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1999 DIGILAW 1903 (ALL)

NARAIN DAS v. DISTRICT JUDGE, JHANSI

1999-12-06

SUDHIR NARAIN

body1999
SUDHIR NARAIN, J. ( 1 ) THIS writ petition is directed against the Judgment dated 22. 3. 1983 passed by respondent No. 1 allowing the revision and decreeing the suit of the plaintiff for recovery of arrears of rent, ejectment and damages. ( 2 ) BRIEFLY stated the facts are that the petitioner is a tenant of shop No. 336 situate in Barua sagar, Jhansi. Respondent No. 2 served notice dated 17. 11. 1977 demanding arrears of rent from 1. 1. 1975 and terminating the tenancy of the petitioner. He filed Suit No. 19 of 1978 in the Court of Judge, Small Causes for arrears of rent, ejectment and damages against the petitioner with the allegations that he was the tenant of the disputed premises and when the rent was demanded by notice, he failed to comply with the same and was liable to eviction. The petitioner contested the suit and it was stated that the plaintiff alone was not sole landlord. It was let out by him and his brother Babu Lal. The notice sent by the plaintiff alone was invalid. He also claimed benefit of deposit made by him under Section 20 (4) of U. P. Act No. 13 of 1972. ( 3 ) THE trial court framed various issues. It was held that the plaintiff was not sole landlord but his brother Babu Lal was also co-landlord. It was further held that the petitioner having deposited the entire arrears of rent, cost of suit, etc. , he was entitled to the benefit of Section 20 [4) of the act. The suit was dismissed by the trial court on 25. 4. 1979. The landlord-respondent filed revision against this judgment. The revisional court allowed the revision and reversed the finding of the trial court and held that the plaintiff was the sole landlord of the disputed premises. The petitioner was not entitled to the benefit of the provision of Section 20 (4) of the Act as he in his pleadings alleged that there were two co-landlords and on such plea the amount deposited by him should be treated as conditional deposit. ( 4 ) ONE of the controversies was as to whether plaintiff alone is the landlord. The plaintiff appeared as a witness in the suit. His statement is annexed as Annexure-1 to the writ petition. ( 4 ) ONE of the controversies was as to whether plaintiff alone is the landlord. The plaintiff appeared as a witness in the suit. His statement is annexed as Annexure-1 to the writ petition. In the Statement, he stated that the accommodation in dispute was let out to the defendant 12-13 years ago. His statement was recorded on 20. 4. 1979, According to this statement, the letting would be some time in the year 1966. He further stated that the property belonged to him and his brother Babu Lal but there was a partition in the year 1974. As the petitioner was let out the accommodation when the property was joint, the presumption would be that it was let out by both. ( 5 ) ADMITTEDLY, there was no rent deed executed by the petitioner. The petitioner also appeared in the witness box. In the examination-in-chief, he stated that the accommodation in question was let out by the plaintiff and his brother Babu Lal. In the cross-examination, he stated that the possession of the disputed premises was delivered by the plaintiff. The trial court recorded a finding on the assessment of evidence that the letting was done by the plaintiff and his brother and both were co-landlords and, therefore, the notice sent by the plaintiff alone was invalid. ( 6 ) THE landlord-respondent filed revision against this judgment. The revisional court allowed the revision and reversed the finding of the trial court and held that the plaintiff was the sole landlord of the disputed premise. The petitioner was not entitled to the benefit of the provision of section 20 (4) of the Act in view of the fact that In his pleading, he alleged that there were two co-landlords and on such plea, the amount deposited by him should be treated as conditional deposit. The revisional court set aside this finding after assessing the statement of the petitioner. The revisional court was not justified in assessing the evidence Itself and if it found that there was any misreading of the evidence. It could have remanded the case to the trial court on the guidelines laid down in Laxmi Kishore v. Har Prasad Shukla, 1981 ARC 545. ( 7 ) THE next question Is whether the petitioner had made a valid deposit under Section 20 (4) of the Act. It could have remanded the case to the trial court on the guidelines laid down in Laxmi Kishore v. Har Prasad Shukla, 1981 ARC 545. ( 7 ) THE next question Is whether the petitioner had made a valid deposit under Section 20 (4) of the Act. The petitioner while making deposit he did not say any where that the deposit is conditional or the amount deposited by him cannot be withdrawn by the plaintiff alone. The revisional court took the view that as one of the pleas taken by the petitioner in his written statement was that the plaintiff was not the sole landlord and such plea amounts to a conditional deposit under Section 20 (4) of the Act. ( 8 ) SECTION 20 (4) of the Act provides that in any suit for eviction on the ground mentioned in clause (a) of sub-section (2), If at the first hearing of the suit, the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlords costs of the suit in respect thereof, the Court may. In lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. The tenant, however, is entitled to take such plea which does not deprive the landlord to take the rent or in respect of the rate of rent, which according to him, is payable and If ultimately it is found that only such rent is payable which is asserted by the tenant, the deposit cannot be taken as conditional. The deposit of the amount shall not be taken as conditional when no condition is attached while withdrawing the amount by the plaintiff-landlord. Sub-section (6) of Section 20 of the Act provides that any amount deposited by the tenant under sub-section (4) or under Rule 5 of Order XV of the First Schedule to the code of Civil Procedure, 1908, shall be paid to the landlord forthwith on his application without prejudice to the parties pleadings and subject to the ultimate decision In the suits. This provision clearly envisages that the mere raising of plea in the written statement as to the right of the defendant to claim certain adjustment, payment of rent and such other pleas permissible in law in a suit for arrears of rent and damages is not prohibited. Sub-section (4) of Section 20 does not contemplate that a landlord may claim exaggerated amount and the tenant to save his ejectment should deposit such exaggerated amount. The claim made by the plaintiff is always subject to the ultimate decision in the suit. ( 9 ) LEARNED counsel for the plaintiff-respondent relied upon the decision of the Supreme Court in mangal Sen v. Sri Kanchhid Mal, 1981 ARC 632, wherein the tenant claimed benefit of provision of Section 20 (4) of the Act for the first time and while repelling such claim, the supreme Court observed that there was absolutely no material available on the record to show firstly, that the alleged deposit was made by the tenant on the date of the first hearing and secondly, the amount deposited was correctly calculated in accordance with the provision of section 20 (4) of the Act. It was also observed that in the written statement, the defendant had raised the plea that he stood surety for the landlord for the arrears of sales-tax and there was no default by him in payment of rent and such plea in the written statement disputing the existence of arrears of rent was also not found to be correct and on those facts, the benefit of the provision of Section 20 (4) of the Act was not given. This decision was considered by the Division Bench in Mahendra Pratap Garg v. Smt. Vijai Laxmi, 1983 (1) ARC 74, and noted that the observation of the Supreme Court in the said case was in the context of the facts of that case and sub-section (6) of Section 20 was not considered therein. The Court observed : "in our opinion, the term unconditional has been used in Section 20 (4) in a similar sense. The Court observed : "in our opinion, the term unconditional has been used in Section 20 (4) in a similar sense. If a tenant makes the deposit but at the same time states thats the amount is not to be paid out to the landlord unless he accepts it in the full discharge of the liability, that would be imposing a condition and if the tenant says that the amount deposited by him should be kept in deposit and should not be paid out till the decision of the suit, that will make the deposit conditional but taking divergent pleas in the written statement as to the extent of quantum of liability to pay rent, does not make the deposit conditional. The purpose of the deposit is to pay ft to the landlord forthwith (See sub-section (6) ). The deposit is to be unconditional in the sense that there be no impediment or condition to Its immediate payment. " ( 10 ) IN Laxmi Narain Sharma v. Arjun Deo Dhawan and others, 1981 ARC 672, the Court pointed out twin requirements of Section 20 (4) of the Act, one that the payment, tender or deposit of the amount mentioned in the sub-section has to be made by the tenant unconditionally and the other is that what is to be deposited by the tenant is to be the amount "due from him". The tenant has a right to take reasonable plea in the written statement in regard to the claim made by the landlord in respect of the tenant. Similar view was expressed in Triloki Nath Gupta v. VIIth Additional District Judge, Kanpur and others, 1983 (1) ARC 441 and Devi Prasad v. Ram kumar Maheshwari, 1983 (1) ARC 253. The decision of the Division Bench of this Court in mahendra Pratap Gargs case, (supra) was upheld by the Apex Court in Smt. Vijai Laxmi Gangal v. Mahendra Pratap Garg, 1985 (2) ARC 298 and Its earlier decision in Mangal Sen v. Kanchhid mal, 1981 ARC 632, was distinguished on facts. ( 11 ) A plea in the written statement may, in certain circumstances, amount to a condition attached to the deposit if the tenant clearly denies the title or relationship of landlord and tenant, and in such a case the plaintiffs may not withdraw the amount unless he establishes his right to realise the amount. ( 11 ) A plea in the written statement may, in certain circumstances, amount to a condition attached to the deposit if the tenant clearly denies the title or relationship of landlord and tenant, and in such a case the plaintiffs may not withdraw the amount unless he establishes his right to realise the amount. In Ghoorey Lal v. Sheo Murti Gupta and another. 1995 (2) ARC 4, the tenant took the plea that the landlord has no title to realise the amount. It was held that where the tenant in unmistakable term denies the title of the landlord, that amounts to a conditional deposit. Where, however, the relationship of landlord and tenant is admitted and there is a mere plea that there is another co-landlord, such plea would be relevant only in respect of the right to terminate the tenancy but as regards the realisation of the amount, any of the co-landlords can realise the rent from the tenant and similarly the tenant can pay rent to any of the co-landlords. The intention of the tenant to pay rent to the landlord is not affected. ( 12 ) IN the facts of the present case, the petitioner had taken a plea that the accommodation in question was let out by the plaintiff and his brother jointly and this plea was, in fact, accepted by the trial court. The revisional court has upset that finding. As observed above, on the plea taken by the petitioner, the deposit cannot be treated as conditional as he never denied the right of the plaintiff to withdraw the amount. The suit was filed only on the ground of default and as the petitioner had deposited the amount under Section 20 (4) of the Act, the trial court was justified in dismissing the suit. ( 13 ) IN view of the above, the writ petition is allowed and the order passed by respondent No. 1 dated 22. 3. 1983 is hereby quashed. ( 14 ) CONSIDERING the facts and circumstances of case, the parties shall, however, bear their own costs. .