MANGAT RAI Vs. KIDAR NATH

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment dated November 12, 1979 of the Punjab and Haryana High Court and raises a pure question of law. The facts of the case lie within a very narrow compass. The respondents-plaintiffs filed a suit for eviction of the appellants under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Rent Act'). The ejectment was sought for from the shop B-VI, 1400 old B-IX-1736, New Ground Floor, situated in Saban Bazar, Ludhiana. The main ground on which the suit for eviction was filed was that the appellant had committed default in the payment of rent.

(2.) The suit was resisted by the appellant mainly on the ground that he was not in arrears as he had deposited the entire rent due in the court of Senior Sub Judge, Ludhiana under Section 31 of the Punjab Relief of Indebtedness Act, 1934, (hereinafter referred to as the 'Indebtedness Act'). It was also averred by the defendant tenant that not only the rent due was deposited but even future rent in advance had also been deposited before the first date of hearing. It was also alleged by the tenant that he had deposited the interest and cost of the suit amounting to Rs. 23/- which was admittedly accepted by the landlord under protest. Thus, the tenant - appellant claimed complete protection under the proviso to Section 13 (2) of the Rent Act. The defendant also pleaded that the notice given to the appellant by the landlord was legally defective.

(3.) The trial court held that any deposit made by the appellant under Section 31 of the Indebtedness Act in the Court of the Senior Sub Judge was not a valid tender and therefore the appellant could not claim any protection under the proviso to Section 13 (2) of the Rent Act. On the question of notice, the trial court held that the notice was valid and accordingly decreed the suit for ejectment. Other pleas were also taken by the defendant which were overruled by the trial court and have not been pressed before us. The appellant then field an appeal before the District Judge, Ludhiana, being the appellate authority, under the Rent Act against the judgment of the trial court. The appellate authority did not go at all into the question as to whether or not the deposit of the rent due by the appellant was a valid tender but held that as the notice was not in accordance with law, the suit was liable to fail. He accordingly allowed the appeal, set aside the order of the Controller and dismissed the suit for ejectment. Thereafter, the landlord-respondent went up in revision to the High Court against the order of the appellate authority and the only contention raised before the High Court was that in view of the decision of this Court in V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745, as no notice was necessary, therefore the Rent Controller was wrong in non-suiting the plaintiff on the ground of invalidity of the notice. The High Court accordingly decreed the suit without, however, going into the question of deposit of rent so as to protest the tenant from eviction. The appellant then filed an application for special leave which was granted and hence this appeal. The only point raised by the learned counsel for the appellant before us is that the appellant having deposited the rent before even the respondent filed the application for ejectment after which the appellant deposited the sum of Rs. 23/- as cost and interest, he was entitled to the protection of the proviso to Section 13 (2) of the Rent Act and the suit should have been dismissed on this ground alone. It was further argued that the deposit of the rent due under Section 31 of the Indebtedness Act was a valid tender as it would, in the eye of law, be treated as a deposit in the court of the Rent Controller because the court of the Senior Sub Judge was also functioning as a Rent Controller. The counsel for the respondent, however, submitted that the deposit made by the appellant cannot be held to be a valid tender as decided by a decision of this court in Shri Vidya Prachar Trust v. Basant Ram, (1970) 1 SCR 66. The learned counsel further submitted that although this case was noticed by two later decisions of this Court in Sheo Narain v. Sher Singh, (1980) 1 SCC 125 and Duli Chand v. Maman Chand, (1980) 1 SCC 246.Yet the said case had been distinguished but not overruled.