full settlement of the landlords claim. " 11. The learned counsel for the respondents further submitted that the rental arrears amounted to debt and part acceptance of the debt could have affected the landlords prejudicially for the rest of claim. Reliance was placed on a decision of the Allahabad High Court as reported in AIR 1965 at page 189. It was held herein that where rent had accrued and had not been paid a debt would arise between the landlord and the tenant. Reliance was further placed on the decision of Privy Council as reported in 1922 P. C. 26. In this case it was held that a creditor, to whom principal and interest are owed is entitled to appropriate any indefinite payment which he gets from the debtor to the payment of interest. Reliance was further placed on the decision of Privy Council as reported in 1922 P. C. 26. In this case it was held that a creditor, to whom principal and interest are owed is entitled to appropriate any indefinite payment which he gets from the debtor to the payment of interest. A debtor might in making a payment stipulate that it was to be applied only to principal, and if he did so, the creditor need not accept the payment on these terms. If he accepts he would then be bound by the appropriation proposed by the debtor. 12. In this case at our hand the three joint tenants tendered Rs. 100, Rs. 80 and Rs. 40 separately. None of these sums was in multiples of Rs. 22 which was the monthly rent and the landlord could not have appropriated any of these tenders to any particular period. The case reported on 1962 AIR Allahabad 360 stood on a separate footing on facts. In that case definite rent for one month was first sent and then the definite rent for two months was subsequently remitted. It is alleged in the case at our hand that all these tenders were made for full 5 months of the default period. Acceptance of any one of these money orders would have exposed the landlord to the risk of appropriation as proposed by the debtor. He was, therefore, within his rights to refuse such tenders which were not indicated to be a part tender. These tenders were not valid tenders and the tenants cannot get the protection of the law against the proposed eviction on the ground of default. 13. In view of this decision on the point of law as argued by the learned coun sels, I may not go to the question if at all this writ petition was entertainable after rejection of the Second Revision Application. The writ petition accordingly stands dismissed. Petition dismissed. .