NATHI LAL Vs. RAMJI LAL

JUDGEMENT

(1.) This is defendant's application in revision under Section 25 of the Provincial Small Cause Courts Act The brief facts giving rise to this revision are that the plaintiff opposite party had filed a suit again the defendant-applicant for recovery of arrears of rent and his ejectment from the shop. According to the plaintiff the defendant was the tentant of the disputed shop on a monthly rent of Rs. 175/- and since he had been arrears of rent for more than four months, i. e. from 1-12-72, he was liable to eviction. The defendant-applicant contested the suit and contended that the rent of the disputed shop was Rs. 60/- per month, that he was not IBL default and had paid the rent up to November, 1973, to the plaintiff but he did not is u any receipt and the rent thereafter from December, 1973. Was deposited Munsif's Court under Section 30 (1) of the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972, hereinafter referred to as the Act'. The jurisdiction of the Court was also disputed. The trial Court framed a number of issues the plea of jurisdiction was not pressed before it. The other findings recorded by it were that that was liable to be struck off under Order 15 Rule 5 C. P. C that the monthly rent of the disputed shop was Rs. 175/- per month and the defendant had in arrears of rent since 1-11-1971. The plea regarding the validity of notice was not pressed before it. The trial Court, in the result, decreed he s for arrears of rent and damages of Rs. 175/- per month and also for ejectment c the defendant from the shop in suit. The present revision application has beer filed to revise this order. Three submissions were made before me on behalf of the defendant-applicant : firstly, that the plaintiff- opposite party had claimed arrears from 1-12-72 and hence the finding of the Court below that the rent was due from 1-11-71 was without any basis; secondly that the defense of the defendant applicant could not be struck off and lastly that since the plaintiff had no challenged the order made under Section 30 of the Act, it had become final. I shall take these contentions one by one. So far as the first contention is concerned, it is correct that the plaintiff-opposite-party had claimed arrears of rent from 1-12-72 and the trial erred in giving a finding under issue No. 2 that the defendant has not paid rent since 1-11-71. However, in the operative part what has been stated is that the plaintiff's suit is decreed for ejectment and arrears of rent and damages at the rate of Rs. 175/- per month. In other words the suit has been decreed in terms of the relief claimed and, therefore, the above finding does not have any material effect on the ultimate result. As regards the second contention the Court below has observed that from the receipts filed by the defendant it was clear that the defendant had not deposited the rent in time. Rent for more than three months was deposited at one time and apart from that it had been deposited with delay and there was nothing to show that the defendant had obtained permission from the Court concerned for extension of time for depositing the rent. Apart from that he had not deposited interest and his defense was liable to be struck off under Order 15 Rule 5 C. P. C. In the first instance this finding is based on the material on record and being a pure finding of fact it cannot be disputed in revision before this Court. Apart from that there was no practical consequence of this finding. It was given at the time of the disposal of the suit itself. The defendant-applicant was not pre vented from participating in the proceedings in the case. HJ cross-examined the witness of the plaintiff-opposite party and produced his own evidence. Therefore, in my opinion, in the first instance the aforesaid finding cannot be challenged and apart from this since it did not have any adverse effect on the defense, it cannot be disturbed. Coming to the last contention a certified copy of the order passed under Section 30 (1) of the Act was filed in this Court. That order was passed on 7-9-74 and it goes to show that notice was served on the landlord-opposite party but he did not turn up. The application for depositing the rent in the Court was made on the ground that the opposite party landlord had refused to take the rent and also accept the money-order sent to him. The refused money-order coupon was on record and hence the Court concerned considered the ground as sufficient. It allowed the application and the applicant was permit ted to deposit the rent in the Court and also do so in future till the landlord signified his willingness to accept the rent. According to the ground taken in the memo of revision this order having become final would operate as res judicata. At the time of arguments, however, it was not contended that this order would operate as res judicata. But, what was submitted was that the proceedings under Section 30 of the Act are subject to challenge in a regular suit and since the plaintiff-opposite party did not challenge that -order in the instant suit, that order became final and would be binding between the parties. After hearing counsel for the parties I am not inclined to accept this contention. Section 30 of the Act in so far as it is relevant for the purpose of the present case reads: "30 Deposit of rent in Court in certain circumstances (1 ). If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges 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. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (3) The deposit referred to in sub-section (1), or sub-section (2) shall be made in the Court of the Munsif having jurisdiction. (4) On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the Court in that behalf. (5) (6) In respect of a deposit made as aforesaid it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub section (1) or to the landlord in the case referred to in sub-section (2 ). " It would be useful to read the corresponding provision contained in Section 7 (c) of the Old Act, i. e. U. P. Act 3 of 1947. The relevant provision is as under:- "7 (6) (1)-When a landlord refuses to accept any rent lawfully paid to him by a tenant in respect of any accommodation, the tenant may in the prescribed manner deposit such rent and continue to deposit any sub sequent rent which becomes due in respect of such accommodation unless the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept. (2) (3) The deposit referred to in sub-sections (1) or (2) shall be made in the Court of the Munsif having jurisdiction in the area where the accom modation is situated. (4) On any deposit having made under sub-section (1) the Court shall cause a notice of the deposit to be served on the landlord, and the amount of deposit may be withdrawn by the landlord on application made by him to the Court in this behalf. (5) (6) In any case where a deposit has been made, as aforesaid, it shall be deemed that the rent has been duly paid by the tenant to the landlord. " On a comparison of these two provisions it would appear that some vital changes have now been introduced in section 30 of the Act, inasmuch as now the right to deposit rent in Court has been given to any person claiming to be a tenant of a building while under sub-section (1) of Section 7 (c) this right was given only to a tenant which expression was by Section 2 (g) defined to mean "the person by whom rent is, or but for a contract express or implied would be, payable for any accommodation. " Another difference now introduced is that the person claiming to be a tenant has been given a right to tender any amount as rent in respect of the building to its alleged landlord and in case the alleged landlord refuses to accept such amount, the former may deposit it in the manner prescribed and continue to deposit any rent which he alleges to be due for any subsequent period. On the contrary Section 7 (c) (1) did not contain the expression "any amount as rent" but contained the expression "any rent". In my opinion the difference between the two expressions is quite self-evident. The expression "rent" signifies the amount payable by the tenant as a result of an express or implied contract between the parties while the expression "any amount as rent" cannot convey this meaning. Another differ ence is that under Section 7 (c) (1) the tender of rent was to be made by the ten ant to the landlord while under Section 30 (1) such tender can be made to the alleged landlord. In other respects of course the provisions contained in these two sub-sections are in pare materia. The effect of deposit under sub-section (6) of Section 7 (c) was, of course, that where rent had been deposited under sub-sections (1) or (2) it was deemed to have been duly paid by the tenant to the landlord and after such deposit the landlord would have no right to file a suit for ejectment on the ground given in clause (a) of Section 3. I do not think that this inference can be extended to the consequence of deposit made under sub-sections (1) or (2) of Section 30. The effect of deposit now would only be that it shall be deemed that the person depositing any amount as rent had paid such amount on the date of such deposit to the person in whose favour it is deposited. The con sequence will not necessarily be that the landlord would be prevented from claiming default on the part of the tenant. The scope of notice issued under sub-section (4) is only to intimate the alleged landlord the fact of deposit made under sub-section (1) and further after such notice the amount of deposit may be withdrawn by that person on application made by him in the Court on that behalf. It is not a notice to show cause which is issued to the landlord. There is no scope for the Court before which an application under sub-section (1) has been given to decide any dispute regarding the correct amount of rent agreed to between the parties or to decide the question of existence of relationship of landlord and tenant between the parties. In other words in regard to the quantum of rent or in regard to the existence of relationship of landlord and tenant the proceedings under Section 30 (1) do not have any binding effect much less that of res-judicata. Reliance was placed on behalf of the defendant-applicant on a decision of a learned Single Judge of this Court in Abdul Jabbar v. Krishna Lal, (1978 A. L. J. 1123.), That was a case under Section 7 (c) and the view taken was that if the Munsif is prima facie satisfied about the conditions as laid down in Section 7 (c) (1), he may permit the tenant to deposit rent in his Court and issue notice to the landlord to file objection and If the landlord does not file any objection, the order would be final and binding and the deposits made by the tenant would entitle him to the benefits of Section 7 (c) of the Act. I do not think that this decision lays down that the order made under Section 7 (c) (1) becomes final between the parties and operates as res-judicata in all matters even though they do not come within sub-section (6) thereof. An order made under Section 7 (c) (1) would operate only within the ambit specified in sub-section (6) and that ambit, as noted above, is that it shall be deemed that the rent has been duly paid by the tenant to the landlord. In other words in the event of such deposit of rent, default cannot be attributed to the tenant and he cannot be ejected on that ground. This decision has not taken note of some earlier cases which have not gone so far it has. In Janki Prasad Misra v. Ranvir Singh Rathore, (1965 A. L. J. 942.) the view taken was that under Section 7 (c) the Munsif is not required to determine the rights and obligations of the landlord and tenant. All that the Munsif is required to do is that on deposit of rent under Section 7 (c) he has to issue a notice to the landlord informing him that such deposit has been made. It is then open to the landlord to accept the amount or not to accept it. The Munsif has to hold the amount in deposit for the benefit of the person who may be entitled to the same. Sub-section (6) operates by itself and if the deposit has been lawfully made the rent shall be deemed to have been duly paid by the tenant to the landlord. It was further, observed that sub-section (1) of Section 7 (c) gives a right to the tenant to deposit rent when landlord refuses to accept any rent lawfully paid to him by the tenant A tenant may allege that the landlord has refused to accept any rent lawfully paid to him and may deposit it but the section itself does not require the Munsif to go into the question whether the landlord refuses to accept the rent lawfully or otherwise. This question is a question of fact to be determined in appro priate proceedings and if and when the question of refusal by landlord or rent lawfully paid to him arises and it has been held that the deposit was made of any rent which the landlord has unlawfully refused to accept, the provisions of sub-section (6) will apply. Almost a similar view was taken by a learned Single Judge of this Court in Shanti Devi v. Chandra Mukhi, (1967 A. L. J. 788. ). It was held that the Court hearing the ejectment suit is not bound by the order of rejection of an application made under Section 7 (c ). The question whether the tenant was entitled to make deposit under Section 7 (c) is to be considered afresh by the Court hearing the suit for ejectment. Apart from this because of the material changes which have been made in Section 30 of the Act, it would be difficult to hold that after deposit made under Section 30 (1) the landlord will have no right to file a suit for ejectment on the ground of arrears of rent in case it is found that the amount of rent was different from the amount which was deposited in proceedings under Section 30 (1 ). Now it is the rent which is required to be deposited but any amount of rent which any person claiming to be a tenant considers to be due in respect of a building. In the present case it has been found as a fact that the rent of the disputed shop was Rs. 175/- per month while the tender of rent by the defendant-applicant to the plaintiff-opposite party was at the rate of Rs. 60/- per month and the deposit also was at that rate. It cannot be said therefore, that it was deposit of the amount of rent. It was deposit of "any"' amount of rent which according to the defendant-applicant was due. There is yet another aspect and it is that this plea is being taken before this Court for the first time. I do not think that it can be entertained even because it does not involve a pure question of law. It is a mixed question of fact and law. It is not known as to how service of notice issued under Sec. 30 (4) was affected on the plaintiff-opposite party. The plaintiff-opposite party had no occasion to explain the circumstances in which he had refused to accept the amount of rent offered to him by the defendant- applicant. In short the Court below has not applied its mind to this question. For all these reasons, therefore, the order made under Section 30 (1) will not have binding effect on the rights and obligations of the parties and the plaintiff opposite party cannot be shut out' from claiming ejectment on the ground of default. The revision, hence, fails and is dismissed with costs to the plaintiff-opposite-party. .