KRISHNA MENON Vs. KASIVISWANATHA VARMA RAJA

JUDGEMENT

(1.) This appeal seems to me as misconceived as the adjudication out of which it arises. For reasons I have stated in C. R. P. No. 811 of 1963 and in C. R. P. No. 1256 of 1963 decided under the similar provisions of S.6 of Act 7 of 1963, I do not think that S.73 of Act 1 of 1964 contemplates any application to what I might call the depositee court or any adjudication by it as to the sufficiency of the deposit. The depositee court has only to receive the deposit under sub-s.(1) of the section and give notice thereof to the landlord under sub-s.3. In cases where the rent is payable in kind and there is a deficiency owing to a bona fide error in computing the amount that has to be deposited in accordance with sub-s.(4) it can, under sub-s.(5), give reasonable time for making good the deficiency. That is all it can do, and it is to be noted that it is for the tenant to move the court for time on finding (discovering) that there is a deficiency, not for the court to find (decide) that there is a deficiency. The depositee court cannot decide whether or not the deposit is a sufficient deposit for the purpose of enabling the tenant to get the benefit of the section. That, in the event of dispute, is for the court trying the proceeding for the recovery of the rent, whether it be a suit or an application for execution of a decree for arrears of rent, to decide. That court might very well be, indeed in most cases would be the same court as the depositee court; the point is that even so the adjudication must be made in the proceeding for the recovery of the rent, not in the proceeding, whether initiated by an application or not, for making the deposit under the section. The section is analogous S.83 of the Transfer of Property Act and the depositee court has no jurisdiction to adjudicate on the merits of any dispute regarding the sufficiency of the deposit. Under the section (S.73 of Act 1 of 1964) the discharge is by payment to the landlord or by deposit in court for payment to the landlord. The court, it is clear, is only an agency for making the payment and no adjudication is involved any more than if the payment were made to the landlord direct. Except for the power to extend time under sub-s.(5) in cases covered by sub-s.(4), the section might as well have provided for the deposit being made in a bank for payment to the landlord. I do not suppose that any one would then have thought that the bank was to adjudicate on the sufficiency of the deposit.

(2.) With great respect I think the view I am taking is in accord with the view taken by Vaidialingam J. in C. R. P. No. 1153 of 1964 though the question there was different.

(3.) From the misconceived adjudication by the depositee court - which, as I have already shown, is without jurisdiction - no appeal lies since the adjudication was not in a suit or in execution and no appeal is provided by the statute. Therefore, as I said at the beginning, the appeal from the adjudication by the depositee court in this case and the second appeal therefrom are as misconceived as the adjudication.