MOHAMMAD ILIYAS Vs. SHRI RAM

JUDGEMENT

(1.) THIS is a second ap peal by the defendant in a suit for re covery of arrears of rent and mesne pro fits and ejectment from a house. Respondent Sri Ram instituted the suit in ques tion on the ground that the tenant had failed to pay the arrears of rent on de mand by notice under Cl. (a) of Sec tion 3 (1) of the U. P. (Temporary) Con trol of Rent and Eviction Act, 1947 with in the period of one month. The case of the tenant was that he had deposited rent under Section 7-C of the aforesaid Act (hereinafter referred to as 'the Act'), and, therefore, he had not failed to pay the rent. The trial court accepted the defendant's plea and dismissed the suit On appeal by the plaintiff landlord, the appeal was allowed and the suit was decreed for ejectment and mesne profits at the rate of Rs. 10/- per month till the date of actual delivery of possession. As to the arrears of rent the trial court had partly decreed the suit and directed that the rent in deposit in court will be re fundable to the landlord. That part of the decree was not challenged in appeal and became final. In this second appeal the principal ground taken to challenge the appellate iudgment and decree is that the appellate court was wrong in holding that there was no deposit of rent by the appellant within the meaning of sub-section (6) of S. 7-C of the Act. A ground has also been taken that the notice of termination of tenancy was invalid.

(2.) SUB -section (6) of S. 7-C of the Act lays down that "In any case where a deposit has been made as aforesaid, it shall be deemed that the rent had been duly paid by the tenant to the landlord". It is proved that the defendant-appellant had deposited the rent for the period 1-2-1964 to 31-1-1967 by means of tenders Exts. A-l to A-7. by making applications under Section 7-C (1) of the Act. The question which therefore arose for con sideration before the lower courts was whether the rent alleged by the landlord respondent to be in arrears had been de posited in terms of Section 7-C of the Act. It is in evidence that the rent deposited by some of the tenders was actually with drawn by the landlord on issue of notice to him under sub-section (4) of S. 7-C. In the case of two deposits the landlord did not turn up and the tenant also did not appear before the court and there upon orders Exts. Ka-4 and Ka-5 were passed by the concerned Munsif dismis sing the case in default. The two orders may be usefully reproduced:-

(3.) THE appellate court accepted the case that there was refusal by the landlord to accept the sum of Rs. 310/-and that therefore the tenant had a right to deposit rent under Section 7-C (1) but he proceeded to consider whether the total sum of Rs. 120/- deposited under the two tenders Exts. Al and A5 relating to the two applications dismissed as above was validly deposited under Section 7-C of the Act. In that connection the ap pellate court referred to two decisions of the Court, these being Shanti Devi v. Chandra Mukhi. 1967 All LJ 788 and Bihari Lal v. Shyam Das. 1963 All WR (HC) 399. In the former case Dhavan, J. before whom Bihari Lai's case does not appear to have been cited, laid down that under Section 7-C no dispute is to be decided and that all that the Court has to do upon a deposit allowed under Sec tion 7-C (1) is to send a notice to the landlord informing him about the deposit so that the landlord may come and with draw the money if he likes. There is no requirement of issuing any notice to the landlord to show cause against the application. It will be in a suit in which the controversy arises whether the ten ant has failed to pay rent, that the question will be decided whether the tenant was entitled to deposit rent under Sec tion 7-C and whether he be deemed to have paid the rent by such deposit as provided by sub-section (61 of S. 7-C. In the earlier decision 1963 All WR (HC) 399 it had however been laid down that the Court in which an application under Sec tion 7-C (1) is made is entitled to satisfy itself about the jurisdictional facts which must exist before a tenant can move an application under sub-section (1) of Sec tion 7-C. namely, that the applicant is a tenant and that the landlord has refused to accept rent which was lawfully paid to him. It was further held that where the landlord contests these facts by filing an application in the court, the court is bound to enter into those questions and to decide whether or not the applicant was a tenant and whether the rent which was tendered to the landlord was refused by him and it is only when the court de cides the question in favour of the appli cant that it can receive the money and re tain it on behalf of the landlord. After referring to these two conflicting decisions the appellate court referred to a till then unreported case, civil revision No. 1779 of 1964 Fateh Chand v. Bal Sarup Goel, a Division Bench case which has since been reported in 1967 All LJ 979. There in the view taken by S. D. Singh. J. in the case 1963 All WR (HC) 399 (Supra), was accepted and it was laid down that while the Munsif will no doubt satisfy himself before issuing notice to the land lord whether the iurisdictional facts were prima facie made out by the application made by the tenant but after notice has been issued to the landlord under sub section (4) and if the landlord appears and files an objection questioning the ex istence of any of the two iurisdictional facts, it will not only be within the powers of the Munsif but indeed the duty of the Munsif to go again into the question as to whether or not the procedural fact necessary to enable him to act under clause (1) of Section 7-C of the Act exists. It seems that the whole object and purpose of Section 7-C of the Act was overlooked by the Division Bench, nor was it considered as to what would be the consequences of that view. Suppos ing the landlord raises a dispute about the two jurisdictional facts and the Mun sif decides them, will that be a final deci sion binding both the parties, there being no provision for any appeal from the order of the Munsif. The decision will not give rise to a decree. How will then the rights of the parties so determined be affected in any future litigation? If the decision were directly applicable to the facts of this case there could be only two courses open to me either to follow it, being a Division Bench case or to make a reference to a Full Bench. But as a matter of fact, the decision is not applicable at all and the appellate court hit wide of the mark in thinking as to what it had to decide in the appeal. In the instant case the Munsif had the Pre liminary satisfaction in the case of both the tenders about the maintainability of the application and it was because of that prima facie satisfaction that he allowed the deposits to be made and issued notice under sub-section (4) of Sec tion 7-C. The landlord did not come and make any oral or written objection. No question arose, therefore, for the Munsif to look again into the jurisdic-tional facts. By his orders quoted above he has not decided any such facts. As a matter of fact the learned Munsif never applied his mind to 'his function under Section 7-C and he thought that he was dealing with a proceeding between two parties in which the applicant had to ap pear before him and to do something and that therefore in default of the parties the application was liable to be rejected. This was not the case at all. The ten ant applicant had played his part each time by making an application with a tender as prescribed under S. 7-C (1) and the tender had been passed after the satisfaction of the Munsif about the main tainability of the application and the money had also been actually deposited. Steps for issue of notice to the landlord under Section 7-C (4) had also been taken and notice issued and served. The land lord's appearance in the notice was not required. All that he was informed was about the deposit of the rent and that he could seek refund of it if he liked. Even supposing the Munsif thought of fixing some date for the landlord to appear then in default of appearance of the landlord he should have consigned the case with out dismissing or striking out the case in default. The second time he passed an order even about cost, showing his utter ignorance about the nature of pro ceedings under Section 7-C of the Act. It is in evidence that later on the land lord even applied for payment to him of the rents deposited through the aforesaid two applications but the repayment ap plications were rejected, again erroneous ly, on the ground that there was no order of the court in the case for payment to the landlord. As a matter of fact no such order was required because S. 7-C (4) itself provides that the landlord may withdraw the amount deposited by mak ing an application to the Court in that behalf. The application for repayment should have been put before the Munsif for being accepted or for ordering pay ment. It will appear from the above dis cussion that the deposit itself had been accepted each time and no controversy had been raised by the landlord at any time in respect of those deposits upon notice being issued to him under Sec tion 7-C (4). They were good deposits entitling, in consequence, the tenant to the benefit of sub-section (6) of that sec tion. The wrong and meaningless orders of the learned Munsif on those applica tions after the deposits had been accept ed could not affect the validity of the deposits. The case of the appellant, in this connection stands in a far better position as compared to the case deal; with by Dhavan, J. in 1967 All LJ 788 in which the Munsif had rejected the ap plication and directed the applicant under Section 7-C (2) to withdraw the amount deposited by her on a controversy arising whether the rent had been deposited in terms of Section 7-C (2) and the benefit of Section 7-C (6) was available. Dhavan, J. held that it was a case of an applica tion under Section 7-C (2) and the Munsif's order was wrong and the de posit made could not be regarded, by reason of the Munsif's order, as not made under Section 7-C (2) of the Act.